Nauratta Singh vs State of Haryana

K.S. Kumaran, J.

Petitioner Nauratta Singh alongwith others faced charge under Section 302 read with Section 34 of the Indian Penal Code before the Sessions Judge, Ambala, but was acquitted of that charge, and instead convicted under Section 324 of the Indian Penal Code by judgment dated 5.1.1978. He was awarded rigorous imprisonment for nine months and 26 days which he had already undergone. As against this State of Haryana filed Cr. Appeal No. 429 of 1978 while another accused filed Cr. A. No. 106 of 1978 before the High Court. Both these appeals were decided on 23.4.1980 by and under which petitioner Nauratta Singh was convicted under Section 302 read with Section 34 of the Indian Penal Code instead of Section 324 IPC and was sentenced to life imprisonment. According to the petitioner, he surrendered on 7.6.1980 but was granted bail by the Hon''ble Supreme Court on 2.8.1980. The appeal filed by the petitioner before the Supreme Court was dismissed on 27.7.1994 and the petitioner was readmitted into jail on 22.8.1994. These facts are admitted by the respondent. The petitioner has approached this Court now under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, praying that the date of conviction of the petitioner for all intents and purposes be taken as 5.1.1978, and thereby to extend to him all the consequential benefits. The petitioner also claims that the provisions of Section 433A of the Code of Criminal Procedure are not applicable to his case since his conviction was recorded prior to 18.12.1978 when the said section came into force. The petitioner, therefore, claims that he is entitled to all the remission granted by the State of Haryana ever since 5.1.1978.

Reply was filed by the Superintendent, Central Jail, Ambala, on behalf of the respondents including the State of Haryana. As pointed out already, there is no dispute with regard to the facts as alleged by the petitioner but the respondents urge that the petitioner was a free citizen from 5.1.1978 to 7.6.1980 and also remained on bail from 2.8.1980 to 21.8.1994, and that no remission is permissible under paragraph 637 of the Punjab Jail Manual (as applicable to Haryana) for the period during which the petitioner remained on bail or his sentence was otherwise under suspension. The respondents also allege that the petitioner was convicted under Section 324 IPC on 5.1.1978 but was released on the same day after setting off the period during which he remained as a prisoner, that be remained a free person till 23.4.1980 when he was convicted under Section 302 read with Section 34 of the Indian Penal Code and sentenced to life imprisonment by the High Court. Therefore, the petition is hit by the provisions of Section 433A which are applicable to the case of the petitioner. According to the respondents remissions are given to the person who happened to be confined to the jail on the dates of the circulars and, therefore, the stand taken by the petitioner is not correct.

Therefore, the questions that arise for consideration are : 1. Whether the petitioner is entitled to get remission for the period during which he remained on bail ? 2. Whether the provisions of Section 433 are applicable to the case of persons convicted prior to 18.12.1978 ? and 3. Whether the petitioner is entitled to the remissions as claimed ?

I have heard the counsel for both the sides. I will first take up the question whether the petitioner is entitled to any remission for the period during which he was on bail ? The contention of the learned counsel for the petitioner is that though the petitioner was sentenced to life imprisonment by the High Court by its judgment dated 23.4.1980 for all intents and purposes, the petitioner should be deemed to have been convicted on 5.1.1978 when he was acquitted by the trial Court on the charge under Section 302 read with Section 34 of the Indian Penal Code, but was convicted and sentenced under Section 324IPC for the period of imprisonment already undergone by him. Of course the petitioner, after the judgment of this Court, surrendered on 7.6.1980 and was bailed out by the Hon''ble Supreme Court on 2.8.1980. But the learned counsel for the petitioner relies upon the decision of this Court in Crl. Misc. 21119M of 1995 decided on 18.9.1996 in support of his contention that a person, who was on bail under the orders of the Competent Court was for all intents and purposes, a prisoner and as such the benefits of the instructions granting remission could not be denied to the petitioner on the ground that he was actually not in Jail. In this decision relied upon by the petitioner, the petitioner before the High Court was sentenced to life imprisonment on 19.2.1977. On 19.8.1980 the petitioner was ordered to be released on bail by the Supreme Court and the appeal was thereafter dismissed. On 24th December, 1991, the petitioner surrendered to custody. The petitioner therein claimed certain benefits under the instructions dated 21.8.1986 but his request was rejected on the ground that he was on bail on 20.8.1986 and, therefore, the benefit of the instructions abovesaid could not be given to him. But this Court rejecting this contention of the State and relying upon the decision of Hon''ble Supreme Court in Nalamolu Appala Swamy and others v. State of Andhra Pradesh, 1990 Supreme Court Cases (Cri) 44 held that the interpretation of the State on the circular was not correct.

Learned counsel for the petitioner also relies upon two decisions of this Court in Man Mohan Sahani v. State of Haryana, 1987(2) RCR 293 and Amrik Singh v. State of Haryana and another, 1992(2) RCR 138 in support of his contention. In Manmohan Sahani''s case, it was held that the conviction of the accused by the High Court must relate back to the date of the trial Court''s verdict from which it would, therefore, follow that the accused for the purposes of the remission claimed, must be deemed to have been convicted and out on bail at the time of remission and thus entitled to the benefit thereof.

In Amrik Singh''s case, this Court held that the accused is entitled to the remission earned during the period when he was on bail.

Therefore, it is clear that though the petitioner herein was first convicted under Section 302 read with Section 34 of the Indian Penal Code on 23.4.1980 by the High Court, which was ultimately confirmed by the Supreme Court on 27.7.1994 for all intents and purposes, the petitioner must be taken to have been convicted on 5.1.1978 which is the date of the verdict of the trial Court. It is also clear that he is entitled to all the benefits of the remission even for the period during which he was on bail.

The next question is whether the case of the petitioner is covered by Section 433A of the Code of Criminal Procedure. This section was introduced into the Criminal Procedure Code with effect from 18.12.1978. Under Section provision, a person who has been sentenced to life is not entitled to be released from prison unless he had served at least 14 years of imprisonment. The contention of the State is that he was sentenced to life imprisonment for the first time only on 23.4.1980, by the High Court by which time Section 433A Cr.P.C. had come into force and, therefore, the provisions of this Section would apply to the case of the petitioner. But learned counsel for the petitioner contends that though the petitioner was convicted under Section 302 read with Section 34 on 23.4.1980 the conviction relates back to 5.1.1978, i.e. the date of the trial Court''s verdict. The learned counsel for the petitioner is in this connection supported by the authority of the Hon''ble Supreme Court in Maru Ram etc. v. Union of India and others, AIR 1980 Supreme Court 2147, wherein it was held as follows :

"When a person is convicted in appeal it follows that the appellate Court has exercised its power in the place of the original Court and the guilt, conviction and sentence must be substituted for and shall have retroactive effect from the date of judgment of the trial Court. The appellate conviction must relate back to the date of the trial Court''s verdict and substitute it."

Therefore, it is clear that though the petitioner was convicted under Section 302 read with section 34 of the Indian Penal Code by the High Court for the first time on 23.4.1980 the date of his conviction relates back to the trial Court''s verdict dated 5.1.1978, and that being so the petitioner is entitled to the benefits of all instructions issued thereafter, regarding remission. Therefore, it follows that the petitioner will have to be granted the remissions as have been granted to the convicts by the Government under their various instructions subsequent to 5.1.1978, even though the petitioner was on bail for certain periods.

Accordingly, this petition is allowed holding that Section 433A of the Code of Criminal Procedure is not applicable to the case of the petitioner, and that the petitioner shall not be denied the remissions granted by the State of Haryana after 5.1.1978 on the ground that he was on bail for certain periods, if he is otherwise entitled to the remissions.