D. ETHIRAJversusSECRETARY TO GOVT. & ORS.

                   [2011] 15 (ADDL.) S.C.R. 1048

 A                           D. ETHIRAJ
                                   v.
                 SECRETARY TO GOVT. & ORS.
             (CRIMINAL APPEAL NO. 1949 OF 2011)
                        OCTOBER 11, 2011
 8
                 [ASOK KUMAR GANGULY AND
                   GYAN SUDHA MISRA, JJ.]

        REMISSION OF SENTENCE:
c       Claim for remission of sentence as per Government of
   Tamil Nadu, G.O. dated 23.2.1992 - Rejected by High Court
   on the ground that on the date of notification, the prisoner was
   on bail - Held: In the instant case, the prisoner is entitled to
  get his case of remission of sentence considered in
D accordance with the G. 0. - A prisoner being on bail on a
  particular day 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
E - Order of High Court is set aside - Prisoner directed to make
  a rF;!presentation afresh - State Government directed to
  consider the case of the prisoner in the light of the
  obseNations made in the judgment - Constitution of India,
  1950 - Article 161, Article 141 - Precedent - Tamil Nadu,
  Home (Prison C) Department GOMs No. 279 dated
F 23.2.1992.
       The appellant was convicted and sentenced to
   undergo three years rigorous imprisonment uls 366 read
   withs. 109 ands. 119 IPC by the trial court by judgment
   and order dated 14.1.1992. His appeal before the High
G Court and the special leave petition before the Supreme
   Court were dismissed and, consequently, he was
   readmitted to Central Prison on 7.9.2010. The High Court
  ·declined the appellant's prayer for having his case for
   remission of sentence considered in accordance with the
H                            1048
   D. ETHIRAJ v. SECRETARY TO GOVT. & ORS.          1049

Tamil Nadu, Home (prison C) Department G.0.Ms. No. 279,      A
dated 23.2.1992, on the ground that he was on bail on the
date of issuance of the notification.
    Allowing the appeal, the Court
    HELD: 1.1. A prisoner being on bail on a particular      8
day 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.
[Para 20] [1056-E-F]
                                                             c
    Nalamolu Appa/a Swamy & Ors. Vs. State of Andhra
Pradesh (1989) Supp (2) SCC 192 - relied on.
     1.2. However, during the period the petitioner was on
bail and had not at all suffered by imprisonment, he
cannot get the benefit of remission in respect of that       D
period. [para 18] [1056-B]
     State of Haryana Vs. Nauratta Singh & Ors. 2000
            =
(2) SCR 246 (2000) 3 SCC 514; and Joginder Singh Vs.
State of Punjab & Ors. (2001) 8 SCC 306 - relied on
     1.3. In the instant case, the appellant had undergone E
a total sentence of 1 year and 140 days as on 5.10.2010
and applied for consideration of remission of his
sentence in accordance with the said notification.
Admittedly, the G.O. No. 279, dated 23.2.1992, which was
issued in exercise of the powers conferred by Article 161 F
of the Constitution of India, is still subsisting and the
State is bound by the same. 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.
The appellant is entitled to have his case of remission G
considered under the said G.O. since he admittedly
suffered more than six months of imprisonment prior to
the date of judgment rendered by the High Court on
 25.3.2011. [para 4-5 and 9] [1051-C-E; 1053-C-E]
                                                             H
      1050 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.


 A     1.4. Despite the clear position settled by a three
  Judge Bench of this Court in Nalamolu Appala Swamy's
  case and despite the fact that the said judgment was
  placed before the High Court, it unfortunately came to a
  decision which is contrary to the reason given by this
8 Court. The judgment of the High Court is, therefore, set
  aside. The appellant is directed to make a representation
  afresh praying for remission attaching a copy of the
  instant judgment. The State Government is directed to
  consider the case of the appellant in the light of the
C observations made in the instant judgment. [ Para 13, 14,
  20 and 21) [1054-B-C; F-G; 1056-E-G]
                         Case Law Reference:
         (1989) Supp (2) sec 192 relied on              para 13
         2000 (2) SCR 246.          relied on           para 15
D        (2001) 8 sec 306           relied on           para 16
         CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
     No. 1949 of 2011.
      From the Judgment & Order dated 25.3.2011 of the High
E Court of Judicature at Madras in H.C.P. No. 2323 of 2010.
          A.L. Somayajee, V. Padmanabhan, Shailendra Kishore,
     Krishna Dev, Senthil Jagadeesan for the Appellant.
      Gurukrishna Kumar, AAG, Akshat Hansaria, B. Balaji, M.
F Yogesh Kana (for Subramonium Prasad) for the Respondents.
         The Judgment of the Court was delivered by
        GANGULY, J. 1. Leave granted.
        2. Heard learned counsel for the parties.
G       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
H statement showing the period of sentence undergone by the
   D. ETHIRAJ v. SECRETARY TO GOVT. & ORS.                  1051
           [ASOK KUMAR GANGULY, J.]
petitioner at different stages and the said statement has not        A
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 clear:

    S.No.    From                 To              N.o. of days       B
    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        1 year 29         c
                                  (05.10.2011)     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      D
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         E
the Government from lime to lime.
      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
nolif1calions for remission of sentence, his case for remission
cannot be considered.                                                F
    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 connection
with remission of sentence by the Government. Learned counsel        G
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.
                                                                     H
    1052 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.


A                GOVERNMENT OF TAMIL NADU
                            ABSTRACT
        Prisoners - Remision of sentence - Special remission on
        occasion of newly elected Government assuming office in
        Tamil Nadu -ordered.
B
                HOME (PRISON C) DEPARTMENT
                  G.O.Ms.NO. 279, Dated 23.2.92.
                                ORDER
              On the occasion of the assumption of office of the
c      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.
D      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
E     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
F     to murder; robbery and smuggling activities, six months out
      of their 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
G
      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.
H
   D. ETHIRAJ v. SECRETARY TO GOVT. & ORS.                 1053
           [ASOK KUMAR GANGULY, J.]
    4. The remission ordered herein shall be made applicable A
    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 B
     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 C
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 o
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 Section 366 read with Section 109, IPC and one year
rigorous imprisonment for an offence under Section 119, IPC. E
The sentences were however to run concurrently.
     10. On an appeal being filed by the appellant vide C.A.
No. 64of1992, 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    F
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.                            G
      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,        H
     1054 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.


 A 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 appearing
 B for the appellant. cited before us a decision of this Court in
   Na/amolu Appala Swamy & Ors. Vs. State of Andhra Pradesh
   (1989) Supp (2) sec 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
 c 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
D        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
E        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.
F 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 Na/amolu Appa/a
G (supra).
        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
H of State of Haryana Vs. Nauratta Singh & Ors. (2000) 3 SCC
   D. ETHIRAJ v. SECRETARY TO GOVT. & ORS.                 1055
           [ASOK KUMAR GANGULY, J.]
514. The facts of that case are succinctly narrated in the Head A
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 co11victed him on B
      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 C
       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) D
       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".           E
       16. The Court found that an accused cannot claim the
 perio~ during which he was on bail towards his remission. We
 are in respectful agreement with that interpretation by this Court
 in Nauratta Singh. Any other interpretation will render criminal
justice system to a mockery. This Court clarified the same by F
 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. G
        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 H
     1056 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R


 A         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.
 B        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.
C         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
0 Court 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
E 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.
F        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
G 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.
H R.P.                                              Appeal allowed.