Satish Kumar vs State of Haryana

R.L. Anand, J.

Whether the petitioner is entitled to the benefit of remissions in the given circumstances or not is a short point involved in the present petition and this point has to be answered in the context that what is the effect of the judgment passed by the appellate Court/revisional Court when such Court interferes in the judgment and order of the first appellate Court.

Few facts can be noticed :

Shri Satish Kumar Ahuja, the present petitioner, filed the present petition claiming that he may be given the benefit of all the remissions granted by the State of Haryana from time to time w.e.f. 27.11.1981 to 15.7.1992 when he was taken into custody in pursuance of the judgment passed by the Hon''ble Supreme court on 10.4.1992 vide which the judgment of the High Court dated 25.11.1981 was set aside.

The petitioner was convicted and sentence for the offence under Section 302 read with Section 201 of the Indian Penal Code by the Sessions Judge on 23.4.1981. The petitioner was not satisfied and he felt aggrieved by the judgment of the trial Court and filed an appeal before the High Court. Right from 23.4.1981 the High Court accepted the appeal of the petitioner and in pursuance of the acceptance of his appeal the petitioner was released from the jail on 27.11.1981. The State was not satisfied with the decision of the High Court and it went before the Hon''ble Supreme Court in S.L.P. The petitioner was not in custody right from 27.11.1981 onwards on account of the acquittal which he secured from the High Court. The Hon''ble Supreme Court vide judgment dated 10.4.1992 set aside the judgment of the Hon''ble High Court and restored the conviction of the petitioner under Section 302 read with Section 201 IPC and the petitioner was again sentenced to life imprisonment. In pursuance of the directions of the Hon''ble Supreme Court the petitioner was taken into custody from 14.7.1992. The short point for determination is whether the petitioner is entitled to the remissions granted by the State of Haryana from time to time from 27.11.1981 to 14.7.1992 or not. The stand of the State is that since the petitioner was not serving any sentence from 27.11.1981 onwards, therefore, he cannot be deemed to be a convict for the purpose of benefit of remissions. The State counsel in the context has relief upon a judgment of the Hon''ble Supreme Court Jai Parkash v. State of Haryana & others, 1987(2) RCR 377.

On the contrary, the counsel for the petitioner has relied upon the judgment of the Hon''ble Supreme Court reported as AIR 1980 Supreme Court 2147, the famous case of Maru Ram and others v. Union of India & Others. The counsel for the petitioner submitted that petitioner was released from the jail under the orders of the Hon''ble High Court. The judgment of the Hon''ble Supreme Court would relate back from the date when the Hon''ble High Court order was passed for the acquittal of the petitioner and the petitioner will be considered in deemed custody right from the date of his actual discharge from the jail i.e. w.e.f. 27.11.1981.

I concur with the submissions raised by the learned counsel for the petitioner and I am not bound to agree with the submissions of the learned DAG nor I am in a position to act upon the judgment relied upon by the counsel for the State because the proposition in hand has been replied by the Hon''ble Supreme Court in Maru Ram''s case (supra) and in this regard I would like to refer to para No. 56 of the judgment where 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."

Thus the judgment of the Hon''ble Supreme Court shall relate back to the date of the acquittal of the petitioner when he was acquitted by the High Court on 25.11.1981. The counsel for the respondents made an effort to distinguish the observations of the Hon''ble Supreme Court made in Maru Ram''s case (supra) by sating that High Court is not a trial Court and that the observations made by the Hon''ble Supreme court are made in a different context while interpreting the provisions of Section 433A of the Cr.P.C. It is correct that the Hon''ble Supreme Court in para No. 56 of the judgment quoted above has used the word `trial court'', but I feel that the Supreme court wanted to say that once the appellate court interfere into the judgment of the Courts below, the judgment of the appellate court shall relate back to the date when the benefit of trial/offence was given to the offender. Here the benefit of acquittal was given to the petitioner by the High Court. It was not on the fault of the petitioner when he was let off from the jail on account of the acquittal which he secured. The rights of the petitioner remained in a fluid stage on account of the right given to the State and to the complainant party to file an appeal before the Supreme Court against the judgment of the High Court. If the Hon''ble Supreme Court has interfered in the judgment of the High Court and has decided to convict and sentence the appellant, the effect of the judgment of the Supreme Court would certainly be as if the Hon''ble High Court could never acquit the person. Thus this Court is of the opinion that though the petitioner was not serving the actual sentence right from 27.11.1981 onwards, but for the purpose of remissions he can certainly bank upon the government orders because his acquittal ultimately has been interfered by the apex court.

Resultantly, I allow petition and give the directions to the respondents to give the benefit of remissions to the petitioner form 27.11.1981 upto 14.7.1992 and by allowing the benefit of the remissions the case of the petitioner for premature release may be considered as and when he becomes eligible for premature release.

Let the copy of this order be sent to the Director General of Prisons, Haryana for information.