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2011 Supreme(Mad) 1683
2011 (3) CTC 181, 2011 (1) MWN(Cr) 523, 2011 (2) MLJ(Crl) 577
High Court of Judicature at Madras
C. NAGAPPAN & P.R. SHIVAKUMAR
D. Ethiraj
Versus
The Secretary to Government, Chennai & Others
H.C.P. No. 2323 of 2010
Decided on : 25-03-2011
For the Petitioner:V. Padmanabhan, Senior Counsel for R. Karthikeyan, Advocate. For the Respondents: P. Kumaresan, Public Prosecutor.
The main legal point established in the judgment is that a prisoner on bail is not entitled to the benefit of remission granted in government orders issued during the period of bail.
Headnote:
Remission - Petition for benefit of remission granted in six Government Orders - G.O.Ms.No.279, G.O.Ms.No.296, G.O.Ms.No.205, G.O.Ms.No.1342, G.O.Ms.No.1259, G.O.Ms.No.1013 - The court discussed the applicability of remission orders to prisoners on bail, the interpretation of Rule 239 of the Tamil Nadu Prison Rules, 1983, and the legal principles established in various Supreme Court decisions. The court held that the petitioner was not entitled to remission under the Government Orders as he was on bail on the dates of issue of those orders, and there was no illegality in his detention.
Fact of the Case:
The petitioner, a convict prisoner, sought the benefit of remission granted in six Government Orders, claiming that his sentence of three years Rigorous Imprisonment should be treated as undergone. He argued that his detention had become illegal and violative of Article 21 of the Constitution of India due to the omission of the respondents to give the benefit of remissions provided in the Government Orders.
Finding of the Court:
The court found that the petitioner was not entitled to remission under the Government Orders as he was on bail on the dates of issue of those orders, and there was no illegality in his detention.
Issues: The main issue was whether the petitioner was entitled to the benefit of remission granted in the six Government Orders despite being on bail on the dates of issue of those orders.
Ratio Decidendi: The court relied on the interpretation of Rule 239 of the Tamil Nadu Prison Rules, 1983, and various Supreme Court decisions to establish that the petitioner was not entitled to remission under the Government Orders as he was on bail on the dates of issue of those orders.
Final Decision: The habeas corpus petition was dismissed, and the court held that there was no illegality in the petitioner's detention.
C. NAGAPPAN, J.
1. 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 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 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 learn
