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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 321  OF  2018

Rajan      …..Petitioner(s)   :Versus:

The Home Secretary, Home Department of Tamil Nadu and Ors.     ....Respondent(s)

J U D G M E N T

A.M. Khanwilkar, J.

1. This writ petition under Article 32 of the Constitution of

India has been preferred  inter alia  seeking premature release

of the petitioner as he has already undergone over 30 years of

actual imprisonment. With remission, the total sentence

undergone is above 36 years.

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2. The petitioner claims that he is a refugee from Sri Lanka.

He was named as an accused in relation to an offence

committed on 27th  July, 1988, registered as FIR in  Crime

No.104/88 at Thanipadi Police Station. The prosecution case

was that the petitioner, along  with co­accused, committed

dacoity at the house of one Pitchaikara Grounder and while he

was trying to escape in a Maruti Van, the police and common

public erected  a  barricade,  upon  which the  petitioner fired

from a machine gun killing three persons and injuring four.

The petitioner was charged for offences punishable under

Sections 120(B), 395, 353, 506(2), 302(3 counts), 307 (4

counts) of IPC, Section 302 r/w 419 of IPC, Section 307 r/w

149 of IPC and Section 3 read with Sections 25(1A), 27(3) and

28 of the Indian Arms Act.  After  a full­fledged trial  by the

District and Sessions Judge, Thiruvannnamalai, for the

aforementioned offences, vide judgment and order dated 25th

January, 2007, the petitioner came to be convicted for offences

punishable under Sections 395, 302 (3 counts), 307 (4 counts)

of IPC and Section 3 read with Sections 25(1A) and   27(3) of

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the Indian Arms Act and sentenced   to undergo 7 years’

rigorous  imprisonment for  offence punishable under Section

395 of IPC,   life imprisonment   for offence punishable under

Section 307 (4 counts) of IPC for each count as also awarded

capital sentence for offence punishable under Section 302 (3

counts) and further 5 years’ imprisonment for offences

punishable under Section 3 read with Section 25 (1A) of the

Indian Arms Act. The sentences awarded to the petitioner were

directed to run concurrently.  

3. The petitioner had assailed the said decision before the

High Court of Judicature at Madras, by way of Criminal

Appeal No. 653 of 2007, which was heard along with Death

Reference Case No.3/2007. The High Court, by its judgment

and order dated 26th  February, 2008, affirmed the judgment

and order  of conviction and sentence  awarded by the  Trial

Court for the concerned offences but converted the death

sentence into life imprisonment on each of the 3 counts. The

High Court judgment has attained finality.

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4. Since the petitioner had undergone actual sentence for a

sufficiently long period of time, he applied for premature

release. That representation was considered by the Advisory

Board held on 20th January, 2010, but came to be rejected for

the reasons recorded in the opinion of the Advisory Board. The

same was duly considered by the competent authority of the

State Government and the proposal for premature release

came to be rejected vide order dated 14th June, 2010, bearing

GO(D) 6033. It appears that the petitioner, after a gap of

around 8 years, once again made another representation on

5th  February, 2018,   for his premature release, which reads

thus:

“Annexure P/6 Date:05.02.2018

MOST URGENT To 1. The Home Secretary, Home Department of Tamil Nadu,  Secretariat, St. George Fort,  Chennai.

2. The Additional Director General of Police  and The Inspector General of Prisons,  Wannels Road, Egmore,  Chennai­600008.

3. The Deputy Inspector General of Prisons,  Vellore Range, Vellore.

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4. The Superintendent of Prison, Vellore Central Prison, Vellore.

From Rajan, Convict No.      , Presently lodged at  Vellore Central Prison, Vellore.

Sir,  

Sub: Re. the inclusion of my name in the list called for the premature release of life convict prisoners on the occasion of Birth Centenary of Bharat Ratna, Puratchi Thalaivar  Dr.M.G. Ramachandran, as per  G.O.  Ms. No.64, Home (Pri IV) Dept., Dt. 01.02.2018.

Ref.: 1. Lr. of the Office of Inspector General of Prisons,      No.4369/PS1/2018­1, Dt.02.02.2018. 2. State of Punjab Vs. Dalbir Singh – 2012 (3) SCC 346

I am a life convict lodged in Vellore Central Prison for the past 30 years. I was convicted and sentenced by the Trial Court on 25.01.2007 and awarded  Death Sentence under section 302 IPC and 27 (3) of Arms Act.  Subsequently  on  26.02.2008,  my  sentence  was commuted to Life imprisonment but upholding the conviction rendered by the Trial Court.  

It is pertinent to note that the Hon’ble Supreme Court in State of Punjab Vs. Dalbir Singh – 2012 (3) SCC 346 struck down Section 27 (3) of Arms Act as unconstitutional and declared void. Hence my conviction now survive alone on Section 302 IPC.

Since I  have  been under incarceration  for  about  30 years, my name may be included in the list called for by the IG Prison for premature release. Please find the enclosed the Supreme Court judgment for your kind perusal.  

Thanking You,

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Yours Faithfully,  Rajan

Encl. 1. High Court judgment dt. 26.02.2008. 2. 2012 (3) SCC 346”

5. As the petitioner did not  get any response  to  the said

representation, he filed the present writ petition for the

following reliefs:

“PRAYER

WHEREFORE, the petitioner  most  humbly  pray that this Hon’ble Court be pleased to:

a) Pass an appropriate Writ or order directing the release of the petitioner from prison forthwith, and/or

b) Declare that the sentence of life imprisonment imposed upon the petitioner under section 27(3) of the Arms Act is null and void; and/or,  

c) Alternatively direct the respondents to remit the remaining sentence and release the petitioner by considering his representation dated 05.02.2018 while this present Petition is pending  before this  Hon’ble Court.  

d) Pass any such other order or Orders as may be deemed fit and proper.”

6. In support of the aforesaid reliefs, the petitioner has

relied upon the recent  unreported decision of this  Court in

Writ  Petition  (Criminal)  No.61 of  2016, in  the case of  Ram

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Sewak Vs.  The  State  of  Uttar  Pradesh, decided on  11th

October, 2018, to contend that he has already undergone 30

years  of  actual imprisonment  and with  remission, the total

sentence  undergone by  him would be  more than 36  years,

which is much more than the period undergone by the

petitioner in the unreported decision (wherein it was only 29

years of imprisonment). Additionally, it is submitted that this

Court, in the case of State of Punjab Vs. Dalbir Singh,1 has

already struck down Section 27(3) of the Indian Arms Act as

unconstitutional, and as a consequence thereof, the conviction

and sentence awarded to the petitioner for the said offence

cannot be reckoned any more.  It is the case of the petitioner

that he is presently undergoing sentence of life imprisonment

only in respect of offences punishable under Sections 302 and

307 of IPC  which  were tried at one trial.   As regards the

conviction and sentence in relation to the remaining offences

under Section 3 read with Section 25(1A) of the Arms Act and

Section 395 of IPC, the petitioner has already undergone the

1 (2012) 3 SCC 346

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same long back as the sentences for those offences were

directed to run concurrently.  

7. The grievance of the petitioner is that the competent

authority of the State has failed to process the representation

made by the petitioner on 5th February, 2018, for inexplicable

reasons, which it was obliged to decide at the earliest

opportunity as per the mandate of law.  

8. This writ petition has been resisted by the respondents.

An affidavit of Dr. Niranjan Mardi, Additional Chief Secretary

to Government, Home Department, Secretariat, Chennai, has

been filed to oppose the present writ petition. According to the

respondents, the petitioner  was involved in a very serious

offence and has been convicted and sentenced to undergo life

imprisonment on multiple counts. The case of the petitioner

was duly considered by the Advisory Board on 20th  January,

2010  and also by the  State  Government,  which eventually

rejected the  proposal vide  order  dated 30th  June,  2010.  A

preliminary objection has been taken by the  State that the

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Central Government is a necessary party, as the request for

premature release  is  in relation to offences under the Arms

Act. That request will have to be decided by the State only in

consultation with  the Central  Government.  The respondents

have then adverted to the recent circulars issued by the State

on 1st  February, 2018 and 3rd May, 2018 framing guidelines

with regard to the premature release of   prisoners. According

to the respondents, the petitioner is not eligible for premature

release. It is also asserted that the petitioner had indulged in

serious offences of dacoity and firing indiscriminately by use of

AK­47  machine gun and hence, no indulgence should be

shown  to the  petitioner  because  he  has  been convicted for

offences under Section 302 (on 3 counts) and Section 307 (on

4 counts), respectively and sentenced to life imprisonment.

9. We have heard Mr. Rakesh Dwivedi, learned senior

counsel appearing for the petitioner and Mr. M. Yogesh Kanna,

learned counsel for the respondents.

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10. Reverting to the prayer clause (b), we have no difficulty in

accepting the stand of the petitioner that Section 27(3) of the

Arms  Act  having  been  declared  ultra vires  in terms  of the

judgment of this Court in  State of Punjab  (supra), the

conviction and sentence awarded to the petitioner in  relation

to the said offence   cannot be reckoned in law. Even so, the

petitioner is faced with the conviction and sentence awarded

for other serious offences under Section 395 for 7 years’

rigorous imprisonment, as also under Section 3 read  with

Sections 25(1A) and 27(3) of the Indian Arms Act with

sentence  of rigorous imprisonment for  5 years for the  said

offences. However, in view of the exposition of the Constitution

Bench in  Muthuramalingam and Ors. Vs. State

represented by Inspector of Police2,  we must  immediately

accept the stand of the petitioner that the sentences in respect

of offences under Section 395 IPC and Section 3/25(1A) of the

Arms Act also cannot be reckoned for considering the proposal

for  premature  release of the petitioner.  For,  he  has already

2  (2016) 8 SCC 313

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undergone the sentence periods awarded for the said offences

which were to run concurrently.

11. Indeed, the counsel for the respondents made a fervent

effort to persuade us that the said sentences will also have to

be taken into account for considering the proposal for

premature release and in that case, consultation  with the

Central Government would be inevitable. We are not

impressed by this submission. For, on a plain reading of the

order passed by the Trial Court along with the  modified

sentence order passed by the High Court, it is  indisputable

that the sentences for offences punishable under Section 395

IPC and Section 3 read with Section 25(1A) of the Arms Act,

were to run concurrently. The petitioner has already

undergone the sentence awarded in relation to the said

offences on expiry of 7 years and 5 years, respectively. This

position is reinforced from the exposition of the Constitution

Bench  in  Muthuramalingam  (supra).   It  may be  useful to

reproduce paragraph 23 and the conclusion in paragraphs 34

& 35 of the said decision, which read thus:

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“23. Parliament, it manifests from the provisions of Section 427(2) CrPC, was fully cognizant of the anomaly that would arise if a prisoner condemned to undergo life imprisonment is directed to do so twice over. It has, therefore, carved out an exception to the general rule to clearly recognise that in the case of life sentences for two distinct offences separately tried and held proved the sentences cannot be directed to run consecutively. The  provisions of Section  427(2)  CrPC apart, in  Ranjit  Singh case3, this Court  has  in terms held that since life sentence implies imprisonment for the remainder of the life of the convict, consecutive life sentences cannot be awarded as humans have only one life. That logic, in our view, must extend to Section 31 CrPC also no matter Section 31 does not in terms make a provision analogous to Section  427(2) of the  Code.  The provision  must, in  our opinion, be so interpreted as to prevent any anomaly or irrationality. So interpreted Section 31(1) CrPC  must mean that sentences awarded by the court  for several offences committed by the prisoner shall run consecutively (unless the court directs otherwise) except where such sentences include imprisonment for life which can and must run concurrently. We are also inclined to hold that if more than one life sentences are awarded to the prisoner, the same would get superimposed over each other.  This will imply that in case the prisoner is granted the benefit of any remission or commutation qua one such sentence, the benefit of such remission would not ipso facto extend to the other.

xxx  xxx xxx xxx xxx

xxx  xxx xxx xxx xxx

34.  In conclusion our answer to the question is in the negative. We hold that while multiple sentences for imprisonment for life can be awarded for multiple murders or other offences punishable with imprisonment for life, the life sentences so awarded cannot be directed to run consecutively.  Such sentences would, however, be superimposed over each other so that any remission or commutation granted by the competent authority in one

3  (1991) 4 SCC 304

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does not ipso facto result in remission of the sentence awarded to the prisoner for the other.

35. We may, while parting, deal with yet another dimension of this case argued before us, namely, whether the court can direct life sentence and term sentences to run consecutively. That aspect was argued keeping in view the fact that the appellants have been sentenced to imprisonment for different terms apart from being awarded imprisonment for life. The trial court’s direction affirmed by the High Court is that the said term sentences shall run consecutively. It was contended on behalf of the appellants that even this part of the direction is not legally sound, for once the prisoner is sentenced to undergo imprisonment for life, the term sentence awarded to him must run concurrently. We do not, however, think so. The power of the court to direct the order in  which sentences  will run is unquestionable in view of the language employed in Section 31  CrPC.  The  court can, therefore, legitimately  direct that the prisoner shall first undergo the term sentence before the commencement of his life sentence. Such a direction shall be perfectly legitimate and in tune with Section 31 CrPC. The converse however may not be true for if the court directs the life sentence to start first it would necessarily  imply that the term sentence would run concurrently. That is because once the prisoner spends his life in jail, there is no question of his undergoing any further sentence.  Whether or not the direction  of the court  below calls for any  modification or alteration is a matter with which we are not concerned. The regular Bench hearing the appeals would be free to deal with that aspect of the matter having regard to what we have said in the foregoing paragraphs.”

(emphasis supplied)

12. This decision is also an authority on the proposition that

remission or commutation granted by the competent authority

for any one of the offences does not ipso facto result in release

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of the prisoners for other offences for  which  he has been

convicted and sentenced at one trial.

13. The Constitution Bench in the case of  Union of India

Vs. V. Sriharan alias Murugan and Ors.4, went on to

examine seven questions. Emphasis was placed by the counsel

for the petitioner on the exposition in reference to question No.

(vii) regarding the sweep of expression “consultation”. In the

present case, no doubt the petitioner has been convicted and

sentenced for offences punishable under the Arms Act as a

result  of  which the requirement  of “consultation”  may have

triggered. However, the conviction and sentence in reference to

the offence under Section 27(3) of the Arms Act, having been

declared  ultra vires  and  unconstitutional; and  the  sentence

awarded to the petitioner in reference to offence under Section

3 read with  Section 25(1A)  of the  Arms Act  having  already

been completed by the petitioner as it was to run concurrently

with life imprisonment, even these offences cannot be

reckoned for considering the representation made by the

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petitioner. Resultantly, there would be no need to consult the

Central Government and, for the same reason, the presence of

Central Government in this petition is not essential.  

14. We  may usefully advert to the dictum in a separate

judgment by Justice Uday U. Lalit, albeit concurring with the

leading opinion by Justice Kalifulla, on issue No. (vii), as noted

in paragraph 215, as follows:

“215.  In the  instant case as per the order passed by this Court in  State  v.  Nalini5, the respondent convicts were acquitted of the  offences  punishable  under  Sections  3(3), 3(4) and 5 of the TADA Act. Their conviction under various Central laws like the Explosive Substances Act, the Passport Act, the Foreigners Act and the Wireless Telegraphy Act were all for lesser terms which sentences, as on the date, stand undergone. Consequently, there is no reason or occasion to seek any remission in or commutation of sentences on those counts. The only sentence remaining is one under Section 302 IPC which is life imprisonment.  It was submitted by Mr. Rakesh Dwivedi, learned Senior Advocate that Section 302 IPC falls in Chapter XVI of IPC relating to offences affecting the human body. In his submission, Sections 299 to 377 IPC involve matters directly related to “public order” which are covered by List II Entry 1. It being in the exclusive executive domain of the State Government, the State Government would be the appropriate Government. It  was  further  submitted  that  assuming  Section 302 read with Section 120­B IPC are relatable to Entry 1 of List III being part of the Indian Penal Code itself, then the issue may arise whether the Central Government or the State Government shall be the appropriate Government and resort

5  (1999) 5 SCC 253

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has to be taken to provisions of Articles 73 and 162 of the Constitution to resolve the issue.”

It is, thus, amply clear that the representation of the petitioner

will have to be considered only in reference to the sentence of

life imprisonment concerning offences under Sections 302 and

307 of IPC, respectively.

15. In the present case, the petitioner has been convicted on

3 counts for offence under Section 302 IPC and on 4 counts

for offence under Section 307 IPC, and in relation to which he

has been given life imprisonment on each count. In that view

of the matter, keeping in mind the exposition in

Muthuramalingam  (supra) and  Sriharan  (supra), the

petitioner may succeed in being released prematurely only if

the competent authority passes an order of remission

concerning all the seven life sentences awarded to him on each

count.  But that would be a matter to be considered by the

competent authority.

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16. The  petitioner  would,  however, rely  on the  unreported

decision of this Court in Ram Sewak (supra), to contend that

this Court may direct the authorities to release the petitioner

forthwith and that there is no point in directing further

consideration by the State as the petitioner had already

undergone over 30 years of sentence and with remission, over

36 years. The order  passed  by this  Court in  Ram Sewak

(supra), is obviously in the facts of that case. As a matter of

fact, it is well settled by now that grant or non­grant of

remission is the prerogative to be exercised by the competent

authority and it is not for the Court to supplant that

procedure. Indeed, grant of premature release is not a matter

of privilege but is the power coupled with duty conferred on

the appropriate Government in terms of Sections 432 and 433

of  Cr.P.C., to  be exercised by the competent authority after

taking into account all the relevant factors, such as it would

not undermine the nature of crime committed and the impact

of the remission that may be the concern of the society as well

as the concern of the State Government.

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17. The petitioner would then rely on a three­Judge Bench

decision of this Court in State of Tamil Nadu and Ors. Vs.

P. Veera Bhaarathi6.  Notably,  in this case,  the respondent

was convicted for offence under Section 302 of IPC and

sentenced to rigorous imprisonment for life and also convicted

under Sections 376 and 396 of IPC and sentenced to rigorous

imprisonment for 7 years. Since both the sentences were to

run concurrently, the respondent therein had claimed that he

was entitled to be released prematurely having already

undergone the actual sentence for over 16 years by invoking

Rule 341 of the Tamil Nadu Prison Rules, 1983.   In the

present case, however, the petitioner has been convicted for

offence under Section 302 (3 counts) and Section 307 (4

counts) and has been sentenced to life imprisonment on each

count.  The question as  to whether  the petitioner should be

granted remission and premature release in respect of all the

counts  at one stroke, is a  matter to  be considered  by the

appropriate Government in exercise of power under Sections

6  2019 (2) SCALE 225 (Criminal Appeal No.120 of 2019 decided on 22nd January, 2019)

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432  and  433 of  Cr.P.C.  We  do  not  wish to  dilate on that

aspect.

18. Thus understood, we cannot countenance the relief

claimed by the petitioner to direct the respondents to release

the petitioner forthwith or to direct the respondents to remit

the remaining sentence and release the petitioner. The

petitioner, at best, is entitled to the relief of having directions

issued to the respondents to consider his representation dated

5th  February,  2018, expeditiously,  on  its own merits and  in

accordance  with law.  We  may not be understood to have

expressed any opinion either way on the merits of the claim of

the petitioner. The fact that the petitioner’s request for

premature release was already considered once and rejected

by the Advisory Board of the State Government, in our

opinion,  ought not  to come  in the way of the petitioner  for

consideration of his fresh representation made on 5th

February, 2018. We say so because the opinion of the Advisory

Board  merely refers to the  negative recommendation  of the

Probation Officer, Madurai and the District Collector, Madurai.

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The additional reason stated by the State Government seems

to be as follows:  

“4) The proceedings of the Advisory Board held on 20.01.2010 is as follows:­

i. The case is  heard and examined the relevant records. The accused is a Srilankan  National and lodged at Special Camp at Chengalpet before the commission of this grave offence.  

ii. The Probation Officer, Madurai and the District Collector,  Madurai  have  not recommended  the premature release.  

iii. Also this prisoner has not repented for his act,  

iv. The plea for premature release is ‘Not­ Recommended’.

5) The Government after careful examination accept the recommendation of the Advisory Board, Vellore and the premature release of the  life  convict  No.23736, Rajan S/o Robin, confined in Central Prison, Vellore is hereby rejected.”

With  the  passage  of time,  however, the  situation may have

undergone a change and, particularly, because now the claim

of the petitioner for premature release will have to be

considered only in reference to the sentence of life

imprisonment awarded to him for offences under Section 302

(3 counts) and Section 307 (4 counts) of IPC, respectively.

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19. The argument of the respondents that the stipulation in

the order dated 1st  February, 2018, issued by the Home

Department would make the petitioner ineligible because he

was also tried for offence of dacoity punishable under Section

395,   need not detain us, considering the fact that the

sentence awarded for the said offence has already been

completed by the petitioner and thus cannot be reckoned for

the purposes of deciding the representation for remission of

life sentence  and for  premature release in reference to the

offences punishable under Sections 302 and 307, respectively.

In other words, the remission sought by the petitioner is

presently  limited to offences punishable under Sections 302

and 307 respectively,  for which he has been sentenced to life

imprisonment on more than one count.

20. We, therefore, dispose of this petition with a direction to

the competent authority to process the representation made

by the petitioner dated 5th February, 2018 (Annexure­P6) and

take it to  its logical end expeditiously and preferably within

four months, in accordance with law, without being influenced

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by the rejection of the earlier representation vide order dated

14th June, 2010, by the State Government. We also hold that

consultation with the Central Government would not be

necessary and the State  Government,  being the appropriate

Government, must exercise power conferred upon it in terms

of Sections 432 and 433 of Cr.P.C. All questions to be

considered by the appropriate Government are left open.  

21. The writ petition is disposed of accordingly.  All pending

applications are also disposed of.              

…………………………..….J.           (A.M. Khanwilkar)

…………………………..….J.        (Ajay Rastogi)

New Delhi; April 25, 2019.