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PETITIONER: STATE OF MADHYA PRADESH

       Vs.

RESPONDENT: MOHAN SINGH

DATE OF JUDGMENT20/09/1995

BENCH: BHARUCHA S.P. (J) BENCH: BHARUCHA S.P. (J) KIRPAL B.N. (J)

CITATION:  1996 AIR 2106            1995 SCC  (6) 321  JT 1995 (7)    87        1995 SCALE  (5)590

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      These appeals by special leave impugn the judgments and orders of  Division Benches  of the  High  Court  of  Madhya Pradesh. The  High Court  allowed several writ petitions and directed  the   respondent  State   to  give   to  the  writ petitioners the  benefit of  a special  remission which  the State had restricted to prisoners belonging to the Scheduled Castes and Scheduled Tribes and to female prisoners.      The remission  was granted  on the occasion of Republic Day, 1978,  under the  provisions of  Section 432(1)  of the Code of  Criminal Procedure.  In clause  (1) certain general remissions were  granted, with  which we  are not concerned. Clause (ii) dealt with the special remission and read thus:      "Special Remissions:-      In addition  to the  aforesaid remission      all female prisoners and those prisoners      as belonging to the scheduled castes and      scheduled tribes  notified under Article      341 and  342 of  Constitution. shall  be      given  by   way  of  Special  Remission,      further  remission   equal  to   general      remission   granted    to   them   under      paragraph 1  (a), (b),  (c) and  (d)  of      this order.      (b)  The  female   prisoners   and   the      prisoners belonging  to Scheduled Castes      and Scheduled  Tribes who have undergone      sentences  of  fourteen  years  or  more      inclusive  of   remissions,   shall   be      released.      (Note :-  Such prisoners  shall  not  be      dealt with  in accordance with paragraph      1(c) of  this order  but shall  be dealt      with only  in accordance  with paragraph      2(b) thereof.)"

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    The Principal  judgment is  in the first appeal. It was followed in the other appeals.      The  writ   petitioners  contended   that  the  special remission granted  to prisoners  belonging to  the Scheduled Castes and  Scheduled Tribes  and denied to other prisoners, such  as  the  writ  petitioner,  violated  their  right  to equality. He  prayed that  the State  should be  directed to allow the  special remission  to him.  The contention of the State in  its return  was that  prisoners belonging  to  the Scheduled Castes  and Scheduled  Tribes constituted  a class and the  special remission  could validly  be given to them. The High  Court came  to the  conclusion that the benefit of Article 15(4),  which the State relied upon, was unavailable as a defence inasmuch as the provision for special remission could not  be said  to have been made for the advancement of the Scheduled  Castes and  Scheduled Tribes.  The  grant  of special remission  to prisoners  belonging to  the Scheduled Castes and  Scheduled Tribes and denial of the same to other prisoners amounted  to discrimination. The High Court upheld the argument of the writ petitioner thus:      "You have  granted special  remission to      the prisoners  of the  Scheduled  Castes      and Scheduled  Tribes on  the  basis  of      caste and race only which is not covered      by Article  15(4), therefore,  treat  me      and other  prisoners equally and give us      the  same  remissions  which  have  been      allowed  to   the   prisoners   of   the      Scheduled  Castes   and  the   Scheduled      Tribes," The State  was directed  to give  to the writ petitioner the benefit of the special remission.      We are  in agreement  with the  view of  the High Court that there  was no  justification in  law for giving special remission to prisoners belonging to the Scheduled Castes and Scheduled Tribes.  In so  far as  these prisoners had broken the law  and were being punished for doing so, they stood on the same  footing as  all other prisoners. The invocation of Article 15(4) was wholly unjustified; the grant of remission to convicted prisoners belonging to the Scheduled Castes and Scheduled Tribes  can hardly be said to be a measure for the "advancement" of the Scheduled Castes and Scheduled Tribes.      Here we  part company  with the High Court. Having come to  the  conclusion  that  grant  of  special  remission  to Scheduled Caste  and Scheduled Tribe prisoners was unlawful, the proper  course to  adopt should  have been  to strike it down. It  was beyond  the High  Court’s power  to expand the reach of  the remission  so as  to give the benefit of it to the writ  petitioner, who  did not  belong to  the Scheduled Castes or  Scheduled Tribes.  If the  power  was  improperly exercised, The  High Court  could not,  in effect,  grant  a general remission  where the  State had  intended it  to  be restricted.      This Court  had made  it clear  that in  the event that special leave  was granted,  the respondents  would  not  be asked to  go back  to jail.  We think  that those  who  have obtained the  benefit of  the High  Court’s  order  must  be permitted to  retain it  and they  cannot now be required to serve out  the terms  in respect  of  which  they  got  such benefit.      The appeals are allowed. The judgments and orders under appeal are  set aside  but  the  respondents  shall  not  be required to  forgo the benefits they have obtained by reason thereof. There shall be no order as to costs.

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