Wednesday 7 July 2021

Whether life convicts are entitled to get benefit of set off U/S 428 CRPC of pre-conviction detention?

 Section 428 of the Code of Criminal Procedure, 1973, has been

considered by the Constitutional Bench of the Apex Court in Bhagirath & Another –Vs. Delhi Administration (1985 (2) SCC 580), wherein the following statement of law has been made.

“8. To say that a sentence of life imprisonment imposed

upon an accused is a sentence for the term of his life does

offence neither to grammar nor to the common

understanding of the word 'term'. To say otherwise offend

not only against the language of the statute but against the

spirit of the law, that is to say, the object with which the

law was passed. A large number of cases in which the

accused suffer long under trial detentions are cases

punishable with imprisonment for life. Usually' those who

are liable to be sentenced to imprisonment for life are not

enlarged on bail. To deny the benefit of section 428 to them

is to withdraw the application of a benevolent provision

from a large majority of cases in which such benefit would

be needed and justified………..

13. We would like to add that we find it difficult to agree

 that the expressions

'imprisonment for life' and imprisonment for a term' are

used either in the Penal Code or in the Criminal Procedure

Code in contra-distinction with each other. 

14.4.Thus, in the light of the aforesaid pronouncements and taking note of the underlying object enshrined under Section 428 of the Code of Criminal  Procedure, 1973, we have no hesitation to hold that 'set off ' is permissible even for a life convict.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

W .A.No .6 67 of 2020 & CMP No.9331 of 2020

& HCP No.959 of 2020

W.A.No.667 of 2020

The Home Secretary (Prison-IV) Vs  A.Palaniswamy @ Palaniappan

CORAM :

 MR. JUSTICE M.M.SUNDRESH

AND

 MS. JUSTICE R.N.MANJULA

Delivered on : 05.07.2021

Author: M.M.SUNDRESH, J.

As the cases on hand deal with the same detenu with the interlinked

issues, they are appositely disposed of by a common judgment.

2.The detenu, who is a life convict was found guilty of the offences

punishable under Sections 302 and 392 IPC in S.C.No.80 of 2008 by the

Additional District and Sessions Judge (Fast Track Court No.I), Erode, on

10.11.2008 and accordingly, he was sentenced to undergo life imprisonment and

10 years rigorous imprisonment respectively.

3.The appeal filed by the convict, on contest, was dismissed in Criminal

Appeal No.107 of 2009 on 18.08.2009.

4.The Government Order was passed providing for premature release to

the life convict in G.O.Ms.No.64, Home(Prison-IV) Department, dated 01.02.2018

in commemoration of 100th Birthday of former Chief Minister of Tamil Nadu late

Dr.M.G.Ramachandran. The following is the operative portion of the said order.

“5 (II) The life convicts who have competed 10 years of

actual imprisonment as on 25.02.2018 and the life convicts

who are aged 60 years and above and who have completed

5 years of actual imprisonment on 25.02.2018 including

those who were originally sentenced to death by Trial

Court and modified to life sentence by the Appellate Court

(other than those whose convicts have been commuted),

may be considered for premature release subject to

satisfaction of the following conditions.”

5.The writ petitioner, who is the wife of the convict, made a

representation on 06.02.2018 seeking inclusion of her husband's name in the list

of prisoners eligible for premature release. As the said request was not considered,

the convict approached this Court seeking a writ of mandamus in W.P.No.3672

of 2018. The following is the order passed by the learned single Judge on

07.01.2019.

“3.The learned Additional Public Prosecutor on instructions

would submit that the representation will be considered by

the 2nd and 3rd respondents and a detailed report will be

prepared in accordance with GO.Ms.No.64 dated

01.02.2018 and the same will be placed before the 1st

respondent, who will consider the same and submit his

recommendation before His Excellency the Governor of

Tamil Nadu, if the petitioner is going to be considered for a

premature release.

4.This Court has carefully considered the submissions made

on either side and also the materials placed on record.

5. The wife of the petitioner has made a representation dated

06.02.2018. This representation shall be considered by the 2

nd and 3 rd respondents strictly in accordance with the

guidelines given in G.O.Ms.No.64 dated 01.02.2018 and a

report shall be placed before the 1st respondent within a

period of four weeks form the date of receipt of a copy of

this Order. On receipt of the report, the 1st respondent shall

take a decision within a period of eight weeks, thereafter.”

6.Upon consideration of the said representation, as directed by the

learned single Judge, the impugned Government Order was passed in G.O.(D)

No.658 Home (Prison-IV) Department dated 26.06.2019 rejecting the case of the

convict on the premise that he had completed only 9 years and 24 days of actual

imprisonment as on 25.02.2018 instead of mandatory requirement of 10 years

completion for eligibility. The requisite part of the order contained in the

Government Order referred above is reproduced hereunder.

“6. The Government have examined the request of Tmt.

Shanthi seeking premature release of her husband/Life

convict prisoner No.6961 Palaniswamy @ Palaniyappan

S/o.Andiappan, Confined in Central Prison, Salem with

relevant records. The life convict prisoner No.6961

Palaniswamy @ Palaniyappan S/o. Andiappan has

completed only 09 years and 24 days of actual

imprisonment as on 25.02.2018 since he has not

completed of actual imprisonment as on the crucial date

he is not eligible for premature release as per G.O (Ms)

No.64 Home (Pri-IV) Dept. Dated 01.02.2018.The

government, therefore, reject the request of Tmt. Shanthi

seeking premature release of her husband/life convict

prisoner NO.6961 Palaniswamy @ Palaniyappan S/o.

Andiappan, confined in Central Prison, Salem.”

7.The wife of the convict once again approached this Court by way of

Habeas Corpus Petition in H.C.P.No.2214 of 2019 seeking to set off the period of

incarceration during trial. On 15.11.2019 the said petition was disposed of as

recorded hereunder.

“3. Taking note of the above submission and the

instruction given by the Superintendent, Central Prison,

Coimbatore in No.13834/MK3/19 dated 01.11.2019, the

period of 349 days for which the convict has undergone

incarceration at the Central Prison, Coimbatore is directed

to be set off against the conviction rendered in Sessions

Case No.80/2008 on the file of the Additional District and

Sessions Judge, (F.T.C-1) Erode.

4.In view of the above, the Habeas Corpus Petition stands

disposed of.”


8.Placing reliance upon the order aforesaid recorded, yet another writ

petition in W.P.No.7559 of 2020 was filed challenging the Government Order in

G.O.(D) No.658 Home (Prison-IV) Department dated 26.06.2019 with a

consequential prayer to release the convict A. Palaniswamy @ Palaniyappan S/o.

Andiyappan (Convict Prisoner No- 6961) now confined in Central Prison, Salem

herein 3rd respondent. The learned single Judge, by an order dated 04.05.2020,

allowed the writ petition inter alia holding that in view of the order passed by the

Division Bench, the convict is entitled for premature release. While doing so, the

first appellant before us was directed to issue a Government Order to release the

convict. The relevant portion of the aforesaid order is hereunder.

“7. In such a view of the matter, this Court is of the view

that the impugned order dated 26.06.2019 in G.O. (D)

No.658 dated 26.06.2019 in rejecting the premature release

of the Petitioner is hereby set aside. The Petitioner is

certainly eligible for consideration for premature release as

per G.O. (Ms) No.64 Home (Prison-IV) Department dated

1.2.2018. Accordingly, the 1st Respondent is directed to

issue Government Order to release the Petitioner, within

two weeks from the date of receipt of copy of this Order.”

9.It is against this said order, W.A.No.667 of 2020 has been filed.

H.C.P.No.959 of 2020 has been filed by the son of the convict seeking to produce

the convict A.Palaniswamy @ Palaniyappan, S/o Andiyappan (Convict Prisoner

No.6961) before this Court, who is illegally detained by the third respondent.

10.When the present writ appeal i.e.,W.A.No.667 of 2020 came up for

hearing before the Honourable First Bench, certain issues were raised while

entertaining the appeal through the following paragraphs.

“2.The first question that we have posed to

ourselves is the maintainability of an intra court appeal in

such a matter where the respondent writ petitioner has been

convicted and is suffering imprisonment on account of the

conviction and sentence by a criminal Court, and is seeking

premature release under the scheme dated 01.02.2018.

This question is to be answered first keeping in view the

nature of the jurisdiction exercised by the learned single

Judge, namely, which was in a writ petition filed under

Article 226 of the Constitution of India. The prayer was to

quash an order as indicated above seeking benefit of a

general pardon by His Excellency, The Governor, in

exercise of the power under Article 161 of the Constitution

of India. Article 161 is extracted herein below:

“161. Power of Governor to grant pardons, etc,

and to suspend, remit or commute sentences in

certain cases The Governor of a State shall

have the power to grant pardons, reprieves,

respites or remissions of punishment or to

suspend, remit or commute the sentence of any

person convicted of any offence against any

law relating to a matter to which the executive

power of the State extends.”

3.This is, therefore, not a case pertaining to a

statutory claim of release in terms of Section 432 or 433A

of the Code of Criminal Procedure, 1973.

4.Mr.Emalias, learned Additional Advocate

General for the appellants / State, submits that the

proceedings before the learned single Judge cannot be

termed to be arising out of any criminal proceedings,

which, in this case, have already culminated with the

conviction of the respondent writ petitioner and who is

undergoing imprisonment. The writ petition was filed for a

premature release which is by invoking the constitutional

power of His Excellency The Governor and not an exercise

of power in any criminal proceeding.

5.He has invited the attention of the Court to the

judgment in the case of CIT vs. Ishwarlal Bhagwandas,

reported in AIR 1965 SC 1818 to point out the distinction

between a criminal and a civil proceeding. For this, he has

also relied on paragraphs 28 to 31 of the judgment in the

case of Ram Kishan Fauji vs. State of Haryana, reported in

(2017) 5 SCC 533, which has dealt with the aforesaid

proposition of law and are gainfully extracted herein


under:-

“28.The Court in Ishwarlal Bhagwandas case [CIT v.

Ishwarlal Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC

1818] referred to Article 133 of the Constitution and took

note of the submission that the jurisdiction exercised by

the High Court as regards the grant of certificate pertains

to judgment, decree or final order of a High Court in a

civil proceeding and that “civil proceeding” only means a

proceeding in the nature of or triable as a civil suit and a

petition for the issue of a high prerogative writ by the

High Court was not such a proceeding. Additionally, it

was urged that even if the proceeding for issue of a writ

under Article 226 of the Constitution may, in certain

cases, be treated as a civil proceeding, it cannot be so

treated when the party aggrieved seeks relief against the

levy of tax or revenue claimed to be due to the State. The

Court, delving into the nature of civil proceedings, noted

that:(AIR p.1821, para 8)

“8. … The expression “civil proceeding” is not

defined in the Constitution, nor in the General

Clauses Act. The expression in our judgment

covers all proceedings in which a party asserts the

existence of a civil right conferred by the civil law

or by statute, and claims relief for breach thereof.”

29.After so stating, the Court elucidated the nature of

criminal proceeding and, in that regard, ruled thus:


(Ishwarlal Bhagwandas case [CIT v. Ishwarlal

Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] ,

AIR p. 1821, para 8)

“8. … A criminal proceeding on the other hand is

ordinarily one in which if carried to its conclusion it

may result in the imposition of sentences such as

death, imprisonment, fine or forfeiture of property.

It also includes proceedings in which in the larger

interest of the State, orders to prevent apprehended

breach of the peace, orders to bind down persons

who are a danger to the maintenance of peace and

order, or orders aimed at preventing vagrancy are

contemplated to be passed.”

30.Explicating the concept further, the Court opined that:

(Ishwarlal Bhagwandas case [CIT v. Ishwarlal

Bhagwandas, (1966) 1 SCR 190 : AIR 1965 SC 1818] ,

AIR p. 1821, para 8)

“8. … The character of the proceeding, in our

judgment, depends not upon the nature of the

tribunal which is invested with authority to grant

relief, but upon the nature of the right violated

and the appropriate relief which may be claimed.”

It further held that a civil proceeding is, therefore, one in

which a person seeks to enforce by appropriate relief the

alleged infringement of his civil rights against another

person or the State, and which, if the claim is proved,

would result in the declaration, express or implied, of the

right claimed and relief such as payment of debt,

damages, compensation, delivery of specific property,

enforcement of personal rights, determination of status,

etc.

31.The aforesaid authority makes a clear

distinction between a civil proceeding and a criminal

proceeding. As far as criminal proceeding is concerned, it

clearly stipulates that a criminal proceeding is ordinarily

one which, if carried to its conclusion, may result in

imposition of (i) sentence, and (ii) it can take within its

ambit the larger interest of the State, orders to prevent

apprehended breach of peace and orders to bind down

persons who are a danger to the maintenance of peace and

order. The Court has ruled that the character of the

proceeding does not depend upon the nature of the tribunal

which is invested with the authority to grant relief but upon

the nature of the right violated and the appropriate relief

which may be claimed.”

Reliance is also placed on paragraphs 32 and 33 to contend

that an intra-Court appeal would be maintainable.”

6.He has also pointed out that the Division

Bench judgment of this Court in the case of D.Kumar vs.

Raichand Daga and Ors., decided on 03.08.2020 (W.A.

SR 44351 of 2020) also affirms the said position and the

stand taken in this regard.


7.He has then urged that the impugned judgment

suffers from being coram non judice, as in view of the

Division Bench judgment in H.C.P.(MD)No.10 of 2014

(Selvi vs. The Principal Secretary to Government and

Others) decided on 23.03.2020 and other connected matters,

the case ought to have been placed before the Division

Bench and could not have been adjudicated by the learned

single Judge. For this, he has also relied on the circular

issued on the administrative side by the High Court on

29.05.2020 bearing R.O.C.No.31686-A/2020/F1 dated

29.05.2020. He has then urged that in view of the provisions

of Order I Rule 1(a) read with Rule 2 of the Madras High

Court Appellate Side Rules, once the roster in such matters

is of the Division Bench, the learned single Judge could not

have proceeded to entertain the writ petition before him.

8.The next contention is that even otherwise in

view of the latest judgment of the Apex Court which is in

respect of the very same scheme involved herein, the Apex

Court has clearly held that the High Court could not have

issued any directions for release and could have only issued

directions to the Government to consider the same in the

light of the observations made therein. The judgment of the

Apex Court is in the case of Home Secretary and others

vs. H.Nilofer Nisha, reported in 2020 SCC OnLine SC 73.

9.He has then contended that the learned single

Judge has erroneously even counted the period of remand

invoking the provisions of Section 428 Cr.P.C. which could

not have been done, hence, the impugned judgment deserves

to be set aside.

10.However, reverting back to the first question

of maintainability, he submits that a Writ Appeal is

maintainable, as the exercise of jurisdiction by the learned

single Judge was not a jurisdiction of any criminal

description but an order passed under Article 161 of the

Constitution of India, which extends to the executive power

of the State, hence, the same is an administrative exercise of

power governing civil rights of the respondent writ petitioner

seeking premature release. In such a situation, the Writ

Appeal would be maintainable, hence, the same deserves to

be entertained.

11.Considering the submissions raised, we find

this question posed to be a little complex to be answered

straightaway without putting the respondent writ petitioner to

notice at this stage and therefore, it would be appropriate that

the respondent writ petitioner is called upon to answer the

same.

12.Accordingly, we issue notice to the respondent

writ petitioner and also call upon the learned counsel for the

appellants to serve a notice on the counsel for the respondent

writ petitioner who had appeared before the learned single

Judge to assist the Court on the issue of maintainability and

the other issues raised in this regard.”


11.The issues as dealt with by the Division Bench reduced in nutshell

are follows:

i.Whether this intra-court appeal is maintainable, because

he was convicted by the criminal court- Nature of

Jurisdiction?

ii.Whether a person who was convicted for the life

imprisonment, he is entitled to the benefits of Set-off under

Section 428 of Cr.,P.C?

iii.Whether a case of premature release shall be placed

before the division bench?

iv. Whether the High court can direct the state to release the

convict under the premature release scheme?

12.With the abovesaid factual matrix, we have heard

Mr.R.Radhapandian, learned counsel appearing for the petitioner in HCP No.959

of 2020 in respondent in W.A.No.667 of 2020, Mr.R.Hasan Mohammed Jinnah,

the learned Pubic Prosecutor appearing for the appellants in W.A.No.667 of 2020

and respondents in HCP No.959 of 2020 and Mr.Mohamed Saifulla, learned

Amicus Curiae and perused the written submission.

13.Issue No.1:-

13.1.This issue has been raised on the premise that in an appeal against

the order of the learned single Judge dealing with the criminal matter, could not be


maintainable before the same Court. The power of the revision is the one which is

to be exercised by His Excellency the Governor under Article 161 of the

Constitution of India. Such a power can also be exercised by His Excellency the

President under Article 72 of the Constitution of India. There is no restriction qua

the number of years for the life convict. On the same lines, there is no right vested

seeking a premature release after undergoing certain extent of incarceration.

Therefore, the release is controlled and circumscribed by the powers conferred

under Article 72 of the Constitution of India. In other words, we cannot go

beyond the Government Order or Rule or a Scheme introduced in exercise of the

power under Article 161 of the Constitution of India. In this connection, we would

like to quote the following decisions on the period of imprisonment for a life

convict.

13.2.In Gopal Vinayak Godse –Vs- State of Maharashtra ((1961) 3

SCR 440), the Apex Court has held as follows:

“Para 5: If so, the next question is whether there is any

provision of law where under a sentence for life

imprisonment, without any formal remission by

appropriate Government, can be automatically treated as

one for a definite period. No such provision is found in the

Indian Penal Code, Code of Criminal Procedure or the

Prisons Act. Though the Government of India stated

before the Judicial Committee in the case cited supra that,

having regard to s. 57of the Indian Penal Code, 20 years'


imprisonment was equivalent to a sentence of

transportation for life, the Judicial Committee did not

express its final opinion on that question. The Judicial

Committee observed in that case thus at p. 10:

"Assuming that the sentence is to be regarded as

one of twenty years, and subject to remission for

good conduct, he had not earned remission

sufficient to entitle him to discharge at the time of

his application, and it was therefore rightly

dismissed, but in saying this, their Lordships are

not to be taken as meaning that a life sentence must

and in all cases be treated as one of not more than

twenty years, or that the convict is necessarily

entitled to remission."

Section 57of the Indian Penal Code has no real bearing on

the question raised before us. For calculating fractions of

terms of punishment the section provides that

transportation for life shall be regarded as equivalent to

imprisonment for twenty years. It does not say that

transportation for life shall be deemed to be transportation

for twenty years for all purposes; nor does the amended

section which substitutes the words imprisonment for life

"for" transportation for life enable the drawing of any such

all-embracing fiction. A sentence of transportation for life

or imprisonment for life must prima facie be treated as

transportation or imprisonment for the whole of the

remaining period of the convicted person's natural

life”.

13.3. In the decision of the Constitution Bench of the Apex Court in

Rajiv Gandhi Assassination case in Union of India –Vs- V.Sriharan @ Murugan

and others (2015 (4) MLJ (Criminal) 645), in paragraph 163 it has been


observed as under:

“Answers to the questions referred in seriatim

Question 52.1 Whether imprisonment for life in terms of

Section 53 read with Section 45 of the Penal Code meant

imprisonment for rest of the life of the prisoner or a

convict undergoing life imprisonment has a right to claim

remission and whether as per the principles enunciated in

paras 91 to 93 of Swamy Shraddananda (2), a special

category of sentence may be made for the very few cases

where the death penalty might be substituted by the

punishment of imprisonment for life or imprisonment for a

term in excess of fourteen years and to put that category

beyond application of remission?

Ans. Imprisonment for life in terms of Section 53 read

with Section 45 of the Penal Code only means

imprisonment for rest of life of the convict. The right to

claim remission, commutation, reprieve etc. as provided

under Article 72 or Article 161 of the Constitution will

always be available being Constitutional Remedies

untouchable by the Court”.

13.4.In Laxman Naskar Vs. Union of India (2000 AIR (SC) 986), the

Apex Court has held as follows:

“3. It is settled position of law that life sentence is nothing

less than lifelong imprisonment and by earning remissions

a life convict does not acquire a right to be released

prematurely; but if the Government has framed any rule or

made a scheme for early release of such convicts then

those rules or schemes will have to be treated as

guidelines for exercising its power under Article 161 of


the Constitution and if according to the Government

policy/instructions in force at the relevant time the life

convict has already undergone the sentence for the period

mentioned in the policy/instructions, then the only right

which a life convict can be said to have acquired is the

right to have his case put up by the prison authorities in

time before the authorities concerned for considering

exercise of power under Article 161 of the Constitution.

When an authority is called upon to exercise its powers

under Article 161 of the Constitution that will have to be

done consistently with the legal position and the

Government policy/instructions prevalent at that time”

13.5.In State of Haryana Vs. Mohindersingh( 2000 AIR (SC) 890)

the Apex Court has held as follows:

“8. The circular granting remission is authorised under the

law. It prescribes limitations both as regards the prisoners

who are eligible and those who have been excluded.

Conditions for remission of sentence to the prisoners who are

eligible are also prescribed by the circular. Prisoners have no

absolute right for remission of their sentence unless except

what is prescribed by law and the circular issued thereunder.

That special remission shall not apply to a prisoner convicted

of a particular offence can certainly be relevant consideration

for the State Government not to exercise power of remission

in that case. Power of remission, however, cannot be


exercised arbitrarily. Decision to grant remission has to be

well informed, reasonable and fair to all concerned”.

13.6.A party is well within his right to approach this Court when his or

her case was not considered for remission under the relevant Government Order,

which provides so as against the similarly placed others. Such a challenge made

would not par take the character of a criminal case. Resultantly, a writ petition is

maintainable and consequently, an appeal would lie. This is for the reason that the

criminal case involved has reached its finality and what remains to be seen and

adjudicated upon is the liberty of the convict dehors the case. In this connection,

we would like to quote the following paragraph in the decision of the Apex Court

in C.S.Agarwal V. State and others (ILR (2011) VI Delhi 701).

“29. It would be necessary to clarify here that it cannot be said

that in any of the cases under Article 226 of the Constitution,

the Court is exercising „criminal jurisdiction". It would

depend upon the rights sought to be enforced and the nature of

relief which the petitioner seeks in such proceedings. For

example, if a writ petition seeking writ of habeas corpus is

filed, while dealing with such a petition, the Court is not

exercising criminal jurisdiction as no criminal proceedings are

pending. In fact, the order of preventive detention is made

without any trial under the criminal law. Likewise, when a

person is convicted and sentenced after the conclusion of


criminal trial and such an order of conviction has attained

finality and he files writ petition under Article 226 of the

Constitution challenging the orders of the Government

refusing to grant parole while dealing with such a petition, the

Single Judge is not exercising criminal jurisdiction, as no

criminal proceedings are pending.”

The aforesaid reasoning of the Division Bench being sound, legally and logically

correct, requires to be accepted.

13.7.Therefore, we have no hesitation in agreeing with the submissions

made by the learned Public Prosecutor and the learned Amicus Curiae and

accordingly, we hold that the Intra Court Appeal is maintainable as we are not

dealing with the criminal case per se.

14.Issue No.2:-

14.1.In the very same case itself, the Division Bench of this Court in

H.C.P.No.2214 of 2019 has given the benefit to the effect, which order has

become final between inter se parties. To consider the said issue further, we would

like to extract Section 428 of the Code of Criminal Procedure, 1973, which enure

to the benefit of the convict.

“428.Period of detention undergone by the accused to

be set off against the sentence of imprisonment.--

Where an accused person has, on conviction, been

sentenced to imprisonment for a term, [not being

imprisonment in default of payment of fine], the period of

detention, if any, undergone by him during the

investigation, inquiry or trial of the same case and before

the date of such conviction, shall be set off against the

term of imprisonment imposed on him on such conviction,

and the liability of such person to undergo imprisonment

on such conviction shall be restricted to the remainder, if

any, of the term of imprisonment imposed on him.

[Provided that in cases referred to in section 433A, such

period of detention shall be set off against the period of

fourteen years referred to in that section.] *Amendment by

act 25 of 2005 (w.e.f. 23-06-2006)”

14.2.Section 428 of the Code of Criminal Procedure, 1973, has been

considered by the Constitutional Bench of the Apex Court in Bhagirath & Another –Vs. Delhi Administration (1985 (2) SCC 580), wherein the following statement of law has been made.

“8. To say that a sentence of life imprisonment imposed

upon an accused is a sentence for the term of his life does

offence neither to grammar nor to the common

understanding of the word 'term'. To say otherwise offend

not only against the language of the statute but against the

spirit of the law, that is to say, the object with which the

law was passed. A large number of cases in which the

accused suffer long under trial detentions are cases

punishable with imprisonment for life. Usually' those who

are liable to be sentenced to imprisonment for life are not

enlarged on bail. To deny the benefit of section 428 to them

is to withdraw the application of a benevolent provision

from a large majority of cases in which such benefit would

be needed and justified………..

13. We have considered with great care the reasoning upon

which the decision in Kartar Singh proceeds. With respect,

we are unable to agree with the decision. We have already

discussed why imprisonment for life is imprisonment for a

term, within the meaning of section 428. We would like to

add that we find it difficult to agree that the expressions

'imprisonment for life' and imprisonment for a term' are

used either in t he Penal Code or in t he Criminal Procedure

Code in contra-distinction with each other. Sections

304, 305, 307 and 391 of the penal Code undoubtedly

provide that persons quality of the respective offences shall

be punished with imprisonment for life or with

imprisonment for a term not exceeding a certain number of

years. But, that is the only manner in which the Legislature

could have expressed its intention that persons who are

guilty of those offences shall be punished with either of the

sentences mentioned in the respective sections.

The circumstance on which the learned judges have placed

reliance in Kartar Singh, do not afford any evidence,

intrinsic or otherwise' of the use of the two expressions in

contra-distinction with each other. Two or more

expressions are often used in the same section in order to

exhaust the alternatives which are available to the

Legislature. That does not mean that there is, necessarily,

an antithesis between those expressions.”

14.3.A Division Bench of this Court in Kumar Vs. State of Tamil

Nadu reported in Manu/TN/3212/2014 has held as follows.

“7. Whenever the Government decides to GRANT Premature

release, the Government will fix a definitive period

of detention for extending the benefit and would call for

reports from the Superintendent of Jails in the State. For

example, in G.O. Ms No. 1155 dated 11.09.2008, the

Government has said that, the G.O. will apply to “life

convicts who have completed 7 years of actual

imprisonment as on 15.09.2008”. At that time, the jail

authorities will identify the prisoners who have undergone

the period of detention fixed by the Government for being

considered for premature release. If the jail authorities do

not have the pre-conviction detention particulars of a

prisoner, they will only furnish to the Government the postconviction

detention particulars. The prisoner cannot be

made to suffer for the fault of the Presiding Officer of the

Court in not giving the pre-conviction detention particulars

of a prisoner to the jail authorities. Actus curiae

neminemgravabit. [An act of the Court shall prejudice no

man]. If the prison authorities do not send correct

particulars to the Government, the prisoner will be

seriously prejudiced inasmuch as he will be held

disqualified for premature release though fully qualified.”

14.4.Thus, in the light of the aforesaid pronouncements and taking note

of the underlying object enshrined under Section 428 of the Code of Criminal

Procedure, 1973, we have no hesitation to hold that 'set off ' is permissble even for a life convict.

15.Issue No.3.

15.1.This issue would not arise for consideration in the present case.

The notification came into being in view of the same being sought for by the High

Court on the judicial side, we would like to quote the order passed in H.C.P.No.10

of 2014 on 23.03.2020.

“The last question that requires to be decided is

whether such a writ petition should be heard by a Single

Bench or a Division Bench. This decision is the

prerogative of the Hon'ble Chief Justice, who is the master

of the roster under order 1 Rule 1-A of the Appellate Side

Rules. However, in our opinion, when axiomatically the

parent criminal case of a prisoner seeking premature


release would have been finally decided either by a Single

Bench or a Division Bench, it will be just and proper if the

claim for premature release which will, a fortiori, arise

only after the prisoner has exhausted the appeal remedy, is

decided by a Division Bench as Writ Petition (Criminal)

and not by a Single Bench.

Accordingly, we direct the Registry to convert

the instant habeas corpus petitions as writ petitions

(criminal). We further direct the Registry to place this

matter before the Hon'ble Chief Justice for appropriate

orders as to whether such petitions should be posted before

a Single Bench or a Division Bench.”

15.2Accordingly, the following notification came into being.

“All petitions relating to premature release filed

by the prisoners, who are serving sentence pursuant to their

convictions for offences shall be numbered as Writ petition

and be heard by the Hon'ble Division Bench dealing with

Criminal Side matters.

All such petitions pending before Principal Seat

at Madras and in the Madurai Bench of Madras High Court

as Habeas Corpus Petitions, Criminal Original Petitions

(filed under the provisions of Criminal Procedure Code)

shall be converted into Writ petitions and be listed before

the Hon'ble Division Bench dealing with Criminal Side

matters.


15.3The Government Order in G.O.(D) No.658 Home (Prison-IV)

Department, dated 26.06.2019 rejecting the case of the convict, was challenged in

the writ petition in W.P.No.7559 of 2020 on 04.05.2020. A notification was

issued on 26.05.2020. As rightly observed by the Division Bench in the

Judgment supra, it is the absolute prerogative of the Hon'ble Chief Justice to

decide as to whether the particular type of case is to be posted before the learned

single Judge or Division Bench. The decision being prospective in the form of a

notification with the order of the learned single Judge preceding it, we are

inclined to hold that though a case of premature release is required to be placed

before the Division Bench, the notification has got no effect on the writ petition

filed and disposed of and so also the appeal before us.

16.Issue No.4:-

16.1.The last issue is in respect of the power of this Court to release

the convict by issuing a writ of mandamus. A writ of mandamus is a command.

However, it can only be issued on certain contingencies. A direction cannot be

issued to an authority vested with the power to act in a particular way. The

aforesaid position was made clear by the judgment of the Apex Court in Home

Secretary (Prison) and others Vs. H.Nilofer Nisha ((2020) 14 Supreme Court


Cases 161) in the following paragraphs.

“31. The issue before us in the present case is whether the High

Court can direct the release of a petitioner under G.O.(Ms.)

No.64 dated 01.02.2018. We do not think so. In all these cases,

the representations made by the detenus had not been decided.

In our view, the proper course for the Court was to direct that

the representations of the detenus be decided within a short

period. Keeping in view the fact that the Scheme envisages a

report of the Probation Officer, a reference by the District Level

Committee and thereafter the matter has to be placed before the

concerned Range Deputy Inspector General and before

Regional Probation Officer and thereafter before the State Level

Committee, we feel that it would be reasonable to grant 2-3

months depending on the time when the representation was

filed for the State to deal with them. When the petition is filed

just a few days before filing the representation then the Court

may be justified in granting up to 3 months’ time to consider

the same. However, if the representation is filed a couple of

months earlier and the report of the Probation Officer is already

available then lesser time can be granted. No hard and fast

timelines can be laid down but the Court must give reasonable

time to the State to decide the representation.

32. We are clearly of the view that the Court itself cannot

examine the eligibility of the detenu to be granted release under

the Scheme at this stage. There are various factors, enumerated

above, which have to be considered by the committees. The

report of the Probation Officer is only one of them. After that,

the District Committee has to make a recommendation and


finally it is the State Level Committee which takes a final call

on the matter. We are clearly of the view that the High Court

erred in directing the release of the detenu forthwith without

first directing the competent authority to take a decision in the

matter. Merely because a practice has been followed in the

Madras High Court of issuing such type of writs for a long time

cannot clothe these orders with legality if the orders are without

jurisdiction. Past practice or the fact that the State has not

challenged some of the orders is not sufficient to hold that these

orders are legal.

33.In case, as pointed out above, a petition is filed without any

decision(s) of the State Level Committee in terms of Para 5(I)

of the G.O. in question, the Court should direct the concerned

Committee/authority to take decision within a reasonable

period. Obviously, too much time cannot be given because the

liberty of a person is at stake. This order would be more in the

nature of a writ of mandamus directing the State to perform its

duty under the Scheme. The authorities must pass a reasoned

order in case they refuse to grant benefit under the Scheme.

Once a reasoned order is passed then obviously the detenu has a

right to challenge that order but that again would not be a writ

of habeas corpus but would be more in the nature of a writ of

certiorari. In such cases, where reasoned orders have been

passed the High Court may call for the record of the case,

examine the same and after examining the same in the context

of the parameters of the Scheme decide whether the order

rejecting the prayer for premature release is justified or not. If it

comes to the conclusion that the order is not a proper order then

obviously it can direct the release of the prisoner by giving him


the benefit of the Scheme. There may be cases where the State

may not pass any order on the representation of the petitioner

for releasing him in terms of the G.O.(Ms) No.64 dated

01.02.2018 despite the orders of the Court. If no orders have

been passed and there is no explanation for the delay then the

Court would be justified in again calling for the record of the

case and examining the same in terms of the policy and then

passing the orders.”

16.2.From the aforesaid paragraphs, one could see that the scope of

interference would arise when a wrong order is passed by issuing a writ of

certiorari. The issue of a positive direction would come into play when the reasons

assigned are found to be not correct either on fact or law. One cannot postulate a

situation and therefore, a case has to be dealt with on its own facts. We would

only make it clear as we understand from the orders of the Honourable Apex Court

that a power to issue positive order to release will arise when a reasoned order is

passed by considering the materials required to do so and upon the Court finding

that they are not done properly. If the Court finds that the exercise will have to be

redone or it has not been done, the way forward is to ask the concerned authority to

do so. In other words, the requirements cannot be by-passed or overlooked or

dealt with by the Court, when they are absent while considering the request for

premature release. After all, in a writ of certiorari, we are concerned with the

decision making process primarily. If the Court has got sufficient materials


available before it while finding the reasons assigned on them are not correct, then

the consequential order of issuing would arise. Accordingly, we hold that in a case

where a reasoned order is not available, a Court is not expected to take the role of

the authorities and issue a positive direction.

17.Having discussed the aforesaid issues, let us come to the facts on

hand. The impugned order under challenge passed by the Government merely

deals with the eligibility of the convict and thus, does not deal with the

entitlement for release. For doing so, certain procedural compliance is required,

such as, the report of the Probation Officer, Report of the Police Officer and that

of the Prison authority. We find considerable force in the submission made by the

learned Public Prosecutor on this issue. Once, the impugned order does not deal

with the other issues, except by saying that the convict does not come within the

zone of consideration, the Court is expected to remit the matter for fresh

consideration after setting aside the order under challenge by pointing out the

mistake committed. Though the order of the Division Bench in HCP No.2214 of

2019 is subsequent, it is only an interpretation of law governing set off. Therefore,

it certainly enures to the benefit of convict. However, the consequential direction

issued to release the convict requires to be interfered with.


18.In such view of the matter, while confirming the order of the learned

single Judge with respect to the impugned order being quashed, the direction

issued to release the convict within a period of two weeks from the date of receipt

of the said order stands set aside. The appellants are directed to redo the exercise

in the light of the discussion made and take a decision within a period of eight

weeks from the date of receipt of a copy of this order.

Writ Appeal stands disposed of accordingly. Consequently, Habeas

Corpus Petition stands closed. CMP No.9331 of 2020 is also closed.

(M.M.S., J.) (R.N.M., J.)

05. 07.2021


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