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PETITIONER: JAI PRAKASH AND ORS.

       Vs.

RESPONDENT: STATE OF HARYANA & ORS.

DATE OF JUDGMENT27/08/1987

BENCH: RAY, B.C. (J) BENCH: RAY, B.C. (J) SEN, A.P. (J)

CITATION:  1987 AIR 2225            1987 SCR  (3)1107  1987 SCC  (4) 296        JT 1987 (3)   418  1987 SCALE  (2)402  CITATOR INFO :  F          1989 SC1972  (12)

ACT:     Punjab    Jail    Manual:   Para    637--Remission    of sentence--Government  orders  dated 14th  August,  1977  and 11/14th  January, 1985 and letter dated 24th April, 1985  of I.G. of Prisons, Haryana--Effect of--Whether prisoner eligi- ble  for  remission  of sentence during period  of  bail  or suspended sentence.

HEADNOTE:     The  petitioner No. 1 and petitioners Nos. 2 to 5,  were convicted  in two separate incidents for offence under  Sec. 302 Indian Penal Code and were undergoing life  imprisonment awarded  to them. They were directed to be released on  bail by the High Court during the pendency of their appeals.  The appeal of the first petitioner was dismissed on 28.9.78  and he  was arrested on 29.1.79. The appeal of  the  petitioners Nos.  2 to 5 was also dismissed on 8.12.78 and they  surren- dered  before the Magistrate on 16.2.79 for serving out  the remaining part of their sentence.     By an order dated August 14, 1977, special remission was granted by the Governor of Haryana to prisoners who were  in confinement  on  14th August, 1977 on the  occasion  of  the first visit of the then Chief Minister of the State to jail, and who had been subsequently released on bail.     All  the petitioners were given remissions of 19  months and 12 days during the period they remained on bail.     The  petitioners were informed by the third  respondent, by letter dated 24.4.1985 to the second respondent that  the convicts who were on bail and whose sentences were suspended would be excluded from the remissions purported to have been earned by them while they were on bail.     In  the  writ  petition, the  petitioners  assailed  the guidelines and instructions laid down in the impugned letter as  contrary to the provisions contained in Para 637 of  the Punjab  Jail Manual. They contended that since they  surren- dered themselves before the jail authority after 1108 the  dismissal of their appeal by the High Court  they  were entitled  to  have the period of remissions earned  by  them

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during  the period they were on bail to be counted for  con- sidering  the total period of sentence undergone  for  their premature release, under the aforesaid para.     A  counter affidavit affirmed by the  second  respondent was  filed stating that no remission of period  of  sentence was  permissible under paragraph 637 or any other  provision of the Punjab Jail Manual, as applicable in Haryana, for the period that the convict remained on bail or his sentence was otherwise under suspension, that the special remission under State  Government orders on visit of Minister for Jails  was allowed  only to those prisoners who were  convicted  before the visit and released on bail subsequently and the convicts surrendered to undergo the unexpired period of sentence  and that  the  petitioners  were not  entitled  to  the  benefit claimed as they had not surrendered in the jail. Dismissing the writ petition, this Court,     HELD: 1.1 The impugned letter of the third respondent is quite in accordance with the Government order made on  11/14 January,  1985  and, therefore, cannot be challenged  as  in violation of paragraph 637 of the Punjab Jail Manual nor  it is  contrary  to the directions contained in  the  aforesaid order. [1115B-C]     The  remissions  that were inadvertently  given  to  the petitioners cannot be taken into account in considering  the total period of sentence undergone by them while considering their premature release from imprisonment under para 637  of the Punjab Jail Manual. [1112H, 1113A]     1.2 On a reading of para 637 of the Punjab Jail  Manual, it  is manifest that a prisoner who was released on bail  or whose sentence was temporarily suspended and was re-admitted in  jail  afterwards would be brought  under  the  remission system on the first day of the calendar month next following his readmission. In other words, a prisoner is not  eligible for  remission of sentence during the period he was on  bail or his sentence was temporarily suspended. [ 1112F-G]     1.3  The special remission was granted by the  order  of the  Governor dated 14th August, 1977, to only  those  peti- tioners who were in confinement on 14th August, 1977 on  the occasion  of the first visit of the then Chief  Minister  of the State to jail, and who had been subsequently released on bail. It is clear and evident from the letter dated  11/14th January, 1985 issued by the Governor that convicts who were 1109 on parole from jail on the date and time of the visit of the Chief  Minister  to the Jail will be granted  remissions  on condition  that they surrender at the jail on the  due  date after  expiry of parole period for undergoing the  unexpired period  of  their sentence. In order to get the  benefit  of remission as directed by the said order issued under Article 161 of the Constitution of India, a convict has to surrender voluntarily after expiry of bail at the jail. [1113B, 1114G]     In  the instant case, the petitioners, though  convicted prior  to the visit to the jail of the Chief Minister,  were granted  bail before the said date. Further, all  the  peti- tioners  did not surrender in jail immediately  after  their appeals  were  dismissed.  While petitioner No.  1  did  not surrender  till he was arrested after four months in  pursu- ance  of the warrant issued by the Court, petitioners No.  2 to  5 surrendered themselves to the Magistrate only after  2 months. Therefore, they were not eligible for remissions  as envisaged  in  the  Government orders  dated  14.8.1977  and 11/14th January, 1985. [1113D-F]

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JUDGMENT:     ORIGINAL JURISDICTION: Writ Petition (Criminal) No.  669 of 1986. (Under Article 32 of the Constitution of India). R.K. Jain, R.P. Singh and Rakesh Khanna for the petitioners.     S.C.  Mahanto,  C.V.S.  Rao and Mahabir  Singh  for  the Respondents. The Judgment of the Court was delivered by     B.C.  RAY, J. The petitioners who are life  convicts  in this   writ  petition  have  assailed  a  D.O.  Letter   No. 4665/1983-GI/G4/R.10-84  dated 24.4.1985 issued by  the  re- spondent  No.  3,  Inspector General  of  Prisons,  Haryana, Chandigarh  intimating  to the Superintendent of  Jail  that convicts who are on bail and whose sentences are  suspended, are  excluded  from the remissions systems in  view  of  the provisions  of Section 637 of the Punjab Jail Manual on  the ground  that  the aforesaid letter purports to  deprive  the petitioners from the benefit of remissions of 19 months  and 12 days granted to them during the period they were on bail, while counting the total period of sentence including remis- sions undergone by them in order to consider their cases  of pre-mature release from imprisonment. 1110     The  petitioner No. 1, Jai Prakash was convicted by  the District  and Sessions Judge, Bhiwani, on December  4,  1975 under Section 302 of the Indian Penal Code and he was award- ed life imprisonment. Against this judgment and order of the Sessions Judge he preferred an appeal before the High  Court of Punjab and Haryana and he was granted bail on  12.1.1976. This appeal, however, was dismissed on 28.9.1978 and he  was arrested  on  29.1.1979 while he was going to the  Court  to surrender  himself  to serve out the remaining part  of  the sentence  as stated by him. The petitioner has  stated  that during  the period he was on bail he earned remission of  19 months and 12 days.     Similarly, the petitioner Nos. 2 to 5 were also convict- ed  by  the District and Sessions Judge, Bhiwani,  on  23.3. 1976  in a case under Section 302 of the Indian  Penal  Code and  they were awarded life imprisonment. Petitioner Nos.  2 to 5 were directed to be released on bail by the High  Court of Punjab and Haryana during the pendency of their appeal by order  dated 7.4.1976. The appeal was however  dismissed  by the High Court on 8.12. 1978 and they surrendered themselves before  the Magistrate on 16.2. 1979 for serving  out  their remaining part of sentence. The petitioner Nos. 2 to 5  were also  given remissions of 19 months and 12 days  during  the period they remained on bail.     It has been stated that though all the petitioners  were given  remissions  of 19 months and 12 days  and  they  were under the impression that the period of remission earned  by them  would  be taken into consideration under para  637  of Punjab Jail Manual while computing their sentence under Para 516-B of the Punjab Jail Manual. They have now been informed by  the respondent No. 3 as per his letter  dated  24.4.1985 addressed  to  the Superintendent, District  Jail,  Bhiwani, respondent  No.  2, that the convicts who were on  bail  and whose  sentences were suspended would be excluded  from  the remissions purported to be earned by them while they were on bail. The petitioners have submitted that a number of  pris- oners  to whom remissions were given during the period  when they were on bail were also released by the State Government after  taking into consideration the remissions  granted  to them during the period when they were on bail or that  their sentence  had  been  suspended. Names of  six  persons  were mentioned in the petition who were pre-maturely released. It

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has  been submitted on behalf of the petitioners  that  they are  entitled to have their period of remissions  earned  by them  during the period they were on bail, to be taken  into account for consideration of their pre-mature release  under para  637  of the Punjab Jail Manual. It  has  been  further submitted that the aforesaid letter issued by the respondent No. 3 laying      1111 down  guidelines and instructions to respondent No. 2,  that is, Superintendent of District Jail, Bhiwani, is contrary to the provisions contained in para 637 of Punjab Jail  Manual. The petitioners have also stated that since they surrendered themselves  before  the jail authority  after  dismissal  of their  appeals by the High Court they are entitled  to  have the period of remissions earned by them to be counted  while considering the total period of sentence undergone for their premature release.     A  counter-affidavit affirmed by the  Superintendent  of District  Jail, Bhiwani has been filed. It has  been  stated therein that no remission of period of sentence is permissi- ble under paragraph 637 or any other provision of the Punjab Jail  Manual (as applicable in Haryana) for the period  that the  convict  remains on bail or his sentence  is  otherwise under  suspension.  Even the benefit of  special  remissions allowed to convicts under State Government orders on  visits of  the  Hon’ble Minister for Jail (though such  orders  did result  in anomalous situations and on the basis of  experi- ence  the  Government is inclined to restrict  such  orders) cannot be available to the petitioners. It has been  further averted that a perusal of the relevant orders of 1977  would show  that the orders were applicable to prisoners  who  had been  convicted  before  the date of visit  of  the  Hon’ble Minister  in  1977, were released on bail  subsequently  and surrendered in the jail for undergoing the unexpired portion of  the  sentence. The petitioners are not entitled  to  the benefit claimed as they had not surrendered in the jail  for undergoing the remaining period of the sentence. The  appeal of  petitioner No. 1 had been dismissed on 28.9.1978 but  he did  not surrender for several months. Ultimately,  warrants for his arrest were issued by the Chief Judicial  Magistrate on 24.1. 1979 and he was arrested and sent to jail on  29.1. 1979. According to the petitioners’ own averments in para  2 of  the petition, the other four writ  petitioners  remained out of jail for more than two months after the dismissal  of their appeal. It is evident that they had not surrendered in the  jail  for undergoing the remaining period  of  sentence immediately  after dismissal of their appeals. It  has  been further averted that even if any remission had been  ordered inadvertently against relevant rules, it is in the  interest of  administration of justice that the mistake is  rectified and  not perpetuated by taking further action on its  basis. It  has  also been stated that similar  cases  of  remission earned  during  the period of bail came up before  the  High Court  of  Punjab and Haryana and it was held  by  the  High Court  that  special remissions were not  available  to  the convicts  who had not surrendered voluntarily on the  expiry of  the  bail period. It has been stated further  that  non- surrender of the convict for 1112 several  months after dismissal of appeal by  itself  showed that the surrender was not voluntary and such a convict  did not merit the remission and an interpretation different from that would defeat the administration of justice. It has been averred  that petitioners could not avail of the  remissions ordered erroneously and inadvertently not in accordance with

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the  relevant rules. As regards the six specific cases  men- tioned,  it  has been stated that the benefit was  given  to Tuhi Ram and Dig Ram only but not in the cases of the  other four convicts referred to in the petition. They were  denied the benefit as it is being done to the petitioners.     Para 637 of the Punjab Jail Manual which is relevant for consideration of the question raised, is set out herein:-               "MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT               OF JAILS IN THE PUNJAB               637.  Subject to the provisions  of  paragraph               634  remission  under paragraph 635  shall  be               calculated from the first day of the  calendar               month  next following the date of the  prison-               er’s  sentence:  any  prisoner  who,     after               having  been released on bail or  because  his               sentence  has  been temporarily  suspended  is               afterwards  re-admitted in the jail, shall  be               brought  under  the remission  system  on  the               first day of the calendar month next following               his re-admission, but shall be credited on his               return on jail with any remission which he may               have earned previous to his release on bail or               the  suspension  of  his  sentence.  Remission               under  paragraph 636 shall be calculated  from               the  first  day  of the  next  calendar  month               following  the appointment of the prisoner  as               convict  warder, convict overseer  or  convict               night watchman."     On  a reading of the aforesaid provision it is  manifest that  a  prisoner  who has been released on  bail  or  whose sentence  has been temporarily suspended and has  afterwards been  re-admitted  in jail will be brought  under  remission system on the first day of the calendar month next following his re-admission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his  sentence is temporarily suspended. The submission  that the  petitioners who were temporarily released on  bail  are entitled to get the remission earned during the period  they were  under  bail, is not at all sustainable.  As  such  the remissions that were inadvertently given to these  petition- ers cannot be taken into account in considering the total      1113 period of sentence undergone by them while considering their premature  release from imprisonment under paragraph 637  of the  Punjab Jail Manual. It also appears from the  order  of the  Governor of Haryana dated 14th August, 1977 annexed  as Annexure  ’R1’ to the writ petition that the special  remis- sion  was granted by the Governor of Haryana to  only  those prisoners  who were in confinement on 14th August,  1977  on the  occasion  of the first visit of the Chief  Minister  of Haryana  to jail and who had been subsequently  released  on bail.  It  is pertinent to set out paragraph 2 of  the  said order:-                         "All  those prisoners who have  been               convicted  before  the 14th August,  1977  but               subsequently  released on bail shall be  enti-               tled  to the remission only if they  surrender               in  the  jail  for  undergoing  the  unexpired               portion of their sentence."     The  petitioners though convicted prior to 14th  August, 1977  that is the date of visit of the Hon’ble  Minister  to the  Jail  were granted bail before the said date.  As  such they  are not entitled to the said remission  in  accordance with  the order of Governor of Haryana. Secondly, all  these petitioners did not surrender in the jail for undergoing the

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unexpired portion of their sentences immediately after their appeals were dismissed by the High Court. On the other hand, the  petitioner  No. 1 whose appeal was dismissed  on  28.9. 1978  did not surrender either to the jail or to the  Magis- trate for serving out the remaining part of sentence till he was  arrested  on  29.1. 1979 in pursuance  of  the  warrant issued  by  the court. The petitioner Nos. 2 to 5  who  were released  on bail by the High Court during the  pendency  of their appeal did not surrender in the jail immediately after their  appeal was dismissed on 8.12. 1978. They  surrendered themselves to the Magistrate only on 16.2. 1979 to serve out the remaining part of their sentence. As such, it cannot  be said that they have surrendered in jail for undergoing their unexpired period of sentence immediately after their appeals were  dismissed and so they are not eligible for  remissions as  envisaged in the said Government order dated 14.8.  1977 referred to hereinbefore.     It  appears  that the respondent No.  3.  the  Inspector General of Police, Haryana, Chandigarh issued a letter being D.O.  No. 4665/ 1983-GI/G4/R. 10-84 dated 24.4. 1985 to  all Superintendents  of  Jails including the  Superintendent  of District Jail, Bhiwani, drawing their attention to paragraph 2 of the letter dated 11/14-1-1985 from the State Government to the Jail Department which is to the following effect:- 1114               "Attention of all Superintendents of Jails  is               drawn to para 4 of the Government letter under               which  Government have affirmed that  convicts               who are on bail and whose sentences have  been               suspended  are  excluded from  the  remissions               systems in. view of the provisions of para 637               of the Punjab Jail Manual."                   This  D.O.  letter  has  been  annexed  as               Annexure ’A’ to the writ petition. The  letter               dated 11/14 January, 1985 issued by the Gover-               nor of Haryana to the respondent No. 3 is  an-               nexed  as Annexure ’R5’ to the writ  petition.               The  relevant excerpt of it is set out  herein               below:-               "It has been decided that such remissions will               be granted only in the following cases:-               (i)  All the convicts, convicted by the  civil               courts  with  criminal  jurisdiction  in   the               Haryana State and were present in the jails on               the  date  and time of the visit of  the  Jail               Minister or other high dignitaries.               (ii)   All   the   convicts   who   were    on               parole/furlough from that jail on the date and               time of the visit of the Jail Minister subject               to  the condition that they surrender  at  the               Jail  on  the  due date after  the  expiry  of               parole/furlough  period  for  undergoing   the               unexpired portions of their sentences. .............               4. Your attention is also invited to para  637               of the Punjab Jail Manual which provides  that               convicts  who are on bail and  whose  sentence               has  been  suspended  are  excluded  from  the               remission system."     It  is clear and evident from this letter that  convicts who  were  on parole from jail on the date and time  of  the visit  of  the Chief Minister to the Jail  will  be  granted remissions  on condition that they surrender at the jail  on the  due date after expiry of parole period  for  undergoing the  unexpired period of their sentence. This means  that  a

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convict in order to get the benefit of remission as directed by the said order issued under Article 16 1 of the Constitu- tion of India has to surrender voluntarily at the Jail after expiry  of bail. In the instant case, petitioner No.  1  did not  surrender  in jail or before the Magistrate  after  his appeal  was dismissed by the High Court and  the  petitioner No. 1 had been     1115 arrested under warrant of arrest as he did not surrender  in jail after his appeal was dismissed. Petitioners who were on bail  also did not surrender immediately after dismissal  of their  appeal  but  they surrendered  themselves  after  two months of dismissal of their appeal. In such  circumstances, it  cannot be said that the petitioners are entitled to  the remissions  as envisaged in the said Government order  dated 11/14 January, 1985. The letter of the respondent No. 3  the Inspector  General of Prisons, Haryana, Chandigarh  i.e.D.O. Letter  No. 4665/1983-GI/G4/R10-84 dated 24.4.1985 is  quite in accordance with the Government order made on 11/14  Janu- ary, 1985 and the respondent No. 3 in fact quoted  paragraph 2 of the said letter which contains the necessary  requisite for grant of remissions from sentence. The said D.O.  letter of the respondent No. 3 cannot therefore be challenged as in violation of paragraph 637 of the Punjab Jail Manual nor  it is  contrary  to the directions contained in  the  aforesaid order.     In  the premises aforesaid, this writ petition  is  dis- missed. There will be no order as to costs. N.P.V.                                       Petition   dis- missed. 1116