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PETITIONER:

STATE OF HARYANA & OTHERS

Vs.

RESPONDENT:

MOHINDER SINGH

DATE OF JUDGMENT: 07/02/2000

BENCH:

S.S.Ahmad, D.P.Wadhwa

JUDGMENT:

D.P. WADHWA, J.

Leave granted.

In five of the appeals (arising from SLP (Crl.)

Nos.1810/99, 145/2000, 1812/99, 2033-34/99 and 2151/99) out

of the batch of six question involved is if the respondent,

a convict, is entitled to remission of his sentence for the

period during which he is on bail. In the sixth appeal

(arising from SLP (Crl.) 643/99) question is if the

prisoner, who is convicted of an offence under Section 376

of Indian Penal Code (IPC), though confined in jail, is

entitled to remission of his sentence when the Government

circular issued under Section 432 of the Code of Criminal

procedure ('Code' for short) does not grant such remission

to an inmate who has been convicted under Section 376, IPC.

High Court in batch of five appeals observed that conviction

and sentence are two separate terms and that the moment a

person is convicted he becomes stigmatic. High Court said

that at that point of time he is a convict and if he has

been granted bail by the appellate court it is by virtue of

provision of Section 389 of the Code and his sentence stands

suspended and not that his conviction is suspended and that

with the dismissal of appeal of such convict stigma of

conviction is not wiped of. High Court was, therefore, of

the opinion that such a convict would be entitled to

remission for the period he was on bail when the circular

gave the benefit of remission to a prisoner on

parole/furlough. High Court gave direction to the State

Government to reconsider the case of the convict who, it

said, should be entitled to the remission as per the

circular during the period he was on bail. In the sixth

appeal (arising from SLP (Crl.) No.643/99), where the

respondent was convicted for an offence under Section 376

IPC, High Court considered various provisions of the Punjab

Jail Manual as applicable in the State of Haryana (paras

634, 635 and 637 of the Jail Manual) and held that the

prisoner in this case was also entitled to remission as was

granted to those prisoners who were on parole/furlough or

were in jail on the date of the circular granting remission.

Before we consider the rival contentions it would be

appropriate to set out the circulars granting remission to

the prisoners. These circulars have been issued under

Section 432 of the Code and their language is same. They

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were issued on different dates on July 22, 1987; March 16,

1988; August 14, 1989; August 14, 1991; January 29, 1992;

April 29, 1993; and August 14, 1995. First such circular

dated July 22, 1987 is applicable from July 6, 1987 and is

as under: -

"In exercise of the powers conferred under section 432

of the Code of Criminal Procedure, 1973, the Governor of

Haryana hereby grants special remission to the prisoners who

happen to be confined in Jails in the State of Haryana on

6th July, 1987 and who have been convicted by Civil Courts

of criminal jurisdiction (Criminal Court of Competent

Jurisdiction?) in the State of Haryana. The remission is

granted on the following scale: -

Remission

i) Those who have been sentenced for a period

exceeding 10 years 1 year

ii) Those who have been sentenced for a period

exceeding 2 years and upto 10 years 6 months

iii) Those who have been sentenced for a period upto 2

years 3 months

Provided that:

i) No remission will be granted to persons convicted

of rape or dowry deaths.

ii) The remission will not exceed 1/4th of the period

of sentence.

iii) The minimum effective imprisonment will be three

months (or less where the actual sentence is less than 3

months)

2. Remission will also be granted to all the convicts

who were on parole/furlough from the jail on 6th July, 1987

subject to the condition that they surrender at the jail on

the due date after the expiry of parole/furlough period for

undergoing unexpired portions of their sentences.

3. Sentence of imprisonment imposed in default of

payment of the fine shall not be treated as substantive for

the purpose of grant of this remission.

4. All the prisoners convicted by Civil Courts of

criminal jurisdiction (Criminal Court of Competent

Jurisdiction?) in Haryana but undergoing their sentences in

jails outside Haryana shall be entitled to the grant of

remission on the above scale.

5. The remission will not be admissible to: -

i) Detenus of any class.

ii) The persons sentenced under the Foreigners Act

1948 and the Passport Act, 1967;

iii) Pakistani Nationals;

iv) The persons sentenced under Section 2 and 3 of

Criminal Law Amendment Act, 1961 and section 121 to 130 of

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the Indian Penal Code, 1860;

v) The persons sentenced under section 3, 4, 5, 6 to

10 of the Official Secrets Act, 1930;

vi) The persons imprisoned for failing to give

security for keeping peace for their good behaviour under

sections 107/109 of the Criminal Procedure Code, 1973;

vii) The persons who committed any major jail offence

during the last two years and were punished of for the same

under the relevant provisions of Punjab Jail Manual; and

viii) The persons who got the benefit of such a

remission during the past one year from 6.7.87. The grant

of this remission to life convicts will not effect the

provisions of section 433-A Cr.P.C.

Dated Chandigarh. M.C. GUPTA the 22.7.87 Financial

Commissioner & Secy. to Govt. Haryana, Jails Department."

Section 432 of the Code under which circular has been

issued we reproduce

"432. Power to suspend or remit sentences. (1)

When any person has been sentenced to punishment for an

offence, the appropriate Government may, at any time,

without conditions or upon any conditions which the person

sentenced accepts, suspend the execution of his sentence or

remit the whole or any part of the punishment to which he

has been sentenced.

(2) Whenever an application is made to the appropriate

Government for the suspension or remission of a sentence,

the appropriate Government may require the presiding Judge

of the Court before or by which the conviction was had or

confirmed to state his opinion as to whether the application

should be granted or refused, together with his reasons for

such opinion and also to forward with the statement of such

opinion a certified copy of the record of the trial or of

such record thereof as exists.

(3) If any condition on which a sentence has been

suspended or remitted is, in the opinion of the appropriate

Government, not fulfilled, the appropriate Government may

cancel the suspension or remission, and thereupon the person

in whose favour the sentence has been suspended or remitted

may, if at large, be arrested by any police officer, without

warrant and remanded to undergo the unexpired portion of the

sentence.

(4) The condition on which a sentence is suspended or

remitted under this section may be one to be fulfilled by

the person in whose favour the sentence is suspended or

remitted, or one independent of his will.

(5) The appropriate Government may, by general rules

or special orders, give directions as to the suspension of

sentences and the conditions on which petitions should be

presented and dealt with:

Provided that in the case of any sentence (other than

a sentence of fine) passed on a male person above the age of

eighteen years, no such petition by the person sentenced or

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by any other person on his behalf shall be entertained,

unless the person sentenced is in jail, and

(a) where such petition is made by the person

sentenced, it is presented through the officer-in- charge of

the jail; or

(b) where such petition is made by any other person,

it contains a declaration that the person sentenced is in

jail.

(6) The provisions of the above sub-sections shall

also apply to any order passed by a criminal court under any

section of this Code or of any other law which restricts the

liberty of any person or imposes any liability upon him or

his property.

(7) In this section and in Sec. 433, the expression

"appropriate Government" means, -

(a) In cases where the sentence is for an offence

against, or the order referred to in sub-section (6) is

passed under any law relating to a matter to which the

executive power of the Union extends, the Central

Government;

(b) in other cases, the Government of the State within

which the offender is sentenced or the said order is

passed."

Article 161 of the Constitution also grants power to

the Governor to grant pardons, etc. Though that Article may

not be quite relevant in the present appeals but we may note

the same

"161. Power of Governor to grant pardons, etc. and

to suspend, remit or commute sentences in certain cases.

The Governor of a State shall have the power to grant

pardons, reprieves, respites or remissions of punishment or

to suspend, remit or commute the sentence of any person

convicted of any offence against any law relating to a

matter to which the executive power of the State extends."

It is not disputed that the circulars have been issued

by the State Government in the exercise of powers conferred

under Section 432 of the Code. Its authority to issue the

circulars has not been questioned. From the language of the

circular aforesaid it is relevant to note three points for

the purpose of these appeals: (1) It grants special

remission to the prisoners, who are confined in jails in the

State of Haryana on July 6, 1987 (2) Remission is also to be

granted to all the convicts who are even on parole/furlough

from the jail on July 6, 1987 (3) The remission of sentence

cannot be granted to prisoners convicted of rape or dowry

deaths.

The circular granting remission is authorised under

the law. It prescribes limitations both as regards the

prisoners who are eligible and those who have been excluded.

Conditions for remission of sentence to the prisoners who

are eligible are also prescribed by the circular. Prisoners

have no absolute right for remission of their sentence

unless except what is prescribed by law and the circular

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issued thereunder. That special remission shall not apply

to a prisoner convicted of a particular offence can

certainly be relevant consideration for the State Government

not to exercise power of remission in that case. Power of

remission, however, cannot be exercised arbitrarily.

Decision to grant remission has to be well informed,

reasonable and fair to all concerned.

Terms bail, furlough and parole have different

connotations. Bail is well understood in criminal

jurisprudence. Provisions of bail are contained in Chapter

XXXIII of the Code. It is granted by the officer-in-charge

of a police station or by the court when a person is

arrested and is accused of an offence other than

non-bailable offence. Court grants bail when a person

apprehends arrest in case of non-bailable offence or is

arrested of a non-bailable offence. When a person is

convicted of an offence he can be released on bail by the

appellate court till his appeal is decided. If he is

acquitted his bail bonds are discharged and if appeal

dismissed he is taken into custody. Bail can be granted

subject to conditions. It does not appear to be quite

material that during the pendency of appeal though his

sentence is suspended he nevertheless remains a convict.

For the exercise of powers under Section 432 it may perhaps

be relevant that the State Government may remit the whole or

any part of the punishment to which a person has been

sentenced even though his appeal against conviction and

sentence was pending at that time. Appeal in that case

might have to abate inasmuch as the person convicted has to

accept the conditions on which State Government remits the

whole or in part of his punishment.

In Dictionary of American Penology, by Vergil L.

Williams 'furlough' is described as under "Furloughs are

variously known as temporary leaves, home visits, or

temporary community release. For decades, prisons have

occasionally granted short furloughs to inmates who were

suddenly faced with a severe family crisis such as a death

or grave illness in the immediate family. Furloughs of that

type are treated as special circumstances, and often the

inmate must be accompanied by an officer as part of the

terms of the temporary release".

In the article 'Furlough Programs and Conjugal

Visiting in Adult Correctional Institutions' by Carson W.

Markley in Volume "Federal Probation" it is mentioned that

"the term 'furlough' is frequently confused with special

leave, which most adult institutions have long been willing

to grant under extenuating circumstances, such as family

crises. A prisoner on special leave customarily travels

under escort, while on furlough he is on his own".

'Furlough' according to Black's Law Dictionary (6th edn.)

means "a leave of absence; e.g. a temporary leave of

absence to one in the armed service of the country; an

employee placed in a temporary status without duties and pay

because of lack of work or funds or for other non-

disciplinary reasons. Also the document granting leave of

absence." According to The Concise Oxford Dictionary (new

edition) "Furlough" means : "leave of absence, esp.

granted to a member of the services or to a missionary".

Parole is defined in these two dictionaries as under : The

Concise Oxford Dictionary New Edition "The release of a

prisoner temporarily for a special purpose or completely

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before the expiry of a sentence, on the promise of good

behaviour; such a promise, a word of honour". Black's Law

Dictionary Sixth Edition "Release from Jail, prison or

other confinement after actually serving part of sentence;

conditional release from imprisonment which entitles parolee

to serve remainder of his term outside confines of an

institution, if he satisfactorily complies with all terms

and conditions provided in parole order. " In Poonam Lata

vs. M.L. Wadhawan and others (1987 (3) SCC 347) this Court

was considering the nature and scope of parole in a case of

preventive detention. It said: -- "There is no denying of

the fact that preventive detention is not punishment and the

concept of serving out a sentence would not legitimately be

within the purview of preventive detention. The grant of

parole is essentially an executive function and instances of

release of detenus on parole were literally unknown until

this Court and some of the High Courts in India in recent

years made orders of release on parole on humanitarian

considerations. Historically 'parole' is a concept known to

military law and denotes release of a prisoner of war on

promise to return. Parole has become an integral part of

the English and American systems of criminal justice

intertwined with the evolution of changing attitudes of the

society towards crime and criminals. As a consequence of

the introduction of parole into the penal system, all

fixed-term sentences of imprisonment of above 18 months are

subject to release on licence, that is, parole after a third

of the period of sentence has been served. In those

countries parole is taken as an act of grace and not as a

matter of right and the convict prisoner may be released on

condition that he abides by the promise. It is a

provisional release from confinement but is deemed to be a

part of the imprisonment. Release on parole is a wing of

the reformative process and is expected to provide

opportunity to the prisoner to transform himself into a

useful citizen. Parole is thus a grant of partial liberty

or lessening of restrictions to a convict prisoner, but

release on parole does not change the status of the

prisoner. Rules are framed providing supervision by parole

authorities of the convicts released on parole and in case

of failure to perform the promise, the convict released on

parole is directed to surrender to custody. (See The Oxford

Companion to Law, edited by Walker, 1980 edn., p.931;

Black's Law Dictionary, 5th edn., p.1006; Jowitt's

Dictionary of English Law, 2nd edn., Vol. 2, p.1320;

Kenny's Outlines of Criminal Law, 17th edn., pp.574-76; The

English Sentencing System by Sir Rupert Cross at pp.31-34,

87 et. seq.; American Jurisprudence, 2nd edn., Vol. 59,

pp.53-61; Corpus Juris Secundum, Vol. 67; Probation and

Parole, Legal and Social Dimensions by Louis P. Carney.) It

follows from these authorities that parole is the release of

a very long term prisoner from a penal or correctional

institution after he has served a part of his sentence under

the continuous custody of the State and under conditions

that permit his incarceration in the event of misbehaviour.

Para 20.8 in Chapter XX dealing with "System of

Remission, Leave and Premature Release" of the Report of the

All India Committee on Jail Reforms, 1980-83 (Volume I)

refers to leave which can be granted to the petitioner. The

relevant portion is as under : "Different concepts such as

parole, furlough, ticket of leave, home leave, etc., are

used in different States to denote grant of leave or

emergency release to a prisoner from prison. The

terminology used is not uniform and is thus confusing.

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There is also no uniformity with regard to either the

grounds on which leave is sanctioned or the level of

authority empowered to sanction it. There is also a lot of

diversity in the procedure for grant of leave. The scales

at which these leaves are granted also differ from State to

State; for example in some States parole is granted for a

period extending upto 15 days while in other States it is

restricted to 10 days only."

'Furlough' and 'parole' are two distinct terms now

being used in the Jail Manuals or laws relating to temporary

release of prisoners. These two terms have acquired

different meanings in the statute with varied results.

Dictionary meanings, therefore, are not quite helpful. In

this connection we may refer to the Haryana Good Conduct

Prisoners (Temporary Release) Act, 1988 which has repealed

the Punjab Good Conduct Prisoners (Temporary Release) Act,

1962. Punjab Act was earlier applicable in the State of

Haryana. Language of both the Acts is same and it may be

useful to refer Sections 3 and 4 of any of these two Acts to

understand the difference between parole and furlough: -

"3. Temporary release of prisoners on certain

grounds. (1) The State Government may, in consultation

with the District Magistrate or any other officer appointed

in this behalf, by notification in the Official Gazette and

subject to such conditions and in such manner as may be

prescribed, release temporarily for a period specified in

sub-section (2), any prisoner, if the State Government is

satisfied that

(a) a member of the prisoner's family had died or is

seriously ill or the prisoner himself is seriously ill; or

(b) the marriage of prisoner himself, his son,

daughter, grandson, grand-daughter, brother, sister sister's

son or daughter is to be celebrated; or

(c) the temporary release of the prisoner is necessary

for ploughing, sowing or harvesting or carrying on any other

agricultural operation on his land or his father's undivided

land actually in possession of the prisoner; or

(d) it is desirable to do so for any other sufficient

cause.

(2) The period for which a prisoner may be released

shall be determined by the State Government so as not to

exceed

(a) where the prisoner is to be released on the ground

specified in clause (a) of sub-section (1), three weeks;

(b) where the prisoner is to be released on the ground

specified in clause (b) or clause (d) of sub- section (1),

four weeks; and

(c) where the prisoner is to be released on the ground

specified in clause (c) of sub-section (1), six weeks:

Provided that the temporary release under clause (c)

can be availed more than once during the year, which shall

not, however, cumulatively exceed six weeks.

(3) The period of release under this section shall not

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count towards the total period of sentence of a prisoner.

(4) The State Government may, by notification,

authorise any officer to exercise its powers under this

section in respect of all or any other ground specified

thereunder.

4. Temporary release of prisoners on furlough. (1)

The State Government or any other officer authorised by it

in this behalf may, in consultation with such other officer

as may be appointed by the State Government, by

notification, and subject to such conditions and in such

manner as may be prescribed, release temporarily, on

furlough, any prisoner who has been sentenced to a term of

imprisonment of not less than four years and who

(a) has, immediately before the date of his temporary

release, undergone continuous imprisonment for a period of

three years, inclusive of the pre-sentence detention, if

any;

(b) has not during such period committed any jail

offence (except an offence punished by a warning) and has

earned at least three annual good conduct remissions:

Provided that nothing herein shall apply to a prisoner

who

(i) is a habitual offender as defined in sub- section

(3) of section 2 of Punjab Habitual Offenders (Control and

Reform) Act, 1952; or

(ii) has been convicted of dacoity or such other

offence as the State Government may, by notification,

specify.

(2) The period of furlough for which a prisoner is

eligible under sub-section (1) shall be three weeks during

the first year of his release and two weeks during each

successive year thereafter.

(3) Subject to the provisions of clause (d) of sub-

section (3) of section 8 the period of release referred to

in sub-section (1) shall count towards the total period of

the sentence undergone by a prisoner."

It would be thus seen that when a prisoner is on

parole his period of release does not count towards the

total period of sentence while when he is on furlough he is

eligible to have the period of release counted towards the

total period of his sentence undergone by him. Delhi Jail

Manual also uses the same terminology which we may set out

as under: -

"Part I (Parole) 1.(i) A prisoner may be released on

parole for such period as government may order in cases of

serious illness or death of any member of prisoner's family

or his nearest relatives. For this purpose the prisoner's

family or his nearest relatives mean his/her parents,

brothers, sisters, wife/husband and children. A prisoner

may similarly be released on parole to arrange for the

marriage of his issue for a period of not exceeding four

weeks. (ii) The period spent on parole will not count as

part of the sentence. 2. ... 3. ... Part II (Furlough)

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1.(i) A prisoner who is sentenced to 5 years or more of

rigorous imprisonment and who has actually undergone three

years imprisonment excluding remission may be released on

furlough. The first spell may be of three weeks and

subsequent spells of two weeks each, per annum, provided

that (a) his conduct in jail has been good; he has earned

three Annual Good Conduct Remissions and provided further

that he continues to earn good conduct remission or

maintains good conduct. (b) that he is not a habitual

offender; (c) that he is not convicted of robbery with

violence, dacoity and arson; (d) that he is not such a

person whose presence is considered highly dangerous or

prejudicial to public peace and tranquility by the District

Magistrate of his home district. (ii) The period of

furlough will count as sentence undergone except any such

period during which the prisoner commits an offence outside.

2 to 6 ..."

Chapter XX of the Punjab Jail Manual as applicable in

the State of Haryana contains remission system. Paras 633,

633-A, 635, 637, 644 and 645 are relevant for our purpose

which we set out hereunder: -

"633. Cases in which ordinary remission not earned.

No ordinary remission shall be earned in the following

cases, namely: -

(1) in respect of any sentence of imprisonment

amounting, exclusive of any sentence passed in default of

payment of fine, to less than three months;

(2) in respect of any sentence of simple imprisonment

except for any continuous period not being less than one

month during which the prisoner labours voluntarily:

633-A. Ordinary remission not earnable for certain

offences committed after admission to jail. If a prisoner

is convicted of an offence committed after admission to jail

under section 147, 148, 152, 224, 302, 304, 304-A, 306, 307,

308, 323, 324, 325, 326, 332, 333, 352, 353 or 377 of the

Indian Penal Code, or of an assault committed after

admission to Jail on a warder or other officer or under

section 6 of the Good Conduct Prisoners Probational Release

Act, 1926 (X of 1926), the remission of whatever kind earned

by him under these rules up to the date of the said

conviction may, with the sanction of the Inspector-General

of Prisons, be cancelled.

635. Scale of award of remission. Ordinary

remission shall be awarded on the following scale: -

(a) two days per month for thoroughly good conduct and

scrupulous attention to all prison regulations.

(b) two days per month for industry and the due

performance of the daily task imposed.

637. Application of remission of system. Subject

to the provisions of paragraph 634 remission under paragraph

635 shall be calculated from the first day of the calendar

month next following the date of prisoner's sentence; any

prisoner who after having been released on bail or because

its sentence has been temporarily suspended is afterwards

readmitted in the jail shall be brought under the remission

system on the first day of the calendar month next following

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his re-admission, but shall be credited on his return to

jail with any remission which he may have earned previous to

his release on bail or the suspension of his sentence.

Remission under paragraph 636 shall be calculated from the

first day of the next calendar month following the

appointment of the prisoner as convict warder, convict

overseer or convict night watchman.

644. Special remission. (1) Special remission may

be given to any prisoner whether entitled to ordinary

remission or not other than a prisoner undergoing a sentence

referred to in paragraph 632, for special service as for

example.

For the existing para the following shall be

substituted.

(1) Special remission may be given to any prisoner

whether entitled to ordinary remission or not other than a

prisoner undergoing a sentence referred to in paragraph 632,

for special services as for example:

(a) assisting in detecting or preventing breaches of

prison discipline or regulations,

(b) success in teaching handicrafts,

(c) special excellence in, or greatly increased

out-turn of work of good quality,

(d) protecting an officer of the prison from attack,

(e) assisting an officer of the prison in the case of

outbreak of fire or similar emergency,

(f) economy in wearing clothes,

(g) donating blood to the Blood Bank provided that the

scale of special remission for this service shall be fifteen

days for each occasion on which blood is donated subject to

the limit laid down in sub-para (3),

(f) voluntarily undergoing vasectomy operation by a

prisoner, having three children, provided that the scale of

special remission for such service shall be 30 days, subject

to the limits laid down in sub-para (3).

(2) Special remission may also be given to any

prisoner released under the Good Conduct Prisoners'

Probational Release Act, 1926 for special services as:

(i) Special excellence in, of greatly increased

out-turn or good quality,

(ii) Assisting employer in case of out-break or fire

or protecting his life or property from theft and other

meritorious services.

(3) Special remission may be awarded: -

(i) by the Superintendent to an amount not exceeding

three days in one year.

(ii) by the Chief Probation Officer in the case of

prisoners released under the provisions of the Good Conduct

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Prisoners' Probational Release Act, 1926 to an amount not

exceeding 30 days in one year.

(iii) by the Inspector-General of the Local Government

to an amount not exceeding sixty days in one year.

EXPLANATION: - For the purpose of this rule, years

shall be reckoned from the date of sentence and any fraction

of a year shall be reckoned as a complete year.

(4) An award of special remission shall be entered on

the history ticket of the prisoner as soon as possible after

it is made, and the reasons for every award of special

remission by a Supdt. shall be briefly recorded, and in

case of prisoners released under the Good Conduct Prisoners'

Probational Release Act, 1926, such entries and reasons

thereof shall be recorded by the Probation Officer.

645. Total remission not to exceed one-fourth part of

sentence. The total remission awarded to a prisoner under

all these rules shall not without the special sanction of

the Local Government, exceed one-fourth part of his

sentence.

Provided in every exceptional and suitable cases the

Inspector-General of Prisons may grant remission amounting

to not more than one-third of the total sentence."

When a circular specifically applies to the prisoners

who are undergoing sentence and are confined in jail and

even to those who are on parole or furlough we cannot extend

this circular to convicts who are on bail and thus carve out

another category to which Court is not entitled under

Section 432 of the Code. As noted above, validity of the

circular has not been challenged on any other ground.

In the case of Harphool Singh, who was convicted of

rape, circular specifically is not applicable to the

prisoner convicted of an offence of rape or other dowry

offences. Perhaps, this provision was not brought to the

notice of the High Court when it held that circular would

also apply in the case of Harphool Singh. It was submitted

by Mr. Dayan Krishan, learned amicus curiae that

nevertheless Harphool Singh might have already undergone the

sentence after earning remission under the Punjab Jail

Manual and present appeal in his case would be infructuous.

It will be for the State Government to consider, if Harphool

Singh has served out his sentence in normal course without

getting any remission under the circular on the basis of the

impugned judgment of the High Court. It is not disputed

that Harphool Singh has already got benefit of remission to

which he was entitled under Chapter XX of the Punjab Jail

Manual. He is certainly not entitled to remission under the

circular as that is not applicable to a person convicted of

an offence under Section 376 IPC.

From para 637 as reproduced above a convict on bail is

not entitled to the benefit of remission system. In fact

question is no longer res integra as it is covered by the

decision of this Court in Jai Prakash and others vs. State

of Haryana and others (1987 (4) SCC 296). While considering

the scope of para 637 this Court held: --

"On a reading of the aforesaid provision it is

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manifest that a prisoner who has been released on bail or

whose sentence has been temporarily suspended and has

afterwards been re-admitted in jail will be brought under

remission system on the first day of the calendar month next

following his re- admission. In other words, a prisoner is

not eligible for remission of sentence during the period he

is on bail or his sentence is temporarily suspended. The

submission that the petitioners who were temporarily

released on bail are entitled to get the remission earned

during the period they were on bail, is not at all

sustainable."

In the appeals where the convicts were on bail High

Court in the impugned judgments relied on a decision of this

Court in Nalamolu Appala Swamy and others vs. State of

Andhra Pradesh (1989 Supp. (2) SCC 192) where this Court

observed as under: -

"We find merit in the contention because the scheme of

remission formulated under the GO is with reference to the

period of sentence actually undergone by different classes

of prisoners and in the case of some the period of actual

sentence together with the remissions earned for reckoning

the total sentence. The GO does not stipulate that in order

to get the benefit of remission the prisoners must actually

be in jail on the date the GO was issued."

Decision of this Court in the case of Nalamolu Appala

Swamy aforesaid, however turns on the facts of that case.

The GO which granted remission has not been set out in the

judgment though the judgment noticed that GO has been issued

by the Government for granting remission to certain

categories of prisoners "to commemorate the occasion of the

anniversary of formation of the Andhra Pradesh State on

November 1, 1984 and the restoration of democratic rule in

the State". The Court also noticed the argument of the

appellants that GO nowhere sets out that benefit of

remission would be confined to prisoners who were actually

in jail on the date of the GO and not to others who were on

bail. We are of the opinion that the High Court was not

right in the judgments impugned in these appeals holding

that the respondents were entitled to remission of their

sentences under the circulars in question issued under

Section 432 of the Code of Criminal Procedure. These

appeals are, therefore, allowed and the impugned judgments

of the High Court are set aside. We place on record our

appreciation of the valuable assistance rendered to us by

Mr. Dayan Krishnan, Advocate who appeared as amicus curiae.