D. Ethiraj vs Secretary To Govt. & Ors

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1949 OF 2011 Arising out of S.L.P. Crl) No. 3841/2011

D. ETHIRAJ Appellant(s) VERSUS

SECRETARY TO GOVT. & ORS. Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. Heard learned counsel for the parties.

3. When the matter was listed on 26th September, 2011,

this Court directed learned counsel for the State to

furnish an affidavit stating therein what is the

actual period of sentence undergone by the

appellant. However, the affidavit has not been filed,

but learned counsel appearing for the State has filed

a statement showing the period of sentence undergone

by the petitioner at different stages and the said

statement has not been denied by the counsel appearing

for the petitioner. We take that statement on record.

On a perusal of the same, the following position is

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clear:

S.No. From To No. of days

1 16.05.1987 19.05.1987 04 days

2 14.01.1992 24.01.1992 11 days

3 22.11.2002 26.02.2003 96 days

4 07.09.2010 Till Date 1 year 29 days (05.10.2011)

4. It is clear from the above table that the

appellant had undergone sentence of 1 year and 140

days as on 5.10.2011.

5. The subject matter of challenge in this case is an

order passed by the Division Bench of the High Court

dated 25th March, 2011 whereby the High Court has,

while referring to various judgments, by a reasoned

order declined the appellant's prayer for having his

case for remission of sentence considered in the

light of Government Orders (Gos) issued by the

Government from time to time.

6. The crux of the ratio in High Court's judgment is

that as the petitioner was on bail on the date of

issuance of various notifications for remission of

sentence, his case for remission cannot be considered.

7. We are unable to accept the aforesaid reasoning

of the High Court for the reasons discussed below:

8. Various notifications have been issued in

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connection with remission of sentence by the

Government. Learned counsel appearing for both the

parties have relied in support of their case on a

notification being G.O. Ms. No. 279, Dated 23rd

February, 1992 issued by the Government. We set out

the said notification since this Court is to interpret

the same in the judgment.

GOVERNMENT OF TAMIL NADU

ABSTRACT

Prisoners - Remision of sentence - Special remission on occasion of newly elected Government assuming office in Tamil Nadu

-ordered.

HOME (PRISON C) DEPARTMENT G.O.Ms.NO. 279, Dated 23.2.92.

ORDER

On the occasion of the assumption of office of the newly elected Government in Tamil Nadu, the Government have decided to grant remission to certain classes of prisoners who have been convicted for various offences by the courts in this State and sentenced to various terms of imprisonment other than life imprisonment.

2. In exercise of the powers conferred by Article 161 of the Constitution of India, the Government of Tamil Nadu hereby remits;

a. In the case of women who have been sentenced to punishment for offences other than those relating to murder, robbery and smuggling activities, the whole of the unexpired portion of the punishment to which they have been sentenced, and

b. In the case of men who have been sentenced to punishment for various offences other than those relating to murder; robbery and smuggling activities, six months out of their

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imprisonment.

3. The special remission sanctioned above will not be admissible in the cases of civil prisoners and detenus under the law relating to detention and also in the cases of persons convicted for offences under Sections 3 to 10 of the Official Secrets Act, 1923, Sections 2 and 3 of the Criminal Law Amendment Act 1961, Sections 121 to 130 of the Indian Penal Code, Foreigners and Passport Acts and persons convicted by Courts of criminal jurisdiction of other States.

4. The remission ordered herein shall be made applicable to those prisoners also who have been convicted in this State but are undergoing their sentence in the jails of other States or Union Territories.

5. The remission ordered herein shall take effect from the 24th February, 1992 namely the birth day of the Honorable Chief Minister of Tamil Nadu.

(BY ORDER OF THE GOVERNOR)

K. MALAISAMY, SECRETARY TO GOVERNMENT.

9. Admittedly the said notification is still

subsisting and the State is bound by the same. The

said notification, as it is clear from its text, was

issued in exercise of the powers conferred by Article

161 of the Constitution of India. The petitioner

applied his case for remission of sentence to be

considered under the said notification. The appellant

was convicted by learned District and Sessions Judge,

Ooty by judgment dated 14th January, 1992 in Sessions

Case No. 11 of 1989 and sentenced to undergo three

years rigorous imprisonment for an offence under

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Section 366 read with Section 109, IPC and one year

rigorous imprisonment for an offence under Section

119, IPC. The sentences were however to run

concurrently.

10. On an appeal being filed by the appellant vide

C.A. No. 64 of 1992, the High Court by its judgment

dated 7th June, 2002 dismissed the same confirming the

conviction and sentence of the appellant. The special

leave petition preferred by the appellant in this

Court against the said judgment of the High Court came

to be dismissed on 20th July, 2010.

11. As a result of the above, the appellant was

readmitted in Central Prison, Coimbatore on 7th

September, 2010 and has been undergoing sentence even

today.

12. In view of the aforesaid admitted facts, the

appellant, in our judgment, is entitled to have his

case of remission considered under the aforesaid

notification since he admittedly suffered more than

six months of imprisonment prior to the date of

judgment rendered by the High Court on 25th March,

2011, but the High Court, for the reasons discussed in

the judgment, refused to consider the same on the

ground that on the date of issuance of notification

for remission of sentence, the petitioner was on bail.

13. Mr. A.L. Somayajee, learned senior counsel

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appearing for the appellant cited before us a decision

of this Court in Nalamolu Appala Swamy & Ors. Vs.

State of Andhra Pradesh (1989) Supp (2) SCC 192. The

learned counsel has drawn our attention to para 3 of

the said judgment and submitted that similar plea was

taken by the State of Andhra Pradesh in that case.

Para 3 of the said judgment would show that and is set

out below:

"3. In a brief affidavit-in-reply filed by the State, it has been stated in para 4 as follows:

"It is respectfully submitted that the said GO is not applicable after November 1, 1984 and further the remission can only be granted to the prisoners who are actually in jail at the time of issuance of the said GO. The appellants herein were on bail by virtue of the order of this Hon'ble Court. Since they were not in jail at the time of issuance of the above GO they cannot claim to be released by applying this GO to them."

14. Here also, we find that the G.O. does not speak

that in order to get the benefit of remission, the

prisoner must actually be in jail on the date when the

G.O. was issued. Despite the aforesaid clear position

settled by this Court and despite the fact that the

same judgment was placed before the High Court, the

High Court, unfortunately, came to a decision which is

contrary to the reason given by the aforesaid three

Judge Bench decision of this Court in Nalamolu Appala

(supra).

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15. Learned counsel for the State has made a very

strenuous effort to sustain the High Court's reasoning

by referring to two decisions of this Court. First of

all, he has drawn our attention to the decision

rendered by this Court in the case of State of Haryana

Vs. Nauratta Singh & Ors. (2000) 3 SCC 514. The facts

of that case are succinctly narrated in the Head Note

which is set out below:

"The respondent was acquitted on 5-1-1978 by the trial Court, for the offence under Sections 302/34 IPC. The High Court, although allowed the respondent to remain on bail during the pendency of appeal, ultimately convicted him on 23-4-1980 under the said provisions. Consequently, the resopndent surrendered on 7-6-1980. During the pendency of his appeal before Supreme Court he was again released on bail on 2-8- 1980. The Supreme Court, ultimately, upheld the conviction and, consequently, he was again taken to jail on 22-8-1994. In such circumstances, the Punjab and Haryana High Court, upholding the respondent's contention that his conviction related back to the date of the trial court's decision, I.e. 5-1- 1978, allowed his claim that the period during which he was on bail (from 5-1-1978 to 7-6-1980 and from 2-8-1980 to 21-8-1994) should be included within the period of his entitlement for remission. The respondent's claim was based on the instructions issued by the Stae of Haryana postulating that remission would "be also granted to all the convicts who were on parole/furlough from the jail on 25-1-1988".

16. The Court found that an accused cannot claim the

period during which he was on bail towards his

remission. We are in respectful agreement with that

interpretation by this Court in Nauratta Singh. Any

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other interpretation will render criminal justice

system to a mockery. This Court clarified the same by

giving illustration in para 18 of the report in

Nauratta Singh, which we set out here:

"18. The clear fallacy of the approach made by the High Court can be demonstrated thorugh an illustration. An accused was tried for an offence under Section 326 IPC. Durign trial period he was allowed to remain on bail and the trial prolonged up to, say, 3 years. Finally the court convicted him and sentenced him to imprisonment for three years. Should not the convicted person go to jail at all on the premise that he was on bail for three years and is hence entitled to remission of that period?"

17. Similar views have been expressed by this Court in

the subsequent decision of Joginder Singh Vs. State of

Punjab & Ors. (2001) 8 SCC 306. In Joginder Singh, the

aforesaid para of Nauratta has been quoted.

18. We are in entire agreement with the aforesaid

views taken by this Court that if it is clear from the

facts of a given case that during the period the

petitioner was on bail and had not at all suffered any

imprisonment, he cannot get the benefit of remission

in respect of that period.

19. The same is admittedly not the positon in this

case. Here, the appellant had suffered substantial

portion of the period in jail which is more than 17

months. On this, there is no dispute. In that view of

the matter, the appellant's case is covered by the

ratio of the three Judge Bench decision of this Court

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in Nalamolu Appala Swamy (supra).

20. We are unable to approve the reasoning given by

the High Court that the appellant's case for remission

cannot be considered in terms of the said notification

as on the date of the notification, he was on bail.

This is a wrong approach. A prisoner may be on bail on

a particular day -- this is just a fortuitous

circumstance. What the Court has to consider is the

actual period of sentence undergone by the prisoner

and whether by reason of the period actually

undergone, the prisoner qualifies for remission. We

are, therefore, constrained to set aside the judgment

of the High Court.

21. We direct the appellant to make a representation

afresh praying for remission attaching a copy of this

judgment. In our view, the appellant is entitled to

get his case of remission of sentence considered in

accordance with the above mentioned G.O. We also

direct the State to consider the case of the appellant

in the light of the observations made in this judgment

and pass an order within a period of six weeks from

the date of receipt of the representation.

22. The appeal is accordingly allowed.

.............................J. (ASOK KUMAR GANGULY)

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.............................J. (GYAN SUDHA MISRA)

NEW DELHI, 11-10-2011