Partap vs State of Haryana

Sat Pal, J. (Oral)

In this case the petitioner was arrested on 7th March, 1985 in the case of FIR No. 40, dated 7th March, 1985, Police Station Tosham, under Sections 302/323/148/149/34 IPC. By his order dated 24th September, 1994, the learned Sessions Judge, Bhiwani sentenced him to imprisonment for life under Sections 302/34 IPC and RI for two years under Sections 326/34 IPC and both the sentences were to run concurrently.

The present petition has been filed by the petitioner under Articles 226/227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (in short ''the Code'') and in this petition it has been stated that the petitioner is entitled to be released prematurely in terms of instructions dated 4th February, 1993 framed by the Government under Article 161 of the Constitution of India as he has already undergone the minimum actual sentence of ten years including the period of parole and has also undergone the total period of fourteen years.

Notice of this petition was issued to the Advocate General Haryana and written statement on behalf of State of Haryana has been filed.

In para No. 3 of the written statement it has been stated that actual sentence undergone by the petitioner upto 23rd April, 1995 comes to 10 years 1 month and 12 days but after including the parole period availed by the petitioner (which comes to 7 months 9 days) the actual sentence undergone comes to 9 years 6 months 3 days and since the petitioner has not undergone actual period of ten years after deducting the period of parole he is not entitled to be released.

Mr Jindal, the learned counsel appearing on behalf of the petitioner submits that it is now well settled that for calculating the actual period of sentence undergone, the period of parole cannot be excluded. He, therefore, contended that the petitioner was entitled to be released. In support of submissions the learned counsel placed reliance on judgment of Supreme Court reported as Maru Ram v. Union of India, AIR 1980 Supreme Court 2147 and a judgment rendered by a Division Bench of Himachal Pradesh High Court in case of Life convict Life Convict Karam Singh v. State of H.P., 1994(2) Recent Criminal Reports 28 and the following three decisions rendered by this Court :

(i) Faqir Singh v. State of Punjab and another, 1988(1) Recent Criminal Reports 558 ;

(ii) Hazura Singh v. State of Haryana and others, Crl. Misc. No. 4258M of 1995, decided on 8th May, 1995;

(iii) Crl. Misc. No. 6175M of 1995, decided on 26th May, 1995, Natha Singh v. State of Haryana and others.

Mr. Dewan, the learned AAG, Haryana has drawn my attention to subsection (3) of section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act and submitted that the parole period availed by the petitioner has to be excluded from the actual sentence undergone by the petitioner.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record.

The question raised in this case came up for consideration before a Single Judge of this Court in case of Faqir Singh (supra) and in this case the learned Single Judge held as follows :

"5. I am, therefore, of the view that the time spent on parole by a prisoner can legitimately be included in the period of imprisonment undergone by him and as such it has to be so considered while deciding his premature release case. It is, however, clarified that in view of Section 3(3) of the Punjab Good Conduct Prisoners (Temporary Release) Act, the period spent by the petitioner on parole shall not be counted towards the total period of sentence of imprisonment. Taking this view the respondent State of Punjab is directed to consider the premature release case of the petitioner within three months from today, provided the petitioner has undergone actual imprisonment of 81/2 years inclusive of the time spent on parole and total of 14 years imprisonment including remissions but excluding the period of parole.."

From this it is evident that it was held in this case that the time spent on parole by a prisoner can be included in the period of imprisonment undergone by him while calculating actual sentence undergone but the said period cannot be included while calculating the total period of imprisonment, This view has been consistently followed in the subsequent two judgments in case of Hazura Singh (supra) and Natha Singh (supra). In view of three earlier decisions rendered by this Court and the judgment rendered by a Division Bench of Himachal Pradesh High Court, I direct the respondents to reconsider the case of the petitioner in the light of the judgment of this Court in case of Faqir Singh (supra) and pass appropriate orders within two months from today. With this direction the petition stands disposed of.