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2000 DIGILAW 326 (HP)

NATWAR LAL v. STATE OF H. P.

2000-12-20

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT Kamlesh Sharma, J: - In his various representations which have been treated as Criminal Miscellaneous Petition (Main), the convict who is presently undergoing life sentence in District Jail, Rajkot, District Rajkot, Gujarat, has asked for the following reliefs: i) to give him the benefit of special remission of two years as per circular dated 15.8.1997 issued by the Government of Gujarat on the occasion of Golden jubilee of independence on 15th August, 1997 ii) to issue directions to the Government of Himachal Pradesh to consider his case for pre-mature release by giving him the benefit of period of parole as well as furlough in accordance with law; and iii) to transfer him to any of the Jails in Himachal Pradesh from District Jail, Rajkot, District Rajkot, Gujarat. 2. From the reply filed on behalf of respondents No. 1 and 3 on the affidavit of Shri I.N.S. Sandhu, the then Additional Director General of Prisons, Himachal Pradesh, it transpires that the petitioner was convicted for an offence under Section 460 read with section 34,1.P.C. and was sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/-, in default of which he would undergo imprisonment for two years 26.2.1988 passed by Sessions Judge, Dharamsala, which was confirmed by this Court. On the basis of information received from the Superintendent, Central Prison, Ahmedabad it is stated that the conduct of the petitioner in Jail is not good and he was awarded jail punishments three times. It is further stated that the petitioner has undergone actual imprisonment with set-off period, of 9 years and 26 days as on 31.8.1999. Along with their reply-affidavit respondents 1 and 3 have annexed a copy of the letter dated 10.9.1999 (Annexure RA) received from Superintendent, Central Prison, Ahmedabad addressed to Additional Director General of Prisons, Himachal Pradesh with which the nominal roll of sentence of the petitioner is also placed on record. It is stated in the nominal roll that petitioner had enjoyed parole period of 823 days from 17.8.1988 to 26.10.1996, furlough for 56 days from 9.8.1990 to 14.8.1998 at different intervals and he has been given following jail punishment: "(1) Dt. 11.10.90 38 days remission cut for late surrender by police from furlough leave. (2) Dt. 18.8.93 571 days remission cut for late surrender by police from parole leave. (3) Dt. 11.10.90 38 days remission cut for late surrender by police from furlough leave. (2) Dt. 18.8.93 571 days remission cut for late surrender by police from parole leave. (3) Dt. 16.9.98 35 days remission cut for late surrender by police from furlough leave." 3. Respondents 1 and 3 have also placed on record a copy of letter dated 12.8.1983 (Annexure RB), which, according to them, is a policy regarding pre-mature release of prisoners prescribing the procedure for dealing with the application for pre-mature release of life convicts. According to respondent’s No. 1 and 3, this policy has been made keeping in view the provisions of Section 428 of the code of Criminal Procedure. It is further stated that since petitioner has undergone only 9 years 26 days sentence as on 31.8.1999 he is not eligible for consideration for pre-mature release under the said policy. 4. Respondents 1 and 3 have also taken the stand that since the petitioner was sentenced by a criminal court within the jurisdiction of the State of Himachal Pradesh he will be governed by the laws of this State so far remission of his sentence is concerned. It is made clear that on his request he was transferred from Model Central Jail, Nahan to District Jail, Junagarh, Gujarat alongwith his co-accused life convict kashu Bhai, who was transferred to Central Jail, Baroda, Gujarat, as per order of this Court 29.6.1988 passed in Cr. W.P. No. 34 of 1988, titled Kashu Bhai v. State of HP & others. 5. By supplementary affidavit dated 18.8.2000 it is stated on behalf of respondent’s No. 1 and 3 that parole granted to the convicts under Section 3 of Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 (Act 12 of 1969) is not counted towards the sentence undergone by the prisoners, whereas, the furlough granted to the prisoners is counted towards the sentence undergone by them. Referring to the judgment in Kartar Singh & Ors. v. State of Haryana, AIR 1982 SC 1439, it is submitted that the petitioner is not entitled to the benefit of set-off under Section 428, Code of Criminal Procedure. It is also stated that they have no knowledge whether the petitioner has filed appeal against the jail punishments awarded to him by the Authorities of the Jail where he is undergoing life sentence. 6. It is also stated that they have no knowledge whether the petitioner has filed appeal against the jail punishments awarded to him by the Authorities of the Jail where he is undergoing life sentence. 6. We have heard learned counsel for the parties and gone through the record. 7. Before considering the reliefs sought for by the petitioner we will refer to case law on remission. 8. In their recent judgment in State of Haryana & Ors. v. Mohinder Singh, 2000(3) SCC 394, the learned Judges of the Supreme Court after considering Section 432, Code of Criminal Procedure, which provides for power to grant suspension or remit sentence to the appropriate Government, have held in paragraph 10 that: "...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 the State Government remits the whole or part of his punishment" And in paragraph 17 that: " 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..." 9. Considering the Sections 3 and 4 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 which is parimateria to the H.P. Act No. 12 of 1969, it is concluded in paragraph 18 that: "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....." 10. This judgment has been quoted with approval in Constitution Bench judgment Sunil Fulchand Shah v. Union of India & Ors. 2000(3) SCC 409 and in State of Haryana v. Nauratta Singh & Ors., 2000(3) SCC 514. 11. This judgment has been quoted with approval in Constitution Bench judgment Sunil Fulchand Shah v. Union of India & Ors. 2000(3) SCC 409 and in State of Haryana v. Nauratta Singh & Ors., 2000(3) SCC 514. 11. In a constitution Bench of the Supreme Court in Maru Ram v. Union of India & Ors., 1981(1) SCC 107, three of the conclusions arrived at by the learned Judges in paragraph 72 which are relevant to the present case are:- "(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433-A, they will override Section 433-A 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-afresh 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 guide- lines under Articles 72/161 and orders for release passed. We cannot fault the government, if in some intractably savage delinquents, Section 433-A is itself treated as a guide-line for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme." (11) "The U.P. Prisoners Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy." "Section 433-A does not forbid parole or other release within the 14-year span. So to interpret the section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty." 12. In State of Haryana & Anr. Similar other statutes and rules will enjoy similar efficacy." "Section 433-A does not forbid parole or other release within the 14-year span. So to interpret the section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty." 12. In State of Haryana & Anr. v. Ram Diya, 1990(2) SCC 701, the learned Judges while interpreting Section 433-A, Code of Criminal Procedure, have held in paragraph 7 :- "....According to Section 433-A a person who has been sentenced to death and whose death sentence has been commuted into one of imprisonment for life and persons who have been sentenced to imprisonment for life for an offence for which death is one of the punishments provided by law should undergo actual imprisonment of 14 years in jail. We are referring to Section 433-A in this judgment only for a limited purpose of showing that after the introduction of this section, the life convicts falling within the purview of Section 433-A have to undergo the mandatory minimum 14 years of actual imprisonment. It may be mentioned at this juncture that no one has got a vested right to claim premature release on the ground that he has suffered the minimum actual imprisonment as prescribed under Section 433-A because a sentence of imprisonment for life is incarceration until death, that is, for the remaining period of convicted persons actual life vide Kishori Lal v. Emperor, Gopal Vinayak Godse v. State of Maharashtra, Maru Ram v. Union of India, Kartar Singh v. State of Haryana and Sadhu Singh v. State of Punjab." And in Paragraph 8:- "There is no question of releasing such a lifer early in the absence of an order of communication under Section 55 IPC by the appropriate government which term is defined under Section 55-A IPC or under Section 433(b) of Criminal Procedure Code of 1973 by the appropriate government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution of India. Incidentally, it may be stated that Section 54 empowers the appropriate government to commute the sentence of death for any other punishment provided by the Indian Penal Code." And also in paragraph 9:- "Section 432 of Criminal Procedure gives the power to the appropriate government either to suspend or to remit the sentence. Incidentally, it may be stated that Section 54 empowers the appropriate government to commute the sentence of death for any other punishment provided by the Indian Penal Code." And also in paragraph 9:- "Section 432 of Criminal Procedure gives the power to the appropriate government either to suspend or to remit the sentence. The meaning of the expression appropriate government occurring in sections 432 and 433 is given under sub-section (7) of Section 432." 13. In a recent judgment of the Supreme Court in State of Haryana & Irs. v. Balwan, 1999(7) SCC 355, while referring to the judgment in Maru Rams case (supra) the learned Judges have said in paragraph 4 :- "...Thus, this court in clear terms has laid down that by earning remissions a life convict does not acquire a right to be released prematurely. But if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution." And in paragraph 5:- "If this is the correct legal position then no life convict can validly contend that his case for premature release should be considered according to the government policy/instructions that were in force on the date on which he came to be convicted as he acquired a right to get remission as declared and to be released accordingly. If according to the government policy/instructions in force at the relevant time the life convict has already undergone the sentence for a period mentioned in the policy decision/instructions, then the only right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of powers under Article 161 of the Constitution. Ordinarily, when an authority is called upon to exercise its powers that will have to be done consistently with the legal position and the government decision/instructions prevalent at that time. Ordinarily, when an authority is called upon to exercise its powers that will have to be done consistently with the legal position and the government decision/instructions prevalent at that time. 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 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..." 14. From the ratio of above cited judgments it is clear that the case of the petitioner is to be considered for pre-mature release by the State Government under Article 161 of the Constitution in accordance with the guidelines laid down by it by way of Rules or Scheme framed by it. The respondents have placed on record letter dated 12th August, 1983 (Annexure RB) written by Special Secretary (Home) to the Government of Himachal Pradesh to the Inspector General of Prisons, Himachal Pradesh wherein norms are prescribed for pre-mature release of prisoners. As per these norms the cases of pre-mature release of the prisoners are required to be sent to the Government after the periods of sentence including remissions under Para 516-B of the Punjab Jail Manual and subject to the conditions prescribed therein. By now it is well settled that these are administrative instructions, which should be followed indiscriminately for considering the cases of pre-mature release. We are of the view that while issuing these instructions the Himachal Pradesh Good Conduct Prisoners Probational Release Act, 1968 and the Rules framed thereunder as well as the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and the rules framed thereunder have not been kept in view. Moreover, these instructions need to be reviewed and made upto date in view of the law laid down by the Supreme Court in its judgments from Maru Rams case (supra) till today. 15. Moreover, these instructions need to be reviewed and made upto date in view of the law laid down by the Supreme Court in its judgments from Maru Rams case (supra) till today. 15. So far the contention of the respondents that relying upon the judgment in Kartar Singh & Ors., v. State of Haryana AIR 1982 SC 1439, the benefit set off under Section 428 of the Code of Criminal Procedure is not available to the life convict is concerned, it deserves to be rejected as the judgment in Kartar Singhs case has been overruled by Constitution Bench in Bhagirath v. Delhi Administration, 1985(2) SCC 580, wherein it is held in Para 13:- "13. We have considered with great care the reasoning upon which the decision in Kartar Singh proceeds. With respect, we are unable to agree with the decision. We have already discussed why, imprisonment for life is imprisonment for a term, within the meaning of Section 428. We would like to add that we find it difficult to agree that the expressions imprisonment for life and imprisonment for a term are used either in the Penal Code or in the Criminal Procedure Code in contradistinction with each other. Section 304, 305,307 and 394 of the Penal Code undoubtedly provide that persons guilty of the respective offences, shall be punished with imprisonment for life or with imprisonment for a term not exceeding a certain number of years. Bui, that is the only manner in which the Legislature could have expressed its intention that persons who are guilty of those offences shall be punished with either of the sentences mentioned in the respective sections. The circumstances on which the learned Judges have placed reliance in Kartar Singh, do not afford any evidence, intrinsic or otherwise, of the use of the two expressions in contradistinction with each other. Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the legislature. That does not mean that there is, necessarily, an antithesis between those expressions. And in para 14:- "14. Two or more expressions are often used in the same section in order to exhaust the alternatives which are available to the legislature. That does not mean that there is, necessarily, an antithesis between those expressions. And in para 14:- "14. The reasoning in Kartar Singh that an order of remission does not interfere with the sentence recorded by the court but merely affects the execution of the sentence, stands answered by the interpretation which we have put upon the language of section 428 that persons sentenced to imprisonment for life are sentenced to imprisonment for a term. It is not because of remission that a sentence of life imprisonment becomes an imprisonment for a term." And also in para 15:- “15. We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude laws benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the "mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life". As we have indicated earlier, graver the crime, longer the sentence, greater the need for set-offs and remissions. Punishments are not longer retributory. They are reformative." 16. Therefore, in view of the ratio of this judgment it is clear that the period of detention undergone by the petitioner during his trial is required to be set off against the sentence of life imprisonment imposed upon him subject to the provisions contained in Section 433-A of the Code of Criminal Procedure provided orders are passed by the appropriate authority under Section 432 or Section 433 of the Code of Criminal Procedure. 17. One more question arises that who is the competent authority to pass orders of remission under Section 432 of the Code of Criminal Procedure? 17. One more question arises that who is the competent authority to pass orders of remission under Section 432 of the Code of Criminal Procedure? The expression appropriate Government used in Section 432(7) (old 401(2) of the Code of Criminal Procedure has been interpreted by the Supreme Court in Hanumant Dass v. Vinay Kumar & Ors., AIR 1982 SC 1052. Referring to sub section (7) of Section 432 it is laid down in paragraph 14:- "According to this section the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed. A somewhat similar question came up for consideration in the State of Madhya Pradesh v. Rattan Singh, 1976 Supp SCR 552: (1976 Cri.L.J. 1192), where the respondent was convicted and sentenced to imprisonment for life by a court in the State of Madhya Pradesh. At this request he was transferred to a jail in the State of Punjab, to which State he belonged. He applied to the Government of Punjab that under the Punjab Jail Manual he is entitled to be released since he had completed more than 20 years of imprisonment. The application was sent to the Government of Madhya Pradesh, which rejected it. In a writ petition filed by him the High Court of Punjab was the appropriate authority to release him and directed the State of Punjab to consider the matter. This Court in appeal observed a perusal of this provision clearly reveals that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government within the meaning of Sec. 401 of the Code of Criminal Procedure. Thus since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh, the State of Madhya Pradesh would be the appropriate Government or exercise the discretion for remission of the sentence under Section 401 (1) of the Code of Criminal Procedure....." That was a case based on S. 401 of the old Criminal Criminal P.C. but the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of S.402(3) in sub-section (7) of S.432." 18. Therefore, it is clear that it is the Government of Himachal Pradesh which is the appropriate Government for passing orders under Section 432 of the Code of Criminal Procedure as the petitioner was convicted in this State, irrespective of the fact that he was transferred to District Jail Junagarh, Gujarat at his request for the consideration that he belongs to that State. Therefore, the benefit of special remission of two years as per Circular dated 15.8.1997 issued by the Government of Gujarat on the occasion of Golden Jublee of Independence on 15th August, 1997 was rightly not given to the petitioner. In the result, the first relief sought for by the petitioner is rejected. 19. So far relief (ii) is concerned, respondents 1 and 2 are directed to consider the case of the petitioner for premature release in accordance with law, that is, the provisions of Himachal Pradesh Good Conduct Prisoners Probational Release Act, 1968 and the Rules framed thereunder as well as the Himachal Pradesh Good Conduct Prisoners (Temporary Release) Act, 1968 and the Rules framed thereunder at an appropriate time as per the instructions or guidelines or scheme framed by the Government in this regard. 20. So far relief (iii) is concerned, the petitioner was transferred to the Jails in the State of Gujarat at his own request as he belongs to that State, his request for retransfer to the Jails in the State of Himachal Pradesh may also be considered by the Government of Himachal Pradesh in accordance with law within a period of three months from the date of this judgment. The petition is disposed of accordingly. A copy of this judgment be sent to the petitioner in the Jail. 21. Before we part with this judgment, we place on record our appreciation for the assistance rendered by Shri Deepak Gupta, who was appointed Amicus Curiae by us.