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Judgment
Jagadeesan, J.—In all these Writ Petitions the common question for consideration is whether the petitioners in these Writ Petitions are
entitled for remission of 36 months as per the Government Orders mentioned in paragraph (3) of the affidavit.
The contention of the counsel for the petitioners is that the petitioners are claiming remission in accordance with the seven Government Orders
mentioned in paragraph (3) of the affidavit and this Court has granted remission to such of these persons, who had been convicted for a period of
three years, in the order dated 28.10.1994 in Crl.O.P.Nos.3991/94 etc. Batch. Then the respondents released those persons who were granted
remission pursuant to the order of this Court dated 28.10.1994. After their release the respondents entertained a doubt and hence they rearrested
those persons. They filed H.C.P. Nos.1795 to 1801/94 contending that pursuant to the order of remission they are entitled to be released and their
arrest is illegal. A Division Bench of this Court by order dated 7.12.1994 allowed the H.C.Ps. and released those persons. The petitioners''
contention is that now respondents have taken a different stand contending that in view of G.O.Ms.No.1762 (Home) (Prisons) Department dated
20.7.1987, no remission can be granted to the petitioners as the petitioners had been sentenced under Prevention of Corruption Act. This
contention of the respondents cannot be sustained because this Court while disposing of a batch of Criminal Original petitions has taken to
consideration of this Government Order also and found that the petitioners therein were entitled for remission and directed the release of those
persons. So far as these petitioners are concerned, the learned Judge dismissed the Criminal Original petitions on the ground that the period of
conviction for these petitioners was four years and as such they have to undergo some more period of imprisonment. Once this Court has held that
the period of remission is available for the persons similarly placed as that of the petitioners, it is not open to the respondents now to contend that
the petitioners are not entitled to remission. The Learned Counsel for the petitioners further pointed out that when H.C.P. Nos.1795 to 1801/94
was ordered, the same issue was raised. However, the Division Bench did not go into it observing that the order passed in the Criminal Original
Petition is final.
The Additional Government Pleader on behalf of the respondents, contended that G.O.Ms. 1762, Home (Prisons) Department, dated
20.7.1987 makes it clear that remission cannot be granted to those persons who are sentenced to undergo imprisonment under the Prevention of
Corruption Act and that the petitioners cannot claim any remission, He further pointed out when this issue was argued before the Bench, the State
was permitted to agitate the findings given by the Single Judge in the Criminal Original Petitions by way of appeal before the Supreme Court.
I heard both the counsel. By order dated 28.10.1994 in Crl.O.P.Nos.3991/94 etc., batch, this Court has held as follows:
To such an arguments, I am unable to affix my seal of approval on the facts and in the circumstances of the case. There is no error, apparent on
the face of the records in the sense that even if the construction of the seven G.Os. as above, is accepted, the petitioners would, if at all, be entitled
to a remission of 32 months only, besides a set off for a period of about two months u/s 428 of the Code of Criminal Procedure, provided what
they say as to the period of pretrial detention runs to more than two months is true. Even giving remission to them for a period of 32 months as per
these seven G.Os. and giving set off to the period of pre-trial detention of about two months u/s 428 of the Code of Criminal Procedure, they have
to undergo the remaining period of imprisonment. So far as the petitioners in Crl.O.P.No.4009 of 1994 are concerned, their sentence of
imprisonment is for period of four years. In such state of affairs, there is some more period of imprisonment to be undergone by the petitioners in
all these CrI.O.Ps.
From this it is clear that the learned Judge has granted remission to all the peers, but however directed the release of these persons whose period
of sentence was already over, taking into consideration of remission period. So far as the petitioners are concerned the learned Judge observed
that the period sentence is for four years and as such the petitioners have to undergo some more period of imprisonment. Only on that ground the
Criminal Original Petitions were dismissed. Once this Court has held that the petitioners are entitled to remission, unless and until the order is set
aside, it is not open to the respondents to contend that the petitioners are not entitled to remission in view of G.O.Ms. No. 1762, Home (Prisons)
Department, date 20.7.1987. It is not disputed by the counsel for the respondents that the learned Single Judge has taken into consideration this
Government Order also while he passed the orders in the Criminal Original Petitions.
Learned Additional Government Pleader pointed out that even though the State has sought for permission before the Division Bench while
H.C.P.Nosl795 to 1801/94 were argued, it is not known as to whether the State has filed any appeal against the order of the learned Single Judge
in the Criminal Original Petitions. In fact, the Government in its proceedings dated 27.1.1995 has decided not to file any appeal against the
judgment of this Court in H.C.P.Nos.1795 to 1801/94. It virtually confirms the order of the single Judge. Except to the reference to said G.O.Ms.
No. 1764, Home (Prisons) Department, dated 20.7.1987, the respondents have no objection for granting remission to the petitioners. I am of the
view that since the matter has already been decided by this Court in Crl.O.P.Nos.3991/94 etc., batch, the petitioners are entitled to the remission
as prayed for. Accordingly all the Writ Petitions are allowed.