IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25-3-2011 CORAM THE HONOURABLE MR.JUSTICE C.NAGAPPAN AND THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR H.C.P.No.2323 of 2010 D.Ethiraj .. Petitioner vs 1.The Secretary to Government Home Department Fort St. George Chennai 600 009. 2.The Inspector General of Police Chennai 3.The Superintendent of Prisons Central Prison, Coimbatore. .. Respondents Habeas corpus petition filed under Article 226 of the Constitution of India praying for a writ of habeas corpus directing the respondents 1 to 3 to produce the body of the petitioner D.Ethiraj, aged 74 years, S/o. Duraisamy, before this Court and setting him at liberty. For Petitioner : Mr.V.Padmanabhan Senior Counsel for Mr.R.Karthikeyan For Respondents : Mr.P.Kumaresan Public Prosecutor ORDER C.NAGAPPAN, J. The convict prisoner D.Ethiraj is the petitioner herein, and according to him, his sentence of three years Rigorous Imprisonment has to be treated as undergone as he is entitled to the benefit of remission granted in six Government Orders, and because of the omission on the part of the respondents to give the benefit of remissions provided in the said Government Orders, his detention has become illegal and violative of Article 21 of the Constitution of India, and hence he has to be set at liberty. 2.The petitioner while working as Deputy Superintendent of Police at Ootacamund, Nilgiris District, was implicated in the case https://hcservices.ecourts.gov.in/hcservices/ registered in Crime No.260 of 1987 on the file of B1 Police Station, Ooty and he was convicted by the learned District and Sessions Judge, Ooty, by judgment dated 14.1.1992, in Sessions Case No.11 of 1989 and sentenced to undergo three years Rigorous Imprisonment for an offence under Section 366 read with 109 IPC; one year Rigorous Imprisonment for an offence under Section 419 read with 109 IPC and one year Rigorous Imprisonment for an offence under Section 119 IPC. The petitioner preferred a criminal appeal in C.A.No.64 of 1992, and this Court by judgment dated 7.6.2002, dismissed the appeal confirming the conviction and sentence. Challenging the same, the petitioner preferred Special Leave Petition to the Supreme Court of India, and it was numbered as Criminal Appeal in C.A.No.1320 of 2002, and it came to be dismissed on 20.7.2010. The petitioner was readmitted in Central Prison, Coimbatore on 7.9.2010 and is now undergoing the sentence. 3.The petitioner claims that he is entitled to the benefit of remission granted in six Government Orders as detailed below: Sl. No. Date Government Order Number Period of Remission 1 23.2.1992 G.O.Ms.No.279, Home (Prison C) Department 6 months 2 20.2.1993 G.O.Ms.No.296, Home (Prison C) Department 6 months 3 23.2.1994 G.O.Ms.No.205, Home (Prison IV) Department 6 monhs 4 12.9.1996 G.O.Ms.No.1342, Home (Prison C) Department 6 months 5 16.6.1999 G.O.Ms.No.1259, Home (Prison C) Department 6 months 6 14.9.2000 G.O.Ms.No.1013, Home (Prison C) Department 6 months Total remission 36 months 4. It is the contention of the petitioner that the total period of remission as per the above Government Orders, comes to three years and the period spent by him in prison till 10.12.2010 is seven months and that hence his sentence has to be treated as undergone, and he should be released from Prison immediately. It is his further contention that his request for his release made in a representation dated 23.11.2010 submitted to the first respondent Government was not complied with and hence his detention has become illegal and violative of Articles 19 and 21 of the Constitution of India. 5.The respondents in their counter affidavit, have stated that the petitioner has spent 136 days in Prison from the date of arrest till 21.1.2011; that the Government have ordered the grant of special remission of six months to various categories of prisoners under each one of the Government Orders cited above in exercise of the power vested under Article 161 of the Constitution of India; that the benefit of remission can be awarded to a prisoner only if he is undergoing imprisonment in a Prison at the time of issue of the Government Order or any date specified in the Government Order; that the petitioner was out of prison on bail on the dates of issue of those Government Orders granting special remission; that as per Sub- rule (1) of Rule 239 of the Tamil Nadu Prison Rules, 1983, the period spent by the prisoner outside the Prison on bail, shall not count https://hcservices.ecourts.gov.in/hcservices/ towards sentence and hence he is not eligible for award of special remission granted in those six Government Orders; that his representation dated 23.11.2010, was duly considered and a suitable reply was given to the petitioner in Government Letter dated 21.2.2011, and that there is no illegal detention as contended by the petitioner. 6. Mr.V.Padmanabhan, the learned Senior Counsel appearing for the petitioner, submits that the petitioner was convicted and sentenced in the above said case on 14.1.1992; that the six Government Orders passed by the Government providing for remission of sentence; that nowhere in those Government Orders, it was stated that the benefit of remission would be confined only to prisoners who were actually in jail on the dates of the Government Orders and not to others who were on bail; that Rule 239 of the Tamil Nadu Prison Rules, 1983, is not applicable to the case of the petitioner, as it cannot curtail the benefit of remission given in the said Government Orders; that the expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated and that the grounds set out in the counter affidavit for denying the remission on the ground that the petitioner was not in jail, but was on bail at the time of the Government Orders are untenable and manifestly wrong. 7.In support of his submissions, the learned Senior Counsel for the petitioner squarely relies on the decision of the Supreme Court in Nalamolu Appala Swamy & Others Vs. State of Andhra Pradesh (1989 SUPP (2) SCC 192). In addition, he also relies on the following decisions: (1) Maru Ram Vs. Union of India ((1981) 1 SCC 107); (2) Sarath Chandra Rabha & Others Vs. Khagendranath Nath & Others (AIR 1961 SC 334); (3) Sunil Fulchand Shah Vs. Union of India & Others ((2000) 3 SCC 409) and (4) State of Haryana Vs. Mahender Singh & Others ((2007) 13 SCC 606). 8.Per contra, Mr.P.Kumaresan, learned Public Prosecutor submits that Sub-Section 5 of Section 59 of the Prisons Act, 1894, empowers the State Government to make Rules and accordingly, the Tamil Nadu Prison Rules, 1983 has been made; that Rule 239 stipulates that the period spent by a prisoner outside the prison on bail, shall not count towards sentence and the petitioner who was enlarged on bail, cannot claim the benefit of remission for the period during which he was on bail, for the purpose of counting the period of sentence already undergone to become eligible for the remission given by the Government; that he is not entitled to claim benefit of remission given by the six Government Orders as he was on bail when the Government Orders were issued and that he, having enjoyed his liberty is dis-entitled to claim the benefit of any one of the aforesaid Government Orders. In support of his submissions, he relies on the following decisions: (1) State of Haryana & Others Vs. Mohinder Singh ((2000) 3 SCC 394); https://hcservices.ecourts.gov.in/hcservices/ (2) Joginder Singh Vs. State of Punjab & Others ((2001) 8 SCC 306); (3) State of Haryana Vs. Mahender Singh & Others ((2009) 1 SCC (CRI) 221) and (4) Gladys L. Paulsamy Vs. DIG of Prison, Chennai Range & Another ((2009) 1 MLJ (CRL) 531). 9.We considered the rival contentions on merits. 10.According to the petitioner, if the periods of remission granted under six Government Orders cited above, are to be taken into consideration, the grand total of such periods of remission would cover the entire period of sentence awarded to the petitioner, and even though the petitioner had not actually served the sentence by virtue of the fact that he was enlarged on bail, he would be deemed to have served the entire sentence. Invoking the power under Article 161 of the Constitution of India, the State Government have ordered the grant of special remission of six months in each of the six Government Orders to various categories of prisoners sentenced to a fixed term of imprisonment. The Government Orders do not stipulate that in order to get the benefit of remission, the prisoners must actually be in jail on the date on which the Government Order was issued. The State Government was empowered to make Rules as per Sub- Section 5 of Section 59 of the Prisons Act, 1894 and the State of Tamil Nadu, in exercise of the said power, framed the Tamil Nadu Prison Rules, 1983. In fact, the Supreme Court in the latest decision in State of Haryana Vs. Mahender Singh & Others [ (2007) 13 SCC 606] referred above, dealt with the power of the State Government to make Rules under the above provision and has laid down that the right of a convict to be considered for remission keeping in view of the safeguards of a convict under Articles 20 and 21 of the Constitution of India must be held to be a legal one and such right emanates from not only the Prisons Act, but also from the Rules framed thereunder. Rule 239 lists out the periods that will not count towards sentence. The Rule reads as follows: "239. Periods that will not count towards sentence.- (1) In the following cases, the period spent by prisoners outside the prison shall not count towards sentence namely: (i) Escape (ii) Bail (iii) Suspended period of sentence including emergency leave (iv) Unauthorised extension of temporary release (v) Suspended period of sentence if directed by the Court (vi) Suspension of sentence for police investigation (vii) Violation of conditional release (viii) Extradition" 11.As per the above provision, the period spent on bail by the prisoners outside the prison, shall not count towards sentence. A Division Bench of this Court in the decision in Gladys L. Paulsamy's case referred above, relying on the said Rule, held that the period https://hcservices.ecourts.gov.in/hcservices/ during which the prisoner had gone out on parole, will not count towards sentence and declined the prayer sought for by the detenu therein. 12.Relying on the said Rule, the respondents contend that the orders of the Government granting special remission, will be applicable only to prisoners who are in prison at the time of issuance of the Government Order, and such orders cannot be implemented for the prisoners who are not in incarceration. It is not the case of the petitioner that he was undergoing sentence on the dates of issue of the Government Orders referred above and admittedly, he was on bail. 13. In Maru Ram's case [ (1981) 1 SCC 107], the constitution bench of the Hon'ble Supreme Court while upholding the validity of Section 433-A of the Code of Criminal Procedure with the observation that it does only restrict the operation of Section 432 and Section 433(a) of the Code of Criminal Procedure in respect of a limited category of convicts within the legislative competence of the parliament has also observed that the pardoning power of the President and the Governor under Articles 72 and 161 of the Constitution of India cannot be affected by the ordinary legislation so as to curtail the scope of the pardoning power given to the executives under Articles 72 and 161 of the Constitution of India and emasculate its mechanisms. However, it has also been observed that the power of the President/Governor is nothing but the power of the government, since the executive has to act only on and in accordance with the advice of council of ministers and that hence such power should not be left uncanalysed. It has also been observed that such power should not be arbitrary and without guidelines and that Section 433-A of the Code of Criminal Procedure itself would be taken as a guideline for the exercise of the pardoning power of the President/Governor under Articles 72 and 161 of the Constitution of India until the concerned government makes more comprehensive rules for the exercise of such pardoning power. 14.The Supreme Court in the decision in Nalamolu Appala Swamy & Others [1989 Supp. (2) SCC 192] referred supra, was considering the denial of remission of sentence to the appellants therein as per the Government Order dated 20.10.1984, issued by the Government of Andhra Pradesh, and the said Government Order did not stipulate that in order to get the benefit of remission, the prisoners must actually be in jail on the date the Government Order was issued, and it was held that the grounds set out in the counter affidavit for denying remission to the appellants therein under the Government Order, namely that they were not in jail, but were on bail at the time of the Government Order, were not tenable and the Supreme Court directed the State Government to consider the matter afresh without reference to the fact that the appellants therein were not in jail on the date the Government Order was issued. It is the submission of the learned Senior Counsel for the petitioner that the said decision was rendered by a Three-Judge Bench of the Supreme Court, and it is a binding precedent. However, the learned Public Prosecutor refutes the said contention by urging that the said order came to be passed pending disposal of the appeal before the Supreme Court, and no ratio was laid down, and only a direction to the State Government to consider https://hcservices.ecourts.gov.in/hcservices/ the representation has been issued, and the said decision was also distinguished by the Supreme Court in its subsequent decision. 15.Concededly, the Supreme Court in the decision in State of Haryana & Others Vs. Mohinder Singh ((2000) 3 SCC 394) was considering the question as to whether a convict is entitled to remission of his sentence for the period during which he was on bail in the context of the Government Circular issued by State of Haryana granting remission to the convicts who are even on parole/furlough from the jail, and the Supreme Court laid down that even though the circular applies to prisoners on parole, the same cannot be extended to convicts who are on bail and thus carve out another category to which the Court is not entitled under Section 432 of the Code. In the said decision, the Supreme Court referred to its earlier decision in Nalamolu Appala Swamy's case also and observed that the said decision turns on the facts of that case. For better appreciation, the relevant observations are extracted below: "20. When a circular specifically applies to the prisoners who are undergoing sentence and are confined in jail and even to those who are on parole or furlough we cannot extend this circular to convicts who are on bail and thus carve out another category to which the Court is not entitled under Section 432 of the Code. As noted above, the validity of the circular has not been challenged on any other ground. 21....... 22. From para 637 as reproduced above a convict on bail is not entitled to the benefit of the remission system. In fact the question is no longer res integra as it is covered by the decision of this Court in Jai Prakash v. State of Haryana, (1987) 4 SCC 296. While considering the scope of para 637 this Court held: “7. On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been readmitted in jail will be brought under remission system on the first day of the calendar month next following his readmission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were on bail, is not at all sustainable.” https://hcservices.ecourts.gov.in/hcservices/ 23. In the appeals where the convicts were on bail the High Court in the impugned judgments relied on a decision of this Court in Nalamolu Appala Swamy v. State of A.P., 1989 SUPP (2) SCC 192 where this Court observed as under: “We find merit in the contention because the scheme of remission formulated under the GO is with reference to the period of sentence actually undergone by different classes of prisoners and in the case of some the period of actual sentence together with the remissions earned for reckoning the total sentence. The GO does not stipulate that in order to get the benefit of remission the prisoners must actually be in jail on the date the GO was issued.” 24. The decision of this Court in the case of Nalamolu Appala Swamy aforesaid, however, turns on the facts of that case. GO which granted remission has not been set out in the judgment though the judgment noticed that GO had been issued by the Government for granting remission to certain categories of prisoners “to commemorate the occasion of the anniversary of formation of the Andhra Pradesh State on 1-11-1984 and the restoration of democratic rule in the State”. The Court also noticed the argument of the appellants that GO nowhere sets out that benefit of remission would be confined to prisoners who were actually in jail on the date of GO and not to others who were on bail. 25. We are of the opinion that the High Court was not right in the judgments impugned in these appeals holding that the respondents were entitled to remission of their sentences under the circulars in question issued under Section 432 of the Code of Criminal Procedure. These appeals are, therefore, allowed and the impugned judgments of the High Court are set aside." In line with the above observation of the Supreme Court, we are inclined to accept the contention made by the learned Public Prosecutor, the decision in Nalamolu Appala Swamy's case was made on the facts of that case pending disposal of the appeal. 16.In the subsequent decision in Joginder Singh Vs. State of Punjab & Others ((2001) 8 SCC 306), the Supreme Court was considering the notifications issued by Punjab Government granting remission even to persons who are on bail, irrespective of the actual period of sentence served by them and relying on the decisions in the cases of Naruatta Singh and of Mohinder Singh and also the decision of the Constitution Bench in Sunil Fulchand Shah's case [2000 (3) SCC 409], https://hcservices.ecourts.gov.in/hcservices/ it held that even though it was stated in the notification of the Punjab Government that the remission would be applicable even to persons on bail, by the inclusion of the word "bail" in the notification of the Punjab Government, the person who was on bail, cannot take advantage of the remission notification. The relevant paragraphs in the said decision are as follows: "10. With respect, we are unable to agree with the learned counsel for the said respondents. In other words, acceptance of this argument, in our opinion, would reduce the criminal justice system to a mockery as has been said by this Court in Nauratta Singh case 2000 (3) SCC 514. In the cases cited by the appellant, this Court has categorically held that there is substantial difference between the words “parole” and “furlough” on one hand and the expression “bail” on the other. These judgments have also held that persons who are enlarged on bail cannot claim the benefit of the period during which they were on bail for the purpose of counting the period of sentence already undergone to apply the remission given by the Government. In view of this clear enunciation of law, in our opinion, even by the inclusion of the word “bail” in the notification of the Punjab Government, an accused who has always remained on bail or has not served a substantial part of his sentence cannot take advantage of the remission notification. 11. In the case of Nauratta Singh, 2000 (3) SCC 514 which has considered the judgment of Mohinder Singh, 2000 (3) SCC 394 as well as that by the Constitution Bench in Sunil Fulchand Shah, 2000 (3) SCC 409 it was held thus: “18. The clear fallacy of the approach made by the High Court can be demonstrated through an illustration. An accused was tried for an offence under Section 326 IPC. During 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? 19. Yet another illustration can be shown by stretching the above illustration a little farther. If the aforesaid convicted person filed an appeal and got his sentence suspended https://hcservices.ecourts.gov.in/hcservices/ by the appellate court and the appellate court confirmed the conviction and sentence after a period of 3 years, is he entitled to claim that he need not go to jail at all as he was on bail for more than 3 years during the post-conviction stage also? If it is to be held that he is entitled to such remission, we are afraid, the criminal justice system would be reduced to a mockery. The absurdity of the claim of the respondent can thus be demonstrated.” 12. It is clear from the above observations of this Court that grant of any such remission would indeed reduce the criminal justice system to a mockery. Therefore, we cannot be persuaded to interpret the remission notification of the Punjab Government to run counter to the judgment of this Court referred to hereinabove. 13. In Mohinder Singh, 2000 (3) SCC 394 which is followed by the Constitution Bench in Sunil Fulchand Shah, 2000 (3) SCC 409, this Court held: “14. Parole is defined in Black’s Law Dictionary as ‘a conditional release of a prisoner, generally under supervision of a parole officer, who has served part of the term for which he was sentenced to prison’. Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.” 14. In view of the pronouncement of this Court also, we are of the opinion that the High Court fell in error in accepting the argument of the said respondents that they are entitled to the benefit of the period of remission given by the various notifications cumulatively to be counted against the period during which they were on bail. In our opinion, while applying the period of remission granted by the Government under any remission notification the period during which an accused person was on bail cannot be taken into account." 17.In view of the dictum laid down by the Supreme Court in the decisions referred above and also the stipulation under Sub-Rule 1 of Rule 239 of the Tamil Nadu Prison Rules, 1983, the petitioner is not entitled to any remission under six Government Orders cited by him, https://hcservices.ecourts.gov.in/hcservices/ since he was on bail on the dates of issue of those Government Orders, and there is no illegality in his detention. 18.Hence the habeas corpus petition is dismissed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar nsv To: 1.The Secretary to Government Home Department Fort St. George, Chennai 600 009. 2.The Inspector General of Police, Chennai 3.The Superintendent of Prisons Central Prison, Coimbatore. 4.The Public Prosecutor High Court, Madras. 2 cc to Mr.R.Karthikeyan, Advocate, Sr.No.21809 HCP No.2323 of 2010 MBS {CO} TP/7.4.2011. https://hcservices.ecourts.gov.in/hcservices/