Crl.Writ Petition No. 1702 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.W.P.No.1702 of 2009 Date of decision: 25.1.2011 Pali Singh @ Satpal Singh ... Petitioner versus State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Akshay Jain, Advocate, for the petitioner. Mr.R.S.Sidhu, AAG, Punjab. ... JORA SINGH, J. Pali Singh @ Satpal 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, Volume V, Chapter IV, Part F, 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 remissions 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. with further prayer that direction be issued to the respondents to release the petitioner pre-maturely by giving him the benefits of remissions in view of the law laid down by this Hon'ble High Court vide Annexures P-2 to Annexure P-5. Brief facts of the case are that petitioner was involved in case FIR No.94 dated 12.11.1990 under Sections 307/34 IPC, Police Station Crl.Writ Petition No. 1702 of 2009 2 Boha, District Mansa, and was convicted vide judgment dated 9.9.1996 and sentenced to undergo RI for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months vide order of sentence dated 12.9.1996 rendered by Additional Sessions Judge, Mansa. Against the judgment of conviction dated 9.9.1996 and order of sentence dated 12.9.1996, petitioner had preferred criminal appeal but the appeal was dismissed by this Hon'ble High Court vide judgment dated 27.7.2009. Petitioner has already undergone 11 months and 23 days of substantive sentence as on 14.12.2009 as per jail custody certificate (Annexure P-1). State Government issued remissions to the convicts from time to time even when the convicts are on bail during the trial or pendency of appeal before 11.9.2001. Petitioner got special remissions awarded by the State Government form time to time right from the year 1990 till the decision of appeal by the Hon'ble High Court on 27.7.2009. Detention of the petitioner is illegal in view of the remissions in sentence admissible to him under various orders of the State of Punjab under Article 161 of the Constitution of India read with Sections 432 and 433-A Cr.P.C. 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), judgment dated 25.1.2008 in Crl.W.P.No. 1130 of 2007 (Nachhattar 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). Crl.Writ Petition No. 1702 of 2009 3 Upon notice, respondents filed reply in the shape of affidavit of Capt. S.P.Singh, Superintendent, Central Jail, Bathinda. According to reply, while deciding Crl.Appeal Nos.910/919 of 2001, arising out of SLP Crl. Nos. 1193-94 of 2001 in case of Joginder Singh vs. State of Punjab and others decided on 11.9.2001, Hon'ble Apex Court held as under:- “In other words, acceptance of this argument, in our opinion, would reduce the Criminal Justice System to the 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 words `parole and furlough' on hand and the expression `bail' other. These judgments also held that persons who are enlarged on bail cannot claim the benefit of 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, 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.” In the case of Nauratta Singh (supra), which has considered the judgment of Mohinder Singh (supra) as well as that by the Constitution Bench in Sushil Fulchan Shah (supra), held thus:- “18th, the clear fallacy of the approach made by the High Court can be demonstrated through an illustration. An accused was tried for an offence under Section 326 IPC. During trial period Crl.Writ Petition No. 1702 of 2009 4 he was allowed to remain on bail and the trial prolonged upto, say, 3 years. Finally the Court convicted him and sentenced him to imprisonment for three years, should not the convicted person go to jail at all on the premise that he was on bail for three years and is hence entitled to remission of that period. 19th, yet another can be shown by stitching the above 1st illustration a little further, if the aforesaid convicted person filed an appeal and got his sentence suspended by the appellate Court and the appellant Court concerned upheld the conviction and sentence after a period of 3 years, is he entitled to claim that he need not go to jail at all as he was on bail for more than 3 years during the post conviction stage also? If it is to be held that he is entitled to such remission, we afraid the criminal justice system would be reduced to a mockery. The absurdity of the claim of the respondents can thus be demonstrated.” In para No.2, stand of the State is that total period undergone is 1 year and 18 days. Petitioner has undergone only 3 months and 2 days of substantive sentence before releasing on bail since his conviction on 12.9.1996. So, petitioner is not entitled for special government remission as claimed. I have heard learned counsel for the petitioner, learned State counsel and have gone through the file. Learned counsel for the petitioner argued that petitioner was convicted and sentenced in FIR No. 94 dated 12.11.1990 under Sections 307/34 IPC and was directed to undergo RI for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for Crl.Writ Petition No. 1702 of 2009 5 six months vide order of sentence dated 12.9.1996 but in view of various judgments of this High Court, he is entitled to the benefit of special remissions granted by the State Government to the convicts while on bail till before 11.9.2001. On the last date of hearing, learned State counsel was directed to produce copy of notification vide which benefit of special remission cannot be granted to the convicts but he failed to produce copy of any notification. Learned State counsel argued that in view of the decision of Hon'ble Apex Court in Crl.Appeal Nos.910/919 of 2001 titled as Joginder Singh vs, State of Punjab and others, petitioner is not entitled to the benefit of special remission. Undisputedly, FIR No.94 dated 12.11.1990 under Sections 307/34 IPC was registered against the petitioner and the petitioner was convicted and sentenced vide judgment of conviction dated 9.9.1996 and order of sentence dated 12.9.1996 by Additional Sessions Judge, Mansa. He was directed to undergo RI for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months. As per custody certificate (Annexure P-1), he has already undergone 11 months and 23 days of substantive sentence as on 14.12.2009. Crl.W.P.No.991 of 2006 was preferred by Jagdeep Singh. While disposing of that writ petition, there was a reference of decision dated 11.9.2001 by Hon'ble Apex Court in Crl.appeal Nos.910/919 of 2001 titled as Joginder Singh vs. State of Punjab and others. Ultimately, petition was allowed and benefit of remissions granted by the State of Punjab till before 11.9.2001 was granted. Crl.Writ Petition No. 1702 of 2009 6 Crl.W.P.No. 1130 of 2007 was instituted by Nachhattar Singh and in that case also, judgment of Joginder Singh's case (supra) was considered. Petitioner, as per custody certificate, had already undergone 9 months and 1 day and as per reply filed by the State, he had already undergone 1 year and 8 days till the filing of the reply, i.e., 15.11.2007. Court opined that said period cannot be said to be substantial part of imprisonment of 2 years. So, petitioner is not entitled to the benefit of other remissions after 11.9.2001 but held that he is entitled to the benefit of remissions granted by the State Government till before 11.9.2001. Similar view was taken by the High Court while deciding Cr.W.P.No. 1398 of 2007 (Mohan Singh vs. State of Punjab and another) and Crl.W.P.No. 995 of 2009 (Jit Singh vs. State of Punjab and others). Annexures P-4 and P-5 are the copies of judgments passed in Crl.W.P.No.1398 of 2007 and Crl.W.P.No.995 of 2009, respectively. Benefit of remissions granted by the State of Punjab before 11.9.2001 was extended. In the present case also, as per custody certificate (Annexure P-1), petitioner has already undergone 11 months and 23 days of substantive sentence as on 14.12.2009. Petitioner was also on bail during trial and pendency of appeal. Petitioner got special remissions granted by the State Government from time to time right from 1990 till the decision of appeal by the High Court on 27.7.2009, but the only grievance of the respondents is that petitioner has not undergone substantial part of substantive sentence. In view of the aforesaid discussion, petition is allowed and it is ordered that petitioner shall be entitled to the benefit of remissions granted Crl.Writ Petition No. 1702 of 2009 7 by the State Government from time to time till before 11.9.2001 only but he shall not be entitled to the benefit of remissions granted on or after 11.9.2001. 25.1.2011 ( JORA SINGH ) pk JUDGE