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1991 DIGILAW 140 (MAD)

R. JEEVANANDAM v. STATE OF TAMILNADU

1991-02-15

ARUNACHALAM, PRATAP SINGH

body1991
Judgment : ARUNACHALAM, J. ( 1 ) (ORDER of Bench delivered by )In this petition filed under Article 226 of the Constitution of India, the prayer is for the issue of a habeas, to direct the respondents who are respectively the state of Tamil Nadu represented by the Special Commissioner and Secretary to government, Department of Home, Madras, and the Superintendent, Central prison, Trichy, to set at liberty the petitioner R. Jeevanandam, convict No. 81431, now confined in Central Prison, Trichy on the ground, that he had completed more than 14 years of incarceration and is, therefore, entitled to be released. ( 2 ) IN the affidavit filed in support of the petition, the petitioner has stated that he was convicted for an offence under Section 302, I. P. C. in S. C. No. 18 of 1979 on the file of the Court of Session, East Tanjore at Nagapattinam, by judgment dated 23-10-1979 and sentenced to undergo imprisonment for life. He claims to have undergone 11 years and six months in prison and he is further entitled to two years remission granted by the State Government for all life convicts, for periyar Centenary and in honour of late C. N. Annadurai. He would, therefore, state that he had completed 13 years and six months in prison and if that period is taken along with the time spent by him as a remand prisoner, he would be eligible to be considered for premature release. In the counter-affidavit filed by the second respondent, the Superintendent of Central Prison, Tiruchirapalli, it has been stated, that the convict (petitioner)has completed 10 years and 11 months of actual sentence as on 1-12-1990 and he has been granted remissions of one year each on the occasion of Periyar centenary and in honour of Dr. Perarignar Annadurai. He has also earned so far 160 days of ordinary remission. Totally, the convict had completed 13 years 4 months and 20 days of sentence. As per Rule 341 of Tamil Nadu Prison Manual volume II, the cases of prisoner sentenced to imprisonment for life on or after 18-12-1978, shall be placed before the Advisory Board, only if they have served 14 years of imprisonment. The petitioner attains eligibility on 21-12-1993 , for consideration of premature release by the Advisory Board. As per Rule 341 of Tamil Nadu Prison Manual volume II, the cases of prisoner sentenced to imprisonment for life on or after 18-12-1978, shall be placed before the Advisory Board, only if they have served 14 years of imprisonment. The petitioner attains eligibility on 21-12-1993 , for consideration of premature release by the Advisory Board. ( 3 ) THE learned counsel appearing on behalf of the petitioner is unable to give us specific details of the period of remand, pending trial. Equally, the learned additional Public Prosecutor is not able to satisfy us as to how the dt. 21-12-1993 had been arrived at, for consideration of premature release. The law laid down by the Supreme Court is clear and all that is required is its application by the prison authorities. On the scope of Section 428 Criminal Procedure Code in bhagirath vs. Delhi Administration, AIR 1985 SC 1050 , while overruling its own decision in Kartar Singh vs. State of Haryana, AIR 1982 SC 1439 . the Apex Court observed that"persons sentenced to imprisonment and as such are entitled to set off the period of detention undergone as under trial prisoners, subject to provisions contained in Section 433-A and provided that orders have been passed by the appropriate authority under Section 432 or Section 433 of the Criminal Procedure Code. " ( 4 ) THE governing law enunciated on the object of Section 433-A is that it does not have any retrospective operation. Every person who has been convicted by the sentencing Court before 18-12-1978, the date of its commencement, shall be entitled to the benefit accruing from Remission Scheme or Short Sentencing project as if this section did not stand in the way. Those governed by the section shall not be released unless they have served a sentence of at least 14 years imprisonment. In other words, this section does not govern all life convicts. It does not apply to those convicted and sentenced to life imprisonment, before its commencement. It does not apply to those convicted and sentenced to life imprisonment for offences not punishable with death such as Secs. 304, 307, 326,indian Penal Code etc. In other words, this section does not govern all life convicts. It does not apply to those convicted and sentenced to life imprisonment, before its commencement. It does not apply to those convicted and sentenced to life imprisonment for offences not punishable with death such as Secs. 304, 307, 326,indian Penal Code etc. A reference to Maru Ram vs. Union of India, AIR 1980 SC 2147 , C. M. Mory vs. Govt of A. P. , AIR 1982 SC 1163 , State of A. P. vs. G. M. Morey, AIR 1982 SC 1195 , will indicate this legal position. ( 5 ) THE petitioner was convicted on 23-10-1979 and hence Section 433-A cr. P. C. will attract his case. The provisions of Section 428, Cr. P. C. can also be usefully invoked. The case of the petitioner can therefore, be placed before the advisory Board for consideration of premature release, only on his attaining such eligibility. The authorities will take note of the legal position and act in consonance with it. The writ petition is ordered accordingly.