Case Note & Summary
The petitioner, convicted under Sections 489-A to 489-D of the Indian Penal Code for offences relating to currency notes and bank notes, sought a writ of habeas corpus under Article 32 of the Constitution. He contended that a Government Order issued by the Governor of Andhra Pradesh on the occasion of Gandhi Centenary, granting special remission to certain categories of prisoners, entitled him to release. The jail authorities had initially released four co-accused under that G.O., but after the Inspector-General of Prisons intervened, the petitioner's release was stopped on the ground that the State Government lacked power to remit sentences for offences relating to currency, coinage, and legal tender, which are Union subjects. The petitioner had earlier approached the High Court under Section 491(1)(a) and (b) of the Code of Criminal Procedure, but his application was dismissed on 18 January 1973. The core legal question before the Supreme Court was whether the appropriate Government empowered to remit the sentence under Section 402(3) of the Code of Criminal Procedure and Article 161 of the Constitution was the Central Government or the State Government. The petitioner argued that the entire Indian Penal Code, including Sections 489-A to 489-D, fell under 'criminal law' in Entry 1 of List III of the Seventh Schedule, and that the exclusion clause in that entry operated only until a law was made by the Union or State on matters in List I or List II. He relied on Re N. V. Natarajan, A.I.R. 1965 Mad. 11, R. L. Aurora Ram Ditta Mal v. State of U.P. & Ors., A.I.R. 1958 All. 126, and certain observations in Seervai's Constitutional Law of India. The respondents maintained that the G.O. did not fall under 'criminal law' and that a combined reading of Entry 1 List III and Entries 36 and 93 List I made it clear that the matter fell outside the State's executive power, especially in view of Articles 72 and 73 read with the proviso to Article 162. The Court rejected the petitioner's contentions. It held that currency, coinage, and legal tender are expressly included in Entry 36 List I, and Entry 93 List I confers on Parliament the power to legislate with regard to offences against laws with respect to any of the matters in the Union List. Read together, these entries put it beyond doubt that currency notes and bank notes are exclusively within the legislative competence of the Union Legislature, and consequently, offences under Sections 489-A to 489-D relate to a matter to which the executive power of the Union extends. Hence, the appropriate Government to remit the sentence was the Central Government under Section 402(3) CrPC, not the State Government. The Court further explained that Entry 1 List III, after enlarging the ambit of criminal law by including the Indian Penal Code, expressly excluded offences against laws with respect to matters in List I or List II. The reason for this exclusion is that such offences are separately dealt with in Entry 93 List I and Entry 64 List II. The Government Order in question was not a 'criminal law' but an executive act of the Governor under Article 161 and therefore could not be brought within the State's legislative competence. Finally, the Court held that the erroneous release of the four co-accused by jail authorities did not confer any right on the petitioner to claim the benefit of the G.O. Accordingly, the writ petition was dismissed.
Headnote
A) Constitutional Law - Remission of Sentence - Appropriate Government - Constitution of India, 1950, Articles 72, 73, 161, 162; Code of Criminal Procedure, 1898, Sections 401, 402(3) - Offences under Sections 489-A to 489-D IPC relate to currency, coinage, legal tender, a Union List subject under Entry 36 List I, and Entry 93 List I gives Union legislative competence for offences against laws with respect to Union List matters; executive power follows legislative power under Articles 73 and 162. Held that the Central Government, not the State Government, is the appropriate Government to remit sentence for such offences (Paras Not mentioned). B) Constitutional Law - Distribution of Legislative Powers - Exclusion Clause in Entry 1 List III - Constitution of India, 1950, Seventh Schedule, List III Entry 1; List I Entries 36, 93; List II Entry 64 - Entry 1 List III includes criminal law and the Indian Penal Code at commencement but expressly excludes offences against laws with respect to matters in List I or II; offences under Sections 489-A to 489-D IPC are excluded because they fall under List I Entries 36 and 93. Held that the State cannot rely on the criminal law head to claim power to remit such sentences (Paras Not mentioned). C) Constitutional Law - Nature of Governor's Order - Article 161 Not Criminal Law - Constitution of India, 1950, Article 161 - The Government Order granting special remission was an act done in exercise of Governor's executive functions under Article 161, not a law falling under 'criminal law' in Entry 1 List III. Held that the G.O. could not be validated under the State's criminal law power (Paras Not mentioned). D) General Legal Principle - Mistaken Remission - No Right from Wrongful Release - Code of Criminal Procedure, 1898, Sections 401, 402 - The jail authorities released four co-accused by mistake under the G.O., but the wrong release of others did not give the petitioner a right to claim the same benefit. Held that no equality in illegality can be claimed (Paras Not mentioned).
Issue of Consideration
Which is the appropriate Government—Central or State—empowered to remit the sentence of a person convicted of offences under Sections 489-A to 489-D of the Indian Penal Code?
Final Decision
Writ petition dismissed. The Supreme Court held that for offences under Sections 489-A to 489-D IPC, the appropriate Government empowered to remit sentence is the Central Government, not the State Government. The State Government's G.O. Ms. No. 1321 dated 25 September 1969 did not apply to the petitioner because it was limited to offences against laws relating to matters to which the executive power of the State extended, and the petitioner's offences related to currency, coinage and legal tender, which are Union subjects. The Court further held that the mistaken release of four co-accused did not confer any right on the petitioner to claim the same benefit.
Law Points
- Remission of sentence
- appropriate government
- executive power follows legislative power
- Union List matters
- currency notes offences
- Central Government appropriate for remission under Section 402(3) CrPC
- State Government cannot remit offences under Sections 489-A to 489-D IPC
- exclusion clause in Entry 1 List III
- Governor's power under Article 161 extends only to State executive matters
- mistaken release confers no right
