Crl. Misc. No. M-10052 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-10052 of 2010 (O&M) Date of decision: February 9, 2011 Jagjit Singh @ Jit ...Petitioner Versus State of Punjab and another ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Vijay K. Jindal, Advocate, for the petitioner. Mr. PS Bajwa, DAG, Punjab. GURDEV SINGH, J. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') read with Article 226 of the Constitution of India, has been filed by Jagjit Singh @ Jit son of Wasan Singh-petitioner, for declaration to the effect that he is entitled to various remissions granted by the Punjab Government under Circulars dated 11.4.2007 (Annexure P/4) and dated 29.8.2008 (Annexure P/5) and that he has already completed the requisite sentence awarded to him. Complaint No. 30 of 1995 was filed against the petitioner under Section 135 of the Customs Act, 1962. He was convicted for that offence and was sentenced to undergo imprisonment for a period of three years and to pay fine of `1,000/- and in default thereof, to further undergo imprisonment for a period of two months, vide judgment dated 18.10.2006 Crl. Misc. No. M-10052 of 2010 2 passed by the Chief Judicial Magistrate, Amritsar. He filed an appeal before the Special Judge, Amritsar, but the same was dismissed, vide judgment dated 14.2.2009. Thereafter, he filed Crl. Revision No. 597 of 2009 in this Court in which the sentence of imprisonment was reduced from three years to two years and three months, vide judgment dated 10.3.2010. It has been pleaded by the petitioner that he has already undergone actual sentence for a period of one year, three months and 22 days and he remained on bail during the pendency of the appeal and the revision petition. The above said circulars were issued by the Punjab Government, vide which the prisoners, who have been sentenced to imprisonment for more than two years and upto five years, are entitled to remissions for a period of six months each. He is entitled to the benefits of those Circulars and in case remissions of one year is granted to him, he has already undergone the sentence so awarded to him and is entitled to the declaration to that effect. The factual position has not been disputed by the respondents in their reply. However, they contended that as per clause 5 of those circulars, the benefit of remissions is to be granted to the prisoners, who were in jail on 30.4.2007 and 20.10.2008. As the petitioner was not in jail on any of those dates and was on bail so he was not entitled to these remissions. I have heard learned counsel for both the sides. By relying on the judgment of the Hon'ble Supreme Court reported in 1989 Supp (2) Supreme Court Cases 192 (Nalamolu Appala Swamy and others versus State of Andhra Pradesh), and the following judgments of this Court in: 1. Crl. W. P. No. 472 of 2006 titled Gurmail Singh versus Crl. Misc. No. M-10052 of 2010 3 State of Punjab and others decided on 23.1.2007; 2. Crl. W.P. No. 100 of 2007 titled Charan Dass versus State of Punjab and others, decided on 9.5.2007; 3. Crl. W. P. No. 991 of 2006 titled Jagdeep Singh versus State of Punjab and others, decided on 5.7.2007; 4. Sultan Singh versus State of Haryana 1999 (1) R..C.R. (Criminal) 335; and 5. Sant Ram and others versus The State of Haryana and another 2010 (1) R.C.R. (Criminal) 546, it has been submitted by the learned counsel for the petitioner that the petitioner is entitled to the benefit of the Circulars (Annexures P/4 and P/5) regarding the grant of remissions for the period of six months each, though he was on bail on the dates when those Circulars were issued. A convicted prisoner become entitled to the remissions being granted by the State Government, while exercising the powers under Section 433A of the Code and Article 161 of the Constitution of India, even if on the date so mentioned in the circulars he is on bail, after suspension of his sentence by the High Court. He also tried to contend that the judgment of the Hon'ble Supreme Court rendered in Joginder Singh versus State of Punjab 2001 (4) RCR (Criminal) 341 was duly considered by this Court in the above referred judgments and the findings were recorded to the effect that even if the prisoner was on bail, he is entitled to the benefits of the circulars, if he has undergone a substantial part of the sentence. Therefore, the petitioner is entitled to the declaration to the effect that he has already undergone the sentence so awarded to him, after giving him the benefit of remissions mentioned in the said circulars. Crl. Misc. No. M-10052 of 2010 4 On the other hand, it has been submitted by the learned State counsel that a clear cut proposition of law has been enunciated in Joginder Singh's case (supra) wherein it has been held in so many words that only a prisoner who is coming in jail is entitled to remissions and not the prisoner who remained on bail during the pendency of revision or appeal, which will just amount to mockery of criminal law. Before touching the law on the point, it is necessary to be clear about the provisions of the circulars, the benefit of which is being sought by the petitioner. Those Circulars (Annexures P/4 and P/5) have also been annexed by the respondents with their reply as Annexures R1 and R/2 respectively. The first circular was issued, vide Notification dated 11.4.2007 in exercise of the powers conferred by Section 432 of the Code and Article 161 of the Constitution of India, on account of 'Baishaki' festival on 13.4.2007. The benefit of remissions was to be given to the prisoners of different categories. The prisoners, who were undergoing sentence of two years and upto five years were given the benefit of remission of six months. As per clause (5) thereof, the said remission was given to those convicted prisoners, who were confined in different jails as on 3.4.2007. The second circular was issued, vide notification dated 1.9.2008, in exercise of the same powers for giving remissions to prisoners on account of 'Gurta Gaddi' divas, which fell on 20.10.2008. Like the first circular, the prisoners undergoing sentence of more than two years and upto five years were given the benefit of remission of six months. Like the first circular that remission was admissible only to the prisoners, who were confined in jail as on 20.10.2008. Admittedly, the petitioner was not confined in any jail on any of those two dates. At the time the first circular was issued, his appeal was Crl. Misc. No. M-10052 of 2010 5 pending before the Special Court, Amritsar. By virtue of suspension of sentence, he was on bail. Similarly, when the second circular was issued, his revision was pending before this court and after suspension of sentence, he had been released on bail. The question arises: 'Whether he still is entitled to the benefit of the said remissions' ? Too much reliance has been placed by the learned counsel for the petitioner on the judgment of the Hon'ble Supreme Court in Nalamolu Appala Swamy (supra). No doubt, it was held in that case that even a prisoner who is on bail on the date of issuance of the GO (Government Order), was entitled to the benefit of the remissions. However, the facts of that case were different. In that case, the government order no where stated that the benefit of remission shall be confined to the prisoners, who were actually in jail on the date the same was issued and not to the other prisoners, who were on bail. It was in view of the wording of the government order that it was held by the Hon'ble Supreme Court in the aforesaid judgment that even the prisoners on bail on the date the government order was issued were entitled to the benefit of remissions. Both the circulars, the benefit of which is being sought by the petitioner, require that the prisoner to become entitled to the benefit of remissions should have been in jail on the dates mentioned therein. In all the above referred judgments of this Court, it was held that the convicts, who were on bail during the pendency of the trial/appeal are also entitled to the benefit of the remissions. However, different view has been taken by this court in a recent judgment reported in 2010 (4) RCR (Crl.) 409 (Harjinder Singh Versus State of Punjab). After taking into account the judgment of the Hon'ble Supreme Court (Joginder Singh Crl. Misc. No. M-10052 of 2010 6 Versus State of Punjab), it was held that an accused who remains on bail during the pendency of the appeal or revision is not entitled to the remissions granted by the State Government. For properly appreciating the proposition of law, this court is to go minutely into the judgment rendered by the Hon'ble Supreme Court in Joginder Singh's case (supra). Some of the above said judgments by this Court were given by taking into consideration para 9 of that judgment, which is re-produced below:- “With respect, we are unable to agree with the learned counsel for the said respondents. In other words, acceptance of this argument, in our opinion, would reduce the criminal justice system to mockery as has been said by this Court in Nauratta Singh's case (supra). In the cases cited by the appellant, this Court has categorically held that there is substantial difference between the words “parole” and “furlough” on one hand and the expression “bail” on the other. These judgments have also held that persons who are enlarged on bail cannot claim the benefit of the period during which they were on bail for the purpose of counting the period of sentence already undergone to apply the remission given by the Government. In view of this clear enunciation of law, in our opinion , even by the inclusion of the word “bail” in the notification of the Punjab Government an accused who has always remained on bail or has not served the substantial part of his sentence cannot take advantage of the remission notification.” The last underlined para is pragmatic with the reasoning so Crl. Misc. No. M-10052 of 2010 7 given by the Hon'ble Apex Court. The benefit of remissions mentioned in the notification can be given to that accused/convicts who have served substantial part of the sentence, only when the remissions are admissible even to those accused/convicts, who are on bail. In the present case remissions were admissible only to those persons, who were actually in jail on the dates mentioned therein and not to those who were on bail, by virtue of suspension of their sentence by the appellate or revisional court. It was also held by the Hon'ble Supreme Court in State of Haryana Versus Mohinder Singh 2000 (1) R.C.R. (Criminal) 627 that the prisoners, who were on bail or where the sentence was suspended under Section 389 of the Code during the pendency of the appeal, are not entitled to remissions for the period during which they remained on bail. The petitioner was on bail on both the dates when the Circulars (Annexes P/4 and P/5) were issued. So he was not entitled to the benefit of those remissions. Therefore, he is not entitled to any such declaration/direction. There is no merit in this petition and the same is hereby dismissed. February 9, 2011 (GURDEV SINGH ) prem JUDGE