In the High Court of Judicature at Madras Dated: 22.10.2009 Coram: The Honble Mrs. Justice PRABHA SRIDEVAN and The Honble Mr.Justice M.SATHYANARAYANAN Habeas Corpus Petition No.1380 of 2008 R.Suresh S/o Rowthram ... Petitioner Versus State represented by The Inspector of Police, P-3, Vyasarpadi Police Station, Chennai. ... Respondents Petition filed under Article 226 of the Constitution of India for the issuance of Writ of Habeas Corpus directing the respondent to produce the body or person viz., (1) Kesavaram alias Sami, Son of Erra Ram, now confined at Bangalore Central Jail (A1) ; (2) Om Prakash, Son of Lalu Ram, now confined at Vellore Central Jail (A2) ; and (3) Beekaram, Son of Dhanaram, now confined at Cuddalore Central Jail (A4) before this Court and set them at liberty. For Petitioner ... Mr.K.P.Chandrasekaran For Respondent ... Mr.Babu Muthumeeran, Addl.Public Prosecutor. ***** O R D E R
M.SATHYANARAYANAN,J
This Habeas Corpus Petition is filed by one R.Suresh cousin brother of the detenues namely: (1) Kesavaram alias Sami; (2) Om Prakash; and (3) Beekaram, who have been convicted and sentenced for the commission of the offence under Section 302 of IPC in S.C.No.580 of 2000 by the Court of IV Additional Sessions Judge, Chennai.
2. It is stated by the petitioner that the detenues, challenging the above said conviction and sentence, had preferred an appeal in C.A.No.395 of 2002 before this Court and the appeal was dismissed on 21.7.2005, confirming the conviction and sentence passed by the trial Court.
3. It is further stated by the petitioner that the first and second detenues were in custody for a period of one year 11 months and 18 days respectively and the third detenue was in custody for one year 8 months and 6 days. The trial Court while convicting and sentencing the above said detenues, had not granted the benefit of set off under Section 428 of Cr.P.C.
4. It is also stated by the petitioner that the Government of Tamil Nadu proposes to pass an order for release of life convicts on the occasion of the Birth Annuarsary of former Chief Minister of Tamil Nadu Late C.N.Annadurai and unless set off is granted to the detenues, they may not be able to avail the benefit to be granted in the Government Order proposed to be passed and hence the present Habeas Corpus Petition is filed for their release.
5. On behalf of the State, counter affidavit has been filed. It has been stated that as per Rule 341, Explanation (3) of Tamil Nadu Prison Rules, 1983, the set off period specified in Section 428 of Cr.P.C. 1973 shall be taken into account in case of lifers sentenced on or after 18.12.1978 referred into the provision under sub-rule (2) for computing the period of 14 years for placing before the advisory Board.
6. It is further stated in the counter that the trial Court did not pass a specific order for set off under Section 428 of Cr.P.C. and therefore, the petitioner cannot claim remission as a matter of right. As per G.O.Ms.No.1155, Home Department, dated 11.09.2008, premature release of life convict prisoners who have completed 7 years of imprisonment, was ordered subject to certain conditions and since the detenues herein had not completed the said period, their names have not been considered for premature release as on 15.09.2008. Therefore, the Respondent prayed for dismissal of the Habeas Corpus Petition.
7. Heard the submissions of Mr.K.P.Chandrasekaran, learned counsel appearing for the petitioner and Mr.Babu Muthumeeran, learned Additional Public Prosecutor.
8. The Honble Supreme Court of India in the judgment reported in 2008(10) Scale page 669 – Swamy Shraddananda v. State of Karnataka : (2008) 13 SCC 767, at page 797, has considered the definition of life as defined under Section 45 of the Indian Penal Code and earlier decisions and held as follows:-
At this stage, it will be useful to take a very brief look at the provisions with regard to sentencing and computation, remission, etc. of sentences. Section 45 of the Penal Code defines life to mean the life of the human being, unless the contrary appears from the context. Section 53 enumerates punishments, the first of which is death and the second, imprisonment for life. Sections 54 and 55 give to the appropriate Government the power of commutation of the sentence of death and the sentence of imprisonment for life respectively. Section 55-A defines appropriate Government. Section 57 provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. It is now conclusively settled by a catena of decisions that the punishment of imprisonment for life handed down by the Court means a sentence of imprisonment for the convict for the rest of his life. [See the decisions of this Court in Gopal Vinayak Godse vs. State of Maharashtra & others, (1961) 3 SCR 440 (Constitution Bench); Dalbir Singh & others vs. State of Punjab, (1979) 3 SCC 745; Maru Ram vs. Union of India, (1981) 1 SCC 107 (Constitution Bench); Naib Singh vs. State of Punjab(1983) 2 SCC 454; Ashok Kumar alias Golu vs. Union of India, (1991) 3 SCC 498; Laxman Naskar (Life Convict) vs. State of W.B., (2000) 7 SCC 626; Zahid Hussein vs. State of West Bengal, (2001) 3 SCC 750; Kamalanantha vs. State of Tamil Nadu, (2005) 5 SCC 194; Mohd. Munna vs. Union of India, (2005) 7 SCC 416 and C.A. Pious vs. State of Kerala, (2007) 8 SCC 312).
It is equally well settled that Section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. (See Gopal Vinayak Godse vs. State of Maharashtra & others, (1961) 3 SCR 440 and Ashok Kumar alias Golu vs. Union of India, (1991) 3 SCC 498. The object and purpose of Section 57 will be clear by simply referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.
Earlier in this judgment it was noted that in the decision in Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 : 2001 SCC (Cri) 1095, there is a useful discussion on the legality of remission in the case of life convicts. The judgment in Shri Bhagwan, in SCC para 22, refers to and quotes from the earlier decision in State of M.P. vs. Ratan Singh (1976) 3 SCC 470 : 1976 SCC (Cri) 428, which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayak Godse vs. State of Maharashtra & others, (1961) 3 SCR 440. It will be profitable to reproduce here the extract from Ratan Singh:
4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisoners Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra, (1961) 3 SCR 440 where the Court, following a decision of the Privy Counsel in Pandit Kishori Lal v. King Emperor, AIR 1954 PC 64 observed as follows:
Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term.
If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without any formal remission by appropriate Government, can be automatically treated as one for a definite period. No such provision is found in the Penal Code, Code of Criminal Procedure or the Prisons Act.
9. The Hon’ble Supreme Court further observed that
But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. Under the said rules, the order of an appropriate Government under Section 401, Criminal Procedure Code, (old Code) is a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.
The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.
It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules. This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 401 of the Code of Criminal Procedure and neither Section 57 of the Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the court under the Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoners death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.
Further, in para 23, the judgment in Shri Bhagwan (cited supra) observed as follows:
In Maru Ram v. Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar(Life Convict) vs. State of W.B.& Anr., (2000) 7 SCC 626, after referring to the decision of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the Court reiterated that sentence for imprisonment for life ordinarily means imprisonment for the whole of the remaining period of the convicted persons natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.
*******
10. In the light of the ratio laid down by the Honble Supreme Court of India in the cited decisions, a convict is not entitled to be released automatically before the full life term and the question of remission of the entire sentence or a part of it, lies within the exclusive domain of the appropriate Government under Section 432 of Cr.P.C. Hence, the detenues/convicts cannot claim as a matter of right that they are entitled to be considered for remission unless and until they come within the ambit of the Government Orders passed in this regard.
11. The learned counsel appearing for the petitioner by way of alternate relief prayed for set off under Section 428 of Cr.P.C., in respect of the period of detention already undergone by the detenues/convicts during the course of investigation and trial.
12. This Court in the judgment reported in (2006) I L.W. (Cri.) page 424 M.Ravi vs. The State of Tamil Nadu & another, has followed the dictum laid down in the judgment of the Honble Supreme Court of India reported in AIR 1985 SC 108 Bhagirath vs. Delhi Administration and held that the period of detention undergone by the accused as under trial prisoners shall be set off against the sentence of life imprisonment imposed upon them, subject to the provision contained in Section 433A of Cr.P.C. and provided that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Cr.P.C.
13. Hence, the convicts/ detenues herein are not entitled to set off under Section 428 of Cr.P.C. unless the appropriate authority either remits the sentence under Section 432 or commuting the sentence under Section 433 of Cr.P.C. and subject to Section 433-A of Cr.P.C. Therefore, this Habeas Corpus Petition fails and accordingly, dismissed.
(P.S.D., J) (M.S.N., J)
22.10.2009.
Index:Yes/No
Internet:Yes/No
gr.
To
1.The Public Prosecutor, High Court, Chennai-104.
2.The Inspector of Police, P-3, Vyasarpadi Police Station, Chennai.
PRABHA SRIDEVAN, J
and
M.SATHYANARAYANAN, J
gr.
PRE DELIVERY ORDER
IN H.C.P.NO.1380 OF 2008
22.10.2009