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2006 DIGILAW 1949 (PNJ)

Jinda v. State Of Haryana

2006-05-05

T.P.S.MANN

body2006
Judgment T.P.S.Mann, J. 1. The petitioner herein seeks the advantage of period of parole towards the actual sentence undergone by him. He remained in custody as an under-trial for 1 year and 3 months. On 17.1.1996, when he was sentenced to undergo the imprisonment for 10 years, he was further remanded to judicial custody. Uptil 20.4.2006, he served a total period of 7 years 9 months and 11 days in jail including the under-trial period of 1 year and 3 months. The petitioner also earned remission for a period of 2 years 6 months and 22 days making it a period of 10 years 4 months and 3 days. During his stay in jail as a convict, he availed of parole on a number of occasions and the total period for which he was released on parole was 6 months and 16 days. After deducting the parole period, the actual sentence undergone by the petitioner, thus, came to be 9 years 9 months and 17 days uptil 20.4.2006. 2. According to the learned counsel for the petitioner, if the parole period is not excluded from the total sentence undergone by him, he has completed the requisite sentence of 10 years imprisonment and deserves to be released from custody forthwith. However, according to the petitioner, the respondents are denying him the period spent by him on parole by deducting it from the total sentence undergone by him. In support of the said contention, learned counsel for the petitioner has placed reliance upon a judgment passed by this Court in Duni Ram v. State of Haryana and another, Criminal Misc. Petition No. 19131-M of 2004, decided on November 23, 2004 (Annexure P-1). The emphasis has been laid on the concluding paras of the said judgment which are reproduced hereinbelow :- "Thus, the view taken by the Apex Court is that the time spent on parole is part of imprisonment because it is a licensed release and the prisoner released on parole is not a free agent. The period of parole is to be counted towards the actual sentence undergone by a prisoner. The petitioner has, thus, already undergone more than seven years actual sentence, including the period of parole/furlough. The action of the respondents in keeping him in jail is violative of Article 21 of the Constitution of India. Consequently, this petition is allowed. The period of parole is to be counted towards the actual sentence undergone by a prisoner. The petitioner has, thus, already undergone more than seven years actual sentence, including the period of parole/furlough. The action of the respondents in keeping him in jail is violative of Article 21 of the Constitution of India. Consequently, this petition is allowed. The respondents are directed to add the period of parole/furlough of the petitioner towards the actual sentence of imprisonment undergone by him and to release him forthwith from jail." 3. On the other hand learned counsel appearing on behalf of the respondents has brought to the notice of the Court the provision contained in Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 . As per this provision, the period of release of a prisoner on parole shall not count towards the total period of sentence. It has further been submitted that the vires of the said provision were challenged before the Apex Court and the Constitution Bench upheld the said provision holding that it was not hit by Article 21 of the Constitution of India. Reference was made to Avtar Singh and another v. State of Haryana and another, reported in 2001(3) RCR(Crl.) 797 : 2000(3) Supreme Court Cases 18. So far as the judgment in Duni Rams case (supra) cited by learned counsel for the petitioner, it was stated that at the time of the said decision, learned counsel appearing on behalf of the State/respondent could not cite any case law in support of the contention that the period of parole was to be excluded while calculating the total sentence undergone by a convict. 4. I have perused the entire record of the case and heard the arguments. 5. The vires of Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 have already been upheld by the Apex Court in Avtar Singh and another v. State of Haryana and another (supra). 4. I have perused the entire record of the case and heard the arguments. 5. The vires of Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 have already been upheld by the Apex Court in Avtar Singh and another v. State of Haryana and another (supra). While arriving at the said decision, the Constitution Bench referred to two earlier decisions in State of Haryana v. Mohinder Singh, 2000(1) RCR(Crl.) 627 : 2000(3) Supreme Court Cases 394 and the Constitution Bench in Sunil Fulchand Shah v. Union of India, 2000(2) RCR(Crl.) 176 : 2000(3) Supreme Court Cases 409 where it was held that ordinarily the period of temporary release of a prisoner on parole needed to be counted towards the total period of sentence but this condition could be curtailed by legislative Acts, Rules, Instructions or terms of grant of parole. Further that by a valid legislative Act, the period of temporary release on parole had been denied while counting the actual sentence undergone by the prisoner. It could not be said that such right of a prisoner had been taken away without due process of law. The concluding paragraphs 17 to 19 in Avtar Singh and another v. State of Haryana and another (supra) are reproduced hereinbelow :- "17. This Court in State of Haryana v. Mohinder Singh held that "furlough" and "parole" are two distinct terms now being used in the Jail Manuals or laws relating to temporary release of prisoners. In Sunil Batra the Constitution Bench has given recognition to creation of a separate class of prisoners undergoing death sentence. Section 3 has been enacted to meet the urgent pressing personal problems of a prisoner. As noted above, under this section any prisoner irrespective of his period of sentence or detention can be released on parole to meet such a problem, whereas the condition for releasing a prisoner on furlough under Section 4 is rigorous and such release on furlough cannot be claimed by certain classes of prisoners as mentioned in the section. On a close look at both the sections it would appear that these sections operate in different fields. Section 3 has been enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measure as a prisoner has to show good conduct while in incarceration. On a close look at both the sections it would appear that these sections operate in different fields. Section 3 has been enacted to meet certain situation of the prisoner but Section 4 has been enacted as a reformative measure as a prisoner has to show good conduct while in incarceration. In our considered opinion this classification is based on rational criteria and cannot be said to be discriminatory in nature. We, therefore, find no force in the first contention of the learned counsel for the appellant. 18. The second contention of the learned counsel for the appellant has also to be rejected in view of the decision of this Court in Sunil Fulchand Shah. The Constitution Bench has clearly held that though ordinarily the period of temporary release of a prisoner on parole needs to be counted towards the total period of detention but this condition can be curtailed by legislative Acts, rules, instructions or terms of grant of parole. 19. We also do not find force in the contention of the learned counsel for the appellant that sub-section (3) of Section 3 of the Act is hit by Article 21 of the Constitution. By a valid legislative act the period of temporary release on parole has been denied while counting the actual sentence undergone by the prisoner. It cannot be said that such right of a prisoner has been taken away without due process of law. Consequently, these contentions of the learned counsel for the appellant are rejected." 6. This Court in Avtar Singh v. State of Haryana, 2001(1) RCR(Criminal) 155 also held that the period of parole could not be counted towards the actual sentence under gone by a prisoner. 7. Consequently, it is held that the respondents are justified in not counting the period of parole towards the period of sentence undergone by the petitioner. The petition is, therefore, without merit and is dismissed accordingly.