Supreme Court of India
RAJANversusTHE HOME SECRETARY, HOME DEPARTMENT OF TAMIL NADU AND ORS.
- Citation
- 2019 INSC 574
- Decided
- 25 April 2019
- Disposal
- Disposed off
- Bench
- A M KHANWILKAR
Holding
The Court held that only the life sentences under IPC Sections 302 and 307 are pertinent for the petitioner's remission request, and the competent authority must consider the representation without the Court ordering release.
Summary
The petitioner, Rajan, was convicted of multiple offences including dacoity, murder, and illegal possession of arms, receiving seven years' rigorous imprisonment for IPC 395, five years' rigorous imprisonment under the Arms Act, and life imprisonment for three counts of IPC 302 and four counts of IPC 307. He sought premature release after serving over 30 years, filing a writ petition under Article 32 after two earlier representations for remission were rejected. The Court examined whether convictions under Section 27(3) of the Arms Act, declared ultra‑vires, and sentences already served for IPC 395 and the Arms Act could be considered for remission. It held that only the life sentences under IPC 302 and 307 are relevant, and that remission for one life sentence does not automatically affect the others. The Court also clarified that the competent authority, not the Court, must process the petitioner's 2018 representation under Sections 432 and 433 of the CrPC, without needing Central Government consultation. Consequently, the petition was disposed of with directions to the State authority to consider the representation expeditiously.
Issues considered
- Whether the conviction and sentence under Section 27(3) of the Arms Act, declared ultra vires, can be taken into account for remission.
- Whether sentences already served for offences under IPC 395 and the Arms Act (Section 3/25(1A)) can be considered for premature release.
- Whether remission granted for one life sentence automatically results in release for other life sentences awarded in the same trial.
- Whether the competent authority must consult the Central Government for remission involving offences under the Arms Act.
- Whether the Court can direct the release of the petitioner or must defer to the competent authority under Sections 432 and 433 of the CrPC.
Legislation cited
- Arms Acts. 25(1A), s. 27(3), s. 28, s. 3
- Code of Criminal Procedure, 1973s. 31, s. 427(2), s. 432, s. 433
- Indian Penal Code, 1860s. 120(B), s. 302, s. 302 r/w 419, s. 307, s. 307 r/w 149, s. 353, s. 395, s. 506(2)
Subjects
premature releaseremission of sentencelife imprisonmentSection 27(3) Arms Actultra viresconcurrent sentencesSection 432 CrPCSection 433 CrPCArticle 32multiple life sentences
Judgment
[2019] 6 S.C.R. 1035 1035
RAJAN A
v.
THE HOME SECRETARY,
HOME DEPARTMENT OF TAMIL NADU AND ORS.
(Writ Petition (Criminal) No. 321 of 2018) B
APRIL 25, 2019
[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]
Sentence/Sentencing:
C
Remission of sentence – Petitioner was sentenced to 7 years
RI for offence punishable u/s. 395 IPC and for 5 years imprisonment
for offences punishable u/s. 3/25(1A) of Arms Act – Further he was
sentenced to life sentence for the offences punishable u/ss. 307
IPC (4 counts) and 302 IPC (3 counts) and u/s. 27(3) of Arms Act –
Petitioner’s representation for premature release moved in the year D
2010 was rejected – Thereafter another representation was moved
in the year 2018 for premature release – Getting no response to the
representation, he filed present writ petition – Held: Section 27(3)
of Arms Act, having been declared ultra vires and unconstitutional,
conviction and sentence thereunder cannot be reckoned in law for E
considering the representation – Representation for remission of
sentences awarded for the offences punishable u/s.395 IPC and u/
ss. 3/25 (1A) also cannot be considered as the petitioner has already
undergone the sentence period – Representation has to be considered
only in respect of sentence of life imprisonment concerning offences
punishable u/ss. 302 and 307 IPC – The Competent Authority is F
directed to process the representation of the petitioner – Code of
Criminal Procedure, 1973 – s. 432 and 433.
Remission of sentence – Held: Grant or non-grant of remission
is prerogative to be exercised by the Competent Authority in exercise
G
of powers conferred u/ss. 432 and 433 of Cr.P.C. – It is not for the
Court to supplant that procedure – Code of Criminal Procedure,
1973 – ss. 432 and 433.
H
1035
1036 SUPREME COURT REPORTS [2019] 6 S.C.R.
A Disposing of the petition, the Court
HELD: 1. Section 27(3) of the Arms Act having been
declared ultra vires in terms of the judgment of Supreme Court in
*State of Punjab the conviction and sentence awarded to the
petitioner in relation to the said offence cannot be reckoned in
B law. Even so, the petitioner is faced with the conviction and
sentence awarded for other serious offences under Section 395
IPC for 7 years’ rigorous imprisonment, as also under Section 3
read with Sections 25(1A) and 27(3) of the Arms Act with
sentence of rigorous imprisonment for 5 years for the said
offences. However, in view of the exposition of the Constitution
C Bench in **Muthuramalingam case, 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 undergone
the sentence periods awarded for the said offences which were
D to run concurrently. [Para 10][1044-D-F]
**Muthuramalingam and Ors. v. State represented by
Inspector of Police (2016) 8 SCC 313 : [2016] 5 SCR
30 – followed.
*State of Punjab v. Dalbir Singh (2012) 3 SCC 346 :
E [2012] 4 SCR 608 – relied on.
2. Remission or commutation granted by the competent
authority for any one of the offences does not ipso facto result in
release of the prisoners for other offences for which he has been
convicted and sentenced at one trial. [Para 12][1047-A]
F
3. 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,
G 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
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1037
TAMIL NADU AND ORS.
for considering the representation made by the petitioner. A
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. The representation
of the petitioner will have to be considered only in reference to
the sentence of life imprisonment concerning offences under
B
Sections 302 and 307 of IPC, respectively. [Paras 13 and 14]
[1047-C-E; 1048-D]
4. 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 C
in mind the exposition in **Muthuramalingam and *Sriharan
cases, 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 D
competent authority. [Para 15][1048-D-F]
*Union of India v. V. Sriharan alias Murugan and Ors.
(2016) 7 SCC 1 : [2015] 14 SCR 613 – referred to.
5. It is well settled that grant or non-grant of remission is
the prerogative to be exercised by the competent authority and E
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 F
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. 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 G
appropriate Government in exercise of power under Sections 432
and 433 of Cr.P.C. We do not wish to dilate on that aspect. [Paras
16 and 17][1048-G-H; 1049-A-B; D-F]
State of Tamil Nadu and Ors. v. P. Veera Bhaarathi
2019 (2) SCALE 225 – distinguished. H
1038 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 6. The respondents cannot be directed 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
B
law. The fact that the petitioner’s request for premature release
was already considered once and rejected by the Advisory Board
of the State Government ought not to come in the way of the
petitioner for consideration of his fresh representation made on
5th February, 2018. With the passage of time, however, the
C 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.
[Para 18][1049-E-G; 1050-D-E]
D
7. The stipulation in the order dated 1st February, 2018,
issued by the Home Department would not make the petitioner
ineligible because he was also tried for offence of dacoity
punishable under Section 395 IPC. Considering the fact that the
sentence awarded for the said offence has already been completed
E by the petitioner and thus the remission sought by the petitioner
is presently limited to offences punishable under Sections 302
and 307 IPC respectively, for which he has been sentenced to
life imprisonment on more than one count. [Para 19][1050-E-G]
8. The competent authority is directed to process the
F representation made by the petitioner dated 5th February, 2018
(Annexure-P6) and take it to its logical end expeditiously and
preferably within four months, in accordance with law, without
being influenced by the rejection of the earlier representation
vide order dated 14 th June, 2010, by the State Government.
G 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. [Para 20]
[1050-G-H; 1051-A-B]
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1039
TAMIL NADU AND ORS.
Case Law Reference A
[2012] 4 SCR 608 distinguished Para 6
[2016] 5 SCR 30 followed Para 10
[2015] 14 SCR 613 referred to Para 13
2019 (2) SCALE 225 distinguished Para 17 B
CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 321 of 2018.
Under Article 32 of the Constitution of India. C
Rakesh Dwivedi, Sr. Adv., K. Paari Vendhan, Siddhartha Iyer,
Eklavya, Ms. Sansriti Pathak, Prabu Ramasubramanian, Advs. for the
Petitioner.
M. Yogesh Kanna, Adv. for the Respondents.
D
The Judgment of the Court was delivered by
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 E
remission, the total sentence undergone is above 36 years.
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 co- F
accused, 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
G
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 full-fledged 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
H
1040 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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 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
B
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
C 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
D sentence into life imprisonment on each of the 3 counts. The High Court
judgment has attained finality.
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
E 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,
F for his premature release, which reads thus:
“Annexure P/6
Date:05.02.2018
MOST URGENT
To
G 1. The Home Secretary,
Home Department of Tamil Nadu,
Secretariat, St. George Fort,
Chennai.
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1041
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
2. The Additional Director General of Police A
and The Inspector General of Prisons,
Wannels Road, Egmore,
Chennai-600008.
3. The Deputy Inspector General of Prisons,
B
Vellore Range, Vellore.
4. The Superintendent of Prison,
Vellore Central Prison,
Vellore.
C
From
Rajan,
Convict No. ,
Presently lodged at
Vellore Central Prison,
D
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 E
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/PS1/2018-1, Dt.02.02.2018.
2. State of Punjab Vs. Dalbir Singh – 2012 (3) SCC 346 F
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
G
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.
H
1042 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B 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,
Yours Faithfully,
C Rajan
Encl.
1. High Court judgment dt. 26.02.2008.
2. 2012 (3) SCC 346"
D 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:
E
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;
F 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.
G d) Pass any such other order or Orders as may be deemed fit and
proper.”
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1043
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
6. In support of the aforesaid reliefs, the petitioner has relied upon A
the recent unreported decision of this Court in Writ Petition (Criminal)
No.61 of 2016, in the case of Ram 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
B
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 C
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
D
Section 395 of IPC, the petitioner has already undergone the 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 E
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 F
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 G
objection has been taken by the State that the 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
1
(2012) 3 SCC 346
H
1044 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
and firing indiscriminately by use of AK-47 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
C appearing for the petitioner and Mr. M. Yogesh Kanna, learned counsel
for the respondents.
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
D 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
E 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
F reckoned for considering the proposal for premature release of the
petitioner. For, he has already 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
G 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
2
(2016) 8 SCC 313
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1045
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
by the High Court, it is indisputable that the sentences for offences A
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
B
may be useful to reproduce paragraph 23 and the conclusion in paragraphs
34 & 35 of the said decision, which read thus:
“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 C
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 D
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 E
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. F
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. G
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
3
(1991) 4 SCC 304 H
1046 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
remission or commutation granted by the competent
authority in one 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
C 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
D 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
E 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
F 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
G 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)
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1047
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
12. This decision is also an authority on the proposition that remission A
or commutation granted by the competent authority for any one of the
offences does not ipso facto result in release 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 B
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 C
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 D
cannot be reckoned for considering the representation made by the
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 E
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 F
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. G
The only sentence remaining is one under Section 302 IPC
which is life imprisonment. It was submitted by Mr. Rakesh
4
(2016) 7 SCC 1
5
(1999) 5 SCC 253
H
1048 SUPREME COURT REPORTS [2019] 6 S.C.R.
A 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
B
Government. It was further submitted that assuming Section 302
read with Section 120-B 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 has to be taken to
C 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,
D 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
E 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.
F 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),
G is obviously in the facts of that case. As a matter of fact, it is well settled
by now that grant or non-grant 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
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1049
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
Government in terms of Sections 432 and 433 of Cr.P.C., to be exercised A
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.
17. The petitioner would then rely on a three-Judge Bench decision B
of this Court in State of Tamil Nadu and Ors. Vs. P. Veera Bhaarathi 6.
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 C
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 D
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 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 E
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 F
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. G
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. The additional reason stated by the State
Government seems to be as follows:
6
2019 (2) SCALE 2 25 (Criminal Appeal No.120 of 2019 decided on H
22nd January, 2019)
1050 SUPREME COURT REPORTS [2019] 6 S.C.R.
A “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.
B 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’.
C 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
D 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.
E 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
F
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
G 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 (Annexure-P6) and take it to its logical end
expeditiously and preferably within four months, in accordance with law,
H
RAJAN v. HOME SECRETARY, HOME DEPARTMENT OF 1051
TAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]
without being influenced by the rejection of the earlier representation A
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
B
are left open.
21. The writ petition is disposed of accordingly. All pending
applications are also disposed of.
Kalpana K. Tripathy Petition disposed of. C
D
E
F
G
H
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