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2001 DIGILAW 1266 (MAD)

T. Ganesan. v. State of Tamil Nadu and another

2001-10-19

P.THANGAVEL, S.JAGADEESAN

body2001
P. Thangavel, J.: The petitioner has filed this habeas corpus petitionto issue a writ of habeas corpus or order or direction to the secondrespondent to produce the body of the detenu A. Chandran, the brother of thepetitioner allegedly confined illegally in Central Prison, Tiruchirappalli andto set him at liberty forthwith. 2. The petitioner is the brother of the detenu, A.Chandran, who wasconvicted and sentenced to undergo imprisonment for life for the offencecommitted under Sec.302,I.P.C. in S.C.No. 132 of 1984 on the file of the learnedSessions Judge, Tiruchirappalli, on 8.2.1985. An appeal in C.A.No. 189 of 1985was filed against the conviction and sentence imposed on the detenu in S.C.No.132 of 1984 and the same was confirmed by this Court, by judgment dated26.6.1991. Before suspension of sentence by this Court in the appeal, the detenuwas undergoing imprisonment for the period from 8.2.1985 till 26.2.1985. Afterdismissal of the said appeal, the detenu has been undergoing imprisonment forthe period from 26.6.1991 till this date. The detenu was under detention from6.5.1984 to 30.7.1984 under Act 14 of 1982 and the said period has to be takenin computing the period of imprisonment undergone by the detenu. The detenu hasbeen let on parole for 526 days and the said period should also be taken as aperiod of serving sentence for the conviction. The detenu is entitled toremission of sentence in view of the issue of several Government Orders issuedby the Government of Tamil Nadu for the prisoners who are undergoingimprisonment for various offences. The detenu is deemed to have been served hisfull sentences pursuant to the conviction and sentences imposed on him andtherefore, is liable to be set at liberty. The petition in H.C.P.No.768 of 2001was not pressed for want of representation to the jail authorities concerned.Since the representation made by the detenu to the Government of Tamil Naduthrough the second respondent was rejected with regard to the remission sought for by the detenu, this habeas corpus petition to issue a writ of habeas corpus to set the detenu at liberty has been filed by the petitioner. 3. 3. The second respondent resisted the petition filed by the petitioner on the following grounds: The detenu was convicted and sentenced to undergo rigorous imprisonment for two years under Sec. 148, Crl.P.C, simple imprisonment for 15 days under Sec. 341 read with 34, I.P.C. and rigorous imprisonment for life under Sec.302, I.P.C. in S.C.No.132 of 1984 on 8.2.1985 by the learned Sessions Judge, Tiruchirappalli. The conviction and sentences imposed on various Sections have to run concurrently. The detenu was released on bail on 26.2.1985 by this Court in the appeal filed in C.A.No. 189 of 1985 on the file of this Court and the conviction and sentences imposed by the learned Sessions Judge, Tiruchirappalli was confirmed on merits by this Court later. The detenu was committed to the person on 26.6.1991 to undergo unexpired portion of the imprisonment. The period from 6.5.1984 to 30.7.1984 was undergone by the detenu under the Tamil Nadu Act 14 of 1982. The said period was not ordered to be set off in the committal warrant issued by the Court as the detention was under the Act 14 of 1982. The above said period of detention was undergone by the detenu while he was on bail during the pendency of the appeal in C.A.No.189 of 1985 on the file of this Court. The said period cannot be set off from the life sentence imposed on the detenu. As per Rule 36, Part 1 of the Tamil Nadu Suspension of Sentence Rules, 1982 and in Clause 239 of Tamil Nadu Prison Manual, Volume 2, the periods spent by the prisoner outside the prison shall not count towards sentence. The period of parole cannot be treated as period of serving the sentence for the offences for which he was convicted. The premature release of life convicts should be placed before the Advisory Board for consideration only after they have served minimum of 14 years of actual imprisonment and this detenu is completing 14 years of life imprisonment only on 4.3.2006. The remission granted by the Government of Tamil Nadu on special occasions cannot be taken into account for the premature release of this detenu. The remission granted by the Government of Tamil Nadu on special occasions cannot be taken into account for the premature release of this detenu. The Government of Tamil Nadu release life convicts on special occasions, if they have completed 10 years of actual imprisonment, but subject to the conditions in G.O.No. 1163/Pr.IV/97, dated 12.9.1997, G.O.No.85492, Home Pr.IV/ Department, dated 12.9.1998, G.O.No.1259, Home (Pr.IV) Department, dated 15.9.1999, G.O.No. 1013, Home (Pr.IV) Department, dated 14.9.2000 and G.O.No.840, Home (Pr.IV) Department, dated 12.9.2001. The above said Government Orders will not enable the detenu to get the remission for the reasons stated supra. The decision of the Apex Court relates to the decision of a prisoner under COFEPOSA and in that it was held that parole period does not interrupt the detention period and the parole period needs to be counted towards total period of detention. The said decision has no application to the detenu who is a life convict. This Court has already decided that parole period cannot be treated as period undergone imprisonment in H.C.P.No.2778 of 2000, H.C.P.No.2822 of 2000, H.C.P.No. 2913 of 2000 on 23.8.2001. On these grounds., the second respondent has sought for dismissal of the petition filed for issue of a writ of habeas corpus. 4. The detenu, A. Chandran has been admittedly convicted and sentenced to undergo rigorous imprisonment for two years under Sec. 148, I.P.C., simple imprisonment for 15 days under Sec.341 read with 34, I.P.C. and rigorous imprisonment for life under Sec.302, I.P.C. in S.C.No.132 of 1984 on 8.2.1985 by the learned Sessions Judge, Tiruchirappalli and the sentences imposed on various Sections referred to above have to run concurrently as per the above said judgment. The fact remains that the detenu has preferred an appeal in C.A.No. 189 of 1985 on the file of this Court against the conviction and sentences imposed in S.C.No. 132 of 1984 referred to above. While the detenu was facing trial before the Court of Sessions, Tiruchirappalli, he was on bail and during the said period of bail, the detenu had undergone detention from 6.5.1984 to 30.7.1984 under the Tamil Nadu Act 14 of 1982. While the detenu was facing trial before the Court of Sessions, Tiruchirappalli, he was on bail and during the said period of bail, the detenu had undergone detention from 6.5.1984 to 30.7.1984 under the Tamil Nadu Act 14 of 1982. Even though the petitioner has sought for remission of the above said period from the sentence of the abovesaid period from the sentence of life imprisonment to be undergone by the detenu, the same was not pressed before this Court in view of the settled legal position that the said period cannot be given set off. Therefore, whether the detenu is entitled to set off of the period from 6.5.1984 to 30.7.1984 from the sentence to be undergone by the detenu will not arise for consideration in this petition. 5. The only question under dispute between both parties is whether the period of 526 days during which the detenu was let out on parole should be taken as a period of serving the sentence for the conviction under Sec.302,I.P.C. or not? 6. We have heard the arguments advanced on both sides and perused records in this respect. The learned counsel appearing for the petitioner contends that the said period on parole by the detenu should be taken as a period of serving the sentence imposed under Sec.302,I.P.C. while the learned Additional Public Prosecutor contends contra to it. 7. Admittedly, the detenu was let out on parole by the authorities concerned for 526 days while the detenu has been undergoing imprisonment for life for the offence committed under Sec.302, I.P.C. A perusal of Rule 2(3) of the Tamil Nadu Suspension of Sentence Rules, 1982, herein after referred to as “the Rules”, enacted by the Government of Tamil Nadu in exercise of the power conferred under Sec.432(5) of the Code of Criminal Procedure, 1973 would show that “leave” means emergency or ordinary. Rule 3 of the above said Rules would disclose that the leave defined in Rule 2(3) of the Rules cannot be claimed as a matter of right and it is only a concession granted to the prisoner. It is also evident from the Rule 5 of the above said Rules that there are two kinds of leave and they are emergency leave and two kinds of leave and they are emergency leave and ordinary leave. It is also evident from the Rule 5 of the above said Rules that there are two kinds of leave and they are emergency leave and two kinds of leave and they are emergency leave and ordinary leave. It is also evident from a perusal of the above said rules that emergency leave was dealt with under Rules 6 to 13 while ordinary leave was dealt with under Rules 19 to 27. Emergency leave will be granted if there was any death or serious illness of close relatives of the detenu or to attend wedding of son, daughter, full brother and full sister of the detenu as per the provisions of the said Rules. It is not in dispute that the detenu has to execute a bond in Form I-A before granting of emergency leave subject to the conditions imposed therein. In the case of ordinary leave, a bond in Form II for Rs.500 with two sureties for like sum each has to be executed by the detenu to the authorities concerned subject to the conditions imposed therein. Admittedly, inter alia, there will be one condition in the bond executed by the detenu as mentioned above to the effect that “I will agree to the period of my absence from the prison being treated as suspension of sentence”. It is subject to the above said condition, the detenu was allowed to go out of the prison on parole for the above said 526 days. 8. Rule 36 of the above said Rules, which was strongly relied on by the Additional Public Prosecutor, reads as follows: “Treatment of the period of leave: The day on which the prisoner was released and the day on which he was readmitted shall both be counted as days of imprisonment but the period of leave shall not be taken as period of sentence undergone by the prisoner”. It is evident from a perusal of the above said Rule that the period of leave, which is not automatic, shall not be taken as period of sentence undergone by the prisoner. In otherwise emergency or ordinary leave granted by the authorities concerned to go out of prison on parole shall not be taken as period of sentence undergone by the detenu. 9. In otherwise emergency or ordinary leave granted by the authorities concerned to go out of prison on parole shall not be taken as period of sentence undergone by the detenu. 9. The learned Additional Public Prosecutor has also brought to the notice of this Court, Clause 239 in Chapter XVI of the Jail Manual wherein it was specified as to when the periods spent by the prisoners outside the prison shall not be counted towards sentence. Clause 239 of Chapter XVI of the Jail Manual reads as follows: “Periods that will not count towards sentence: (i) Escape; (ii) Bail; (iii) Suspended period of sentence including emergency leave; (iv) Unauthorised extension of temporary release; (v) Suspended period of sentence if directed by the Court; (vi) Suspension of sentence for police investigation; (vii) Violation of conditional release; (viii) Extradition. Even the Emergency Leave is not treated differently. There is no question of treating the Ordinary Leave as the period during which the prisoner was behind the bars.” It is evident from the perusal of the abovesaid Clause that the authorities concerned had decided not to count emergency leave granted to the detenu as actual period of imprisonment. It is based on such position, it was decided by the authorities concerned that the question of counting ordinary leave granted to the detenu as actual period of imprisonment does not arise at all. A conjoint reading of the provisions referred to under the Rules and the Specific provision in Clause 239 in Chapter XVI of the Jail Manual would lead to conclude that the period during which a detenu was let out on parole cannot be counted towards sentence undergone by the detenu. 10. Larger Bench consisting of five Honourable Judges inclusive of the Honourable the Chief Justice of India in Sunil Fulchand Shah v. Union of India, (2000)3 S.C.C. 409 , while considering the question as to whether the period during which the detenu under Secs. 10. Larger Bench consisting of five Honourable Judges inclusive of the Honourable the Chief Justice of India in Sunil Fulchand Shah v. Union of India, (2000)3 S.C.C. 409 , while considering the question as to whether the period during which the detenu under Secs. 10 and 12 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, was released on parole, has to be included while computing the period of detention, was pleased to hold as follows: “Since release on parole is only a temporary arrangement by which detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of parole, prescribed otherwise”. The principles laid down by their Lordships of the Honourable Apex Court would lead to conclude that the detenu let out on parole by the authorities concerned while undergoing detention or imprisonment for life will not interrupt the period of detention or imprisonment for life and thus said period on parole has to be counted towards total period of detention or imprisonment for life, but subject to the rules, instructions or terms for grant of parole prevailing in the concerned State. In the State of Tamil Nadu, the rules and the clause in Jail Manual referred to above clearly show that the period during which a detenu was let out to go on parole otherwise known as emergency leave or even ordinary leave will not be counted as period of sentence undergone by the prisoner or the detenu. As already pointed out, each and every prisoner/ detenu is executing bond in Form IA or Form II wherein the detenu or the prisoner is agreeing that the period of his/her absence on such leave from the prison has to be treated as suspension of sentence. It is therefore clear from the decision of the larger Bench of the Honourable Apex Court that the periods spent on parole by the detenu in this case, who had gone on parole subject to the rules, instructions or terms for grant of parole, cannot claim that he is entitled to tack on the periods spent on parole as period of undergoing imprisonment for life. 11. 11. The same view has been taken by a Division Bench of this High Court, relying on the decision reported in Sunil Fulchand Shah v. Union of India, (2000)3 S.C.C. 409 , in Santhakumari v. The Government of Tamil Nadu, represented by its Secretary to Government, Home Department, Chennai-9 and another, (2001)3 C.T.C. 715. Following the decision of the larger Bench of the Honourable Apex Court referred to above and also the decision reported in State of Haryana and others v. Mohinder Singh, (2000)3 S. C. C. 394, the Honourable Apex Court in State of Haryana and others v. Karambir Singh, (2001)5 Supreme 427 has held as follows: “In our view, therefore, the period of parole which had been granted to the convict for seven months 24 days could not have been counted for the purpose of sentence.” 12. The learned counsel for the petitioner has brought to the notice of this Court, the decision reported in State of Haryana v. Nauratta Singh and others, (2000)3 S.C.C. 514 , in support of his contention that during parole period there is no suspension of sentence, but the sentence is actually continuing to run. In that decision, the main issue to be decided by the Bench consisting of two Honourable Judges was as to whether the direction given by the High Court for remission of sentence for the period during which the detenu/prisoner was released on bail, is correct or not. The Honourable Division Bench of the Apex Court answered in the negative stating that there can be no remission of sentence for the period during which the detenu/ prisoner was on bail. While deciding so, the Honourable Apex Court has not only followed the decision of the larger Bench consisting of five Honourable Judges in Sunil Fulchand Shah v. Union of India, (2000)3 S.C.C. 409 , but also followed the decision reported in State of Haryana v. Mohinder Singh, (2000)3 S.C.C. 394 with approval. In the case relied on by the counsel for the petitioner, the Honourable Apex Court had no occasion to consider that the decision of the larger Bench of the Apex Court was subject to the existence of any rules, instructions or terms for grant of parole prescribed otherwise for counting the periods spent on parole towards the total period of definition. Therefore, we are of the opinion that the decision referred to above rendered by the Honourable Apex Court and relied on by the learned counsel for the petitioner will not advance the case of the petitioner in any respect. 13. The learned counsel for the petitioner has also brought to the notice of this Court, the provision under Sec.31-B(3) of Part VI-A of the Prisoners Act, 1900 and would contend that the period of release of a prisoner under Sub-sec.(1) shall count towards the total period of his sentence, provided that he surrenders on the due date and his conduct has been satisfactory during the period he was outside the jail on parole. Of course, the period of release of the detenu/ prisoner on parole shall count towards the total period of his sentence subject to rules, instructions or terms for grant of parole even according to the decision of the larger Bench of the Honourable Apex Court. In the State of Tamil Nadu, admittedly, the letting out on parole any detenu/prisoner, was subject to condition of executing a bond in Form I-A wherein the detenu/prisoner had agreed to have the period of his absence from persons treated as suspension of sentence. As already pointed out that Rule 36 of the above said rules and Clause 239 of Chapter XVI of Jail Manual imposes condition that the periods spent on parole by a detenu/ prisoner shall not be taken as period of sentence undergone by the petitioner. Therefore, the submission made by the learned counsel for the petitioner relying on Sec.31 -B(3) of the Act will not help the detenu to have the period spent on parole out of jail tacked on to the period of sentence undergone by the prisoner. In view of the foregoing reasons we hold that the period during which the detenu/ prisoner was on parole, shall not be taken as period of sentence undergone by the detenu/ prisoner. 14. Therefore, we find no merits in the habeas corpus petition and accordingly, the same is dismissed.