IMPORTANT POINT
Sub-section (3) of Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, is a valid piece of legislation.

Headnote:Haryana Good Conduct Prisoners (Temporary Release) Act, 1988-Section 3(3)-Constitutional validity-Temporary release of prisoners on certain grounds-Prisoners released on parol-Whether entitled for counting period of release towards total period of sentence of imprisonment undergone by him?-No-Whether sub-section (3) of Section 3 of the Act is discriminatory?-(No)-Classification under Sections 3 and 4 being based on rational criteria.
       Held : Under Section 3 of the Act, the State Government can temporarily release a prisoner for a specified period if the Government is satisfied that (i) any member of his family had died or seriously ill or the prisoner himself is seriously ill or (ii) marriage of himself, his son, daughter, etc. is to be celebrated or (iii) such release 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 (iv) is desirable to do so for any other sufficient cause. The period of release is to be determined by the State Government in accordance with sub-section (2) and sub-section (3) provides that period of release under this section shall not be counted towards the total period of sentence of prisoner. Under Section 4 a prisoner who has been sentenced to a term of imprisonment of not less than 4 years cannot be temporarily released on furlough unless he has undergone continuous imprisonment for a period of 3 years and has not committed any jail offence (except an offence punished by a warning) and has also earned at least three annual good conduct remissions. This section also provides that the benefit of furlough cannot be granted to the class of prisoners mentioned in proviso to sub-section (1). The period of such temporary release has been fixed in sub-section (2). It is specifically provided in sub-section (3) that period of temporary release on furlough shall be counted towards total period of sentence undergone by a prisoner. Thus, the legislature for the purpose of temporary release has created two classes of prisoners. If we compare these two sections, we find that conditions of temporary release on furlough under Section 4 is more rigorous and a prisoner shall not be entitled to such temporary release unless he fulfills the conditions laid down in the said section. But in Section 3 no such rigorous condition has been imposed and only the circumstances under which the temporary release can be granted have been stated. Moreover certain classes of prisoners cannot get the benefit of furlough. (Paras 13 and 14)
       On close look at both the sections it would appear that these sections operate on different fields. Section 3 has been enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measures as a prisoner has to show good conduct while in incarceration. In our considered opinion this classification is based on rational criteria and cannot be said to be discriminatory in nature. We, therefore, find no force in the first contention of the learned counsel for the appellant. (Para 17)
       The Constitution Bench has clearly held that though ordinarily the period of temporary release of a prisoner on parole needs to be counted towards the total period of detention but this condition can be curtailed by legislative act, rules, instructions or terms of grant of parole. (Para 18)
       We also do not fine force in the contention of the learned counsel for the appellant that sub-section (3) of Section 3 of the Act is hit by Article 21 of the Constitution. By a valid legislative act the period of temporary release on parole has been denied while counting the actual sentence undergone by the prisoner. It cannot be said that such right of a prisoner has been taken away without due process of law. (Para 19)

JUDGMENT

Phukan, J.-Leave is granted.

2. This appeal by special leave and the writ petition were heard together as the questions involved are common and, therefore, by this judgment we dispose of both the appeal and the writ petition.

3. The appellant - Avtar Singh, a convict, is undergoing the sentence of imprisonment. He filed an application before the Punjab and Haryana High Court seeking for a direction to the State Government to include the period of parole availed by him in the total period of imprisonment undergone by him. The application was dismissed by the impugned judgment holding that the period of parole cannot be counted towards the actual sentence undergone by him. Being aggrieved, present appeal by special leave has been filed. Avtar Singh has also filed the writ petition challenging the vires of sub-section (3) of Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (for short the Act ) on the ground that the sub-section is arbitrary, illegal, ultra vires and unconstitutional.

4. When both the appeal and the writ petition came before a Bench of this Court, these were referred to a larger Bench with the following observations :-

"In the writ petition Section 3(iii) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 is challenged on the ground that it is violative of Article 14 and Article 21. In State of Haryana v. Mohinder Singh 2000(3) SCC 394 and the Constitution Bench in Sunil Fulchand Shah v. Union of India & Ors. 2000(3) SCC 409, this Court held that parole and furlough period can also be counted as the period of sentence of imprisonment. But in those decisions the question of validity of the impugned sub-section of the Act mentioned above has not been considered. When the constitutional validity of the said sub-section is challenged and the focus is made on Article 21, we are of the opinion that this must be heard by a larger bench. Registry will place this matter for orders of the Hon ble the Chief Justice of India."

5. That is how both the appeal and the writ petition have come up before this Bench.

6. Before we proceed further to consider the contentions of the learned counsel, we extract below Sections 3 and 4 of the Act :-

"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

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 count towards the tota

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2002 Supreme(SC) 241

IMPORTANT POINTSub-section (3) of Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, is a valid piece of legislation.

Cases Referred (2)

IMPORTANT POINT
Sub-section (3) of Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, is a valid piece of legislation.