Madras High Court
M.Ravi vs The State Of Tamilnadu on 21 March, 2006
Author: P.D.Dinakaran
Bench: P.D.Dinakaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/03/2006 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE P.MURGESAN Crl.O.P.(MD)No.1095 of 2006 M.Ravi, S/o.Marimuthu ... Petitioner vs. 1.The State of Tamilnadu, rep.by the Inspector of Police, Musiri, Vathalai Police Station, Lalkudi Taluk, Tiruchirapalli District. 2.The Sperintendent ofPrison, Central Prison, Tiruchirapalli. ... Respondents Petition under Section 428 of the Code of Criminal Procedure praying for an order as stated therein. !For Petitioner ... Mr.T.S.R.Venkatramana ^For Respondents ... Mr.K.Chellapandian, Additional Public Prosecutor. :ORDER
(Order of the Court was made by P.D.DINAKARAN,J) The petitioner was convicted for the offences punishable under Sections 302, 307 and 449 IPC in Sessions Case No.73/1997 on the file of Additional Sessions Judge, Tiruchrappalli and sentenced to death by the judgment, dated 10.08.1998 and the same was referred to this Court in Referred Trial Case No.6/1998. Simultaneously, the petitioner also filed an appeal against the said judgment, dated 10.08.1998 in Crl.A.No.713/1998.
2. By judgment, dated 29.11.1999, a Division Bench of this Court confirmed the conviction under Sections 302, 307 and 449 IPC, however, refused to confirm the sentence of death and modified the same into imprisonment for life.
3. Admittedly, the petitioner committed the said offence on 04.06.1995 and he surrendered before the learned Judicial Magistrate, Kumbakonam on 05.06.1995 and was remanded to judicial custody. He was in prison as an under trial prisoner from 05.06.1995 for 94 days as follows.
Prisoner No. Prison at Period Days 4286 Kumbakonam 05.06.1995 to 19.06.1995 15 95970 Musiri 19.06.1995 to 29.06.1995 10 95970 Thiruchirappalli 29.06.1995 to 17.07.1995 18 95970 Musiri 17.07.1995 to 06.09.1995 51 Total Days 94
4. Contending that the petitioner is entitled to set off of the said 94 days period from his sentence as he had been in detention as an under trial prisoner, he seeks a direction to the respondents to deduct the period of 94 days from his total period of imprisonment for life as per the judgment of this Court in R.T.No.6/98 and C.A. No.713/1998, dated 29.11.1999, under Section 428 of the Code of Criminal Procedure. In this regard, strong reliance was placed on the following decisions:
(i) Bhagirath v. Delhi Administration, AIR 1985 SC 1080; and
(ii) Vinod Kumar v. Union of India, 2005 (1) Crimes 443.
Our attention was also drawn to Sections 432, 433, 433A of the Code of Criminal Procedure.
5. Per contra, the learned Additional Public Prosecutor contends that the ratio in Bhagirath v. Delhi Administration, and Vinod Kumar v. Union of India, referred supra, will in no way improve the case of the petitioner, as the petitioner is not entitled to seek set off of his detention period as an under trial prisoner, unless appropriate orders are passed under Section 432 or under Section 433 Cr.P.C. either commuting or remitting the sentence, which is again subject to Section 433A of the Code.
6. We have given our careful consideration to the submissions of both sides.
7. The point that arises for consideration is whether the petitioner, as a life convict as per the judgment in R.T.No.6/98 and Crl.A.No.713/1998, dated 29.11.1999, is entitled to seek set off of his period of detention as an under trial prisoner under Section 428 of the Code of Criminal Procedure as a matter of right.
8. In this regard, it is apt to refer the following statutory provisions in the Code of Criminal Procedure.
"S.428. Period of detention undergone by the accused to be set off against the sentence of imprisonment:- Where an accused 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."
"S.432. Power to suspend or remit sentences:-
(1) When any person has been sentenced to punishment for an offence, the appropriate government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted, is in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences or conditions on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on h is behalf shall be entertained, unless the person sentenced is in jail, and-
(a) where such petition is made by the person sentenced, it is presented through the Officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail (6) The provision of this above sub section shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in section 433, the expression "appropriate Government"
means,-
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
S.433: Power to Commute sentence: The appropriate Government may, without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced or for fine;
(d) a sentence of simple imprisonment, for fine.
S.433A: Restriction on powers of remission of commutation in certain cases:
Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law, or where a sentence of death imposed on a person has been commuted under Section 432 into one of imprisonment for life, such person shall not be released from prison unless he has served at least 14 years of imprisonment."
9.1. Of course, the legislature in their own wisdom introduced a Proviso to Section 428 Cr.P.C. by the Code of Criminal Procedure (Amendment) Act, 2005, which reads as follows:
"Provided that in cases referred to in section 433-A, such period of detention shall be set off against the period of fourteen years referred to in that section."
9.2. Concededly, the said amendment is neither notified nor enforced till date. Therefore, we are constrained to decide the issue without reference to the Proviso inserted by the said Amendment Act, whatever be the legislative intention behind it in introducing the said a Proviso.
10. It cannot be disputed that Section 428 Cr.P.C. provides for set off of the period of detention undergone by an accused as an under trial prisoner against the term of imprisonment imposed on him in the case where the term of such imprisonment is specifically provided. But, in the case of life imprisonment, we do not find any provision either under the Indian Penal Code or under the Code of Criminal Procedure defining the term of period of life imprisonment and therefore the life imprisonment would mean only the whole of the remaining life period of the convicted person. The said proposition is well settled by the law laid down by a Constitution Bench of the Supreme Court in Gopal Vinayak Godse v. The State of Maharashtra, AIR 1961 SC 600, wherein its held that 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.
11. When the Constitutional validity of Section 433A of Cr.P.C. came into question in Maru Ram v. Union of India, AIR 1980 SC 2147, a Constitutional Bench of the Apex Court in clear terms held that unless the sentence is commuted or remitted by the appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison.
12. When the modalities for working out the provisions of Section 428 Cr.P.C., came up for consideration before the Constitution Bench of the Apex Court in Bhagirath v. Delhi Administration, referred supra, interpreting Sections 428, 432, 433 and 433A of Cr.P.C., it is held that:
"The question of setting off the period of detention undergone by an accused as an under trail prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under S.432 or S.433. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal vinayak Godse, imprisonment for the remainder of life."
In other words, persons sentenced to imprisonment for life are sentenced to a term of imprisonment and as such are entitled to set off the period of detention undergone as under trial prisoner subject to the provision contained in S.433A and provided that orders have been passed by the appropriate authority under S.432 or S.433 of the Cr.P.C.
13. A Full Bench of the Apex Court again in Ashok Kumar v. Union of India, 1991 Crl.L.J. 2483, after following the ratio laid down in Gopal Vinayak Godse v. The State of Maharashtra, and Maru Ram v. Union of India, referred surpa, held as follows:
"12. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under S.432, in which case the remission would be subject to limitation of S.433A of the Code,,or Constitutional power has been exercised under Arts.72/161 of the Constitution.
...
We fail to see any departure from the ratio of Godse's case; on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition. The Court directed that the period of detention undergone by the two accused as under-trial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in S.433A and, 'provided that orders have been passed by the appropriate authority under S.433 of the Code of Criminal Procedure.' These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set off the period of detention as under-trial would enure to the benefit of the convict provided the appropriate Government has chosen to pass an order under Ss.432/433 of the Code. The ratio of Bhagirath's case, therefore, does not run counter to the ratio of this Court in the case of Godse or Maru Ram."
(emphasis supplied)
14. It is also pertinent to note that in a recent decision in Saibanna v. State of Karnataka, (2005) 4 SCC 165, the Apex Court has held as follows:
"17.... A prisoner to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence would not be equated with any fixed term. If that be so there could be no imposition of a second life term on the appellant before us as it would be a meaningless exercise."
15. Again in Mohd.Munna v. Union of India, (2005) 7 SCC 417, the Apex Court held that the Prisons Rules are made under the Prisons Act and the Prisons Act by itself does not confer any authority or power to commute or remit sentence.
16. In view of the above well settled principle laid down by the Apex Court on the question of modalities for working out the provisions of Section 428 Cr.P.C., in a case of life imprisonment, we are unable to give any weightage to the decision of the Division Bench of the Bombay High Court in Vinod Kumar v. Union of India, referred supra, inasmuch as the above mentioned well settled principles laid down by the Apex Court as to the applicability of Section 428 Cr.P.C. in the case of life convict has not been specifically dealt with in the said decision.
17. Therefore, as rightly pointed out by the learned Additional Public Prosecutor, even as per the ratio laid down by the Apex Court in Bhagirath v. Delhi Administration, referred supra, the petitioner is entitled to set off of his detention period as an under trial prisoner under Section 428 of Cr.P.C. only subject to the orders of the appropriate authority either remitting the sentence under Section 432 or commuting the sentence under Section 433 of the code and also subject to Section 433A, but not otherwise, as a matter of right under Section 428 Cr.P.C.
17.Hence the Criminal Original petition is dismissed giving liberty to the petitioner to approach the appropriate authority for suitable relief, if he is so advised.
gb/sasi To:
1.The Inspector of Police, Musiri, Vathalai Police Station, Lalkudi Taluk, Tiruchirapalli District.
2.The Sperintendent ofPrison, Central Prison, Tiruchirapalli.
3.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.