Punjab-Haryana High Court
Inderjit Singh Alias Lada vs State Of Punjab And Others on 2 July, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:081329
CRWP-260-2023 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRWP-260-2023
Date of Decision: 02.07.2024
INDERJIT SINGH @ LADA
... Petitioner
Versus
STATE OF PUNJAB & OTHERS
...Respondents
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Ish Puneet Singh, Advocate
for the petitioner.
Mr. Rahul Jindal, Asstt. A.G., Punjab.
****
JASJIT SINGH BEDI, J.
The prayer in the present Criminal Writ Petition under Articles 226/227 of the Constitution of India is for the issuance of directions to the respondents to release the petitioner prematurely as per the Policy dated 08.07.1991 (Annexure P-1) issued by the Government of Punjab with a further prayer for the issuance of a writ in the nature of mandamus directing the respondents to release the petitioner on interim parole during the pendency of this petition.
2. The brief facts of the case are that the petitioner was involved in FIR No.150 dated 01.09.2007 under Sections 302/307/506/148/149 IPC and Section 27 of Arms Act, P.S. Ajnala, District Amritsar. He was tried convicted 1 of 47 ::: Downloaded on - 21-07-2024 02:24:50 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -2- and sentenced to undergo rigorous imprisonment for life by the Court of Addl.
Sessions Judge, Amritsar vide judgment dated 14.01.2012.
Criminal Appeal No.D-205-SB-2012 was filed by the petitioner against the judgment of conviction which was dismissed by this Court vide Judgment dated 17.10.2014.
An SLP came to be filed against the judgment of this Court and the same was dismissed vide order dated 23.03.2018.
3. As the petitioner assumed that he had undergone 10 years of actual imprisonment which included the period of parole and 14 years of total actual sentence with remissions for offences falling under Clause 'C' of Para 1(1) of the Government Policy dated 08.07.1991, he applied for premature release but his case was not processed by the Jail authorities. A legal notice was sent to respondent Nos.3 and 4 for considering the case of the petitioner for the grant of premature release. However, no action has been taken till date.
4. A co-accused of the petitioner approached this Court vide CRWP No.2559 of 2022 titled as "Avtar Singh @ Malli Vs. State of Punjab and others". The said petition was disposed of vide order dated 23.03.2022 wherein directions were issued to respondent No.3 to consider and decide the case of the petitioner within a period of two months. In pursuance to the order of this Court, the case of Avtar Singh @ Malli was considered and he was found to be eligible for premature release in terms of the Policy of Premature Release vide order dated 01.07.2022.
2 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -3-
5. As the case of the petitioner was not processed for grant of premature release, the instant petition has been filed.
6. The learned counsel for the petitioner contends that despite the petitioner fulfilling the conditions for premature release in accordance with the policy set down by the Government of Punjab dated 08.08.2011 (Annexure R-2) and he being entitled to be released from prison, he was still languishing in Jail and as such, his further incarceration was in violation of his rights as well as his right under Article 21 of the Constitution of India.
Parole, was a form of legal custody and imprisonment and thus, the same ought to be counted towards actual imprisonment of the convict. However, it could be deducted from his total actual sentence which includes the periods of remission. Reliance is placed on the judgments in the cases of Maru Ram Vs. Union of India, 1981(1) SCC 107, Faquir Singh Vs. State of Punjab & another, 1988(1) RCR (Crl.) 558, Partap Singh Vs. State of Haryana, 1995(3) RCR (Crl) 466, Jiwan Singh Vs. State of Haryana & others, 1996(1) CLJ (Criminal) 309 and Sant Ram & others Vs. The State of Haryana & another, 2010(1) RCR (Crl.) 546.
The judgments in Avtar Singh Vs. State of Haryana & another, 2002 AIR (SC) 1109, Rohan Dhungat Etc. Vs. The State of Goa & others etc., 2023 AIR (Supreme Court) 265 and Anil Kumar Vs. State of Haryana & others, 2023(2) R.C.R. (Criminal) 486 were per incuriam inasmuch as none of the judgments considered the decision in Maru Ram's case (supra).
3 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -4- Therefore, in terms of the judgments of the Hon'ble Supreme Court in Sundeep Kumar Bafna Vs. State of Maharashtra & another, 2014(16) SCC 623, National Insurance Company Ltd. Vs. Pranay Sethi & others, 2017(4) R.C.R. (Civil) 1009 and Enforcement Directorate, Government of India Vs. Kapil Wadhawan & another etc., 2023 INSC 723, the earlier judgment of a Larger Bench i.e. Maru Ram (supra) would prevail and therefore, the period of parole would be counted towards actual imprisonment.
7. He contends that the case for premature release of a convict has to be considered and decided on the basis of the legal position as it stood on the date of conviction subject to a more beneficial regime being provided in terms of a subsequent policy decision. Admittedly, under the Policy dated 08.08.2011, as on the date of conviction i.e. 14.01.2012, the period of actual imprisonment was calculated including parole, therefore, as per the legal position on the date of conviction, the parole period was to be counted while computing actual imprisonment. The decision of the State Level Committee setting up a new formula for calculating actual imprisonment vide meeting dated 16.03.2020 cannot be made applicable retrospectively as the decision ostensibly amounts to change in the formulation of the policy. The subsequent change in the formulation of the Policy would create a situation where equals would be treated differently. The petitioner had undergone only 09 days as an under-trial whereas the main accused Baba Lal Singh was not released on bail and therefore, prematurely released under the old formulation. Thus, as both 4 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -5- the petitioner and the main accused were convicted on the same day, a different formulation/policy could not be applied to them. Reliance is placed on the judgments in the cases of Raj Kumar Vs. State of Uttar Pradesh, 2023 INSC 718, Harbans Singh Vs. State of Punjab & others, CRWP-10709- 2022, decided on 05.02.2024, Jarnail Singh Vs. State of Punjab & others, CRWP-4473-2022, 2023 NCPHHC 121361 and Jai Kishan @ Bhola Vs. State of Punjab & others, CRWP-7180-2021, 2022(2) Law Herald 1507.
8. On the other hand, the learned State counsel while referring to the reply dated 13.07.2023 contends that as per the judgment in Avtar Singh (supra) parole was to be counted towards actual sentence subject to legislative Acts, Rules and Instructions. In the instant case, Clause 3(3) of the Punjab Good Conduct Prisoners (Temporary) Release Act, 1962 states that the period of release under this section would not count towards total period of the sentence of a prisoner. The Hon'ble Supreme Court in the case of Rohan Dhungat Etc. Vs. The State of Goa & others etc., 2023 INSC 16 and Anil Kumar Vs. State of Haryana & others, 2023 INSC 296 has held that parole should not be counted as part of actual imprisonment. As regards the retrospective effect of the State Level meeting dated 16.03.2020 (Annexure R-3) as per which the period of parole was to be excluded while calculating actual sentence undergone, he submits that there was no change in the policy for grant of premature release. The decision taken at the meeting was only in furtherance of the law settled by the Supreme Court in the case of Avtar 5 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -6- Singh (supra) since earlier policies were silent as to whether or not parole was to be counted towards actual sentence. He, therefore contends that the petitioner was not entitled for the grant of premature release as he had not undergone 10 years of actual sentence.
9. I have heard the learned counsel for the parties.
10. While grants of remission are as per the prevailing Govt. Policy on the date of conviction of the accused, grant of parole and furlough is governed by the Punjab Good Conduct Prisoners (Temporary) Release Act, 1962. Sub-section (3) of Section 3 of the Act is reproduced as under:-
"(3). The period of release under this section shall not count towards total period of the sentence of a prisoner."
11. The judgments referred to by the learned counsel for the petitioner that the parole period is to be counted towards actual sentence but not total sentence including remissions are discussed hereinbelow:
In Maru Ram (supra), where the vires of Section 433A Cr.P.C.
was challenged, the Hon'ble Supreme Court held as under:-
"69. The rule of law, under our constitutional order, transforms all public power into responsible, responsive, regulated exercise informed by high purposes and geared to people's welfare. But the wisdom and experience of the past have found expression in remission rules and short- sentencing laws. No new discovery by Parliament in 1978 about the futility or folly of these special and local experiences, spread over several decades, is discernible. No High-power committee report, no expert body's 6 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -7- recommendations, no escalation in rescidivism attributable to remissions and releases, have been brought to our notice. Impressionistic reaction to some cases of premature release of murderers, without even a follow-up study of the later life of these quondom convicts, has been made. We find the rise of enlightenment in penological alternatives to closed prisons as the current trend and failure of imprisonment as the universal lament. We, heart-warmingly, observe experiments in open jails, filled by lifers, liberal paroles and probations, generosity of juvenile justice and licensed release or freedom under leash a la. The Uttar Pradesh Prisoners' Release on Probation Act, 1938. We cannot view without gloom the reversion to the sadistic superstition that the longer a life-convict is kept in a cage the surer will be his redemption. It is our considered view that, beyond an optimum point of say eight years - we mean no fixed formula
- prison detention benumbs and makes nervous wreck or unmitigated brute of a prisoner. If animal farms are not reformatories, the Remission Rules and shortsentencing schemes are a humanising wheel of compassion and reduction of psychic tension. We have no hesitation to reject the notion that Articles 72/161 should remain uncanalised. We have to direct the provisional acceptance of the remission and shortsentencing schemes as good guidelines for exercise of pardon power - a jurisdiction meant to be used as often and as systematically as possible and not to be abused, much as the temptation so to do may press upon the pen of power.
**** **** ***
71. One point remains to be clarified. The U.P. Prisoners' Release on Probation Act, 1938, a welcome measure, what with population pressure on prisons and burden on the 7 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -8- public exchequer, will survive Section 433A for two reasons. Firstly, Government may resort to the statutory scheme, not qua law but as guideline. Secondly, and more importantly, the expression 'prison' and 'imprisonment' must receive a wider connotation and include any place notified as such for detention purposes. 'Stone walls and iron bars do not a prison make'; nor are 'stone walls and iron bars' a sine qua non to make a jail. Open jails are capital instances. Any life under the control of the State, whether within the high-walled world or not, may be a prison if the law regards it as such. House detentions, for example. Palaces, where Gandhiji was detained, were prisons. Restraint on freedom under the prison law is the test. Licensed releases where instant recapture is sanctioned by the law, and , likewise, parole, where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment. This point is necessary to be cleared even for computation of 14 years under Section 433A. Sections 432, 433 and 433A read together, lead to the inference we have drawn and liberal though guarded, use of this Act may do good. Prison reform, much bruited about though, is more visible on the skin than in the soul and needs a deeper stirring of consciousness than tantrums, threats and legalised third degree if the authentic voice of the Father of the Nation be our guide. To chain the man is not to change him; the error is obvious - a human is more than simian. Our reasoning upholds Section 433A of the Procedure Code but upbraids the abandonment of the healing hope of remissions and release betimes. To legislate belongs to another branch but where justice is the subject the court must speak. There was some argument that 8 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -9- Section 433A is understood to be a ban on parole. Very wrong. The Section does not obligate continuous fourteen years in jail and so parole is permissible. We go further to say that our Prison Administration should liberalise parole to prevent pent-up tension and sex perversion which are popular currency in many a penitentiary (see Sethna, "Society and the Criminal" Tripati publications, 4th Edn. p.
296).
72. We conclude by formulating our findings. (1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code.
(2) We affirm the current supremacy of Section 433A over the Remission Rules and short-sentencing statutes made by the various States.
(3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order enmasse or individually, in that behalf.
(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
9 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -10- (5) We negate the plea that Section 433A contravenes Article 20 (1) of the Constitution.
(6) We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned the prisoner can claim release only if the remaining sentence is remitted by Government.
(7) We declare that Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came into force. All 'lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short- sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their won. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be 10 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -11- clear enough to identify the group of cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant irrational, discriminatory or mala fide. Only in these rate case will the court examine the exercise.
(10) Although the remission rules or short-sentencing provisions propriovigore may not apply as against Section 433A, they will override Section 433A if the Government. Central or State, guides itself by the self- same rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking - a desirable step, in our view - the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents. Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.
(11) The U.P. Prisoners' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will 11 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -12- be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy.
(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
(13) We have declared the law all right, but law-in-action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
(14) Section 433A does not forbid parole or other release within the 14 years span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty.
(emphasis supplied) In Faquir Singh (supra), it was held as under:-
"2. The contention on behalf of the petitioner is that in calculating the actual period of imprisonment undergone by him the time spent by him on parole has wrongly not been included. To this the reply on behalf of the State Government is that the period spent of parole cannot be considered to be a part of actual imprisonment. Thus, the vital point for consideration in this case is whether the time spent by a
12 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -13- prisoner on parole is or is not to be included in the period of undergone actual imprisonment.
**** **** ***
5. I am, therefore, of the view that the time spent on parole by a prisoner can legitimately he included in the period of imprisonment undergone by him and as such it has to be so considered while deciding his premature release case. It is, however, clarified that in view of Section 3(3) of the Punjab Good Conduct Prisoners (Temporary Release) ACt the period spent by the petitioner on parole shall not be counted toward the total period of sentence of imprisonment. Taking this view the respondent State of Punjab is directed to consider the premature release case of the petitioner within three months from today, provided the petitioner has undergone actual imprisonment of 8½ years inclusive of the time spent on parole and total of 14 years' imprisonment including remissions but excluding the period of parole. This petition is disposed of in these terms.
(emphasis supplied) In Partap Singh (supra), it was held as under:-
"5. Mr Jindal, the learned counsel appearing on behalf of the petitioner submits that it is now well settled that for calculating the actual period of sentence undergone, the period of parole cannot be excluded. He, therefore, contended that the petitioner was entitled to be released. In support of submissions the learned counsel placed reliance on judgment of Supreme Court reported as Maru Ram v. Union of India, AIR 1980 Supreme Court 2147 and a judgment rendered by a Division Bench of Himachal Pradesh High Court in case of Life convict Life Convict 13 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -14- Karam Singh v. State of H.P., 1994(2) Recent Criminal Reports 28 and the following three decisions rendered by this Court :
(i) Faqir Singh v. State of Punjab and another, 1988(1) Recent Criminal Reports 558;
(ii) Hazura Singh v. State of Haryana and others, Crl.
Misc. No. 4258-M of 1995, decided on 8th May, 1995;
(iii) Crl. Misc. No. 6175-M of 1995, decided on 26th May, 1995, Natha Singh v. State of Haryana and others.
**** **** ****
8. The question raised in this case came up for consideration before a Single Judge of this Court in case of Faqir Singh (supra) and in this case the learned Single Judge held as follows :
"5. I am, therefore, of the view that the time spent on parole by a prisoner can legitimately be included in the period of imprisonment undergone by him and as such it has to be so considered while deciding his premature release case. It is, however, clarified that in view of Section 3(3) of the Punjab Good Conduct Prisoners (Temporary Release) Act, the period spent by the petitioner on parole shall not be counted towards the total period of sentence of imprisonment. Taking this view the respondent State of Punjab is directed to consider the premature release case of the petitioner within three months from today, provided the petitioner has undergone actual imprisonment of 8½ years inclusive of the time spent on parole and total of 14 14 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -15- years imprisonment including remissions but excluding the period of parole.."
From this it is evident that it was held in this case that the time spent on parole by a prisoner can be included in the period of imprisonment undergone by him while calculating actual sentence undergone but the said period cannot be included while calculating the total period of imprisonment, This view has been consistently followed in the subsequent two judgments in case of Hazura Singh (supra) and Natha Singh (supra). In view of three earlier decisions rendered by this Court and the judgment rendered by a Division Bench of Himachal Pradesh High Court, I direct the respondents to reconsider the case of the petitioner in the light of the judgment of this Court in case of Faqir Singh (supra) and pass appropriate orders within two months from today. With this direction the petition stands disposed of.
(emphasis supplied) In Jiwan Singh (supra), it was held as under:-
"H.S. Bedi, J. - The only controversy between the parties herein is as to whether the period of temporary release on parole is to be deducted from the actual sentence undergone or from the total sentence i.e. actual sentence plus remissions. Learned counsel for the petitioner urges on the strength of various decisions reported in Faqir Singh v. State of Haryana & Anr.,1988(1) R.C.R. 558, Life Convict Karam Singh v. State of H.P., 1994 (2) R.C.R. 28, Ram char v. State of Haryana,1995(1) Recent Criminal Reports 686, Natha Singh v. State of Haryana & Ors., 1995 15 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -16- (2) All India Law Reports 705; and Partap Singh v. State of Haryana, 1995(3) Recent Criminal Reports 466 that this Court has consistently held that the period of parole is to be deducted from the total sentence undergone and not from the actual sentences.
2. As against this, Miss Aparna Mahajan learned Advocate appearing for the State of Haryana, has urged that in a single Bench decision of this Court reported as Amar Singh v. State of Punjab, 1984 (1) CLR 54, it has been held to the contrary and it has been held that the parole period is to be deducted from the actual sentence and not from the total period of imprisonment.
3. I have considered the arguments of the learned counsel for the parties and find that the petitioner's stand has merit. It is true that at one stage Hon'ble M.M. Punchhi, J., reported in Majinder Singh v. State of Punjab & Anr. 1984 (2) CLR 146 had held as has been contended by the learned State counsel but in the judgement cited by her today that is Amar Singh's case (supra) the same learned Judge himself distinguished the earlier case and has held in the manner contended by the petitioner's counsel. It is, therefore, apparent that the preponderance of view of this Court as also other courts seems to be in favour of the petitioners."
(emphasis supplied) In Sant Ram (supra), it was held as under:-
"18. In re : Ramehar v. State of Haryana, 1995 (1) RCR (Criminal) 686, while dealing with the scope of Section 3(3) of Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 as well as Section 433A of the Code of Criminal 16 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -17- Procedure, 1973, this Court held that the period of parole was to be deducted not from actual sentence undergone but from total period of sentence, i.e., actual sentence remissions earned by the petitioner. Further in re : Partap v. State of Haryana, 1995 (3) RCR (Criminal) 466, this Court held that the period spent on parole can be included while calculating the actual sentence undergone by the convict, but said period can not be included while calculating the total period of imprisonment. In case Chander Singh v. State of Haryana and another, 1996 (1) RCR (Criminal) 633, this Court held that the period spent on parole would count towards the period of actual sentence undergone by the life convict. In case Avtar Singh v. State of Haryana and another, 2002 (1) RCR (Criminal) 786 the Supreme Court hold that 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.
19. In the letter/circular dated 12.4.2002 bearing Memo No. 36/135/91-1JJ(II) issued by the Financial Commissioner & Principal Secretary to Government, Haryana, Jails Department to the Director General of Prisons, Haryana, Manimajra, Chandigarh on the subject of policy regarding pre-mature release of life convicts recorded a note that the period spent on parole will, be counted towards the period of actual sentence, but has to be excluded from, the total period of sentence, as per judgment of the Hon'ble Punjab and Haryana High Court in Criminal Writ Petition No. 108/1987 titled as Faquir Singh v. State of Punjab and another, 17 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -18- reported in 1988 (1) RCR (Criminal) 558." In notification dated 11.8.2008 purportedly issued by the Haryana Government, Jails and Judicial Department, the formula for calculating a period of sentence undergone has been given as under :-
"A person convicted and sentenced for life imprisonment on 1.1.1990 had completed his 14 years actual sentence on 31.12.2003 and during the above said sentence period, he had availed parole for 14 months, his actual sentence undergone will be treated as 14 years and not as 12 years, 12 months. If during this period, he has earned five years total remission, his total sentence period will be calculated as under :
Y M D
Under Trial Period : 00 00 00
Period of sentence
14 00 00
undergone :
Add Remission earned : 05 00 00
19 00 00
Less parole period 01 02 00
Total sentence undergone17 10 00
His case will be eligible for premature release only when he completes 20 years of total sentence."
20. Under Section 3 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988, 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 18 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -19- 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 portion on his land or his father's undivided land actually in possession of the prisoner and (iv) is desirable to do so for any other sufficient cause. The period of release is to he determined by the State Government in accordance with sub-section (2).
Sub-section (3) of the Act provides that (period of release under this Section sentence, 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 less than 4 years cannot be temporarily released on furlough unless he has undergone continuous imprisonment for a period of three years and has not committed any jail offence (expert an offence punsihed by 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 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 the total period of the sentence undergone by a prisoner. The legislature for the purpose of temporary release has created two classes of prisoners. A combined reading and comparative study of Section 3 as well as 4 of the Haryana Good Conduct Prisoners (Temporary Release) 19 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -20- Act, 1988 would reveal that the conditions of temporary release on furlough under Section 4 ibid is more rigorous and a prisoner shall not be entitled to such temporary release unless he condition laid down in the said Section, whereas in Section 3 ibid, no such rigorous condition has been imposed. This apart, certain classes of prisoners cannot get the benefit of furlough.
21. It can be reasonably culled out of the afore-quoted case law, Paragraph of Punjab Jail Manual, circulars that the parole period counts towards the actual sentence but is subtracted from the total sentence. On the other hand, furlough period count towards both the actual as well as total sentence and is not subtracted. In view of Section 4 ibid, Parole is a special leave. Parole is a part of actual sentence, but it is to be deducted from total sentence i.e., actual sentence + remissions. Parole can only be added towards the total sentence, if there is a specific legislative enactment to the said effect. However, in the States of Punjab and Haryana, there is no such specific legislative enactment. The rules/instructions provide that in both these states, parole period will not count towards total sentence. For Chandigarh, rules framed by State of Punjab are applicable. As per paragraph No. 643 of the Punjab Jail Manual 3rd Edition, no person shall receive ordinary remission for calendar month in which he is released. The period during which the accused/convict remained on bail is not to be counted towards the actual or total sentence. A glance through the order dated 23.11.2004 (Annexure P3 in Criminal Misc. No. M-18878 of 2009) passed by this Court in Criminal Misc. No. 19131 of 2004 bearing caption Duni 20 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -21- Ram v. State of Haryana and another would reveal that the Assistant Advocate General, Haryana appearing on behalf of the respondents had not cited any case law to the contrary. Furthermore, in that case too, the direction was given to the respondents to add the period of parole/furlough of the petitioner towards the actual sentence of imprisonment undergone by him. There was no direction to count such period towards total sentence of the petitioner.
(emphasis supplied)
12. The judgments of the Hon'ble Supreme Court on per incuriam and the rule of precedent are discussed hereinbelow:-
In Sundeep Kumar Bafna (supra), it was held as under:-
"13. The Constitution Bench in Union of India v. Raghubir Singh, 1989(1) R.R.R. 552 : 1989 (2) SCC 754, has come to the conclusion extracted below :-
"27. What then should be the position in regard to the effect of the law pronounced by a Division Bench in relation to a case raising the same point subsequently before a Division Bench of a smaller number of Judges? There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. It cannot be doubted that in order to promote consistency and certainty in the law laid down by a superior Court, the ideal condition would be that the entire Court should sit in all cases to decide questions of law, and for that reason the Supreme Court of the United States does so. But having regard to the volume of work demanding the 21 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -22- attention of the Court, it has been found necessary in India as a general rule of practice and convenience that the Court should sit in Divisions, each Division being constituted of Judges whose number may be determined by the exigencies of judicial need, by the nature of the case including any statutory mandate relative thereto, and by such other considerations which the Chief Justice, in whom such authority devolves by convention, may find most appropriate. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. This principle has been followed in India by several generations of Judges. "
14. This ratio of Raghubir Singh was applied once again by the Constitution Bench in Chandra Prakash v. State of U.P., 2002(2) S.C.T. 776 : AIR 2002 Supreme Court 1652. We think it instructive to extract the paragraph 22 from Chandra Prakash in order to underscore that there is a consistent and constant judicial opinion, spanning across decades, on this aspect of jurisprudence :
"Almost similar is the view expressed by a recent judgment of a five-Judge Bench of this Court in Parija's case (supra). In that case, a Bench of two learned Judges doubted the correctness of the decision a Bench of three learned Judges, hence, directly referred the matter to a Bench of five learned Judges for reconsideration. In such a situation, the five-Judge Bench held that judicial discipline 22 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -23- and propriety demanded that a Bench of two learned Judges should follow the decision of a Bench of three learned Judges. On this basis, the five-Judge Bench found fault with the reference made by the two-Judge Bench based on the doctrine of binding precedent."
15. It cannot be over-emphasised that the discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of Courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a Co-equal or Larger Bench; or if the decision of a High Court is not in consonance with the views of this Court. It must immediately be clarified that the per incuriam rule is strictly and correctly applicable to the ratio decidendi and not to obiter dicta. It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourse is to apply the earliest view as the succeeding ones would fall in the category of per incuriam.
(emphasis supplied) In National Insurance Company Ltd. (supra), it was held as under:-
"30. In this context, we may also refer to Sundeep Kumar Bafna v. State of Maharashtra and another, 2014(2) RCR 23 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -24- (Criminal) 416 : 2014(2) Recent Apex Judgments (R.A.J.) 572 : (2014) 16 SCC 623 which correctly lays down the principle that discipline demanded by a precedent or the disqualification or diminution of a decision on the application of the per incuriam rule is of great importance, since without it, certainty of law, consistency of rulings and comity of courts would become a costly casualty. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the court. A decision or judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench. There can be no scintilla of doubt that an earlier decision of co- equal Bench binds the Bench of same strength. Though the judgment in Rajesh's case was delivered on a later date, it had not apprised itself of the law stated in Reshma Kumari (supra) but had been guided by Santosh Devi (supra). We have no hesitation that it is not a binding precedent on the co-equal Bench."
(emphasis supplied) In Enforcement Directorate Govt. of India (supra), it was held as under:-
"30. The law of binding precedent provides that the rule of per incuriam is an exception to the doctrine of judicial precedent. Quite literally, it provides that when a judgment is passed in ignorance of a relevant precedent or any other binding authority, the same is said to be postulating incorrect law. It becomes pertinent to resolve the conflict arising from diverging opinions by taking recourse to the 24 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -25- ratio decidendi of the earliest opinion. In this context MN Venkatachaliah J., in the 7-judge Bench decision of A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602] opined that:
"...the point is that the circumstance that a decision is reached per incuriam merely serves to denude the decision of its precedent value. Such a decision would not be binding as a judicial precedent. A coordinate Bench can disagree with it and decline to follow it. A larger Bench can overrule such a decision..."[19*] [19* AR Antulay v. RS Nayak (1988) 2 SCC 602, para 183 (per MN Venkatchaliah J.)] Likewise, a Constitution Bench in Shah Faesal v. Union of India (2020) 4 SCC 1 (para 33) taking note of this Court's decision in Sandeep Kumar Bafna v. State of Maharashtra 2014 (16) SCC 623 pertinently observed:
"...a decision or judgement can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgement of a co-equal or larger bench or if the decision of the High Court is not in consonance with the views of this court..."
(emphasis supplied)
13. The judgments of the Hon'ble Supreme Court and this Court as regards the policy that will govern grant of premature release are discussed hereinbelow:-
In Raj Kumar (supra), it was held as under:-
"13. The State having formulated Rules and a Standing Policy for deciding cases of premature release, it is bound by its own formulations of law.
25 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -26- Since there are legal provisions which hold the field, it is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination. The provisions of the law must be applied equally to all persons. Moreover, those provisions have to be applied efficiently and transparently so as to obviate the grievance that the policy is being applied unevenly to similarly circumstanced persons. An arbitrary method adopted by the State is liable to grave abuse and is liable to lead to a situation where persons lacking resources, education and awareness suffer the most."
(emphasis supplied) In Harbans Singh (supra), it was held as under:-
"6. Having heard learned counsel for the parties and after perusing the record of the case, it transpires that the petitioner has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment. As per custody certificate supplied by the State, the petitioner has undergone actual sentence of 7 years 3 months 24 days and availed parole for 3 years 10 months 21 days. He has undergone a total sentence of 13 years 4 months 27 days, including remission and furlough.
26 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -27-
7. The petitioner is entitled to have his case considered for premature release in terms of policy dated 08.08.2011 issued by the Government of Punjab, as it was the policy occupying the field at the time of his conviction. The formula mentioned above, which requires the parole duration to be subtracted when calculating the actual period of sentence undergone, was introduced on 16.07.2020 and cannot be applied to the petitioner's case retrospectively. Since the policy dated 08.08.2011 is silent about the method of calculation, the parole period must be included in the actual sentence undergone. Accordingly, the actual undergone period by the petitioner comes out to be 11 months 2 months 10 days, which makes him eligible for premature release in terms of policy dated 08.08.2011. A Full Bench of the Honble Supreme Court in Rajkumar's case(supra), speaking through Chief Justice Dhananjaya Y. Chandrachud, has held as under:
"13. The State having formulated Rules and a Standing Policy for deciding cases of premature release, it is bound by its own formulations of law. Since there are legal provisions which hold the field, it is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination. The provisions of the law must be applied equally to all persons. Moreover, those provisions have to be applied efficiently and transparently so as to obviate the grievance 27 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -28- that the policy is being applied unevenly to similarly circumstanced persons. An arbitrary method adopted by the State is liable to grave abuse and is liable to lead to a situation where persons lacking resources, education and awareness suffer the most."
A two Judge bench of the Honble Supreme Court in Jagdish's case(supra), speaking through Justice B.S. Chauhan, has held as under:
"43. The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction. State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre-mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy 28 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -29- prevails on the date of consideration of the case of a "life" for pre-mature release, he should be given benefit thereof."
8. Keeping in view the facts and circumstances of the case, the petitioner cannot be denied the benefit of the policy applicable on the date of his conviction and therefore, the official respondents are directed to consider the case of the petitioner for premature release in accordance with the applicable policy dated 08.08.2011 within a period of two months from the date of receipt of certified copy of this order."
(emphasis supplied) In Jarnail Singh (supra), it was held as under:-
"5. Learned counsel for petitioner would further urge that jail authorities are not counting his parole period i.e. 03 years 03 months and 23 days. In this regard, he relies on judgment/order passed by this Court in case titled 'Faquir Singh v. State of Punjab and another decided on 18.08.1987', 1988 (1) RCR (Criminal) 558, relevant extract whereof is reproduced hereinbelow:
"2. The contention on behalf of the petitioner is that in calculating the actual period of imprisonment undergone by him the time spent by him on parole has wrongly not been included. To this the reply on behalf of the State Government is that the period spent of parole cannot be considered to be a part of actual imprisonment. Thus, the vital point for consideration in this case is whether the time spent by a prisoner on parole is or is not to be included in the period of undergone actual imprisonment.
29 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -30-
3. Light on this subject is thrown by the Supreme Court in Maru Ram v. Union of India, AIR 1980 SC 2147. In para 71 of this judgment it is observed that the expression "period" and "imprisonment" must receive a wider connotation. Any life under the control of the State, whether within the high walled world or not, may be a prison if the law regards it as such. Palaces, whether Gandhiji was detained, were prisons-Restraint on freedom under the prison law is the test. Licensed release where instant recapture is sanctioned by the law, and, likewise, parole, where the parolee is no free agent, and other categories under the invisible fetters of the prison law legitimately be regarded as imprisonment. Thus, the view taken by the Supreme Court is that the time spent on parole is part of imprisonment because it is a licensed release and the prisoner released on parole is not a free agent.
(emphasis supplied) XXX XXX
5. I am, therefore, of the view that the time spent on parole by a prisoner can legitimately be included in the period of imprisonment undergone by him and as such it has to be so considered while deciding his premature release case. It is, however, clarified that in view of Section 3(3) of the Punjab Good Conduct Prisoners (Temporary Release) Act the period spent by the petitioner on parole shall not be counted toward the total period of sentence of imprisonment. Taking this view the respondent State of Punjab is directed to consider the premature release case of the petitioner within three 30 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -31- months from today, provided the petitioner has undergone actual imprisonment of 8½ years inclusive of the time spent on parole and total of 14 years imprisonment including remissions but excluding the period of parole. This petition is disposed of in these terms."
(emphasis supplied)
6. On the other hand, learned State counsel strenuously opposes the present petition. He submits that case of the petitioner for pre-mature release will be considered after undergoing 10 years actual sentence and 14 years with remission as per Premature Release Policy dated 08.08.2011 (Annexure P-1). He submits that now petitioner is on parole and before that petitioner was confined and was working in Open Air Jail Nabha. As per policy, a prisoner, who is kept and worked 01 year in the Open Air Jail, Nabha, is entitled to get one year extra remission. So, the petitioner is required to undergo 09 years actual or 14 years with remission under the said policy. The petitioner's actual undergone period is 07 years 03 months and 22 days as on 25.07.2023.
7. Learned counsel for the petitioner submits that post conviction detention period of the petitioner is 10 years 07 months and 15 days as on 25.07.2023, per custody certificate. His parole period is 03 years 03 months and 23 days, respondents are not counting his parole period. Including remission, his total served sentence is 15 years 03 months and 22 days as on 25.07.2023, per custody certificate.
**** **** ****
31 of 47
::: Downloaded on - 21-07-2024 02:24:51 :::
Neutral Citation No:=2024:PHHC:081329
CRWP-260-2023 -32-
10. I am in respectful agreement with the view taken by my learned predecessor in the judgment, ibid.
11. In the premise, instant petition is disposed of with a direction to the competent authority/official respondents to pass fresh orders by taking into consideration the judgment, dated 18.08.1987, ibid passed by this Court. Needful be done within a period of 2 months from today."
(emphasis supplied) In Jai Kishan @ Bhola (supra), it was held as under:-
"6. Learned State counsel has filed reply by way of affidavit of Manjit Singh Tiwana, Superintendent, Open Air Agriculture Jail, Nabha wherein it is stated that the petitioner is not entitled to get premature release as he does not fulfill the condition of Premature Release Policy dated 08.07.1991 as well as existing Policy dated 14.12.2017 whereby the petitioner is required to undergo 09 years actual or 13 years actual or with remission but in this case, he has undergone 07 years, 01 month and 05 days of actual sentence.
I have heard learned counsel for the parties and gone through the record.
A perusal of reply reveals that Govt. of Punjab had constituted a Committee for examination of the premature release cases of the life convict and a meeting of the said committee was held on 16.07.2020 wherein it was decided that for calculating the actual sentence the following formula should be adopted:-
Custody during under trial period + conviction period-Parole period = actual sentence.
32 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -33- The above referred formula was enacted pursuant to meeting dated 16.07.2020 cannot be applicable to the case of the petitioner retrospectively.
Now the first and foremost question required to be adjudicated before this Court is as to which policy would be applicable to the present petitioners. It is pertinent to mention here that at the time of conviction of petitioners, the Premature Release Policy dated 08.07.1991 was in existance.
Hon'ble Apex Court in its judgments passed in Criminal Appeal No. 566 of 2010 (Arising out of SLP (Crl.) No. 6638 of 2009 titled as "State of Haryana and Ors. v. Jagdish"
decided on 22.03.2010, reported as 2010(4) SCC 216 and Criminal Appeal No. 30 of 2005 titled as "State of Haryana v. Mahender Singh and Others" decided on 02.11.2007, reported as 2007(4) RCR (Criminal) 909, has held that for grant of remissions, the life convict would be governed by the policy of remissions. prevailing on the date of the judgment of conviction and not by the policy which existed on the date of consideration of his premature release. Also, in case a liberal policy prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given the benefit thereof.
7. In view of the above referred judicial precedents, this fact is not disputed that the case of premature release of a life convict is governed by the policy of the Government prevailing on the date of judgment of conviction and not by the policy which existed on the date of consideration of his premature release. Undisputedly, at the time of conviction of petitioner i.e. 20.02.2010, the prevailing policy for pre-mature release of 33 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -34- convicts was Premature Release Policy dated 08.07.1991. As per this policy, for considering the case of premature release, the condition required for life convict was to undergo 10 years actual sentence and 14 years of sentence with Remission. Further, the Government has issued instructions dated 23.10.2001, wherein it has been provided that where a convict opts to undergo sentence in Open Air Jail Nabha, he will be given the benefit of remissions of one year and will be released from jail one year earlier.
(emphasis supplied)
14. The judgments of the Hon'ble Supreme Court referred to by the learned State counsel that the parole period is not to be counted towards actual sentence are discussed hereinbelow:-
In Avtar Singh (supra), while holding that Section 3(3) of the Haryana Good Conduct Prisoner (Temporary Release) Act, 1988 was not hit by Article 21, the Hon'ble Supreme held as under:-
"7. Thus it is seen that under Sections 3 and 4 the legislature has made two categories of prisoners for temporary release;
a prisoner released on parole under Section 3 is not entitled for counting the period of release towards the total period of sentence of imprisonment undergone by him whereas, a prisoner released on furlough, period of such temporary release shall be counted towards his total period of imprisonment.
8. Two points have been urged by the learned counsel for the appellant. Firstly, is submitted that since the Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India and others, 2000(2) RCR (Criminal) 176 (SC) : 2000(3) SCC 34 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -35- 409 has held that the period of parole can also be counted as a period of sentence of the imprisonment, sub-section (3) of Section 3 of the Act is unconstitutional and violative of Article 21 of the Constitution. Secondly, it has been contended that sub-section (3) of Section 3 of the Act is discriminatory inasmuch as a prisoner released temporarily under Section 3 shall not be entitled to count such period of release towards the total period of sentence, whereas temporary release of a prisoner under Section 4 such temporary period of release on furlough would be counted towards the total period of sentence.
9. In Sunil Fulchand Shah (supra), the Constitution Bench by a majority after considering various dictionary meaning of the word 'Parole' held that the action for grant of parole, generally speaking is an administrative action and in paragraph 27 of the judgment it was held that parole is a form of temporary release from custody, which does not suspend the sentence of the period of detention, but provides conditional release from the custody and changes the mode of undergoing the sentence. However, in paragraph 30 of the judgment the above position of parole was further clarified as follows :
".......Since release on parole is a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms of grant of parole, prescribe otherwise." (emphasis supplied) 35 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -36-
10. In the same paragraph the Bench also held that "...the period of detention would not stand automatically extend by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole to the contrary". (emphasis ours)
11. Parole is essentially an executive function and now it has become an integral part of our justice delivery system as has been recognised by Courts. Though, the case of Sunil Fulchand Shah (supra) was a case of preventive detention, we are of the opinion that the same principle would also apply in the case of punitive detention.
12. Thus, the Constitution Bench by majority decision clearly held that the period of temporary release of a prisoner on parole is to be counted towards the total period of detention, unless it is otherwise provided by legislative act, rules, instructions or terms of the grant of parole.
13. 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 36 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -37- 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.
14. 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.
**** **** ****
17. This Court in State of Haryana and others v. Mohinder Sirigh and others, 2000(1) RCR (Criminal) 627 (SC) :
2000(3) SCC 394 held that 'furlough' and 'parole' are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. In Sunil Batra 37 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -38- (supra), the Constitution Bench has given recognition of creation of a separate class of prisoners undergoing death sentence. Section 3 has been enacted to meet the urgent pressing personal problem of a prisoner. As noted above, under this section any prisoner irrespective of his period of sentence or detention can be released on parole to meet such problem, whereas the condition for releasing a prisoner on furlough under Section 4 is rigorous and such release on furlough cannot be claimed by certain classes of prisoners as mentioned in the section. 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.
18. The second contention of the learned counsel for the appellant has also to be rejected in view of the decision of this Court in Sunil Fulchand Shah (supra). 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.
19. We also do not find 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 38 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -39- 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. Consequently, these contentions of the learned counsel for the appellant are rejected.
In Rohan Dhungat (supra), it was held as under:-
"4. The short question which is posed for the consideration of this Court is whether the period of parole is to be excluded from the period of sentence under the Rules, 2006 while considering 14 years of actual imprisonment for the purpose of premature release?
5. While considering the aforesaid question /issue, the object and purpose of parole is required to be taken into consideration.
Parole is a conditional release. Parole can be granted in case of short-term imprisonment. Duration of parole extends to one month. Parole is granted by the State Government. For parole, specific reason is required. Parole can be granted for number of times.
6. "Imprisonment" is defined under Rule 2(21) of the Rules, 2006. "Imprisonment" means imprisonment of either description as defined in Section 53 of the Indian Penal Code, 1860 and the General Clauses Act,1897. The term of imprisonment is not included in the computation of term of parole.
7. Keeping in mind the above, the issue involved in the present case viz. whether the period of parole is to be excluded from the period of sentence while considering 14
39 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -40- years of actual imprisonment for the purpose of premature release is to be considered.
7.1. The High Court while passing the impugned judgment and order and taking the view that the period of parole is to be excluded from the period of sentence while considering 14 years of actual imprisonment has heavily relied upon or considered Rule 335 of the Rules, 2006 which provides that the period of release on Furlough and Parole "shall be counted as remission of sentence ....". Once the period of parole is to be counted as remission of sentence, as rightly observed and held by the High Court, the period of parole is also required to be excluded from the period of sentence while considering 14 years of actual imprisonment.
8. Now, so far as the reliance placed upon the decision of this Court in the case of Sunil Fulchand Shah (supra) relied upon by learned senior counsel for the respective petitioners - convicts / prisoners is concerned, the said decision shall not be applicable to the facts of the case on hand. It was a case of detenue under the provisions of the COFEPOSA Act. Even in the said decision, it is observed and held that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. In the present case the term `imprisonment' is not included in the computation of term of parole. Rule 335 specifically provides that parole is to be counted as remission of sentence. Therefore, the said decision would not be applicable to the facts of the case on hand.
40 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -41- 8.1. Similarly, the decision of this case in the case of Avtar Singh (supra) also shall not be applicable to the facts of the case on hand while considering the issue viz. whether the period of parole is to be excluded from the period of sentence under the Rules, 2006 while considering 14 years of actual imprisonment.
9. Now, so far as the submission on behalf of the petitioners relying upon section 55 of the Prisons Act, 1894 that even on parole the prisoners shall be deemed to be in custody and therefore, the said period is to be included for the purpose of actual imprisonment is concerned, the aforesaid has no substance. section 55 of the Prisons Act, 1894 shall not be applicable with respect to release on parole. section 55 of the Prisons Act, 1894 shall be applicable in a case where a prisoner is taken out from any prison, he shall deem to have been in prison. However, the same shall not be applicable with respect to release on parole.
10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded. We are in complete agreement with the view taken by the High Court holding so.
(emphasis supplied) 41 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -42- In Anil Kumar (supra), it was held as under:-
"4. The short question which is posed for the consideration of this Court is whether a convict/prisoner who has been released on temporary parole/emergency parole, pursuant to the decision of the High-Powered Committee constituted as per the orders passed by this Court in SWM (C) No. 1/2020, such parole period shall be counted towards the total period of sentence of the convict - prisoner?
4.1 At the outset, it is required to be noted that so far as the State of Haryana is concerned as such the temporary release on parole is governed by the statutory provisions of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. Section 3(3) of the Act, 1988, which specifically provides that the period of temporary release shall not be counted towards the total period of the sentence of a prisoner. Thereafter, the High-Powered Committee constituted pursuant to the directions issued by this Court directed the convicts/prisoners to be released on temporary parole/emergency parole in the minutes of the meeting held on 12.11.2020 specifically observed that no specific directions for not counting period of special parole towards sentence are required to be made in view of the statutory provisions and the authorities are directed to decide the issue in accordance with statutory provisions. That thereafter, when the emergency parole has been further extended pursuant to the subsequent orders passed by this Court, the minutes/note of the meeting specifically provides that the period of release pursuant to the decision of the High- Powered Committee shall not be counted towards the total period of sentence of the prisoner/convict. As such the said
42 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -43- note is absolutely in consonance with the statutory provision, namely, Section 3(3) of the Act, 1988.
5. At this stage, it is required to be noted that vires of Section 3(3) of the Act, 1988 was challenged before this Court and by judgment and order passed in Avtar Singh (supra), this Court has upheld the vires of Section 3(3) of the Act, 1988. 5.1 Subsequently, in the case of Mohinder Singh (supra), this Court has specifically observed and held that the period of parole shall not be counted towards the total period of sentence. It is observed and held that when a prisoner is on parole his period of release does not count towards the total period of sentence.
5.2 In the recent decision of this Court in the case of Rohan Dhungat (supra), this Court had an occasion to consider the similar issue/question and after taking into consideration the object and purpose of parole, it is observed and held by this Court that period of release on parole shall not be counted for the purpose of considering the actual imprisonment and the said period of parole has to be excluded. In the case of Rohan Dhungat (supra), this Court has observed in paragraph 10 as under: -
"10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual 43 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -44- imprisonment, the period of parole is to be excluded. We are in complete agreement with the view taken by the High Court holding so."
6. In view of the above and when the petitioner has been convicted for the offences under Sections 302/34 of IPC and sentenced to undergo life imprisonment, he has to undergo the said sentence actually subject to any rule/policy in respect of remission and the period during which he is released on emergency/interim parole has to be excluded for the purpose of actual imprisonment. Under the circumstances, the petitioner is not entitled to claim any relief prayed in the instant writ petition. Under the circumstances, the present petition lacks merits and the same deserves to be dismissed and is accordingly dismissed.
(emphasis supplied)
15. The primary issue that arises in the instant case is as to whether the period of parole is to be counted towards actual sentence or whether it is to be excluded while considering the case of a convict for the grant of premature release. In Maru Ram (supra) the vires of Section 433A of the Act was challenged and in those proceedings, it was categorically held that parole was to be counted towards actual imprisonment. The said judgment was thereafter, followed in a number of decisions of this Court, some of which have been quoted above. Meanwhile, in the case of Avtar Singh (supra) the challenge was to the validity of Section 3(3) of the Haryana Good Conduct Prisoner (Temporary Release) Act, 1988 and whether the provision was hit by Article 21. The Hon'ble Supreme Court held that Section 3(3) of the Act was 44 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -45- not hit by Article 21 and by a valid legislative Act, the period of temporary release on parole had been denied/deducted while counting the actual sentence undergone by the prisoner. Interestingly, the judgment in Maru Ram (supra) was never considered and dealt with in Avtar Singh (supra). However, a perusal of Section 3(3) of the Act reads that the period of release under this Section would not count towards the total period of the sentence of imprisonment of prisoner. But, in para 19 the Court has held that by a valid legislative act, the period of temporary release on parole has been denied while counting the actual sentence undergone by the prisoner. Thus, there seems to be some confusion with the judgment in Avtar Singh (supra) as to whether as per Section 3(3) of the Punjab Good Conduct Prisoners (Temporary) Release Act, 1962, the period of parole availed is to be deducted from the actual imprisonment undergone or from the total actual sentence including remissions. Be that as it may, the subsequent judgments in Rohan Dhungat and Anil Kumar (supra) have followed Avtar Singh (supra) without even a passing reference to Maru Ram (supra).
16. The law regarding the rule of precedent and per incuriam is quite clear. A decision or a judgment can be per incuriam any provision in a statute, policy, rule or regulation which was not brought to the notice of the Court. A decision or a judgment can also be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a co-
equal or a Larger Bench. In case, there are two or more mutually 45 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -46- irreconcilable decisions of the Supreme Court and the later one is without considering the former, the earlier view is to be applied as the succeeding one would fall in the category of per incuriam. Therefore, in the instant case for the grant of premature release, the period of parole availed by an accused must be counted towards his actual sentence but must be deducted from his total sentence (which includes remissions).
17. As regards the argument of the petitioner that the policy applicable at the time of the conviction is to be applied, it would be relevant to mention here that the petitioner was convicted on 14.01.2012. The policy applicable to the petitioner would be the one dated 08.08.2011 (Annexure R-
2) as per which the petitioner was to undergo 10 years of actual sentence and 14 years with remission. The clarification which has come by way of the meeting dated 16.03.2020 (Annexure R-3) has certainly shifted the goal post since prior to the said meeting the practice was that the period of parole was to be counted towards the actual sentence. This practice was probably in view of the judgment in Maru Ram (supra). Therefore, the policy/practice as prevailing on the date of the conviction is to be applied to consider the petitioner's case for the grant of premature release. The subsequent change in policy by way of the meeting dated 16.03.2020 cannot be applied to the case of the petitioner. It would indeed be an anomalous situation if an accused is granted the concession of premature release based on an earlier liberal policy but an accused who came to be incarcerated later having been summoned 46 of 47 ::: Downloaded on - 21-07-2024 02:24:51 ::: Neutral Citation No:=2024:PHHC:081329 CRWP-260-2023 -47- under Section 319 Cr.P.C. would have to undergo more custody to be considered for the grant of premature release due to a subsequent more stringent policy. Interestingly, a similarly placed convict namely, Avtar Singh @ Malli has already been granted the concession of premature release.
18. In view of the above discussion, as the parole period availed by the petitioner is to be included in the actual sentence undergone by him, the official respondents are directed to consider the case of the petitioner for premature release in the light of this order and in accordance with the applicable policy dated 08.08.2011 within a period of 08 weeks from the date of receipt of a certified copy of this order.
19. The instant petition is disposed of in the aforementioned terms.
(JASJIT SINGH BEDI)
JUDGE
02.07.2024
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
47 of 47
::: Downloaded on - 21-07-2024 02:24:51 :::