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PETITIONER: STATE OF HARYANA & OTHERS

       Vs.

RESPONDENT: MOHINDER SINGH

DATE OF JUDGMENT:       07/02/2000

BENCH: S.S.Ahmad, D.P.Wadhwa

JUDGMENT:

     D.P.  WADHWA, J.

     Leave granted.

     In  five  of  the  appeals (arising  from  SLP  (Crl.) Nos.1810/99,  145/2000, 1812/99, 2033-34/99 and 2151/99) out of  the batch of six question involved is if the respondent, a  convict, is entitled to remission of his sentence for the period  during  which  he is on bail.  In the  sixth  appeal (arising  from  SLP  (Crl.)  643/99)   question  is  if  the prisoner,  who is convicted of an offence under Section  376 of  Indian  Penal  Code (IPC), though confined in  jail,  is entitled  to  remission of his sentence when the  Government circular  issued  under Section 432 of the Code of  Criminal procedure  (’Code’ for short) does not grant such  remission to  an inmate who has been convicted under Section 376, IPC. High Court in batch of five appeals observed that conviction and  sentence  are two separate terms and that the moment  a person  is convicted he becomes stigmatic.  High Court  said that  at  that point of time he is a convict and if  he  has been  granted bail by the appellate court it is by virtue of provision of Section 389 of the Code and his sentence stands suspended  and not that his conviction is suspended and that with  the  dismissal  of appeal of such  convict  stigma  of conviction  is not wiped of.  High Court was, therefore,  of the  opinion  that  such  a convict  would  be  entitled  to remission  for  the period he was on bail when the  circular gave   the   benefit  of  remission   to   a   prisoner   on parole/furlough.   High  Court gave direction to  the  State Government  to  reconsider the case of the convict  who,  it said,  should  be  entitled  to the  remission  as  per  the circular  during  the period he was on bail.  In  the  sixth appeal  (arising  from  SLP  (Crl.)  No.643/99),  where  the respondent  was  convicted for an offence under Section  376 IPC,  High Court considered various provisions of the Punjab Jail  Manual  as applicable in the State of  Haryana  (paras 634,  635  and  637 of the Jail Manual) and  held  that  the prisoner  in this case was also entitled to remission as was granted  to  those prisoners who were on parole/furlough  or were in jail on the date of the circular granting remission. Before  we  consider  the  rival  contentions  it  would  be appropriate  to set out the circulars granting remission  to the  prisoners.   These  circulars have  been  issued  under Section  432  of the Code and their language is same.   They

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were  issued on different dates on July 22, 1987;  March 16, 1988;  August 14, 1989;  August 14, 1991;  January 29, 1992; April  29, 1993;  and August 14, 1995.  First such  circular dated  July 22, 1987 is applicable from July 6, 1987 and  is as under:  -

     "In exercise of the powers conferred under section 432 of  the  Code of Criminal Procedure, 1973, the  Governor  of Haryana hereby grants special remission to the prisoners who happen  to  be confined in Jails in the State of Haryana  on 6th  July, 1987 and who have been convicted by Civil  Courts of  criminal  jurisdiction  (Criminal   Court  of  Competent Jurisdiction?)  in  the State of Haryana.  The remission  is granted on the following scale:  -

     Remission

     i)  Those  who  have  been   sentenced  for  a  period exceeding 10 years 1 year

     ii)  Those  who  have  been  sentenced  for  a  period exceeding 2 years and upto 10 years 6 months

     iii) Those who have been sentenced for a period upto 2 years 3 months

     Provided that:

     i)  No remission will be granted to persons  convicted of rape or dowry deaths.

     ii)  The remission will not exceed 1/4th of the period of sentence.

     iii)  The minimum effective imprisonment will be three months  (or  less where the actual sentence is less  than  3 months)

     2.  Remission will also be granted to all the convicts who  were on parole/furlough from the jail on 6th July, 1987 subject  to the condition that they surrender at the jail on the  due date after the expiry of parole/furlough period for undergoing unexpired portions of their sentences.

     3.   Sentence  of imprisonment imposed in  default  of payment  of the fine shall not be treated as substantive for the purpose of grant of this remission.

     4.   All  the prisoners convicted by Civil  Courts  of criminal   jurisdiction   (Criminal   Court   of   Competent Jurisdiction?)  in Haryana but undergoing their sentences in jails  outside  Haryana  shall be entitled to the  grant  of remission on the above scale.

     5.  The remission will not be admissible to:  -

     i) Detenus of any class.

     ii)  The  persons sentenced under the  Foreigners  Act 1948 and the Passport Act, 1967;

     iii) Pakistani Nationals;

     iv)  The  persons sentenced under Section 2 and  3  of Criminal  Law Amendment Act, 1961 and section 121 to 130  of

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the Indian Penal Code, 1860;

     v)  The persons sentenced under section 3, 4, 5, 6  to 10 of the Official Secrets Act, 1930;

     vi)  The  persons  imprisoned   for  failing  to  give security  for  keeping peace for their good behaviour  under sections 107/109 of the Criminal Procedure Code, 1973;

     vii)  The persons who committed any major jail offence during  the last two years and were punished of for the same under the relevant provisions of Punjab Jail Manual;  and

     viii)  The  persons  who  got the benefit  of  such  a remission  during the past one year from 6.7.87.  The  grant of  this  remission  to life convicts will  not  effect  the provisions of section 433-A Cr.P.C.

     Dated  Chandigarh.  M.C.  GUPTA the 22.7.87  Financial Commissioner & Secy.  to Govt.  Haryana, Jails Department."

     Section  432 of the Code under which circular has been issued we reproduce

     "432.   Power  to suspend or remit sentences.     (1) When  any  person  has been sentenced to punishment  for  an offence,  the  appropriate  Government  may,  at  any  time, without  conditions or upon any conditions which the  person sentenced  accepts, suspend the execution of his sentence or remit  the  whole or any part of the punishment to which  he has been sentenced.

     (2) Whenever an application is made to the appropriate Government  for  the suspension or remission of a  sentence, the  appropriate Government may require the presiding  Judge of  the  Court before or by which the conviction was had  or confirmed to state his opinion as to whether the application should  be granted or refused, together with his reasons for such  opinion and also to forward with the statement of such opinion  a  certified copy of the record of the trial or  of such record thereof as exists.

     (3)  If  any  condition on which a sentence  has  been suspended  or remitted is, in the opinion of the appropriate Government,  not  fulfilled, the appropriate Government  may cancel the suspension or remission, and thereupon the person in  whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

     (4)  The condition on which a sentence is suspended or remitted  under  this section may be one to be fulfilled  by the  person  in  whose favour the sentence is  suspended  or remitted, or one independent of his will.

     (5)  The appropriate Government may, by general  rules or  special orders, give directions as to the suspension  of sentences  and  the conditions on which petitions should  be presented and dealt with:

     Provided  that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen  years, no such petition by the person sentenced or

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by  any  other  person on his behalf shall  be  entertained, unless the person sentenced is in jail, and

     (a)  where  such  petition  is   made  by  the  person sentenced, it is presented through the officer-in- charge of the jail;  or

     (b)  where such petition is made by any other  person, it  contains  a declaration that the person sentenced is  in jail.

     (6)  The  provisions of the above  sub-sections  shall also apply to any order passed by a criminal court under any section of this Code or of any other law which restricts the liberty  of any person or imposes any liability upon him  or his property.

     (7)  In this section and in Sec.  433, the  expression "appropriate Government" means, -

     (a)  In  cases  where the sentence is for  an  offence against,  or  the  order referred to in sub-section  (6)  is passed  under  any  law relating to a matter  to  which  the executive   power   of  the   Union  extends,  the   Central Government;

     (b) in other cases, the Government of the State within which  the  offender  is  sentenced or  the  said  order  is passed."

     Article  161 of the Constitution also grants power  to the Governor to grant pardons, etc.  Though that Article may not be quite relevant in the present appeals but we may note the same

     "161.   Power of Governor to grant pardons, etc.   and to  suspend, remit or commute sentences in certain cases. The  Governor  of  a  State shall have the  power  to  grant pardons,  reprieves, respites or remissions of punishment or to  suspend,  remit  or commute the sentence of  any  person convicted  of  any  offence against any law  relating  to  a matter to which the executive power of the State extends."

     It is not disputed that the circulars have been issued by  the State Government in the exercise of powers conferred under  Section 432 of the Code.  Its authority to issue  the circulars has not been questioned.  From the language of the circular  aforesaid it is relevant to note three points  for the  purpose  of  these  appeals:   (1)  It  grants  special remission to the prisoners, who are confined in jails in the State of Haryana on July 6, 1987 (2) Remission is also to be granted  to all the convicts who are even on parole/furlough from  the jail on July 6, 1987 (3) The remission of sentence cannot  be  granted to prisoners convicted of rape or  dowry deaths.

     The  circular  granting remission is authorised  under the  law.   It  prescribes limitations both as  regards  the prisoners who are eligible and those who have been excluded. Conditions  for  remission of sentence to the prisoners  who are eligible are also prescribed by the circular.  Prisoners have  no  absolute  right for remission  of  their  sentence unless  except  what is prescribed by law and  the  circular

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issued  thereunder.  That special remission shall not  apply to  a  prisoner  convicted  of   a  particular  offence  can certainly be relevant consideration for the State Government not  to exercise power of remission in that case.  Power  of remission,   however,  cannot  be   exercised   arbitrarily. Decision  to  grant  remission  has  to  be  well  informed, reasonable and fair to all concerned.

     Terms  bail,  furlough  and   parole  have   different connotations.    Bail  is  well   understood   in   criminal jurisprudence.   Provisions of bail are contained in Chapter XXXIII  of the Code.  It is granted by the officer-in-charge of  a  police  station  or by the court  when  a  person  is arrested   and  is  accused  of   an  offence   other   than non-bailable  offence.   Court  grants bail  when  a  person apprehends  arrest  in  case of non-bailable offence  or  is arrested  of  a  non-bailable  offence.  When  a  person  is convicted  of  an offence he can be released on bail by  the appellate  court  till  his  appeal is decided.   If  he  is acquitted  his  bail  bonds  are discharged  and  if  appeal dismissed  he  is taken into custody.  Bail can  be  granted subject  to  conditions.   It does not appear  to  be  quite material  that  during  the pendency of  appeal  though  his sentence  is  suspended he nevertheless remains  a  convict. For  the exercise of powers under Section 432 it may perhaps be relevant that the State Government may remit the whole or any  part  of  the  punishment to which a  person  has  been sentenced  even  though  his appeal against  conviction  and sentence  was  pending  at that time.  Appeal in  that  case might  have to abate inasmuch as the person convicted has to accept  the conditions on which State Government remits  the whole or in part of his punishment.

     In  Dictionary  of  American Penology,  by  Vergil  L. Williams  ’furlough’  is described as under "Furloughs  are variously  known  as  temporary   leaves,  home  visits,  or temporary  community  release.   For decades,  prisons  have occasionally  granted  short furloughs to inmates  who  were suddenly  faced with a severe family crisis such as a  death or grave illness in the immediate family.  Furloughs of that type  are  treated as special circumstances, and  often  the inmate  must  be  accompanied by an officer as part  of  the terms of the temporary release".

     In  the  article  ’Furlough   Programs  and   Conjugal Visiting  in  Adult Correctional Institutions’ by Carson  W. Markley  in Volume "Federal Probation" it is mentioned  that "the  term  ’furlough’ is frequently confused  with  special leave,  which most adult institutions have long been willing to  grant  under extenuating circumstances, such  as  family crises.   A  prisoner on special leave  customarily  travels under  escort,  while  on  furlough  he  is  on  his   own". ’Furlough’  according  to Black’s Law Dictionary (6th  edn.) means  "a  leave  of absence;  e.g.  a  temporary  leave  of absence  to  one  in the armed service of the  country;   an employee placed in a temporary status without duties and pay because  of  lack  of  work  or  funds  or  for  other  non- disciplinary  reasons.  Also the document granting leave  of absence."  According  to The Concise Oxford Dictionary  (new edition)  "Furlough"  means  :    "leave  of  absence,  esp. granted  to  a member of the services or to  a  missionary". Parole  is defined in these two dictionaries as under :  The Concise  Oxford  Dictionary  New Edition "The release of  a prisoner  temporarily  for a special purpose  or  completely

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before  the  expiry  of a sentence, on the promise  of  good behaviour;   such a promise, a word of honour".  Black’s Law Dictionary    Sixth Edition "Release from Jail,  prison  or other  confinement after actually serving part of  sentence; conditional release from imprisonment which entitles parolee to  serve  remainder  of  his term outside  confines  of  an institution,  if  he satisfactorily complies with all  terms and  conditions provided in parole order.  " In Poonam  Lata vs.  M.L.  Wadhawan and others (1987 (3) SCC 347) this Court was  considering the nature and scope of parole in a case of preventive  detention.  It said:  -- "There is no denying of the fact that preventive detention is not punishment and the concept  of serving out a sentence would not legitimately be within  the  purview of preventive detention.  The grant  of parole is essentially an executive function and instances of release  of  detenus on parole were literally unknown  until this  Court  and some of the High Courts in India in  recent years  made  orders  of release on  parole  on  humanitarian considerations.  Historically ’parole’ is a concept known to military  law  and denotes release of a prisoner of  war  on promise  to  return.  Parole has become an integral part  of the  English  and  American   systems  of  criminal  justice intertwined  with the evolution of changing attitudes of the society  towards  crime and criminals.  As a consequence  of the  introduction  of  parole  into the  penal  system,  all fixed-term  sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of  the  period  of  sentence has  been  served.   In  those countries  parole  is taken as an act of grace and not as  a matter  of right and the convict prisoner may be released on condition   that  he  abides  by   the  promise.   It  is  a provisional  release from confinement but is deemed to be  a part  of  the imprisonment.  Release on parole is a wing  of the   reformative  process  and  is  expected   to   provide opportunity  to  the  prisoner to transform himself  into  a useful  citizen.  Parole is thus a grant of partial  liberty or  lessening  of  restrictions to a convict  prisoner,  but release  on  parole  does  not  change  the  status  of  the prisoner.   Rules are framed providing supervision by parole authorities  of the convicts released on parole and in  case of  failure to perform the promise, the convict released  on parole is directed to surrender to custody.  (See The Oxford Companion  to  Law,  edited  by Walker,  1980  edn.,  p.931; Black’s   Law  Dictionary,  5th   edn.,  p.1006;    Jowitt’s Dictionary  of  English  Law,  2nd edn.,  Vol.   2,  p.1320; Kenny’s Outlines of Criminal Law, 17th edn., pp.574-76;  The English  Sentencing System by Sir Rupert Cross at  pp.31-34, 87  et.  seq.;  American Jurisprudence, 2nd edn., Vol.   59, pp.53-61;   Corpus Juris Secundum, Vol.  67;  Probation  and Parole, Legal and Social Dimensions by Louis P.  Carney.) It follows from these authorities that parole is the release of a  very  long  term prisoner from a  penal  or  correctional institution after he has served a part of his sentence under the  continuous  custody of the State and  under  conditions that permit his incarceration in the event of misbehaviour.

     Para  20.8  in  Chapter  XX dealing  with  "System  of Remission, Leave and Premature Release" of the Report of the All  India  Committee on Jail Reforms, 1980-83 (Volume   I) refers to leave which can be granted to the petitioner.  The relevant  portion is as under :  "Different concepts such as parole,  furlough,  ticket of leave, home leave,  etc.,  are used  in  different  States  to denote  grant  of  leave  or emergency   release   to  a   prisoner  from  prison.    The terminology  used  is  not uniform and  is  thus  confusing.

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There  is  also  no  uniformity with regard  to  either  the grounds  on  which  leave  is sanctioned  or  the  level  of authority  empowered to sanction it.  There is also a lot of diversity  in the procedure for grant of leave.  The  scales at  which these leaves are granted also differ from State to State;   for example in some States parole is granted for  a period  extending  upto 15 days while in other States it  is restricted to 10 days only."

     ’Furlough’  and  ’parole’ are two distinct  terms  now being used in the Jail Manuals or laws relating to temporary release  of  prisoners.   These   two  terms  have  acquired different  meanings  in  the statute  with  varied  results. Dictionary  meanings, therefore, are not quite helpful.   In this  connection  we may refer to the Haryana  Good  Conduct Prisoners  (Temporary Release) Act, 1988 which has  repealed the  Punjab Good Conduct Prisoners (Temporary Release)  Act, 1962.   Punjab  Act was earlier applicable in the  State  of Haryana.   Language  of both the Acts is same and it may  be useful to refer Sections 3 and 4 of any of these two Acts to understand the difference between parole and furlough:  -

     "3.   Temporary  release  of   prisoners  on   certain grounds.     (1) The State Government may, in  consultation with  the District Magistrate or any other officer appointed in  this behalf, by notification in the Official Gazette and subject  to  such  conditions and in such manner as  may  be prescribed,  release  temporarily for a period specified  in sub-section  (2),  any prisoner, if the State Government  is satisfied that

     (a)  a member of the prisoner’s family had died or  is seriously ill or the prisoner himself is seriously ill;  or

     (b)  the  marriage  of   prisoner  himself,  his  son, daughter, grandson, grand-daughter, brother, sister sister’s son or daughter is to be celebrated;  or

     (c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father’s undivided land actually in possession of the prisoner;  or

     (d)  it is desirable to do so for any other sufficient cause.

     (2)  The  period for which a prisoner may be  released shall  be  determined by the State Government so as  not  to exceed

     (a) where the prisoner is to be released on the ground specified in clause (a) of sub-section (1), three weeks;

     (b) where the prisoner is to be released on the ground specified  in clause (b) or clause (d) of sub- section  (1), four weeks;  and

     (c) where the prisoner is to be released on the ground specified in clause (c) of sub-section (1), six weeks:

     Provided  that the temporary release under clause  (c) can  be availed more than once during the year, which  shall not, however, cumulatively exceed six weeks.

     (3) The period of release under this section shall not

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count towards the total period of sentence of a prisoner.

     (4)  The  State  Government   may,  by   notification, authorise  any  officer  to exercise its powers  under  this section  in  respect  of all or any other  ground  specified thereunder.

     4.  Temporary release of prisoners on furlough.   (1) The  State Government or any other officer authorised by  it in  this behalf may, in consultation with such other officer as   may   be  appointed  by   the  State   Government,   by notification,  and  subject to such conditions and  in  such manner  as  may  be   prescribed,  release  temporarily,  on furlough,  any prisoner who has been sentenced to a term  of imprisonment of not less than four years and who

     (a)  has, immediately before the date of his temporary release,  undergone continuous imprisonment for a period  of three  years,  inclusive of the pre-sentence  detention,  if any;

     (b)  has  not  during such period committed  any  jail offence  (except  an offence punished by a warning) and  has earned at least three annual good conduct remissions:

     Provided that nothing herein shall apply to a prisoner who

     (i)  is a habitual offender as defined in sub- section (3)  of section 2 of Punjab Habitual Offenders (Control  and Reform) Act, 1952;  or

     (ii)  has  been  convicted of dacoity  or  such  other offence  as  the  State  Government  may,  by  notification, specify.

     (2)  The  period of furlough for which a  prisoner  is eligible  under sub-section (1) shall be three weeks  during the  first  year  of his release and two weeks  during  each successive year thereafter.

     (3)  Subject  to the provisions of clause (d) of  sub- section  (3) of section 8 the period of release referred  to in  sub-section (1) shall count towards the total period  of the sentence undergone by a prisoner."

     It  would  be  thus seen that when a  prisoner  is  on parole  his  period  of release does not count  towards  the total  period of sentence while when he is on furlough he is eligible  to have the period of release counted towards  the total  period of his sentence undergone by him.  Delhi  Jail Manual  also uses the same terminology which we may set  out as under:  -

     "Part  I (Parole) 1.(i) A prisoner may be released  on parole  for such period as government may order in cases  of serious  illness or death of any member of prisoner’s family or  his nearest relatives.  For this purpose the  prisoner’s family  or  his  nearest  relatives  mean  his/her  parents, brothers,  sisters,  wife/husband and children.  A  prisoner may  similarly  be  released on parole to  arrange  for  the marriage  of  his issue for a period of not  exceeding  four weeks.   (ii)  The period spent on parole will not count  as part  of the sentence.  2.  ...  3.  ...  Part II (Furlough)

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1.(i)  A  prisoner  who is sentenced to 5 years or  more  of rigorous  imprisonment and who has actually undergone  three years  imprisonment  excluding remission may be released  on furlough.   The  first  spell  may be  of  three  weeks  and subsequent  spells  of two weeks each, per  annum,  provided that  (a) his conduct in jail has been good;  he has earned three  Annual  Good Conduct Remissions and provided  further that  he  continues  to  earn   good  conduct  remission  or maintains  good  conduct.   (b) that he is  not  a  habitual offender;   (c)  that  he is not convicted of  robbery  with violence,  dacoity  and  arson;  (d) that he is not  such  a person  whose  presence  is considered highly  dangerous  or prejudicial  to public peace and tranquility by the District Magistrate  of  his  home  district.   (ii)  The  period  of furlough  will  count as sentence undergone except any  such period during which the prisoner commits an offence outside. 2 to 6 ..."

     Chapter  XX of the Punjab Jail Manual as applicable in the  State of Haryana contains remission system.  Paras 633, 633-A,  635,  637, 644 and 645 are relevant for our  purpose which we set out hereunder:  -

     "633.   Cases in which ordinary remission not  earned.   No  ordinary remission shall be earned in  the  following cases, namely:  -

     (1)  in  respect  of   any  sentence  of  imprisonment amounting,  exclusive  of any sentence passed in default  of payment of fine, to less than three months;

     (2)  in respect of any sentence of simple imprisonment except  for  any continuous period not being less  than  one month during which the prisoner labours voluntarily:

     633-A.   Ordinary  remission not earnable for  certain offences committed after admission to jail.   If a prisoner is convicted of an offence committed after admission to jail under section 147, 148, 152, 224, 302, 304, 304-A, 306, 307, 308,  323,  324, 325, 326, 332, 333, 352, 353 or 377 of  the Indian  Penal  Code,  or  of   an  assault  committed  after admission  to  Jail  on a warder or other officer  or  under section  6 of the Good Conduct Prisoners Probational Release Act, 1926 (X of 1926), the remission of whatever kind earned by  him  under  these  rules  up to the  date  of  the  said conviction  may, with the sanction of the  Inspector-General of Prisons, be cancelled.

     635.   Scale  of  award  of  remission.      Ordinary remission shall be awarded on the following scale:  -

     (a) two days per month for thoroughly good conduct and scrupulous attention to all prison regulations.

     (b)  two  days  per  month for industry  and  the  due performance of the daily task imposed.

     637.   Application of remission of system.    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 prisoner’s sentence;   any prisoner  who after having been released on bail or  because its  sentence  has been temporarily suspended is  afterwards readmitted  in the jail shall be brought under the remission system on the first day of the calendar month next following

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his  re-admission,  but shall be credited on his  return  to 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.

     644.   Special remission.   (1) Special remission may be  given  to  any  prisoner whether  entitled  to  ordinary remission or not other than a prisoner undergoing a sentence referred  to  in paragraph 632, for special service  as  for example.

     For   the  existing  para   the  following  shall   be substituted.

     (1)  Special  remission may be given to  any  prisoner whether  entitled to ordinary remission or not other than  a prisoner undergoing a sentence referred to in paragraph 632, for special services as for example:

     (a)  assisting in detecting or preventing breaches  of prison discipline or regulations,

     (b) success in teaching handicrafts,

     (c)  special  excellence  in,   or  greatly  increased out-turn of work of good quality,

     (d) protecting an officer of the prison from attack,

     (e)  assisting an officer of the prison in the case of outbreak of fire or similar emergency,

     (f) economy in wearing clothes,

     (g) donating blood to the Blood Bank provided that the scale of special remission for this service shall be fifteen days  for each occasion on which blood is donated subject to the limit laid down in sub-para (3),

     (f)  voluntarily  undergoing vasectomy operation by  a prisoner,  having three children, provided that the scale of special remission for such service shall be 30 days, subject to the limits laid down in sub-para (3).

     (2)  Special  remission  may  also  be  given  to  any prisoner   released  under  the   Good  Conduct   Prisoners’ Probational Release Act, 1926 for special services as:

     (i)  Special  excellence  in,   of  greatly  increased out-turn or good quality,

     (ii)  Assisting employer in case of out-break or  fire or  protecting  his  life or property from theft  and  other meritorious services.

     (3) Special remission may be awarded:  -

     (i)  by the Superintendent to an amount not  exceeding three days in one year.

     (ii)  by  the Chief Probation Officer in the  case  of prisoners  released under the provisions of the Good Conduct

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Prisoners’  Probational  Release Act, 1926 to an amount  not exceeding 30 days in one year.

     (iii) by the Inspector-General of the Local Government to an amount not exceeding sixty days in one year.

     EXPLANATION:   -  For the purpose of this rule,  years shall be reckoned from the date of sentence and any fraction of a year shall be reckoned as a complete year.

     (4)  An award of special remission shall be entered on the history ticket of the prisoner as soon as possible after it  is  made,  and the reasons for every  award  of  special remission  by  a Supdt.  shall be briefly recorded,  and  in case of prisoners released under the Good Conduct Prisoners’ Probational  Release  Act,  1926, such entries  and  reasons thereof shall be recorded by the Probation Officer.

     645.  Total remission not to exceed one-fourth part of sentence.   The total remission awarded to a prisoner under all  these  rules shall not without the special sanction  of the   Local  Government,  exceed   one-fourth  part  of  his sentence.

     Provided  in every exceptional and suitable cases  the Inspector-General  of Prisons may grant remission  amounting to not more than one-third of the total sentence."

     When  a circular specifically applies to the prisoners who  are  undergoing sentence and are confined in  jail  and even to those who are on parole or furlough we cannot extend this circular to convicts who are on bail and thus carve out another  category  to  which  Court is  not  entitled  under Section  432  of the Code.  As noted above, validity of  the circular has not been challenged on any other ground.

     In  the  case of Harphool Singh, who was convicted  of rape,  circular  specifically  is   not  applicable  to  the prisoner  convicted  of  an offence of rape or  other  dowry offences.   Perhaps,  this provision was not brought to  the notice  of  the High Court when it held that circular  would also  apply in the case of Harphool Singh.  It was submitted by   Mr.    Dayan  Krishan,   learned  amicus  curiae   that nevertheless Harphool Singh might have already undergone the sentence  after  earning  remission under  the  Punjab  Jail Manual  and present appeal in his case would be infructuous. It will be for the State Government to consider, if Harphool Singh  has served out his sentence in normal course  without getting any remission under the circular on the basis of the impugned  judgment  of the High Court.  It is  not  disputed that  Harphool Singh has already got benefit of remission to which  he  was entitled under Chapter XX of the Punjab  Jail Manual.  He is certainly not entitled to remission under the circular  as that is not applicable to a person convicted of an offence under Section 376 IPC.

     From para 637 as reproduced above a convict on bail is not  entitled  to the benefit of remission system.  In  fact question  is  no longer res integra as it is covered by  the decision  of this Court in Jai Prakash and others vs.  State of Haryana and others (1987 (4) SCC 296).  While considering the scope of para 637 this Court held:  --

     "On  a  reading  of  the  aforesaid  provision  it  is

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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  on  bail,  is  not  at  all sustainable."

     In  the  appeals where the convicts were on bail  High Court in the impugned judgments relied on a decision of this Court  in  Nalamolu  Appala Swamy and others vs.   State  of Andhra  Pradesh  (1989 Supp.  (2) SCC 192) where this  Court observed as under:  -

     "We find merit in the contention because the scheme of remission  formulated under the GO is with reference to  the period  of sentence actually undergone by different  classes of  prisoners  and in the case of some the period of  actual sentence  together with the remissions earned for  reckoning the total sentence.  The GO does not stipulate that in order to  get the benefit of remission the prisoners must actually be in jail on the date the GO was issued."

     Decision  of this Court in the case of Nalamolu Appala Swamy  aforesaid,  however turns on the facts of that  case. The  GO which granted remission has not been set out in  the judgment though the judgment noticed that GO has been issued by   the  Government  for   granting  remission  to  certain categories  of prisoners "to commemorate the occasion of the anniversary  of  formation  of the Andhra Pradesh  State  on November  1, 1984 and the restoration of democratic rule  in the  State".   The  Court also noticed the argument  of  the appellants  that  GO  nowhere  sets   out  that  benefit  of remission  would be confined to prisoners who were  actually in  jail on the date of the GO and not to others who were on bail.   We  are of the opinion that the High Court  was  not right  in  the judgments impugned in these  appeals  holding that  the  respondents were entitled to remission  of  their sentences  under  the  circulars in  question  issued  under Section  432  of  the  Code of  Criminal  Procedure.   These appeals  are, therefore, allowed and the impugned  judgments of  the  High Court are set aside.  We place on  record  our appreciation  of  the valuable assistance rendered to us  by Mr.  Dayan Krishnan, Advocate who appeared as amicus curiae.