Full Judgment
M. Karpagavinayagam, J.
1. In a complaint under Section 138 of the Negotiable Instruments Actfiled by the petitioner/complainant, the respondent/accused wasconvicted and sentenced to undergo simple imprisonment for 6 monthsand to pay a fine of Rs.5,000/-. While the same was challenged by theaccused in the appeal, the appellate Court confirmed the convictionand sentence. However, it would hold that the accused need notundergo the sentence, as he is entitled for remission of sentence ofsimple imprisonment for 6 months as per G.O.Ms.No.1013 dated 14.9.2000 and set the accused at liberty on remission in pursuance of the saidG.O. The said portion of the judgment is challenged in this revisionby the complainant, the petitioner herein.
2. I have heard Mr. N. Manokaran, the learned counsel for thepetitioner and Mr. B. Kumarasamy, the learned counsel for therespondent.
3. I have appointed Mr. I. Subramanian, the learned PublicProsecutor of the State, as Amicus Curiae to assist the Court toresolve the dispute which arises in this case.
4. On going through the records and the judgments referred to bythe learned counsel for the parties as well as the learned PublicProsecutor, I am of the considered opinion that the judgment impugnedregarding the remission of sentence rendered by the appellate Court inthe appeal is illegal and the same is liable to be set aside.
5. The reasonings for the same could be shown from three angles.
6. The first angle is this. The appellate Court, on hearing thesubmission made by the Public Prosecutor of the District before theappellate Court that the accused is entitled for remission of sentence of simple imprisonment for 6 months as per G.O.Ms.No.1013 dated14.9,200 0, accepted the same as gospel truth and released the accusedon remission as per the above G.O.
7. On going through the relevant records, it is noticed that boththe Public Prosecutor of the District and the appellate Court have notapplied their mind as to whether the Court has got powers to hold thatthe remission under a particular G.O. would be applicable to the caseon hand and whether such a direction could be given by the Courtitself to set him at liberty by invoking the said G.O.
8. The Apex Court, while dealing with the powers of the High Courtto grant remission, in a case reported in 2000 (1) M.W.N.(CR.) S.C. 78(STATE OF Tamil NADU AND OTHERS v. PADMA AND OTHERS), would categorically hold that the High Court has no power to grant remissionstraightaway and at the most, it can direct the Government to considerthe request as to whether the G.O. would be applicable to him. Therelevant observation is as follows:-
'After hearing the learned counsel for the parties, in our opinion, itis not for the High Court itself to order the grant of remission. TheHigh Court could only require the Government to consider the cases ofthe respondents for the grant of remission in accordance with law.Individual facts will have to be investigated and decision takenwhether and to what extent the remission can be granted and whetherthe orders on which reliance was placed are applicable.'
9. Earlier, on a similar line in GOPAL VINAYAK GODSE v. STATE OFMAHARASHTRA and STATE OF PUNJAB v. KESAR SINGH 199 7 (1) L.W.(Crl.) 157 the Supreme Court would hold that thedirection should not be given by the High Court for the prematurerelease or remission and set the accused at liberty forthwith and evenif the High Court could give such a direction, it could only directfor consideration of the case of premature release by the Governmentand the same should not be done by the Court itself.
10. Following the above principle, this Court in (1) PERIYALWAR AND OTHERS v. THE STATE OF TAMIL NADU AND OTHERS 2000 (1) M.W.N. (Cr.) 7 2; (2) VELUSAMI v. MAARACHI REDDIAR AND OTHERS 1996 (2) M.W.N. 195; and (3) RAMASAMY GOWNDER v. INSPECTOR OF POLICE would emphatically state that giving the benefit ofremission is not the duty of the Court of law but it is theadministrative function of the executive and as such, the Court cannotorder release of the accused on remission.
11. When such a restriction has been put even on the High Court, thisCourt is unable to understand as to how the District Court being theappellate Court could usurp the powers of the executive to orderremission merely on the improper concession given by the PublicProsecutor of the District, without knowing the law laid down on thesubject by the High Court and the Supreme Court.
12. This Court is of the definite view that the impugned portionof the judgment by the appellate Court which has been rendered on theincorrect advice of the Public Prosecutor of the District by invokingthe said G.O. and setting the accused at liberty in the Court itselfis clearly illegal.
13. The next angle is this. The trial Court convicted the accusedfor the offence under Section 138 of the Negotiable Instruments Act on4.7.2000 and sentenced him to undergo simple imprisonment for 6 monthsand to pay a fine of Rs.5,000/-. The appeal was filed on 12.7.200 0and notice was ordered on 19.7.2000. Admittedly, pending appeal, hewas on bail.
14. It is settled law, as laid down by the Apex Court in JOGINDERSINGH v. STATE OF PUNJAB AND OTHERS 2002 (1) C.T.C. 55 and STATE OF HARYANA AND OTHERS v. MOHINDER SINGH that a convict is not entitled to remission of sentence for the periodduring which he was on bail.
15. The Apex Court in STATE OF HARYANA AND OTHERS v. MOHINDER SINGH while quoting its judgment in JAIPRAKASH AND OTHERS v. STATE OF HARYANA AND OTHERS would give its extract as follows:-
'In other words, a prisoner is not eligible for remission of sentenceduring the period he is on bail or his sentence is temporarilysuspended. The submission that the petitioners who were temporarilyreleased on bail are entitled to get the remission earned during theperiod they were on bail, is not at all sustainable'.
16. While following the above judgment, the Apex Court would againreiterate in JOGINDER SINGH v. STATE OF PUNJAB AND OTHERS 2002 (1) C.T.C. 55 and would observe as follows:-
'With respect, we are unable to agree with the learned counsel for thesaid respondents. In other words, acceptance of this argument, in ouropinion, would reduce the criminal justice system to mockery as hasbeen said by this Court in NAURATTA SINGH's case : 2000 CriLJ1710 . In the case cited by the appellant, this Court has categoricallyheld that there is substantial difference between the words ' parole'and 'furlough' on one hand and the expression 'bail' on the otherhand. These judgments have also held that the persons who areenlarged on bail cannot claim the benefit of the period during whichthey were on bail for the purpose of counting the period of sentencealready undergone to apply the remission given by the Government. Inview of this clear enunciation of law, in our opinion, even by theinclusion of the word 'bail' in the notification of the PunjabGovernment an accused who has always remained on bail or has notserved the substantial part of his sentence cannot take advantage ofthe remission notification.'
17. This observation would make it clear that the accused wouldnot be entitled to the benefit of remission given under various G.Os.individually or cumulatively counted against the period during whichhe was on bail. Hence, the appellate Court ought not to have invokedthe G.O. against the principles laid down by the Apex Courtespecially when the accused was on bail.
18. The last angle is so important. Now the learned State PublicProsecutor appearing before this Court as Amicus Curiae would pointout that the G.O.Ms.No.1013 dated 14.9.2000 issued by the StateGovernment would not apply to the accused relating to the offenceunder Section 138 of the Negotiable Instruments Act on the reason thatthe Negotiable Instruments Act is a legislation within the exclusivecompetence of the Union Government and as such, any remission ofsentence for an offence under this enactment can be granted only bythe Central Government and not by the notification issued by the StateGovernment.
19. Let us now elaborate on this point.
20. The power of remission is traceable to Section 432 Cr.P.C.Section 432(2) Cr.P.C. is reproduced as follows:-
'When any person has been sentenced to punishment for an offence, theappropriate Government may, at any time, without conditions or uponany conditions which the person sentenced accepts, suspend theexecution of his sentence or remit the whole or any part of thepunishment to which he has been sentenced.'
21. Section 432 sub-Section (7) Cr.P.C. defines the expression 'appropriate Government' which reads as under:
'In thisSection and in Section 433, the expression ' appropriateGovernment' means,- (a) in cases where the sentence is for anoffence against, or the order referred to in sub-Section (6) is passedunder any law relating to a matter to which the executive power of theUnion extends the Central Government. (b) in other cases, theGovernment of the State within which the offender is sentenced or thesaid order is passed.'
22. Thus, the above Section gives powers to both the CentralGovernment and the State Government to suspend the execution of thesentence or to remit the whole or any part of the punishment to whicha person convicted of an offence has been sentenced.
23. The Governor of a State is empowered to grant remission ofpunishment or to suspend the sentence of any person convicted of anyoffence against any law relating to a matter to which the executivepower of the State extends.
24. Similarly, Article 72 of the Constitution of India confers thesaid powers on the President to be executed within the sphere of theexecutive power of the Union.
25. Now the question has to be considered in the light of theabove provisions as to whether the offence under Section 138 of theNegotiable Instruments Act under which the accused was convicted is alaw relating to a matter to which the legislative power of the Stateor the Union extends?
26. It cannot be debated that the legislation relates to thematter within the competence of the Union, the Central Governmentwould be the appropriate Government, and if the legislative enactmentwould be under the purview of the State, the State Government would bethe appropriate Government.
27. It is seen in List-1 of the Seventh Schedule of theConstitution of India that the offence against the laws in relation tothe matters in List-1 would be within the exclusive competence of theUnion Government. Entry 46 in List-1 of the Seventh Schedule wouldgive the followings:-
'Bills of exchange, cheques, promissory notes and other likeinstruments.'
Under entry 93 in List-I, it is stated that the offence against lawswith respect to any of the matter in this list would relate to theUnion Government.
28. Admittedly, the offence under Section 138 of the NegotiableInstruments Act is a legislation relating to the cheques as containedin Entry 46 in List-1 of the Seventh Schedule. Therefore, thislegislation would definitely fall under the exclusive competence ofthe Union Government. Hence, any remission of sentence for an offenceunder the Negotiable Instruments Act can be granted only by theCentral Government, as it would relate to the matters concerned withList-1 of the Seventh Schedule. As such, the G.O. issued by theState Government granting remission to some offences would not applyto the offence under the Negotiable Instruments Act.
29. When a similar question was raised in respect of the offencesunder Sections 489-A to 489-D I.P.C., the Apex Court in RAMANAIAH V.SUPERINTENDENT, CENTRAL JAIL would categorically hold that the remission issued by the State Government would not applyto the offences under Section 489-A to 489-D I.P.C., as those Sectionswould relate to the offences in respect of counterfeit of currencynotes and they are coming under Entries 36 and 93 of List-1 and hence,they are the matters which are exclusively within the legislativecompetence of the Union Government.
30. Applying this ratio of the decision to this case, it is clearthat the remission G.O., namely, G.O. Ms.No.1013 dated 14.9.2000,issued by the State Government will not apply to the conviction underSection 138 of the Negotiable Instruments Act as well.
31. For the reasons stated above, the impugned judgment regardingremission rendered by the appellate Court is set aside and thejudgment of the trial Court sentencing the accused to undergo simpleimprisonment for 6 months and to pay a fine of Rs.5,000/- for theoffence under Section 138 of the Negotiable Instruments Act isrestored.
32. However, the judgment of the trial Court needs some modification.The trial would hold that out of the fine amount of Rs.5,000/-, thepetitioner/complainant is entitled to compensation of Rs.2,500/-.Instead of the same, this Court would hold that the petitioner/complainant would be entitled to the entire amount of Rs.5,000/- ascompensation.
33. With this observation, the Criminal Revision Case is allowed.The trial Court is directed to take steps to secure the custody of therespondent/accused to undergo the remaining period of sentence.
34. This Court records its full appreciation for the effectiveassistance rendered to this Court by the Amicus Curaie,Mr. I. Subramanian, the Public Prosecutor of the State.