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2003 DIGILAW 605 (PAT)

Rameshwar Beldar v. State Of Bihar

2003-06-23

ASHOK KUMAR VERMA, S.N.JHA

body2003
Judgment S.N.Jha, J. 1. The petitioner has approached this Court for declaration that he has already served sentence upon his conviction taking into account the remissions allowable under various provisions of the Bihar Jail Manual, and therefore, direction may be issued to the respondents to release him forthwith. 2. The petitioner is a convict under Section 376 of the Indian Penal Code in Sessions Trial No. 318 of 1996 by the Court of 9th Additional Sessions Judge, Patna. By judgment and order dated 7.11.98, he was convicted and sentenced to 10 years rigorous imprisonment. He challenged his conviction and sentence in this Court in Cr. Appeal No. 1/99 which was dismissed on 24.11.2002 and the conviction and sentences awarded by the trial Court was upheld. 3. The case of the petitioner is that he is in custody since 5.2.94 and taking into account the remissions he is entitled to under different provisions of the Jail Manual, he has already served the full sentence and therefore, his further custody in connection with said case is illegal and without jurisdiction. 4. The case of the respondents is that the petitioner is entitled to set off of the period from 5.2.95 (when he was taken into custody) to 6.11.98 (when he was convicted) i.e. 3 years 9 months and 1 day under Section 428 of the Criminal Procedure Code. For the said period he is not entitled to any remission under the Jail Manual as he was an under trial prisoner upto 6.11.98. He is entitled to remission as a convict under the Jail Manual only from 7.11.98. He has been granted remission for 487 days i.e. 1 year 4 months and 7 days upto March, 2003. Taking into consideration the period of imprisonment as under trial prisoner and remission (upto March, 2003) his probable date of release is 29.9.2003. It may be mentioned that at the time of final hearing on 16.7.2003 it was stated on behalf of the respondents that for the second quarter of the year 2003 (from April to June, 2003) the petitioner has been allowed further 23 days remission and accordingly, his probable date of release now is 6.9.2003. 5. Counsel for the petitioner has contested the case of the respondents. 5. Counsel for the petitioner has contested the case of the respondents. According to him, the respondents are in error in not allowing remission for the period between 5.2.95 and 6.11.98.lf the said period is also reckoned for the purpose of remission under the Jail Manual it would appear that the petitioner has already served more than the sentence awarded to him, and therefore, the petitioner is entitled to be released forthwith. The submission of the counsel is totally misconceived. 6. Section 428 of the Criminal Procedure Code provides that where an accused, on conviction, is sentenced to prisonment for a term, not being imprisonment in default of payment of fine, the period of detention, if any, undergone by him "during the investigation, inquiry or trial of the same case and before the date of such conviction shall be set off against the term of imprisonment imposed on him on such conviction, and the liability of such person to undergo imprisonment on such conviction shall be restricted to the remainder, if any. of the term of imprisonment imposed on him." By virtue of this provision an accused is thus entitled to mandatory set off of the period of detention (distinct from imprisonment), during investigation, inquiry or trial of the case, against the term of imprisonment imposed on him on such conviction. The Criminal Procedure Code contains provisions relating to remissions under Section 432 read with Section 433A or Commutation under Section 433. But they are different types of remissions, and the petitioner does not claim benefit of those provisions. He wants the benefit of the provisions of the Jail Manual for the detention period during investigation, inquiry and trial. 7. The Bihar Jail Manual has been framed under the Prisons Act, 1894 . Other States have also framed rules in regard to "shortening of sentences" of prisoners. Section 59 (5) of the Prisons Act confers power upon the State Government to make rules consistent with the Prisons Act "for the award of marks and the shortening of sentences". While referring to the Prisons Act, reference may be made to Section 3 (5) of the Act which defines remissions system to mean "the Rules for the time being in force regulating the award of marks to, and the subsequent shortening of sentences of prisoner in jail". In the Bihar Jail Manual, Chapter XXI contains the remission system. 8. While referring to the Prisons Act, reference may be made to Section 3 (5) of the Act which defines remissions system to mean "the Rules for the time being in force regulating the award of marks to, and the subsequent shortening of sentences of prisoner in jail". In the Bihar Jail Manual, Chapter XXI contains the remission system. 8. On behalf of the respondents it was submitted that the relevant provisions of imChapter XXI refer to the term prisoner as distinct from under trial prisoner. Besides, definition of class 1 prisoner or class II prisoner in Clauses (b) and (c) of Rule 710 suggests that prisoner is one who has been convicted for an offence. Further, term remission has been used in juxtaposition with sentence which leaves no room for doubt that remission under Chapter XXI can be allowed only against sentence awarded to person on his conviction. The term sentence cannot be given extended meaning so as to include the period of detention served during investigation, inquiry or trial. I find substance in the submission of the Standing counsel. 9. On behalf of the petitioner reliance was placed on a decision in Satish Kumar Gupta V/s. State of Bihar, 1990 (2) PLJR 549 . The dispute in that case had arisen from two clarificatory circulars of the IG (Prisons) and Law Secretary, respectively. A notification was issued on the occasion of the birth centenary of Dr. Rajendra Prasad, the first President of India, granting remission to convicted prisoners in exercise of powers under Section 432 (1) of the Criminal Procedure Code. By the impugned circulars, the State Government order was sought to be explained by the I.G. (Prisons) and Law Secretary. One of the questions framed by the Court for decision no doubt was whether it is valid and legal to exclude the period of set off in calculating the remission on the basis of period of actual confinement; the main question, however, was whether the I.G. (Prison) or the Law Secretary could make modification in the policy decision by executive instructions. So far as the point involved in the instant case is concerned, the learned Judge observed vide paragraph 9 of the judgment that the statute mandates that set off must be regarded as part of the sentence imposed and, therefore, set off period is also a period of confinement. So far as the point involved in the instant case is concerned, the learned Judge observed vide paragraph 9 of the judgment that the statute mandates that set off must be regarded as part of the sentence imposed and, therefore, set off period is also a period of confinement. With due apology, I have reservations about correctness of the observation. However, they appear to have been made in a different context giving a literal meaning to the word confinement for the purpose of remission. It is relevant to mention that earlier in the judgment vide paragraph 5, the learned Judge had also observed that an under trial prisoner cannot be regarded as prisoner who was sentenced to punishment for an offence and therefore any remission granted in exercise of powers under Section 432 of the Act can have no application to such person. In other words, the learned Judge was conscious of the distinction between an under trial prisoner and a convict. 10. As observed above, the "set off" period of detention is the period during investigation, inquiry or trial, allowed under Section 428 of the Criminal Procedure Code which is a mandatory provision in contradistinction to remissions allowed to the convicts i.e. to a person on his conviction under different provisions of the Jail Manual depending on his conduct in jail. There are different types of remissions under the Jail Manual-some ordinary, some other special. For example, under Rule 715 ordinary remission is awarded @ 2 days per month for thoroughly good conduct and scrupulous attention to all prison regulations, and further @ 2 days per month for industry and due performance of the daily task imposed. Under Section 725 special remission is allowed for special services, as for example, assisting in detecting or preventing breaches of prison discipline or regulation, success in teaching handicrafts, special excellence in or greatly increased outturn of work of good quality and so on. Similarly, under Rule 726 special remission is allowed @ mentioned therein to convicts who according to the concerned authorities have improved the educational aptitude of prisoners. It need hardly be pointed out, these remissions are discretionary in nature as distinct from the mandatory nature of set off under Section 428 of the Criminal Procedure Code. 11. Similarly, under Rule 726 special remission is allowed @ mentioned therein to convicts who according to the concerned authorities have improved the educational aptitude of prisoners. It need hardly be pointed out, these remissions are discretionary in nature as distinct from the mandatory nature of set off under Section 428 of the Criminal Procedure Code. 11. Having regard to the provisions of the Prisons Act and the Jail Manual, referred to above, there can be no doubt that the remission provisions contained therein are not applicable to the period of detention of a person as under trial i.e. during investigation, inquiry or trial. If it were so it would result in double benefit to him. While Section 428 provides for mandatory set off of the entire period of detention during investigation, inquiry or trial, allowing remissions of the kinds mentioned in the Jail Manual would amount to giving him similar benefit for the same very period which cannot be allowed. The Criminal Procedure Code, Prisons Act or the Jail Manual operate in distinct fields and in the absence of any specific provision, the remission provisions cannot be exended to the detention period during investigation, inquiry or trial. 12. I, thus, do not find any merit in the case of the writ petitioner. The petition is accordingly dismissed. A.K.Verma, J. 13 I agree.