Rajan vs The Home Secretary, Home Department of Tamil Nadu and Ors.

HELD: 1. Section 27(3) of the Arms Act having been declared ultra vires in terms of the judgment of Supreme Court in *State of Punjab the conviction and sentence awarded to the petitioner in relation to the said offence cannot be reckoned in law. Even so, the petitioner is faced with the conviction and sentence awarded for other serious offences under Section 395 IPC for 7 years’ rigorous imprisonment, as also under Section 3 read with Sections 25(1A) and 27(3) of the Arms Act with sentence of rigorous imprisonment for 5 years for the said offences. However, in view of the exposition of the Constitution Bench in **Muthuramalingam case, the sentences in respect of offences under Section 395 IPC and Section 3/25(1A) of the Arms Act also cannot be reckoned for considering the proposal for premature release of the petitioner, for, he has already undergone the sentence periods awarded for the said offences which were to run concurrently. [Para 10][1044-D-F]

**Muthuramalingam and Ors. v. State represented by Inspector of Police (2016) 8 SCC 313 : [2016] 5 SCR

30 – followed.

*State of Punjab v. Dalbir Singh (2012) 3 SCC 346 : [2012] 4 SCR 608 – relied on.

2. Remission or commutation granted by the competent authority for any one of the offences does not ipso facto result in release of the prisoners for other offences for which he has been convicted and sentenced at one trial. [Para 12][1047-A]

3. In the present case, no doubt the petitioner has been convicted and sentenced for offences punishable under the Arms Act as a result of which the requirement of “consultation” may have triggered. However, the conviction and sentence in reference to the offence under Section 27(3) of the Arms Act, having been declared ultra vires and unconstitutional; and the sentence awarded to the petitioner in reference to offence under Section 3 read with Section 25(1A) of the Arms Act having already been completed by the petitioner as it was to run concurrently with life imprisonment, even these offences cannot be reckoned for considering the representation made by the petitioner. Resultantly, there would be no need to consult the Central Government and, for the same reason, the presence of Central Government in this petition is not essential. The representation of the petitioner will have to be considered only in reference to the sentence of life imprisonment concerning offences under Sections 302 and 307 of IPC, respectively. [Paras 13 and 14] [1047-C-E; 1048-D]

4. The petitioner has been convicted on 3 counts for offence under Section 302 IPC and on 4 counts for offence under Section

307 IPC, and in relation to which he has been given life imprisonment on each count. In that view of the matter, keeping in mind the exposition in **Muthuramalingam and *Sriharan cases, petitioner may succeed in being released prematurely only if the competent authority passes an order of remission concerning all the seven life sentences awarded to him on each count. But that would be a matter to be considered by the competent authority. [Para 15][1048-D-F]

*Union of India v. V. Sriharan alias Murugan and Ors. (2016) 7 SCC 1 : [2015] 14 SCR 613 – referred to.

5. It is well settled that grant or non-grant of remission is the prerogative to be exercised by the competent authority and it is not for the Court to supplant that procedure. Indeed, grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate Government in terms of Sections 432 and 433 of Cr.P.C., to be exercised by the competent authority after taking into account all the relevant factors, such as it would not undermine the nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government. The question as to whether the petitioner should be granted remission and premature release in respect of all the counts at one stroke, is a matter to be considered by the appropriate Government in exercise of power under Sections 432 and 433 of Cr.P.C. We do not wish to dilate on that aspect. [Paras

16 and 17][1048-G-H; 1049-A-B; D-F]

State of Tamil Nadu and Ors. v. P. Veera Bhaarathi 2019 (2) SCALE 225 – distinguished.

6. The respondents cannot be directed to release the petitioner forthwith or to direct the respondents to remit the remaining sentence and release the petitioner. The petitioner, at best, is entitled to the relief of having directions issued to the respondents to consider his representation dated 5th February, 2018, expeditiously, on its own merits and in accordance with law. The fact that the petitioner’s request for premature release was already considered once and rejected by the Advisory Board of the State Government ought not to come in the way of the petitioner for consideration of his fresh representation made on 5th February, 2018. With the passage of time, however, the situation may have undergone a change and, particularly, because now the claim of the petitioner for premature release will have to be considered only in reference to the sentence of life imprisonment awarded to him for offences under Section 302 (3 counts) and Section 307 (4 counts) of IPC, respectively. [Para 18][1049-E-G; 1050-D-E]

7. The stipulation in the order dated 1st February, 2018, issued by the Home Department would not make the petitioner ineligible because he was also tried for offence of dacoity punishable under Section 395 IPC. Considering the fact that the sentence awarded for the said offence has already been completed by the petitioner and thus the remission sought by the petitioner is presently limited to offences punishable under Sections 302 and 307 IPC respectively, for which he has been sentenced to life imprisonment on more than one count. [Para 19][1050-E-G]

8. The competent authority is directed to process the representation made by the petitioner dated 5th February, 2018 (Annexure-P6) and take it to its logical end expeditiously and preferably within four months, in accordance with law, without being influenced by the rejection of the earlier representation vide order dated 14 th June, 2010, by the State Government. Consultation with the Central Government would not be necessary and the State Government, being the appropriate Government, must exercise power conferred upon it, in terms of Sections 432 and 433 of Cr.P.C. All questions to be considered by the appropriate Government are left open. [Para 20] [1050-G-H; 1051-A-B]