D.D. Sinha, J.
1. Heard Mr. Bhat, the learned counsel for the petitioner and Mr. Gavai, the learned Public Prosecutor for the respondents.
2. The learned counsel for the petitioner contended that the trial Court acquitted the present petitioner for the offences punishable under Sections 7, 12 and 13(2) of the Prevention of Corruption Act. The State preferred an appeal against acquittal in this court and this court allowed the said appeal of the State and set aside the order of acquittal and convicted the petitioner for the offences punishable under Sections 7, 12 and 13(2) of the Prevention of Corruption Act, and sentenced him to suffer Rigorous Imprisonment for two years and imposed a fine of Rs. 5,000-00. The counsel for the petitioner further contended that pursuant to the above referred judgment of this court, the petitioner was sent to Central Prison, Nagpur, on 22-9-1993. The petitioner, being aggrieved by the Judgment and Order of this court, filed an appeal before the Supreme Court bearing No. 636 of 1995, which was admitted by the Apex Court and the petitioner, vide order, dated 27-9-1993, passed by the Supreme Court, was released on bail. The Apex Court on 26-4-2001 dismissed the said appeal of the petitioner and, therefore, the petitioner was sent to Central Prison, Nagpur, on 8-6-2001.
3. The learned counsel for the petitioner contended that in the year 1997, the Government of Maharashtra issued Guidelines/Notification on remission on account of completion of fifty years of independence, which is dated 6-8-1997, and bears No. R.T.P. 1097/1/47/PRS-3. It is contended that though the Government has issued the above referred notification and respondents 2 and 3 extended benefit of these guidelines to other convicts in respect of remission, the same benefit is denied to the present petitioner only because the petitioner was awarded punishment under the Central Act. The relevant portion of the said Notification reads thus (though in the present case we are concerned with Sub-clause (iii) :--
'(2) Similarly, the prisoners falling under the below mentioned categories be not granted remission as mentioned in Paragraph No .1.
(i) The prisoners who are in jail for the offence punishable under Sections 106 and 110 of Criminal Procedure Code (Chapter Cases),
(ii) The prisoners sentenced for the offence punishable under Sections 120 to 130 of the Indian Penal Code (The offence pertaining to activities against the State).
(iii) The prisoners sentenced under the Central Act.
(iv) Civil prisoners and
(v) The children from the Remand Home for children.'
The counsel for the petitioner contended that the 1997 notification issued by the State Government is made applicable and remission is granted to the prisoners coming under Category (i). However, the petitioner is deprived of the said benefit of remission flowing from the 1997 notification arbitrarily and this act of the respondents is not only unjust, unfair and arbitrary, but the same is violative of Article 14 of the Constitution of India.
4. It is contended that the said guidelines/notification issued by the State Government give benefit in the form of remission to some categories of convicts and at the same time denies that benefit to the convicts who are sentenced under Central Act, thereby creating discrimination amongst the equals and, therefore, the same is violative of Article 14 of the Constitution of India and cannot be sustained.
5. The counsel for the petitioner contended that the State Government has not given any reasons in the guidelines/notification of 1997 for excluding the prisoners sentenced under the Central Act from the facility of remission which is made applicable to other prisoners and, therefore, there is no reasonable basis for such classification carved out by the State Government and the notification is, therefore, violative of Article 14 of the Constitution of India. In order to substantiate his contention, reliance is placed on the Judgment of the Madras High Court in R. Dhasan reported in The 1992 36 MLJ (Criminal) 18.
6. Mr. Gavai, learned Public Prosecutor appearing on behalf of the respondents, contended that under section 432 of the Criminal Procedure Code, for remission of sentence Appropriate Government is the proper authority for granting the same. It is contended that the benefit of remission though was extended to certain categories of prisoners, however, some categories of prisoners are excluded and this classification is based on nature of offence and, therefore, the same is not ultra vires, nor violative of Article 14 of the Constitution. It is contended that the classification made by the State Government is reasonable and as such does not violate the guarantee given by Article 14 of the Constitution. It is submitted that the Executive Wing of the State has demarcated certain categories keeping in view the deterrent punishment prescribed under law. It is contended by Mr. Gavai that the State Government has issued the 1997 Notification/Circular under Sub-section (i) of Section 432 of the Criminal Procedure Code. It is contended that under the said provision, the appropriate Government has been authorized to exercise the power of suspension of execution of sentence or remit the whole or any part of the punishment to which the accused is sentenced. It is submitted that though the remission is granted to the category of prisoners mentioned in Clause (1), the same is denied to the prisoners falling within the ambit of Clause (2) of the notification in view of the nature of offence committed by the convict and awarding of sentence. It is contended that in fact it is not necessary for the State Government to give reasons in the notification while making the classification. It is submitted that the 1997 notification is not discriminatory in that sense of the term and, therefore, there is no requirement in law that the State Government is obliged to give specific reasons in the notification. Mr. Gavai, learned Public Prosecutor, submitted that the impugned notification is neither violative of Article 14 of the Constitution, nor is bad in law on account of non-mentioning of reasons in the notification.
7. Mr. Gavai, learned Public Prosecutor, contended that even otherwise the State Government is not the appropriate Government, which is empowered to remit the sentence of the person convicted under the provisions of the Prevention of Corruption Act, since it is a Central Act and the appropriate Government is Central Government. It is contended by the Public Prosecutor that if the offence is against a law which is within the List I, the State Government has no power under section 432 of the Criminal Procedure Code to grant remission. Similarly, if the offence is against any law with respect to any of the matters specified in Lists II and III, the State Government has the power to grant remission under section 432 of the Criminal Procedure Code. The Prevention of Corruption Act though passed by the Parliament, it is not either in Lists I, II or III of the Seventh Schedule of the Constitution and, therefore, in view of Entry 97, Parliament alone has a residuary power to legislate in this regard and, therefore, the Central Government alone is the appropriate Government and has executive power to grant remission under Section 432 of the Criminal Procedure Code, and not the State Government.
8. We have considered the contentions canvassed by the respective counsel and perused the Notification, dated 6th August, 1997. It is not in dispute that the State Government issued the impugned notification under Sub-section (i) of section 432 of the Criminal Procedure Code.
9. It must be borne in mind that if a law deals equally with the members of the well defined class, it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. It is for the State Government to determine what categories it would embrace within the scope of the notification and merely because certain categories, which would stand otherwise on the same footing as those which are covered by the notification, are left out, would not render the notification discriminatory or violative of Article 14 of the Constitution of India. Similarly, what Article 14 prohibits, is class legislation, and not a reasonable classification for the purpose of legislation. If the Legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons. At the same time, the classification must be founded on intelligible differentiation which distinguishes persons or things that are grouped together from others and that group and that differentiation must have rational reason to the object sought to be achieved by the statute in question. A classification would be justified if it is not palpably arbitrary. If there is equality and uniformity within the group, the law will not be condemned as discriminative, though due to some fortuitous circumstances arising out of a peculiar situation, some included in the class get an advantage over the others so long as they are not singled out for special treatment.
10. Exclusion of the category of prisoners sentenced under the Central Act in Sub-clause (iii) of Clause 2 of the notification, itself does not render the notification arbitrary or violative of Article 14 of the Constitution. The prisoners sentenced under Central Act is a separate category/class carved out under the impugned notification to which the benefit of remission is not extended. It is apparent that the prisoners, who are convicted under the Central Act, are denied the benefit of remission. It is not the case that a prisoner belonging to the category of convicts sentenced under the Central Act is treated differently by the appropriate Government. It is not impermissible to carve out a class amongst classes if such classification is reasonable, just and fair. The persons sentenced under the Central Act is a class by itself and the prisoners falling in this class are excluded from the benefit of remission which is available to other categories of prisoners shown and mentioned in the notification. The persons sentenced under the Central Act, as a separate class, cannot be equated or compared with the category of other prisoners shown in the notification, who undoubtedly are from the different categories and classes altogether and, therefore, the comparison in such a situation would be comparing unequals. In the circumstances, we are of the considered view that the impugned notification is neither arbitrary, nor violative of Article 14 of the Constitution of India.
11. It would be proper at this stage to consider the scheme envisaged in Sub-section (i) of Section 432 of the Criminal Procedure Code. Section 432 of the Code contemplates power to suspend or remit sentences and Sub-section (1) reads thus :--
'(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.'
The scheme of the provision of Sub-section (1) contemplates that appropriate Government is authorized to exercise power of suspension of execution of the sentence or the remission either in whole or in part with or without imposition of any condition. In paragraph 1 of the impugned notification, dated 6-8-1997, various types of sentences awarded to the prisoners have been mentioned to whom remission can be granted and certain eligibility criteria has been laid down, and in para 2 of the notification, remission has been denied to certain categories of prisoners. In the instant case, we are concerned with the category mentioned in Sub-clause (iii) of Para 2, which deals with categories of prisoners who are convicted under the Central Act.
12. While scrutinizing the list of prisoners mentioned in the entire notification, the State Government appears to have applied its mind while granting remission to some and denying the said benefit to others. The prisoners, under certain offences, which relate to offences punishable under Sections 106 and 110 of the Criminal Procedure Code (Chapter Cases), the prisoners sentenced for the offences punishable under Sections 120 to 130 of the Indian Penal Code (the offences against the State), Civil Prisoners, Children of the Remand Home as well as the prisoners sentenced under the Central Act are denied the benefit of remission. In other words, these categories of prisoners are excluded from the purview of grant of remission, which is otherwise applicable to rest of the categories of prisoners. In view of the aforesaid circumstances, it is difficult for us to hold that the State Government did not apply its mind while denying the said benefit to the prisoners under certain categories of offences as referred to hereinabove.
13. We have to bear in mind that in case of conviction in respect of certain offences under the Central Act, where the Central Government is an appropriate Government, the State Government has no power to grant remission under Subsection (i) of Section 432 of the Criminal Procedure Code and, therefore, the State Government in such a situation has rightly excluded the convicts from the ambit of the notification. In the instant case, it is not in dispute that the Prevention of Corruption Act, though passed by the Parliament, is not either in Lists I and II, or List-III and, therefore, the State Government would be incompetent to legislate in this regard and consequently shall not have executive powers in this regard and, therefore, shall not be an appropriate Government as contemplated in Sub-section (i) of Section 432 of the Criminal Procedure Code.
14. Similarly, Entry-I of Concurrent List reads thus :--
'Criminal Law including all the matters included in the Indian Penal Code at the commencement of this. Constitution, but excluding offences against the laws with respect to any of the matters specified in List-I or II and excluding the use of Naval, Military or Air Force or any other armed forces of the Union in aid of civil power'
Though the language used in Entry-I of List-Ill would show that the ambit of Criminal Law was enlarged by including in it the Indian Penal Code and thereafter from such enlarged ambit all the offences against laws with respect to any of the matters specified in List-I or List-II were specifically excluded. The Prevention of Corruption Act, 1947 is a special legislation and is passed by the Parliament. It is also not in dispute that there is no entry in respect of Prevention of Corruption Act included in any of the three Lists and, therefore, the Central Government has a residuary power in view of Entry 97 in the Union List-I to legislate in respect of the subject which is not included in Lists-11 and III mentioned in the Seventh Schedule of the Constitution and, therefore, the Central Government, alone would be entitled to exercise executive power in this regard and would be an appropriate Government as contemplated in Sub-section (1) of Section 432 of the Criminal Procedure Code.
15. Similarly, Article 161 of the Constitution empowers the Governor of a State to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted for any offence against any law relating to a matter to which the executive power of the State extends. Article 72 confers similar powers on the President, to be exercised within the sphere of the executive power of the Union.
16. In the instant case, the petitioner is convicted for the offences punishable under Sections 7, 12 and 13(2) of the Prevention of Corruption Act. The Prevention of Corruption Act is passed by the Parliament and since the legislative power in this regard vests in the Central Government, it is the Union Government alone which is entitled to exercise executive power in this regard, as it is well settled that the legislative power, whether of Union, or State, is coextensive with its respective legislative powers and hence in the instant case the Union Government alone has the executive power and will be an appropriate Government to grant remission in view of Section 432 of the Criminal Procedure Code. Hence in our considered view, the State Government is not the appropriate Government to exercise power of remission of sentence contemplated under Section 432 of the Criminal Procedure Code and justified in excluding the prisoners convicted under the Prevention of Corruption Act, which is a Central Act.
17. In view of the above referred circumstances, we with respect do not concur with the view expressed by the learned Judge of the Madras High Court in R. Dhasan reported in The (1992) 36 MLJ (Criminal) 18.
No case is made out for interference. Writ Petition is misconceived, devoid of substance and is dismissed. No order as to costs.