Crl.Writ Petition No.574 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.W.P.No.574 of 2009 Date of decision: 28.7.2010 Nishan Singh ... Petitioner versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Gopal Singh Nahel, Advocate, for the petitioner. Mr.Arshwinder Singh, DAG, Punjab. ... JORA SINGH, J. Nishan Singh filed this Crl.Writ Petition under Article 226 of the Constitution of India read with Rules 3 and 7 of the Rules and Orders of Punjab and Haryana High Court, for issuance of a writ in the nature of habeas corpus to release the petitioner from unlawful detention by the State/ respondents by allowing the benefit of special remission granted to the convict while on bail till before 11.9.2001 under various orders issued from time to time by the State of Punjab and Haryana under Article 161 of the Constitution of India read with Sections 432 and 433-A Cr.P.C. Brief facts of the case are that petitioner was involved in case FIR No.27 dated 26.4.1995 under Sections 307/34 IPC, Police Station Kotwali, Nabha, and was convicted and sentenced to undergo RI for five years and to pay a fine of Rs.10,000/-, in default of payment of fine, to Crl.Writ Petition No.574 of 2009 2 further undergo RI for one year vide judgment dated 20.2.1998 rendered by Additional Sessions Judge, Patiala. Against the judgment dated 20.2.1998, petitioner had preferred criminal appeal but the appeal was dismissed by Hon'ble High Court vide judgment dated 22.5.2008. Petitioner has already undergone one year, three months and six days as on 13.4.2009. He got special remission during bail when appeal was pending adjudication before the Hon'ble High Court. Case of the petitioner is fully covered by the judgment dated 23.1.2007 of this Hon'ble High Court in Crl.W.P.No. 472 of 2006 (Gurmail Singh vs. State of Punjab and others), judgment dated 5.7.2007 in Crl.W.P.No. 991 of 2006 (Jagdeep Singh vs. State of Punjab and others) and judgment dated 24.4.2008 in Crl.W.P.No. 1398 of 2001 (Mohan Singh vs. State of Punjab and another). Upon notice, respondents filed reply by admitting this fact that in FIR No.27 dated 26.4.1995 under Sections 307/34 IPC, petitioner was convicted by Additional Sessions Judge, Patiala, vide judgment dated 20.2.1998. Crl. Appeal filed by the petitioner was dismissed by the Hon'ble High Court vide judgment dated 22.5.2008. Petitioner surrendered before the Court of Chief Judicial Magistrate, Patiala, on 18.11.2008 to serve remaining portion of sentence. Hon'ble Governor of Punjab has granted remission vide instructions dated 15.8.1998, 14.4.1999, 17.4.2000 and 13.4.2001. Petitioner has already undergone one year, three months and six days sentence upto 13.4.2009, but order of Hon'ble the Supreme Court dated 11.9.2001 in Crl.Appeal No.910/919 of 2001 has debarred to grant Government remission to the prisoners on bail. Learned counsel for the petitioner argued that FIR No.27 dated Crl.Writ Petition No.574 of 2009 3 26.4.1995 under Sections 307/34 IPC was registered against the petitioner and the petitioner was convicted and sentenced vide judgment dated 20.2.1998 rendered by Additional Sessions Judge, Patiala, and the petitioner was directed to undergo RI for five years and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for one year. Against the said judgment, appeal preferred by the petitioner was dismissed by this Hon'ble High Court vide judgment dated 22.5.2008. Argued that the petitioner has already undergone one year, three months and six days upto 13.4.2009. Petitioner got special remission while on bail but request of the petitioner for his premature release was declined. Learned State counsel argued that after dismissal of appeal by Hon'ble High Court vide judgment dated 22.5.2008, petitioner had surrendered before the Court of CJM, Patiala, on 18.11.2008. As per notification (Annexure R-1), petitioner was entitled to the benefit of special remission if surrendered within 15 days of receipt of notice from the office of CJM, but petitioner did not surrender within 15 days from the receipt of notice from the concerned CJM. As per judgment of Hon'ble the Supreme Court dated 11.9.2001, Government was debarred to grant Government remission to the petitioner, who remained on bail and did not surrender within time. Undisputedly, FIR No.27 dated 26.4.1995 under Sections 307/34 IPC was registered against the petitioner and the petitioner was convicted and sentenced vide judgment dated 20.2.1998 by Additional Sessions Judge, Patiala. Against the judgment passed by Additional Sessions Judge, Patiala, appeal preferred by the petitioner was dismissed by this Hon'ble High Court vide judgment dated 22.5.2008. Crl.Writ Petition No.574 of 2009 4 As per custody certificate on the file, petitioner had already undergone one year, three months and six days sentence upto 13.4.2009. This fact is also an admitted one that the petitioner got Government remission while on bail vide Government instructions dated 15.8.1998, 14.4.1999, 17.4.2000 and 13.4.2001 as per preliminary submissions of written statement. Grievance of the petitioner is that he was also entitled to special remission while on bail till before 11.9.2001, whereas allegation of the respondents is that as per order of Hon'ble the Supreme Court dated 11.9.2001, petitioner was not entitled to Government remission because he was on bail. But submission of learned State counsel seems to be not correct one. Crl.W.P.No.991 of 2006 was preferred by Jagdeep Singh. Conviction was under Section 304-B IPC. Petitioner claimed benefit of remission under Article 161 of the Constitution of India read with Sections 432 and 433-A Cr.P.C. Claim of the petitioner was resisted on the ground that as per decision of Hon'ble the Supreme Court dated 11.9.2001 in Crl.Appeal No.910/919 of 2001 titled as Joginder Singh vs. State of Punjab and others, petitioner being on bail was not entitled to the benefit of remission granted by the State of Punjab. By placing reliance on the decision dated 23.1.2007 of this Hon'ble High Court in Crl.W.P.No.472 of 2006 titled as Gurmail Singh vs. State of Punjab and others held that benefit of remission was to be granted even in a case where convict remained on bail provided he has undergone substantial part of his sentence. Ultimately, the Court opined that petitioner was not entitled to the benefit of remission Crl.Writ Petition No.574 of 2009 5 after 11.9.2001, but the petitioner shall be entitled to the benefit of remission granted by the State of Punjab till before 11.9.2001 only. In Crl.W.P.No. 1398 of 2001 titled as Mohan Singh vs. State of Punjab and another, petitioner claimed benefit of special remission of sentence granted by the State Government till before 11.9.2001. Stand of the respondents was that the petitioner was entitled to remission granted by the Government till 2001, when Hon'ble the Supreme Court vide judgment dated 11.9.2001 in Crl.Appeal No.910/919 of 2001 debarred the Government to grant remission to the prisoners during their bail period. Ultimately, the petition was allowed and ordered the respondents that petitioner shall be entitled to remission from time to time till before 11.9.2001 only. In the present case also, as per reply by the respondents, Punjab Government granted remissions vide instructions issued on different dates during bail period of the convicts. Present petitioner also got Government remission during bail period but request of the petitioner for his premature release was declined in view of the decision of Hon'ble the Supreme Court dated 11.9.2001 on the allegation that within 15 days of receipt of notice from CJM, Patiala, petitioner did not surrender but there is not a word in the reply on which date the petitioner received notice from the office of CJM, Patiala. Respondents could easily specify the date when petitioner received notice from the office of CJM, Patiala. Without mentioning the date of receipt of notice from the office of CJM, Patiala, respondents cannot argue that petitioner did not surrender within 15 days of receipt of notice from the office of CJM, Patiala. In view of the aforesaid discussion, petition is allowed and it is Crl.Writ Petition No.574 of 2009 6 ordered that petitioner shall be entitled to the benefit of remission granted by the State Government from time to time till before 11.9.2001 only. 28.7.2010 ( JORA SINGH ) pk JUDGE