Sudhir Kumar vs State of Punjab and Another

Ram Chand Gupta, J.—The present petition has been filed under Article 226/227 of Constitution of India for quashing the impugned order dated 20.05.2013 passed by respondent No. 1 (Annexure P-18) and further holding that petitioner is entitled to all the remissions granted by State of Punjab in exercise of power under Article 161 of the Constitution during the period, petitioner was on bail and further claiming that petitioner has already undergone sentence awarded to him and his further detention has become violative of Articles 14, 19 and 21 of the Constitution and he deserves to be released forthwith unconditionally. I have heard learned counsel for the parties and have gone through the whole record.

Briefly stated, petitioner was involved in a case registered vide FIR No. 342 dated 30.11.1987 u/s 304B of Indian Penal Code registered at Police Station Kotwali Bathinda. He was convicted by learned Sessions Judge, Bathinda for the offence u/s 304B of IPC and awarded rigorous imprisonment for seven years vide judgment dated 17.01.1990 (Annexure P-1). Appeal filed by the petitioner against the said judgment i.e. Criminal Appeal No. 55-SB of 1990 in which he was released on bail by this Court. However, the said appeal was dismissed by this Court vide order dated April 7, 2003. After dismissal of the appeal, petitioner was sent to Central Jail, Bathinda on 18.08.2013. Petitioner filed Special Leave Petition, which was admitted by Hon''ble Apex Court and bail was granted to the petitioner and again he came out of jail on 5.11.2003. However, Criminal Appeal No. 1327 of 2003 filed by the petitioner was decided by Hon''ble Supreme Court on 14.01.2010 and his appeal was dismissed and judgment of conviction and order of sentence were upheld vide judgment, Annexure P-3. On information being received by the petitioner from his lawyer in the Hon''ble Supreme Court, he moved an application in the Court of learned Chief Judicial Magistrate, Bathinda on November 9, 2010 for undergoing the remaining part of sentence and he was taken into custody and sent to Central Jail, Bathinda on 09.11.2010.

It is further submitted that during the period, petitioner remained on bail during pendency of appeal before this Court as well as before Hon''ble Apex Court, various circulars were issued by Government of Pun jab granting remissions to prisoners under Article 161 of the Constitution and however, benefit of the said circulars was denied to the present petitioner on the plea that he was on bail on the dates various circulars were issued.

It has been contended by learned counsel for the petitioner that he restricts his prayer for granting benefit of remissions as per circulars Annexure P-7 and Annexure P-8 issued u/s 432 of the Code of Criminal Procedure read with Article 161 of Constitution of India by the Government of Punjab as he was denied benefit of the same merely on the ground that he was on bail on the dates circulars were issued. However, it is contended that the said act of respondent-State is illegal and not in accordance with the law settled by Hon''ble Apex Court in D. Ethiraj Vs. Secretary to Govt. and Others,

It is further contended that earlier also Criminal Writ Petition No. 1838 of 2012 was filed by the present petitioner in which orders Annexure P-18 and P-19 were passed by this Court and specific directions were given to the respondent-State to passed fresh order while taking into consideration various circulars and ratio of law laid down by Hon''ble Apex Court in D. Ethiraj''s case (supra). It is further contended that however, again same order has been passed rejecting the prayer of the petitioner. It is further contended by learned counsel for the petitioner that substantial portion of sentence undergone by the petitioner for availing benefits of circulars Annexures P-7 and P-8 is to be seen on the date when the case of prisoner was to be considered for release and not on the date particular circular was issued.

The aforementioned factual position has not been disputed. However, it has been contended by learned counsel for the respondent-State that as petitioner had not undergone substantial portion of sentence on the date when circulars Annexures P-7 and P-8 were issued, he could not be granted benefit of the same.

The only dispute is as to whether substantial portion of the sentence which the petitioner was required to undergo as per ratio of law settled by Hon''ble Apex Court in D. Ethiraj''s case (supra) is to be seen on the date when the particular circular was issued or as to whether it is to be seen on the date when the case of release of petitioner is to be considered.

It is pertinent to reproduced relevant paragraphs of the judgment rendered by Hon''ble Apex Court in D. Ethiraj''s case (supra), which reads as under:-

Similar views have been expressed by this Court in the subsequent decision of Joginder Singh Vs. State of Punjab and Others, In Joginder Singh, the aforesaid para of Nauratta has been quoted.

We are in entire agreement with the aforesaid views taken by this Court that if it is clear from the facts of a given case that during the period the petitioner was on bail and had not at all suffered any imprisonment, he cannot get the benefit of remission in respect of that period.

The same is admittedly not the position in this case. Here, the appellant had suffered substantial portion of the period in jail which is more than 17 months. On this, there is no dispute. In that view of the matter, the appellant''s case is covered by the ratio of the three Judge Bench decision of this Court in Nalamolu Appala Swamy (supra).

We are unable to approve the reasoning given by the High Court that the appellant''s case for remission cannot be considered in terms of the said notification as on the date of the notification, he was on bail. This is a wrong approach. A prisoner may be on bail on a particular day this is just a fortuitous circumstance. What the Court has to consider is the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission. We are, therefore, constrained to set aside the judgment of the High Court.

We direct the appellant to make a representation afresh praying for remission attaching a copy of this judgment. In our view, the appellant is entitled to get his case of remission of sentence considered in accordance with the above mentioned G.O. We also direct the State to consider the case of the appellant in the light of the observations made in this judgment and pass an order within a period of six weeks from the date of receipt of the representation.

It may also be mentioned here that the circular issued by Government of Tamil Nadu which was considered by Hon''ble Apex Court in D. Ethiraj''s case (supra) was dated 23.02.1992 and period of imprisonment undergone by D. Ethiraj as per details given in para No. 3 of the said judgment was only 15 days as on 23.02.1992 and however, when his case was considered for his release in view of the circular of Government of Tamil Nadu dated 23.02.1992, i.e. on 5.1.2011 he had already undergone about one year and 140 days and however, he was held to be entitled to get his case of remission of sentence considered in accordance with the said circular of the Government dated 23.02.1992.

There is no dispute that the present petitioner has already undergone actual sentence including under trial period upto 17th May, 2013 as three years eight months and fourteen days and as on today he has already undergone actual sentence of more than four years. Hence, it cannot be said that he has not undergone substantial part of sentence out of total sentence awarded i.e. seven years. Hence, he is entitled for the benefit of remissions as granted by respondent-Government of Punjab vide circulars Annexure P-7 dated 2.4.1992 and Annexure P-8 dated 27.01.1994 as has been claimed by the petitioner.

In view of the same, impugned order dated 17th May, 2013 Annexure P-21 is set aside and the concerned authorities are directed to pass fresh order within two weeks from today in the light of observations made by this Court in this order. Disposed of accordingly.