Recently Appellate Division of Bangladesh has delivered the full review judgment of Ataur Mridha alias Ataur vs the State (Criminal Review Petition no 82 of 2017) with a dissenting opinion from honourable Justice Muhammad Imman Ali interpreting ‘life imprisonment’ as Imprisonment for the whole of the remaining period of convicts natural life. The rest of honourable justices (6) including Chief Justice of Bangladesh agreed that ‘Imprisonment for life’ be deemed equivalent to imprisonment for 30 years if sections 45 and 53 are read along with sections 55 and 57 of the Penal Code and section 35A of the Code of Criminal Procedure. The majority of honourable justices also decided that however, in the case of sentence awarded to the convict for the imprisonment for life till his natural death by the Court, Tribunal or the International Crimes Tribunal under the International Crimes (Tribunal) Act, 1973 (Act XIX of 1973), the convict will not be entitled to get the benefit of section 35A of the Code of Criminal Procedure.
By virtue of this historic judgment, Bangladesh has entered in a new dimensional approach of sentencing policy regarding life imprisonment in two parts such as life imprisonment means rigorous imprisonment for 30 years with the application of other legal privileges as remission and commutation of punishment and another part is life imprisonment is deemed imprisonment for life till his natural death. However on Appeal of Ataur Mridha @ Ataur vs the State (Criminal Appeal nos 15-17 of 2010) had been decided on 14 February, 2017 by Appellate Division that “life imprisonment within the meaning of section 53 read with section 45 of the Penal Code means imprisonment for rest of the life of the convict.”
Let me describe the short background of this case. The facts of the case in brief are that Druto Bichar Tribunal, Dhaka vide its judgement and Petition order dated 15.10.2003 convicted the petitioner, Ataur Mridha @ Ataur and two others under sections 302/34 of the Penal Code and sentenced them to death in Druto Bichar Tribunal Case No.34 of 2003. Reference was made to the High Court Division and was registered as Death Reference No.127 of 2003. After hearing the death reference and the criminal appeal along with the jail appeal of the accused, the High Court Division by judgment and order dated 30.10.2007 accepted the reference, dismissed the appeal, thus maintained the conviction, and confirmed the sentence of death of the petitioner and the other two absconding condemned convicts. The accused preferred Leave to Appeal and subsequently filed Appeal and obviously as last stage of the court was filed Review Petition in the Appellate Division.
In our legal system there is no definition of ‘life imprisonment’. Section 45 of the Penal Code defined the word “life” that “The word ‘life’ denotes the life of a human being, unless the contrary appears from the context.” Section 57 of the Penal Code-1860 states that “Fractions of terms of punishment in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to rigorous imprisonment for thirty years.” Sections 53 and 55 of the Penal Code, sections 35A, 397 and 401of the Code of Criminal Procedure (CrPC) 1898 are also applicable in dealing punishment in Bangladesh. In this connection the Prison Act 1894, Prison Rule and Jail Code are applicable too in administration of prison. Section 35A of CrPC was firstly added in 1991 inserting that “where a person is in custody at the time of his conviction and the offence for which he is convicted is not punishable with death or imprisonment for life, the Court may, in passing the sentence of imprisonment, take into consideration the continuous period of his custody immediately preceding his conviction.” The section 35A of CrPC was amended in 2003 and omitted the words of ‘life imprisonment’. By virtue of this development of section 35A of CrPC, the convict of life imprisonment enjoys the benefit of custody of under trial of the case.
Both the Appeal and Review judgments analyze the various legal issues and connected legal jurisprudence of South Asia as well as the world regarding the sentencing policy and life imprisonment. Interestingly the Penal Code of 1860 is applicable in India, Pakistan and Bangladesh. There is no hard and fast definition of life imprisonment in these countries. Section 57 of the Penal Code is exercised in India, Pakistan and Bangladesh for same purpose. But the life imprisonment is meant here in India is 20 years, in Pakistan is 25 years and in Bangladesh is 30 years. More importantly criminal justice system of India, Pakistan and Bangladesh follows section 57 of the Penal Code for life imprisonment calculation too. Getting remission, life imprisonment in India is at least 14 years, in Pakistan is 20 years whereas in Bangladesh is 22 years and 6 months.
In criminal justice system, sentencing policy and guideline is very important to confirm the punishment. In Bangladesh, there is no provision of hearing on sentence separately but in India sentencing hearing is regarded as vital part of the trial. The proposition of ‘rarest of the rare’, ‘mitigating circumstance’ ‘crime test’ is very unusual in Bangladesh. The Supreme Court of India seriously applies those principles confirming the punishment finally. In India, life imprisonment is not a fixed term of imprisonment. The apex judiciary explained in many cases about the judicial discretion to confirm what extend of term life imprisonment can be served out by the convict. There are available cases on life imprisonment as term of 20, 25, 30, 35 years with remissions and without remissions.
In India, the power of executive exercising remissions and commutations is day by day going limited and the court is the ultimate authority to confirm what will be conditions on life imprisonment. The same process is followed by the judiciary of Pakistan, USA and UK in sentencing policy. The Appellate Division states that “Indian Supreme Court has started putting judicial breaks over the exercise of remission powers by the executive by prescribing the length of life imprisonment, for example to 15/20/25/30/35 years before which no remission shall be granted. This approach is in line with age old sentencing without parole concept appeared in American and English sentencing procedure where Judges retain the authority. [per Hasan Foez Siddique, J at P-94]”
The Apex Court of Bangladesh considered the existing laws and dimensions of exercising judicial power on life imprisonment in our Sub-Continent and the World. The principles of statutory interpretation dictate that a statute must be construed as a whole. The words which are capable of only one meaning must be given that meaning. The ordinary words must be given ordinary meanings. If the provisions of sections 45, 53, 55, 57 and 65 of the Penal Code, sections 35A, 397, 401 and 402 of the Code of Criminal Procedure and some other provisions of Penal Code and Criminal Procedure Code, the Prisons Act and Rules framed thereunder are construed as per rules of interpretation it may be observed that the assertion “imprisonment for life” means imprisonment for whole of the remaining period of convict’s natural life is not final conclusion. [per Hasan Foez Siddique, J at P-107-8]
The land mark judgment of Ataur Mritha is the basement to shape a new dimension in sentencing guideline on life imprisonment. Honourable Justice Muhammad Imman Ali supported that a life imprisonment convict can enjoy the privileges of remissions, commutation and President Prerogative following the existing laws but life imprisonment is imprisonment till natural death. The majority decision is simply life imprisonment is 30 years as accordance in section 57 of the Penal Code. However, if the Court, considering the facts and circumstances of the case and gravity of the offence, seriousness of the crime and general effect upon public and tranquillity, is of the view that the convict should suffer imprisonment for life till his natural death, the convict shall not be entitled to get the benefit of section 35A of the Code of Criminal Procedure. [per Hasan Foez Siddique, J] The Appellate Division also stated that the concern court or tribunal must consider the circumstances which are required to be considered for taking such decision are: (1)surroundings of the crimes itself; (2) background of the accused; (3) conduct of the accused; (4) his future dangerousness; (5) motive; (6) manner and (7)magnitude of crime. This seems to be a common penal strategy to cope with dangerous offenders in criminal justice system.
The interpretation of the life imprisonment and the binding precedent of Apex Court will be a cardinal reinforcement in maintaining sentencing guideline in the heinous crimes, important cases and murder cases awarding death penalty, life imprisonment till natural death of convict and life imprisonment. This decision also suffices another type of punishment in section 53 of the Penal Code. The proposition of mitigating circumstance and gravity of crime on crime test can be applied in punishment policy on sentencing. Life imprisonment till natural death can reduce the death penalty too.
The Writer is Senior Judicial Magistrate, Chief Judicial Magistrate Court, Feni.