Karnail Singh vs State of Punjab

M.L. Singhal, J.

This is a criminal misc. petition filed under Section 482 Cr.P.C. read with Articles 226/227 of the Constitution of India whereby Karnail Singhpetitioner (detenu) has prayed for direction to the respondent to allow him remissions to the tune of about 2 years period which have been awarded on different dates by the Punjab Government. He has desired further direction to the respondents to release him forthwith as he has undergone the requisite period of sentence after the remissions granted by the Punjab Government are accounted for. It is averred that he and coaccused were tried under Section 302 IPC and were convicted and sentenced to imprisonment for life on 24.8.1983. On appeal this Court acquitted Sukhwinder Singh and altered the conviction of other accused to one under Section 304 Part 1 of the IPC and sentence of 7 years RI was passed on them on 29.11.1983. Against this order Joginder Singh preferred Criminal appeal No. 309 of 1985 against Karnail Singh (present petitioner), Avtar Singh, Bawa Singh, Mahain Singh and Sukhwinder Singh to the Hon''ble Supreme Court of India. Petitioner Karnail Singh was arrested on 27.12.1982. He was sentenced on 24.8.1983. In this manner he underwent 240 days of detention as an undertrial. He was allowed bail by the Hon''ble Supreme Court on 10.5.1985. He was released on bail on 23.5.1985. He thus underwent 639 days of detention as a convict. On the disposal of the criminal appeal before the Hon''ble Supreme Court the detenus surrendered to their custody on 28.7.1995. The detenu earned remissions for the period of 5 months and this is the period during which he remained in jail either as an undertrial or as convict. From 27.12.1982 to 24.8.1983 he remained in jail as an undertrial for 240 days. He remained in jail for 1 years 9 months and 4 days as a convict with effect from 24.8.1983 to 23.5.1985. He earned remissions to the tune of one year and 24 days. He earned remissions with effect from 28.7.1995 onwards to the tune of 5 months. He has thus undergone 3 years 9 months and 28 days period of sentence. He was not allowed remissions granted by the Government as follows:

20.8.1986 360 days

14.11.1989 360 days

25.2.1992 360 days

4.1.1993 360 days

16.1.1994 360 days

25.1.1995 360 days

1.1.1993 60 days remission of jail administration.

4.1.1994 do

It is averred that by not granting these Govt. remissions and the prison administration remissions, his right to liberty was curtailed. He had to undergo more than the required period of sentence which has been awarded to him. He was required to undergo 7 years sentence in all inclusive of the period of detention as an undertrial, actual sentence and the remissions. The undertrial period of detention has to be set off against the sentence in view of the judgment of the Hon''ble Supreme Court reported as AIR 1985 SC 1050. Similarly the detenu is entitled to the benefit of the remissions in view of the period of sentence undergone by him as well as on the period during which the detenu remained on bail. During his detention in jail he did no commit any jail offence. No jail punishment was awarded to him during the entire period of the sentence and this shows that his conduct and behaviour was satisfactory. While in detention he was enjoying all the facilities sanctioned by the prison rules and the benefit of the temporary release during the entire period of his incarceration. While he was in jail the State Government granted remissions on 4 different occasions to the detenus/convicts on account of the rejoicings of the anniversary and other occasions to all the convicts who were on parole/furlough or bail. Certain categories were, however, not given that benefit. As such detenus was discriminated against visavis those who were given that benefit. The act of discrimination between this convict and the other similarly situated convicts is arbitrary, injudicious and is violative of Articles 14, 19 and 21 of the Constitution of India. The detenu while he was on bail was entitled to earn remissions. It is averred that the benefit of remissions cannot be refused to the detenue who is on bail, as not allowing the benefit of remissions to a detenu will be violative of Articles 14, 19 and 21 of the Constitution of India. Grant of benefit to one class of prisoners and denial of the same benefit to other class of prisoners is discriminatory.

The respondentState of Punjab opposed this petition urging that the petitioner was sentenced to rigorous imprisonment for life and to pay a fine of Rs. 500/ and in default to undergo further rigorous imprisonment for 6 months under Sections 302/148/149 IPC by Sh. D.S. Dhaliwal, Addl. Sessions Judge, Gurdaspur on 24.8.1983 in sessions case No. 14/1983. On appeal, conviction was altered into one under Section 304 Part1 IPC and the sentence of 7 years rigorous imprisonment and fine of Rs. 7,500/ was imposed. The Hon''ble Supreme Court dismissed the appeal vide order dated 20.4.1995. Petitioner was released on bail on 23.5.1985. He has undergone the following sentence as on 2.11.1996 :

Y M D

Sentence undergone 01 03 05

Period of undertrial and as a convict 02 04 29

03 08 09

Remissions earned 00 (+) 04 18

04 00 22

Less parole period 00 00 00

04 00 22

Un expired period 02 11 08

Total sentence 07 00 00

He was readmitted to Central Jail, Amritsar on 28.7.1995 by the order of Chief Judicial Magistrate, Amritsar in the wake of dismissal of the appeal on 20.4.1995 by the Hon''ble the Supreme Court so as to undergo the remaining period of sentence. The following special remissions were granted by the Punjab Government during the period when the petitioner was on bail :

20.8.1986 240 days

14.11.1989 240 days

25.2.1992 240 days

16.1.1994 240 days

27.2.1995 210 days

He surrendered on 29.7.1995 though his appeal was dismissed on 20.4.1995. The benefit of the said remissions was granted to those convicts who were in jail immediately after the decision of their appeals or surrendered within 15 days in pursuance of the notice issued by the Court. As per Punjab Government instructions vide letter No. 11/286/9011190 dated 23.7.1992 the benefit of special remissions can be granted only to those prisoners who voluntarily surrendered in jail within 15 days after the cancellation of their bail. The Hon''ble Supreme Court in Jai Prakash and others, v. State of Haryana and others Criminal Writ petition No. 669 of 1986 decided on 27.7.1987 (Annexure R.2) 1987(2) RCR (Crl.) 377 held that the benefit of special remissions is available to those who surrendered voluntarily in jail after the dismissal of the appeal.

The Hon''ble Supreme Court observed in Jai Prakash''s case (supra) that in the instant case petitioner No. 1 did not surrender in jail or before the Magistrate after his appeal was dismissed by the High Court and the petitioner No. 1 had been arrested under warrant of arrest. He did not surrender in jail after his appeal was dismissed. Respondents No. 2 to 5 were on bail. They also did not surrender immediately after dismissal of their appeal but they surrendered themselves after 2 months of dismissal of their appeal. In such circumstances, it cannot be said that the petitioners are entitled to the remissions as envisaged in the said Govt. instructions dated 11/14 January, 1985. The instructions of the Govt. cannot therefore be challenged as in violation of paragraph 637 of the Punjab Jail Manual. The petitioner is not entitled to Govt. remissions as he went in jail after a gap of 3 months and 8 days of dismissal of his appeal.

I have heard leaned counsel for the petitioner, learned AAG for the State of Punjab and have gone through the record.

It has been submitted by learned counsel for the petitioner that in criminal misc. petition No. 12966M of 1991 titled Amrik Singh v. State of Haryana, decided on 25.2.1992 while dealing with a similar situation this Court observed as follows :

"As the petitioner was on bail by the order of the Court, he is entitled to earn the remissions earned by the other detenus during the period he was on bail. This petition is allowed and a direction is issued to the authorities to take into consideration the remissions of 120 days earned by him on 28.8.1987 and 17.3.1988 as granted by the Government of Sh. Devi Lal while calculating the period of sentence of two years as ordered by this Court in appeal No. 11SB of 1986. The petition stands disposed of in the terms indicated above"

and that this case is squarely covered by the said directions/observations and the petitioner is entitled to the benefit of the remissions awarded to the prisoners/detenus earned by them while undergoing incarceration and were on bail. The learned AAG (P) on the other hand brought to my notice the judgment of the Hon''ble Supreme Court in Jai Prakash and others v. State of Haryana and others, Criminal Writ Petition No. 669 of 1986 decided on 27.7.1987 (Annexure R.2) 1987(2) RCR (Crl.) 377 SC, in support of his submission that a detenu who is on bail is not entitled to the benefit of special remissions if he does not surrender within 15 days voluntarily of the dismissal of his appeal or within 15 days of the cancellation of his bail. The

convict in order to get the benefit of the remissions as directed by order issued under Article 161 of the Constitution of India has to surrender voluntarily in jail after the expiry of the bail. In the instant case petitioner No. 1 did not surrender in jail or before the Magistrate after his appeal was dismissed by the High Court and petitioner No. 1 had been arrested under warrant of arrest. He did not surrender in jail after the appeal was dismissed. Respondents Nos. 2 to 5 were on bail but did not surrender immediately after dismissal of their appeal but they surrendered themselves 2 months after dismissal of their appeal. In such circumstances it cannot be said that the petitioners are entitled to the remissions as envisaged in the Govt. order dated 11/14.1.1985." In this case also, the petitioner did not voluntarily surrender in jail after the dismissal of his appeal by the Hon''ble Supreme Court. He surrendered in the Court of Chief Judicial Magistrate, Amritsar after a gap of 3 months and 8 days from the dismissal of his appeal.

Petitioner had earned special remissions granted by the Government on 20.8.1986, 14.11.1989, 25.2.1992, 4.1.1993, 16.1.1994 and 25.1.1995. Keeping in view the decision of the Hon''ble Supreme Court (Annexure R.2) rendered on 27.7.1987 in Criminal Writ Petition No. 669 of 1986 titled Jai Parkash and others v. State of Haryana and others, respondents are directed to determine whether the petitioner was dissuaded from surrendering in jail within 15 days of the dismissal of the appeal by the Hon''ble Supreme Court by reasons beyond his control or whether he surrendered in the Court of Chief Judicial Magistrate on 28.7.1995 after a gap of 3 months and 8 days intentionally. If the respondents conclude that there was no reason dissuading the petitioner from surrendering in jail within 15 days of the dismissal of the appeal by the Hon''ble Supreme Court, the benefit of special remissions shall not be granted to him and if the respondents conclude that the petitioner surrendered in the court of Chief Judicial Magistrate, Amritsar after a gap of three months and 8 days of the dismissal of the appeal by the Hon''ble Supreme Court on account of some justifiable cause, special remission shall become admissible to the petitioner. The exercise shall be done and completed by respondent No. 3 within 15 days of the receipt of certified copy of this order from the petitioner or this court.

With the above observations, the criminal misc. petitions stands disposed of.