RAJAN versus THE HOME SECRETARY, HOME DEPARTMENT OF TAMIL NADU AND ORS. on 25 April 2019

[2019] 6 S.C.R. 1035

RAJAN

v.

THE HOME SECRETARY,HOME DEPARTMENT OF TAMIL NADU AND ORS.

(Writ Petition (Criminal) No. 321 of 2018)

APRIL 25, 2019

[A. M. KHANWILKAR AND AJAY RASTOGI, JJ.]

Sentence/Sentencing:

Remission of sentence – Petitioner was sentenced to 7 yearsRI for offence punishable u/s. 395 IPC and for 5 years imprisonmentfor offences punishable u/s. 3/25(1A) of Arms Act – Further he wassentenced to life sentence for the offences punishable u/ss. 307IPC (4 counts) and 302 IPC (3 counts) and u/s. 27(3) of Arms Act –Petitioner’s representation for premature release moved in the year2010 was rejected – Thereafter another representation was movedin the year 2018 for premature release – Getting no response to therepresentation, he filed present writ petition – Held: Section 27(3)of Arms Act, having been declared ultra vires and unconstitutional,conviction and sentence thereunder cannot be reckoned in law forconsidering the representation – Representation for remission ofsentences awarded for the offences punishable u/s.395 IPC and u/ss. 3/25 (1A) also cannot be considered as the petitioner has alreadyundergone the sentence period – Representation has to be consideredonly in respect of sentence of life imprisonment concerning offencespunishable u/ss. 302 and 307 IPC – The Competent Authority isdirected to process the representation of the petitioner – Code ofCriminal Procedure, 1973 – s. 432 and 433.

Remission of sentence – Held: Grant or non-grant of remissionis prerogative to be exercised by the Competent Authority in exerciseof powers conferred u/ss. 432 and 433 of Cr.P.C. – It is not for theCourt to supplant that procedure – Code of Criminal Procedure,1973 – ss. 432 and 433.

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1036SUPREME COURT REPORTS

ADisposing of the petition, the Court

HELD: 1. Section 27(3) of the Arms Act having beendeclared ultra vires in terms of the judgment of Supreme Court in*State of Punjab the conviction and sentence awarded to thepetitioner in relation to the said offence cannot be reckoned inBlaw. Even so, the petitioner is faced with the conviction andsentence awarded for other serious offences under Section 395IPC for 7 years’ rigorous imprisonment, as also under Section 3read with Sections 25(1A) and 27(3) of the Arms Act withsentence of rigorous imprisonment for 5 years for the saidoffences. However, in view of the exposition of the ConstitutionCBench in **Muthuramalingam case, the sentences in respect ofoffences under Section 395 IPC and Section 3/25(1A) of the ArmsAct also cannot be reckoned for considering the proposal forpremature release of the petitioner, for, he has already undergonethe sentence periods awarded for the said offences which wereDto run concurrently. [Para 10][1044-D-F]

**Muthuramalingam and Ors. v. State represented byInspector of Police (2016) 8 SCC 313 : [2016] 5 SCR30 – followed.

*State of Punjab v. Dalbir Singh (2012) 3 SCC 346 :E[2012] 4 SCR 608 – relied on.

2. Remission or commutation granted by the competentauthority for any one of the offences does not ipso facto result inrelease of the prisoners for other offences for which he has beenconvicted and sentenced at one trial. [Para 12][1047-A]F

3. In the present case, no doubt the petitioner has beenconvicted and sentenced for offences punishable under the ArmsAct as a result of which the requirement of “consultation” mayhave triggered. However, the conviction and sentence inreference to the offence under Section 27(3) of the Arms Act,Ghaving been declared ultra vires and unconstitutional; and thesentence awarded to the petitioner in reference to offence underSection 3 read with Section 25(1A) of the Arms Act having alreadybeen completed by the petitioner as it was to run concurrentlywith life imprisonment, even these offences cannot be reckoned H

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for considering the representation made by the petitioner.Resultantly, there would be no need to consult the CentralGovernment and, for the same reason, the presence of CentralGovernment in this petition is not essential. The representationof the petitioner will have to be considered only in reference tothe sentence of life imprisonment concerning offences underSections 302 and 307 of IPC, respectively. [Paras 13 and 14][1047-C-E; 1048-D]

4. The petitioner has been convicted on 3 counts for offenceunder Section 302 IPC and on 4 counts for offence under Section307 IPC, and in relation to which he has been given lifeimprisonment on each count. In that view of the matter, keepingin mind the exposition in **Muthuramalingam and *Sriharancases, petitioner may succeed in being released prematurely onlyif the competent authority passes an order of remissionconcerning all the seven life sentences awarded to him on eachcount. But that would be a matter to be considered by thecompetent authority. [Para 15][1048-D-F]

*Union of India v. V. Sriharan alias Murugan and Ors.

(2016) 7 SCC 1 : [2015] 14 SCR 613 – referred to.

5. It is well settled that grant or non-grant of remission isthe prerogative to be exercised by the competent authority andit is not for the Court to supplant that procedure. Indeed, grantof premature release is not a matter of privilege but is the powercoupled with duty conferred on the appropriate Government interms of Sections 432 and 433 of Cr.P.C., to be exercised by thecompetent authority after taking into account all the relevantfactors, such as it would not undermine the nature of crimecommitted and the impact of the remission that may be theconcern of the society as well as the concern of the StateGovernment. The question as to whether the petitioner shouldbe granted remission and premature release in respect of all thecounts at one stroke, is a matter to be considered by theappropriate Government in exercise of power under Sections 432and 433 of Cr.P.C. We do not wish to dilate on that aspect. [Paras16 and 17][1048-G-H; 1049-A-B; D-F]

State of Tamil Nadu and Ors. v. P. Veera Bhaarathi2019 (2) SCALE 225 – distinguished.

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A6. The respondents cannot be directed to release thepetitioner forthwith or to direct the respondents to remit theremaining sentence and release the petitioner. The petitioner, atbest, is entitled to the relief of having directions issued to therespondents to consider his representation dated 5[th] February,2018, expeditiously, on its own merits and in accordance withBlaw. The fact that the petitioner’s request for premature releasewas already considered once and rejected by the Advisory Boardof the State Government ought not to come in the way of thepetitioner for consideration of his fresh representation made on5[th] February, 2018. With the passage of time, however, theCsituation may have undergone a change and, particularly, becausenow the claim of the petitioner for premature release will have tobe considered only in reference to the sentence of lifeimprisonment awarded to him for offences under Section 302 (3counts) and Section 307 (4 counts) of IPC, respectively.[Para 18][1049-E-G; 1050-D-E]D

7. The stipulation in the order dated 1[st] February, 2018,issued by the Home Department would not make the petitionerineligible because he was also tried for offence of dacoitypunishable under Section 395 IPC. Considering the fact that thesentence awarded for the said offence has already been completedEby the petitioner and thus the remission sought by the petitioneris presently limited to offences punishable under Sections 302and 307 IPC respectively, for which he has been sentenced tolife imprisonment on more than one count. [Para 19][1050-E-G]

8. The competent authority is directed to process theFrepresentation made by the petitioner dated 5[th] February, 2018(Annexure-P6) and take it to its logical end expeditiously andpreferably within four months, in accordance with law, withoutbeing influenced by the rejection of the earlier representationvide order dated 14[th] June, 2010, by the State Government.GConsultation with the Central Government would not benecessary and the State Government, being the appropriateGovernment, must exercise power conferred upon it, in terms ofSections 432 and 433 of Cr.P.C. All questions to be consideredby the appropriate Government are left open. [Para 20][1050-G-H; 1051-A-B]H

RAJAN v. HOME SECRETARY, HOME DEPARTMENT OFTAMIL NADU AND ORS.

Case Law Reference[2012] 4 SCR 608distinguishedPara 6[2016] 5 SCR 30followedPara 10[2015] 14 SCR 613referred toPara 132019 (2) SCALE 225distinguishedPara 17

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 321 of 2018.

Under Article 32 of the Constitution of India.

Rakesh Dwivedi, Sr. Adv., K. Paari Vendhan, Siddhartha Iyer,Eklavya, Ms. Sansriti Pathak, Prabu Ramasubramanian, Advs. for thePetitioner.

M. Yogesh Kanna, Adv. for the Respondents.

The Judgment of the Court was delivered by

A. M. KHANWILKAR, J.

1. This writ petition under Article 32 of the Constitution of Indiahas been preferred inter alia seeking premature release of the petitioneras he has already undergone over 30 years of actual imprisonment. Withremission, the total sentence undergone is above 36 years.

2. The petitioner claims that he is a refugee from Sri Lanka. Hewas named as an accused in relation to an offence committed on 27[th]July, 1988, registered as FIR in Crime No.104/88 at Thanipadi PoliceStation. The prosecution case was that the petitioner, along with co-accused, committed dacoity at the house of one Pitchaikara Grounderand while he was trying to escape in a Maruti Van, the police and commonpublic erected a barricade, upon which the petitioner fired from a machinegun killing three persons and injuring four. The petitioner was chargedfor offences punishable under Sections 120(B), 395, 353, 506(2), 302(3counts), 307 (4 counts) of IPC, Section 302 r/w 419 of IPC, Section 307r/w 149 of IPC and Section 3 read with Sections 25(1A), 27(3) and 28of the Indian Arms Act. After a full-fledged trial by the District andSessions Judge, Thiruvannnamalai, for the aforementioned offences, videjudgment and order dated 25[th] January, 2007, the petitioner came to be

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1040SUPREME COURT REPORTS

Aconvicted for offences punishable under Sections 395, 302 (3 counts),307 (4 counts) of IPC and Section 3 read with Sections 25(1A) and27(3) of the Indian Arms Act and sentenced to undergo 7 years’ rigorousimprisonment for offence punishable under Section 395 of IPC, lifeimprisonment for offence punishable under Section 307 (4 counts) ofIPC for each count as also awarded capital sentence for offenceBpunishable under Section 302 (3 counts) and further 5 years’ imprisonmentfor offences punishable under Section 3 read with Section 25 (1A) ofthe Indian Arms Act. The sentences awarded to the petitioner weredirected to run concurrently.

3. The petitioner had assailed the said decision before the HighCCourt of Judicature at Madras, by way of Criminal Appeal No. 653 of2007, which was heard along with Death Reference Case No.3/2007.The High Court, by its judgment and order dated 26[th] February, 2008,affirmed the judgment and order of conviction and sentence awarded bythe Trial Court for the concerned offences but converted the deathDsentence into life imprisonment on each of the 3 counts. The High Courtjudgment has attained finality.

4. Since the petitioner had undergone actual sentence for asufficiently long period of time, he applied for premature release. Thatrepresentation was considered by the Advisory Board held on 20[th]EJanuary, 2010, but came to be rejected for the reasons recorded in theopinion of the Advisory Board. The same was duly considered by thecompetent authority of the State Government and the proposal forpremature release came to be rejected vide order dated 14[th] June, 2010,bearing GO(D) 6033. It appears that the petitioner, after a gap of around8 years, once again made another representation on 5[th] February, 2018,Ffor his premature release, which reads thus:

“Annexure P/6Date:05.02.2018

MOST URGENT

To

G1. The Home Secretary,Home Department of Tamil Nadu,Secretariat, St. George Fort,Chennai.

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RAJAN v. HOME SECRETARY, HOME DEPARTMENT OFTAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]

2. The Additional Director General of Policeand The Inspector General of Prisons,Wannels Road, Egmore,Chennai-600008.

3. The Deputy Inspector General of Prisons,Vellore Range, Vellore.4. The Superintendent of Prison,Vellore Central Prison,Vellore.FromRajan,Convict No. ,Presently lodged atVellore Central Prison,Vellore.

Sir,

Sub: Re. the inclusion of my name in the list called for the prematurerelease of life convict prisoners on the occasion of Birth Centenaryof Bharat Ratna, Puratchi Thalaivar Dr.M.G. Ramachandran, asper 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/PS1/2018-1, 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 30years. I was convicted and sentenced by the Trial Court on25.01.2007 and awarded Death Sentence under section 302 IPCand 27 (3) of Arms Act. Subsequently on 26.02.2008, my sentencewas commuted to Life imprisonment but upholding the convictionrendered by the Trial Court.

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1042SUPREME COURT REPORTS

AIt is pertinent to note that the Hon’ble Supreme Court in State ofPunjab Vs. Dalbir Singh – 2012 (3) SCC 346 struck down Section27 (3) of Arms Act as unconstitutional and declared void. Hencemy conviction now survive alone on Section 302 IPC.

Since I have been under incarceration for about 30 years, myBname may be included in the list called for by the IG Prison forpremature release. Please find the enclosed the Supreme Courtjudgment for your kind perusal.

Thanking You,

Yours Faithfully, Rajan

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Encl.

1. High Court judgment dt. 26.02.2008.2. 2012 (3) SCC 346"

D5. As the petitioner did not get any response to the saidrepresentation, he filed the present writ petition for the following reliefs:

“PRAYER

WHEREFORE, the petitioner most humbly pray that this Hon’bleCourt be pleased to:E

a) Pass an appropriate Writ or order directing the release of thepetitioner from prison forthwith, and/or b) Declare that the sentence of life imprisonment imposed uponthe petitioner under section 27(3) of the Arms Act is null and void;and/or, F

c) Alternatively direct the respondents to remit the remainingsentence and release the petitioner by considering hisrepresentation dated 05.02.2018 while this present Petition ispending before this Hon’ble Court.

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d) Pass any such other order or Orders as may be deemed fit andproper.”

6. In support of the aforesaid reliefs, the petitioner has relied uponthe recent unreported decision of this Court in Writ Petition (Criminal)No.61 of 2016, in the case of Ram Sewak Vs. The State of UttarPradesh, decided on 11[th] October, 2018, to contend that he has alreadyundergone 30 years of actual imprisonment and with remission, the totalsentence undergone by him would be more than 36 years, which is muchmore than the period undergone by the petitioner in the unreported decision(wherein it was only 29 years of imprisonment). Additionally, it issubmitted that this Court, in the case of State of Punjab Vs. DalbirSingh,[1] has already struck down Section 27(3) of the Indian Arms Actas unconstitutional, and as a consequence thereof, the conviction andsentence awarded to the petitioner for the said offence cannot bereckoned any more. It is the case of the petitioner that he is presentlyundergoing sentence of life imprisonment only in respect of offencespunishable under Sections 302 and 307 of IPC which were tried at onetrial. As regards the conviction and sentence in relation to the remainingoffences under Section 3 read with Section 25(1A) of the Arms Act andSection 395 of IPC, the petitioner has already undergone the same longback as the sentences for those offences were directed to runconcurrently.

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

8. This writ petition has been resisted by the respondents. Anaffidavit of Dr. Niranjan Mardi, Additional Chief Secretary toGovernment, Home Department, Secretariat, Chennai, has been filed tooppose the present writ petition. According to the respondents, thepetitioner was involved in a very serious offence and has been convictedand sentenced to undergo life imprisonment on multiple counts. The caseof the petitioner was duly considered by the Advisory Board on 20[th]January, 2010 and also by the State Government, which eventuallyrejected the proposal vide order dated 30[th] June, 2010. A preliminaryobjection has been taken by the State that the Central Government is anecessary party, as the request for premature release is in relation tooffences under the Arms Act. That request will have to be decided by A

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Athe State only in consultation with the Central Government. Therespondents have then adverted to the recent circulars issued by theState on 1[st] February, 2018 and 3[rd] May, 2018 framing guidelines withregard to the premature release of prisoners. According to therespondents, the petitioner is not eligible for premature release. It is alsoasserted that the petitioner had indulged in serious offences of dacoityBand firing indiscriminately by use of AK-47 machine gun and hence, noindulgence should be shown to the petitioner because he has beenconvicted 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 counselCappearing for the petitioner and Mr. M. Yogesh Kanna, learned counselfor the respondents.

10. Reverting to the prayer clause (b), we have no difficulty inaccepting the stand of the petitioner that Section 27(3) of the Arms Acthaving been declared ultra vires in terms of the judgment of this CourtDin State of Punjab (supra), the conviction and sentence awarded to thepetitioner in relation to the said offence cannot be reckoned in law.Even so, the petitioner is faced with the conviction and sentence awardedfor other serious offences under Section 395 for 7 years’ rigorousimprisonment, as also under Section 3 read with Sections 25(1A) andE27(3) of the Indian Arms Act with sentence of rigorous imprisonmentfor 5 years for the said offences. However, in view of the exposition ofthe Constitution Bench in Muthuramalingam and Ors. Vs. Staterepresented by Inspector of Police[2], we must immediately accept thestand of the petitioner that the sentences in respect of offences underSection 395 IPC and Section 3/25(1A) of the Arms Act also cannot beFreckoned for considering the proposal for premature release of thepetitioner. For, he has already undergone the sentence periods awardedfor the said offences which were to run concurrently.

11. Indeed, the counsel for the respondents made a fervent effortto persuade us that the said sentences will also have to be taken intoGaccount for considering the proposal for premature release and in thatcase, consultation with the Central Government would be inevitable. Weare not impressed by this submission. For, on a plain reading of the orderpassed by the Trial Court along with the modified sentence order passed 2(2016) 8 SCC 313H

by the High Court, it is indisputable that the sentences for offencespunishable under Section 395 IPC and Section 3 read with Section 25(1A)of the Arms Act, were to run concurrently. The petitioner has alreadyundergone the sentence awarded in relation to the said offences on expiryof 7 years and 5 years, respectively. This position is reinforced from theexposition of the Constitution Bench in Muthuramalingam (supra). Itmay be useful to reproduce paragraph 23 and the conclusion in paragraphs34 & 35 of the said decision, which read thus:

“23. Parliament, it manifests from the provisions of Section 427(2)CrPC, was fully cognizant of the anomaly that would arise if aprisoner condemned to undergo life imprisonment is directed todo so twice over. It has, therefore, carved out an exception to thegeneral rule to clearly recognise that in the case of life sentencesfor two distinct offences separately tried and held proved thesentences cannot be directed to run consecutively. The provisionsof Section 427(2) CrPC apart, in Ranjit Singh case[3], this Courthas in terms held that since life sentence implies imprisonment forthe remainder of the life of the convict, consecutive life sentencescannot be awarded as humans have only one life. That logic, inour view, must extend to Section 31 CrPC also no matter Section31 does not in terms make a provision analogous to Section 427(2)of the Code. The provision must, in our opinion, be sointerpreted as to prevent any anomaly or irrationality. Sointerpreted Section 31(1) CrPC must mean that sentencesawarded by the court for several offences committed bythe prisoner shall run consecutively (unless the courtdirects otherwise) except where such sentences includeimprisonment for life which can and must run concurrently.We are also inclined to hold that if more than one lifesentences are awarded to the prisoner, the same would getsuperimposed over each other. This will imply that in casethe prisoner is granted the benefit of any remission orcommutation qua one such sentence, the benefit of suchremission would not ipso facto extend to the other.

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34. In conclusion our answer to the question is in the negative.We hold that while multiple sentences for imprisonment for lifecan be awarded for multiple murders or other offences punishablewith imprisonment for life, the life sentences so awarded cannotbe directed to run consecutively. Such sentences would,however, be superimposed over each other so that anyremission or commutation granted by the competentauthority in one does not ipso facto result in remission ofthe sentence awarded to the prisoner for the other.

35. We may, while parting, deal with yet another dimension of thiscase argued before us, namely, whether the court can direct lifesentence and term sentences to run consecutively. That aspectwas argued keeping in view the fact that the appellants havebeen sentenced to imprisonment for different terms apartfrom being awarded imprisonment for life. The trial court’sdirection affirmed by the High Court is that the said termsentences shall run consecutively. It was contended on behalfof the appellants that even this part of the direction is not legallysound, for once the prisoner is sentenced to undergo imprisonmentfor life, the term sentence awarded to him must run concurrently.We do not, however, think so. The power of the court to direct theorder in which sentences will run is unquestionable in view of thelanguage employed in Section 31 CrPC. The court can,therefore, legitimately direct that the prisoner shall firstundergo the term sentence before the commencement ofhis life sentence. Such a direction shall be perfectlylegitimate and in tune with Section 31 CrPC. The conversehowever may not be true for if the court directs the lifesentence to start first it would necessarily imply that theterm sentence would run concurrently. That is because oncethe prisoner spends his life in jail, there is no question ofhis undergoing any further sentence. Whether or not thedirection of the court below calls for any modification or alterationis a matter with which we are not concerned. The regular Benchhearing the appeals would be free to deal with that aspect of thematter having regard to what we have said in the foregoingparagraphs.”

(emphasis supplied)

12. This decision is also an authority on the proposition that remissionor commutation granted by the competent authority for any one of theoffences does not ipso facto result in release of the prisoners for otheroffences for which he has been convicted and sentenced at one trial.

13. The Constitution Bench in the case of Union of India Vs. V.Sriharan alias Murugan and Ors.[4], went on to examine sevenquestions. Emphasis was placed by the counsel for the petitioner on theexposition in reference to question No.(vii) regarding the sweep ofexpression “consultation”. In the present case, no doubt the petitionerhas been convicted and sentenced for offences punishable under theArms Act as a result of which the requirement of “consultation” mayhave triggered. However, the conviction and sentence in reference tothe offence under Section 27(3) of the Arms Act, having been declaredultra vires and unconstitutional; and the sentence awarded to thepetitioner in reference to offence under Section 3 read with Section25(1A) of the Arms Act having already been completed by the petitioneras it was to run concurrently with life imprisonment, even these offencescannot be reckoned for considering the representation made by thepetitioner. Resultantly, there would be no need to consult the CentralGovernment and, for the same reason, the presence of CentralGovernment in this petition is not essential.

14. We may usefully advert to the dictum in a separate judgmentby Justice Uday U. Lalit, albeit concurring with the leading opinion byJustice Kalifulla, on issue No. (vii), as noted in paragraph 215, as follows:

“215. In the instant case as per the order passed by this Court inState v. Nalini[5], the respondent convicts were acquitted of theoffences punishable under Sections 3(3), 3(4) and 5 of the TADAAct. Their conviction under various Central laws like theExplosive Substances Act, the Passport Act, the ForeignersAct and the Wireless Telegraphy Act were all for lesserterms which sentences, as on the date, stand undergone.Consequently, there is no reason or occasion to seek anyremission in or commutation of sentences on those counts.The only sentence remaining is one under Section 302 IPCwhich is life imprisonment. It was submitted by Mr. Rakesh 4 (2016) 7 SCC 1

5(1999) 5 SCC 253

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ADwivedi, learned Senior Advocate that Section 302 IPC falls inChapter XVI of IPC relating to offences affecting the humanbody. In his submission, Sections 299 to 377 IPC involve mattersdirectly related to “public order” which are covered by List IIEntry 1. It being in the exclusive executive domain of the StateGovernment, the State Government would be the appropriateBGovernment. It was further submitted that assuming Section 302read with Section 120-B IPC are relatable to Entry 1 of List IIIbeing part of the Indian Penal Code itself, then the issue mayarise whether the Central Government or the State Governmentshall be the appropriate Government and resort has to be taken toCprovisions of Articles 73 and 162 of the Constitution to resolve theissue.”

It is, thus, amply clear that the representation of the petitioner willhave to be considered only in reference to the sentence of lifeimprisonment concerning offences under Sections 302 and 307 of IPC,Drespectively.

15. In the present case, the petitioner has been convicted on 3counts for offence under Section 302 IPC and on 4 counts for offenceunder Section 307 IPC, and in relation to which he has been given lifeimprisonment on each count. In that view of the matter, keeping in mindEthe exposition in Muthuramalingam (supra) and Sriharan (supra),the petitioner may succeed in being released prematurely only if thecompetent authority passes an order of remission concerning all the sevenlife sentences awarded to him on each count. But that would be a matterto be considered by the competent authority.

F16. The petitioner would, however, rely on the unreported decisionof this Court in Ram Sewak (supra), to contend that this Court maydirect the authorities to release the petitioner forthwith and that there isno point in directing further consideration by the State as the petitionerhad already undergone over 30 years of sentence and with remission,over 36 years. The order passed by this Court in Ram Sewak (supra),Gis obviously in the facts of that case. As a matter of fact, it is well settledby now that grant or non-grant of remission is the prerogative to beexercised by the competent authority and it is not for the Court to supplantthat procedure. Indeed, grant of premature release is not a matter ofprivilege but is the power coupled with duty conferred on the appropriate H

Government in terms of Sections 432 and 433 of Cr.P.C., to be exercisedby the competent authority after taking into account all the relevantfactors, such as it would not undermine the nature of crime committedand the impact of the remission that may be the concern of the societyas well as the concern of the State Government.

17. The petitioner would then rely on a three-Judge Bench decisionof this Court in State of Tamil Nadu and Ors. Vs. P. Veera Bhaarathi[6].

Notably, in this case, the respondent was convicted for offence underSection 302 of IPC and sentenced to rigorous imprisonment for life andalso convicted under Sections 376 and 396 of IPC and sentenced torigorous imprisonment for 7 years. Since both the sentences were to runconcurrently, the respondent therein had claimed that he was entitled tobe released prematurely having already undergone the actual sentencefor over 16 years by invoking Rule 341 of the Tamil Nadu Prison Rules,1983. In the present case, however, the petitioner has been convictedfor offence under Section 302 (3 counts) and Section 307 (4 counts) andhas been sentenced to life imprisonment on each count. The question asto whether the petitioner should be granted remission and prematurerelease in respect of all the counts at one stroke, is a matter to beconsidered by the appropriate Government in exercise of power underSections 432 and 433 of Cr.P.C. We do not wish to dilate on that aspect.

18. Thus understood, we cannot countenance the relief claimedby the petitioner to direct the respondents to release the petitionerforthwith or to direct the respondents to remit the remaining sentenceand release the petitioner. The petitioner, at best, is entitled to the reliefof having directions issued to the respondents to consider hisrepresentation dated 5[th] February, 2018, expeditiously, on its own meritsand in accordance with law. We may not be understood to have expressedany opinion either way on the merits of the claim of the petitioner. Thefact that the petitioner’s request for premature release was alreadyconsidered once and rejected by the Advisory Board of the StateGovernment, in our opinion, ought not to come in the way of the petitionerfor consideration of his fresh representation made on 5[th] February, 2018.We say so because the opinion of the Advisory Board merely refers tothe negative recommendation of the Probation Officer, Madurai and theDistrict Collector, Madurai. The additional reason stated by the StateGovernment seems to be as follows:

62019 (2) SCALE 225 (Criminal Appeal No.120 of 2019 decided on 22[nd] January, 2019)

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A“4) The proceedings of the Advisory Board held on 20.01.2010 isas follows:-

i. The case is heard and examined the relevant records. Theaccused is a Srilankan National and lodged at Special Campat Chengalpet before the commission of this grave offence.

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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’.

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5) The Government after careful examination accept therecommendation of the Advisory Board, Vellore and the prematurerelease of the life convict No.23736, Rajan S/o Robin, confined inCentral Prison, Vellore is hereby rejected.”

With the passage of time, however, the situation may haveDundergone a change and, particularly, because now the claim ofthe petitioner for premature release will have to be consideredonly in reference to the sentence of life imprisonment awarded tohim for offences under Section 302 (3 counts) and Section 307 (4counts) of IPC, respectively.

E19. The argument of the respondents that the stipulation in theorder dated 1[st] February, 2018, issued by the Home Department wouldmake the petitioner ineligible because he was also tried for offence ofdacoity punishable under Section 395, need not detain us, consideringthe fact that the sentence awarded for the said offence has alreadybeen completed by the petitioner and thus cannot be reckoned for theFpurposes of deciding the representation for remission of life sentenceand for premature release in reference to the offences punishable underSections 302 and 307, respectively. In other words, the remission soughtby the petitioner is presently limited to offences punishable under Sections302 and 307 respectively, for which he has been sentenced to lifeGimprisonment on more than one count.

20. We, therefore, dispose of this petition with a direction to thecompetent authority to process the representation made by the petitionerdated 5[th] February, 2018 (Annexure-P6) and take it to its logical endexpeditiously and preferably within four months, in accordance with law, H

RAJAN v. HOME SECRETARY, HOME DEPARTMENT OFTAMIL NADU AND ORS. [A. M. KHANWILKAR, J.]

without being influenced by the rejection of the earlier representationvide order dated 14[th] June, 2010, by the State Government. We also holdthat consultation with the Central Government would not be necessaryand the State Government, being the appropriate Government, mustexercise power conferred upon it in terms of Sections 432 and 433 ofCr.P.C. All questions to be considered by the appropriate Governmentare left open.

21. The writ petition is disposed of accordingly. All pendingapplications are also disposed of.

Kalpana K. Tripathy

Petition disposed of.

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