Section 428 of the Code of Criminal Procedure, 1973, has been
considered by the Constitutional Bench of the Apex Court in Bhagirath & Another –Vs. Delhi Administration (1985 (2) SCC 580), wherein the following statement of law has been made.
“8. To say that a sentence of life imprisonment imposed
upon an accused is a sentence for the term of his life does
offence neither to grammar nor to the common
understanding of the word 'term'. To say otherwise offend
not only against the language of the statute but against the
spirit of the law, that is to say, the object with which the
law was passed. A large number of cases in which the
accused suffer long under trial detentions are cases
punishable with imprisonment for life. Usually' those who
are liable to be sentenced to imprisonment for life are not
enlarged on bail. To deny the benefit of section 428 to them
is to withdraw the application of a benevolent provision
from a large majority of cases in which such benefit would
be needed and justified………..
13. We would like to add that we find it difficult to agree
that the expressions
'imprisonment for life' and imprisonment for a term' are
used either in the Penal Code or in the Criminal Procedure
Code in contra-distinction with each other.
14.4.Thus, in the light of the aforesaid pronouncements and taking note of the underlying object enshrined under Section 428 of the Code of Criminal Procedure, 1973, we have no hesitation to hold that 'set off ' is permissible even for a life convict.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
W .A.No .6 67 of 2020 & CMP No.9331 of 2020
& HCP No.959 of 2020
W.A.No.667 of 2020
The Home Secretary (Prison-IV) Vs A.Palaniswamy @ Palaniappan
CORAM :
MR. JUSTICE M.M.SUNDRESH
AND
MS. JUSTICE R.N.MANJULA
Delivered on : 05.07.2021
Author: M.M.SUNDRESH, J.
As the cases on hand deal with the same detenu with the interlinked
issues, they are appositely disposed of by a common judgment.
2.The detenu, who is a life convict was found guilty of the offences
punishable under Sections 302 and 392 IPC in S.C.No.80 of 2008 by the
Additional District and Sessions Judge (Fast Track Court No.I), Erode, on
10.11.2008 and accordingly, he was sentenced to undergo life imprisonment and
10 years rigorous imprisonment respectively.
3.The appeal filed by the convict, on contest, was dismissed in Criminal
Appeal No.107 of 2009 on 18.08.2009.
4.The Government Order was passed providing for premature release to
the life convict in G.O.Ms.No.64, Home(Prison-IV) Department, dated 01.02.2018
in commemoration of 100th Birthday of former Chief Minister of Tamil Nadu late
Dr.M.G.Ramachandran. The following is the operative portion of the said order.
“5 (II) The life convicts who have competed 10 years of
actual imprisonment as on 25.02.2018 and the life convicts
who are aged 60 years and above and who have completed
5 years of actual imprisonment on 25.02.2018 including
those who were originally sentenced to death by Trial
Court and modified to life sentence by the Appellate Court
(other than those whose convicts have been commuted),
may be considered for premature release subject to
satisfaction of the following conditions.”
5.The writ petitioner, who is the wife of the convict, made a
representation on 06.02.2018 seeking inclusion of her husband's name in the list
of prisoners eligible for premature release. As the said request was not considered,
the convict approached this Court seeking a writ of mandamus in W.P.No.3672
of 2018. The following is the order passed by the learned single Judge on
07.01.2019.
“3.The learned Additional Public Prosecutor on instructions
would submit that the representation will be considered by
the 2nd and 3rd respondents and a detailed report will be
prepared in accordance with GO.Ms.No.64 dated
01.02.2018 and the same will be placed before the 1st
respondent, who will consider the same and submit his
recommendation before His Excellency the Governor of
Tamil Nadu, if the petitioner is going to be considered for a
premature release.
4.This Court has carefully considered the submissions made
on either side and also the materials placed on record.
5. The wife of the petitioner has made a representation dated
06.02.2018. This representation shall be considered by the 2
nd and 3 rd respondents strictly in accordance with the
guidelines given in G.O.Ms.No.64 dated 01.02.2018 and a
report shall be placed before the 1st respondent within a
period of four weeks form the date of receipt of a copy of
this Order. On receipt of the report, the 1st respondent shall
take a decision within a period of eight weeks, thereafter.”
6.Upon consideration of the said representation, as directed by the
learned single Judge, the impugned Government Order was passed in G.O.(D)
No.658 Home (Prison-IV) Department dated 26.06.2019 rejecting the case of the
convict on the premise that he had completed only 9 years and 24 days of actual
imprisonment as on 25.02.2018 instead of mandatory requirement of 10 years
completion for eligibility. The requisite part of the order contained in the
Government Order referred above is reproduced hereunder.
“6. The Government have examined the request of Tmt.
Shanthi seeking premature release of her husband/Life
convict prisoner No.6961 Palaniswamy @ Palaniyappan
S/o.Andiappan, Confined in Central Prison, Salem with
relevant records. The life convict prisoner No.6961
Palaniswamy @ Palaniyappan S/o. Andiappan has
completed only 09 years and 24 days of actual
imprisonment as on 25.02.2018 since he has not
completed of actual imprisonment as on the crucial date
he is not eligible for premature release as per G.O (Ms)
No.64 Home (Pri-IV) Dept. Dated 01.02.2018.The
government, therefore, reject the request of Tmt. Shanthi
seeking premature release of her husband/life convict
prisoner NO.6961 Palaniswamy @ Palaniyappan S/o.
Andiappan, confined in Central Prison, Salem.”
7.The wife of the convict once again approached this Court by way of
Habeas Corpus Petition in H.C.P.No.2214 of 2019 seeking to set off the period of
incarceration during trial. On 15.11.2019 the said petition was disposed of as
recorded hereunder.
“3. Taking note of the above submission and the
instruction given by the Superintendent, Central Prison,
Coimbatore in No.13834/MK3/19 dated 01.11.2019, the
period of 349 days for which the convict has undergone
incarceration at the Central Prison, Coimbatore is directed
to be set off against the conviction rendered in Sessions
Case No.80/2008 on the file of the Additional District and
Sessions Judge, (F.T.C-1) Erode.
4.In view of the above, the Habeas Corpus Petition stands
disposed of.”
8.Placing reliance upon the order aforesaid recorded, yet another writ
petition in W.P.No.7559 of 2020 was filed challenging the Government Order in
G.O.(D) No.658 Home (Prison-IV) Department dated 26.06.2019 with a
consequential prayer to release the convict A. Palaniswamy @ Palaniyappan S/o.
Andiyappan (Convict Prisoner No- 6961) now confined in Central Prison, Salem
herein 3rd respondent. The learned single Judge, by an order dated 04.05.2020,
allowed the writ petition inter alia holding that in view of the order passed by the
Division Bench, the convict is entitled for premature release. While doing so, the
first appellant before us was directed to issue a Government Order to release the
convict. The relevant portion of the aforesaid order is hereunder.
“7. In such a view of the matter, this Court is of the view
that the impugned order dated 26.06.2019 in G.O. (D)
No.658 dated 26.06.2019 in rejecting the premature release
of the Petitioner is hereby set aside. The Petitioner is
certainly eligible for consideration for premature release as
per G.O. (Ms) No.64 Home (Prison-IV) Department dated
1.2.2018. Accordingly, the 1st Respondent is directed to
issue Government Order to release the Petitioner, within
two weeks from the date of receipt of copy of this Order.”
9.It is against this said order, W.A.No.667 of 2020 has been filed.
H.C.P.No.959 of 2020 has been filed by the son of the convict seeking to produce
the convict A.Palaniswamy @ Palaniyappan, S/o Andiyappan (Convict Prisoner
No.6961) before this Court, who is illegally detained by the third respondent.
10.When the present writ appeal i.e.,W.A.No.667 of 2020 came up for
hearing before the Honourable First Bench, certain issues were raised while
entertaining the appeal through the following paragraphs.
“2.The first question that we have posed to
ourselves is the maintainability of an intra court appeal in
such a matter where the respondent writ petitioner has been
convicted and is suffering imprisonment on account of the
conviction and sentence by a criminal Court, and is seeking
premature release under the scheme dated 01.02.2018.
This question is to be answered first keeping in view the
nature of the jurisdiction exercised by the learned single
Judge, namely, which was in a writ petition filed under
Article 226 of the Constitution of India. The prayer was to
quash an order as indicated above seeking benefit of a
general pardon by His Excellency, The Governor, in
exercise of the power under Article 161 of the Constitution
of India. Article 161 is extracted herein below:
“161. Power of Governor to grant pardons, etc,
and to suspend, remit or commute sentences in
certain cases The Governor of a State shall
have the power to grant pardons, reprieves,
respites or remissions of punishment or to
suspend, remit or commute the sentence of any
person convicted of any offence against any
law relating to a matter to which the executive
power of the State extends.”
3.This is, therefore, not a case pertaining to a
statutory claim of release in terms of Section 432 or 433A
of the Code of Criminal Procedure, 1973.
4.Mr.Emalias, learned Additional Advocate
General for the appellants / State, submits that the
proceedings before the learned single Judge cannot be
termed to be arising out of any criminal proceedings,
which, in this case, have already culminated with the
conviction of the respondent writ petitioner and who is
undergoing imprisonment. The writ petition was filed for a
premature release which is by invoking the constitutional
power of His Excellency The Governor and not an exercise
of power in any criminal proceeding.
5.He has invited the attention of the Court to the
judgment in the case of CIT vs. Ishwarlal Bhagwandas,
reported in AIR 1965 SC 1818 to point out the distinction
between a criminal and a civil proceeding. For this, he has
also relied on paragraphs 28 to 31 of the judgment in the
case of Ram Kishan Fauji vs. State of Haryana, reported in
(2017) 5 SCC 533, which has dealt with the aforesaid
proposition of law and are gainfully extracted herein
under:-
“28.The Court in Ishwarlal Bhagwandas case [CIT v.
Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC
1818] referred to Article 133 of the Constitution and took
note of the submission that the jurisdiction exercised by
the High Court as regards the grant of certificate pertains
to judgment, decree or final order of a High Court in a
civil proceeding and that “civil proceeding” only means a
proceeding in the nature of or triable as a civil suit and a
petition for the issue of a high prerogative writ by the
High Court was not such a proceeding. Additionally, it
was urged that even if the proceeding for issue of a writ
under Article 226 of the Constitution may, in certain
cases, be treated as a civil proceeding, it cannot be so
treated when the party aggrieved seeks relief against the
levy of tax or revenue claimed to be due to the State. The
Court, delving into the nature of civil proceedings, noted
that:(AIR p.1821, para 8)
“8. … The expression “civil proceeding” is not
defined in the Constitution, nor in the General
Clauses Act. The expression in our judgment
covers all proceedings in which a party asserts the
existence of a civil right conferred by the civil law
or by statute, and claims relief for breach thereof.”
29.After so stating, the Court elucidated the nature of
criminal proceeding and, in that regard, ruled thus:
(Ishwarlal Bhagwandas case [CIT v. Ishwarlal
Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] ,
AIR p. 1821, para 8)
“8. … A criminal proceeding on the other hand is
ordinarily one in which if carried to its conclusion it
may result in the imposition of sentences such as
death, imprisonment, fine or forfeiture of property.
It also includes proceedings in which in the larger
interest of the State, orders to prevent apprehended
breach of the peace, orders to bind down persons
who are a danger to the maintenance of peace and
order, or orders aimed at preventing vagrancy are
contemplated to be passed.”
30.Explicating the concept further, the Court opined that:
(Ishwarlal Bhagwandas case [CIT v. Ishwarlal
Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] ,
AIR p. 1821, para 8)
“8. … The character of the proceeding, in our
judgment, depends not upon the nature of the
tribunal which is invested with authority to grant
relief, but upon the nature of the right violated
and the appropriate relief which may be claimed.”
It further held that a civil proceeding is, therefore, one in
which a person seeks to enforce by appropriate relief the
alleged infringement of his civil rights against another
person or the State, and which, if the claim is proved,
would result in the declaration, express or implied, of the
right claimed and relief such as payment of debt,
damages, compensation, delivery of specific property,
enforcement of personal rights, determination of status,
etc.
31.The aforesaid authority makes a clear
distinction between a civil proceeding and a criminal
proceeding. As far as criminal proceeding is concerned, it
clearly stipulates that a criminal proceeding is ordinarily
one which, if carried to its conclusion, may result in
imposition of (i) sentence, and (ii) it can take within its
ambit the larger interest of the State, orders to prevent
apprehended breach of peace and orders to bind down
persons who are a danger to the maintenance of peace and
order. The Court has ruled that the character of the
proceeding does not depend upon the nature of the tribunal
which is invested with the authority to grant relief but upon
the nature of the right violated and the appropriate relief
which may be claimed.”
Reliance is also placed on paragraphs 32 and 33 to contend
that an intra-Court appeal would be maintainable.”
6.He has also pointed out that the Division
Bench judgment of this Court in the case of D.Kumar vs.
Raichand Daga and Ors., decided on 03.08.2020 (W.A.
SR 44351 of 2020) also affirms the said position and the
stand taken in this regard.
7.He has then urged that the impugned judgment
suffers from being coram non judice, as in view of the
Division Bench judgment in H.C.P.(MD)No.10 of 2014
(Selvi vs. The Principal Secretary to Government and
Others) decided on 23.03.2020 and other connected matters,
the case ought to have been placed before the Division
Bench and could not have been adjudicated by the learned
single Judge. For this, he has also relied on the circular
issued on the administrative side by the High Court on
29.05.2020 bearing R.O.C.No.31686-A/2020/F1 dated
29.05.2020. He has then urged that in view of the provisions
of Order I Rule 1(a) read with Rule 2 of the Madras High
Court Appellate Side Rules, once the roster in such matters
is of the Division Bench, the learned single Judge could not
have proceeded to entertain the writ petition before him.
8.The next contention is that even otherwise in
view of the latest judgment of the Apex Court which is in
respect of the very same scheme involved herein, the Apex
Court has clearly held that the High Court could not have
issued any directions for release and could have only issued
directions to the Government to consider the same in the
light of the observations made therein. The judgment of the
Apex Court is in the case of Home Secretary and others
vs. H.Nilofer Nisha, reported in 2020 SCC OnLine SC 73.
9.He has then contended that the learned single
Judge has erroneously even counted the period of remand
invoking the provisions of Section 428 Cr.P.C. which could
not have been done, hence, the impugned judgment deserves
to be set aside.
10.However, reverting back to the first question
of maintainability, he submits that a Writ Appeal is
maintainable, as the exercise of jurisdiction by the learned
single Judge was not a jurisdiction of any criminal
description but an order passed under Article 161 of the
Constitution of India, which extends to the executive power
of the State, hence, the same is an administrative exercise of
power governing civil rights of the respondent writ petitioner
seeking premature release. In such a situation, the Writ
Appeal would be maintainable, hence, the same deserves to
be entertained.
11.Considering the submissions raised, we find
this question posed to be a little complex to be answered
straightaway without putting the respondent writ petitioner to
notice at this stage and therefore, it would be appropriate that
the respondent writ petitioner is called upon to answer the
same.
12.Accordingly, we issue notice to the respondent
writ petitioner and also call upon the learned counsel for the
appellants to serve a notice on the counsel for the respondent
writ petitioner who had appeared before the learned single
Judge to assist the Court on the issue of maintainability and
the other issues raised in this regard.”
11.The issues as dealt with by the Division Bench reduced in nutshell
are follows:
i.Whether this intra-court appeal is maintainable, because
he was convicted by the criminal court- Nature of
Jurisdiction?
ii.Whether a person who was convicted for the life
imprisonment, he is entitled to the benefits of Set-off under
Section 428 of Cr.,P.C?
iii.Whether a case of premature release shall be placed
before the division bench?
iv. Whether the High court can direct the state to release the
convict under the premature release scheme?
12.With the abovesaid factual matrix, we have heard
Mr.R.Radhapandian, learned counsel appearing for the petitioner in HCP No.959
of 2020 in respondent in W.A.No.667 of 2020, Mr.R.Hasan Mohammed Jinnah,
the learned Pubic Prosecutor appearing for the appellants in W.A.No.667 of 2020
and respondents in HCP No.959 of 2020 and Mr.Mohamed Saifulla, learned
Amicus Curiae and perused the written submission.
13.Issue No.1:-
13.1.This issue has been raised on the premise that in an appeal against
the order of the learned single Judge dealing with the criminal matter, could not be
maintainable before the same Court. The power of the revision is the one which is
to be exercised by His Excellency the Governor under Article 161 of the
Constitution of India. Such a power can also be exercised by His Excellency the
President under Article 72 of the Constitution of India. There is no restriction qua
the number of years for the life convict. On the same lines, there is no right vested
seeking a premature release after undergoing certain extent of incarceration.
Therefore, the release is controlled and circumscribed by the powers conferred
under Article 72 of the Constitution of India. In other words, we cannot go
beyond the Government Order or Rule or a Scheme introduced in exercise of the
power under Article 161 of the Constitution of India. In this connection, we would
like to quote the following decisions on the period of imprisonment for a life
convict.
13.2.In Gopal Vinayak Godse –Vs- State of Maharashtra ((1961) 3
SCR 440), the Apex Court has held as follows:
“Para 5: If so, the next question is whether there is any
provision of law where under a sentence for life
imprisonment, without any formal remission by
appropriate Government, can be automatically treated as
one for a definite period. No such provision is found in the
Indian Penal Code, Code of Criminal Procedure or the
Prisons Act. Though the Government of India stated
before the Judicial Committee in the case cited supra that,
having regard to s. 57of the Indian Penal Code, 20 years'
imprisonment was equivalent to a sentence of
transportation for life, the Judicial Committee did not
express its final opinion on that question. The Judicial
Committee observed in that case thus at p. 10:
"Assuming that the sentence is to be regarded as
one of twenty years, and subject to remission for
good conduct, he had not earned remission
sufficient to entitle him to discharge at the time of
his application, and it was therefore rightly
dismissed, but in saying this, their Lordships are
not to be taken as meaning that a life sentence must
and in all cases be treated as one of not more than
twenty years, or that the convict is necessarily
entitled to remission."
Section 57of the Indian Penal Code has no real bearing on
the question raised before us. For calculating fractions of
terms of punishment the section provides that
transportation for life shall be regarded as equivalent to
imprisonment for twenty years. It does not say that
transportation for life shall be deemed to be transportation
for twenty years for all purposes; nor does the amended
section which substitutes the words imprisonment for life
"for" transportation for life enable the drawing of any such
all-embracing fiction. A sentence of transportation for life
or imprisonment for life must prima facie be treated as
transportation or imprisonment for the whole of the
remaining period of the convicted person's natural
life”.
13.3. In the decision of the Constitution Bench of the Apex Court in
Rajiv Gandhi Assassination case in Union of India –Vs- V.Sriharan @ Murugan
and others (2015 (4) MLJ (Criminal) 645), in paragraph 163 it has been
observed as under:
“Answers to the questions referred in seriatim
Question 52.1 Whether imprisonment for life in terms of
Section 53 read with Section 45 of the Penal Code meant
imprisonment for rest of the life of the prisoner or a
convict undergoing life imprisonment has a right to claim
remission and whether as per the principles enunciated in
paras 91 to 93 of Swamy Shraddananda (2), a special
category of sentence may be made for the very few cases
where the death penalty might be substituted by the
punishment of imprisonment for life or imprisonment for a
term in excess of fourteen years and to put that category
beyond application of remission?
Ans. Imprisonment for life in terms of Section 53 read
with Section 45 of the Penal Code only means
imprisonment for rest of life of the convict. The right to
claim remission, commutation, reprieve etc. as provided
under Article 72 or Article 161 of the Constitution will
always be available being Constitutional Remedies
untouchable by the Court”.
13.4.In Laxman Naskar Vs. Union of India (2000 AIR (SC) 986), the
Apex Court has held as follows:
“3. It is settled position of law that life sentence is nothing
less than lifelong imprisonment and by earning remissions
a life convict does not acquire a right to be released
prematurely; but if the Government has framed any rule or
made a scheme for early release of such convicts then
those rules or schemes will have to be treated as
guidelines for exercising its power under Article 161 of
the Constitution and if according to the Government
policy/instructions in force at the relevant time the life
convict has already undergone the sentence for the period
mentioned in the policy/instructions, then the only right
which a life convict can be said to have acquired is the
right to have his case put up by the prison authorities in
time before the authorities concerned for considering
exercise of power under Article 161 of the Constitution.
When an authority is called upon to exercise its powers
under Article 161 of the Constitution that will have to be
done consistently with the legal position and the
Government policy/instructions prevalent at that time”
13.5.In State of Haryana Vs. Mohindersingh( 2000 AIR (SC) 890)
the Apex Court has held as follows:
“8. The circular granting remission is authorised under the
law. It prescribes limitations both as regards the prisoners
who are eligible and those who have been excluded.
Conditions for remission of sentence to the prisoners who are
eligible are also prescribed by the circular. Prisoners have no
absolute right for remission of their sentence unless except
what is prescribed by law and the circular issued thereunder.
That special remission shall not apply to a prisoner convicted
of a particular offence can certainly be relevant consideration
for the State Government not to exercise power of remission
in that case. Power of remission, however, cannot be
exercised arbitrarily. Decision to grant remission has to be
well informed, reasonable and fair to all concerned”.
13.6.A party is well within his right to approach this Court when his or
her case was not considered for remission under the relevant Government Order,
which provides so as against the similarly placed others. Such a challenge made
would not par take the character of a criminal case. Resultantly, a writ petition is
maintainable and consequently, an appeal would lie. This is for the reason that the
criminal case involved has reached its finality and what remains to be seen and
adjudicated upon is the liberty of the convict dehors the case. In this connection,
we would like to quote the following paragraph in the decision of the Apex Court
in C.S.Agarwal V. State and others (ILR (2011) VI Delhi 701).
“29. It would be necessary to clarify here that it cannot be said
that in any of the cases under Article 226 of the Constitution,
the Court is exercising „criminal jurisdiction". It would
depend upon the rights sought to be enforced and the nature of
relief which the petitioner seeks in such proceedings. For
example, if a writ petition seeking writ of habeas corpus is
filed, while dealing with such a petition, the Court is not
exercising criminal jurisdiction as no criminal proceedings are
pending. In fact, the order of preventive detention is made
without any trial under the criminal law. Likewise, when a
person is convicted and sentenced after the conclusion of
criminal trial and such an order of conviction has attained
finality and he files writ petition under Article 226 of the
Constitution challenging the orders of the Government
refusing to grant parole while dealing with such a petition, the
Single Judge is not exercising criminal jurisdiction, as no
criminal proceedings are pending.”
The aforesaid reasoning of the Division Bench being sound, legally and logically
correct, requires to be accepted.
13.7.Therefore, we have no hesitation in agreeing with the submissions
made by the learned Public Prosecutor and the learned Amicus Curiae and
accordingly, we hold that the Intra Court Appeal is maintainable as we are not
dealing with the criminal case per se.
14.Issue No.2:-
14.1.In the very same case itself, the Division Bench of this Court in
H.C.P.No.2214 of 2019 has given the benefit to the effect, which order has
become final between inter se parties. To consider the said issue further, we would
like to extract Section 428 of the Code of Criminal Procedure, 1973, which enure
to the benefit of the convict.
“428.Period of detention undergone by the accused to
be set off against the sentence of imprisonment.--
Where an accused person has, on conviction, been
sentenced to imprisonment for a term, [not being
imprisonment in default of payment of fine], the period of
detention, if any, undergone by him during the
investigation, inquiry or trial of the same case and before
the date of such conviction, shall be set off against the
term of imprisonment imposed on him on such conviction,
and the liability of such person to undergo imprisonment
on such conviction shall be restricted to the remainder, if
any, of the term of imprisonment imposed on him.
[Provided that in cases referred to in section 433A, such
period of detention shall be set off against the period of
fourteen years referred to in that section.] *Amendment by
act 25 of 2005 (w.e.f. 23-06-2006)”
14.2.Section 428 of the Code of Criminal Procedure, 1973, has been
considered by the Constitutional Bench of the Apex Court in Bhagirath & Another –Vs. Delhi Administration (1985 (2) SCC 580), wherein the following statement of law has been made.
“8. To say that a sentence of life imprisonment imposed
upon an accused is a sentence for the term of his life does
offence neither to grammar nor to the common
understanding of the word 'term'. To say otherwise offend
not only against the language of the statute but against the
spirit of the law, that is to say, the object with which the
law was passed. A large number of cases in which the
accused suffer long under trial detentions are cases
punishable with imprisonment for life. Usually' those who
are liable to be sentenced to imprisonment for life are not
enlarged on bail. To deny the benefit of section 428 to them
is to withdraw the application of a benevolent provision
from a large majority of cases in which such benefit would
be needed and justified………..
13. We have considered with great care the reasoning upon
which the decision in Kartar Singh proceeds. With respect,
we are unable to agree with the decision. We have already
discussed why imprisonment for life is imprisonment for a
term, within the meaning of section 428. We would like to
add that we find it difficult to agree that the expressions
'imprisonment for life' and imprisonment for a term' are
used either in t he Penal Code or in t he Criminal Procedure
Code in contra-distinction with each other. Sections
304, 305, 307 and 391 of the penal Code undoubtedly
provide that persons quality of the respective offences shall
be punished with imprisonment for life or with
imprisonment for a term not exceeding a certain number of
years. But, that is the only manner in which the Legislature
could have expressed its intention that persons who are
guilty of those offences shall be punished with either of the
sentences mentioned in the respective sections.
The circumstance on which the learned judges have placed
reliance in Kartar Singh, do not afford any evidence,
intrinsic or otherwise' of the use of the two expressions in
contra-distinction with each other. Two or more
expressions are often used in the same section in order to
exhaust the alternatives which are available to the
Legislature. That does not mean that there is, necessarily,
an antithesis between those expressions.”
14.3.A Division Bench of this Court in Kumar Vs. State of Tamil
Nadu reported in Manu/TN/3212/2014 has held as follows.
“7. Whenever the Government decides to GRANT Premature
release, the Government will fix a definitive period
of detention for extending the benefit and would call for
reports from the Superintendent of Jails in the State. For
example, in G.O. Ms No. 1155 dated 11.09.2008, the
Government has said that, the G.O. will apply to “life
convicts who have completed 7 years of actual
imprisonment as on 15.09.2008”. At that time, the jail
authorities will identify the prisoners who have undergone
the period of detention fixed by the Government for being
considered for premature release. If the jail authorities do
not have the pre-conviction detention particulars of a
prisoner, they will only furnish to the Government the postconviction
detention particulars. The prisoner cannot be
made to suffer for the fault of the Presiding Officer of the
Court in not giving the pre-conviction detention particulars
of a prisoner to the jail authorities. Actus curiae
neminemgravabit. [An act of the Court shall prejudice no
man]. If the prison authorities do not send correct
particulars to the Government, the prisoner will be
seriously prejudiced inasmuch as he will be held
disqualified for premature release though fully qualified.”
14.4.Thus, in the light of the aforesaid pronouncements and taking note
of the underlying object enshrined under Section 428 of the Code of Criminal
Procedure, 1973, we have no hesitation to hold that 'set off ' is permissble even for a life convict.
15.Issue No.3.
15.1.This issue would not arise for consideration in the present case.
The notification came into being in view of the same being sought for by the High
Court on the judicial side, we would like to quote the order passed in H.C.P.No.10
of 2014 on 23.03.2020.
“The last question that requires to be decided is
whether such a writ petition should be heard by a Single
Bench or a Division Bench. This decision is the
prerogative of the Hon'ble Chief Justice, who is the master
of the roster under order 1 Rule 1-A of the Appellate Side
Rules. However, in our opinion, when axiomatically the
parent criminal case of a prisoner seeking premature
release would have been finally decided either by a Single
Bench or a Division Bench, it will be just and proper if the
claim for premature release which will, a fortiori, arise
only after the prisoner has exhausted the appeal remedy, is
decided by a Division Bench as Writ Petition (Criminal)
and not by a Single Bench.
Accordingly, we direct the Registry to convert
the instant habeas corpus petitions as writ petitions
(criminal). We further direct the Registry to place this
matter before the Hon'ble Chief Justice for appropriate
orders as to whether such petitions should be posted before
a Single Bench or a Division Bench.”
15.2Accordingly, the following notification came into being.
“All petitions relating to premature release filed
by the prisoners, who are serving sentence pursuant to their
convictions for offences shall be numbered as Writ petition
and be heard by the Hon'ble Division Bench dealing with
Criminal Side matters.
All such petitions pending before Principal Seat
at Madras and in the Madurai Bench of Madras High Court
as Habeas Corpus Petitions, Criminal Original Petitions
(filed under the provisions of Criminal Procedure Code)
shall be converted into Writ petitions and be listed before
the Hon'ble Division Bench dealing with Criminal Side
matters.
15.3The Government Order in G.O.(D) No.658 Home (Prison-IV)
Department, dated 26.06.2019 rejecting the case of the convict, was challenged in
the writ petition in W.P.No.7559 of 2020 on 04.05.2020. A notification was
issued on 26.05.2020. As rightly observed by the Division Bench in the
Judgment supra, it is the absolute prerogative of the Hon'ble Chief Justice to
decide as to whether the particular type of case is to be posted before the learned
single Judge or Division Bench. The decision being prospective in the form of a
notification with the order of the learned single Judge preceding it, we are
inclined to hold that though a case of premature release is required to be placed
before the Division Bench, the notification has got no effect on the writ petition
filed and disposed of and so also the appeal before us.
16.Issue No.4:-
16.1.The last issue is in respect of the power of this Court to release
the convict by issuing a writ of mandamus. A writ of mandamus is a command.
However, it can only be issued on certain contingencies. A direction cannot be
issued to an authority vested with the power to act in a particular way. The
aforesaid position was made clear by the judgment of the Apex Court in Home
Secretary (Prison) and others Vs. H.Nilofer Nisha ((2020) 14 Supreme Court
Cases 161) in the following paragraphs.
“31. The issue before us in the present case is whether the High
Court can direct the release of a petitioner under G.O.(Ms.)
No.64 dated 01.02.2018. We do not think so. In all these cases,
the representations made by the detenus had not been decided.
In our view, the proper course for the Court was to direct that
the representations of the detenus be decided within a short
period. Keeping in view the fact that the Scheme envisages a
report of the Probation Officer, a reference by the District Level
Committee and thereafter the matter has to be placed before the
concerned Range Deputy Inspector General and before
Regional Probation Officer and thereafter before the State Level
Committee, we feel that it would be reasonable to grant 2-3
months depending on the time when the representation was
filed for the State to deal with them. When the petition is filed
just a few days before filing the representation then the Court
may be justified in granting up to 3 months’ time to consider
the same. However, if the representation is filed a couple of
months earlier and the report of the Probation Officer is already
available then lesser time can be granted. No hard and fast
timelines can be laid down but the Court must give reasonable
time to the State to decide the representation.
32. We are clearly of the view that the Court itself cannot
examine the eligibility of the detenu to be granted release under
the Scheme at this stage. There are various factors, enumerated
above, which have to be considered by the committees. The
report of the Probation Officer is only one of them. After that,
the District Committee has to make a recommendation and
finally it is the State Level Committee which takes a final call
on the matter. We are clearly of the view that the High Court
erred in directing the release of the detenu forthwith without
first directing the competent authority to take a decision in the
matter. Merely because a practice has been followed in the
Madras High Court of issuing such type of writs for a long time
cannot clothe these orders with legality if the orders are without
jurisdiction. Past practice or the fact that the State has not
challenged some of the orders is not sufficient to hold that these
orders are legal.
33.In case, as pointed out above, a petition is filed without any
decision(s) of the State Level Committee in terms of Para 5(I)
of the G.O. in question, the Court should direct the concerned
Committee/authority to take decision within a reasonable
period. Obviously, too much time cannot be given because the
liberty of a person is at stake. This order would be more in the
nature of a writ of mandamus directing the State to perform its
duty under the Scheme. The authorities must pass a reasoned
order in case they refuse to grant benefit under the Scheme.
Once a reasoned order is passed then obviously the detenu has a
right to challenge that order but that again would not be a writ
of habeas corpus but would be more in the nature of a writ of
certiorari. In such cases, where reasoned orders have been
passed the High Court may call for the record of the case,
examine the same and after examining the same in the context
of the parameters of the Scheme decide whether the order
rejecting the prayer for premature release is justified or not. If it
comes to the conclusion that the order is not a proper order then
obviously it can direct the release of the prisoner by giving him
the benefit of the Scheme. There may be cases where the State
may not pass any order on the representation of the petitioner
for releasing him in terms of the G.O.(Ms) No.64 dated
01.02.2018 despite the orders of the Court. If no orders have
been passed and there is no explanation for the delay then the
Court would be justified in again calling for the record of the
case and examining the same in terms of the policy and then
passing the orders.”
16.2.From the aforesaid paragraphs, one could see that the scope of
interference would arise when a wrong order is passed by issuing a writ of
certiorari. The issue of a positive direction would come into play when the reasons
assigned are found to be not correct either on fact or law. One cannot postulate a
situation and therefore, a case has to be dealt with on its own facts. We would
only make it clear as we understand from the orders of the Honourable Apex Court
that a power to issue positive order to release will arise when a reasoned order is
passed by considering the materials required to do so and upon the Court finding
that they are not done properly. If the Court finds that the exercise will have to be
redone or it has not been done, the way forward is to ask the concerned authority to
do so. In other words, the requirements cannot be by-passed or overlooked or
dealt with by the Court, when they are absent while considering the request for
premature release. After all, in a writ of certiorari, we are concerned with the
decision making process primarily. If the Court has got sufficient materials
available before it while finding the reasons assigned on them are not correct, then
the consequential order of issuing would arise. Accordingly, we hold that in a case
where a reasoned order is not available, a Court is not expected to take the role of
the authorities and issue a positive direction.
17.Having discussed the aforesaid issues, let us come to the facts on
hand. The impugned order under challenge passed by the Government merely
deals with the eligibility of the convict and thus, does not deal with the
entitlement for release. For doing so, certain procedural compliance is required,
such as, the report of the Probation Officer, Report of the Police Officer and that
of the Prison authority. We find considerable force in the submission made by the
learned Public Prosecutor on this issue. Once, the impugned order does not deal
with the other issues, except by saying that the convict does not come within the
zone of consideration, the Court is expected to remit the matter for fresh
consideration after setting aside the order under challenge by pointing out the
mistake committed. Though the order of the Division Bench in HCP No.2214 of
2019 is subsequent, it is only an interpretation of law governing set off. Therefore,
it certainly enures to the benefit of convict. However, the consequential direction
issued to release the convict requires to be interfered with.
18.In such view of the matter, while confirming the order of the learned
single Judge with respect to the impugned order being quashed, the direction
issued to release the convict within a period of two weeks from the date of receipt
of the said order stands set aside. The appellants are directed to redo the exercise
in the light of the discussion made and take a decision within a period of eight
weeks from the date of receipt of a copy of this order.
Writ Appeal stands disposed of accordingly. Consequently, Habeas
Corpus Petition stands closed. CMP No.9331 of 2020 is also closed.
(M.M.S., J.) (R.N.M., J.)
05. 07.2021
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