R.Suresh v. State represented by The Inspector of Police, P-3, Vyasarpadi Police Station, Chennai
Case at a glance
Provisions considered
- Constitution of India art. 226
- Indian Penal Code, 1860 ss. 45, 57, 65, 116, 119, 129, 302, 511
- Code of Criminal Procedure, 1973 ss. 401, 428, 433, 433A
Key paragraphs
- Para 44. It is also stated by the petitioner that the Government of Tamil Nadu proposes to pass an order for release of life convicts onthe occasion of the Birth Annuarsary of former Chief Minister of Tamil Nadu Late C.N.Annadurai and unless set off is granted…
- Para 88. The Hon’ble Supreme Court of India in the judgment reportedin 2008(10) Scale page 669 - Swamy Shraddananda v. State of Karnataka : (2008) 13 SCC 767, at page 797, has considered thedefinition of life as defined under Section 45 of the Indian PenalCode and…
- Para 1212. This Court in the judgment reported in (2006) I L.W. (Cri.)page 424 – M.Ravi vs. The State of Tamil Nadu & another, hasfollowed the dictum laid down in the judgment of the Hon’ble SupremeCourt of India reported in AIR 1985 SC 108 – Bhagirath…
Judgment
In the High Court of Judicature at MadrasDated: 22.10.2009Coram: The Hon’ble Mrs. Justice PRABHA SRIDEVANandThe Hon’ble Mr.Justice M.SATHYANARAYANANHabeas Corpus Petition No.1380 of 2008R.Suresh S/o Rowthram... Petitioner VersusState represented by The Inspector of Police, P-3, Vyasarpadi Police Station, Chennai.... RespondentsPetition filed under Article 226 of the Constitution of Indiafor the issuance of Writ of Habeas Corpus directing the respondentto produce the body or person viz., (1) Kesavaram alias Sami, Son of Erra Ram, now confined at Bangalore Central Jail (A1) ; (2) OmPrakash, Son of Lalu Ram, now confined at Vellore Central Jail (A2) ;and (3) Beekaram, Son of Dhanaram, now confined at Cuddalore CentralJail (A4) before this Court and set them at liberty. For Petitioner ...Mr.K.P.ChandrasekaranFor Respondent ...Mr.Babu Muthumeeran, Addl. Public Prosecutor.
O R D E RM.SATHYANARAYANAN,JThis Habeas Corpus Petition is filed by one R.Suresh – cousinbrother of the detenues namely: (1) Kesavaram alias Sami; (2) OmPrakash; and (3) Beekaram, who have been convicted and sentenced forthe commission of the offence under Section 302 of IPC in S.C.No.580of 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 anappeal in C.A.No.395 of 2002 before this Court and the appeal wasdismissed on 21.7.2005, confirming the conviction and sentence passedby the trial Court. https://hcservices.ecourts.gov.in/hcservices/
It is further stated by the petitioner that the first andsecond detenues were in custody for a period of one year 11 monthsand 18 days respectively and the third detenue was in custody for oneyear 8 months and 6 days. The trial Court while convicting andsentencing the above said detenues, had not granted the benefit ofset off under Section 428 of Cr.P.C.
It is also stated by the petitioner that the Government of Tamil Nadu proposes to pass an order for release of life convicts onthe occasion of the Birth Annuarsary of former Chief Minister of Tamil Nadu Late C.N.Annadurai and unless set off is granted to thedetenues, they may not be able to avail the benefit to be granted inthe Government Order proposed to be passed and hence the presentHabeas Corpus Petition is filed for their release.
On behalf of the State, counter affidavit has been filed. It has been stated that as per Rule 341, Explanation (3) of TamilNadu Prison Rules, 1983, the set off period specified in Section 428of Cr.P.C. 1973 shall be taken into account in case of liferssentenced on or after 18.12.1978 referred into the provision undersub-rule (2) for computing the period of 14 years for placing beforethe advisory Board.
It is further stated in the counter that the trial Court didnot pass a specific order for set off under Section 428 of Cr.P.C.and therefore, the petitioner cannot claim remission as a matter ofright. As per G.O.Ms.No.1155, Home Department, dated 11.09.2008,premature release of life convict prisoners who have completed 7years of imprisonment, was ordered subject to certain conditions andsince the detenues herein had not completed the said period, theirnames have not been considered for premature release as on15.09.2008. Therefore, the Respondent prayed for dismissal of the Habeas Corpus Petition.
Heard the submissions of Mr.K.P.Chandrasekaran, learnedcounsel appearing for the petitioner and Mr.Babu Muthumeeran, learnedAdditional Public Prosecutor.
The Hon’ble Supreme Court of India in the judgment reportedin 2008(10) Scale page 669 - Swamy Shraddananda v. State of Karnataka : (2008) 13 SCC 767, at page 797, has considered thedefinition of life as defined under Section 45 of the Indian PenalCode and earlier decisions and held as follows:- “At this stage, it will be useful to take a very brief lookat the provisions with regard to sentencing andcomputation, remission, etc. of sentences. Section 45 ofthe Penal Code defines “life” to mean the life of the humanbeing, unless the contrary appears from the context. Section 53 enumerates punishments, the first of which is https://hcservices.ecourts.gov.in/hcservices/ death and the second, imprisonment for life. Sections 54and 55 give to the appropriate Government the power ofcommutation of the sentence of death and the sentence ofimprisonment for life respectively. Section 55-A defines“appropriate Government”.
Section 57 provides that incalculating fractions of terms of punishment, imprisonmentfor life shall be reckoned as equivalent to imprisonmentfor twenty years. It is now conclusively settled by acatena of decisions that the punishment of imprisonment forlife handed down by the Court means a sentence ofimprisonment for the convict for the rest of his life. [Seethe 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. Stateof Punjab(1983) 2 SCC 454; Ashok Kumar alias Golu vs. Unionof 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. Stateof Kerala, (2007) 8 SCC 312).It is equally well settled that Section 57 of the PenalCode does not in any way limit the punishment ofimprisonment for life to a term of twenty years. Section 57is only for calculating fractions of terms of punishmentand provides that imprisonment for life shall be reckonedas equivalent to imprisonment for twenty years. (See GopalVinayak Godse vs. State of Maharashtra & others, (1961) 3SCR 440 and Ashok Kumar alias Golu vs. Union of India,(1991) 3 SCC 498. The object and purpose of Section 57will 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 decisionin Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296 :2001 SCC (Cri) 1095, there is a useful discussion on thelegality of remission in the case of life convicts. Thejudgment in Shri Bhagwan, in SCC para 22, refers to andquotes from the earlier decision in State of M.P. vs.
RatanSingh (1976) 3 SCC 470 : 1976 SCC (Cri) 428, which in turnquotes 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 herethe extract from Ratan Singh: https://hcservices.ecourts.gov.in/hcservices/ ” 4. As regards the first point, namely, that the prisonercould be released automatically on the expiry of 20 yearsunder the Punjab Jail Manual or the Rules framed under the Prisoners Act, the matter is no longer res integra andstands concluded by a decision of this Court in GopalVinayak Godse v. State of Maharashtra, (1961) 3 SCR 440where the Court, following a decision of the Privy Counselin Pandit Kishori Lal v. King Emperor, AIR 1954 PC 64observed as follows: “ Under that section a person transported for life or anyother terms before the enactment of the said section wouldbe treated as a person sentenced to rigorous imprisonmentfor life or for the said term.
If so the next question is whether there is any provisionof law whereunder a sentence for life imprisonment, withoutany formal remission by appropriate Government, can beautomatically treated as one for a definite period. No suchprovision is found in the Penal Code, Code of CriminalProcedure or the Prisons Act. 9. The Hon'ble Supreme Court further observed that“But the Prisons Act does not confer on any authority apower to commute or remit sentences; it provides only forthe regulation of prisons and for the treatment ofprisoners confined therein. Section 59 of the Prisons Actconfers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, therules made under the Act should be construed within thescope of the ambit of the Act. … Under the said rules, theorder of an appropriate Government under Section 401,Criminal Procedure Code, (old Code) is a prerequisite for arelease.
No other rule has been brought to our notice whichconfers an indefeasible right on a prisoner sentenced totransportation for life to an unconditional release on theexpiry of a particular term including remissions. The rulesunder the Prisons Act do not substitute a lesser sentencefor a sentence of transportation for life. The question of remission is exclusively within theprovince of the appropriate Government; and in this case itis admitted that, though the appropriate Government madecertain 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 yetacquired any right to release.’It is, therefore, manifest from the decision of this Courtthat the Rules framed under the Prisons Act or under the https://hcservices.ecourts.gov.in/hcservices/ Jail Manual do not affect the total period which theprisoner has to suffer but merely amount to administrativeinstructions regarding the various remissions to be givento the prisoner from time to time in accordance with therules.
This Court further pointed out that the question ofremission of the entire sentence or a part of it lieswithin the exclusive domain of the appropriate Governmentunder Section 401 of the Code of Criminal Procedure andneither Section 57 of the Penal Code nor any Rules or localActs can stultify the effect of the sentence of lifeimprisonment given by the court under the Penal Code. Inother words, this Court has clearly held that a sentencefor life would ensure till the lifetime of the accused asit is not possible to fix a particular period theprisoner’s death and remissions given under the Rules couldnot be regarded as a substitute for a sentence oftransportation for life.” Further, in para 23, the judgment in Shri Bhagwan (citedsupra) observed as follows: “ In Maru Ram v. Union of India, (1981) 1 SCC 107, aConstitution Bench of this Court reiterated the aforesaidposition and observed that the inevitable conclusion isthat since in Section 433-A we deal only with lifesentences, remissions lead nowhere and cannot entitle aprisoner to release.
Further, in Laxman Naskar(LifeConvict) vs. State of W.B.& Anr., (2000) 7 SCC 626, afterreferring to the decision of Gopal Vinayak Godse vs. Stateof Maharashtra, (1961) 3 SCR 440, the Court reiterated thatsentence for ‘imprisonment for life’ ordinarily meansimprisonment for the whole of the remaining period of theconvicted person’s natural life; that a convict undergoingsuch sentence may earn remissions of his part of sentenceunder the Prison Rules but such remissions in the absenceof an order of an appropriate Government remitting theentire balance of his sentence under this section does notentitle the convict to be released automatically before thefull life term if served. It was observed that though underthe relevant Rules a sentence for imprisonment for life isequated with the definite period of 20 years, there is noindefeasible right of such prisoner to be unconditionallyreleased on the expiry of such particular term, includingremissions and that is only for the purpose of working outthe remissions that the said sentence is equated withdefinite period and not for any other purpose.”
In the light of the ratio laid down by the Hon’ble SupremeCourt of India in the cited decisions, a convict is not entitled tobe released automatically before the full life term and the question https://hcservices.ecourts.gov.in/hcservices/ of remission of the entire sentence or a part of it, lies within theexclusive domain of the appropriate Government under Section 432 ofCr.P.C. Hence, the detenues/convicts cannot claim as a matter ofright that they are entitled to be considered for remission unlessand until they come within the ambit of the Government Orders passedin this regard.
The learned counsel appearing for the petitioner by way ofalternate relief prayed for set off under Section 428 of Cr.P.C., inrespect of the period of detention already undergone by thedetenues/convicts during the course of investigation and trial.
This Court in the judgment reported in (2006) I L.W. (Cri.)page 424 – M.Ravi vs. The State of Tamil Nadu & another, hasfollowed the dictum laid down in the judgment of the Hon’ble SupremeCourt of India reported in AIR 1985 SC 108 – Bhagirath vs. DelhiAdministration and held that the period of detention undergone bythe accused as under trial prisoners shall be set off against thesentence of life imprisonment imposed upon them, subject to theprovision contained in Section 433A of Cr.P.C. and provided thatorders have been passed by the appropriate authority under Section432 or Section 433 of the Cr.P.C.
Hence, the convicts/ detenues herein are not entitled toset off under Section 428 of Cr.P.C. unless the appropriate authorityeither remits the sentence under Section 432 or commuting thesentence under Section 433 of Cr.P.C. and subject to Section 433-Aof Cr.P.C. Therefore, this Habeas Corpus Petition fails andaccordingly, dismissed. gr. Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo1.The Public Prosecutor, High Court, Chennai-104.2.The Inspector of Police, P-3, Vyasarpadi Police Station, Chennai.3. The Superintendent of Central Prison, Bangalore,4. The Superintendent of Central Prison, Vellore.5. The Superintendent of Central Prison, Cuddalore+ 2 cc to M/s. Chandrasekar, SR.56359. H.C.P.NO.1380 OF 2008KSK(CO)Eu 30.10.2009.
Questions this judgment answers
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Indian Penal Code, 1860 — ss. 45, 57, 65, 116, 119, 129, 302, 511; Code of Criminal Procedure, 1973 — ss. 401, 428, 433, 433A.
Which court decided this case, and when?
Madras High Court, on 22 Oct 2009. The bench was PRABHA SRIDEVAN, M SATHYANARAYANANHABEAS CORPUS.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.