The actual period of sentence undergone by a convict must be taken into account by the State government while considering remission, notwithstanding his being out on bail for a while, the Supreme Court has held.

A Bench of Justices A.K. Ganguly and Gyan Sudha Misra did not agree with the Madras High Court's reasoning that remission could not be considered if, on the date of issuance of any notification by the State government, the prisoner was on bail.

Writing the judgment, Justice Ganguly said: “We are unable to approve the reasoning given by the High Court that the appellant's case for remission cannot be considered in terms of the notification [dated February 23, 1992] as on the date he was on bail. This is a wrong approach.”

The Bench said: “A prisoner may be on bail on a particular day — this is just a fortuitous circumstance. What the court has to consider is the actual period of sentence undergone and whether by reason of the period actually undergone, the prisoner qualifies for remission. We are therefore, constrained to set aside the judgment of the High Court.”

D. Ethiraj, after conviction by the trial court was in prison for four days in May 1987; 11 days in January 1992; 96 days between November 2002 and February 2003 and one year and 29 days from September 7, 2010 till October 5, 2011. He is still in jail.

Senior counsel A.L. Somayajee and V. Padmanabhan argued that the appellant had suffered in jail more than 17 months (out of the three-year sentence awarded by the trial court and confirmed by the High Court and the Supreme Court). Hence he would be covered within the ambit of the 1992 remission notification.

Allowing the appeal, the Bench agreed with this contention, and pointed out that the 1992 G.O. did not say that for getting the benefit of remission the prisoner must actually be in jail on the day the notification was issued.

The Bench asked Ethiraj to make a representation to the government afresh, attaching a copy of this judgment. It directed the State to consider his case in the light of the observations made in this judgment and pass an order within six weeks.

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