Bikram Singh vs State of Haryana

M.L. Singhal, J.

This is a Criminal Miscellaneous whereby Bikram Singh, presently undergoing sentence of life imprisonment in Central Jail, Ambala has prayed for a direction to the respondents to grant him all government remissions granted during the period 19.12.1978 to 28.9.1980 and 10.4.1981 to 6.12.1982 and count the period of remissions towards the sentence undergone by him. He has further prayed for a direction to them to initiate, consider and decide his premature release case treating him as Juvenilelife convict prisoner as per the instructions applicable on the date of conviction/sentence i.e. 15.9.1978/19.9.1978.

It is alleged by Bikram Singh petitioner that case FIR No. 18 was registered in Police Station Ladwa on 8.2.1978 against him and his two brothers named Sher Singh and Dalbir Singh under Section 302/34 of the Indian Penal Code. He was arrested by the police and confined to Judicial lock up on 18.2.1978 vide order dated 15.9.1978/19.9.1978, he and his brother Sher Singh were convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to imprisonment for life. He filed an appeal in the High Court challenging his conviction and sentence. He was allowed bail by this Court on December 19, 1978 pending his appeal. His appeal was dismissed. In the wake of dismissal of his appeal, he surrendered to the jail authorities on September 29, 1980. He went in SLP to the Hon''ble Supreme Court. Pending his appeal, he was released on bail by the Hon''ble Supreme Court on April 10, 1981. He surrendered before the Chief Judicial Magistrate on December 7, 1992 as soon as he came to know of the dismissal of his appeal by the Hon''ble Supreme Court so that he could undergo the remaining sentence. He has undergone the following sentences in the jail :

, Years Months Days

Under trial period (18.2.197818.9.1978) 0 7 3

Actual sentence undergone =

(i) from 19.9.1978 to 18.12.1978 = 0 3 1

(ii) from 19.9.1980 to 9.4.1981 = 0 6 10

(iii) from 7.12.1992 to 2.12.1998 = 5 11 26

Total Actual Sentence + 7 04 10

Remission earned 3 00 00

Total 10 04 10

Parole availed. 0 05 15

Total sentence undergone after excluding the parole period 9 10 25

It is pleaded by him that the occurrence took place on February 8, 1978. He was convicted and sentenced on 1519.9.1978 to undergo imprisonment for life. On 1519.9.1978, i.e. when he was convicted and sentenced, he was 20 years old. The fact that he was 20 years old on 1519.9.1978, is apparent from the fact that the same is recorded in the judgment/order of the learned Additional Sessions Judge, Karnal Annexure P1. He was, thus, a juvenilelife convictprisoner on 19.9.1978. On 15.9.1978, he was sent to Borstal jail Hissar till he attained the age of majority. Report under Section 173 Cr.P.C. filed in the Court indicates that he was juvenile offender at the time of the commission of the offence, as per instructions/para 516B of the Punjab Jail Manual, applicable at the time of the conviction of the petitioner i.e. 15.9.1978. On the finality of judgment of conviction and order of sentence, passed by the Court, its execution is within the domain of the executive of the Government, subject, of course, to the supervision, control and judicial review of the Court. Sections 432 and 433 of the Code of Criminal Procedure vest the jurisdiction and authority in the State Government to commute, remit or suspend the sentence subject to the provisions of Section 433A Cr.P.C. which came into force with effect from December 18, 1978. Hon''ble Supreme Court upheld the vires of Section 433A Cr.P.C. and has held in Maru Ram v. Union of India, AIR 1980 Supreme Court 2147 that Section 433A Cr.P.C. is prospective in nature. It was laid down that Section 433A Cr.P.C. would not be attracted in cases where conviction was recorded prior to December 18, 1978 and the premature release cases of those prisoners are required to be decided as per short sentencing provisions applicable before coming into force of Section 433A Cr.P.C. It is pleaded that in this case, as the conviction and sentence took place much prior to December 18, 1978 i.e. the enforcement of Section 433A Cr.P.C., he is entitled to premature release as per short sentencing provisions applicable on the date of conviction. Para 516B of the Punjab Jail Manual was applicable at the time of his conviction and as per provisions of this para, he was required to undergo total ten years sentence including remission, which period he has already undergone. It is further pleaded that the Government had taken policy decision and issued instructions for the premature release of life convictsprisioners on November 28, 1977. These instructions apply to this case for premature release. These instructions, Annexure P2, were later on clarified on February 28, 1984. As per these instructions, the petitioner was required to undergo six years actual sentence and total ten years including remission for his premature release which period he has already undergone long time back on grant of special remissions. Fresh instructions were issued by the State Government on September 28, 1988. Thereafter instructions were issued on November 19, 1991 and then on February 4, 1993. On July 17, 1997, qua para 2(a), instructions have been amended vide Annexure P3. Latest instructions are dated February 4, 1993/July 17, 1997. As per these latest instructions dated February 4, 1993/ July 17, 1997, a juvenile life convict prisoner is required to undergo eight years actual and total ten years sentence including remissions.t

It is further alleged that the respondents have failed to initiate, consider and decide his premature release case as per instructions dated November 28, 1977, Annexure P2. The action of the respondents is wrong, illegal, arbitrary against the Rules and instructions. During the period of bail, the State Government has granted special remissions on account of Republic Day etc. to the convict prisoners vide various orders passed by it either in the exercise of its power under Section 432 of the Code of Criminal Procedure or Article 161 of the Constitution of India. Special remissions granted during the period when he was on bail granted to him either by this Court pending his appeal or by the Supreme Court pending his appeal are embodied in Annexures P4 to P11.

The respondents contested this prayer urging that the convicts are not entitled to the benefit of Government remissions while on bail during the pendency of trial which is available to the convicts who happened to be on parole or furlough or who happened to be in jail on that date. The petitioner is not entitled to the benefit of Government remissions during the bail period in view of judgment Annexure R1 passed in Criminal Misc. No. 26967M of 1997. The matter regarding the application of instructions on the date of commission of the offence is subjudice before the Hon''ble Supreme Court in Criminal Misc. Appeal No. 10 of 1998, State of Haryana v. Som Nath, in which the operation of the judgment and order passed by this Court regarding application of instructions at the time of commission was stayed and confirmed. Copies of the orders passed by the Hon''ble Supreme Court are Annexures R2 and R3. It is further pleaded that the petitioner is not entitled to release prematurely. His case will be initiated under the latest instructions dated 4.2.1993/17.7.1997. According to the latest instructions, juvenile offender will be one who was less than 18 years old at the time of the commission of the offence. As per the latest instructions dated 4.2.1993/17.7.1997, the petitioner is required to undergo ten years actual sentence and total 14 years including remissions.

I have heard the learned counsel for the petitioner, learned A.A.G. Haryana and have gone through the record.

Petitioner is not entitled to special remissions granted by the govt. during the period when he was on bail either under the orders of this court pending his appeal or under the orders of the Hon''ble Supreme Court pending his appeal after it had been dismissed by this court in view of the observations of the Hon''ble Supreme Court made in Jai Parkash v. State of Haryana and others, AIR 1987 SC 2225 which are to the effect that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been readmitted in jail will be brought under remission system on the first day of the calendar month next following his readmission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. The submission that the petitioners who were temporarily released on bail are entitled to get remissions earned during the period they were on bail is not at all sustainable.

Facts of the case Jai Parkash (supra) were that Jai Parkash was convicted by Sessions Judge, Bhiwani on 4.12.1975 under Section 302 IPC and was sentenced to imprisonment for life. He went in appeal to the High Court. He was allowed bail by the High Court on 12.1.1976. His appeal was dismissed on 28.9.1978. He was arrested on 29.1.1979 while he was going to the Court to surrender himself to serve out the remaining part of the sentence. He claimed remission to the tune of 19 months and 12 days granted by the govt. during the period he was on bail. Similarly, petitioners 2 to 5 were convicted by Sessions Judge, Bhiwani on 23.3.1976 in a case under section 302 IPC and were sentenced to imprisonment for life. They were directed to be released on bail by the High Court of Punjab and Haryana during the pendency of their appeal by order dated 7.4.1976. Appeal was dismissed by the High Court on 8.12.1978 and they surrendered before the Magistrate on 16.1.1979 for serving out their remaining part of the sentence. They also claimed remissions to the tune of 19 months and 12 days granted by the govt. during the period they were on bail. Their contention did not find favour with the Hon''ble Supreme Court as the order granting remissions was limited only to those prisoners who were in jail on the day when remissions were announced. In the face of these observations of the Hon''ble Supreme Court, the contrary view taken by this court cannot be sustained.

Now the question that arises is whether the petitioner''s case for premature release will be governed by the latest instructions in force or by the instructions that were in force as on the day of his conviction. Learned counsel for the petitioner submitted that as on the day of his conviction, the instructions Annexure P2 dated 27.2.1984 were applicable. As per these instructions, a juvenile life convict who was less than 20 years of age at the time of commission of the offence, is entitled to have his case for premature release considered after completion of 6 years of substantive sentence and 10 years sentence including remissions. How can those instructions be applicable to him when in the year 1984 he was not in jail. He was granted bail by this court on 19.12.1978. He surrendered in jail on 29.9.1980 after his appeal was dismissed. He went in appeal to the Hon''ble Supreme Court. Hon''ble Supreme Court released him on bail on 10.4.1981. His appeal was dismissed. He surrendered before Chief Judicial Magistrate on 7.12.1992. In the year 1984, he was not in jail and therefore, how could 1984 instructions be applicable to him when he surrendered on 7.12.1992 before Chief Judicial Magistrate in the wake of dismissal of his appeal by the Hon''ble Supreme Court. 1993 instructions were in force under which a juvenile life convict and a female life convict were treated at par and considered for premature release after completion of actual sentence of 8 years including undertrial period provided that the total period of such sentence including remissions was not less than 10 years. In this case, 1993 instructions will apply as amended from time to time as it is for the executive govt. to determine how sentence passed upon a convict is to be executed. Execution of the sentence is within the domain of the executive govt. As to how sentence passed by the court is to be executed, the executive govt. lays down a policy keeping in view the aspirations of the people at that particular time when the policy is formulated. Policy regarding premature release of life convicts is drawn up by the govt. from time to time keeping the demands and aspirations of the people in view.

In view of what is said above, this Crl. Misc. petition fails and is dismissed.