article 161

Citation: Yet to be Traced

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1949 of 2011 (Arising out of S.L.P. (Crl) No. 3841/2011)

Decided On: 11.10.2011

Appellants: D. Ethiraj Vs.

Respondent: Secretary to Govt. and Ors.

Hon'ble Judges: Asok Kumar Ganguly and Gyan Sudha Misra, JJ.

Subject: Criminal

Acts/Rules/Orders: Official Secrets Act, 1923 - Sections 3, 4, 5, 6, 7, 8, 9 and 10; Criminal Law Amendment Act, 1961 - Sections 2 and 3; Indian Penal Code - Sections 34, 109, 119, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 302, 326 and 366; Constitution of India - Article 161

Cases Referred: Nalamolu Appala Swamy and Ors. v. State of Andhra Pradesh MANU/SC/0385/1989 : (1989) Supp (2) SCC 192; State of Haryana v. Nauratta Singh and Ors. MANU/SC/0176/2000 : (2000) 3 SCC 514; Joginder Singh v. State of Punjab and Ors. MANU/SC/0557/2001 : (2001) 8 SCC 306

Citing Reference:

Disposition: Appeal allowed

JUDGMENT

Asok Kumar Ganguly, J.

1. Leave granted.

2. Heard Learned Counsel for the parties.

3. When the matter was listed on 26th September, 2011, this Court directed learned counsel for the State to furnish an affidavit stating therein what is the actual period of sentence undergone by the Appellant. However, the affidavit has not been filed, but Learned Counsel appearing for the State has filed a statement showing the period of sentence undergone by the Petitioner at different stages and the said statement has not been denied by the counsel appearing for the Petitioner. We take that statement on record. On a perusal of the same, the following position is clear:

S.No. From To No. of days 1 16.05.1987 19.05.1987 04 days 2 14.01.1992 24.01.1992 11 days 3 22.11.2002 26.02.2003 96 days 4 07.09.2010 Till Date (05.10.2011) 1 year 29 days

4. It is clear from the above table that the appellant had undergone sentence of 1 year and 140 days as on 5.10.2011.

5. The subject matter of challenge in this case is an order passed by the Division Bench of the High Court dated 25th March, 2011 whereby the High Court has, while referring to various judgments, by a reasoned order declined the Appellant's prayer for having his case for remission of sentence considered in the light of Government Orders (Gos) issued by the Government from time to time.

6. The crux of the ratio in High Court's judgment is that as the Petitioner was on bail on the date of issuance of various notifications for remission of sentence, his case for remission cannot be considered.

7. We are unable to accept the aforesaid reasoning of the High Court for the reasons discussed below:

8. Various notifications have been issued in connection with remission of sentence by the Government. Learned counsel appearing for both the parties have relied in support of their case on a notification being G.O. Ms. No. 279, Dated 23rd February, 1992 issued by the Government. We set out the said notification since this Court is to interpret the same in the judgment.

GOVERNMENT of TAMIL NADU

ABSTRACT

Prisoners - Remision of sentence - Special remission on occasion of newly elected Government assuming office in Tamil Nadu - ordered.

HOME (PRISON C) DEPARTMENT G.O. Ms. No. 279, Dated 23.2.92.

ORDER

On the occasion of the assumption of office of the newly elected Government in Tamil Nadu, the Government have decided to grant remission to certain classes of prisoners who have been convicted for various offences by the courts in this State and sentenced to various terms of imprisonment other than life imprisonment.

2. In exercise of the powers conferred by Article 161 of the Constitution of India, the Government of Tamil Nadu hereby remits;

a. In the case of women who have been sentenced to punishment for offences other than those relating to murder, robbery and smuggling activities, the whole of the unexpired portion of the punishment to which they have been sentenced, and

b. In the case of men who have been sentenced to punishment for various offences other than those relating to murder; robbery and smuggling activities, six months out of their imprisonment.

3. The special remission sanctioned above will not be admissible in the cases of civil prisoners and detenus under the law relating to detention and also in the cases of persons convicted for offences under Sections 3 to 10 of the Official Secrets Act, 1923, Sections 2 and 3 of the Criminal Law Amendment Act 1961, Sections 121 to 130 of the Indian Penal Code, Foreigners and Passport Acts and persons convicted by Courts of criminal jurisdiction of other States.

4. The remission ordered herein shall be made applicable to those prisoners also who have been convicted in this State but are undergoing their sentence in the jails of other States or Union Territories.

5. The remission ordered herein shall take effect from the 24th February, 1992 namely the birth day of the Honorable Chief Minister of Tamil Nadu.

(BY ORDER of THE GOVERNOR)

K. MALAISAMY, SECRETARY TO GOVERNMENT.

9. Admittedly the said notification is still subsisting and the State is bound by the same. The said notification, as it is clear from its text, was issued in exercise of the powers conferred by Article 161 of the Constitution of India. The Petitioner applied his case for remission of sentence to be considered under the said notification. The Appellant was convicted by learned District and Sessions Judge, Ooty by judgment dated 14th January, 1992 in Sessions Case No. 11 of 1989 and sentenced to undergo three years rigorous imprisonment for an offence under Section 366 read with Section 109, Indian Penal Code and one year rigorous imprisonment for an offence under Section 119, Indian Penal Code. The sentences were however to run concurrently.

10. On an appeal being filed by the Appellant vide C.A. No. 64 of 1992, the High Court by its judgment dated 7th June, 2002 dismissed the same confirming the conviction and sentence of the Appellant. The special leave petition preferred by the Appellant in this Court against the said judgment of the High Court came to be dismissed on 20th July, 2010.

11. As a result of the above, the Appellant was readmitted in Central Prison, Coimbatore on 7th September, 2010 and has been undergoing sentence even today.

12. In view of the aforesaid admitted facts, the Appellant, in our judgment, is entitled to have his case of remission considered under the aforesaid notification since he admittedly suffered more than six months of imprisonment prior to the date of judgment rendered by the High Court on 25th March, 2011, but the High Court, for the reasons discussed in the judgment, refused to consider the same on the ground that on the date of issuance of notification for remission of sentence, the Petitioner was on bail.

13. Mr. A.L. Somayajee, learned senior counsel appearing for the Appellant cited before us a decision of this Court in Nalamolu Appala Swamy and Ors. v. State of Andhra Pradesh MANU/SC/0385/1989 : (1989) Supp (2) SCC 192. The learned counsel has drawn our attention to para 3 of the said judgment and submitted that similar plea was taken by the State of Andhra Pradesh in that case. Para 3 of the said judgment would show that and is set out below:

3. In a brief affidavit-in-reply filed by the State, it has been stated in para 4 as follows:

It is respectfully submitted that the said GO is not applicable after November 1, 1984 and further the remission can only be granted to the prisoners who are actually in jail at the time of issuance of the said GO. The Appellants herein were on bail by virtue of the order of this Hon'ble Court. Since they were not in jail at the time of issuance of the above GO they cannot claim to be released by applying this GO to them.

14. Here also, we find that the G.O. does not speak that in order to get the benefit of remission, the prisoner must actually be in jail on the date when the G.O. was issued. Despite the aforesaid clear position settled by this Court and despite the fact that the same judgment was placed before the High Court, the High Court, unfortunately, came to a decision which is contrary to the reason given by the aforesaid three Judge Bench decision of this Court in Nalamolu Appala (supra).

15. Learned counsel for the State has made a very strenuous effort to sustain the High Court's reasoning by referring to two decisions of this Court. First of all, he has drawn our attention to the decision rendered by this Court in the case of State of Haryana v. Nauratta Singh and Ors. MANU/SC/0176/2000 : (2000) 3 SCC 514. The facts of that case are succinctly narrated in the Head Note which is set out below:

The Respondent was acquitted on 5-1-1978 by the trial Court, for the offence under Sections 302/34 Indian Penal Code. The High Court, although allowed the Respondent to remain on bail during the pendency of appeal, ultimately convicted him on 23-4-1980 under the said provisions. Consequently, the resopndent surrendered on 7-6-1980. During the pendency of his appeal before Supreme Court he was again released on bail on 2-8- 1980. The Supreme Court, ultimately, upheld the conviction and, consequently, he was again taken to jail on 22-8-1994. In such circumstances, the Punjab and Haryana High Court, upholding the Respondent's contention that his conviction related back to the date of the trial court's decision, I.e. 5-1- 1978, allowed his claim that the period during which he was on bail (from 5-1-1978 to 7-6-1980 and from 2-8-1980 to 21-8-1994) should be included within the period of his entitlement for remission. The

Respondent's claim was based on the instructions issued by the Stae of Haryana postulating that remission would "be also granted to all the convicts who were on parole/furlough from the jail on 25-1-1988.

16. The Court found that an accused cannot claim the period during which he was on bail towards his remission. We are in respectful agreement with that interpretation by this Court in Nauratta Singh. Any other interpretation will render criminal justice system to a mockery. This Court clarified the same by giving illustration in para 18 of the report in Nauratta Singh, which we set out here:

18. The clear fallacy of the approach made by the High Court can be demonstrated thorugh an illustration. An accused was tried for an offence under Section 326 Indian Penal Code. Durign trial period he was allowed to remain on bail and the trial prolonged up to, say, 3 years. Finally the court convicted him and sentenced him to imprisonment for three years. Should not the convicted person go to jail at all on the premise that he was on bail for three years and is hence entitled to remission of that period

17. Similar views have been expressed by this Court in the subsequent decision of Joginder Singh v. State of Punjab and Ors. MANU/SC/0557/2001 : (2001) 8 SCC 306. In Joginder Singh, the aforesaid para of Nauratta has been quoted.

18. We are in entire agreement with the aforesaid views taken by this Court that if it is clear from the facts of a given case that during the period the Petitioner was on bail and had not at all suffered any imprisonment, he cannot get the benefit of remission in respect of that period.

19. The same is admittedly not the positon in this case. Here, the Appellant had suffered substantial portion of the period in jail which is more than 17 months. On this, there is no dispute. In that view of the matter, the Appellant's case is covered by the ratio of the three Judge Bench decision of this Court in Nalamolu Appala Swamy (supra).

20. We are unable to approve the reasoning given by the High Court that the Appellant's case for remission cannot be considered in terms of the said notification as on the date of the notification, he was on bail. This is a wrong approach. A prisoner may be on bail on a particular day - this is just a fortuitous circumstance. What the Court has to consider is the actual period of sentence undergone by the prisoner and whether by reason of the period actually undergone, the prisoner qualifies for remission. We are, therefore, constrained to set aside the judgment of the High Court.

21. We direct the Appellant to make a representation afresh praying for remission attaching a copy of this judgment. In our view, the Appellant is entitled to get his case of remission of sentence considered in accordance with the above mentioned G.O. We also direct the State to consider the case of the Appellant in the light of the observations made in this judgment and pass an order within a period of six weeks from the date of receipt of the representation.

22. The appeal is accordingly allowed.

Citation: 2008(3)ACR3312(SC), AIR2009SC1304, 2009((2))ALT(Cri)260,

II(2008)DMC843SC, JT2008(11)SC556, (2008)15SCC513


Criminal Appeal No. 1731 of 2008 (Arising out of Special Leave Petition (Crl) No. 1062 of 2007)


Appellants: Dharam Chand Vs.

Respondent: State of Punjab and Ors.

Hon'ble Judges: C. K. Thakker and D. K. Jain, JJ.

Counsels: For Appearing Parties: K.K. Khurana, A.A.G., Brijendra Chahar, Sr. Adv., Ashok K. Mahajan, Rajat Sharma, Dinesh Verma, Kailash Chand, Shikha Roy Pabbi, K.R. Anand, Ajit Kumar, S. Sabharwal, B.R. Sharma, Subramonium Prasad, A.K. Mehta and Kuldip Singh Singh, Advs

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code, 1860 - Section 304B; Code of Criminal Procedure, 1973 - Section 432; Constitution of India - Article 161

Prior History: From the final Judgment and Order dated 31.10.2006 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal Nos. 992-SB and 1012-SB of 2002

Disposition: Appeal allowed

Case Note: Criminal – Remission of sentence – Benefit of – Section 304B of the Indian Penal Code, 1860 – Deceased harassed by her in-laws for dowry – Deceased burnt body found in bathroom – Accused convicted and sentenced by trial court – Sentence of seven years awarded – In appeal Accused no. 3, 4 and 5 were acquitted on the ground that they were residing separately – Appeal filed by accused no. 1 and 2 dismissed – Hence present appeal

by complainant brother of the deceased – Held, no ground to interfere with order of acquittal recorded by High Court so far as accused nos. 3 to 5 concerned – High Court right in confirming order of conviction and sentence of accused no. 1 husband and accused no. 2 mother-in-law of deceased – High Court wrong in observing that accused no. 1 (respondent no. 2) had already undergone sentence – Incident took place on March 14, 2000 – High Court decided matter on October 30, 2006 – Seven years would be over only on March 13, 2007 – Order of Government of Punjab in exercise of power conferred by Section 432 of the Code of Criminal Procedure, 1973 and Article 161 of the Constitution provides for remission of sentence of imprisonment for life in certain cases – Benefit of remission not applicable in dowry death cases – Release of accused no. 1 and 2 before completion of seven years not legal and lawful – Appeal partly allowed. [para 16, 17, 18, 19, 22 ]

Ratio Decidendi: Order of Government of Punjab giving benefit of remission of sentence is not applicable to dowry death cases.

JUDGMENT

C.K. Thakker, J.

1. Leave granted.

2. The present appeal is filed by the complainant, brother of deceased Anju Devi against the judgment and order dated October 31, 2006 by the High Court of Punjab & Haryana in Criminal Appeal Nos. 992-SB of 2002 and 1012-SB of 2002. By the impugned judgment, the High Court allowed the appeal No. 1012-SB/2002 filed by Vinod and partly allowed the appeal No. 992-SB/2002 filed by other accused and acquitted some of the respondents-accused for offences with which they were charged reversing the order of conviction recorded by the trial Court.

3. The case of the prosecution in short is that the appellant herein, a de facto complainant is brother of one Anju Devi (`deceased' for short). According to the appellant, his sister Anju Devi got married to Accused No. 1, Jolly Singla on May 18, 1997. Accused No. 2 Reshma Devi is mother in law of deceased Anju Devi. Accused No. 3 Rajesh and accused No. 4 Vinod are brothers of accused No. 1 Jolly Singla and accused No. 5 Kiran is wife of accused No. 3-Rajesh.

4. It was the case of the prosecution that at the time of marriage, the parents of the deceased Anju Devi spent an amount of Rs. 3,50,000/-. They also paid substantial amount of dowry to the accused. Anju Devi delivered a female child Diksha who was about two years of age at the time of incident. The allegation of the prosecution was that immediately after marriage of Anju Devi, her in-laws were harassing Anju Devi by making demands of dowry. At several occasions, deceased Anju Devi made complaints about such demands. It was stated that though substantial amount was paid by the parents of deceased Anju Devi, her in-laws were insisting for more and more amount. They were also demanding scooter, colour television, etc. As per the prosecution, parents of Anju Devi had assured in-laws of Anju Devi that their demands will be steadily met with but they should wait for some time considering the capacity of parents of Anju Devi.

5. It is alleged by the prosecution that on March 14, 2000, at about 9.00 a.m., deceased Anju Devi telephoned the appellant (her brother) that accused were harassing her and giving her beatings and were asking her to leave matrimonial home. Such cruel treatment and demand for dowry was made by all the accused. According to the appellant, he came along with his brother Jai Bhagwan, Sarpanch Harbans Singh and some other people to persuade the in-laws of deceased Anju Devi, but when they reached at the house of the accused, they found dead body of deceased Anju Devi lying burnt in bath room. First Information Report was lodged being FIR No. 81 under Section 304B of the Indian Penal Code, 1860 (IPC).

6. The accused were arrested. Usual investigation was made and charge was framed. The accused pleaded not guilty to the charge and claimed to be tried.

7. The Additional Sessions Judge, Patiala in Sessions Case No. 16 of 2000 decided on June 13, 2002 held that it was proved by the prosecution that the deceased died homicidal death and all the accused were responsible for committing the said crime. They were heard on the question of sentence and the Court ordered them to undergo rigorous imprisonment for seven years and to pay fine of Rs. 5,000/- each and in default, they were ordered to further undergo rigorous imprisonment for eight months.

8. Being aggrieved by the order of conviction and sentence, all the accused preferred appeals before the High Court. The High Court allowed the appeals filed by Rajesh, accused No. 3, Vinod, accused No. 4 and Kiran, accused No. 5 on the ground that they were residing separate from accused Nos. 1 and 2. It, however, dismissed the appeal filed by accused No. 1, Jolly Singla, husband of deceased Anju Devi and accused No. 2 Reshma Devi, mother in law of deceased Anju Devi. So far as respondent No. 2 Jolly Singla, accused No. 1-husband of deceased Anju Devi is concerned, the High Court observed that he had already undergone the imprisonment and was released. The said order is challenged by the complainant by filing the present appeal.

9. We have heard learned Counsel for the parties.

10. The learned Counsel for the appellant vehemently contended that the order of conviction and sentence recorded by the trial Court was in accordance with law and ought not to have been set aside by the High Court. It was also submitted that on the basis of the evidence adduced by the parties, the trial Court held that it was a case of homicidal death. The dead body of Anju Devi was found in the bath room. The trial Court was wholly right in observing that normally accidental fire takes place in a kitchen and not in a bath room. It was, therefore, held that it was not a case of accidental fire, but with intent to cause death, all the accused had committed the act in question. It was also submitted that from the evidence, it was clearly established that there was demand of dowry and deceased Anju Devi was harassed. The said fact was proved from sworn testimony of prosecution witnesses. The High Court was wholly in error in acquitting accused Nos. 3 to 5 who were convicted by the trial Court observing that they were staying separately which was factually incorrect. It was also submitted that once the incident was established and the High Court confirmed the finding of guilt against the mother in law as well as husband of Anju Devi, there was no reason to interfere with the order of conviction in respect of other

accused. It was, therefore, submitted that the appeal deserves to be allowed by restoring the order of conviction and sentence recorded by the trial Court.

11. The learned Counsel for the respondents, on the other hand, submitted that reasons recorded by the High Court for acquitting accused Nos. 3 to 5 cannot be said to be illegal nor were based on irrelevant or extraneous grounds. And hence, even if this Court feels that two views are possible, a view which favours the accused rather than which goes against them, should be adopted. When the appellate Court on re-appreciation of evidence extended benefit of doubt in favour of three accused, it cannot be said that by taking such view, the High Court had not acted legally or reasonably. It was, therefore, submitted that to that extent, the order of the High Court needs no interference.

12. So far as conviction of Jolly Singla- accused No. 1, husband of deceased Anju Devi and Reshma Devi, mother-in-law of Anju Devi are concerned, the High Court has confirmed their conviction and there is no appeal on their behalf. The question with regard to their conviction and sentence is not the subject matter before this Court.

13. As far as respondent No. 2 Jolly Singla, husband of deceased Anju Devi is concerned, the High Court stated that he has already undergone the sentence and hence, the appeal so far as accused No. 1 is concerned, had virtually become infructuous. It was, therefore, submitted that the present appeal deserves to be dismissed.

14. The learned Counsel for the State also supported the order passed by the High Court.

15. Having heard the learned Counsel for the parties, in our opinion, the appeal deserves to be partly allowed. So far as acquittal of accused Nos. 3 to 5 is concerned, in our view, the learned Counsel for the respondents is right in submitting that on re- appreciation of evidence, the High Court held that since they were staying separately, it could not be proved beyond reasonable doubt that they were also party to the act in question and hence benefit of doubt was given to them.

16. We see no infirmity in the reasoning of the High Court as also the conclusion arrived at. We, therefore, see no ground to interfere with that part of the order of acquittal recorded by the High Court so far accused Nos. 3 to 5 is concerned.

17. The High Court, in our opinion, was right in dismissing the appeal filed by accused No. 1-husband and accused No. 2-mother-in-law of deceased Anju Devi and in confirming the order of conviction and sentence.

18. In our opinion, however, the High Court was wrong in observing that the respondent No. 2 herein (accused No. 1) husband of Anju Devi had already undergone the sentence. From the evidence, it is clear that the incident in question took place on March 14, 2000 and the High Court decided the matter on October 30, 2006. Hence, even if we take the first day, i.e. date of offence and the last day, i.e. the date of judgment by the High Court, even then seven years were not over. Seven years from the date of incident would be over only on March 13, 2007.

19. The High Court, in the impugned judgment, observed as under;

From the above discussion, I am of the view that prosecution case against accused-appellants Vinod, Rajesh and Kiran for the offence under Section 304B IPC is not proved beyond doubt. They are entitled to acquittal and are acquitted. Jolly Singla happens to be husband and Reshma Devi is mother-in-law of the deceased. They were residing together with Anju, deceased. Appeal field by them is dismissed. Jolly Singla is stated to have already undergone imprisonment and released.

(emphasis supplied)

20. From the above observations, it is clear that before the High Court, it was "stated" on behalf of the husband that he had already undergone the imprisonment and was released. When we asked the learned Counsel for respondent No. 2 as to how the High Court recorded the above finding, he could not give satisfactory reply on what basis it was stated before the High Court that accused No. 1- husband had already undergone imprisonment and was released. We, therefore, asked the learned advocate for the State of Punjab to file an affidavit stating the basis of the statement and release of accused No. 1. Such affidavit was filed on behalf of the State and the learned Government Pleader stated that it was as per the Order dated August 14, 2002 issued by the Government of Punjab, Department of Home affairs and Justice (Jails Branch) that accused No. 1 was treated as having undergone imprisonment for seven years. A copy of the said order was also produced along with the counter-affidavit.

21. The Order was issued by the Government of Punjab in exercise of power conferred by Section 432 of the Code of Criminal Procedure, 1973 and Article 161 of the Constitution. Clause A provides for remission of sentence of imprisonment for life in certain cases. It is, however, expressly stated that the benefits referred to in that part of the Order would not apply to certain cases. The said head reads thus;

These benefits are not admissible in the following cases.

Sub-clause (vii) of that part deals with offences under Section 304B, IPC, i.e. a dowry death.

22. It is, therefore, clear that in case of dowry death, an offence punishable under Section 304B, IPC, the benefit of remission of Government Order does not apply. If it is so, in our opinion, the benefit could not be granted to respondent No. 2-husband. Hence, even if accused No. 1 or accused No. 2 had been released before completion of seven years, such action could not be said to be legal and lawful. If it is so, obviously, the appeal deserves to be allowed to that extent.

23. For the foregoing reasons, the appeal deserves to be partly allowed and is allowed by directing respondent No. 2 Jolly Singla to surrender to custody and to remain in jail for a period of seven years which he had to undergo as per the order of the trial Court. If such benefit is granted to accused No. 2, she also had to surrender to custody till the period of seven years is over.

24. The appeal is accordingly allowed to the above extent.

Citation: 2009(2)ALD(Cri)250, 2009((3))ALT(Cri)334, 2009CriLJ2995, JT2009(7)SC361, 2009(5)KarLJ613, RLW2009(2)SC1523, 2009(7)SCALE482, (2009)13SCC34,

[2009]7SCR817


Criminal Appeal No. 341 of 2006


Appellants: Gurunath Donkappa Keri and Ors. Vs.

Respondent: State of Karnataka

Hon'ble Judges: S. B. Sinha and Cyriac Joseph, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: K.V. Vishwanathan, Shekhar G. Devara, Rohit Pandey and Dinesh Kumar Garg, Advs

For Respondents/Defendant: Sanjay R. Hegde, A. Rohen Singh and Amit Kr. Chawla, Advs.

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code - Sections 143, 147, 148, 149, 302, 307, 324 and 504; Criminal Procedure Code (CrPC) - Section 164; Constitution of India - Article 161

Prior History: From the Judgment/Order dated 11.08.2005 passed by the Hon'ble High Court of Karnataka, Bangalore in Criminal Appeal No. 1254/2002

Disposition: Appeal dismissed

Case Note: Criminal — Conviction — Appellant charged for offences punishable under Sections 143, 148, 307, 302, 504 read with Section 149 of the Indian Penal Code, 1860 — Hence Appeal

Held, Once the genesis of the occurrence is proved, contradictions which are minor in nature would not be sufficient to dispel the entire prosecution case — Evidences brought on record by the prosecution, only because other witnesses have turned hostile, the same should not by itself be a ground for coming to a conclusion that the incident had not taken place — Appeal dismissed [para 24, 30]

JUDGMENT

S.B. Sinha, J.

1. Appellants are before us aggrieved by and dissatisfied with a judgment dated 11th August, 2005 passed by a Division Bench of the High Court of Karnataka, Bangalore in Criminal Appeal No. 1254 of 2002 affirming the judgment passed by the Presiding Officer, Fast Track Court and Additional Sessions Judge, Belgaum in S.C. No. 97/1996 convicting accused Nos. 1 to 6, 10 and 13 for offences punishable under Sections 143, 148, 307, 302, 504 read with Section 149 of the Indian Penal Code (hereinafter referred to as the `Code') and sentencing them to undergo rigorous imprisonment for three months for the offence punishable under Section 143 read with Section 149 ; six months under Section 148 read with Section 149 of the Code ; rigorous imprisonment for life for the offence under Section 302 read with Section 149 of the Code and six months under Section 504 read with Section 149 of the Code. All the sentences were, however, directed to run concurrently.

2. The incident in question took place at about 1400 hours on 5th October, 1995 at the Bus Stand of Village Yadawada wherein three persons, namely - Venkappa Laddi ; Vittal Laddi and Vittal Harijan were killed. Originally the first information report in relation to the said incident was lodged by PW-11 Mohammad Haji Khajamia against 13 persons, namely, - Donkapa Venkapa Keri (A-1), Shrimant Donkappa Keri (A-2), Gurunath Donkappa Keri (A-3), Ashok Donkappa Keri (A-4), Hanamant Donkappa Keri (A-5), Govindgouda @ Goundappa (A-6), Maruti Gurusidda Dabaji (A-7), Kallapa Mayappa (A-8), Ramappa Siddagouda (A09 Subhash Donkappa (A-10), Iqbal @ Ayub Mohamadisaq (A-11), Iswhar Shivalingappa (A-12) and Basu @ Bassapa Govindappa (A-13). .Donkappa Venkappa Keri (A-1); Shrimant Donkappa Keri (A-2). Out of them Ramappa Siddagouda, (A-9) died pending trial. Accused Nos. 7, 8, 11 and 12 were acquitted by the trial court.

A judgment of conviction and sentence was recorded by the learned trial court against eight persons being A-1 to A-6, A-10 and A-13.

All the aforementioned accused persons preferred appeals before the High Court. A-1 died while in custody. A-2 is said to have committed suicide during the pendency of the appeal.

By reason of the impugned judgment the High Court acquitted A-5, A-6 and A-13. It may also be placed on record that A-5 was released under Article 161 of the Constitution of India. Before us are A-3, Gurunath Donkappa Keri ; A-2, Ashok Donkappa and A-10, Subhash Donkappa Keri.

3. The first information report was lodged at about 1730 hours by PW-1 Shivappa Vishni Keri. The distance between the place of occurrence and P.S. Kulgod is said to be about 16 kms. The first informant and the accused persons are cousins. Deceased No. 1 and 2 were maternal uncles of PWs-1 and 2. Deceased No. 3 is said to be one of the servants of the deceased Nos. 1 and 2.

4. The deceased were residents of Neralgi Village. PWs. 1 & 2 and the accused had their ancestral properties in the said village. Although the family was separated, some boundary dispute existed in respect of their lands. Land of PWs 1 & 2 was adjacent to the land of the accused. Some trees on the boundary wall on the land of accused and PWs. 1 & 2 resulted in disputes; both parties having filed civil suits in relation there to.

5. On 31st October, 1995 while PW-2 was plucking coconuts from the tree standing on the disputed land, some of them fell on the lands of the accused. Accused No. 1., accused No. 8, his wife, and accused No. 5, were alleged to have taken away the said coconuts claiming the same to be belonging to them.

A quarrel ensued. With a view to get the said dispute settled, PW-1 is said to have called his maternal uncles, deceased Nos. 1 and 2 and requested them to resolve the same. The prosecution case proceeded on the basis that on 4th October, 1995 deceased Nos. 1 and 2 accompanied by their servant deceased No. 3 and PW-3, a relation of both, came to the village Yadewade in the morning. They approached the village elders - Ishwar Mahadevappa Katti (PW-20) and Shivappa Bailappa Chikkanavar (PW-21) for settlement of the dispute. Accused Nos. 1 to 5 were summoned. Accused No. 1 and PW-1 were present in the talks for settlement. A suggestion was mooted with regard to settlement of dispute between the parties. To that Accused No. 1 expressed his intention to consult his children viz. Accused Nos. 2 to 5.and 10. He left the place for the said purpose. When he did not return back within a reasonable time, having regard to the time gap, PW1 and PW-2, deceased and his people went to a tea shop belonging to Shankarappa Ramanna Chippalakatii (PW-9) to have tea. While they were taking tea, the accused persons consisting of as many as 13 people arrived at the spot by a tempo trax, holding out that the persons who wanted to settle the matter should not be allowed to do so and attacked on them. Deceased Nos. 1 and 2 were attacked first while the third deceased who had come to help the others was also assaulted. When the village people started arriving all the accused ran away. The three deceased and one Siddappa Basappa Nagalagi were taken to Primary Health Centre of the Village. Dr. Siddramappa (PW- 25), of the said Primary Health Centre noticed the injuries on the deceased and referred them to Civil Hospital, Belgaum. The deceased thereafter were taken to Belgaum Hospital. At the said hospital they were declared dead.

6. In the meantime a report was scribed by PW-2. PW-1 took the same to the police station and a first information report was recorded bearing No. 90 of 1995 under Sections 143, 148, 307, 302, 504 read with Section 149 IPC.

7. Before the learned trial Judge forty witnesses were examined on behalf of prosecution. Concededly except PWs. 1, 2 & 3 all other witnesses including PWs 4 to 14, 17-20, who were eye witnesses and PW32 who was a panch witness were declared hostile. Indisputably a judgment of conviction and sentence as against the appellants were recorded by the learned trial Judge as also the High Court only on the basis of the evidence of PWs. 1 to 3.

8. Appellants before us do not deny or dispute the occurrence of the incident. Death of three persons also stands admitted.

9. Mr. K.V. Viswanathan, learned Counsel appearing on behalf of the appellants in support of this appeal would raise the following contentions:

I) PWs 1, 2 & 3 being closely related and they, being inimically disposed of towards the appellants and, thus, being interested witnesses should not have been relied upon by the courts below.

II) There being a large number of contradictions in their depositions, the evidence of PWs 1-3 does not inspire confidence.

III) PW-3 having not been named in the first information report, no reliance could be placed upon his evidence. Even the doctor in his register and other documents did not record the names of the said prosecution witness.

IV) The weapon of offence allegedly carried by the appellants being axe; their deposition in court that assault took place with sticks, clearly demonstrates that they were not the eye witnesses to the occurrence..

V) Exhibits P-29 and P-33 being medical certificates having not contained names of any of the four persons, including PW-3, who allegedly shifted the deceased and the injured to Primary Health Centre, the prosecution must be held to have failed to prove its case.

VI) In the hospital register, the nature of the weapon used or the names of the culprits do not find place, which creates a suspicion in regard to participation of the appellants in the commission of the crime.

VII) If PW-3 was an eye witness his name should have been mentioned in all those medical certificates.

VIII) For want of mentioning the mode of transport which is said to be a tractor and the name of PW-3 in Ext.P-1 and Exts. P-29 to P-33, it is difficult to believe that he was an eye witness.

IX) The clothes which were being worn by PWs. 1 and 2 said to be stained with blood having not been seized, the same, gives rise to a suspicion they in fact shifted the deceased to the Primary Health Centre.

X) In view of the contradictory statements with regard to the question whether PW-1 or PW-2 had in fact gone to Village Primary Health Centre, the prosecution story becomes doubtful.

XI) The presence of accused No. 1 with PW-1 having not been supported by the Panch witnesses, it is doubtful as to whether accused No. 1 came to his house to consult his sons and after sometime went back with other accused to assault on the three deceased and the party.

XII) The depositions of PWs. 1 and 2 on their plain reading would be found to be having parrot like statements, no reliance can be placed thereupon.

XIII) As on the same set of evidence A-7, A-8, A-11 and A-12 were acquitted by the trial court and A-5, A-6 and A-13 by the High Court, it would not be safe to convict and sentence the appellants on the basis of the contradictory version of the prosecution witnesses..

XIV) The first information report was lodged after a long time and as such the prosecution story should not be accepted.

XV) The motive alleged by the prosecution arising out of a dispute on a trivial issue ordinarily would not give rise to an occasion of murder of the three persons.

10. Mr. Sanjay R. Hedge, learned Counsel appearing for the State, on the other hand would, contend:

I) PWs 1 to 3, although are related to each other, they being natural witnesses and their testimonies having not been shaken in essential details, the court below could not be said to have committed any error in passing the impugned judgments particularly when they being closely related to the accused, would not unnecessarily implicate them.

II) Although PWs. 1 and 3 in their evidence have stated the weapons of offence as sticks whereas in the first information report, they were mentioned as axe, their evidence cannot be disbelieved, more so when some incised wounds were found on the persons of the deceased.

III) The motive for killing of the three persons is evident as it has been brought out on record from the deposition of PW-19 that the accused party had clearly stated that as PWs. 1 and 2 had brought their maternal uncles for the purpose of resolution of dispute, they would not let them go and finish them.

IV) Non-mentioning of the names of the witnesses who had brought the deceased to the Primary Health Centre and later to the Civil Hospital, Belgaum is not material as the doctors must be busy in attending the patients immediately and naturally they would not pay any attention to the persons who brought them or record their statements or names.

V) Non-mentioning of the mode of transport and name of PW-3 must be held to be an omission of a minor nature as ordinarily such details are not necessarily to be recorded in contemporaneous documents.

VI) Non seizure of the blood stained clothes worn by PW-1 and PW-2 must also be viewed as a minor error on the part of the Investigating Officer.

VII) On a proper reading of the evidence of PW-2, it would appear that before the Village elders not only A-1 but also PW-1 was present and from the shop/residence of Shivappa Bailappa Chikkanavar (PW-21) they went to a tea shop.

VIII) Even the witnesses who had turned hostile in their deposition before the Court conceded that the incident had taken place near the tea shop, goes to show that they supported a part of the prosecution case with regard to the place of occurrence.

IX) The first information report having been lodged within 2 = hours at Kulgod Police Sation, which is at a distance of 16 kms. the truthfulness of the prosecution case cannot be doubted.

X) In the first information report the name of PW-1 could not have mentioned as regards the death of the three deceased as they were sent to Civil Hospital, Belgaum in injured conditions and the factum of the death of all the three persons was not known.

XI) It is not correct to contend that the dispute was on a trivial issue, namely collection of few coconuts by A-1, A-8 and A-5 accused No. 1, but it was a longstanding boundary dispute.

11. A holistic approach, in our opinion, is required to be taken in a case of this nature.

The first information report, having regard to the distance between the place of occurrence and the police station cannot be said to have been lodged after a long delay. The incident took place at about 2 O' clock in the afternoon. It must have continued for sometime. The mental condition of the prosecution witnesses can be well imagined. They had to arrange a transport to take three persons who were severely injured to the hospital particularly when one of them had suffered grievous injuries. They were taken to the Primary Health Centre of the village.

12. Dr. Siddramappa, PW-25, noticed the following injuries on the deceased:

DECEASED VITTAL TIMMAPPA LADDI

1. Laceration injury in left side of parietal region, 3" x 2".

2. Abrasion in on left side of forehead and left temporal region.

3. Lacerated wound in occipital region 3 in number 1 1/2" x 1" x 1/2" ; 1" x 1/4" x 1/4" ; 1/2" x 1/2" x 1/2".

4. Abrasion on left side of knee.

DECEASED VENKAPPA TIMMAPPA LADDI

1. Two vertical 8" x1" contusions on right posterior oxillary line 1" apart from each other.

2. Two parallel vertical 6" x 1" reddish contusion left part of oxillary line on body.

3. Contusion injury in the back on left scapular region roundish.

4. Laceration injury in the frontal region 3" x 2" x 1".

5. Laceration injury in the left side of temporal region 4" x 2" x 1".

6. Laceration injury in the occipital region 2" x 1" x 1 1/2".

DECEASED VITTAL YALLAVVA HARIJANA

1. Bruise cum laceration in the occipital region 2" x 1" x 2".

2. Injury seen on left lower limb at the junction of upper 2/3rd and lower 1/3rd looks like fracture of both bones.

3. Lacerated injury in the parietal region 2" x 2" x 1".

The doctor was of the opinion, keeping in view the infrastructure available at Primary Health Centre, that they could not have been properly treated. They were, thus, advised to take them to Civil Hospital at Belgaum. The distance between the village and Belgaum is also considerable.

13. The post-mortem reports of the three deceased show the nature of injuries suffered by them. We may reproduce the same heretobelow:

DECEASED VITTAL TIMMAPPA LADDI –

1. Sutured wound left parietal area 3" in length.

2. Abrasions covering left 1/3rd of forehead and left temporal area blackish in colour.

3. 3 wounds on the occipital area as shown in the figure 1 1/4" x 1" ; 1" x 1/4" and 1/2" x 1/4:, blood dot bone exposed. in on left side of forehead and left temporal region.

4. Abrasion left knee 1" x 1 1/4".

DECEASED VENKAPPA TIMMAPPA LADDI

1. Two parallel, vertical 8" x 1"contusion reddish in colour on right post axillary line 1" apart on back.

2. Two parallel, vertical 6* x 1" reddish contusion on left post axillary line on back.

3. Defused contusion on the back.

4. Sutured wound from frontal hair line in the centre extending upwards 2 1/2" - incised, bone deep wound.

5. Sutured wound in occipital region, irregular 2" x 1/4" - lacerated wounds.

6. Parallel to injury. No. 5 bone deep sutured wound 2" in length lacerated.

7. Parallel to injury No. 6 bone deep sutured wound 1" - lacerated.

8. 2 1/2 long bone deep sutured wound on left fronto parietal region. Injury Nos. 4, 5, 6, 7, 8 clotted blood present.

9. Dark brown colour contusion on a dorsum of the right hand 2" x 1/4" Posterior laternal aspect of right arm, 1/2 x 1/4"

10. Contusion bridge of the nose.

11 Multiple dark brown abrasions of forehead ranging from 4 cm to 2/ 1/2 = cms.

12. Lacerated wound on mid shin lt. leg 1" x 1/2"

13. Contusion, anterior aspect of left knee 1/2" X 1/4".

14. Before coming to the police station, PW-1 got the first information report scribed by PW-2 who is a graduate in Science. He wrote the same in English. That must have also consumed some time. It was in the aforementioned circumstances that the first information report was lodged at the Police Station within a period of 2 = hours from the time when the incident had taken place; the police station being at a distance of 16 kms from the village.

We, therefore, do not find that any delay at all was caused in lodging the same.

15. The evidence of PW-34, that only PW-1 was present at the time of recording of the first information report is of no consequence.

Admittedly PW-1 was the first informant. The Head Constable could not have remembered as to who else had come with him. He could have refreshed his memory on the basis of the first information report alone.

It is true that whereas in the first information report the overt act on the part of the appellants was said to have been caused with axe, in their depositions no prosecution witness stated that overt act was caused with bamboo sticks.

16. The deceased were seriously injured. It is, therefore, not expected of PW-25 to record in detail the names of the persons who had brought them to the Primary Health Centre or the transport in which they were brought. Their condition was serious. Naturally the first concern was to see that the available medical aid is provided to them so that they could reach Civil Hospital, Belgaum as early as possible. The priority of the doctor would be to save the lives of the injured and not to make entries. Furthermore there was not only one injured, there were three persons who had suffered grievous injuries. The doctor was also required to notice the number of injuries suffered by them. He did so.

17. PW-25, Dr. Ashok, who conducted the postmortem examination on the dead body of deceased Venkappa Laddi opined that the death was due to head injuries. Dr. Sycheta Manohr,

PW-26, who conducted the postmortem examination on the dead body of Vittal Thimappa Laddi stated the cause of death of the deceased as coma secondary to injury to the vital organ. Dr. Vijyvithal, PW-29, who conducted the postmortem examination of the dead body of Vittal Harijan opined that the death was due to coma as a result of negugin shock secondary to fracture skull, haemotoma brain and laceration of left temporal lobe of brain.

Each of the deceased also appears to have suffered one incised wound. 18. PW-34, PI.S. registered the case. He recorded the statements of PWs. 1, 2, 8, 9, 10, 17, 18, 20, 21 and 24. He drew the map of the place of occurrence.

The investigation in the case was completed by C.P.I. Sangangouda Shivangouda Patil, PW-40.

19. We may notice the evidence of PWs. 1, 2 and 3 in regard to the overt acts committed on the deceased.

In the first information report it is stated:

Subhash hit with axe twice on the head of my uncle Vittal Laddi. He fell down and in fear we started running. My uncle Venkappa was chased by two persons of Gataprabha, caught him and Gurunath assaulted Venkappa by hitting on the head with the axe twice. And Srimantha hit twice with axe on the head of Venkappa and two persons from Ghataprabha held tightly Vittal Harijana, and Ashok assaulted Vittal with axes on the head. Then he fell down and Donkappa with his cane hit him on his left knee, and Hanumantha and Govindappa assaulted Shivappa Savalagi with hatchets on his head and other parts of the body.

PW-1 in his deposition stated:

That had come there assaulted Vithal Harijan with a Bidaria stick on his head and then the deceased Venkappa Laddi tried to run by getting down the steps towards the Nala being afraid of the accused, and A. Nos. 2, 3 and a person from Ghp. assaulted Venkappa Laddi with stick on his head, and Venkapa Laddi fell down sustaining injuries on his head and fell down on the ground.


Then myself and PW-1 went by the side of the liquor shop and when my mother's younger brother Venkappa Laddi was going towards the Nala A. Nos. 2, 3 and 2 persons of Ghp wearing Dhoti followed them and A. Nos. 2 and 3 assaulted with sticks on the head and leg of Venkappa Laddi.


A. Nos. 2 and 3 and 2 persons who were wearing dhoti assaulted Venkappa Laddi, who was running towards the Nala. And when he was 2 step down, he was assaulted by them with sticks on his head, and on receiving the bleeding injuries, he fell down unconscious.

20. Except contending that depositions of PWs 1 to 3 are tutored ones and they had made parrot like statements, Mr. Viswanathan has not been able to show before us that the depositions of three witnesses had been shaken in cross-examination in essential particulars. A longstanding The boundary dispute between the parties is not denied or disputed. The fact that the deceased were called for by the prosecution witnesses is also not denied or disputed. Their presence in the village is accepted.

21. The possibility that some of them were carrying axe and some of them lathis cannot be ruled out. Even the blunt portion of axe can produce the same nature of injuries.

22. We are also not in a position to accept the submission of the learned Counsel that motive to commit the overt act must be disbelieved. The parties were on litigating terms. They had filed suits against each other. Boundary dispute between them was an old one. It may be true that quarrel started on collection of a few coconuts which fell on the land of the accused but they were collected on the premise that some coconut trees were within their own land.

23. PW-1 in his evidence clearly stated that coconut trees were standing on their land whereas as per the testimony of PW-2 and PW-3 they were standing on the bandh. The very fact that there existed a boundary dispute must have prompted PWs. 1 and 2 to call their maternal uncles.

24. There is overwhelming evidence on record to show that the incident had taken place in the village.

Once the genesis of the occurrence is proved, it is now well-settled, contradictions which are minor in nature would not be sufficient to dispel the entire prosecution case. It is true that all the three prosecution witnesses who have been relied upon by the courts below are interested witnesses. It must, however, be borne in mind that despite existence of their animosity, keeping in view the relationship between the parties, it is unlikely that they would be falsely implicated.

25. We have noticed hereinbefore the manner in which the entire incident had taken place. Prosecution witnesses intended that the disputes between them should be settled through mediation. It is only with that intent in view they brought the deceased to their own village so that the village elders may intervene in the matter so as to end their longstanding disputes.

The reason for attack on the deceased, as revealed by PW-2, is that as they had brought their maternal uncle to resolve the dispute, they would not let them go and finish them. Almost to the same effect is the statement of PW-9.

An effort had been made even by the village elders. Various options must have been given to the accused persons. One of the options which was given to the accused was to quote from the deposition of one of the prosecution witness, was "It is true, that we the elders told both the sides to settle the matter either by giving some portion of the land, or by taking some portion of the land". Accused No. 1 being the head of the family intended to consult his children only to know their view-points so that further negotiations may take place. They had gone to a tea shop for taking a cup of tea. They never expected that they would be attacked by the accused persons.

They evidently did not comprehend that the deceased would be subjected to attack in the manner in which it was done.

26. All the prosecution witnesses are natural witnesses. The essential ingredients to prove the crime against the accused have categorically been stated by them. Both the courts below have placed implicit reliance on their testimonies.

Our attention has not been drawn to any major contradiction in the deposition of the witnesses so as to disbelieve the entire prosecution case. The very fact that they had been taking the deceased who were grievously injured at that point of time from hospital to hospital is itself a pointer to show the state of mind they were having at the relevant time. It is, therefore, too much to expect that they would not only state the details of the manner in which the occurrence had taken place but also the names of all the persons who witnessed the same.

27. It is not the requirement of law that the doctors, even before admitting the injured or during their treatment, must note down every bit of details of the incident or names of the witnesses in the registers maintained by them. If the doctors were engaged in discharge of their primary duty, viz., attending to the patients, we are of the opinion that only because in the registers the name of PW-3, who is said to have shifted them to the hospital, had not been mentioned by itself can be a ground for not relying on his testimony in support of the prosecution case. Such details are not necessarily recorded in the contemporaneous document. In any event, the purported discrepancies in the evidence of the prosecution witnesses as to who had shifted the injured to hospital or the mode of transportation, is minor in nature. For the self-same reason, only because his name was not mentioned in the First Information Report, may not itself be sufficient to discard his evidence particularly in view of the fact that whereas PW-1 went to the police station to lodge the First Information Report, services of PW-3 and others must have been taken for the purpose of shifting the deceased and injured to the hospital.

28. Mr. Viswanathan pointed out that blood-stained clothes of the witnesses were not seized. Even if it is accepted, the same merely points out an error on the part of the investigation officer. The same, by itself, is sufficient to discard the entire prosecution case.

Statements of PWs 1 and 2 as regards the name of the person who had gone to village in question to bring the deceased cannot be said to be decisive. Attention of the witnesses was not drawn to their earlier statements in cross-examination. Furthermore, the evidence that the deceased had come to the village for the purpose of resolution of dispute being consistent, it is difficult to disbelieve it. It is absolutely consistent in nature.

29. Submission of Mr. Viswanathan that, on the one hand that PWs 1 and 2 had contradicted themselves as to who had gone to the Village Primary Health Centre and at the same time his submission that they had been making the comments that they had been tutored do not go together. It is evident from the evidence of the prosecution witnesses that for the purpose of holding negotiations PW-1, on the one side and the Accused No. 1 from the other were present. It was only after the suggestion for the purpose of resolution of the dispute had been given, they had come to the tea stall.

It is true that PW-7, the owner of the tempo trax, turned hostile. The said witnesses, however, conceded that some incident had taken place near the tea shop. Some transport must have been used for taking them to the hospital. The statement of PW-7 had also been recorded under Section 164 of the Code of Criminal Procedure. He, however, as noticed, turned hostile.

30. Having regard to the evidences brought on record by the prosecution, we are of the opinion that only because other witnesses have turned hostile, the same should not by itself be a ground for coming to a conclusion that the incident had not taken place near the shop of PW-9.

31. It is also difficult to accept the argument of Mr. Viswanathan that only because Accused Nos. 7, 8, 11 and 12 have been acquitted, the same by itself should be a ground for recording a judgment of acquittal of the appellants.

32. Submission of Mr. Viswanathan that the prosecution has failed to show as to why a First Information Report was recorded under Sections 143, 147, 148, 324, 504 read with Section 149 of the Indian Penal Code which would go to show that the deceased was alive till 1730 hrs, cannot be accepted. They were being taken to the Civil Hospital, Belgaum. When the First Information Report was being recorded, the deceased were on their way to Civil Hospital, Belgaum. The factum of their death was, thus, not known to PW-1.

33. For the reasons stated hereinbefore, we are also not in a position to agree with the submission of Mr. Viswanathan that motive alleged being a trivial one, the prosecution case should not be believed as the dispute being related to boundary of agricultural fields, the parties were on litigating terms for a long time.

34. For the reasons aforementioned, there is no merit in this appeal, which is dismissed accordingly.

Citation: AIR1987SC2225, 1988(36)BLJR251, 1988CriLJ193, 1987(3)Crimes392(SC),

JT1987(3)SC418, 1987(2)SCALE402, (1987)4SCC296, [1987]3SCR1107


Writ Petition (Criminal) No. 669 of 1986


Appellants: Jai Prakash and Ors. Vs.

Respondent: State of Haryana and Ors.

Hon'ble Judges: A. N. Sen and B. C. Ray, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: R.K. Jain, R.P. Singh and Rakesh Khanna, Advs

For Respondents/Defendant: S.C. Mahanto, C.V.S. Rao and Mahabir Singh Advs.

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code - Section 302; Constitution of India - Article 161

Case Note: Criminal remission Section 302 of Indian Penal Code, 1860 petitioners assailed letter intimating to Superintendent of jail as to exclusion of convicts from remission system convicts who were on parole from jail granted remission on condition that they surrender after expiry of parole period for undergoing unexpired period of their sentence appellants did not surrender immediately but after two months cannot be said that appellants entitled to remission as envisaged in Government Order petition liable to be dismissed.

JUDGMENT

1. The petitioners who are life convicts in this writ petition have assailed a D.O. Letter No. 4665/1983-GI/G4/R. 10-84 dated 24.4.1985 issued by the respondent No. 3, Inspector General of Prisons, Haryana, Chandigarh intimating to the Superintendent of Jail that convicts who are on bail and whose sentences are suspended, are excluded from the remissions systems in view of the provisions of Section 637 of the Punjab Jail Manual on the ground that the aforesaid letter purports to deprive the petitioners from the benefit of remissions of 19 months and 12 days granted to them during the period they were on bail, while counting the total period of sentence

including remissions undergone by them in order to consider their cases of pre-mature release from imprisonment.

2. The petitioner No. 1, Jai Prakash was convicted by the District and Sessions Judge, Bhiwani, on December 4, 1975 under Section 302 of the Indian Penal Code and he was awarded life imprisonment. Against this judgment and order of the Sessions Judge he preferred an appeal before the High Court of Punjab and Haryana and he was granted bail on 12.1.1976. This appeal, however, was dismissed on 28.9.1978 and he was arrested on 29.1.1979 while he was going to the Court to surrender himself to serve out the remaining part of the sentence as stated by him. The petitioner has stated that during the period he was on bail he earned remission of 19 months and 12 days.

3. Similarly, the petitioner Nos. 2 to 5 were also convicted by the District and Sessions Judge, Bhiwani, on 23.3.1976 in a case under Section 302 of the Indian Penal Code and they were awarded life imprisonment. Petitioner Nos. 2 to 5 were directed to be released on bail by the High Court of Punjab and Haryana during the pendency of their appeal by order dated 7.4.1976. The appeal was however dismissed by the High Court on 8.12.1978 and they surrendered themselves before the Magistrate on 16.2.1979 for serving out their remaining part of sentence. The petitioner Nos. 2 to 5 were also given remissions of 19 months and 12 days during the period they remained on bail.

4. It has been stated that though all the petitioners were given remissions of 19 months and 12 days and they were under the impression that the period of remission earned by them would be taken into consideration under para 637 of Punjab Jail Manual while computing their sentence under Para 516-B of the Punjab Jail Manual. They have now been informed by the respondent No. 3 as per his letter dated 24.4.1985 addressed to the Superintendent, District Jail, Bhiwani, respondent No. 2, that the convicts who were on bail and whose sentences were suspended would be excluded from the remissions purported to be earned by them while they were on bail. The petitioners have submitted that a number of prisoners to whom remissions were given during the period when they were on bail were also released by the State Government after taking into consideration the remissions granted to them during the period when they were on bail or that their sentence had been suspended. Names of six persons were mentioned in the petition who were pre-maturely released. It has been submitted on behalf of the petitioners that they are entitled to have their period of remissions earned by them during the period they were on bail, to be taken into account for consideration of their pre-mature release under para 637 of the Punjab Jail Manual. It has been further submitted that the aforesaid letter issued by the respondent No. 3 laying down guidelines and instructions to respondent No. 2, that is Superintendent of District Jail, Bhiwani, is contrary to the provisions contained in para 637 of Punjab Jail Manual. The petitioners have also stated that since they surrendered themselves before the jail authority after dismissal of their appeals by the High Court they are entitled to have the period of remissions earned by them to be counted while considering the total period of sentence undergone for their premature release.

5. A counter-affidavit affirmed by the Superintendent of District Jail, Bhiwani has been filed. It has been stated therein that no remission of period of sentence is permissible under paragraph 637 or any other provision of the Punjab Jail Manual (as applicable in Haryana) for the period

that the convict remains on bail or his sentence is otherwise under suspension. Even the benefit of special remissions allowed to convicts under State Government orders on visits of the Hon'ble Minister for Jail (though such orders did result in anomalous situations and on the basis of experience the Government is inclined to restrict such orders) cannot be available to the petitioners. It has been further averred that a perusal of the relevant orders of 1977 would show that the orders were applicable to prisoners who had been convicted before the date of visit of the Hon'ble Minister in 1977, were released on bail subsequently and surrendered in the jail for undergoing the unexpired portion of the sentence. The petitioners are not entitled to the benefit claimed as they had not surrendered in the jail for undergoing the remaining period of the sentence. The appeal of petitioner No. 1 had been dismissed on 28.9.1978 but he did not surrender for several months. Ultimately, warrants for his arrest were issued by the Chief Judicial Magistrate on 24.1.1979 and he was arrested and sent to jail on 29.1.1979. According to the petitioners' own averments in para 2 of the petition, the other four writ petitioners remained out of jail for more than two months after the dismissal of their appeal. It is evident that they had not surrendered in the jail for undergoing the remaining period of sentence immediately after dismissal of their appeals. It has been further averred that even if any remission had been ordered inadvertently against relevant rules, it is in the interest of administration of justice that the mistake is rectified and not perpetuated by taking father action on its basis. It has also been stated that similar cases of remission earned during the period of bail came up before the High Court of Punjab and Haryana and it was held by the High Court that special remissions were not available to the convicts who had not surrendered voluntarily on the expiry of the bail period. It has been stated further that non-surrender of the convict for several months after dismissal of appeal by itself showed that the surrender was not voluntary and such a convict did not merit the remission and an interpretation different from that would defeat the administration of justice. It has been averred that petitioners could not avail of the remissions ordered erroneously and inadvertently not in accordance with the relevant rules. As regards the six specific cases mentioned, it has been stated that the benefit was given to Tuhi Ram and Dig Ram only but not in the cases of the other four convicts referred to in the petition. They were denied the benefit as it is being done to the petitioners.

6. Para 637 of the Punjab Jail Manual which is relevant for consideration of the question raised, is set out herein:

MANUAL FOR THE SUPERINTENDENCE AND MANAGEMENT OF JAILS IN THE PUNJAB

637. 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 the prisoner's sentence: any prisoner who after having been released on bail or because his sentence has been temporarily suspended is afterwards re-admitted 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 on 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 first day of the next calendar month following the appointment of the prisoner as convict warder, convict overseer or convict night watchman.

7. On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been re-admitted in jail will be brought under remission system on the first day of the calendar month next following his re-admission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were under bail, is not at all sustainable. As such the remissions that were inadvertently given to these petitioners cannot be taken into account in considering the total period of sentence undergone by them while considering their premature release from imprisonment under paragraph 637 of the Punjab Jail Manual. It also appears from the order of the Governor of Haryana dated 14th August, 1977 annexed as Annexure 'R1' to the writ petition that the special remission was granted by the Governor of Haryana to only those prisoners who were in confinement on 14th August, 1977 on the occasion of the first visit of the Chief Minister of Haryana to jail and who had been subsequently released on bail. It is pertinent to set out paragraph 2 of the said order:

All those prisoners who have been convicted before the 14th August, 1977 but subsequently released on bail shall be entitled to the remission only if they surrender in the jail for undergoing the unexpired portion of their sentence.

8. The petitioners though convicted prior to 14th August, 1977 that is the date of visit of the Hon'ble Minister to the Jail were granted bail before the said date. As such they are not entitled to the said remission in accordance with the order of Governor of Haryana. Secondly, all these petitioners did not surrender in the jail for undergoing the unexpired portion of their sentences immediately after their appeals were dismissed by the High Court. On the other hand, the petitioner No. 1 whose appeal was dismissed on 28.9.1978 did not surrender either to the jail or to the Magistrate for serving out the remaining part of sentence till he was arrested on 29.1.1979 in pursuance of the warrant issued by the court. The petitioner Nos. 2 to 5 who were released on bail by the High Court during the pendency of their appeal did not surrender in the jail immediately after their appeal was dismissed on 8.12.1978. They surrendered themselves to the Magistrate only on 16.2.1979 to serve out the remaining part of their sentence. As such, it cannot be said that they have surrendered in jail for undergoing their unexpired period of sentence immediately after their appeals were dismissed and so they are not eligible for remissions as envisaged in the said Government order dated 14.8.1977 referred to hereinbefore.

9. It appears that the respondent No. 3, the Inspector General of Police, Haryana, Chandigarh issued a letter being D.O. No. 4665/1983-GI/G4/R. 10-84 dated 24.4.1985 to all Superintendents of Jails including the Superintendent of District Jail, Bhiwani, drawing their attention to paragraph 2 of the letter dated 11/14-1-1985 from the State Government to the Jail Department which is to the following effect:

Attention of all Superintendents of Jails is drawn to para 4 of the Government letter under which Government have affirmed that convicts who are on bail and whose sentences have been suspended are excluded from the remissions systems in view of the provisions of para 637 of the Punjab Jail Manual.

10. This D.O. letter has been annexed as Annexure 'A' to the writ petition. The letter dated 11/14 January, 1985 issued by the Governor of Haryana to the respondent No. 3 is annexed as Annexure 'R5' to the writ petition. The relevant excerpt of it is set out herein below:

It has been decided that such remissions will be granted only in the following cases :

(i) All the convicts, convicted by the civil courts with criminal jurisdiction in the Haryana State and were present in the jails on the date and time of the visit of the Jail Minister or other high dignitaries.

(ii) All the convicts who were on parole/furlough from that jail on the date and time of the visit of the Jail Minister subject to the condition that they surrender at the Jail on the due date after the expiry of parole/furlough period for undergoing the unexpired portions of their sentences.

....

4. Your attention is also invited to para 637 of the Punjab Jail Manual which provides that convicts who are on bail and whose sentence has been suspended are excluded from the remission system.

11. It is clear and evident from this letter that convicts who were on parole from jail on the date and time of the visit of the Chief Minister to the Jail will be granted remissions on condition that they surrender at the jail on the due date after expiry of parole period for undergoing the unexpired period of their sentence. This means that a convict in order to get the benefit of remission as directed by the said order issued under Article 161 of the Constitution of India has to surrender voluntarily at the Jail after expiry of bail. In the instant case, petitioner No. 1 did not surrender in jail or before the Magistrate after his appeal was dismissed by the High Court and the petitioner No. 1 had been arrested under warrant of arrest as he did not surrender in jail after his appeal was dismissed. Petitioners who were on bail also did not surrender immediately after dismissal of their appeal but they surrendered themselves after two months of dismissal of their appeal. In such circumstances, it cannot be said that the petitioners are entitled to the remissions as envisaged in the said Government order dated 11/14 January, 1985. The letter of the respondent No. 3 the Inspector General of Prisons, Haryana, Chandigarh i.e. D.O. Letter No. 4665/1983-GI/G4/R10-84 dated 24.4.1985 is quite in accordance with the Government order made on 11/14 January, 1985 and the respondent No. 3 in fact quoted paragraph 2 of the said letter which contains the necessary requisite for grant of remissions from sentence. The said D.O. letter of the respondent No. 3 cannot therefore be challenged as in violation of paragraph 637 of the Punjab Jail Manual nor it is contrary to the directions contained in the aforesaid order.

12. In the premises aforesaid, this writ petition is dismissed. There will be no order as to costs.

Citation: 2009(1)ACR884(SC), 2009(1)ALD(Cri)671, 2009CriLJ1156, (2009)1GLR876(SC),

JT2008(12)SC580, 2009(1)PLJR198, 2008(16)SCALE145


Criminal Appeal No. 1967 of 2008 (Arising out of SLP (Crl.) No. 1246 of 2008)


Appellants: Kashiben Chhaganbhai Koli Vs.

Respondent: State of Gujarat

Hon'ble Judges: Dr. Arijit Pasayat and Mukundakam Sharma , JJ.

Rucha A. Mayee and Sanjay Visen, Advs.

For Respondents/Defendant: Yashank Adhyaru, Sr. Advs.,

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code, 1860 - Sections 425, 427 and 504; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 - Section 3 and 3(1); Constitution of India - Article 161

Cases Referred: Masumsha Hasanasha Musalman v. State of Maharashtra

Prior History: From the Judgment and Order dated 3.12.2007 of the High Court of Gujarat at Ahmedabad in Criminal Appeal No. 920 of 1996

Citing Reference:


Case Note: Indian Penal Code, 1860 - Section 427--Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989 (S.C./S.T. Act)--Section 3 (1) (v)--Mischief--Wrongful dispossession of member of S.C./S.T. from land--Conviction and sentence -- Whether calls for interference? -- Held, “no”--Sugarcane stems in field of complainant totally destroyed by using tractor--Offence under Section 427, I.P.C. established -- Offence under Section 3 (1) (v) of S.C./S.T. Act also proved to have been committed by appellant--No merit in appeal.

JUDGMENT

Arijit Pasayat, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a learned Single Judge of the Gujarat High Court confirming the conviction of the appellant for offence punishable under Section 427 of the Indian Penal Code, 1860 (in short the `IPC') and under Section 3(1)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short the `Atrocities Act'). Learned Additional Sessions Judge, Surat at Vyara in Special Case No. 19 of 1995 found the accused guilty of offences punishable under Section 427 IPC as well as Sections 3(1)(iv) and 3(1)(v) of the Atrocities Act and sentenced her to rigorous imprisonment for one year and fine of Rs. 500/- with default stipulation for the offence relatable to Section 427 IPC and four years for the offence under the Atrocities Act with fine of Rs. 1,000/-. The two substantive sentences were not made concurrent. It needs to be noted that the appellant was charged with having committed offence under Sections 427 and 504 as well as Sections 3(i)(x) of the Atrocities Act. The trial judge held that the charge under Section 3(i)(x) has not been proved. But held that the appellant has committed offence punishable under Section 427 IPC as well as under Section 3(i)(iv) and 3(i)(v) of the Atrocities Act.

3. Background facts in a nutshell are as follows:

Appellant-original accused was owner of one agricultural land bearing Survey No. 128 of village Paniyari, Taluka Vyara. She agreed to sell the land to the complainant for Rs. 1,45 000/-. Complainant initially paid a sum of Rs. 40,000/- by cheque. He thereafter paid another sum of Rs. 60,000/-, entered into a writing for sale of the land and the appellant agreed to hand over possession of the land in question. As per the complainant, after paying further sum of Rs. 60,000/- he was given possession of the land in question by the appellant. The complainant was cultivating the land and had planted sugarcane plantation therein. He had already taken one crop of sugarcane and had left the field open awaiting for re-growth of the sugarcane plants. On 24th January 1995, the appellant illegally and forcibly entered the land in question, tilled the land with the help of tractors and thereby committed substantial loss of crop to the complainant. It is also the case of the complainant that the appellant used derogatory words against him. It is not in dispute that the complainant belongs to Scheduled Tribe.

The complainant, Kanchhibhai (P.W.1) stated, inter alia, that the appellant had agreed to sell Survey No. 128 of village Paniyari to him for a total sale price of Rs. 1,45,000/ - for which agreement to sell was also entered into. He initially, paid a sum of Rs. 40,000/- by cheque. Upon

payment of Rs. 60,000/- the appellant had handed over possession of the land to him. He had taken water from the Irrigation Department for which he produced proof on record. He had cultivated sugarcane crop on the land and sold the sugarcane to Ukai Region Cooperative Sugar Industry. He left the sugarcane plantation after harvesting for one more crop. He stated that apprehending dispossession, he filed a Civil Suit seeking injunction and the Court had granted ex-parte interim injunction. About 8 to 10 days after the court's injunction, the accused tilled the land. To resolve the dispute, he approached the accused but she did not give any reply. He, therefore, filed a case on 1st February, 1995. He stated that he is infirm and when he had gone to meet the accused, she had used bad and insulting language.

With reference to the evidence of the eye witnesses the trial court found the appellant guilty. In appeal the High Court was of the view that the real question that needed to be answered was whether appellant has committed offence punishable under Section 427 IPC and Sections 3(i)(iv) and 3(i)(v) of the Atrocities Act of which she was held guilty. The High Court after analyzing the evidence held that the ingredients of Section 3(i)(iv) of the Act was not established but as noted above the conviction was to be made in terms of Section 427 IPC and Section 3(i)(v) of the Atrocities Act.

4. In support of the appeal learned Counsel for the appellant submitted that ingredients of Section 427 have not been established. In any event Section 3(i)(v) has to be related with the community and strong reliance is placed on a decision of this Court in Masumsha Hasanasha Musalman v. State of Maharashtra MANU/SC/0124/2000 : [2000]1SCR1155 more particularly para 9 thereof.

5. Learned Counsel for the State on the other hand supported the impugned judgment.

6. Sections 3(i)(iv) and 3(i)(v) of the Atrocities Act read as follows:

3. Punishments for offences of atrocities - (1) Whoever, not being a member of Scheduled Caste or a Scheduled Tribe,

(iv) wrongfully occupies or cultivates any land owned by, or allotted to or notified by any competent authority to be allotted to a member of a Scheduled Caste or a Scheduled Tribe or gets the land allotted to him transferred;

(v) wrongfully dispossesses a member of a Scheduled Caste or a Scheduled Tribe from his land or premises or interferes with the enjoyment of his rights over any land, premises or water.

7. Section 427 IPC reads as follows:

Whoever commits mischief and thereby causes loss or damage to the amount of fifty rupees or upwards shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both.

8. Section 3(i)(v) of the Atrocities Act makes punishable any wrongful dispossession of any members of Scheduled Castes or Scheduled Tribes from his land or premises or interference with the enjoyment of his rights over his land, premises or water.

9. In that view of the matter learned Additional Sessions Judge committed no error in holding that the accused had committed offences punishable under Section 3(i)(v) of the Atrocities Act.

10. PWs. 1, 2 & 3 have proved that the accused had not only interfered with the possession and enjoyment of the claimant over the land, but also damaged the crops thereon.

11. Therefore, the High Court was justified in holding the accused guilty of offence punishable under Section 3(i)(v) of the Act. So far as Section 427 is concerned, the expression "mischief" has been defined in Section 425 IPC to mean an act done with intent to cause or knowing that it is likely to cause wrongful loss or damage to the public or to any person causes the destruction of any property etc. In the instant case the evidence on record clearly establishes that the sugarcane stems in the fields of the claimants were totally destroyed by using a tractor. Therefore, Section 427 IPC is clearly established. The sentence imposed suffers from no infirmity to warrant interference.

12. However, it is submitted by learned Counsel for the appellant that the appellant has suffered from paralysis on the left side of her body since July 2004 and in spite of treatment she is unable to walk.

13. Learned Counsel for the appellant submitted that an application for reduction of sentence shall be made in terms of Article 161 of the Constitution of India, 1950 (in short the `Constitution') before the Governor of the State. We do not express any opinion in that regard. However, in view of the statement made, we direct that for a period of three months the appellant need not surrender.

14. The appeal is dismissed subject to the aforesaid observation.

Citation: 2011(1)ACR527(SC), 2011 1 AWC(Supp)2.59SC, 2010CriLJ4432,

II(2010)DMC503SC, (2010)12SCC121, 2010(3)ShimLC378, 2010(3)UC1381


Review Petition (Crl.) No. 627 of 2009 in Criminal Appeal No. 1731 of 2008


Appellants: Reshma Devi and Anr. Vs.

Respondent: State of Punjab and Anr.

Hon'ble Judges: R. V. Raveendran and D. K. Jain, JJ.

Subject: Criminal

Acts/Rules/Orders: Indian Penal Code - Section 304B; Code of Criminal Procedure, 1973 - Section 432; Constitution of India - Article 161


Casenote: Indian Penal Code, 1860--Section 304-B--Constitution of India, 1950--Article 226--Observation and direction of court--Legality-- Held--As petitioner was not the party and not heard by court therefore no observation could have been made in the judgment and no direction could have been given against him in regard to a matter which was not the subject matter of the appeal--Reviewed the judgment accordingly. [Para--4 and 6] (Editor: The text of the vernacular matter has not been reproduced. Please write to

[email protected] if the vernacular matter is required.)

Ratio Decidendi: "Orders of Courts shall be modified in interest of justice, when factual errors are committed by Courts."

JUDGMENT

R.V. Raveendran, J.

1. Petitioners (accused 2 and 1 respectively) and three others were tried for an offence punishable under 304B of Indian Penal Code (for short, 'IPC') relating to the death of Anju Rani, wife of accused No. 1 - Jolly Singla. Accused No. 2 (Reshma Devi) is the mother of Accused No. 1; third and fourth accused are the brothers of accused No. 1; and fifth accused is the wife of the third accused. The Sessions Court, Patiala by its judgment dated 13.6.2002 convicted all the five accused under Section 304B of IPC and sentenced them to undergo rigorous imprisonment for seven years and pay a fine of Rs. 5,000/- each and in default undergo further imprisonment of eight months. Two appeals were filed against the said judgment - Crl. Appeal No. 992-SB of 2002 by accused Nos. 1, 2, 3 and 5 and Crl. Appeal No. 1012- SB of 2002 by accused No. 4. Both appeals were heard together and disposed of by the Madhya Pradesh High Court by common judgment dated 31.10.2006. The High Court acquitted accused 3, 4 and 5. It dismissed the appeal filed by the accused 1 and 2 (petitioners 2 and 1 herein) and confirmed their conviction and sentence. The High Court while so dismissing the appeal of accused 1 and 2 observed as follows in the operative portion of the judgment:

Jolly Singla is stated to have already undergone imprisonment and released.

Accused-appellant Reshma Devi shall surrender to undergo the remaining sentence. Her bail bonds are cancelled.

2. The said judgment was challenged by the second respondent herein (father of the deceased, the complainant). In the first part of the Special Leave Petition, the State was made the first respondent and accused 1, 3 and 5 were shown as respondents 2 to 4. In the second part of the Special Leave Petition, the State was shown as the first respondent and accused No. 4 was shown as the second respondent. The second accused (Reshma Devi) was not impleaded as a respondent before this Court, presumably because the High Court had affirmed her conviction and sentence and directed her to surrender to undergo the remaining sentence. The appellant before this Court had thus no grievance in regard to the High Court judgment in so far as Reshma Devi (accused No. 2) was concerned.

3. A Division Bench of this Court presided over by C.K. Thakker J., granted leave and allowed the appeals in part by judgment dated 5.11.2008. This Court held that there was no infirmity in the reasoning of the High Court as also the conclusions therein and therefore, there was no ground to interfere with the order of acquittal recorded in regard to accused 3 to 5. This Court also held that the dismissal of the appeal filed by accused No. 1 and accused No. 2 by the High Court by confirming the order of conviction and sentence did not call for interference. This Court however further observed:

In our opinion, however, the High Court was wrong in observing that the respondent No. 2 herein (accused No. 1) husband of Anju Devi had already undergone the sentence..... When we asked the learned Counsel for Respondent 2 as to how the High Court recorded the above finding, he could not give satisfactory reply on what basis it was stated before the High Court that Accused 1 husband had already undergone imprisonment and was released. We, therefore, asked the learned advocate for the State of Punjab to file an affidavit stating the basis of the statement and release of Accused 1. Such affidavit was filed on behalf of the State and the learned Government Pleader stated that it was as per the Order dated 14-8-2002 issued by the Government of Punjab, Department of Home Affairs and Justice (Jails Branch) that Accused 1 was treated as having undergone imprisonment for seven years.

It then examined the said Government Order dated 14.8.2002 referred in the affidavit and held as follows:

21. The order was issued by the Government of Punjab in exercise of power conferred by Section 432 of the Code of Criminal Procedure, 1973 and Article 161 of the Constitution. Clause A provides for remission of sentence of imprisonment for life in certain cases. It is, however, expressly stated that the benefits referred to in that part of the order would not apply to certain cases. The said head reads thus:

These benefits are not admissible in the following cases.

Sub-clause (vii) of that part deals with offences under Section 304B IPC i.e. a dowry death.

22. It is, therefore, clear that in case of dowry death, an offence punishable under Section 304B IPC, the benefit of remission of the government order does not apply. If it is so, in our opinion, the benefit could not be granted to Respondent 2 husband. Hence, even if Accused 1 or Accused

2 had been released before completion of seven years, such action could not be said to be legal and lawful. If it is so, obviously, the appeal deserves to be allowed to that extent.

23. For the foregoing reasons, the appeal deserves to be partly allowed and is allowed by directing Respondent 2 Jolly Singla to surrender to custody and to remain in jail for a period of seven years which he had to undergo as per the order of the trial court. If such benefit is granted to Accused 2, she also had to surrender to custody till the period of seven years is over.

24. The appeal is accordingly allowed to the above extent.

3. Aggrieved by the directions in Paras 22 and 23, accused Nos. 2 and 1 (petitioners 1 and 2) have filed this review petition inter alia contending as follows:

(i) Reshma Devi - Accused No. 2 (petitioner No. 1 herein) had not been impleaded as a party in the criminal appeal filed by the complainant before this Court. Therefore, this Court ought not to have made any observation or order adverse to her interest. Consequently, the observation that "if such benefit is granted to accused No. 2, she had to surrender to custody till the period of seven years is over" is liable to be deleted.

(ii) The Government Order dated 14.8.2002 had been misread by this Court and the observation that the benefits of remission under the said notification was not available to accused 1 and 2 was contrary to the said Government order.

4. There is considerable force in both the contentions. Accused No. 2 (petitioner No. 1) was not a party to the appeal before this Court. But while disposing of the appeal, this Court directed that if she had been granted the benefit under the Government Order dated 14.8.2002, she also has to surrender to custody till the period of seven years is over. Obviously as accused No. 2 was not a party and as she was not heard, no observation could have been made in the judgment of this Court nor any direction could have been given to her detriment, that too in regard to a matter which was not the subject matter of the appeal.

5. We may next consider the second contention with reference to the Government Order dated 14.8.2002. The said Government Order dated 14.8.2002 contains two parts. Part A relates to "Remission of balance of sentence of imprisonment for life as on 15.8.2002" in regard to four categories of prisoners. The Government order provides that the benefit under Part A would not be admissible in respect of eight categories of offences enumerated therein, including serial No. (vii) pertaining to "offences under Section 304B of IPC that is a dowry death". The said provision that the benefit of remission is not available in regard to offence under Section 304B of IPC is with reference to remission of balance of sentence of imprisonment for life under Part A. Therefore, Part A of the Government Order dated 14.8.2002 relating to remission of balance of sentence of imprisonment for life and the exceptions thereto are wholly inapplicable in regard to cases where the sentence is not imprisonment for life. In this case, the sentence was not for imprisonment for life. The sentence was rigorous imprisonment for seven years. Part B of the said Government Order relates to special remission of one year to prisoners who have been convicted by the courts of criminal jurisdiction in the State of Punjab and confined in jail as on 15.8.2002. The said remission under Part B is made inapplicable to nine types of offences

enumerated therein. The exclusion list does not contain or refer to offences under Section 304B of the Code. Thus, the special remission of one year under the Government Order dated 14.8.2002 was available to persons convicted for a term of seven years for the offence under Section 304B of IPC. This Court, while disposing of the criminal appeal, under the erroneous assumption that the case fell under Part A and not Part B of the Government Order dated 14.8.2002, had observed that the benefit of the said Government Order was not available to accused 1 and 2, overlooking the fact that benefit of remission under Part B thereof was in fact available.

6. In view of the above, the judgment dated 5.11.2008 in Criminal Appeal No. 1731/2008 is reviewed and paras 18 to 24 of the said judgment are deleted and instead the following is added: "The appeals are therefore dismissed." If accused Nos. (1) and (2) had been extended the benefit of Part B of Government Order dated 14.8.2002, the same shall not be disturbed.

Citation: 2000(2)ACR1232(SC), 2000(1)ALD(Cri)875, 2000CriLJ2297, JT2000(5)SC566, 2000-2-LW(Crl)791, 2000(II)OLR(SC)225, 2000(4)SCALE135, (2000)5SCC170,

2001(1)UJ38(SC)


W.P. (Crl.) Nos. 45-46 of 1999


Appellants:Satpal & Another Vs.

Respondent:State of Haryana & Ors.

Hon'ble Judges: G. B. Pattanaik and U.C. Banerjee, JJ.

Subject: Criminal

Acts/Rules/Orders: Constitution of India - Articles 72 and 161; Criminal Procedure Code (CrPC) - Section 132; Indian Penal Code, 1860 - Sections 120 B, 148, 149, 302, 323, 392 and 452

Cases Referred: Kehar Singh's case MANU/SC/0240/1988; Maruram's case MANU/SC/0159/1980; Swarn Singh v. State of U.P. and Ors. MANU/SC/0196/1998

Citing Reference:

Case Note: Constitution of India - Article 161—Code of Criminal Procedure, 1973—Section 132—Indian Penal Code, 1860—Sections 302/149/120B, 392, 148, 452 and 323—Pardon/ remission of sentence by Governor—Validity—Murder, etc.—Conviction and sentence of all five accused by trial court—Acquittal of three accused by High Court—Acquittal of two accused S and R set aside by Supreme Court and direction to surrender to serve out remaining part of sentence—Constitutional power of Governor amendable to judicial review on certain limited grounds—Governor not applying his mind to material on record—Mechanically passing order just to allow prisoner S to overcome conviction and sentence passed by Supreme Court—Order of Governor stating that Governor pleased to grant pardon to prisoner S confined in jail—But S not confined in jail on that date—

Rather after obtaining pardon and remission of sentence S surrendering before Court of Sessions Judge on 2.2.99 and also released on very same day in view of Governor’s order dated 25.1.99—Governor not made aware of as to what was total period of sentence accused had really undergone—Not becoming aware of such material facts would tend to make order granting pardon arbitrary and irrational—Uncanny haste in processing file—Unusual interest and zeal shown by authorities—Order of Governor vitiated and quashed.

1989 (1) SCC 204 ; 1981 (1) SCC 107 and (1998) 4 SCC 75, relied on.

There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 of the Constitution of India is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration.

When an accused is convicted of heinous offence of murder and is sentenced to imprisonment of life, the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behaviour while he has been undergoing the sentence which would be all germane considerations for exercise of the power.

ORDER

G.B. Pattanaik, J.

1. The order of the Governor dated 25.1.1999, granting pardon remitting the un-expired portion of the sentence passed on prisoner Shri Siriyans Kumar Jain S/o Shri Ram Chand Jain in exercise of power conferred by Article 161 of the Constitution of India read with Section 132 of the CrPC is being assailed, inter alia on the ground that the power has been exercised without application of mind, and that the said power has been exercised by the Governor on extraneous consideration and even without the aid and advice of the Government, namely, the concerned Minister. The applicants are the brother and window of the deceased Krishan Kumar who was murdered during the election held in the year 1987 for the post of President of Municipal Committee, Hansi. The prosecution had alleged that a gruesome crime was committed by the accused persons and the entire family of the deceased suffered the agony and pain. In the criminal trial the respondent- Siriyans Kumar Jain alongwith four other accused persons belonging to the Bharatiya Janta Party were tried for having committed offence under Sections 302 read with 149 and 120B as well as under Sections 392, 148, 452 and 323 Indian Penal Code. The learned Sessions Judge convicted

all the five accused persons and on an appeal the High Court of Punjab and Haryana while maintained the conviction of accused Krishan Kumar Jakhar and Gurvinder Singh but acquitted the accused P.K. Chaudhary, Siriyans Jain and Ram Nath Bhumla. The State of Haryana preferred appeal against the acquittal of the aforesaid three accused persons. The Supreme Court by judgment dated 10.12.1998, set aside the acquittal of accused Siriyans Kumar Jain, Ram Nath Bhumla but upheld the acquittal of P.K. Chaudhary. The Court also directed Siriyans Kumar Jain and Ram Nath Bhumla to surrender to custody in order to serve out the remaining part of their sentence. In setting aside the order of acquittal passed by the High Court the Supreme Court had observed that all the four accused persons had gone together to the place of occurrence and they were armed with weapons with a definite purpose and, therefore, there was no scope for entertaining any doubt regarding their involvement in commission of the crime and also as regards the said crime that the said crime having been committed by them in prosecution of common object of an unlawful assault consisting of them and other persons who had come along with them upto the factory. Immediately after the judgment of this Court dated 10.12.1998, respondent Siriyans Kumar Jain (respondent No. 3) in the present Writ Petition instead of surrendering to serve the sentence, as directed by this Court, filed an application before the Governor invoking his jurisdiction under Article 161 of the Constitution and this application was filed on 15.1.1999. The Secretary to the Governor addressed a letter to the Secretary to the Government of Haryana, Department of Jail requesting for a report in the matter to be placed before His Excellency the Governor of Haryana. The Appropriate Authority, namely, Joint Secretary to the Government in the Home Department indicated in his note that the opinion of the Legal Remembrancer should be obtained as to whether this is a fit case for exercising the power under Article 161 of the Constitution or not. The opinion of the Legal Remembrancer was then placed before the concerned Minister and finally the Chief Minister agreed with the views of the Legal Remembrancer and came to the conclusion that this is a fit case where discretion given under Article 161 of the Constitution be exercised and relief prayed for be granted. On the basis of the aforesaid advise of the Chief Minister the Governor finally granted pardon, as already stated.

2. Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioners contended that the very order passed by the Governor would indicate total non-application of mind and, therefore, the said order cannot sustain the judicial scrutiny and must be set aside. He also contended that it the order of the Governor is examined it will indicate as to the uncanny haste with which the entire matter was disposed of, without scant regard for the judgment of this Court whereunder the Court convicted the present respondent No. 3 under Section 302/149 IPC and 120B and the final order of the Governor emanated even before respondent No. 3 surrendered to serve the sentence though the impugned order categorically indicates that the prisoner is in jail. Mr. Tulsi also contended that the Governor has passed the order without being aided and advised by the Council of Ministers and, therefore, the order is vitiated.

3. Mr. R.K. Jain, learned senior counsel appearing for the State of Haryana and Mr. D.D. Thakur, learned senior counsel appearing for respondent No. 3, however, contended that the power to grant pardon and remission of sentence is essentially an executive function to be exercised by the Head of the State after taking into consideration various matters and the Court is precluded from examining the wisdom or expediency of exercise of the said power. According to the learned Counsel the power of judicial review, as has been held by this Court in Kehar Singh's case is of a

very limited nature, namely, whether the authority who had exercised the power had the jurisdiction to exercise the same, and whether the impugned order goes beyond the power conferred by law upon the authority who made it, and this being the position the grounds on which the impugned order is being attacked essentially pertain to the propriety of the Governor in the matter of exercising power under Article 161 after the conviction and sentence passed by this Court and as such, it should not be interfered with.

4. There cannot be any dispute with the proposition of law that the power of granting pardon under Article 161 is very wide and do not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application or mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration. The extent of judicial review in relation to an order of he President under Article 72 of the Constitution of India was subject matter of consideration before this Court in Kehar Singh 's case MANU/SC/0240/1988 : 1989CriLJ941 , where the Constitution Bench has observed "It appears to us clear that the question as to the area of the President's power under Article 72 of the Constitution falls squarely within the judicial domain and can be examined by the Court by way of judicial review." The Court had further indicated that "as regards the considerations to be applied by the President to the Petition we need say nothing more as the law in this behalf have already been laid down by this Court in Maruram 's case -1981 (1) Supreme Court Cases 107. What has been stated in relation to the President's power under Article 72 equally applies to the power of Governor under Article 161 of the Constitution. In Maruram's case (supra) the Court came to the conclusion that the power under Articles 72 and 161 can be exercised by the Central and State Governments and not by the President or Governor on their own. The advice of the appropriate Government binds the head of the State. The Court also came to the conclusion that considerations for exercise of power under Articles 72 or 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 malafide. Only in these rare cases will the court examine the exercise. In paragraph 62 of the judgment in Maru Ram's case (supra) the Court has observed"-

An issue of deeper import demands our consideration at this stage of the discussion. Wide as the power of pardon, commutation and release (Articles 72 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course. Here, we come upon the second constitutional fundamental which underlies the submissions of counsel. It is that all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. We proceed on the basis that these axioms are valid in our constitutional order.

It was further held that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be informed by the finer canons of constitutionalism.

5. Three Judge Bench of this Court recently considered the question of judicial review against an order granting pardon by the Governor under Article 161 of the Constitution in the case of Swaran Singh v. State of U.P. and Ors. MANU/SC/0196/1998 : [1998]2SCR206 . In that case an MLA of the State Assembly had been convicted of the offence of murder and within a period of less than two years he succeeded in coming out of the prison as the Governor of Uttar Pradesh granted remission of the remaining long period of his life sentence. The son of the deceased moved the Allahabad High Court challenging the aforesaid action of the Governor and the same having been dismissed the matter had been brought to this Court by grant of Special Leave Petition. This Court had come to the conclusion that the Governor was not told of certain vital facts concerning the prisoner such as his involvement in five other criminal cases of serious offences, the rejection of his earlier clemency petition and the report of the jail authority that his conduct inside the jail was far from satisfactory and out of two years and five months he was supposed to have been in jail, he was in fact on parole during the substantial part thereof. The Court further held that when the Governor was not posted with material facts the Governor was apparently deprived of the opportunity to exercise the powers in a fair and just manner and the order fringes on arbitrariness. The Court, therefore, quashed the order of the Governor with a direction to re-consider the petition of the prisoner in the light of the materials which the Governor had no occasion to know earlier.

6. Bearing in mind the parameters of judicial review in relation to an order granting pardon by the Governor, when we examine the case in hand, the conclusion is irresistible that the Governor had not applied his mind to the material on record and has mechanically passed the order just to allow the prisoner to overcome the conviction and sentence passed by this Court. It is indeed curious to not that the order dated 25.1.1999 clearly indicates that the Governor of Haryana is pleased to grant pardon remitting the unexpired portion of the sentence passed on prisoner Siriyans Kumar Jain confined in the Central Jail, Hissar. But the said prisoner was not confined in the Central Jail, Hissar on that date and on the other hand after obtaining the order of pardon and remission of sentence to give an appearance of compliance to the order of Supreme Court said Siriyans Kumar Jain surrendered before the Court of Sessions Judge, Hissar on 2.2.1999 and also was released on the very same day in view of the order of Governor dated 25.1.1999. If by order dated 25.1.1999 the accused has already been granted pardon and there has been a remission of the sentence then there was no reason for him to go and surrender before the District Judge on 2.2.99. That apart, the Governor has not been made aware of as to what is the total period of sentence the accused has really undergone, and if at all has undergone any sentence. When an accused is convicted of heinous offence of murder and is sentenced to imprisonment of life the authority who has been conferred with power to grant pardon and remission of sentence under Article 161 of the Constitution must be made aware of the period of sentence in fact undergone by the said convict as well as his conduct and behavior while he has been undergoing the sentence which would be all germane considerations for exercise of the power. Not being aware of such material facts would tend to make an order of granting pardon arbitrary and irrational, as has been held by this Court in Swaran Singh's case (supra). The entire file had been produced before us and we notice the uncanny haste with which the file has been

processed and the unusual interest and zeal shown by the authorities in the matter of exercise of power to grant pardon. We also fail to understand how the order in question could show that the prisoner is in jail while in fact he was free at large and had not surrendered to serve the sentence notwithstanding the positive direction of this Court dated 10.12.1998 disposing of the appeal filed by the State.

7. So far as the contention that Governor passed the order on his own without being advised by the Council of Ministers, we do not find any substance in the same. We have scrutinised the relevant file that was produced before us and it clearly demonstrates that the mater was examined by the Law Department, the concerned Administrative Department and was finally endorsed by the Chief Minister after which the Governor passed the order. Consequently, there is no substance in the submission of Mr. K.T.S. Tulsi, learned senior counsel appearing for the petitioners.

8. In the aforesaid premises, we have no hesitation to come to the conclusion that the order in question has been vitiated and the Governor has not been advised properly with all the relevant materials and, therefore, we have no other option that to quash the said order dated 25.1.1999. We accordingly quash the impugned order dated 25.1.1999 and allow this Writ Petition, but, however quashing of the order does not de bar the Governor in reconsidering the matter in the light of the relevant materials and act in accordance with the constitutional provision and discretion.

Citation: 2010(2)ACR1514(SC), AIR2010SC1690, 2010CriLJ2398, 2010(2)Crimes74(SC), JT2010(3)SC341, RLW2010(2)SC1185, 2010(2)SCALE302, (2011)1SCC(Cri)243,

[2010]4SCR716


Criminal Appeal No. 566 of 2010 (Arising out of SLP (Crl.) No. 6638 of 2009) and Special Leave Petition (Crl.) Nos. 5842, 6385, 6442, 6441, 6444, 5768, 7629, 7579, 7580, 7581, 7582, 8140, 7631, 7630, 7628, 7622, 7623, 7625, 7619, 7621, 7659, 7654, 7656, 7657, 7652, 7655, 7661, 7653, 7651, 7660, 7649 and 7658/2009, SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. Nos. 13253), SLP (Crl.) No. 7974, 9330, 9234 and 9268/2008, SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. No. 12754), SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. Nos. 13045), SLP (Crl.) Nos. 6914, 6913, 8288, 8290, 8291, 8292, 8293, 8294, 8297, 8298, 8300, 8301 and 8302/2009), SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. No. 18221), SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. No.18264), SLP (Crl.) No. .../2009 (Arising Out of Crl. M.P. Nos. 18402), SLP (Crl.) Nos. 831, 832, 1026, 1097, 1615, 2101, 1861, 2216, 3475, 3035, 3042, 3032, 3044, 3040, 3123, 3118, 4125, 4076, 4077, 4815, 4882, 5117, 5173, 6787, 6272, 6783, 6310, 6784, 6467, 6468, 6985, 6637, 6986, 6647, 6766, 6767, 6776, 6777, 7147, 8392, 4789, 6485, 4802, 4803, 4909, 6487, 4933, 4934, 4943, 4956, 6488, 5115, 5118, 5166, 5170, 5174, 8800, 8802, 8801, 8806, 8804, 8807, 4883, 9364, 9373, 9392, 9379, 9376, 9382, 9384, 9387, 9389, 9372, 9366, 9371, 9368, 9388, 9383, 9385, 9378, 9377, 9381, 9374, 9358, 9367, 9369, 9370, 9380, 10237, 9393, 9390, 9355, 9351, 9359, 9354, 9386, 10119, 10122, 10121, 10123, 10120/2009, 200, 211, 210, 206, 207, 196, 193, 194, 199, 205, 197, 198, 204, 208, 203, 192 and 437/2010)


Appellants: State of Haryana and Ors. Vs. Respondent: Jagdish and Harpal

Hon'ble Judges: K. G. Balakrishnan, C.J.,J. M. Panchal and B. S. Chauhan, JJ.

Counsels: For Appearing Parties: Gopal Subramanium, Sol. Genl. of India (A.C.), B.S. Malik, Sr. Adv., P.V. Dinesh, Athouba Khaidem, Harivansh Manab, Chander Shekhar Ashri, A. Dasharatha, D.P. Singh, Sanjay Jain, Sanjay Sharawat, Satyendra Kumar, Gagan Gupta, Manoj Swarup, Vijay K. Jindal, Devesh Kr. Tripathi, Ashok Anand, Rohit Kr. Singh, Ajay Pal, Rupender Singh, Prashant Shukla, S. K. Shrivastava, Rishi Malholtra and S. K. Shrivastava, Advs. for Ajay Pal, Adv.

Subject: Criminal

Acts/Rules/Orders: Prisons Act, 1894 - Section 59; Criminal Procedure (Amendment) Act, 1955; West Bengal

Correctional Services Act, 1992; State Re-organisation Act; Prison Rules; Rajasthan Prisons (Shortening of Sentences) Rules, 1958 - Rules 20 and 21; Criminal Procedure Code (CrPC) - Sections 401, 432, 432(1), 433 and 433A; Indian Penal Code - Sections 53A, 54, 55, 57, 302, 148 and 149; Constitution of India - Articles 20, 20(1), 21, 72 and 161

Cases Referred: State of Haryana and Ors. v. Balwan : AIR 1999 SC 3333; State of Haryana v. Mahender Singh and Ors. (2007) 13 SCC 606; State of Haryana v. Bhup Singh : AIR 2009 SC 1252; Maru Ram v. Union of India : (1981) 1 SCC 107; Gopal Vinayak Godse v. State of Maharashtra and Ors. : AIR 1961 SC 600; Pt. Kishorilal v. Emperor AIR 1946 P.C. 64; Dalbir Singh and Ors. v. State of Punjab AIR 1979 SC 1384; State of Haryana v. Nauratta Singh and Ors.: AIR 2000 SC 1179; Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka : AIR 2008 SC 3040; Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh : AIR 2010 SC 420; Mohd. Munna v. Union of India : (2005) 7 SCC 417; State of Punjab v. Joginder Singh: AIR 1990 SC 1396; Sadhu Singh v. State of Punjab: AIR 1984 SC 739; Laxman Naskar v. Union of India and Ors. : (2000) 2 SCC 595; Ashok Kumar @ Golu v. Union of India and Ors. : AIR 1991 SC 1792; Bhagirath v. Delhi Administration : AIR 1985 SC 1050; Kehar Singh and Anr. v. Union of India and Anr.: AIR 1989 SC 653; Epuru Sudhakar and Anr. v. Govt. of A.P. and Ors. : AIR 2006 SC 3385; Swaran Singh v. State of U.P. : AIR 1998 SC 2026; Satpal and Anr. v. State of Haryana and Ors. AIR 2000 SC 1702; Bikas Chatterjee v. Union of India: (2004) 7 SCC 634; K.M. Nanavati v. State of Bombay : AIR 1961 SC 112; Bhoomaiah v. State of Andhra Pradesh and Ors.: (1976) 1 SCC 157; Regina v. The Secretary of State for the Home Department (1996) EWCA Civ 555; Official Liquidator v. Dayanand and Ors. : (2008) 10 SCC 1; State of Haryana and Ors. v. Jagdish Criminal Appeal No. ...of 2010 (Arising out of SLP(Crl.) No. 6638 of 2009)

Prior History: From the Judgment and Order dated 16.03.2009 of the High Court of Punjab and Haryana at Chandigarh in Crl. Misc. No. M-465 of 2009

Disposition: Petition dismissed

Citing Reference:

Case Note: Constitution of India - Article 161—Code of Criminal Procedure, 1973—Sections 432, 433 and 433A —Sentence — Remission — Whether policy making provision for remission of sentence should be that in existence on date of conviction of accused or it should be policy in existence on date of consideration of his case premature release by appropriate authority?—Held, case of respondent was to be considered on strength of policy on existing date of his conviction—In case liberal policy prevails on date of consideration of case of ‘lifer’ for premature release—He should be given benefit thereof.

Policies on remission of sentence, including the policy dated 4.2.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is in exercise of the powers under Section 432 read with Sections 433 and 433A of Cr. P.C. The restriction under Section 433A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432, Cr. P.C. The notification dated 13.8.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993.

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 13.8.2008. 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 prevails on the date of consideration of the case of a “lifer” for pre-mature release, he should be given benefit thereof.

As per the information furnished by the appellant-State of Haryana, the respondent Jagdish has served more than 14 years (actual) on 12.2.2009, i.e., prior to the date of judgment impugned herein dated 17.2.2009. By now, the respondent has served (actual) for more than 15 years. Respondent falls in category 3 of the prisoners as he did not indulge in any organised crime.

Accordingly, for the reasons given hereinabove, we find no reason to interfere with the judgment of the High Court, which is hereby affirmed.

JUDGMENT

B.S. Chauhan, J.

1. Delay condoned. Leave granted.

2. This matter has come up before us upon reference having been made by a Two-Judge Bench vide order dated 04.11.2009 upon noticing an inconsistency in the views expressed by this Court in the case of State of Haryana and Ors. v. Balwan MANU/SC/0543/1999 : AIR 1999 SC 3333 on one hand and in the cases of State of Haryana v. Mahender Singh and Ors. (2007) 13 SCC 606; and State of Haryana v. Bhup Singh MANU/SC/8486/2008 : AIR 2009 SC 1252, on

the other hand. The inconsistency, which was pointed out in the said order was noticed by taking into account the para 5 of the judgment in Balwan (supra) which is as follows:

...However, in order to see that a life convict does not lose any benefit available under the remission scheme which has to be regarded as the guideline, it would be just and proper to direct the State Government to treat the date on which his case is/was required to be put up before the Governor under Article 161 of the Constitution as the relevant date with reference to which their cases are to be considered....

3. The views expressed in Mahender Singh (supra) and Bhup Singh (supra) were as follows :

Mahender Singh (supra)

40. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A' fortiori the policy decision applicable in such cases would be which was prevailing at the time of his conviction.

Bhup Singh (supra)

10. ...The right to ask for remission of sentence by a life convict would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed....

11. ...It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in Mahender Singh case having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002....

4. The question that has been posed before us is as to whether the policy which makes a provision for remission of sentence, should be that which was existing on the date of the conviction of the accused or it should be the policy that exists on the date of consideration of his case for pre-mature release by the appropriate authority?

5. In the instant case, we find that the respondent, herein, has been granted the relief by the Punjab and Haryana High Court for consideration of his case for grant of clemency as per the policy prevailing on the date of his conviction. The respondent was convicted and sentenced for life imprisonment vide judgment and order dated 20.05.1999 and the policy which was in existence at that point of time was dated 04.02.1993. The respondent, having served more than 10 years imprisonment, approached the High Court that in spite of having undergone the sentence as per the aforesaid policy dated 04.02.1993, his case for pre-mature release was not being considered in view of the new policy of short sentencing, introduced on 13.08.2008. The policy dated 13.8.2008 has been brought on record, which expressly recites that the same was being issued in exercise of the powers conferred by Sub-section (1) of Section 432 read with Section 433 of Criminal Procedure Code (hereinafter called Cr.P.C.), 1973. The same further recites that it is in supersession of the Government Memorandum dated 12.04.2002 and all other earlier policies.

6. The respondent was involved in a case, the FIR whereof was registered on 16.01.1995 and he was convicted vide judgment and order dated 20.5.1999 under Sections 302, 148 and 149 Indian Penal Code (hereinafter called IPC), 1860. In the above background, the respondent filed a Criminal Misc. Application before the High Court. The Court placing reliance on the judgments of this Court in Mahender Singh (supra) and Bhup Singh (supra) came to the conclusion that the case of the respondent for pre-mature release was to be considered in the light of the short sentencing policy existing on the date of his conviction and thus, a direction was issued to the State Authorities to consider his case for pre- mature release in view of the policy dated 4.2.1993 existing on the date of his conviction i.e. 20th May, 1999 within a period of one month from the date of receipt of the certified copy of the judgment. Hence, this appeal. In view of the conflicting views in various judgments of this Court, reference has been made to the larger Bench.

7. Heard Shri Gopal Subramanium, learned Solicitor General, Amicus Curiae, Shri P.N. Mishra, learned senior counsel appearing for the State of Haryana, Shri B.S. Malik, Senior Advocate, Shri Manoj Swarup, Shri D.P. Singh and Shri Sanjay Jain, Advocates for respondents.

8. Shri P.N. Mishra, learned senior counsel appearing for the State of Haryana has submitted that State has unfettered power to lay down a policy in regard to remission of sentence. The short sentencing policies are merely executive instructions having no statutory force, therefore, do not create any legal/vested right in favour of the convict. Having regard to the provisions of Sections 54, 55 IPC and Section 433A Cr.P.C., no interference was required by the High Court. Case of the respondent for pre-mature release would be considered in view of the policy dated 13.8.2008. Thus, the judgment and order of the High Court impugned herein, is liable to be set aside.

9. On the contrary, learned Counsel appearing for the respondent in this appeal and other connected cases, which are being disposed of by separate order, have contended that all remission schemes were issued making reference to Article 161 of the Constitution of India (hereinafter called the Constitution). The clemency power of the executive cannot be subjected to any law whatsoever and thus, a legal right stood crystallised in favour of the convict, to be considered for pre-mature release in view of the scheme prevailing on the date of his conviction. They have emphasised that such scheme envisaged at least a promise and in view of the provisions of Articles 20(1) and 21 of the Constitution, the conditions contained in subsequent policies being more stringent cannot be enforced against the "lifer". Provisions of the Prisons Act, 1894 (hereinafter called as `Act 1894') and rules framed under it create legal right in favour of the convict. Such rights cannot be taken away by presently prevailing policy dated 13.8.2008. No policy can be framed in derogation of the statutory rules. However, in case a lenient policy is enforced at subsequent stage, the same can be made applicable and thus, the judgment and order of the High Court does not require any interference. The appeal is liable to be dismissed.

10. Shri Gopal Subramanium, learned Solicitor General who appeared as Amicus Curiae, has submitted that even if there is no vested right of the convict to be considered for pre-mature release, in view of the policy prevailing on the date of his conviction, at least a human element of expectation that the convict would have remission as per the guidelines prevailing on the date of his conviction cannot be ruled out. Even if the convict does not satisfy the requirement of presently existing remission policy dated 13.8.2008, his case can always be considered for

remission under the provisions of Article 72 or 161 of the Constitution and it will be for the President or the Governor, as the case may be, to take a view in the matter in conformity with the decision in Maru Ram v. Union of India MANU/SC/0159/1980 : (1981) 1 SCC 107.

11. We have considered the rival submissions made by learned Counsel for the parties and perused the record.

12. In the instant case, the respondent was convicted on 20th May, 1999 and sentenced for life imprisonment. Remission policy has been changed from time to time and provided mainly as under:

Date of Policy Minimum required sentence for pre-mature release 4th February, 1993 (a) Convicts whose death sentence Their cases may be considered after has been commuted to life completion of 14 years actual imprisonment and convicts who have sentence including under trial period been imprisoned for life for having and after earning at least 6 years committed a heinous crime such as: remission. murder with wrongful confinement, for extortion/robbery; murder with rape; murder while undergoing life imprisonment; murder with dacoity .... ; murder of a child under the age of 14 years; and murder on professional/hired basis.... (b) Adult life convicts who have Their cases may be considered after been imprisoned for life but whose completion of 10 years of actual cases are not covered under (a) sentence including under trial period, above and who have committed provided that the total period of crime which are not considered such sentence including remission heinous as mentioned in clause (a) is not less than 14 years. above, or other life convicts imprisoned for life for offence for which death penalty is not a punishment. 8th August, 2000 (a) Convicts whose death sentence Their cases may be considered after has been commuted to life completion of 14 years actual imprisonment and convicts who have sentence including under trial period been imprisoned for life having provided that the total period of committed a heinous crime such as: such sentence including remission is not less than 20 years. (i) murder with wrongful confinement, for extortion/robbery; (ii) murder with rape; (iii) murder while undergoing life imprisonment; (iv) murder with dacoity .... ; (viii) murder of a child under the age of 14 years; (ix) murder of woman; and (xi) murder on professional/hired basis.... (xvi) convicts who have been awarded life imprisonment a second time under any offence.... (b) Adult life convicts who have Their cases may be considered after been imprisoned for life but whose completion of 10 years actual cases are not covered under (a) sentence including under trial period above and who have committed provided that the total period of crime which are not considered such sentence including remission heinous as mentioned in clause (a) is not less than 14 years. 29th October, 2001 (aa) Convicts whose death sentence Their cases may be considered after has been commuted to life completion of 20 years actual imprisonment and convicts who have sentence and 25 years total sentence been imprisoned for life having with remissions. committed a heinous crime such as: (i) murder after rape repeated chained rape/unnatural offences; (ii) murder with intention for the ransom; (iii) murder of more than two persons; (iv) persons convicted for second time for murder; and (v) sedition with murder. (a) Convicts who have been Their cases may be considered after imprisoned for life having committed completion of 14 years actual a heinous crime such as: sentence including under trial period provided that the total period of such sentence including remissions (i) murder with wrongful is not less than 20 years. confinement for extortion/robbery; (ii) murder while undergoing life sentence; murder

with dacoity.... and (vii) murder of a child under the age of 14 years.... (b) Adult life convicts who have Their cases may be considered after been imprisoned for life but whose completion of 10 years actual cases are not covered under (aa) and sentence including under trial period (a) above and who have committed provided that the total period of crime which are not considered such sentence including remissions heinous as mentioned in clause (aa) is not less than 14 years. & (a) above. 13th August, 2008 (a) Convicts whose death sentence Their cases for pre-mature release has been commuted to life may be considered after completion imprisonment and convicts who have of 20 years actual sentence and 25 been imprisoned for life having years total sentence with committed a heinous crime such as: remissions. (i) murder with rape/unnatural offences; (ii) murder with intention to collect ransom/robbery/ kidnapping/abduction; (iii) murder of more than two persons; (iv) persons convicted for second time for murder; (v) sedition; (vi) sedition with murder; and (vii) murder while undergoing life sentence.... (b) Convicts who have been Their cases for pre-mature release imprisoned for life having committed may be considered after completion any crime which is defined in IPC of 14 years actual sentence and/or NDPS Act as punishable with including under trial period; provided death sentence. that the total period of such sentence including remissions is not less than 20 years. (c) .... ....

It may also be pertinent to mention here that all the aforesaid policies made a clear-cut distinction and categorised the offence of murder in two separate categories. Heinous crime means murder, i.e., (i) murder with wrongful confinement, for extortion/robbery; (ii) murder with rape; (iii) murder undergoing life imprisonment; (iv) murder with dacoity.... ; (v) murder of a child under 14 years; and (vi) murder on professional/hired basis etc. Murders not mentioned in either of these above categories have been treated differently for the purpose of grant of pre-mature release. In all the policies issued by the Government except policy dated 13th August, 2008, the provisions of Article 161 of the Constitution have been referred to. All the said policies provided that the cases of life convicts would be put to the Governor through the Minister for Jails and the Chief Minister, Haryana with full background of the prisoners and recommendations of the Committee alongwith the copy of the judgment etc. for orders under Article 161 of the Constitution.

13. This Court in Gopal Vinayak Godse v. State of Maharashtra and Ors. MANU/SC/0156/1961 : AIR 1961 SC 600 considered the provisions of Section 53A IPC, Cr.P.C. and also considered the Code of Criminal Procedure Amendment Act, 1955 which provided that a person sentenced to transportation for life before the Amendment Act would be considered as sentenced to rigorous imprisonment for life. The life convict was bound to serve the remainder of sentence imprisoned. Unless the sentence was commuted or remitted by the Competent Authority, such sentence would not be equated with any fixed term. The benefit of remission or any short sentencing policy in accordance with the rules framed under the Act 1894, if any, would be considered towards the end of the term and the said question was within the exclusive domain of the appropriate Government. In the said case, in spite of the fact that certain remissions had been made, the competent authority did not remit the entire sentence. While deciding the said case, this Court placed reliance on the judgment of the Privy Council in Pt. Kishorilal v. Emperor AIR 1946 P.C. 64.

14. In Dalbir Singh and Ors. v. State of Punjab AIR 1979 SC 1384, this Court came to the conclusion that `life imprisonment' means imprisonment for the whole of the man's life. But in practice it amounts to incarceration for a period between 10 to 14 years.

15. In State of Haryana v. Nauratta Singh and Ors. MANU/SC/0176/2000 : AIR 2000 SC 1179, this Court clearly held that 14 years mentioned in Section 433A Cr.P.C. is the actual period of imprisonment undergone without including any period of remission.

16. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka MANU/SC/3096/2008 : AIR 2008 SC 3040, this Court had passed the order that the appellant therein would not be released from prison till the rest of his life. Such a punishment was considered necessary because this Court substituted the death sentence given to the appellant by the Trial Court and confirmed by the High Court, with imprisonment for life with a direction that the said appellant would not be released from prison for the rest of his life. Thus, the Court came to the conclusion, on the facts of that case, that in such an eventuality the pre-mature release after a minimum incarceration for a period of 14 years as envisaged under Section 433A Cr.P.C. would not be acceded to, since the sentence of death had been stepped down to that of life imprisonment which was definitely a lenient punishment.

17. In Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh MANU/SC/1890/2009 : AIR 2010 SC 420, this Court held as under:

In the various decisions rendered after the decision in Godse case, "imprisonment for life" has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the powers vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is thereafter left to the discretion of the authorities concerned to determine the actual length of imprisonment having regard to the gravity and intensity of the offence.

18. In Mohd. Munna v. Union of India MANU/SC/0566/2005 : (2005) 7 SCC 417, this Court came to the conclusion that life imprisonment was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the remaining period of the convicted person's natural life. There was no provision either in the IPC or Cr.P.C. whereby life imprisonment could be treated as either 14 years or 20 years incarceration without there being a formal remission by the Appropriate Government. The contention that having regard to the provisions of Section 57 IPC, a prisoner was entitled to be released on completing 20 years of imprisonment under the West Bengal Correctional Services Act, 1992 and the West Bengal Jail Code, was rejected.

19. Before we proceed to consider the exercise of powers with regard to remission, as provided for either under the Constitution, the IPC or the Cr.P.C., it would be worth reiterating what has already been traversed and laid down by this Court right from the case of Maru Ram (supra) to the decision in the case of Ram Raj (supra).

20. In Maru Ram (supra), this Court elaborately dealt with the issue of validity of Section 433A Cr.P.C. and the remission/short sentencing policies and held as under:

54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome in the prisoners' freedom from behind bars. The first turns on the `prospectivity' (loosely so called) or otherwise of Section 433A. We have already held that Article 20(1) is not violated but the present point is whether, on a correct construction, those who have been convicted prior to the coming into force of Section 433A are bound by the mandatory limit. If such convicts are out of its coils their cases must be considered under the remission schemes and `short- sentencing' laws. The second plea, revolves round `pardon jurisprudence', if we may coarsely call it that way, enshrined impregnably in Articles 72 and 161 and the effect of Section 433A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise of this plenary power cannot be left to the fancy, frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must. On this basis, we will have to scrutinize and screen the survival value of the various remission schemes and short-sentencing projects, not to test their supremacy over Section 433A, but to train the wide and beneficent power to remit life sentences without the hardship of fourteen fettered years.

xx xx xx

67. All these go to prove that the length of imprisonment is not regenerative of the goodness within and may be proof of the reverse -- a calamity which may be avertedby exercise of power under Article 161.... In short, therules of remission may be effective guidelines of arecommendatory nature, helpful to Government torelease the prisoner by remitting the remaining term.

xx xx xx

72(7) We declare that Section 433A, in both its limbs(i.e. both types of life imprisonment specified in it), isprospective in effect.... It follows, by the same logic,that short-sentencing legislations, if any, will entitle aprisoner to claim release there under if his conviction bythe court of first instance was before Section 433A was brought into effect.

xx xx xx

72(10) Although the remission rules or short-sentencing provisions proprio vigore 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 whole some scheme.

21. Thus, the Court held that the amendment would apply prospectively. The life convicts who had been sentenced prior to 18.12.1978 i.e. date of enforcement of amendment would not come within the purview of the provisions of Section 433A Cr.P.C. and short sentencing policy would also apply prospectively. Remission rules/short sentencing policies could be taken as guidelines for exercise of power under Articles 72 or 161 of the Constitution and in such eventuality, remission rules will override Section 433A Cr.P.C.

22. In State of Punjab v. Joginder Singh MANU/SC/0275/1990 : AIR 1990 SC 1396 this Court held that remission cannot detract from the quantum and quality of judicial sentence except to the extent permitted by Section 433 Cr.P.C. subject of course, to Section 433A or where the clemency power under the Constitution is invoked. But while exercising the constitutional power under Articles 72/161 of the Constitution, the President or the Governor, as the case may be, can exercise an absolute power which cannot be fettered by any statutory provision such as Sections 432, 433 and 433A Cr.P.C. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.

23. In Sadhu Singh v. State of Punjab MANU/SC/0110/1984 : AIR 1984 SC 739, this Court examined the nature of the provisions contained in para 516-B of the Punjab Jail Manual which provided for remissions etc. and executive instructions issued by the Punjab Government from time to time and came to the conclusion that the Jail Manual contained merely executive instructions having no statutory force. Thus, it was always open to the State Government to alter, amend or withdraw the executive instructions or supersede the same by issuing fresh instructions. But the Court observed as under:

Any existing executive instruction could be substituted by issuing fresh executive instructions for processing the cases of lifers for pre-mature release but once issued these must be uniformly and invariably apply to all cases of lifers

24. A similar view has been re-iterated by this Court in Balwan (supra); and Laxman Naskar v. Union of India and Ors. MANU/SC/0084/2000 : (2000) 2 SCC 595.

25. In Ashok Kumar @ Golu v. Union of India and Ors. MANU/SC/0406/1991 : AIR 1991 SC 1792 this Court considered the scope and relevancy of Rajasthan Prisons (Shortening of Sentences) Rules, 1958 qua the provisions of Section 433A Cr.P.C. The said Rajasthan Rules 1958 provided that a "lifer" who had served actual sentence of about nine years and three months was entitled to be considered for pre-mature release if the total sentence including remissions worked out to 14 years and he was reported to be of good behaviour. The grievance of the petitioner therein had been that his case for pre-mature release had not been considered by the Concerned Authorities in view of the provisions of Section 433A Cr.P.C. This Court considered the matter elaborately taking into consideration large number of its earlier judgments including Maru Ram (supra), Bhagirath v. Delhi Administration MANU/SC/0062/1985 : AIR 1985 SC 1050; Kehar Singh and Anr. v. Union of India and Anr. MANU/SC/0240/1988 : AIR 1989 SC 653, and came to the following conclusions:

(i) Section 433A Cr.P.C. denied pre-mature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence i.e. exceptionally heinous crime;

(ii) Section 433A Cr.P.C. cannot and does not in any way affect the constitutional power conferred on the President/Governor under Article 72/161 of the Constitution;

(iii) Remission Rules have a limited scope and in case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section 433A Cr.P.C. or in exercise of constitutional power under Article 72/161 of the Constitution; and

(iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the 1958 Rules as guidelines.

The aforesaid case was disposed of by this Court observing that in case the clemency petition of the petitioner therein was pending despite of the directive of the High Court, it would be open to the said petitioner to approach the High Court for compliance of its order.

26. In Mahender Singh (supra), this Court as referred to hereinabove held that the policy decision applicable in such cases would be which was prevailing at the time of his conviction. This conclusion was arrived on the following ground:

38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.

27. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfillment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433A Cr. P.C. may have a different flavour in the statutory provisions, as short sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.

28. In Epuru Sudhakar and Anr. v. Govt. of A.P. and Ors. MANU/SC/4440/2006 : AIR 2006 SC 3385 this Court held that reasons had to be indicated while exercising power under Articles 72/161. It was further observed (per Kapadia, J) in his concurring opinion:

Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are not acts of grace. They are a part of Constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed....

Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty....

Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or sets aside the punishment for a crime....

The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case.

29. There is no dispute to the settled legal proposition that the power exercised under Articles 72/161 could be the subject matter of limited judicial review. (vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh v. State of U.P. MANU/SC/0196/1998 : AIR 1998 SC 2026; Satpal and Anr. v. State of Haryana and Ors. AIR 2000 SC 1702; and Bikas Chatterjee v. Union of India MANU/SC/0939/2004 : (2004) 7 SCC 634). In Epuru Sudhakar (supra) this Court held that the orders under Articles 72/161 could be challenged on the following grounds:

(a) that the order has been passed without application of mind;

(b) that the order is mala fide;

(c) that the order has been passed on extraneous or wholly irrelevant considerations;

(d) that relevant materials have been kept out of consideration;

(e) that the order suffers from arbitrariness.

30. The power of clemency that has been extended is contained in Articles 72 and 161 of the Constitution. This matter relates to the State of Haryana. The Governor of Haryana may exercise the clemency power. Article 161 of the Constitution enables the Governor of a State "to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends"

31. Sections 54 and 55 IPC provide for punishment. However, the provisions of Sections 432 and 433A Cr.P.C., relate to the present controversy. Section 432(1) Cr.P.C. empowers the State Government to suspend or remit sentences of any person sentenced to punishment for an offence, at any time, without conditions or upon any conditions that the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Section 433A Cr.P.C. imposes restriction on powers of remission or commutation where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment.

32. Pardon is one of the many prerogatives which have been recognised since time immemorial as being vested in the sovereign, whoever the sovereignty might be. Whether the sovereign happened to be an absolute monarch or a popular republic or a constitutional king or queen, Sovereignty has always been associated with the source of power -- the power to appoint or dismiss public servants, the power to declare war and conclude peace, the power to legislate and the power to adjudicate upon all kinds of disputes etc.

The rule of law, in contradiction to the rule of man, includes within its wide connotation the absence of arbitrary power, submission to the ordinary law of the land, and the equal protection of the laws. As a result of the historical process aforesaid, the absolute and arbitrary power of the monarch came to be canalised into three distinct wings of the Government, (Vide K.M. Nanavati v. State of Bombay MANU/SC/0063/1960 : AIR 1961 SC 112).

33. Articles 72 and 161 of the Constitution provide for a residuary sovereign power, thus, there can be nothing to debar the concerned authority to exercise such power, even after rejection of one clemency petition, if the changed circumstances so warrant. (Vide G. Krishta Goud & J. Bhoomaiah v. State of Andhra Pradesh and Ors. MANU/SC/0116/1975 : (1976) 1 SCC 157)

34. In Regina v. The Secretary of State for the Home Department (1996) EWCA Civ 555, the question came for consideration, before the Court that if the short-sentencing policy is totally inflexible, whether it amounts to transgression on the clemency power of the State which is understood as unfettered? The court considered the issue at length and came to the conclusion as under:

...the policy must not be so rigid that it does not allow for the exceptional case which requires a departure from the policy, otherwise it could result in fettering of the discretion which would be unlawful.... It is inconsistent with the very flexibility which must have been intended by the Parliament in giving such a wide and untrammeled discretion to the Home Secretary.... Approximately 90 years ago an enlightened Parliament recognised that a flexible sentence of detention is what is required in these cases with a very wide discretion being given to the person Parliament thought best suited to oversee that discretion so that the most appropriate decision as to release could be taken in the public interest. The subsequent statutes have not altered the nature of the discretion.

Thus, it was held therein that the clemency power remains unfettered and in exceptional circumstances, variation from the policy is permissible.

35. In view of the above, it is evident that the clemency power of the Executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433A Cr. P.C. though the Authority has to meet the requirements referred to hereinabove while exercising the clemency power.

To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short- sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered.

The Constitution Bench of this Court in Maru Ram (supra) clarified that not only the provisions of Section 433A Cr. P.C. would apply prospectively but any scheme for short sentencing framed by the State would also apply prospectively. Such a view is in conformity with the provisions of Articles 20(1) and 21 of the Constitution. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. When a short sentencing scheme is referable to Article 161 of the Constitution, it cannot be held that the said scheme cannot be pressed in service. Even if, a life convict does not satisfy the requirement of remission rules/short sentencing schemes, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency under the provisions of Article 72 and 161 of the Constitution. Right of the convict is limited to the extent that his case be considered in accordance with the relevant rules etc., he cannot claim pre-mature release as a matter of right.

36. Two contrary views have always prevailed on the issue of purpose of criminal justice and punishment. The punishment, if taken to be remedial and for the benefit of the convict, remission should be granted. If sentence is taken purely punitive in public interest to vindicate the authority of law and to deter others, it should not be granted.

In Salmond on Jurisprudence, 12th Edition by P.J. Fitzgerald, the author in Chapter 15 dealt with the purpose of criminal justice/punishment as under:

Deterrence acts on the motives of the offender, actual or potential; disablement consists primarily in physical restraint. Reformation, by contrast, seeks to bring about a change in the offender's character itself so as to reclaim him as a useful member of society. Whereas deterrence looks primarily at the potential criminal outside the dock, reformation aims at the actual offender before the bench. In this century increasing weight has been attached to this aspect. Less frequent use of imprisonment, the abandonment of short sentences, the attempt to use prison as a training rather than a pure punishment, and the greater employment of probation, parole and suspended sentences are evidence of this general trend. At the same time, there has been growing concern to investigate the causes of crime and the effects of penal treatment.... The reformative element must not be overlooked but it must not be allowed to

assume undue prominence. How much prominence it may be allowed, is a question of time, place and circumstance.

R.M.V. Dias, in his book Jurisprudence (Fifth Edition- 1985) observed as under:

The easing of laws and penalties on anti-social conduct may conceivably result in less freedom and safety for the law-abiding. As Dietze puts it: `Just as the despotio variant of democracy all too often has jeopardized human rights, its permissive variant threatens these rights by exposing citizens to the crimes of their fellowmen....

...The more law-abiding people lose confidence in the law and those in authority to protect them, the more will they be driven to the alternative of taking matters into their own hands, the perils of which unthinkable and are nearer than some liberty-minded philanthropists seem inclined to allow....

Legal maxim, "Veniae facilitas incentivum est delinquendi", is a caveat to the exercise of clemency powers, as it means - "Facility of pardon is an incentive to crime." It may also prove to be a "grand farce", if granted arbitrarily, without any justification, to "privileged class deviants". Thus, no convict should be a "favoured recipient" of clemency.

37. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. "Society without crime is a utopian theory". The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that "guilty must pay for his crime" should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of "Savage Justice" is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.

38. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and other similar circumstances.

39. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. `Vana Est Illa Potentia Quae Nunquam Venit In Actum' means-vain is that power which never comes into play.

40. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.

41. This Court in Mahender Singh (supra) has taken note of the provisions of Act 1894 and rules framed thereunder as well as the relevant paragraphs of Punjab Jail Manual. Section 59(5) of Act 1894 enables the Government to frame rules for "award of marks and shortening of sentence". Rules define prisoner including a person committed to prison in default of furnishing security to keep peace or be of good behaviour. Rules further provide for classification of prisoners according to the intensity and gravity of the offence. According to the classification of prisoners, Class 1 prisoners are those who had committed heinous organized crimes or specially dangerous criminals. Class 2 prisoners include dacoits or persons who commit heinous organized crimes. Class 3 prisoners are those who do not fall within Class 1 or Class 2. Rule 20 thereof provides that life convict being a Class 1 prisoner if earned such remission as entitles him to release, the Superintendent shall report accordingly to the Local Government with a view to the passing of orders under Section 401 Cr.P.C. Rule 21 provides that save as provided by Rule 20, when a prisoner has earned such remission as entitles him to release, the Superintendent shall release him. Instant case falls in Class 3, not being a case of organized crime or by professionals or hereditary or specially dangerous criminals.

Undoubtedly, the aforesaid rules are applicable in Haryana in view of the State Re-organisation Act. These are statutory rules, not merely executive instructions. Therefore, a "lifer" has a right to get his case considered within the parameters laid down therein.

It may not be out of place to mention here that while deciding the case in Sadhu Singh (supra), provisions of the aforesaid Act 1894 and Rules referred to hereinabove, had not been brought to the notice of this Court.

More so, consistent past practice adopted by the State can furnish grounds for legitimate expectation (vide Official Liquidator v. Dayanand and Ors. MANU/SC/4591/2008 : (2008) 10 SCC 1).

42. We have already noticed that the earlier policies including the policy dated 04.02.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.08.2008 is in exercise of the powers under Section 432 read with Sections 433 and 433A of Cr.P.C. The restriction under Section 433A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 Cr.P.C. The notification dated 13.08.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.08.2008 cannot override the policy dated 04.02.1993.

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 prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given benefit thereof.

44. As per the information furnished by the appellant-State of Haryana, the respondent Jagdish has served more than 14 years (actual) on 12.2.2009 i.e. prior to the date of judgment impugned herein dated 17.2.2009. By now, the respondent has served (actual) for more than 15 years. Respondent falls in category 3 of the prisoners as he did not indulge in any organised crime.

45. Accordingly, for the reasons given hereinabove, we find no reason to interfere with the judgment of the High Court, which is hereby affirmed. The appeal is dismissed accordingly, subject to the direction that the appellant-State Government shall proceed to calculate the sentence for the purpose of consideration of remission in the case of the respondent as per the policy dated 04.02.1993.

In view of our judgment pronounced today in Criminal Appeal No. ...of 2010 @ SLP(Crl.) No. 6638 of 2009 (State of Haryana and Ors. v. Jagdish), these Special Leave Petitions are dismissed.

Citation: AIR2000SC890, 2000(1)ALD(Cri)535, (2001)1CALLT51(SC), 2000CriLJ1408, JT2000(1)SC629, RLW2000(2)SC241, 2000(1)SCALE465, (2000)3SCC394, [2000]1SCR698,

2000(1)UJ463(SC)


Criminal Appeal Nos. 141 with 142, 143, 144, 145, 146 and 147 of 2000 (Arising out of S.L.P. (Crl.) Nos. 1810 of 1999 with 145 of 2000 with 643, 1812, 2033, 2034 and 2151 of 1999)


Appellants:State of Haryana and Others Vs.

Respondent:Mohinder Singh

Hon'ble Judges: S. Saghir Ahmad and D. P. Wadhwa, JJ.

Counsels: For Appellant/Petitioner/Plaintiff: Mahabir Singh, S.R. Sharma, Shikha Roy Pabbi, S. K. Pabbi, Prem Malhotra, Advs

For Respondents/Defendant: Rao Ranjit, Kishan Datta and Dayan Krishnan (AC), Advs.

Subject: Criminal

Acts/Rules/Orders: Code of Criminal Procedure, 1973 - Sections 107, 109 and 432; Indian Penal Code, 1860 - Sections 121 to 130, 147, 148, 152, 224, 302, 304-A, 306, 307, 308, 323, 324, 325, 326, 332, 333, 352, 353, 376, 377 and 389; Foreigners Act, 1948; Punjab Habitual Offenders (Control and Reform) Act, 1952 - Section 2(3); Constitution of India - Article 161; Passport Act, 1967; Criminal Law Amendment Act, 1961 - Sections 2 and 3; Official Secrets Act, 1930 - Sections 3, 4, 5, and 6 to 10; Good Conduct Prisioners Probational Release Act, 1926; Haryana Good Conduct Prisonsers (Temporary Release) Act, 1988 - Section 3 and 4; Punjab Good Conduct Prisoners (Tenporary Release) Act, 1962

Cases Referred: Poonam Lata v. M.L. Wadhawan and Others; Nalamolu Appala Swamy v. State of Andhra Pradesh; Jai Prakash v. State of Haryana

Citing Reference:

Authorities Referred: Dictionary of American Penology, by Vergil L. Williams; Black's Law Dictionary 6th edn.; Concise Oxford Dictionary new edition; Concise Oxford Dictionary - New Edition; Black's Law Dictionary - Sixth Edition

Case Note:

Criminal remission Section 432 of Criminal Procedure Code, 1973 whether convict entitled to remission of his sentence in wake of Government circular issued under Section 432 when circular specifically applies to prisoners undergoing sentence and confined in jail impugned circular not extended to convicts on bail and thus carve out another category to which Court not entitled High Court not right in holding that respondents were entitled to remission appeals allowed.

JUDGMENT

D.P. Wadhwa, J.

1. Leave granted.

2. In five of the appeals (arising from SLP (Cri) Nos. 1810/99, 145/2000, 1812/99, 2033-34/99 and 2151/99) out of the batch of six questions involved Is if the respondent, a convict, is entitled to remission of his sentence for the period during which he is on ball. In the sixth appeal (arising from SLP (Cri) 643/99) question is if the prisoner, who is convicted of an offence under Section 376 of Indian Penal Code (IPC), though confined in jail, is entitled to remission of his sentence when the Government circular issued under Section 432 of the CrPC ('Code' for short) does not grant such remission to an inmate who has been convicted under Section 376, I. P. C.

3. High Court in batch of five appeals observed that conviction and sentence are two separate terms and that the moment a person is convicted he becomes stigmatic. High Court said that at that point of time he is a convict and if he has been granted bail by the appellate Court it is by virtue of provision of Section 389 of the Code and his sentence stands suspended and not that his conviction is suspended and that with the dismissal of appeal of such convict stigma of conviction is not wiped off. High Court was, therefore, of the opinion that such a convict would be entitled to remission for the period he was on bail when the circular gave the benefit of remission to a prisoner on parole/furlough. High Court gave direction to the State Government to

reconsider the case of the convict who, it said, should be entitled to the remission as per the circular during the period he was on bail.

4. In the sixth appeal (arising from SLP (Cri) No. 643/99), where the respondent was convicted for an offence under Section 376, I.P.C., High Court considered various provisions of the Punjab Jail Manual as applicable in the State of Haryana (paras 634, 635 and 637 of the Jail Manual) and held that the prisoner in this case was also entitled to remission as was granted to those prisoners who were on parole/furlough or were in jail on the date of the circular granting remission.

5. Before we consider the contentions it would be appropriate to set out the circulars granting remission to the prisoners. These circulars have been issued under Section 432 of the Code and their language is same. They were issued on different dates on July 22, 1987; March 16, 1988; August 14, 1989; August 14, 1991; January 29, 1992; April 29, 1993; and August 14, 1995. First such circular dated July 22, 1987 is applicable from July 6, 1987 and is as under:

In exercise of the powers conferred under Section 432 of the CrPC, 1973, the Governor of Haryana hereby grants special remission to the prisoners who happen to be confined in Jails in the State of Haryana on 6th July, 1987 and who have been convicted by Civil Courts of criminal jurisdiction (Criminal Court of Competent Jurisdiction?) in the State of Haryana. The remission is granted on the following scale:

Remission

i) Those who have been sentenced for a period exceeding 10 years 1 year ii) Those who have been sentenced for a period exceeding 2 years and upto 10 years 6 months iii) Those who have been sentenced for a period upto 2 years 3 months

Provided that:

i) No remission will be granted to persons convicted of rape or dowry deaths.

ii) The remission will not exceed VIth of the period of sentence.

iii) The minimum effective imprisonment will be three months (or less where the actual sentence is less than 3 months)

2. Remission will also be granted to all the convicts who were on parole/furlough from the jail on 6th July, 1987 subject to the condition that they surrender at the jail on the due date after the expiry of parole/furlough period for undergoing unexpired portions of their sentences.

3. Sentence of imprisonment imposed in default of payment of the fine shall not be treated as substantive for the purpose of grant of this remission.

4. All the prisoners convicted by Civil Courts of criminal jurisdiction (Criminal Court of Competent Jurisdiction?) in Haryana but undergoing their sentences in jails outside Haryana shall be entitled to the grant of remission on the above scale.

5. The remission will not be admissible to:

i) Detenus of any class.

ii) The persons sentenced under the Foreigners Act, 1948 and the Passport Act, 1967; iii) Pakistani Nationals;

iv) The persons sentenced under Section 2 and 3 of Criminal Law Amendment Act, 1961 and Sections 121 to 130 of the Indian Penal Code, 1860;

v) The persons sentenced under Sections 3, 4, 5, 6 to 10 of the Official Secrets Act, 1923;

vi) The persons imprisoned for failing to give security for keeping peace for their good behavior under Sections 107/109 of the Criminal Procedure Code, 1973;

vii) The persons who committed any major jail offence during the last two years and were punished of for the same under the relevant provisions of Punjab Jail Manual; and

viii) The persons who got the benefit of such a remission during the past one year from 6-7-87. The grant of this remission to life convicts will not affect the provisions of Section 433-A, Cr. P.C.

Dated Chandigarh. M.C. GUPTA the 22-7-87 Financial Commissioner & Secy. to Govt. Haryana, Jails Department.

Section 432 of the Code under which circular has been issued we reproduce -

432. Power to suspend or remit sentences.- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or

remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

(a) where such petition is made by the person sentenced, it is presented through the officer-in-charge of the jail; or

(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

(6) The provisions of the above sub-sections shall also apply to any order passed by a criminal court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.

(7) In this section and in Section 433, the expression "appropriate Government" means,-

(a) in cases where the sentence is for an offence against, or the order referred to in Sub-section (6) is passed under any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.

6. Article 161 of the Constitution also grants power to the Governor to grant pardons, etc. Though that Article may not be quite relevant in the present appeals but we may note the same-

161. Power of Governor to grant pardons, etc. and to suspend, remit or commute sentences in certain cases.- The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

7. It is not disputed that the circulars have been issued by the State Government in the exercise of powers conferred under Section 432 of the Code. Its authority to issue the circulars has not been questioned. From the language of the circular aforesaid it is relevant to note three points for the

purpose of these appeals : (1) it grants special remission to the prisoners, who are confined in jails in the State of Haryana on July 6, 1987, (2) Remission is. also to be granted to all the convicts who are even on parole/ furlough from the jail on July 6, 1987, (3) The remission of sentence cannot be granted to prisoners convicted of rape or dowry deaths.

8. The circular granting remission is authorised under the law. It prescribes limitations both as regards the prisoners who are eligible and those who have been excluded. Conditions for remission of sentence to the prisoners who are eligible are also prescribed by the circular. Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be relevant consideration for the State Government not to exercise power of remission in that case. Power of remission, however, cannot be exercised arbitrarily. Decision to grant remission has to be well informed, reasonable and fair to all concerned.

9. Terms bail, furlough and parole have different connotations. Bail is well understood in criminal jurisprudence. Provisions of bail are contained in Chapter XXXIII of the Code. It is granted by the officer-in-charge of a police station or by the Court when a person is arrested and is accused of an offence other than non-bailable offence. Court grants bail when a person apprehends arrest in case of non-bailable offence or is arrested of a non-bailable offence. When a person is convicted of an offence he can be released on bail by the appellate Court till his appeal is decided. If he is acquitted his bail bonds are discharged and if appeal dismissed he is taken into custody. Bail can be granted subject to conditions. It does not appear to be quite material that during the pendency of appeal though his sentence is suspended he nevertheless remains a convict. For the exercise of powers under Section 432 it may perhaps be relevant that the State Government may remit the whole or any part of the punishment to which a person has been sentenced even though his appeal against conviction and sentence was pending at that time. Appeal in that case might have to abate inasmuch as the person convicted has to accept the conditions on which State Government remits the whole or in part of his punishment.

10. In Dictionary of American Penology, by Vergil L. Williams 'furlough' is described as under -

Furloughs are variously known as temporary leaves, home visits, or temporary community release. For decades, prisons have occasionally granted short furloughs to inmates who were suddenly faced with a severe family crisis such as a death or grave illness in the immediate family. Furloughs of that type are treated as special circumstances, and often the inmate must be accompanied by an officer as part of the terms of the temporary release.

11. In the article 'Furlough Programs and Conjugal Visiting in Adult Correctional Institutions' by Carson W. Markley in Volume "Federal Probation" it is mentioned that "the term 'furlough' is frequently confused with special leave, which most adult institutions have long been willing to grant under extenuating circumstances, such as family crises. A prisoner on special leave customarily travels under escort, while on furlough he is on his own".

12. 'Furlough' according to Black's Law Dictionary (6th edn.) means "a leave of absence, e.g. a temporary leave of absence to one in the armed 'service of the country, an employee placed in a

temporary status without duties and pay because of lack of work or funds or for other non-disciplinary reasons. Also the document granting leave of absence." According to the Concise Oxford Dictionary (new edition) "Furlough" means : "leave of absence, esp. granted to a member of the services or to a missionary".

Parole is defined in these two dictionaries as under:

The Concise Oxford Dictionary - New Edition

The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behavior; such a promise, a word of honour.

Black's Law Dictionary - Sixth Edition

Release from jail, prison or other confinement after actually serving part of sentence; conditional release from imprisonment which entitles parolee to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.

13. In Poonam Lata v. M.L. Wadhawan MANU/SC/0875/1987 : 1987CriLJ1924 this Court was considering the nature and scope of parole in a case of preventive detention. It said (para 8 of AIR, Cri LJ):

There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See The Oxford Companion to Law edited by Walker, 1980 edn., p. 931; Black's Law Dictionary, 5th edn., p. 1006; Jowitt's Dictionary of English Law, 2nd edn., Vol. 2, p. 1320; Kenny's Outlines of Criminal Law, 17th edn., pp. 574-76; The English Sentencing System by Sir Rupert Cross at pp. 31-34, 87 et. seq.; American Jurisprudence, 2nd edn., Vol. 59, pp. 53-61; Corpus Juris Secundum, Vol. 67; Probation and

Parole, Legal and Social Dimensions by Louis P. Carney.) It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his Incarceration in the event of misbehavior.

14. Para 20.8 in Chapter XX dealing with "System of Remission, Leave and Premature Release" of the Report of the All India Committee on Jail Reforms, 1980-83 (Volume-I) refers to leave which can be granted to the petitioner. The relevant portion is as under:

Different concepts such as parole, furlough, ticket of leave, home leave, etc., are used in different States to denote grant of leave or emergency release to a prisoner from prison. The terminology used is not uniform and is thus confusing. There is also no uniformity with regard to either the grounds on which leave is sanctioned or the level of authority empowered to sanction it. There is also a lot of diversity in the procedure for grant of leave. The scales at which these leaves are granted also differ from State to State; for example in some States parole is granted for a period extending up to 15 days while in other States it is restricted to 10 days only.

15. 'Furlough' and 'parole' are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. These two terms have acquired different meanings in the statute with varied results. Dictionary meanings, therefore, are not quite helpful. In this connection we may refer to the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 which has repealed the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962. Punjab Act was earlier applicable in the State of Haryana. Language of both the Acts is same and it may be useful to refer Sections 3 and 4 of any of these two Acts to understand the difference between parole and furlough:

3. Temporary release of prisoners on certain grounds,- (1) The State Government may, in consultation with the District Magistrate or any other officer appointed in this behalf, by notification in the Official Gazette and subject to such conditions and in such manner as may be prescribed, release temporarily for a period specified in Sub-section (2), any prisoner, if the State Government is satisfied that -

(a) a member of the prisoner's family had died or is seriously ill or the prisoner himself is seriously ill; or

(b) the marriage of prisoner himself, his son, daughter, grandson, grand-daughter, brother, sister, sister's son or daughter is to be celebrated; or

(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other agricultural operation on his land or his father's undivided land actually in possession of the prisoner; or

(d) it is desirable to do so for any other sufficient cause.

(2) The period for which a prisoner may be released shall be determined by the State Government so as riot to exceed -

(a) where the prisoner is to be released on the ground specified in Clause (a) of Sub-section (1), three weeks;

(b) where the prisoner is to be released on the ground specified in Clause (b) or Clause (d) of Sub-section (1), four weeks; and

(c) where the prisoner is to be released on the ground specified in Clause (c) of Sub-section (1), six weeks:

Provided that the temporary release under Clause (c) can be availed more than once during the year, which shall not, however, cumulatively exceed six weeks.

(3) The period of release under this section shall not count towards the total period of sentence of a prisoner.

(4) The State Government may, by notification, authorise any officer to exercise its powers under this section in respect of all or any other ground specified thereunder.

4. Temporary release of prisoners on furlough.- (1) The State Government or any other officer authorised by it in this behalf may, in consultation with such other officer as may be appointed by the State Government, by notification, and subject to such conditions and in such manner as may be prescribed, release temporarily, on furlough, any prisoner who has been sentenced to a term of imprisonment of not less than four years and who-

(a) has, immediately before the date of his temporary release, undergone continuous imprisonment for a period of three years, inclusive of the pre-sentence detention, if any;

(b) has not during such period committed any jail offence (except an offence punished by a warning) and has earned at least three annual good conduct remissions:

Provided that nothing herein shall apply to a prisoner who-

(i) is a habitual offender as defined in Sub-section (3) of Section 2 of Punjab Habitual Offenders (Control and Reform) Act, 1952; or

(ii) has been convicted of dacoity or such other offence as the State Government may, by notification, specify.

(2) The period of furlough for which a prisoner is eligible under Sub-section (1) shall be three weeks during the first year of his release and two weeks during each successive year thereafter.

(3) Subject to the provisions of Clause (d) of Sub-section (3) of section 8 of the period of release referred to in Sub-section (1) shall count towards the total period of the sentence undergone by a prisoner.

16. It would be thus seen that when a prisoner is on parole his period of release does not count towards the total period of sentence while when he is on furlough he is eligible to have the period of release counted towards the total period of his sentence undergone by him. Delhi ail Manual also uses the same terminology which we may set out as under:

Part 1 (Parole)

1. (i) A prisoner may be released on parole for such period as government may order in cases of serious illness or death of any member of prisoner's family or his nearest relatives. For this purpose the prisoner's family or his nearest relatives mean his/ her parents, brothers, sisters, wife/husband and children. A prisoner may similarly be released on parole to arrange for the marriage of his issue for a period of not exceeding four weeks.

(ii) The period spent on parole will not count as part of the sentence.

2 and 3. ...

Part II (Furlough)

1. (i) A prisoner who is sentenced to 5 years or more of rigorous imprisonment and who has actually undergone three years' imprisonment excluding remission may be released on furlough. The first spell may be of three weeks and subsequent spells of two weeks each, per annum, provided that -

(a) his conduct in jail has been good; he has earned three Annual Good Conduct Remissions and provided further that he continues to earn good conduct remission or maintains good conduct;

(b) that he is not a habitual offender;

(c) that he is not convicted of robbery with violence, dacoity and arson;

(d) that he is not such a person whose presence is considered highly dangerous or prejudicial to public peace and tranquility by the District Magistrate of his home district.

(ii) The period of furlough will count as sentence undergone except any such period during which the prisoner commits an offence outside.

2 to 6...

17. Chapter XX of the Punjab Jail Manual as applicable in the State of Haryana contains remission system. Paras 633, 633-A, 635, 637, 644 and 645 are relevant for our purpose which we set out hereunder:

633. Cases In which ordinary remission not earned.- No ordinary remission shall be earned in the following cases, namely:

(1) in respect of any sentence of imprisonment amounting, exclusive of any sentence passed in default of payment of fine, to less than three months;

(2) in respect of any sentence of simple imprisonment except for any continuous period not being less than one month during which the prisoner labours voluntarily:

633-A. Ordinary remission not earnable for certain offences committed after admission to jail.- If a prisoner is convicted of an offence committed after admission to jail under Section 147, 148, 152, 224, 302, 304, 304-A, 306, 307, 308, 323, 324, 325, 326, 332, 333, 352, 353 or 377 of the Indian Penal Code, or of an assault committed after admission to Jail on a warder or other officer or under Section 6 of the Good Conduct Prisoners' Probational Release Act, 1926 (X of 1926), the remission of whatever kind earned by him under these rules up to the date of the said conviction may, with the sanction of the Inspector-General of Prisons, be cancelled.

635. Scale of award of remission,- 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.

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 its 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 first day of the next calendar month following the appointment of the prisoner as convict warder, convict overseer or convict night watchman.

644. Special remission.- (1) Special remission may be given to any prisoner whether entitled to ordinary remission or not other than a prisoner undergoing a sentence referred to in paragraph 632, for special service as for example.-

For the existing para the following shall be substituted.

(1) Special remission may be given to any prisoner whether entitled to ordinary remission or not other than a prisoner undergoing a sentence referred to in paragraph 632, for special services as for example:

(a) assisting in detecting or preventing breaches of prison discipline or regulations,

(b) success in teaching handicrafts,

(c) special excellence in, or greatly increased out-turn of work of good quality,

(d) protecting an officer of the prison from attack,

(e) assisting an officer of the prison in the case of outbreak of fire or similar emergency,

(f) economy in wearing clothes,

(g) donating blood to the Blood Bank provided that the scale of special remission for this service shall be fifteen days for each occasion on which blood is donated subject to the limit laid down in sub-para (3),

(f) voluntarily undergoing vasectomy operation by a prisoner, having three children, provided that the scale of special remission for such service shall be 30 days, subject to the limits laid down in sub-para (3).

(2) Special remission may also be given to any prisoner released under the Good Conduct Prisoners' Probational Release Act, 1926 for special services as:

(i) Special excellence in, of greatly increased out-turn or good quality,

(ii) Assisting employer in case of outbreak of fire or protecting his life or property from theft and other meritorious services.

(3) Special remission may be awarded:

(i) by the Superintendent to an amount not exceeding three days in one year,

(ii) by the Chief Probation Officer in the case of prisoners released under the provisions of the Good Conduct Prisoners' Probational Release Act, 1926 to an amount not exceeding 30 days in one year.

(iii) by the Inspector-General of the Local Government to an amount not exceeding sixty days in one year.

Explanation : For the purpose of this rule, years shall be reckoned from the date of sentence and any fraction of a year shall be reckoned as a complete year.

(4) An award of special remission shall be entered on the history ticket of the prisoner as soon as possible after it is made, and the reasons for every award of special remission by a Supdt. shall be briefly recorded, and in case of prisoners released under the Good Conduct Prisoners' Probational Release Act, 1926, such entries and reasons thereof shall be recorded by the Probation Officer.

645. Total remission not to exceed one-fourth part of sentence.- The total remission awarded to a prisoner under all 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.

18. When a circular specifically applies to the prisoners who are undergoing sentence and are confined in jail and even to those who are on parole or furlough we cannot extend this circular to convicts who are on bail and thus carve out another category to which Court is not entitled under Section 432 of the Code. As noted above, validity of the circular has not been challenged on any other ground.

19. In the case of Harphool Singh, who was convicted of rape, circular specifically is not applicable to the prisoner convicted of an offence of rape or other dowry offences. Perhaps, this provision was not brought to the notice of the High Court when it held that circular would also apply in the case of Harphool Singh. It was submitted by Mr. Dayan Krishan, learned amicus curiae that nevertheless Harphool Singh might have already undergone the sentence after earning remission under the Punjab Jail Manual and present appeal in his case would be infructuous. It will be for the State Government to consider, if Harphool Singh has served out his sentence in normal course without getting any remission under the circular on the basis of the impugned judgment of the High Court. It is not disputed that Harphool Singh has already got benefit of remission to which he was entitled under Chapter XX of the Punjab Jail Manual. He is certainly not entitled to remission under the circular as that is not applicable to a person convicted of an offence under Section 376, I. P. C.

20. From para 637 as reproduced above a convict on bail is not entitled to the benefit of remission system. In fact question is no longer res integra as it is covered by the decision of this Court in Jai Prakash v. State of Haryana MANU/SC/0233/1987 : 1988CriLJ193 . While considering the scope of para 7 this Court held:

On a reading of the aforesaid provision it is manifest that a prisoner who has been released on bail or whose sentence has been temporarily suspended and has afterwards been re-admitted in jail will be brought under remission system on the first day of the calendar month next following his readmission. In other words, a prisoner is not eligible for remission of sentence during the period he is on bail or his sentence is temporarily suspended. The submission that the petitioners who were temporarily released on bail are entitled to get the remission earned during the period they were on bail, is not at all sustainable.

21. In the appeals where the convicts were on bail High Court in the impugned judgments relied on a decision of this Court in Nalamolu Appala Swamy v. State of Andhra Pradesh MANU/SC/0533/1989 : [1989]1SCR796 , where this Court observed as under:

We find merit in the contention because the scheme of remission formulated under the GO is with reference to the period of sentence actually undergone by different classes of prisoners and in the case of some the period of actual sentence together with the remissions earned for reckoning the total sentence. The GO does not stipulate that in order to get the benefit of remission the prisoners must actually be in jail on the date the GO was issued.

22. Decision of this Court in the case of Nalamolu Appala Swamy aforesaid, however, turns on the facts of that case. The GO which granted remission, has not been set out in the judgment, though the judgment noticed that GO has been issued by the Government for granting remission to certain categories of prisoners "to commemorate the occasion of anniversary of formation of the Andhra Pradesh State on November 1, 1984 and the restoration of democratic rule in the State". The Court also noticed the argument of the appellants that GO nowhere sets out that benefit of remission would be confined to prisoners who were actually in jail on the date of the GO and riot to others who were on bail.

23. We are of the opinion that the High Court was not right in the judgments impugned in these appeals holding that the respondents were entitled to remission of their sentences under the circulars in question issued under Section 432 of the CrPC. These appeals are, therefore, allowed and the impugned judgments of the High Court are set aside.

24. We place on record our appreciation of the valuable assistance rendered to us by Mr. Dayan Krishnan, Advocate who appeared as amicus curiae.

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