Madras High Court
Ramasamy Gownder vs Inspector Of Police, District Crime ... on 26 November, 1999
Equivalent citations: 2000(1)CTC206
ORDER
1. The petitioner has filed this petition to grant remission as per G.O.Ms. No. 1342, Home (Prisons-IV) Department, dt.12.9.1998.
2. The petitioner was an accused in C.C. No-390 of 1990 on the file of the Judicial Magistrate-II, Chengalpattu, for offences under section. 467,468,471 and 420 I.P.C. After full trial, on 18.1.1995 learned Magistrate found the accused guilty under each one of the offence, convicted and sentenced him to undergo R.1 for six months and to pay of Rs.500 in default R.I. for three months and the sentence to run concurrently. The petitioner has paid the total fine of Rs.2500. he has preferred an appeal before the learned Sessions Judge, Chengalpattu in C.A.No.8 of 1995 and the learned Sessions Judge confirmed the conviction and sentence passed by the trial Court and dismissed the appeal on 15.11.1995. The petitioner filed the Crl. R.C. No. 852 of 1995 and this Court confirmed the conviction and sentence and dismissed the revision on 19.12.1997. As per the judgment passed by the trial Court, the petitioner has to undergo R.1. for six months. He has come forward with this petition to grant remission as per G.O.Ms.No.1342, Home (Prisons-IV) Department, dt. 12.9.96. Originally he has filed this petition for grant of remission under G.O.Ms.No.l762 (Home), dt.20.7.1987, later he filed Crl.M.P.6466 of 1999 for amendment of the prayer enabling him to get remission under the above said G.O. dt. 12.9.96.
3. The petitioner has contended that as per G.O. dt. 12.9.96, he is eligible for remission of six months and therefore remission has to be granted to him for the sentence of six months imposed by the trial Court, confirmed by the first appellate Court and the High Court.
4. Learned Government Advocate has contended that the petitioner is not eligible for a remission and if he has to seek remission. It is for him to file a petition before the competent authorities in the State Government and the present petition shall not lie.
5. Learned counsel for the petitioner Mr.Sankara Subbu has argued that the Governor of Tamil nadu can grant remission under sec. 432, Cr.P.C. as well as Article 161 of the Constitution of india. For granting remission or commutation, the power is restricted under sections 433A, Cr. P.C. While considering the offences for which the petitioner is convicted, Sec. 433A, Cr.P.C. is not applicable to the case of the petitioner.
The said G.O.Ms.No.1342, Home (Prisons IV) Department, dt.12.9.1996 says-
"In exercise of the powers conferred by Article 161 of the Constitution of India, the governor of Tamil Nadu hereby remits six months out of their sentence of imprisonment in the cases of prisoners, who have been sentenced to punishment for various offences other than these offences specified in G.O.Ms.No.1762, Home dated 20.7.1987."
G.O.Ms.No.1762, Home (Prisons IV) Department, dated 20.7.1987 excludes the following offences for the purpose of remission.
"Prisoners convicted of rape, forgery, decoity, terrorist crimes, offence against the State and Prisoners sentenced under Sections 224,376,396 to 400,402,467,471,472,474,489A,489B and 489D of the Indian Penal Code."
Among the said offences stated above, the present petitioner was found guilty of offences under sections 467 & 471, IPC. By showing these provisions learned Government Advocate (Criminal side) has argued that as the sentences imposed for these two offences under sections 467 & 471, I.P.C. are excluded from grant of remission, the petitioner is not eligible to have the benefit of the G.o. in his favour as three courts unanimously had found him guilty under sections 467 & 471, IPC apart from other offences and the sentences ordered to run concurrently.
6. Originally the petitioner has filed this petition under Section 482 Cr PC.
In Maru Ram vs. Union of India, . Their Lordships of the Supreme Court have held-
"It is apparent that superficially viewed the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. The power which is the creature of the Code cannot be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed."
7. After knowing that, G.O.Ms.No.1342, dt 12.9.96 was passed under Article 181 of the Constitution of India, the petitioner has paid the Court fee and converted Crl.O.P. as W.P.No.15252 of 1999.
8. Learned counsel for the petitioner has argued that the above G.O. No.1762, Home (Prisons-IV), Department, dt. 20.7.1987 cannot prevent the remission granted under the G.Os. earlier and later to the said G.O. It is clear that the petitioner, who has been convicted and sentenced for offences under Sections 467 and 471 IPC cannot get remission under the above said G.O.
9. The G.O. No.1762, Home (Prisons-IV) Department, dt 20.7.87 was passed on the basis of the letters from the Director General of prison, Madras in his letters No. 14477/M86-1 dated 8.3.86 and 27.2.87. The All India Committee on Prison Reforms has requested in Para 17.2 of Chapter XX of its report, some categories of prisoners should be exempted for consideration of premature release. On the basis of the said requisition, the said G.O. has been passed for the purpose of carrying out amendment to rule 341 of Tamil Nadu Prison Manual Volume II and it is not a G.O. passed under Article 161 of the Constitution of India or under Section 432, Cr.P.C. After passing the said G.O., it is not clear whether the Director General of Prison, Tamil Nadu had sent necessary draft amendment so that the said rule 341 of Tamil Nadu Prison Manual Volume II could be suitably amended. As the said G.O. was not passed under Article 161 of the Constitution of India or under section 432 Cr.P.C. on the basis of the said G.O. the respondent/State Government cannot claim that the said G.O will operate from granting remission to the persons convicted for offences under Sections 467 and 471 IPC.
10. Learned Public Prosecutor has argued that 'remission' is different from 'premature release' and the G.O. contemplates 'premature release' and not 'remission' and therefore, the petitioner is not eligible for any remission. The said argument is against the case of the respondent. When the G.O. contemplates the premature release and as the petitioner herein has not prayed for his premature release and on the contrary he has prayed for remission of sentence, as per the G.O.Ms.No.1342/Home (PrisonsIV) Department, dt. 12.9.96. This particular G.O. cannot go against the prayer of the petitioner. Therefore, the contention of the respondent/State Government cannot be accepted.
11. Coming to the question as to whether the court can give a direction for remission of sentence or the petitioner should approach the government of Tamil Nadu for the said purpose, we have to consider certain decisions relied on by the learned counsel for the petitioner.
12. In Usha and others v. State of Tamil Nadu, H.C.P. Nos. 1795 to 1801 of 1994, a Division Bench of this Court by order dated 7.12.1994 granted special leave to agitate the refusal of remission to certain persons convicted of certain offences fall under the said G.O.
13. Their Lordships of the Supreme Court in Special Leave to Appeal (Criminal) Nos. 1202 to 1228 of 1995 by Order dated 10.4.1995 held as follows:-
"Though a question of law does arise with regard to G.o.Ms.No.1762 dated 20th July, 1987 being considered in these matters, we do not think that we should disturb the status quo as resorted to by the High Court of Madras. Leaving the question of law open, we dismiss the Special Leave Petition."
14. In Padma v. State of Tamil Nadu, 1998 Crl. L.J. 4335, the said G.O. was considered by this Court and a direction was given to the appropriate Government for the release of the petitioners forthwith.
15. Against the said Order passed by this Court, the State of Tamil Nadu have preferred an appeal before the Supreme Court of India in Criminal Appeal Nos.958 to 960 of 1999 in S.L.P. (Crl). Nos. 2720 to 2722 of 1998. Their Lordships have held-
"Special Leave granted.
After hearing the learned counsel for the parties, in our opinion, it is not for the High Court itself to order to grant of remission. The High Court could only require the Government to consider the cases of the respondents for the grant of remission in accordance with law. Individual facts will have to be investigated and decision taken whether and to what extent the remission can be granted and whether the orders on which reliance was placed are applicate.
We, therefore, set aside the judgment of the High Court. The High Court is directed to consider the matter afresh and issue appropriate directions.
The appeals are disposed of accordingly."
16. In State of Punjab v. Joginder Singh, . Their Lordships of the Supreme Court have considered the question of remission and held as follows:-
"Remission scheme are introduced to ensure prison discipline and good behaviour and not to upset sentences;
In the said decision, they have also cited the earlier decision in Gopal Vinayak Godse v. State of Maharashtra, , wherein it has been stated thus:-
"Lastly it observed that the question of remission was exclusively within the province of the appropriate government."
In State of Punjab v. Kesar Singh, 1997 (1) L.W. (Crl.) 157, while considering the similar order passed by the Punjab and Haryana High Court directing the State Government to release the prisoners concerned in that petition. Their Lordships have held-
"The direction of the High Court therefore to prematurely release the respondent and set him at liberty forthwith could not have been made. That apart, even if the High Court could give such a direction, it could only direct consideration of the case of premature release by the Government and could not have ordered the premature release of the respondent itself."
17. From the above decisions, it is clear that the Court cannot order release of the petitioner by invoking the remission granted under the G.Os and on the contrary by considering the G.Os, the court can direct the appropriate Government to consider the case of the respective petitioners and to pass an order by granting remission in their favour. Accordingly, in the instant case also, the State Government has to be directed for release of the petitioner by invoking the remission granted under G.O.Ms.No.1342 Home (Prisons-IV) Department, dated 12.9.96 without taking into consideration of the exemption granted under G.O. No. 1762/Home (Prisons-IV) Department, dt. 20.7.1987.
18. In the result, the writ petition is allowed and the Government of Tamil Nadu is directed to consider the case of the petitioner for remission and to pass orders by taking into consideration of the decision taken in this Writ Petition.