Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 321 OF 2018
Rajan …..Petitioner(s)
:Versus:
The Home Secretary, Home Department
of Tamil Nadu and Ors. ....Respondent(s)
J U D G M E N T
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 remission, the total sentence
undergone is above 36 years.
Digitally signed by
DEEPAK SINGH
Date: 2019.04.25
16:06:22 IST
Reason:
Signature Not Verified
2
2. The petitioner claims that he is a refugee from Sri Lanka.
He was named as an accused in relation to an offence
th
committed on 27 July, 1988, registered as FIR in Crime
No.104/88 at Thanipadi Police Station. The prosecution case
was that the petitioner, along with coaccused, 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 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 fullfledged trial by the
District and Sessions Judge, Thiruvannnamalai, for the
th
aforementioned offences, vide judgment and order dated 25
January, 2007, 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
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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.
3. The petitioner had assailed the said decision before the
High 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
th
and order dated 26 February, 2008, 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.
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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
th
Board held on 20 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
th
came to be rejected vide order dated 14 June, 2010, bearing
GO(D) 6033. It appears that the petitioner, after a gap of
around 8 years, once again made another representation on
th
5 February, 2018, for his premature release, which reads
thus:
“ Annexure P/6
Date:05.02.2018
MOST URGENT
To
1. The Home Secretary,
Home Department of Tamil Nadu,
Secretariat, St. George Fort,
Chennai.
2. The Additional Director General of Police
and The Inspector General of Prisons,
Wannels Road, Egmore,
Chennai600008.
3. The Deputy Inspector General of Prisons,
Vellore Range, Vellore.
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4. The Superintendent of Prison,
Vellore Central Prison,
Vellore.
From
Rajan,
Convict No. ,
Presently lodged at
Vellore Central Prison,
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 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/PS1/20181, Dt.02.02.2018.
2. State of Punjab Vs. Dalbir Singh – 2012 (3) SCC 346
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 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.
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 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,
6
Yours Faithfully,
Rajan
Encl.
1. High Court judgment dt. 26.02.2008.
2. 2012 (3) SCC 346”
As the petitioner did not get any response to the said
5.
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:
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; 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.
d) Pass any such other order or Orders as may be
deemed fit and proper.”
6. In support of the aforesaid reliefs, the petitioner has
relied upon the recent unreported decision of this Court in
Writ Petition (Criminal) No.61 of 2016, in the case of
Ram
7
th
Sewak Vs. The State of Uttar Pradesh , decided on 11
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 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
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Court, in the case of has
State of Punjab Vs. Dalbir Singh ,
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 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
Section 395 of IPC, the petitioner has already undergone the
1 (2012) 3 SCC 346
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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
th
made by the petitioner on 5 February, 2018, for inexplicable
reasons, which it was obliged to decide at the earliest
opportunity as per the mandate of law.
This writ petition has been resisted by the respondents.
8.
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 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
th
was duly considered by the Advisory Board on 20 January,
2010 and also by the State Government, which eventually
th
rejected the proposal vide order dated 30 June, 2010. A
preliminary objection has been taken by the State that the
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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 the State only in
consultation with the Central Government. The respondents
have then adverted to the recent circulars issued by the State
st rd
on 1 February, 2018 and 3 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 and firing indiscriminately by use of
AK47 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 appearing for the petitioner and Mr. M. Yogesh Kanna,
learned counsel for the respondents.
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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 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 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
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, we must immediately
represented by Inspector of Police
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 reckoned for considering the proposal
for premature release of the petitioner. For, he has already
2 (2016) 8 SCC 313
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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 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 by the High Court, it is indisputable
that the sentences for offences 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 (supra). It may be useful to
Muthuramalingam
reproduce paragraph 23 and the conclusion in paragraphs 34
& 35 of the said decision, which read thus:
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“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 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
3
apart, in Ranjit Singh case , this Court has in terms held
that since life sentence implies imprisonment for 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 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. 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.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx xxx
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 remission or
commutation granted by the competent authority in one
3 (1991) 4 SCC 304
13
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 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 sentences shall run
It was contended on behalf of the appellants
consecutively.
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 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 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
Whether or not the
undergoing any further sentence.
direction of the court below calls for any modification or
alteration 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)
12. This decision is also an authority on the proposition that
remission or commutation granted by the competent authority
for any one of the offences does not ipso facto result in release
14
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
4
Vs. V. Sriharan alias Murugan and Ors. , went on to
examine seven 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
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 cannot be
reckoned for considering the representation made by the
4 (2016) 7 SCC 1
15
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 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
5
Court in State v. Nalini , the respondent convicts were
acquitted of the offences punishable under Sections 3(3),
3(4) and 5 of the TADA 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. The only sentence remaining is one under
Section 302 IPC which is life imprisonment. It was
submitted by Mr. Rakesh 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 Government.
It was further submitted that assuming Section 302 read
with Section 120B 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
5 (1999) 5 SCC 253
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has to be taken to 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, 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 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.
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16. The petitioner would, however, rely on the unreported
decision of this Court in (supra), to contend that
Ram Sewak
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), is obviously in the facts of that case. As a matter of
fact, it is well settled by now that grant or nongrant 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 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 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.
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The petitioner would then rely on a threeJudge Bench
17.
decision of this Court in State of Tamil Nadu and Ors. Vs.
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. Notably, in this case, the respondent
P. Veera Bhaarathi
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 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 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
nd
6 2019 (2) SCALE 225 (Criminal Appeal No.120 of 2019 decided on 22 January, 2019)
19
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 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
th
5 February, 2018, expeditiously, on its own merits and in
accordance with law. We may not be understood to have
expressed 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
th
consideration of his fresh representation made on 5
February, 2018. 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.
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The additional reason stated by the State Government seems
to be as follows:
“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.
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’.
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
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.
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19. The argument of the respondents that the stipulation in
st
the order dated 1 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 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
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
th
by the petitioner dated 5 February, 2018 (AnnexureP6) and
take it to its logical end expeditiously and preferably within
four months, in accordance with law, without being influenced
22
by the rejection of the earlier representation vide order dated
th
14 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 are left open.
The writ petition is disposed of accordingly. All pending
21.
applications are also disposed of.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Ajay Rastogi)
New Delhi;
April 25, 2019.