Suresh Kumar vs State of Haryana

M.L. Singhal, J.

This is Criminal Misc. No. 21746M of 1990 whereby Suresh Kumar (petitioner herein) who is undergoing sentence of imprisonment is claiming that the period of parole availed of by him to the tune of 41/2 months be counted towards the actual sentence undergone by him. He is further claiming that the special remissions granted by the Govt., Director General of Prisons/Inspector General of Prisons, Haryana to other prisoners during the period from 10.1.1994 to date be granted to him also and be counted towards the sentence undergone by him. He has prayed that after counting the parole period availed of by him and the special remissions granted by the Govt., Director General of Prisons/Inspector General of Prisoner, Haryana towards the actual sentence, his date of premature release be determined and if he has undergone the requisite sentence, to be released forthwith. It is alleged that he was arrested on 21.9.1990 in case FIR No. 58 dated 6.8.1990 registered under Sections 304A/498A of the Indian Penal Code of Police Station Sadar, Yamunanagar. On the conclusion of the trial, he was convicted and sentenced to undergo imprisonment for life by the Additional Sessions Judge, Jagadhri vide judgment/order dated 10.1.1994. He challenged his conviction and sentence before this Court through criminal appeal No. 30DB of 1994. In appeal, his conviction was maintained vide order dated 17.10.1996 but sentence was reduced to 8 years rigorous imprisonment under Section 304B of the Indian Penal Code. Sentence was maintained under Section 498A of the Indian Penal Code. Sentence were ordered to run concurrently. Till 11.8.1998, he had undergone the following sentences of imprisonment :

From 21.9.1990 to 23.7.1991 10 months and three days as under trial.

From 10.1.1994 to 11.8.1998 4 years, 7 months and 1 day (actual sentence).

During this period he earned remission to the tune of 1 year, two months and 15 days. He had thus undergone 6 years, 7 months and 19 days total sentence.

He is claiming 1 year and 2 months as special remissions granted since 10.1.1994 to 11.8.1998 to other prisoners but denied to him.

If special remissions granted to other prisoners are allowed to him, the total sentence undergone by him will amount to 7 years 9 months and 19 days. He has availed 41/2 months as temporary release on parole during his confinement in Jail since 10.1.1994. He is entitled to the addition of the period of parole availed of by him towards the actual sentence. Vide letter dated 21.3.1994 of the DGP, two months special remission was allowed. Vide letter Nos. GR No. 41/3/91IJJ(II) dated 14.8.1995, GR No. 41/3/91/1JJ(II) dated 14.8.1996 and GR No. 41/3/91/1JJ(II) dated 21.10.1996, special remissions were granted for two months, two months and six months respectively. Vide letter dated 15.10.1997 of DGP two months remission was allowed. In this manner, 14 months special remission was allowed. Suresh Kumar has prayed that he be allowed premature release after calculating the actual sentence and the total sentence undergone by him in the manner as suggested by him through this criminal misc.

Respondents contested this prayer urging that the petitioner is not entitled to special remissions as he was convicted and sentenced for an offence of "dowry death". There are instructions Annexures R1 to R3, which did not allow special remissions to those who were convicted of either rape or "dowry death" or abduction of a child below 14 year and his murder. It was further urged that the period of parole cannot be counted towards the total period of sentence of a prisoner. Parole period is to be counted towards the actual sentence and the sentence has to be deducted from the total sentence. The petitioner has undergone 7 years 4 months and 7 days total sentence. He has undergone 6 years and 29 days of actual sentence. He has earned remission to the tune of one year, 7 months and 24 days.

I have heard the learned Counsel for the petitioner, learned AAG Haryana for the respondents and have gone through the record.

Learned counsel for the petitioner submitted that the period of parole availed of by him has to be added towards the actual sentence undergone by him. It was further submitted that the special remissions allowed to the other prisoners should also have been allowed to him and they should have been taken into account while computing the period of total sentence undergone by him. It was submitted that when the Govt./DGP/IGP, Haryana allowed special remissions on certain occasions, no distinction could have been drawn that those remissions will be available to this class of prisoners and will not be available to that class of prisoners. It was submitted that it could not be laid down while granting special remissions that special remissions shall not enure in favour of the persons convicted of rape, dowry death and abduction of child below 14 years and his murder and so on.

In support of his submission, he drew my attention to Jagaram v. State of A.P., 1986 Crl.L.J. 1424 where Hon''ble Andhra Pradesh High Court observed on the following facts :

"On the occasions of the anniversary of the Formation of Andhra Pradesh State on Ist November, 1984 and the restoration of democratic rule in the State, the Government have decided to grant remission to certain categories of prisoners who have been convicted for offences against laws relating to matters to which the Executive Powers of the State extend.

(2) Accordingly in exercise of the powers conferred by Section 432 of the Code of Criminal Procedure, the Govt. was pleased to remit and reduce the sentence of the following categories of the prisoners in the State who have been convicted by Civil Courts of Criminal Jurisdiction of the scales specified against each except to the extent specified in paragraph below :

(a) The prisoners sentenced for the life imprisonment and not governed by Section 433A Criminal Procedure Code, and who have completed 7 years of actual sentence and 10 years of total sentence including remission shall be released.

(b) The other lifers not governed by Section 433A Criminal Procedure Code and who have undergone total sentence of 5 years shall be released.

(c) All prisoners with a sentence of one year and above and not governed by (a), (b), (c) above shall be granted a special remission of one month for each year of sentence awarded.

(d) Long term prisoners, other than lifers governed under Section 433A, Criminal Procedure Code, who have completed actual sentence of 5 years as on 31.10.1984 shall be released.

(e) All prisoners with a sentence below one year shall be granted a special remission of 15 days.

(f) All prisoners, other than life convicts who are 65 years of age and above as one 31.10.1984, shall be released.

(3) The remissions and reduction of sentence ordered in paragraph above shall also apply to prisoners who have been convicted by Courts situated within the State of Andhra Pradesh and are undergoing sentences in other States but shall not apply to the following categories of prisoners :

1 Prisoners convicted and sentenced by Courts situated outside the State of Andhra Pradesh.

2 Prisoners convicted of offences against laws relating to matters to which the executive powers of the Union extend.

3 Prisoners convicted for offences under Sections 120B, 121 to 130, 359 to 377 and 395 to 402 Indian Penal Code.

4 to 6 xx xx xx xx xx".

The Hon''ble Andhra Pradesh High Court observed that clause3 of paragraph (3) of the impugned G.O. above is void being violative of Article 14 of the Constitution of India and is accordingly declared as such.

It was observed that the only restriction upon the State Government''s powers to grant remissions is the one provided in Section 433A. This restriction has been placed by the Parliament itself. It is not open to the State Government to impose any further restriction upon its power of remission. It cannot say that its power of remission shall not be exercised in respect of certain other offences than those mentioned in Section 433A; saying so amounts to amending Section 433A itself which the State Government cannot do.

On the strength of the observations of the Hon''ble Andhra Pradesh High Court made in 1986 Crl.L.J. 1424 (supra), learned counsel for the petitioner submitted that the classification made by the Government that the benefit of special remissions shall not be available to convicts of rape, dowry death etc. is not based on any intelligible differentia and is thus violative of Article 14.

In my opinion, the petitioner is entitled to the benefit of special remissions granted by the Govt./DGP/IGP, Haryana from time to time. He is entitled to count the period of parole enjoyed by him towards the actual sentence undergone by him. The period of parole undergone by him however shall be deducted out of the total sentence undergone by him. Petitioner''s case for premature release shall be decided by the respondents keeping in view the above observations.

This criminal misc. petition is accordingly disposed.