Released THE HONOURABLE MR. JUSTICE M.S. RAMESH AND THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN W.P.No.5298 of 2025 and W.M.P.No.5873 of 2025 Indira gandhi …Petitioner

IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 04.07.2025
PRONOUNCED ON: 12.08.2025
THE HONOURABLE MR. JUSTICE M.S. RAMESH
AND
THE HONOURABLE MR. JUSTICE V.LAKSHMINARAYANAN
W.P.No.5298 of 2025 and W.M.P.No.5873 of 2025
Indira gandhi …Petitioner/wife of the detenue
Vs.
1.The State of Tamil Nadu, represented by its Secretary,
Department of Home,
Secretariat, Fort St.George,
Chennai-600 009
2.The Deputy Inspector General of Prison, Egmore, Chennai-600 008
3.The Superintendent of Central Prison,
Central Prison, Cuddalore,
Cuddalore District. … Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus, to direct the respondents to consider the representation dated 04.09.2024 of the petitioner, Balu @ Balasubramanian, S/o.Dhandapani, aged about 55 years, CT.No.12299 and consider his release from prison on the ground parity with other coaccused as per the judgement of Hon’ble Supreme Court in Crl.A.No.697, 698 of 2012 and 481 of 2015 dated 16.02.2018 on humane grounds to secure the ends of justice.
For Petitioner : Mr.R.Sankarasubbu
For Respondents : Mr.E.Raj Thilak Additional Public Prosecutor

ORDER
M.S.RAMESH, J.
and
V.LAKSHMINARAYANAN.J,
The prayer in this Writ Petition is for issuance of a Writ of Mandamus, directing the respondents to consider the petitioner’s representation dated 04.09.2025, wherein she had sought for release of her husband, Bala @ Balasubramanian, S/o.Dhandapani, aged about 55 years, CT.No.12299, who is presently confined at Central Prison, Cuddalore on the ground that the sentences of the other co-accused in
S.C.No.301 of 2003 on the file of the Additional District Court (Fast Track Court No.III), Virudhachalam, Cuddalore District dated 28.10.2005, was reduced from life imprisonment to ten years of imprisonment by the Hon’ble Supreme Court in its judgement passed in Criminal Appeal Nos.697, 698 of 2012 and 481 of 2015 dated
16.02.2018.
2. The petitioner’s husband, Bala @ Balasubramanian was arrayed as the fifth accused (A5) in S.C.No.301 of 2003. The Trial Court had convicted all the five accused, inter alia, under Sections 396 IPC read with 34 IPC and sentenced them to undergo rigorous imprisonment for ten years. In view of the conviction under Section 396 IPC, the Trial Court held that a separate conviction under Section 302 IPC was unnecessary.
3. While Shajahan (A2) and Raja Mohammed (A3) filed appeals before this Court, the State had preferred an appeal in Crl.A.No.69 of 2006 seeking conviction of the accused under Section 396 IPC and enhancement of the sentence from ten years rigorous imprisonment to imprisonment for life. The appeals filed by A2 and A3 were dismissed, and this Court, by a common judgement dated 03.09.2010 in Crl.A.Nos.69, 1096 and 1097 of 2006, had enhanced the sentence of all the accused from ten years to life imprisonment.
4. As against the aforesaid judgement, A1, A2 and A4 had preferredfurther appeals before the Hon’ble Supreme Court in Crl.A.Nos.697, 698 of 2012 and 481 of 2015. The said appeals were partly allowed by confirming the conviction recorded against them under Section 396 IPC, however, the sentence was reduced from life imprisonment to ten years through a judgement dated 16.02.2018. In this Writ Petition, the petitioner seeks extension of parity to her husband for a similar reduction of sentence.
5. Mr.R.Sankarasubbu, learned Senior Counsel straight away placed reliance on several decisions of the Hon’ble Supreme Court for the proposition that when one or some of the accused, who have been convicted and sentenced to undergo imprisonment, have filed appeals and the Appellate Court has either reduced their sentences or acquitted them, the other accused who have not preferred an appeal against the original sentence are entitled for the same benefit, lest, it would be a violation of Article 21 of the Constitution of India. Though he had placed reliance on several decisions, since the ratio in which the decidendi are one and the same, we deem it sufficient if we refer to the decision in Harbans Singh vs. State of Uttar Pradesh & others, reported in (1982) 2 SCC 102; Pawan Kumar vs. State of Haryana, reported in (2003) 11 SCC 241;
Javed Shaukat Ali Qureshi vs. State of Gujarat, reported in (2023) 9 SCC 164;
6.Though Mr.E.Raj Thilak, learned Additional Public Prosecutor appearing for the respondents did not dispute the proposition laid down by the Hon’ble Supreme Court regarding the principle of extending parity to an unappealed accused, he contended that when an accused has accepted his fate and has not chosen to file an appeal, his case cannot be put on par with the accused who had the benefit of reduction of sentence in the appeal, as his overt acts in the case may differ.
7. Before we address the bare facts, touching upon the case of A5 before the Trial Court, it would be appropriate to summarize the ratios laid down by the Hon’ble Supreme Court on the scope of extending parity to an unappealed accused on par with the appealed accused. The earliest case for this proposition is Harbans Singh (supra). Three persons were convicted for the offence under Section 302 IPC and sentenced to death by the Trial Court. The appeals preferred before the High Court were dismissed, confirming the death sentence of all the three accused. The Special Leave Petition of one of the co-accused ‘JS’ was dismissed by the Hon’ble Supreme Court, following which, his death sentence was executed. The Special Leave Petition filed by another co-accused ‘KS’ was partly allowed and his sentence of death was commuted to one of imprisonment for life. The SLP filed by the other accused ‘HS’ was dismissed, so also his fresh petition before the Hon’ble President of India. When the date of execution of ‘HS’ was fixed, he filed a Writ Petition before the Hon’ble Supreme Court, praying for commutation of his death sentence, among other reliefs. While passing final orders, the Hon’ble Supreme Court took cognizance of the fact that the earlier Bench, in the case of ‘HS’, had not been appraised of the judgement in ‘KS’s case, wherein his death sentence had been commuted to imprisonment for life and had held that it would be grave injustice to the co-accused when the benefits of a judgement of the other accused was not extended to him. The relevant portion of the judgement in Harbans Singh (supra) in reads as follows:
“18. To my mind, it will be a sheer travesty of justice and the course of justice will be perverted, if for the very same offence, the petitioner has to swing and pay the extreme penalty of death whereas the death sentence imposed on his co-accused for the very same offence is commuted to one of life imprisonment and the life of the co-accused is shared (sic spared).
…………………………………………………………………………….
19. In the circumstances hereinabove stated, I am of the opinion that it will be manifestly unjust to allow the death sentence imposed on the petitioner to be executed. The question that, however, troubles me is whether this Court retains any power and jurisdiction to entertain and pass any appropriate orders on the question of sentence imposed on the petitioner in view of the fact that not only his special leave petition and review petition have been dismissed by this Court but also the further fact that his petition for clemency has also been rejected by the President.
20. Very wide powers have been conferred on this Court for due and proper administration of justice.
Apart from the jurisdiction and powers conferred on this Court under Articles 32 and 136 of the
Constitution, I am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice. Having regard to the facts and circumstances of this case, I am of the opinion that this is a fit case where this Court should entertain the present petition of Harbans Singh and this Court should interfere.”
A similar view was also taken in Javed Shaukat Ali Qureshi’s case (supra) in the following manner:
“19. We have found that the case of Accused 2 stands on the same footing as Accused 1, 5 and 13 acquitted by this Court. Accused 2 must get the benefit of parity. The principles laid down in Harbans Singh¹ will apply. If we fail to grant relief to Accused 2, the rights guaranteed to Accused 2 under Article 21 of the Constitution of India will be violated. It will amount to doing manifest injustice. In fact, as a Constitutional Court entrusted with the duty of upholding fundamental rights guaranteed under the Constitution, it is our duty and obligation to extend the same relief to Accused 2. Therefore, we will have to recall the order passed in the special leave petition filed by Accused 2.”
Likewise in Pawan Kumar’s case (supra), the Hon’ble Supreme Court had reiterated the aforesaid proposition in the following manner:
“17. ………………………………………………….
…………………………………One of such grounds may be, as it exists like in the present case, where this Court while considering appeal of one of the accused comes to the conclusion that conviction of appealing as well as non-appealing accused both was unwarranted. Upon the aforesaid conclusion arrived at by the Apex Court of the land, further detention of the non-appealing accused, by virtue of the judgment rendered by the High Court upholding his conviction, being without any authority of law, infringes upon the right to personal liberty guaranteed to the citizen as enshrined under Article 21 of the Constitution. In our view, in cases akin to the present one, where there is either a flagrant violation of mandatory provision of any statute or any provision of the Constitution, it is not that this Court has a discretion to exercise its suomotu power but a duty is enjoined upon it to exercise the same by setting right the illegality in the judgment of the High Court as it is well settled that illegality should not be allowed to be perpetuated and failure by this Court to interfere with the same would amount to allowing the illegality to be perpetuated. In view of the foregoing discussion, we are of the opinion that accused Balwinder Singh alias Binder is also entitled to be extended the same

benefit which we are granting in favour of the appellant.”
8. The petitioner’s husband, who is undergoing life imprisonment pursuant to the sentence enhanced by this Court and who has not preferred further appeal, is placed in a predicament, similar to that of all the three cases of the Hon’ble Supreme Court cited above.
9. Before the Trial Court, the petitioner’s husband was arrayed as the fifth accused and was found guilty of having committed the offence punishable under Section 396 IPC and sentenced to undergo rigorous imprisonment for 10 years, along with other convictions.
10. The case of the prosecution before the Trial Court was that on 14.11.2002 at about 1.30 a.m., all the five accused, with a common intention to commit robbery, broke into a pawn shop. During the course of committing robbery, A2 was alleged to have held the legs of the deceased, who was sleeping inside the shop, while A4 was alleged to have sat on the deceased and strangulated him to death using a jute rope. The other accused, including A5 are alleged to have committed robbery of jewellery about 4.788 Kgs of gold and 5.595 Kgs of silver.
11. On the strength of the oral and documentary evidences before the Trial Court, all the accused were convicted for the offence under Section 396 IPC. In view of such conviction, the Trial Court had not recorded a separate conviction under Section 302 IPC. On appeal by the State, the High Court enhanced the sentence of imprisonment from ten years to life imprisonment, by holding the accused guilty of having committed the offence under Section 302 IPC.
12. While serious overt acts in the commission of the offence under Sections 396 and 302 IPC were attributed to A2 and A4, fixing the culpability for the crime of dacoity and murder directly on them, A5 and the other co-accused were alleged to have been present during the commission of the offence and had also indulged in robbing gold and silver jewellery. When A1, A2 and A4 had filed appeals against their conviction and sentence of life imprisonment before the Hon’ble Supreme Court, their conviction under Section 396 IPC was confirmed. However, their respective sentences of life imprisonment were reduced to ten years, through the judgement dated 16.02.2018. The relevant portion of such modification reads as follows:
“10.Placing reliance upon Dinesh alias
Buddha v. State of Rajasthan (2006) 3 SCC 771, the High Court took the view that commission of murder in the course of dacoity is to be viewed with seriousness. We are also of the view that the offence under Section 396 IPC is to be viewed with seriousness, especially, when the dacoits are armed. But in the case in hand, the accused were not armed. Accused Babu @ Nawab Sahib is alleged to have sat on deceased Muthukrishnan and pressed his nose and mouth and is alleged to have tightened his neck with the rope. The occurrence was of the year 2002. Considering the long lapse of time and the facts and circumstances of the case, the sentence of imprisonment for life is modified as ten years as directed by the trial court.
11. While maintaining the conviction under Section 396 IPC, the sentence of imprisonment imposed upon the appellants-Basheer, Shajahan and Babu @ Nawab Sahib is modified as ten years of imprisonment and the appeals are partly allowed. Since the appellants are stated to be in custody for more than ten years, the appellants are ordered to be released forthwith, if not required in any other case.”
13. On an overall appraisal of the prosecution’s case against A5, including the overt acts attributed to him, as well as the evidences available, we have no difficulty in arriving at the inevitable conclusion that had A5 also preferred an appeal before the Hon’ble Supreme Court, along with A1, A2 and A4, there was every possibility that his sentence too would be reduced to ten years. Even otherwise, such a benefit of reduced sentence ought to be extended to A5 as well, by applying the principle of parity, in line with A1, A2 and A4, as held by the Hon’ble Supreme Court in three judgements cited supra. Failure to do so would be violative of Article 21 of the Constitution of India and may amount to travesty of justice. A Co-ordinate Bench of this Court in the case of Alamelu Vs. Secretary to Government, Department of Home & others, reported in 2014(1) MLJ (Crl) 257, had also applied the principles laid down in Harbans Singh’s case (supra), and by invoking the powers under Article 226 of the Constitution of India, extended the benefit of parity by reducing the sentence in that case. Similar is the situation of A5, who has invoked the extraordinary powers of this Court under Article 226.
14. We will look at the issue presented before us from the angle of
Constitutional philosophy.
15. Aristotle laid the foundations, on which, the superstructure of equality was built by Western Philosophers. According to Aristotle, equality implies:
(i) Equality in moral means this: things that are alike should be treated alike, while things that are unalike should be treated unalike in proportion to their unlikeness.
(ii) Equality and justice: to be just is to be equal, to be unjust is to be unequal.
Aristotle articulated this in reference to Plato: “treat like cases as like”
(Aristotle, Nicomachean Ethics V-3, 1131A10-B15 Politics III.9.1280A815, 123.12.1282B18-23).
16. This principle was captured by Clause I of the XIV amendment to the Constitution of United States of America. The said clause declares ” No state shall deny to any person within its jurisdiction the equal protection of the laws.”
17. This principle is incorporated in our Constitution too under Article 14. The clause not only guarantees equality before law, but also equal protection of the law.
18. Justice Thomas Stanley Mathews pithily put it as “the equal protection of the laws is a pledge of the protection of equal laws”. (See, Yick WO v. Hopkins, 118 U.S. 356 (1880)). His view has been approved by the Supreme Court in the State of Gujarat v. Ambica Mills (1974) 4 SCC 656, wherein Justice Mathew adopted this principle. So did Y.V.Chandrachud, CJ in in re The Special Courts Bill, AIR 1979 SC 478. In paragraph 74, he laid down several propositions with respect to Article 14. The portion relevant for this judgment is extracted herein:
“The first part of Article 14, which was adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India. It enshrines a basic principle of republicanism. The second part, which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination of favouritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on all persons under like circumstances.”
19. The principle that flows out of the aforesaid discussion is that the individuals in similar situation or with similar characteristics should be subject to the same laws and receive the same treatment, rights and liabilities under those laws. The constitutional goal is not to have laws that are themselves equal, but to ensure that the protection afforded by those laws is also equal for everyone, reflecting the ideals of fairness and justice in the legal system. Unlike the concept of “equality before law”, which emphasises the absence of special privileges, equal protection of the laws, is a positive concept. It allows for special treatment to promote substantive equality, which would resolve social inequalities. Article 14 demands that laws are applied fairly and impartially, preventing discriminatory treatment, while giving enough room for carefully designed measures that pushes the society towards a just and equitable one.
20. Extending the aforesaid principles to the case on hand shows the constitutional principle of equal protection demands that the protection of laws by which persons, who have been punished for the same act, cannot be imprisoned for varying sentences.
21. The factual discussions show that A1, A2 and A4 had been found guilty for the same acts as committed by the writ petitioner, who was A5. The Supreme Court found that A1, A2 and A4, guilty as charged and punished them with imprisonment for 10 years. By the same order, it had set them at liberty as they had spent more than 10 years in imprisonment by the time their appeals came to be considered. As pointed out in paragraph 13 of the order, had A5 preferred an appeal, he would have been treated similarly.
22. We cannot lose sight that there are several reasons including poverty, which prevent a person from appealing before the higher forums of law. The lack of a procedural appeal should not prevent equal treatment of similarly placed accused. When a person has been punished for a period more than what he ought to be, it offends the principle enshrined in Articles 14 and 21. By resorting to these constitutional provisions, it becomes the constitutional duty of this Court to ensure parity. Therefore, applying the principles of equality and curtailment of right to life in accordance with law, we are of the view that A5 should be treated on par with A1, A2 and A4.
23. In fine, we hereby hold that the petitioner’s husband Balu @ Balasubramanian, CT.No.12299, confined at Central Prison, Cuddalore, is entitled to a reduced sentence, on par with the judgement rendered in
favour of A1, A2 and A4 by the Hon’ble Supreme Court in
Crl.A.Nos.697, 698 of 2012 and 481 of 2015 dated 16.02.2018.
24. We are conscious of Section 362 of the Code of Criminal procedure. We have to point out, we are neither reviewing, altering or revising the judgment in Crl.A.No.69 of 2006. All that we are doing is performing our constitutional duty of rendering parity between A1, A2, A4 and the petitioner herein. Our powers under Article 226 are wide and they have been granted so only to enable us to do justice. This court also has the inherent power and the jurisdiction, while dealing with the situations as presented in the present case, to render justice and prevent manifest injustice. This power, as pointed out in Harban Singh’s case, will have to be used in exceptional circumstances for furthering the ends of justice.
25. When the petitioner complains that her husband’s constitutional
right under Article 21 had been violated, we cannot shrug off our duties and ask the petitioner to follow the same route as taken by A1, A2 and A4 and prefer an appeal to the Supreme Court. This is especially so when the judgment of this Court in Crl.A.No.69 of 2006 was pronounced in the year 2010, and a decade and an half year have already gone by. Consequently, we hold the sentence of 10 years imposed by the Supreme Court in Crl.A.No.697 of 2012, 698 of 2012 and 481 of 2012 will hold good for the petitioner’s husband also. Since the convict prisoner has already undergone the modified sentence of ten years, the respondents are directed to forthwith release the petitioner’s husband Bala @ Balasubramanian, CT.No.12299, unless his confinement is warranted in connection with any other case.
26. This Writ Petition stands allowed accordingly. Consequently, connected miscellaneous petitions stands closed.
[M.S.R., J] [V.L.N., J]
12.08.2025
Index: Yes/No
Speaking/Non-speaking order
Neutral Citation: Yes/No
Anu
Note:Issue order copy on 12.08.2025
To
1.The Secretary,
Department of Home,
Secretariat, Fort St.George,
Chennai-600 009
2.The Deputy Inspector General of Prison, Egmore, Chennai-600 008
3.The Superintendent of Central Prison, Central Prison, Cuddalore, Cuddalore District.
4.The Public Prosecutor, High Court, Madras.
M.S.RAMESH, J. and V.LAKSHMINARAYANAN, J.
Anu
Pre-delivery order in
W.P.No.5298 of 2025 and W.M.P.No.5873 of 2025
12.08.2025