In Re: R. Dhasan (Accused)

Padmini Jesudurai, J.—This appeal by the accused, convicted by the Chief Judicial Magistrate(Special Judge), Kanyakumari at Nagercoil in

C.C. No. 5 of 1985, for offences u/s 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1987 (Act 3 of 1947) and Section

161L, I.P.C. and sentenced to undergo rigorous imprisonment for a period of one year for the former offence without any separate sentence for

the latter, challenges the conviction and sentence.

The gravamen of the charge on which the conviction were rendered was that on 12.7.1984 the Appellant employed as a Village Administrative

Officer in Keezhkulam village and being a public servant in such capacity, by illegal means, abusing this position as a public servant, obtained for

himself a sum of Rs. 10/- for issuing a community certificate and income certificate to P.W.1, Masilamani.

Thiru N. Natarajan, Senior Counsel for the Appellant, did not challenge the correctness of the conviction; nor even the sentence. The only plea

that was put forward was that the Appellant was entitled to the benefits of G.O. Ms. No. 180, Home (Prisons IV) Department dated 28.1.1989

and G.O. Ms. No. 781, Home (P.R.C. Department) dated 11.4.1990 passed by the Government of Tamil Nadu u/s 432, Code of Criminal

Procedure each granting a remission of six months to convicted persons and that since the Appellant had been convicted on 28.2.1986 long prior

to the passing of the above two Government Orders, the Appellant gets a total remission of one year and the entire sentence imposed by the trial

Court would stand remitted Learned Counsel would refer to Sections 432 and 435 Code of Criminal Procedure and Articles 73, 162, 245, 246,

List III of Seventh Schedule of the Constitution of India, a combined reading of which would entitle the Appellant to the benefit of the above

Government orders. Learned Counsel, therefore, wanted a finding of this Court on the above fact and in the event of such finding, it would be

needless for the Appellant to surrender to the custody.

Learned Public Prosecutor also would refer to the above provisions of law and submit that the two Government Orders would apply to the

present case.

The short question that arises for consideration is, whether the Appellant, convicted for the above offences, would be entitled to the benefit of

the aforesaid two Government Orders.

G.O. Ms. No. 180, Home (Prisons IV) Department, dated 28.1.1989 to take effect from 3.2.1989 had been issued u/s 432 Code of Criminal

Procedure on the occas(Sic) of the assumption of office of the newly formed Government of Tamil Nadu and on the 20th death anniversary of Dr.

C.N. Annadurai falling on 3.2.1989. This order gives remission to certain classes of persons, who have been convicted and sentenced for various

offences, Paragraph 2(b) grants a remission of six months to prisoners other than those convicted for life. Paragraph 3 of the order excludes certain

categories of prisoners, with which were not presently concerned.

G.O. Ms. No. 781, Home (P.R.C. Department) dated 11.4.1990 to take effect from 14.4.1990. This is also issued by the Government of

Tamil Nadu u/s 432 Code of Criminal Procedure on the occasion of the centenary of poet Bharathidasan. In this order also, a total remission

except for certain offences is given to women, while for others excluding life convicts, a remission of six months is granted. This order also in

paragraph 3 excludes certain offences with which we are not concerned.

It is seen that both the above remission G.O. have been issued by the Government of Tamil Nadu u/s 432 Code of Criminal Procedure is as

follows:

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.

(7) In this section and in Section 433, the expression ""appropriate Government"" means,

(a) Incases where the sentence is for an offence against, any law relating to a matter to which the executive power of the Union extends, the

Central Government:

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

The above provisions would show, that regarding sentences for offences against any law relating to a matter to which the executive power of the

Union extends, it is only the Central Government that has the power to remit the sentence. Only in other cases, the State Government has the

power u/s 432, Code of Criminal Procedure to remit the sentence.

The extent of the executive powers of the Union and the States are found in Article 73 of the Constitution of India, the relevant portion of which

is an follows,

73(1): subject to the provisions of this Constitution, executive power of the Union shall extend,

(a) to the matters with respect to which Parliament has power to make laws: and

(b) provided that the executive power referred to in Sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by

Parliament extend to any state to matters with respect to which the legislature of the State has also power to make laws

Parallel provision regarding the extent of the executive power of the State is found in Article 162 of the Constitution of India, which is as

follows:

Subject to the provision of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the

State has power to make laws:

Provided that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the

State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by the Parliament upon

the Union or authorities thereof.

Since both the above Articles extend the executive power of the Union and the State to matters with respect to which the Union and the State have

the power to make laws, reference should next be made to Article 246 of the Constitution, dealing with the matters on which the Parliament as well

as the State Legislatures, could make laws. It is as follows:

(i) Notwithstanding anything in Clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters, enumerated in

List I in the Seventh Schedule in this Constitution referred to as the (""Union List"")

Notwithstanding anything in Clause(3), Parliament and subject to Clause(1), the Legislature of any State also, have power to make laws with

respect to any of the matters enumerated in List III in the Seventh Schedule in the Constitution referred to as the ""(Concurrent List"") (3) Subject to

Clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the

matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the ""State List"")

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that

such mater is a matter enumerated in the State List.

Entry 93 in List I includes in List II, offences against laws with respect to any of the matters in List I. Similarly, Entry 64 of List II, includes of

List II offences against laws with respect to any of the matters in list II. ""Corruption"" is included neither in List I nor in List II.

The Indian Penal Code (Act No. XLV of 1860) and the Prevention of Corruption Act, (Act No. III of 1947) have been passed by the

Parliament. Entry 1 in List III (concurrent list) of the Seventh Schedule of the Constitution is as follows:

Criminal law including all matters included in the Indian Penal Code at the commencement of this Constitution, but excluding offences against laws

with respect to any of the matters specified in List I or List II and excluding the use of Naval, military or air forces or any other armed forces of the

Union in aid of the civil power.

A reading of all the above provisions make it clear, that if the offence is against a law. which is within List I, the State Government has no

power u/s 432 Code of Criminal Procedure to grant remission. 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 u/s 432 Code of Criminal Procedure Section 161 I.P.C. deals with corruption.

The Prevention or Corruption Act, 1947 though passed by the Parliament, is not in list I and is traceable only to Entry(1) of List III extracted

above. The State Government therefore, can remit the sentences imposed both u/s 161 I.P.C., as well as under the Prevention of Corruption Act,

1947.

Section 435 Code of Criminal Procedure contains a different kind of limitation on the powers which the State Government could exercise u/s

432 Code of Criminal Procedure Section 435 Code of Criminal Procedure is as follows:

State Government to act after consultation with Central Government in certain cases (1) The powers conferred by Section 432 and 433 upon the

State Government to remit or commute a sentence, in any case where the sentence is for an o(Sic)ence (a) which was investigated by the Delhi

Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, or any other agency empowered to make

investigation into an offence under any Central Act other than this Code, or (b) which involved the misappropriation or destruction, of, or damage

to, any property belonging to the Central Government, or (c) which was committed by a person in the service of the Central Government while

acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the

Central Government.

(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been

convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to

separate terms of imprisonment, which are to run concurrently, shall have effect unless an order for the suspension, remission or or commutation,

as the case may be of such sentences has also been made by the Central Government in relation to the offences committed by such person with

regard to matters to which the executive power of the Union extends.

The instant case has been investigated only by the Inspector of Police. Vigilance and Anti-Corruption, Nagercoil and as such, it will not fall

under the prohibition contained in Section 435L Code of Criminal Procedure Investigation is not by any wing created by the Delhi Special Police

Establishment Act, 1946. No separate sentence has been given for the offence u/s 161 I.P.C. There is, therefore, no legal impediment to extend

the benefit of the abovesaid two Government Orders to the Appellant, convicted for the abovesaid offences.

In the result, the conviction of the Appellant as well as the sentence imposed on him by the trial Court are confirmed. The Appellant is entitled

to the benefit of G.O. Ms. No. 180, Home (Prison IV) Department, dated 28.1.1989, and G.O. Ms. 781 PRC Department dated 11-4-1990

each of which gives him a remission of six months. Since the entire sentence of imprisonment of one year stands remitted under the abovesaid two

Government Orders, it is needless for the Appellant (to surrender to custody. Fine amount has already been paid.

With these observations about the sentence, this appeal is dismissed.