JUDGMENT : Rajiv Shakdher, J. 1. The only question, which arises for consideration in the instant case is : whether the detenu should get the benefit of G.O.(Ms)No.1155, Home (Prison-IV) Department, dated 11.09.2008 (in short G.O.). Based on the provisions of aforementioned G.O., the petitioner who is the wife of the detenu/Mr. K. Jayapaul, seeks his premature release. 2. Notice in this petition was issued on 22.07.2016. Since then, the State has filed a counter affidavit in the matter. 3. A perusal of the counter affidavit would show that the State does not take the position that the detenu is not covered by the G.O. The State's stand is that the detenu was not released from custody as, on the given date, he had not completed seven (7) years of actual imprisonment. The date, on which, as per the G.O., the detenu ought to have completed seven (7) years of actual imprisonment for him to become eligible for premature release from custody is : 15.09.2008. 4. Thus, the moot point of dispute is : whether the detenu was in pre-trial detention between 20.05.1988 to 18.08.1989. The common ground between the petitioner and the State, is that, if this period is taken into account, then, as on 15.09.2008, the detenu would have fulfilled the eligibility criteria for premature release. 5. To be noted, the detenu was convicted in Sessions case No. 131 of 1988, by the I Additional Sessions Judge, Chennai, vide judgment dated 18.08.1989. The detenu was sentenced to life imprisonment under Section 302 of Indian Penal Code, 1860. In an appeal preferred by the detenu to this Court i.e. Criminal Appeal No.721 of 1989, no relief was granted. The order and the sentence passed by the I Additional Sessions Judge, Chennai was confirmed by this Court, vide judgment dated 08.04.2000. 6. According to the State, the period of incarceration suffered by the detenu, as on 15.09.2008, worked out to six (6) years, six (6) months and seven (7) days. The manner in which, the said period has been calculated by the State is given in a tabular form in the counter affidavit filed on its behalf. For the sake of convenience, the said table is extracted hereafter: Calculation Table as on 15.09.2008. The manner in which, the said period has been calculated by the State is given in a tabular form in the counter affidavit filed on its behalf. For the sake of convenience, the said table is extracted hereafter: Calculation Table as on 15.09.2008. Description Date Month Year Date taken for calculation 15 09 2008 Date of sentence 18 08 1989 27 00 19 Bail At-large 3987 days (16.09.1989 to 17.08.20000) 07 11 10 20 01 08 Leave At-large 588 days 13 07 01 Total incarceration period 07 06 06 7. The petitioner avers that she is unable to access the record with regard to the period in issue spanning between 20.05.1988 and 18.08.1989. For this purpose, our attention has been drawn to the fact that the petitioner had sought information via, R.T.I. route by filing an application with the Jail Superintendent, Central Prison, Puzhal, Chennai. This application is dated 20.03.2017. The Public Information Officer of the said jail authority, in turn, has given the following response: “TAMIL” which, broadly, translated reads as follows : The documents pertaining to the information sought by the convict prisoner Mr. K. Jayapaul, S/o. Kannan, under the Right to Information Act, 2005, via the letter in the reference cited, were destroyed in the arsoning that took place on 17.11.1999, during the agitation, when the Central Prison, Chennai, situate at Park Town. Hence, the same cannot be furnished. (emphasis is ours) 8. In addition to the above, our attention has also been drawn to another R.T.I. application filed with the Inspector of Police, R3 Ashok Nagar Police Station, Ashok Nagar, Chennai; where, apparently, the record pertaining to the detenu ought to have been available, according to the petitioner, in the ordinary course. The reason that an R.T.I. Application was filed with the said authority, we are told, was because during the relevant period, investigation into the crime committed by the detenu was carried out under aegis of the said authority. It appears that R.T.I. application, accordingly, was preferred on 11.04.2017. The response, that the detenu obtained qua the said R.T.I. application, from the Inspector of Police, Law & Order, R-3, Ashok Nagar Police Station, Chennai, was as follows: In connection with your RTI application following particulars are furnished based on the details available on record in this office. 1. As required in question (1) of your RTI application Mr. Jeyapaul, S/o. Kannan was arrested. 2. 1. As required in question (1) of your RTI application Mr. Jeyapaul, S/o. Kannan was arrested. 2. As required in question (2) of your RTI application Mr. Jeyapaul was detained under judicial custody. 3. The questions raised in paras 3 to 7 are the particulars concerned to your husband's own particulars, no details are available in this office in respect of the above questions. In view of sec 2(j) of the RTI Act P.I.O is expected to furnish only those information's which are held by our under the control of the P.I.O. Hence no possibility for furnishing any information to the above questions. (emphasis is ours) 9. Crucially, apart from the above, it appears that the detenu also sought information with regard to the aforementioned period via, the Tamil Nadu State Legal Services Authority. The Tamil Nadu State Legal Services Authority, vide communication dated 19.09.2008, communicated the following to the detenu: Thiru V. Jayapal, Convict No. 4497 is hereby informed that the Jail Records pertaining to your remand period having been destroyed by fire, nothing could be done in the absence of proof of remand period and no writ could be filed. This is for your information. (emphasis is ours) 10. Pertinently, the petitioner has also filed a copy of the warrant of commitment dated 17.08.2000. The reason that the said warrant of commitment has been filed, is that, the petitioner seeks to demonstrate that there was a failure on the part of the, then, Presiding Officer in not recording the pre-trial detention suffered by the detenu. 11. The learned Additional Public Prosecutor concedes that the records qua the aforementioned period concerning the detenu are not available with the State. It is submitted that on account of act of arson in the prison, in which the detenu was lodged, the records of the prisoners incarcerated therein stood destroyed and therefore, the relevant record concerning the detenu is not available with the State. 11.1. It is not, however, disputed that as of today, the detenu has completed nearly fourteen (14) years of imprisonment. 11.2. It is to be noted that as per the counter affidavit, as on 30.07.2016, the detenu had completed thirteen (13) years and eleven (11) months of actual imprisonment. 12. Given these facts, what we are required to dwell upon is: whether or not this Court should give the benefit of doubt to the detenu. 13. 11.2. It is to be noted that as per the counter affidavit, as on 30.07.2016, the detenu had completed thirteen (13) years and eleven (11) months of actual imprisonment. 12. Given these facts, what we are required to dwell upon is: whether or not this Court should give the benefit of doubt to the detenu. 13. We have, at our end, attempted to glean information from the record placed before us. A close examination of the judgment via which, the detenu was convicted i.e., judgment dated 18.08.1989 would show that the detenu was taken into police custody on 24.05.1988. 13.1. In addition thereto, there is, also, available on record, a bail order dated 13.09.1989. 13.2. Besides this, there on record a warrant of commitment dated 17.08.2000 ; issued upon the detenu's appeal, C.A.No.721 of 1989, being dismissed by this Court, on 18.04.2000. Notably, there is an endorsement on the said warrant, which demonstrates that the detenu was released on 16.09.1989, and, thereafter, re-committed on 17.08.2000. There is nothing on record to show or, at least, the State, has not been able to place on record any material to persuade us that between 20.05.1988 and 18.08.1989, the detenu was on bail and not in custody as contended by him. 14. Clearly, the facts as they obtain do demonstrate that the detenu was in pre-trial detention during the period spanning between 20.05.1988 and 16.09.1989. 15. The question posed by us, hereinabove, which is, should this Court grant the benefit of doubt to the detenu, given the fact that the State has not been able to produce the relevant record, has been answered by a Division Bench of this very Court in the matter of: Kumar @ Kutty & Others Vs. State of Tamil Nadu. We may quote with profit the observations made in Paragraph Nos.3, 8 & 9 of the said judgment: ..... 3. When law is so clear and categorical, how did these prisoners miss out? The answer is not far to seek. Whenever a person is arrested by the Police during the course of investigation and remanded to custody by the Magistrate, a Remand Warrant of commitment in Judicial Form No. 59 appended to the Criminal Rules of Practice and Circular Orders, 1958 will be made ready with the signature and seal of the remanding Magistrate. This Remand Warrant is the passport to enter the gaol. This Remand Warrant is the passport to enter the gaol. When a prisoner is admitted to the prison, apart from the Admission Register, there are two other records viz., History ticket and Convict Register that are maintained in the prison under the Tamil Nadu Prison Rules. The Prison Authorities make necessary entries in these records about the admission of the prisoner. When the prisoner is granted bail by the Court, a bail bond in Form No. 45 of the Code will be executed by the sureties to the satisfaction of the Magistrate, who in turn would send the same to the prison along with the Release Order. On receipt of the bail bond, the Jail Authorities would obtain the signature of the prisoner in that bond and would release him thereafter, unless not required in any other case. The Prison Authorities will return the bail bond and the Remand Warrant to the Magistrate from whom they received them. On account of this, the Magistrate will know how long the prisoner was in custody. If the case is committed to the court of Sessions, the Magistrate is required to send the bail bond Form No. 45 and the Remand Warrant (Form No. 59) to the Sessions Court along with other records. If the Accused is convicted and sentenced to imprisonment by the Trial Court (be it the Sessions Court or the Magistrate), a Warrant of Commitment in Form No. 34 of the Code or in Judicial Form No. 71 of the Rules of Practice of sentence to Life Imprisonment should be prepared under the signature and seal of the Presiding Judge and should be sent to the prison along with the convict. It is the normal practice in the State of Tamil Nadu, for the Judicial Officers to calculate the period of detention undergone by the Accused during investigation and record the same in the warrant of commitment. The Convicting Court collects these particulars from the Remand Warrant and the Bail Bond that was returned by the Jail Authorities to the Magistrate. It is the normal practice in the State of Tamil Nadu, for the Judicial Officers to calculate the period of detention undergone by the Accused during investigation and record the same in the warrant of commitment. The Convicting Court collects these particulars from the Remand Warrant and the Bail Bond that was returned by the Jail Authorities to the Magistrate. Though we are not able to lay our hands on any Rule either in the Code or in the Criminal Rules of Practice, which casts a duty on the Presiding Officer to enter the pre-conviction detention particulars in the warrant of commitment, applying the Principle optimus interpres rerum usus [The best interpretation comes from usage], we propose to give legal imprimatur to this practice via this Order. In fact Section 476 of the Code permits lawful variations in the Forms: 476. Forms. Subject to the power conferred by Article 227 of the Constitution, the forms set forth in the Second Schedule, with such variations as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. 8. Whenever the Government decides to GRANT Pre-mature 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 11.9.2008, the Government has said that, the G.O. will apply to life convicts who have completed 7 years of actual imprisonment as on 15.9.2008. 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 post-conviction 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 neminem gravabit. [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. 9. Actus curiae neminem gravabit. [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. 9. We are informed by the learned Principal District and Sessions Judge, Chennai that prisoners are making Applications under the Right to Information Act asking the Trial Courts to furnish the pre-conviction detention particulars of their cases. It is but natural for the prisoners to use the provisions of the RTI Act and ask for these information’s. Therefore, relying upon the Constitution Bench Judgment of the Supreme Court in Bhagirath v. Delhi Administration, 1985 (2) SCC 580 , and the subsequent Judgment of the Supreme Court in Life Convict Laxman Naskar v. State of West Bengal, AIR 2000 SC 2762 , we have no hesitation in holding that the convict prisoners in these cases will be entitled to set off under Section 428, Cr.P.C. Denying them the benefit of set off will not only violate Section 428, Cr.P.C., but also Article 21 of the Constitution of India.... 16. Having regard to the principle set forth in the said judgment, with which we are in complete agreement, the benefit of doubt would have been given to the detenu. If the State is not able to produce record, the detenu cannot be denied the benefit of pre-detention period. The State is duty bound to keep a mirror image of prison records and other connected documentation to avoid their obliteration either by devious men or, on account of intervention by nature. This case is a telling example that the State ought to have in place a plan which allows continuation of its day-to-day function in case of a calamity. 16.1. Pertinently, in this case, there is no dispute before us, that if, the period between 20.05.1988 and 18.08.1989 is taken into account, then, as on 15.09.2008, the detenu would have suffered actual imprisonment of seven (7) years and more. 17. Having regard to the aforesaid reasons, we are inclined to allow the petition. It is ordered accordingly. The detenu will be released forthwith from custody unless his detention is required in connection in another case. 17. Having regard to the aforesaid reasons, we are inclined to allow the petition. It is ordered accordingly. The detenu will be released forthwith from custody unless his detention is required in connection in another case. Given the nature of the case, this order will be communicated to the concerned Jail Superintendent by the Registrar General of this Court via Fax.