LexD. ETHIRAJ versus SECRETARY TO GOVT. & ORS.
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A 8 c [2011] 15 (ADDL.) S.C.R. 1048 D. ETHIRAJ v. SECRETARY TO GOVT. & ORS. (CRIMINAL APPEAL NO. 1949 OF 2011) OCTOBER 11, 2011 [ASOK KUMAR GANGULY AND GYAN SUDHA MISRA, JJ.] REMISSION OF SENTENCE: Claim for remission of sentence as per Government of Tamil Nadu, G.O. dated 23.2.1992 - Rejected by High Court on the ground that on the date of notification, the prisoner was on bail - Held: In the instant case, the prisoner is entitled to get his case of remission of sentence considered in D accordance with the G. 0. - A prisoner being on bail on a particular day is just a fortuitous circumstance - What the court has to consider is the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission E - Order of High Court is set aside - Prisoner directed to make a rF;!presentation afresh - State Government directed to consider the case of the prisoner in the light of the obseNations made in the judgment - Constitution of India, 1950 - Article 161, Article 141 - Precedent - Tamil Nadu, Home (Prison C) Department GOMs No. 279 dated F 23.2.1992. The appellant was convicted and sentenced to undergo three years rigorous imprisonment uls 366 read withs. 109 ands. 119 IPC by the trial court by judgment and order dated 14.1.1992. His appeal before the High G Court and the special leave petition before the Supreme Court were dismissed and, consequently, he was readmitted to Central Prison on 7.9.2010. The High Court ·declined the appellant's prayer for having his case for remission of sentence considered in accordance with the H 1048 D. ETHIRAJ v. SECRETARY TO GOVT. & ORS. 1049 Tamil Nadu, Home (prison C) Department G.0.Ms. No. 279, A dated 23.2.1992, on the ground that he was on bail on the date of issuance of the notification. Allowing the appeal, the Court HELD: 1.1. A prisoner being on bail on a particular 8 day is just a fortuitous circumstance. What the court has to consider is the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission. [Para 20] [1056-E-F] Nalamolu Appa/a Swamy & Ors. Vs. State of Andhra Pradesh (1989) Supp (2) SCC 192 - relied on. c 1.2. However, during the period the petitioner was on bail and had not at all suffered by imprisonment, he cannot get the benefit of remission in respect of that D period. [para 18] [1056-B] State of Haryana Vs. Nauratta Singh & Ors. 2000 (2) SCR 246 = (2000) 3 SCC 514; and Joginder Singh Vs. State of Punjab & Ors. (2001) 8 SCC 306 - relied on 1.3. In the instant case, the appellant had undergone E a total sentence of 1 year and 140 days as on 5.10.2010 and applied for consideration of remission of his sentence in accordance with the said notification. Admittedly, the G.O. No. 279, dated 23.2.1992, which was issued in exercise of the powers conferred by Article 161 F of the Constitution of India, is still subsisting and the State is bound by the same. The G.O. does not speak that in order to get the benefit of remission, the prisoner must actually be in jail on the date when the G.O. was issued. The appellant is entitled to have his case of remission G considered under the said G.O. since he admittedly suffered more than six months of imprisonment prior to the date of judgment rendered by the High Court on 25.3.2011. [para 4-5 and 9] [1051-C-E; 1053-C-E] H 1050 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R. A 1.4. Despite the clear position settled by a three Judge Bench of this Court in Nalamolu Appala Swamy's case and despite the fact that the said judgment was placed before the High Court, it unfortunately came to a decision which is contrary to the reason given by this 8 Court. The judgment of the High Court is, therefore, set aside. The appellant is directed to make a representation afresh praying for remission attaching a copy of the instant judgment. The State Government is directed to consider the case of the appellant in the light of the C observations made in the instant judgment. [ Para 13, 14, 20 and 21) [1054-B-C; F-G; 1056-E-G] D Case Law Reference: (1989) Supp (2) sec 192 relied on para 13 2000 (2) SCR 246. relied on para 15 (2001) 8 sec 306 relied on para 16 CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal No. 1949 of 2011. From the Judgment & Order dated 25.3.2011 of the High E Cou
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