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CASE NO.: Appeal (crl.) 933  of  1998

PETITIONER: STATE OF HARYANA

       Vs.

RESPONDENT: NAURATTA SINGH AND ORS.

DATE OF JUDGMENT:       10/03/2000

BENCH: K.T. Thomas & D.P. Mohapatra

JUDGMENT:

THOMAS, J. L...I...T.......T.......T.......T.......T.......T.......T..J

   A convicted prisoner undergoing sentence of imprisonment claims that he is entitled to remission of the period during which  he was on bail under orders of the court.  His  claim was  upheld  by  a learned Single Judge of  the  Punjab  and Haryana  High  Court.   But  the State  of  Haryana  is  not inclined  to  reconcile  with the decision  and  hence  this appeal by special leave.

   It  is necessary to set out the background in which  the said  claim  was  made by the prisoner who is  a  respondent herein.  He was an accused in a murder case along with three others.  The trial court, as per its judgment dated 5.1.1978 convicted  only  one of the accused, by name Balbir, of  the offence  under Section 302 of the Indian Penal Code, and the respondent  was  acquitted  of the said  offence  read  with Section 34 IPC.  However, the respondent was convicted under Section  324  IPC  and  he was sentenced to  the  period  of imprisonment which he had already undergone till then, (that period  was  9 months and 26 days).  The State preferred  an appeal  against  the  acquittal of respondent  while  Balbir filed  an appeal against the conviction and sentence  passed on  him.   The  High  Court, which heard  both  the  appeals together,  confirmed  the conviction and sentence passed  on Balbir  and  dismissed his appeal.  But the appeal filed  by the  State  was allowed and respondent was  convicted  under Section 302 read with Section 34 of IPC and sentenced him to undergo  imprisonment  for life.  The judgment of  the  High Court was pronounced on 23.4.1980.

   During  the  pendency of the said appeal respondent  was allowed  to remain on bail.  Pursuant to the conviction  and sentence  imposed on him by the High Court he surrendered to the  bail on 7.6.1980.  Thereafter he moved Supreme Court in appeal  and  during  the  pendency of  that  appeal  he  was released  on  bail as per the order passed by this Court  on 2.8.1980.   But  this  Court confirmed  the  conviction  and sentence  passed on him by the High Court and dismissed  his

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appeal  pursuant to which he was again taken back to jail on 22.8.1994.    It  was  in   the  aforesaid  background  that respondent  moved  the High Court on 14.2.1997 praying  that his  conviction  must be treated as passed on 5.1.1978  (the date on which the trial court passed the judgment) and hence the  period  during which he was on bail (from  5.1.1978  to 7.6.1980  and from 2.8.1980 to 21.8.1994) shall be  included within the period of his entitlement for remission.

   Though  respondent did not specifically state the  basis of  his claim, both sides now agree that the said claim  was based  on  the  instructions  issued by  the  Government  of Haryana which reads thus:

   Remission  will be also granted to all the convicts who were  on parole/furlough from the jail on 25.1.1988  subject to  the condition that they surrender at the jail on the due date   after  the  expiry  of  parole/furlough  period   for undergoing the un-expired portions of their sentences.

   We  may  point  out that Section 433-A of the  Code  was introduced  in  the statute book on 8.12.1978 by  which  the power  of  a State Government to release a person  (who  has been  convicted  and sentenced to life imprisonment  of  any offence  punishable with death or imprisonment for life) has been  curtailed by introducing the rider that such convicted person should have served at least 14 years of imprisonment. A  Constitution Bench of this Court has held in Maru Ram vs. Union  of  India {1981 (1) SCR 1196} that the period  of  14 years envisaged in the new provision is the actual period of imprisonment undergone by the prisoner without including any period of remission.

   Appellant    State of Haryana had contended before  the High  Court that the interdict contained in Section 433-A of the  Code  would  not apply to the present  case.   But  the learned  Single  Judge  of  the  High  Court  repelled  that contention,  mainly  relying  on   another  legal   position declared by the Constitution Bench in Maru Ram vs.  Union of India  (supra)  as  thus:  When a person  is  convicted  in appeal,  it  follows that the appellate court has  exercised its  power  in  place  of  the  original  court  and  guilt, conviction  and  sentence must be substituted for and  shall have  retrospective effect from the date of the judgment  of the  trial  court;  the appellants conviction  must  relate back  to the date of the trial courts verdict. Appellant State  is  not  disputing the above legal position  in  this appeal.   Even  otherwise  we have to concur with  the  view taken  by the learned Single Judge that Section 433-A  would not  stand in the way now as the conviction of the appellant for  the  offence under Section 302 read with Section 34  of the  IPC  has to be treated as passed on 5.1.1978  when  the trial court pronounced its judgment.

   The  claim  of  the respondent that he  is  entitled  to deduct  the period during which he was on bail was sought to be  supported  by two judgments rendered by the  Punjab  and Haryana High Court earlier.  They are:  Man Mohan Sahani vs. State  of Haryana {1987 (2) Recent Criminal Reports 292} and Amrik  Singh vs.  State of Haryana {1992 (2) Recent Criminal Reports  138}.  In Man Mohan Sahanis case the prisoner  was acquitted  by  the  trial court on 26.4.1977, but  the  High Court  reversed the judgment and convicted him and sentenced him  to  imprisonment  for  life,   to  which  sentence   he surrendered  on  28.1.1980.   So he claimed the  benefit  of

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remission  in respect of the said period.  A learned  Single Judge  of  the High Court following the ratio laid  down  in Maru  Rams  case (supra) held that petitioners  conviction must  relate  back to the date of the trial courts  verdict and substituted so.  There is no dispute regarding that part of  the decision.  But learned Judge had abruptly  concluded thereafter thus:

   On  a parity of reasoning, in the present case too, the conviction  of the petitioner by the High Court must  relate back  to the date of the trial courts verdict from which it would,  therefore, follow that the petitioner, for  purposes of  the  remission  claimed,  must be deemed  to  have  been convicted  and out on bail at the time of the remissions and thus  entitled  to the benefit thereof.  The  petitioner  is accordingly  entitled  to  the  benefit  of  the  remissions claimed  and  the  authorities  concerned  are  consequently directed  to  consider his case for release from jail  after allowing him such benefit.

   In  Amrik  Singh vs.  State of Haryana (supra),  another Single  Judge  of the same High Court, following  the  above quoted passage from Man Mohan Sahani observed thus:

   There  is no doubt left in my mind that the judgment in Man  Mohan  Sahnis case (supra) is fully applicable to  the facts  and  circumstances of the case, on hand, rather  this case  stands  on a better footing as the petitioner  was  on bail  by the order of the Court.  He is entitled to earn the remissions  earned by other detenus during the period he was on bail.

   It  is  pertinent  to  point out that  in  the  judgment impugned  before us learned Single Judge has merely followed the  above two decisions as could be noticed from a  passage of the impugned judgment which is extracted below:

   In  Amrik Singhs case, this Court held that the accused is  entitled to the remission earned during the period  when he  was  on  bail.  Therefore, it is clear that  though  the petitioner herein was first convicted under Section 302 read with  Section  34 of the Indian Penal Code, on 23.4.1980  by the  High  Court,  which  was ultimately  confirmed  by  the Supreme  Court on 27.7.94, for all intends and purposes, the petitioner must be taken to have been convicted on 5.1.1978, which  is the date of the verdict of the trial court.  It is also  clear  that he is entitled to all the benefits of  the remission even for the period during which he was on bail.

   We  have  no  doubt that the High Court  of  Punjab  and Haryana has wrongly decided Man Mohan Sahanis case and that erroneous view was wrongly followed in Amrik Singhs case so far  as  the  present  question is  concerned  (relating  to entitlement  of remission to include the period during which the  convicted  person was on bail).  We need only to  point out  that in Man Mohan Sahanis case the High Court did  not advert  to  any  reason, whatsoever, for the  period  during which  the person was not in jail to be counted towards  the period of remission of the punishment under the sentence.

   The  instructions  issued by the Government  of  Haryana under   which  respondent  claimed   remission   cannot   be interpreted  as  to  enable him to count the  period  during which  he  was  on bail towards remission.   The  expression parole  or furlough in the aforesaid instructions  cannot,

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for  obvious reasons be stretched to the period during which the  person was enlarged on bail, during the pendency of the trial  or appeal or revision.  It must be remembered that no sentence  would be passed on the accused during the time  he remains  under  trial and hence there is no question of  any remission to be granted to him during that stage, except the period  during  which he was under detention as provided  in Section  428 of the Code.  If he was released on bail during the  pendency of appeal or revision it is on account of  the fact  that  the court suspended the sentence passed on  him. When  the sentence stands suspended he would be released  on bail  on  his  own entitlement.  But the case of  parole  or furlough is different from the above.

   Section  432  of  the Code of Criminal  Procedure  falls within  Chapter  XXXII, which contains provisions  regarding execution,   suspension,  remission   and  commutation   of sentences.   Sub-section  (1) of Section 432  empowers  the appropriate  Government  to  suspend the execution  of  the sentence  or  remit  the punishment to which he  has  been sentenced.  The sub-section reads thus:

   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.

   Suspension  of  a sentence is obviously  different  from remission of any part of the punishment to which a person is sentenced.   While Section 432 of the Code deals with  power of  the  Government to suspend the sentence, Section 389  of the  Code deals with power of the court to suspend execution of  sentence  pending  appeal  or  revision.   Whenever  the sentence  is suspended by the court the convict is  entitled to  be  released  on bail.  The expression used  in  Section 432(1) of the Code for remission is remit the punishment to which  he has been sentenced.  It is, therefore, clear that remission can be granted only with reference to an operative punishment.   In  other  words, when there is  no  operative punishment  there  is  no  need to remit any  part  of  such punishment.

   Parole  is  defined  in Blacks Law  Dictionary,  as  a conditional   release   of  a  prisoner,   generally   under supervision  of a Parole Officer, who has served part of the term  for which he was sentenced to prison.  Parole relates to  executive action taken after the door has been closed on a  convict.  During parole period there is no suspension  of sentence  but sentence is actually continuing to run  during that period also.

   A  Constitution  Bench of this Court has considered  the distinction  between  bail  and  parole in  the  context  of reckoning  the  period to which a detenu under a  preventive detention  order has to undergo in prison.  It was in  Sunil Fulchand Shah vs.  Union of India {JT 2000 (2) SC 230}.  Dr. A.S.   Anand,  C.J.,  speaking  for  himself  and  for  K.T. Thomas,  D.P.  Wadhwa & S.  Rajendra Babu, JJ, has  observed thus:

   Bail  and  parole have different connotations  in  law. Bail  is  well  understood  in  criminal  jurisprudence  and

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Chapter  XXXIII  of the Code of Criminal Procedure  contains elaborate  provisions  relating to grant of bail.   Bail  is granted  to a person who has been arrested in a non-bailable offence  or  has been convicted of an offence  after  trial. The  effect of granting bail is to release the accused  from internment  though the court would still retain constructive control over him through the sureties.

       After referring to the meaning given to the word parole in different lexicographs learned Chief Justice has stated thus:

        Thus,  it  is  seen that parole  is  a  form  of temporary  release from custody, which does not suspend  the sentence   or   the  period  of  detention,   but   provides conditional  release  from custody and changes the  mode  of undergoing the sentence.

   In  a  recent decision rendered by a two Judge Bench  of this Court in State of Haryana vs.  Mohinder Singh etc.  {JT 2000  (1) 629} a similar question was considered and it  was held  that the benefits intended for those who are on parole or  furlough  cannot be extended to those who are  on  bail. The  said  decision  has been quoted with  approval  by  the Constitution  Bench  in  the   majority  judgment  in  Sunil Fulchand Shah (supra).

   The clear fallacy of the approach made by the High Court can be demonstrated through an illustration.  An accused was tried for an offence under Section 326 of IPC.  During trial period  he  was  allowed  to remain on bail  and  the  trial prolonged  up to, say 3 years.  Finally the court  convicted him  and  sentenced  him to imprisonment  for  three  years. Should  not  the convicted person go to jail at all  on  the premise  that  he was on bail for three years and  is  hence entitled to remission of that period?

   Yet  another illustration can be shown by stretching the above  illustration  a  little farther.   If  the  aforesaid convicted  person  filed  an  appeal and  got  his  sentence suspended  by  the appellate court and the  appellate  court confirmed  the  conviction and sentence after a period of  3 years,  is he entitled to claim that he need not go to  jail at  all  as he was on bail for more than 3 years during  the post  conviction stage also?  If it is to be held that he is entitled  to such remission, we are afraid, criminal justice system  would be reduced to a mockery.  The absurdity of the claim of the respondent can thus be demonstrated.

   In  the  result we allow this appeal and set aside  that part  of  the impugned judgment by which the learned  Single Judge  directed  remission to be granted in respect  of  the period during which respondent was released on bail.