IMPORTANT POINT
Remission can be granted only with reference to an operative punishment and it cannot be granted in respect of period during which accused was released on bail.

JUDGMENT

Thomas, 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.

2. 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.

3. 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 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.

4. 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."

5. 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 v. Union of India1 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.

6. 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 v. Union of India (supra) as thus : "When a person is convicted in appeal, it follows that the appellate court has exercised its