Punjab-Haryana High Court
Dharam Pal vs State Of Haryana And Others on 3 October, 2012
Author: Surya Kant
Bench: Surya Kant
Criminal Writ Petition No. 2042 of 2011 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA,
CHANDIGARH
Criminal Writ Petition No. 2042 of 2011
Date of decision : October 03 , 2012
Dharam Pal ............ Appellant
Versus
State of Haryana and others .......... Respondents
CORAM : HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE R.P. NAGRATH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present:- Mr. H.P.S. Aulakh, Advocate
for the petitioner.
Mr. R.S. Kundu, Addl. Advocate General, Haryana
for the respondents.
R.P. NAGRATH, J.
Correctness of the view taken by Single Bench of this Court in Joginder Singh V. State of Haryana etc., Criminal Writ Petition No. 1494 of 2010 decided on 14.01.2011 (Annexure P-1) having been doubted by a Coordinate Bench in the instant case, that the matter has been referred to this larger Bench. Following are the points of reference to be considered by us:-
(a) When the sentence of a convict shall commence?
Criminal Writ Petition No. 2042 of 2011 (2)
(b) Whether the period undergone by an accused as under-trial
can be taken into consideration for awarding remissions or not?
(c) Whether the period undergone by an accused as an under-
trial is to be considered as a part of the sentence or not?
2. The ratio of law laid down in Joginder Singh's case (supra), as evident from the relevant paragraph, is as under:-
"4. The solitary submission made by learned counsel for the petitioner is that the total sentence of the petitioner should be considered to be the period he has undergone during trial and after conviction and thereafter, he should be allowed remission as per paragraph 645 of the Punjab Jail Manual. Section 428 of Code of Criminal Procedure envisages that the period of detention, if any, undergone by an accused during the investigation, inquiry or trial before the date of conviction, shall be set off against the term of imprisonment imposed upon him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him. Thus, Section 428 of the Code mandates that sentence includes the period undergone by an accused during the trial also.
3. It would be necessary to give brief facts of the present case to understand the controversy:-
"Dharam Pal alias Swami Kalyani - petitioner was named as an accused in a case FIR No.65 dated 29.03.2003 registered at Police Station Mahesh Nagar, Ambala under Sections 376 and 506 IPC. The Court of Additional Sessions Judge, Ambala held the petitioner guilty of offences punishable under Sections 376 and 506 IPC and sentenced him to Criminal Writ Petition No. 2042 of 2011 (3) undergo rigorous imprisonment for 7 years and to pay a fine of Rs.2,000/- under Section 376 IPC and further to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.500/- under Section 506 IPC. Both the sentences were ordered to run concurrently. The aggrieved petitioner filed Criminal Appeal No.1153-SB of 2005, which was dismissed by this Court vide order dated 24.02.2010.
4. The contention of the petitioner is that the Jail Authorities should count and award remissions on the period already undergone by him as an under-trial. According to his learned Counsel, the State Authorities have wrongly interpreted para No. 645 of the Punjab Jail Manual, which says that the remission shall not exceed one-fourth part of his sentence.
5. As per the reply filed by the State, the petitioner has undergone sentence of 5 years 5 months and 19 days as on 17.11.2011. A chart prepared to this effect is reproduced below:-
Y M D
1. Under-trial period from 24.4.03 to 12.06.05 02 01 19 DAP from 13.06.05 to 21.07.06 01 01 09
2. Conviction period from 04.05.10 to 17.11.11 01 06 14
------------
3. Actual sentence undergone 04 09 12
4. Remissions (+) 00 05 08
5. Govt. Remission (+) 00 00 00
--------------
05 02 20
6. Less Parole period (-) 00 03 01
--------------
7. Total Sentence Undergone 05 05 19
--------------"
6. The petitioner's counsel submits that the remissions for the Criminal Writ Petition No. 2042 of 2011 (4) under-trial period of 2 years, 1 month and 19 days, mentioned against column No. 1 above should also be awarded to him.
7. Chapter XX of the Jail Manual deals with Remission System. Paragraph No. 645 contained in this Chapter says that the total remission(s) awarded to a prisoner under these rules shall not without the special sanction of the Local Government, exceed one-fourth part of his sentence;
provided in every exceptional and suitable cases the Inspector General of Prisons may grant remission amounting to not more than one-third of the total sentence.
8. The total sentence awarded to the petitioner was 7 years rigorous imprisonment apart from default clause of undergoing imprisonment for non-payment of fine of ` 2,000/- under Section 376 IPC and ` 500/- under Section 506 IPC.
9. The total remission in terms of paragraph 645, thus, could be upto one-fourth of the period of sentence of 7 years rigorous imprisonment, which comes to 21 months though with the special sanction of the Inspector General of Prisons, the remissions can be granted upto one-third of the total sentence which comes to 28 months. The Jail authorities, however, have limited the total period of remissions in the case of petitioner to 14 months, calculated on the basis of the remainder of the sentence after conviction, without taking into account the period undergone by him during the investigation and trial of the case.
10. Reliance is placed by counsel for petitioner on the judgment Criminal Writ Petition No. 2042 of 2011 (5) of Hon'ble Supreme Court, Bhagirath Vs. Delhi Administration, 1985 (2) SCC 580, which pertained to the benefit of set off under Section 428 Cr.P.C. sought for the life convicts. The following facts of that case also deserve notice:-
"The appellant, Bhagirath, filed a petition in the Delhi High Court asking that his case be referred for the orders of the Delhi Administration under paragraph 516-B of the Punjab Jail Manual since, though sentenced to life imprisonment, he had undergone a period of detention in Jail amounting to 14 years together with the remissions earned by him. A learned Single Judge of the High Court rejected that petition on the ground that, in computing the period of 14 years, the period spent by the convict in the jail as an under trial prisoner cannot be taken into account because, section 428 of the Code which allows such a set off applies only when an accused has been sentenced to imprisonment for a term', and the sentence of life imprisonment is not an imprisonment 'for a term'. In coming to the conclusion that section 428 has no application to cases which an accused is sentenced to life imprisonment, the learned Judge relied upon a judgment of the Supreme Court in Kartar Singh v. State of Haryana, 1983 (1) SCR 445.
11. After analyzing the matter, the Hon'ble Supreme Court held as under:-
"13. We have considered with great care the reasoning upon which the decision in Kartar Singh proceeds. With respect, we are unable to agree with the decision. We have already discussed why 'imprisonment for life is imprisonment for a term, within the meaning of section 428. We would like to add that we find it difficult to agree that the expressions 'imprisonment for life' and imprisonment for Criminal Writ Petition No. 2042 of 2011 (6) a term' are used either in the Penal Code or in the Criminal Procedure Code in contra-distinction with each other. Sections 304, 305, 307 and 391 of the penal Code undoubtedly provide that persons guilty of the respective offences shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain number of years. But, that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with either of the sentences mentioned in the respective sections. The circumstance on which the learned judges have placed reliance in Kartar Singh, do not afford any evidence, intrinsic or otherwise' of the use of the two expressions in contra-distinction with each other. Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the Legislature. That does not mean that there is, necessarily, an antithesis between those expressions."
12. Accordingly, the appeal and writ petition was allowed and it was directed that period of detention undergone by the two accused in that case as under-trial prisoners, be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433A and, provided that order had been passed by the appropriate authority under Section 432 or Section 433 of Cr.P.C. Section 432 Cr.P.C. refers to the power of appropriate Government to suspend or remit whole or part of the sentence. Section 433 deals with power to commute sentence.
13. The proposition involved in Bhagirath's case (supra) was, thus, quite different and cannot afford any help to the petitioner to the questions arising in this petition.
Criminal Writ Petition No. 2042 of 2011 (7)
14. The matter, in particular to the remissions came up before Hon'ble Supreme Court in Government of Andhra Pradesh and another v. Anne Venkatesware and others, (1977) 3 SCC 298 with a question whether the period of detention undergone by the petitioners before their conviction could be treated as part of the period of imprisonment on conviction so as to entitle them to remission of their sentences under the Prisoners Act. Andhra Pradesh High Court against which the matter came up before Hon'ble Supreme Court, held that all remissions that are available or permissible to the petitioners in regard to the imprisonment on conviction were available to them even in respect of remand period and directed the authorities to work out those remissions and give benefit to the petitioners.
15. Hon'ble Supreme Court held that the view taken by the High Court on this point was incorrect. It was held that Section 428 Cr. P.C. provides that the period of detention of an accused as an under-trial shall be set off against the term of imprisonment imposed on him on conviction. The section only provides for a "set off", it does not equate an "under-trial detention or remand detention with imprisonment on conviction". The provision as to set off expresses a legislative policy; this does not mean that it does away with the difference in the two kinds of detention and puts them on the same footing for all purposes. The basis of the High Court's decision was not found to be right.
16. It was further held that the Prisons Act does not confer any right upon the prisoner to claim remission. It provides only for the regulation of prisons and for the treatment of prisoners confined therein.
Criminal Writ Petition No. 2042 of 2011 (8) Section 59 of the Prisons Act empowers the State Government to make rules, inter alia, for rewards for good conduct. The rules made under the Act, therefore, should be construed within the scope of the ambit of the Act. Rules under the Prisons Act do not substitute a lesser sentence for a sentence awarded by the Court. Reference was made to a previous decision in Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600, wherein it was held that the rules may enable a prisoner to earn remissions but, the question of remission is exclusively within the province of appropriate Government. If the Government decides to remit the punishment to which a person has been sentenced, the remission may be worked out according to the rules framed under the Prisons Act.
17. Reference may also be made to a judgment of Division Bench of Bombay High Court in Saikee Mazar and otheres v. B.N. Patel and others, 1989 Cri.L.J. 1257, relevant paragraphs of which are as under:-
"8. ........................... The under trial prisoners and the convict prisoners make a distinct classification and cannot attract the provisions of Art. 14 of the Constitution. What Art. 14 prohibits is class legislation and not reasonable classification for the purposes of legislation. If the Legislature takes care to reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a 'well-defined' class it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons............."
"9. The under-trial prisoners are a distinct category as distinguished from the convict prisoners. Merely because S. 428 of the Cr.P.C. provides for set off of the period of Criminal Writ Petition No. 2042 of 2011 (9) detention undergone during investigation, inquiry or trial, the same cannot equate an under trial detention or remand detention with imprisonment on conviction. The provision as to set off expresses a legislative policy but the same cannot do away with the difference in the two kinds of detention and put them on the same footing for all purposes. Moreover, as provided in R.3 of the aforesaid Remission System Rules, remissions are granted as a matter of concession only and not as of right. Hence, on this ground also no resort can be had to Art. 14 of the Constitution. In this view of the matter, it will have to be held that the present petition is devoid of any merit and deserves to be dismissed."
18. No other authority taking contrary view has been cited before us. There is no provision in Chapter XX of the Jail Manual to support the petitioner's contention that the period of detention undergone during investigation and trial of the case is admissible for granting remissions. Paragraph 637 would provide answer to this controversy and is reproduced as under:-
"637. Application of remission of system - Subject to the provisions of paragraph 634 remission under paragraph 635 shall be calculated from the first day of the calendar month next following the date of prisoner's sentence; any prisoner who after having been released on bail or because his sentence has been temporarily suspended is afterwards readmitted in the jail shall be brought under the remission system on the first day of the calendar month next following his re-admission, but shall be credited on his return to jail with any remission which he may have earned previous to his release on bail or the suspension of his sentence. Remission under paragraph 636 shall be calculated from the Criminal Writ Petition No. 2042 of 2011 (10) first day of the next calendar month following the appointment of the prisoner as convict-warder, convict- oversee or convict-night watchman.
19. It is, thus, clear that remission is to be calculated from the first day of calendar month next following the date of prisoner's sentence. The sentence commences from the date when the Court awards punishment to an accused on proof of the offence. Section 53 IPC refers to the kind of punishments to which offenders are liable.
20. In Joginder Singh v. State of Punjab 2001, (8) SCC 306, respondents No. 3 to 5 were convicted by the Magistrate on 13.08.1987 and the conviction was upheld by the Sessions Judge. Revision filed before the High Court against the conviction was dismissed on 17.07.1998. The respondents surrendered before the Superintendent, Central Jail, Patiala on 29.07.1998 and on the very same day they were released by the jail authorities by extending the benefit of certain remissions. The respondents were all the time on bail except for a period of 2 months and 25 days that they were in jail. It was the contention of respondents that special remissions announced by the State Government under various notifications issued between 13.07.1988 to 29.07.1988, during the period they remained on bail, be extended. They were released immediately on their surrender by granting the benefit of such remissions. The matter came up before Hon'ble Supreme Court at the instance of the complainant. In that case the total period of conviction was 18 months i.e. 1 ½ year. It was held by Hon'ble Supreme Court that the remissions awarded by the Government during the period when respondents were on bail, could not be extended to them even by inclusion of the word 'bail' in Criminal Writ Petition No. 2042 of 2011 (11) the notifications issued by the Punjab Government.
21. For grant of remissions, there is, thus, no question of any 'deemed' period of commencement of sentence and it will start only after the punishment is awarded, as provided in paragraph 637 of the Punjab Jail Manual.
22. Paragraph 635 of the Punjab Jail Manual provides the Scale of award of remission. It says that the ordinary remission shall be awarded on the following Scale:-
(a) two days per month for thoroughly good conduct and scrupulous attention to all prison regulations, (b two days per month for industry and the due performance of the daily task imposed.
23. Paragraph 635-A says that a prisoner who is unable to labour through causes beyond his control, as mentioned therein, would be granted remissions as per the Scale given in this paragraph.
24. Paragraph 636 pertains to the remissions awarded to the convict officers. Paragraph 638 says that prisoners employed on prison service, such as cooks and sweepers, who work on Sundays and holidays, may be awarded three days' ordinary remission per quarter in addition to any other remission earned under these rules. Paragraph 639 relates to the grant of remissions for continuous good conduct for a period of one year and 3 years respectively. Paragraph 644 provides for the special remissions.
25. The above paragraphs of the Jail Manual essentially provide for remissions referable to good conduct of the prisoner during the period of his detention as an incentive for not to commit any Prison Offence Criminal Writ Petition No. 2042 of 2011 (12) after conviction. It is only after the award of the punishment that the prisoners are to put on hard labour or hard task and their good conduct is kept under observation to grant remissions.
26. The question of extending benefit of these paragraphs for the period during which the prisoner was in remand detention, thus, would never arise. The law has taken care of such period to an extent, to provide for set off while calculating the total term of imprisonment.
27. We are also of the view that the literal meaning of the term 'sentence' mentioned in paragraph 645 of the Jail Manual is referable to the period of punishment awarded by the Court on conviction. The words used as the "total remission" not to exceed one-fourth part of the sentence, clearly relates to the period of sentence arrived at by a divider of 4 and, thus, in case of the petitioner before us, it cannot be more than 21 months out of 7 years of rigorous imprisonment. Paragraph 645 has to be interpreted in the manner stated above for its harmonious construction because the exception given in its proviso makes it clear that in exceptional and suitable cases, remission can extend to one-third of the total sentence. In the present case, however, there is no indication in any of the orders passed by the Superintendent of Jail that the period of remission has been restricted to 14 months.
28. As regard to special remissions, the respondent-State has stated in the reply that under the orders of Governor of Haryana issued time to time, the petitioner has not been granted special remission under Sub-Section (1) of Section 432 Cr.P.C. due to the following as contained therein:-
Criminal Writ Petition No. 2042 of 2011 (13)
(i) No remission will be granted to persons convicted of
either rape, dowry death; abduction of a child below 14 years and his murder.
(ii) xx xx xx xx xx
(iii) xx xx xx xx xx
In this case, however, there is no challenge by the petitioner to the validity of above restriction.
29. We, therefore, answer the reference in the following manner:-
(a) The sentence of a convict would commence from the date he is awarded punishment.
(b) The period undergone by an accused as under-trial cannot be taken into consideration for awarding remission though that period shall be set off against the total period of sentence.
(c) The word sentence given in paragraph 645 of Punjab Jail Manual to fix the limit of remission, would be the total sentence as awarded by the Court on conviction.
30. The reference is, therefore, answered accordingly. For the reasons stated above, we respectfully disagree with the contrary principles laid down in Joginder Singh's case (Supra) and overrule the same. Copy of this order be sent to the State Governments of Punjab, Haryana and U.T. Chandigarh for circulation amongst all concerned.
The matter stands disposed of accordingly.
( Surya Kant ) ( R.P. Nagrath )
Judge Judge
October 03, 2012
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