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2003 DIGILAW 185 (HP)

HIRDYA RAM v. UNION OF INDIA

2003-07-11

R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.—The petitioner Hirdya Ram claims himself to be a freedom fighter and, therefore, entitled to freedom fighters pension under the Swatantarta Sainik Samman Pension Scheme, 1980 (for short, the Pension Scheme). 2. The case of the petitioner is that he participated in the Praja Mandal movement in the then princely State of Sirmour. He was arrested and tried for the offence under Section 19 of the Sirmour Public Safety Act, 2004 (BK). He was convicted by the learned District Magistrate for the said offence on 16 Manghir, 2004 (BK) and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-. In default of payment of fine the petitioner was sentenced to undergo rigorous imprisonment for a further period of six months. 3. The conviction and sentence imposed upon the petitioner by the learned District Magistrate was affirmed in appeal by the learned Sessions Judge, Nahan on 1st Magh, 2004 (BK). 4. Feeling aggrieved, the petitioner went up in revision, being Cr. Revision No. 17 of 2004 (BK) before the then High Court of Sirmour State. The High Court on 4.3.1948 maintained the conviction of the petitioner for the offence under Section 19 of the Sirmour Public Safety Act, 2004 (BK). However, the sentence imposed was modified and reduced to the period already undergone as under:— "Buti Nath and Hirda Ram have been in jail, including the period of trial since the day of occurrence, viz., 17.7.04, that is, for more than five months, and the other three petitioners, two of whom were arrested on 5.8.04 and the third on 6.8.04 have been in jail for more than 4-1/2 months. Even after their conviction all the five petitioners have been in jail now for more than three months. I consider that in the circumstances stated above, the substantive sentence of imprisonment already undergone by the petitioner is sufficient and the same is hereby reduced to the term already undergone in the case of all the five petitioners." 5. In pursuance of the reduction in the sentence by the then High Court of Sirmour State, the petitioner was released from Jail on 3.1.2005 (BK). 6. The petitioner applied for freedom fighters pension under the Pension Scheme formulated by respondent No. 1. In pursuance of the reduction in the sentence by the then High Court of Sirmour State, the petitioner was released from Jail on 3.1.2005 (BK). 6. The petitioner applied for freedom fighters pension under the Pension Scheme formulated by respondent No. 1. His application was rejected on the grounds that his sentence was reduced in appeal by the then High Court of the then Sirmour State and the actual period of imprisonment suffered by him was less than six months. 7. The petitioner then approached this Court by way of a writ petition, being CWP No. 301 of 1996. The said writ petition was dismissed by a Division Bench of this Court on 7.4.1997 by observing as under:— "In view of such belated application to this Court, the matter cannot be entertained under Article 226 of the Constitution of India. This writ petition is dismissed. It is open to the petitioner to pursue, if so advised, the Government of India with regard to his application already filed in June 1995 and satisfy the concerned authorities that he is entitled to freedom fighters pension under the Scheme. It is also open to the petitioner to send fresh copy of his said application to the Union of India and if such a representation is received, the Union of India is directed to dispose of the same within a period of four months from the receipt of such a representation." 8. Representation/application was made by the petitioner to the respondent No. 1 on 26.5.1997. Such application was rejected by the respondent No. 1 vide order dated 2.9.1997 (Annexure PI) on the ground that the minimum period of imprisonment suffered by the petitioner was less than six months. Hence the present writ petition for directing the respondents to grant freedom fighters pension to the petitioner. 9. The case pur forth by the respondents is that the case of the petitioner for the grant of freedom fighters pension under the 1972 Scheme which was later on re-named as the Pension Scheme of 1980, did not fall within the ambit of the Scheme inasmuch as he did not suffer imprisonment for a period of six months or more. 10. It is the admitted case of the parties that the petitioner was arrested for the offence under Section 19, Sirmour Public Safety Act, 2004 (BK). He was tried, convicted and sentenced for such offence. 10. It is the admitted case of the parties that the petitioner was arrested for the offence under Section 19, Sirmour Public Safety Act, 2004 (BK). He was tried, convicted and sentenced for such offence. Initially rigorous imprisonment of one year was imposed upon him by the trial court, which was reduced to the period undergone in revision by the High Court of the then State of Sirmour. The petitioner thus remained in imprisonment from 17.7.2004 (BK) to 3.1.2005 (BK), that is, for a total period of five months and fourteen days. 11. The minimum requirement under the Pension Scheme is imprisonment for a period of six months. The procedure published by the respondent No. 1 indicates :— "A person who had suffered a minimum imprisonment for six months in the mainland jails before independence in the struggle for independence is eligible to be admitted to the benefits of the pension." 12. On 23.7.1975 vide letter No. 8/1/74-RF.P. the following categories of freedom fighters were also made eligible for the grant of pension subject to the production of usual documentary evidence:— "(a) Freedom fighters who were sentenced to imprisonment for a period of six months or more and had undergone minimum imprisonment of five months but were prematurely released due to Gandhi-Irwin Pact and other General Amnesty Orders; (b) Freedom fighters who remained under trials for six months or more in jails, in what was known as "British India" during the freedom struggle; (c) Freedom fighters who were convicted by lower courts and suffered imprisonment for six months or more, even if they were acquitted.” 13. It was contended on behalf of the petitioner that he was sentenced to rigorous imprisonment by the trial court under Section 19 of the Sirmaur Public Safety Act, 2004 (BK) for having taken part in the Praja Mandal Movement. He actually served the imprisonment for a period of more than five months. Therefore, since the petitioner had not claimed any remission or pardon, he would be deemed to have served out the imprisonment for more than six months and as such would be entitled to freedom fighters pension under the Pension Scheme. He actually served the imprisonment for a period of more than five months. Therefore, since the petitioner had not claimed any remission or pardon, he would be deemed to have served out the imprisonment for more than six months and as such would be entitled to freedom fighters pension under the Pension Scheme. In support of the contention, the learned Counsel for the petitioner has placed reliance on the decision of the Honble Supreme Court in Surja and others v. Union of India and another, (1991) 4 SCC 366 and two decisions of this Court in Balak Ram Mahajan and others v. Union of India and another, 1994(1) Sim. LC 36 and in Shri Nanku v. Union of India and another, 1994(1) Sim. L.C. 346. 14. In Surja and others v. Union of India and another (supra), fifty five persons, men and women, who had joined Arya Samaj Movement in the year 1930 within the then Nizams State of Hyderabad, were convicted under different provisions of criminal law, then prevailing within the State and sentenced to various terms of imprisonment. Arya Samaj Movement had been equated with the freedom struggle and benefit of freedom fighters pension was admissible. However, such benefit was denied to them. The court noticing that the petitioners therein had, in fact, been sentenced to imprisonment for terms exceeding six months, but while they were undergoing sentence without their praying for a remission, a general amnesty was declared by the then Nizam on his birthday and the sentence was reduced and the petitioners were set free. The petitioners therein were thus held to have satisfied the condition in earning the benefit of pension. 15. In Balak Ram Mahajan v. Union of India and another, the detention of the petitioners therein was in fact was for a period of six months. However, after having suffered detention for a period of four months and twenty days, he was released from detention on 26.1.1948 by a general order passed by the then Ruler of Mandi, that is, the date on which all other persons similarly situated were released from detention without their having prayed for remission. Following the ratio laid down in Surja and others v. Union of India and another (supra), a Division Bench of this Court held the petitioner therein to be entitled to freedom fighters pension under the Pension Scheme. 16. Following the ratio laid down in Surja and others v. Union of India and another (supra), a Division Bench of this Court held the petitioner therein to be entitled to freedom fighters pension under the Pension Scheme. 16. Similarly in Nanku v. Union of India and another (supra), the petitioner Nanku was sentenced to suffer imprisonment for six months. He remained in jail for 24 days and was released on payment of fine. He did not seek any remission for his release. As a matter of fact, he was released on payment of fine, which was also a punishment in lieu of imprisonment. He could not have been released, had he not paid the fine and would have continued to suffer the remaining sentence. Besides, the petitioner Nanku was found to have suffered externment from December, 1947 to October, 1948 and before that internment from June, 1946 to December, 1946. On these facts, he was held to be entitled to freedom fighters pension under the Pension Scheme. 17. The decisions relied upon by the learned Counsel for the petitioner are not applicable to the facts of the present case. In the present case the original sentence of imprisonment inflicted upon the petitioner by the trial Court was not reduced as a result of any remission or amnesty. It was reduced in revision by the then High Court of the State of Sirmaur on the petitioner having assailed his conviction and sentence. Admittedly, the actual imprisonment suffered by the petitioner was for less then six months, that is for a period of five months and fourteen days. The original order of the trial Court sentencing the petitioner stood merged in the revisional order passed by the High Court of the then State of Sirmaur and the petitioner would be held to have been sentenced to imprisonment for a total period of five months and fourteen days, that is, for a period less than six months. Since the actual imprisonment suffered by the petitioner was less than six months, he is not entitled to freedom fighters pension under the Pension Scheme. Resultantly, there being no merit in the present petition, the same is accordingly dismissed leaving the parties to bear their own costs. Petition dismissed.