JASWANT RAI Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHAT really falls to be determined in this reference is whether the right to obtain an opinion of the Court under Sub-section (2) of Section 401 of the Code of criminal Procedure is one which can be enforced by a writ of mandamus?

(2.) THE relevant facts, as stated by Gurdev Singh, J. , in his order of reference of 18th of August 1966, are indisputable and may briefly be set out. Jaswant Rai petitioner, a goldsmith of Ludhiana, along with two others--Ram Dulara and Pritam singh--was convicted on 29th of June, 1960 by a Magistrate under sections 457 and 380 of the Indian Penal Code for having committed on the night between 9th and 10th of September, 1959 a theft of papers from the Income Tax Office, ludhiana, and sentenced to two years' rigorous imprisonment on each count. The conviction as well as the sentence were affirmed in appeal by the Sessions judge, but in a revision petition, while the conviction was upheld, the sentence was reduced to rigorous imprisonment for one year in each case by the High court. The matter was agitated again by way of two separate appeals by the petitioner and Ram Dulara. On 3rd of March 1964 the appeals were dismissed by the Supreme Court. The petitioner, after his conviction was maintained by the supreme Court but before his arrest, applied to the State Government for remission of his sentence under Section 401 of the Code of Criminal Procedure. As the petitioner had not surrendered himself, his application was dismissed under the proviso to Sub-section (6) of Section 401 which says that no petition for remission by a person sentenced ' shall be entertained, unless the person sentenced is in jail. . ". The petitioner then surrendered to the jail authorities on 16th of August 1965 and on that date his wife moved an application for the suspension of his sentence till "the final decision by the Supreme Court on the reference from the State Government". The State Government then passed an order suspending the sentence of the petitioner pending a reference which was made to the Supreme Court on 29th of September 1965. The State Government made the reference because it was represented to it that some additional evidence bearing on the case had come to light. 2a. It is important at this stage to set out the provisions of Sub-sections (1) and (2) of Section 401 dealing with suspension, remission and commutation of sentences-

(3.) THE Registrar of the Supreme Court, in response to this reference, wrote to the state Government on 4th of December. 1965 that "their Lordships have carefully considered the question as to whether reference should be made to the Supreme court by the appropriate Government in matters falling under Section 401 (8) of the Code of Criminal Procedure, and they have come to the conclusion that in such matters the Supreme Court need not and should not be consulted. " The matter remained in a state of suspended animation till 16th of July 1966 when the Home secretary to the State Government asked for the file which was submitted to him by the Deputy Secretary on 2nd of August 1986. On 3rd of August 1966 the Home secretary recommended "the cancellation of the order of the suspension of the petitioner's sentence in view of the Supreme Court having declined to give any advice in the matter of remission. " The Governor of the Punjab, who had assumed the functions of the State Government on behalf of the President, accepted the recommendation on 6th of August 1966.