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Criminal Appeal No. 23 of 1955, decided on 17th November 1955.

(On appeal from the judgment and order of the High Court of Judicature at Lahore, dated the 18th November 1954 in Criminal Miscellaneous No. 821 of 1955 = 4 P L D 1955 Lah. 65.

S. 401‑Unconditional order of omission may be cancelled by Government before such order has taken effect‑Criminal Procedure Code (V of 1898), S. 401 (3)‑General Clauses Act (X of 1897), S. 21.

Held, that apart from the question whether the provisions of section 21, General Clauses Act (X of 1897) applied or not to orders passed under section 401, Cr. P. C., Government must, in nature of things, possess power to recall such orders. In fact existence of such power is necessary in the case of all authorities empowered to pass orders under a statute or regulation.

Locus poenitentiae, i.e. the power of receding till a decisive step is taken, is left with Government if the unconditional order Has not been carried into effect. Till then, there is no reason restrict the power to modify or cancel such an order.

In the present case, the, order, of remission was to take effect from 14th August, 1954, and the order was cancelled on the 13^th .

Held further that subsection (3) of section 401, Cr. P. C. construed on its language without reference to its history, indicated only this that where the order had been given effect to. Government could cancel the original order of remission only in cases coming under this subsection. The Court repelled the argument that if the intention was that the Government should have general power to cancel its orders of remission there was no necessity for enacting subsection (3) of section 401, Cr. P. C.

Venkatesh Yeshwant Deshpande v. Emperor A I R 1938 Nag. 513 distinguished.

Mahmud Ali, Advocate, Federal Court, instructed by M. Siddiq, Attorney for Appellant.

A. R. Changez, Advocate‑General West Pakistan. (Fazal Elahi, Advocate, Federal Court with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 31st October 1955.

The appellant was convicted of murder and sentenced to death on 5th February 1953 by the Sessions Judge of Sialkot. On appeal the High Court of Lahore upheld the conviction but reduced the sentence to transportation for life on 6th May 1953. Towards the end of 195 3 the brother of the appellant moved the Government of the Punjab for the remission of the appellant's sentence and early in August 1954 the Punjab Government passed orders remitting the sentence of the appellant unconditionally with the direction that he should be released on the Independence Day i.e. 14th August 1954. But this order was cancelled on the 13th August, with the result that the appellant was not released on the Independence Day. Thereupon an application was filed on his behalf for the issue of a writ in the nature of habeas corpus which was dismissed by the High Court of Lahore. This is an appeal by special leave from the judgment of the High Court.

The position taken by the learned counsel for the appellant before the High Court was that air order of unconditional remis sion of sentence could not be cancelled, whip: on behalf of the Crown reliance was placed on section 21 of the General Clauses Act which, it was argued, empowered the Provincial Government to rescind its earlier order. The learned Chief Justice of the High Court who Beard the application held that section 21 of the General Clauses Act applied to this case and that an order passed by the Provincial Government under section 401 Cr. P. C. was subject to modification or recall provided it had not been acted upon. He observed that if the previous order had been carried into effect, there would have been no locus poenitentlae left and no occasion for the exercise of powers under section 21 of the General Clauses Act would have arisen.

Section 21 of the General Clauses Act is to the effect that power conferred under a Central Act or Regulation to issue any notification, order, scheme, rule, form or bye‑law includes power to vary or rescind the same. The argument of Mr. Mahmud Ali, the learned Advocate for the appellant is that the expression order' in this section applies only to matters o the kind to which the other expressions in the section such as rule, scheme, form or bye‑law relate, that those expressions do not apply to cases of particular persons and so order' cannot be said to apply to the order of remission passed in this case: This interpretation is in accordance with the rule that the coupling of words together shows that they are to be understood in the same sense. (Brooms Legal Maxims 396). The learned Advocate‑General agreed with this contention, but he argued that apart from section 21 of the General Clauses Act, there was 'the . general principle that an authority empowered to issue an order has also the power to vary or cancel that order unless it has been carried into effect or there is a bar in law to its modification or cancellation. In some of the decisions which have come to our notice, however, this provision of General Clauses Act was relied upon regarding orders passed in respect of particular persons or cases, but the question of its applicability was not discussed there apparently because no argument was raised about it. In Venkatesh Yeshwant Deshpande v. Emperor (A I R 1938 Nag. 513) which was relied upon by Mr. Mahmud Ali, where also an order under section 401 Criminal P. C. had been rescinded, the Full Bench did not feel called upon to give a decision on this question. ' Similarly it does seem to us necessary in this case to decide whether section 21 of the General Clauses Act applies orders passed under section 401 Criminal P. C. for apart from that provision, Government must, in the nature of things, posses power to recall its own orders. In fact existence of such power i necessary in the case of all authorities empowered to pass orders under a statute or regulation and that is apparently the reason why in order to give finality to judicial orders provisions greatly restricting the use of this power had to be introduced in the Civil and Criminal Procedure Codes. Wherever there is no such restriction imposed on Governments there is no reason to deny them the power of correcting even the errors of judgments. In several cases this power of correction is necessary for the proper discharge of their functions. In the Nagpur decision relied upon for the appellant it was not held that Government does not possess power to modify or cancel its earlier orders: What was objected to there was the exercise of that power after the date on which the prisoner was due try be released under the original order. But in the present case the order of cancellation was passed before the date of release and in the order under appeal it has been made clear by the High Court that a locus poenitentiae will be left only if the order has not been carried into effect. Mr. 1 Mahmud Ali's contention that it is not appropriate to speak of a locus poenitentiae in the case of Government is not supported by the very decision on which he relies, where it was observed that there might be a locus poenitentiae in such a case, but that it was at an end when the order of cancellation was passed in that case'. Locus poenitentiae in law refers to the power of receding till a decisive step is taken. If a decisive step as taken other considerations would arise; but if that step is yet to be taken, we see no reason to restrict the power to modify or cancel. Reasons for the cancellation in the present case are not before us but no allegations of mala fide or arbitrariness have been made. In the circumstances we think that the Government of Punjab must have had good reasons to recall the order of remission.

Mr. Mahmud Ali contended that subsection (3) of section 401, Criminal P. C. which specifically gives Government power to cancel the order of conditional remission where the conditions are violated indicates that the power to cancel has been given only in such cases. He argued that if the inten tion was that the Government should have general power to cancel its orders of remission there was no necessity for enacting this subsection. We are unable to accept this argu ment. As pointed out by the learned Advocate‑General this subsection was enacted with reference to section 227 of the Penal Code (enacted in 1860) under which whoever knowingly violates any condition on which he accepted the punishment shall be punished with the punishment to which he was originally sentenced if he has suffered no part of punishment and to the un expired portion of punishment if he has suffered a part of it. In the Criminal Procedure Code (Act V of 1898) this offence was non‑cognizable and yet a provision similar to the present subsection (3) of section 401 was not made. I therefore in cases of conditional remission where the condi tions were violated no action could be taken by Government till the matter was dealt with and the sentence was passed under section 227, P. P. C. by the Court by which the original offence was triable. But in the Code of 1872 it was provided that if a person to whom pardon had been given on conditions failed to fulfil them, the local Government could withdraw such pardon and such person should then be remanded to undergo the un expired portion of the sentence. Similarly in the Code of 1882 it was provided that local Government may cancel the remission when the prisoner failed to fulfil the conditions and that thereupon such person may if at large be arrested by any police officer without warrant of arrest and remanded to undergo the un expired portion of the sentence the present subsection (3) of section 401 is to the same effect. The enactment of this subsection was thus necessary to empower the Provincial Government to have the prisoner remanded to custody pending the passing of a fresh sentence Court under section 227, P. P. C. the offence under which still non‑cognizable. Further this subsection deals with cases where the order of remission has taken effect, for, it is only after the order of conditional remission has been given effect to that the question whether the prisoner has fulfilled or failed to fulfil the conditions arises. Therefore even if the subsection is construed on its language without reference to Is history it can be said to indicate only this that where the Order has been given effect to, the Government con cancel the original order of remission only in cases coming under this provision. As already indicated it has been made clear by the High Court in the order under appeal that Government car exercise the power of cancellation in respect of orders of remission only if they have not yet been carried into effect.

This brings us to the question whether the first order in the present case had been given effect to by the time the order of cancellation was passed. We are unable to accept the contention that the order came into effect on the date of its issue. The original order in this case remitted no doubt the unexpired portion of the sentence, but there was a definite direction that it should. come into effect on the 14th August. Detention till the 14th was lawful and it would have become unlawful only after that day, but before that day arrived the order of cancellation was received. The facts of Nagpur case on which Mr. Mahmud Ali relied were materially different on this point. There the order had been given effect to by the time the order of cancellation was passed.

It was argued by Mr. Mahmud Ali that if orders of remission are not taken as coming into effect on the day they are issued it would lead to this result that in a case where a sentence of death is commuted to one of transportation for life under section 402, Cr. P. C. Government can cancel it order of commutation after the prisoner has undergone several years of the sentence of transportation and then the death sentence will have to be executed. But in this extreme case imagined by the learned Advocate the very commence ment of the sentence of transportation necessarily involves the carrying into effect of :be order of commutation. Prisoners under death sentences are kept in separate cells without being assigned any work and the moment the order of commutation is received, the prisoners are removed to the cells where sentences of imprisonment and transportation are undergone This clearly amounts to giving effect to the order of commutation.

We, therefore, see no reason to interfere. The appeal is dismissed.

A. H Appeal dismissed.

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