2019 Supreme(SC) 491

SUPREME COURT OF INDIA
A.M. Khanwilkar, Ajay Rastogi, JJ.
Rajan – Petitioner
Versus
The Home Secretary, Home Department of Tamil Nadu and Ors. –Respondents
Writ Petition (Criminal) No. 321 of 2018
Decided On : 25-04-2019

IMPORTANT POINTS
Sentences under a provision struck down as ultra vires as also those served put cannot be considered while considering representation for remission.
With striking down of section 27(3), Arms Act the requirement of consultation with Central government is done away with.
Remission is prerogative of appropriate Government.
Rejection of representation once does not debar the petitioner from representing afresh.

Headnote:(a) Code of Criminal Procedure, 1973 – Section 432 and 433 – Premature release – Petitioner convicted u/s 395, 302 and 307, Indian Penal Code, 1860; and Section 3 r/w Sections 25(1A) and 27(3), Indian Arms Act and sentenced to life imprisonment – Section 27(3) having been struck down as ultra vires cannot be reckoned for considering premature release – Similarly, conviction u/s 395 IPC and 3/25(1A), Arms Act cannot be reckoned – Petitioner already serving our the sentences under these provisions – Consultation with Central Government no more required – Representation for remission has to be considered in light of conviction under other ;provisions only. (Para 10, 11, 13)

       (2012) 3 SCC 346; (2016) 8 SCC 313; (2016) 7 SCC 1 – Relied upon

       (b) Code of Criminal Procedure, 1973 – Section 432 and 433 – Remission – Prerogative of appropriate Government. (Para 16)

       Writ Petition (Criminal) No.61 of 2016 – Distinguished

       2019 (2) SCALE 225 – Referred

       (c) Code of Criminal Procedure, 1973 – Section 432 and 433 – Remission – Rejection of representation once does not debar the petitioner from representing afresh – Respondents directed to process the representation made by the petitioner dated 5th February, 2018. (Para 18, 20)

       Facts of the case:

       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. The prosecution case was that the petitioner, along with co-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 came to be convicted for offences punishable under Sections 395, 302 (3 counts), 307 (4 counts) of IPC and Section 3 read with Sections 25(1A) and 27(3) of the Indian Arms Act and sentenced to undergo 7 years’ rigorous imprisonment for offence punishable under Section 395 of IPC, life imprisonment for offence punishable under Section 307 (4 counts) of IPC for each count as also awarded capital sentence for offence punishable under Section 302 (3 counts) and further 5 years’ imprisonment for offences punishable under Section 3 read with Section 25 (1A) of the Indian Arms Act. The sentences awarded to the petitioner were directed to run concurrently.

       The petitioner had assailed the said decision before the High Court by way of Criminal Appeal which was heard along with Death Reference Case No.3/2007. The High Court, affirmed the judgment and order of conviction and sentence awarded by the Trial Court for the concerned offences but converted the death sentence into life imprisonment on each of the 3 counts. The High Court judgment has attained finality.

       Since the petitioner had undergone actual sentence for a sufficiently long period of time, he applied for premature release. That representation was considered by the Advisory Board held on 20th January, 2010, but came to be rejected for the reasons recorded in the opinion of the Advisory Board. The same was duly considered by the competent authority of the State Government and the proposal for premature release came to be rejected. It appears that the petitioner, after a gap of around 8 years, once again made another representation on 5th February, 2018, for his premature release

       The grievance of the petitioner is that the competent authority of the State has failed to process the representation made by the petitioner on 5th February, 2018, for inexplicable reasons, which it was obliged to decide at the earliest opportunity as per the mandate of law.

       Finding of the Court:

       Sentence u/s 3, 25 and 27 Arms Act and section 395, IPC cannot be considered for remission.

       Result: Appeal disposed of.