STATE OF MADHYA PRADESHversusMOHAN SINGH

A                      STATE OF MADHYA PRADESH
                                  v.
                             MOHAN SINGH

                             SEPTEMBER 20, 1995

B                 [S.P. BHARUCHA AND B.N. KIRPAL, JJ.]

          Climinal Law :

          Code of Criminal Procedure, 1973:
c         S.432(1)-Grant of special remission by State Govemment-R.estlicted
    only to SC/ST and female plisoners-Held, not valid since all prisoners are
    equal and is not a measure for advancement of SC/ST-Hence not covered
    imderA1t. 15(4) of the Constitution of India-High Court could have quashed
    the special remission-Not to have granted a general remission where the
D   State intended that to be restricted-However, .person who obtained the
    benefit of High Court's order permitted to retain it-Constitution of
    India-Art. 15(4).                                                             '   '


          On the occasion of Republic Day, 1978, under the provisions of
    Section 432(1) Cr.P.C., the State of Madhya Pradesh granted special
E   remission to Scheduled Castes/Scheduled Tribes and female prisoners.

          Respondents filed writ petitions before the High Court claiming that
    such remission should be granted to them also, as otherwise, it violated
    their right to equality. State contended that SC/ST pris~ners constituted
    a class and special remission could validly be given to them. The High
F   Court held that the benefit of Article 15(4) relied upon by the State was
    not a valid defence in as much as the provision for special remission could
    not be said to have been made for the advancement of SC/ST.

          Declaring it to be discriminatory, the High Court directed the State
G to give the benefit of special remission to the writ petitioners. Hence this
    appeal by the State of Madhya Pradesh.

          Allowing the appeal, this Court

          HELD : 1. There was no justification in law for giving special
H remission to prisoners belonging to the Scheduled Castes and Scheduled
                                       842
                        STATE v. MOHAN SINGH                             843

Tribes. In so far as these prisoners had broken the law and were being          A
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. [845-E]
                                                                                B
      2. Having come to the conclusion that the 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 ofthe remission so as to give
the benefit of it is the writ petitioner, who did not belong to the Scheduled   C
Castes or Scheduled Tribes. The power to grant the remission lay with the
State. If the power was improperly exercised, the High Court could quash
the exercise; but it could not grant a general remission where the State
had intended it to be restricted. [845-G-H]

      3. However, those who have obtained the benefit of the High Court's       D
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. [846-A]

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2289 of
~                                                                               E
     From the Judgment and Order 7.8.80 of the Madhya Pradesh High
Court in Misc. Petition No. 175 of 1980.

                                   WITH
                                                                                F
      Civil Appeal Nos. 2278-79/86, 523/87 and 1035 of 1987.

      From the Judgment and Order dated 18.11.80, 21.11.80 & 31.10.80
of the Madhya Pradesh High Court in Misc. P. Nos. 649/80, 652/80, 608,
and 524 of 1980.
                                                                                G
      Sakesh Kumar, T.C. Sharma and S.K. Agnihotri for the Appellant.

      Sushi! Kr. Jain and R.C. Kaushik for the Respondent.

      The following Order of the Court was delivered :                          H
    844                   SUPREME COURT REPORTS (1995] SUPP. 3 S.C.R.

A          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
B   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 (i) certain general remissions were granted, with which we are
    not concerned. Clauses (ii) dealt with the special remission and read thus:
c
            "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 Articles 341 and 342 of Constitu-
D           tion, shall be given by way of Special Remission, further remission
            equal to general remission granted to them under paragraph l(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
E
            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 accord-
             ance with paragraph 2(b) thereof.)"
F
          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
    prisoner~ belonging to the Scheduled Castes and Scheduled Tribes and
G 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 con-
    stituted a class and the special remission could validly be given to them.
H   The High Court came to the conclusion that the benefit of Article 15(4),
                        STATE v. MOHAN SINGH                            845

which the State relied upon, was unavailable as a defence inasmuch as the A
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 B
thus:

        "You have granted special rem1ss10n 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         C
        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.                                                       D

      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         E
the same footing as all other prisoners. The invocation of Article 15(4) was
wholly unjustified; the grant of remission to convicted Rrisoners 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.
                                                                               F
       Here we part company with the High Court. Having come to the
conclusion that the 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 G
petitioner, who did not belong to the Scheduled Castes or Scheduled
Tribes. The power to grant the remission lay with the State. If the power
was improperly exercised, the High Court could quash the exercise. The
High Court could not, in effect, grant a general remission where the State
had intended it to be restricted.                                             H
    846                    SUPREME COURT REPORTS (1995) SUPP. 3 S.C.R.

A         This Court had made it clear that in the event that special leave was
    granted, the respondents wou~d 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.
B         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.

    G.N.                                                       Appeals allowed.




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