RAMESHWAR PRASAD Vs. STATE OF M P

JUDGEMENT

(1.) This order will also dispose of Tunliya v. State of M.P., Chaituram v. State of M.P., Mithu & others v. State of M.P., Sukha & another v. State of M.P..

(2.) These are habeas corpus petitions by the petitioners who are lifers, undergoing imprisonment in jails, having been convicted prior to 18/12/1978. They contend that they have completed 15 years of jail sentence including remissions and under trial period of detention on 15/8/1984, as such should be released in pursuance to special remission granted to the lifers by the State Government by its order dated 14.8.84 issued under section 432(1) of the Code of Criminal Procedure, 1973. Since then petitioner No. 9 Vishnu in Misc. Petitioner No. 2647 of 1985 has already been released and so his petition has become in fructuous. The State in its returns has contended that in the special remission granted by the abovementioned order on the occasion of the Independence Day of 1984, it was clearly mentioned that period of detention for the under trial period has to be excluded but the remissions granted will be included while computing the period of detention undergone. It is contended that as these petitioners have not completed 15 years of jail sentence excluding the period of detention as under trials on 15.8.84, they cannot be released. So the question to be determined in these petitions is as to whether the under trial period of detention has to be excluded while computing the period of detention?

(3.) Section 428 of the Code provided that where any 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 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. The Supreme Court in Kartar Singh v. State of Haryana had held that the benefit of set off contemplated under section 428 Cr. P. C. would not be available to life convicts because life of an accused being uncertain, imprisonment for life cannot be imprisonment for a term. But the aforesaid decision has been overruled by the Supreme Court in Bhagirath v. Delhi Administration by holding that person sentenced to imprisonment for life-sentence is for a term-convict is entitled to set off period of detention undergone as under trial prisoner subject to provisions of section 433- A and provided competent authority passes order under sections 432 and 433. The Supreme Court observed that to say that the imprisonment for life is not imprisonment for a term, is to offend not only against the language of the statute but against the spirit of the law; 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 to withdraw the application of a benevolent provision from a large majority of cases in which such benefits would be needed and justified. Section 432(1) of the Code provides that when any person has been sentenced to imprisonment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend or remit the whole or any part of the punishment to which he has been sentenced. The section confers power on the appropriate Government to suspend or remit a punishment unconditionally or conditionally. Articles 72 and 161 of the Constitution gives wider power to the President and the Governor to grant pardon, remit or commute or suspend sentence of any person and can be invoked even before conviction. In reChannusudu it has been held that the power to grant pardon or remission of sentence is in the essence an executive function after taking into various matters which may not be germane for consideration before a Court of law enquiring into the offence; the Court is accordingly, precluded from examining the wisdom or expediency of exercise of the power in a particular case. The Supreme Court in G. V. Godsa v. State of Maharashtra and Kushav Govind v. State of A. P. has held that the question of remission is exclusively within the province of the appropriate government and the Court cannot interfere in the matter. The Full Bench of the Punjab & Haryana High Court in Hukam Singh v. State of Punjab has held An order passed under Articles 72 and 161, Constitution of India and under section 401, Criminal P. C., is justifiable on any of the following grounds: -