A. Ramamurthi, J. - (1.) PETITION filed by the petitioner under Section 482 Cr.P.C. for the relief that the petitioner is entitled to the benefit or remissions in G.O.Ms. No. 279 dated 23.2.1992, G.O.Ms. No. 296 dated 20.2.93 and G.O.Ms. No. 205 dated 23.2.94 and direct the second respondent to give effect to these GOs. and set him at liberty in C.C. No. 26/87 on the file of IX Additional Sessions Judge, Madras now re -designated as VI Additional Sessions Judge, Madras.
(2.) THE case in brief is as follows: The petitioner is the first accused in C.C. No. 26/87 and by judgment dated 30.9.1991 the Trial Court convicted him for an offence under Sections 120B, 420, 467, 471 read with 467 IPC and 5(1)(d.) read with 5(2) of the Prevention of Corruption Act and sentenced him to undergo imprisonment as well as fine. The petitioner preferred C.A. No. 641/91 and by Judgment dated 30.4.1998, set aside the conviction under Section 120 -B IPC, but confirmed the convictions recorded by the Trial Court under other charges, and the imprisonment was reduced to R.I. for 1 year and to pay a fine of Rs. 1,000/ - for each of the offence under IPC. (3 counts). The sentences were ordered to run concurrently. The petitioner is entitled to get remission as per the GOs issued by the Government of Tamil Nadu under Article 161 of the Constitution of India. The Government of Tamil Nadu has allowed the remission of 6 months out of the imprisonment to certain classes of prisoners who have been convicted for the various offences by the Courts in the State of Tamil Nadu and sentenced to various terms of imprisonment other than life imprisonment. His case was investigated by C.B.I., Special Police Establishment, - Madras since the offences were committed while he was working in a Nationalised Bank and it is the case of the prosecution that the Nationalised Bank was cheated. The State Police Agency is also investigating and filing cases in respect of offences mentioned earlier. The petitioner also relied upon the decisions of the Apex Court in, 1991 S.C.C.(Crl) 845 (Ashok Kumar 3(a) Golu vs. Union of India and others) and also, 1990 S.C.C. (Crl.) 419 (State of Punjab and others v. Joginder Singh and others). Even after the introduction of Section 435 -A of Cr.P.C., the Government of Tamilnadu in exercise of the power conferred under Article 161 of the Constitution of India has issued Government Orders remitting the unexpired portion of sentence of imprisonment for life passed on the 370 convicts who had completed 10 years of actual imprisonment on 15.09.96. The persons awarded life imprisonment were also granted concession inspite of the provisions contained in Section 433 Cr.P.C. Whenever the Government wanted to deny the benefit of premature release/concession/remission for prisoners of certain categories, they were specifically mentioned in the G.O. The persons whose cases come under Section 435 Cr.P.C. were also excluded from consideration. When the case of persons who were convicted and whose case were investigated by C.B.I, under the Special Police Establishment is specifically excluded under Clause 2(b) and Clause 3 of the 3 G.Os referred to, it can be said that the case of the petitioner is covered under the above 3 G.Os and he is entitled to remission as the same was issued under Article 161 of the Constitution of India. Further, it is not necessary that while invoking Article 161 of the Constitution of India, the Governor of Tamil Nadu should consult the Central Government. Article 72 and 161 are beyond any legislative power to curb or confine. Now, Non -Bailable warrant has been issued to execute the warrant. The petitioner is entitled to get the benefit of remission in view of the aforesaid 3 G.Os and hence the petition. The learned Public Prosecutor for C.B.I, opposes the application and stated that in view of Section 435 Cr.P.C, the petitioner is not entitled to claim the benefit of the aforesaid 3 GOs.
(3.) HEARD the learned counsel of both sides.;