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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

(05.10.2011)

1 year 29  days

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