State of Haryana VS Mohinder Singh etc. etc.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2000(1) Crimes 227 (SC)
Supreme Court of India
(From Punjab & Haryana High Court)
S. Saghir Ahmad, D.P. Wadhwa, JJ.
State of Haryana & Ors. —Appellants
versus
Mohinder Singh etc. etc. —Respondents
Criminal Appeal No. 141 of 2000
(Arising out of S.L.P. (Criminal) No. 1810 of 1999
With
Criminal Appeal No. 142 of 2000
With
Criminal Appeal No. 143 of 2000
With
Criminal Appeal No. 144-145 of 2000
With
Criminal Appeal No. 146 of 2000
With
Criminal Appeal No. 147 of 2000
Decided on 7-2-2000
Counsel for the Parties :
For the Appellant : Mahabir Singh, S.R. Sharma, Shikha Roy Pabbi, S.K. Pabbi, Prem Malhotra, Advocates.
For the Respondents : Rao Ranjit, Kishan Datta, (Dayan Krishnan) Advocate (AC), Advocates.

Headnote:(i) Code of Criminal Procedure, 1973—Section 432—Remission of sentence—Government circular granting remission—Circular stating that remission available to convicts who are even on parole/furlough from jail—Issue, whether a convict on bail is entitled to benefit of remission—Held : circular applied to prisoners who were undergoing sentence and were confined in jail—Remission not available to convicts who were on bail—[Haryana Good Conduct Prisoner (Temporary Release) Act, 1988—Sections 3 and 4—Punjab Jail manual—Para 637].
       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 convicted 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 has to accept the conditions on which State Government remits the whole or in part of his punishment. ‘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 result. Dictionary meanings, therefore, are not quite helpful. 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. (Paras 9, 16 & 17)
       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. Therefore a convict on bail is not entitled to the benefit of remission system. (Paras 18 & 20)
       (ii) Code of Criminal Procedure, 1973—Section 432—Remission of sentence—Government circular granting remission to convicts confined in jail—Circular, however, stating that convicts u/s 376 IPC not entitled to remission—Respondent a convict u/s 376 IPC claiming remission—Held: Prisoners have no absolute right for remission of their sentence—Respondent, not entitled to remission.
       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 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. (Para 8)
       In the instant case the respondent 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. (Para 19)
       Result : Appeals allowed.

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.

2. 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.

3. 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.

4. 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 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, 1967 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 substantiv

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Cases Referred (2)