CWP No. 5169 of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
C.W.P. No. 5169 of 2007
Date of Decision: September , 2008
Harjinder Singh
...Petitioner
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MR. JUSTICE M.M. KUMAR
HON'BLE MRS. JUSTICE SABINA
Present: Mr. I.K. Mehta, Senior Advocate, with
Ms. Ranjit Mehta, Advocate,
for the petitioner.
Mr. Suvir Sehgal, Addl. AG, Punjab,
for respondent Nos. 1 and 2.
Mr. V.K. Jindal, Advocate,
for respondent Nos. 3 to 6.
M.M. KUMAR, J.
This petition filed under Article 226 of the Constitution
challenges order dated 20.3.2003 (P-5), passed by the Principal Secretary to
Government of Punjab, Department of Home Affairs and Justice,
Chandigarh-respondent No. 2.As per the impugned order respondent Nos. 3
to 6 and Daya Singh son of Balwant Singh (since deceased) have been
released by granting them remission without requiring them to serve the
sentence of 10 years rigorous imprisonment as per the orders dated 6.3.1998
(P-1), passed by Hon’ble the Supreme Court in Criminal Appeal No. 589
of 1988, titled as Harjinder Singh v. Karnail Singh and others, and
Criminal Appeal No. 784 of 1989, titled as State of Punjab v. Karnail
Singh and others now reported in AIR 1998 SC 1648. A further prayer
has also been made for commanding respondent Nos. 1 and 2 to comply
with orders dated 6.3.1998 (P-1), passed by Hon’ble the Supreme Court, to
take respondent Nos. 3 to 6 into custody and confine them to jail to undergo
CWP No. 5169 of 2007 2
the remaining period of sentence of ten years rigorous imprisonment.
2. Facts: There is a village called Bhadaur in the Sub Division
Barnala ( District Sangrur). Late in the evening of 24.4.1983 a number of
persons were killed by a group of accused. A case FIR No. 41, dated
25.4.1983 was registered at Police Station Bhadaur on the statement of
Head Constable Chanan Singh, regarding the occurrence. The petitioner
and his companions were arrested. It is claimed that the actual accuseds
were not named in the FIR. Therefore, on 2.8.1983 the petitioner was
compelled to file a private complaint in the Court of Judicial Magistrate Ist
Class, Barnala, naming nine other accused persons. The case was
committed to the Court of Sessions by the learned Magistrate, vide order
dated 30.3.1984. Both the cases arising out of FIR No. 41, dated 25.4.1983
and arising out of private complaint, dated 2.8.1983, filed by the petitioner
were clubbed by the learned Additional Sessions Judge, Barnala. It was
ordered that the evidence recorded in one case be treated as evidence in the
other case. On 29.1.1986, the Trial Court convicted Karnail Singh
(respondent No. 3), Gurcharan Singh (respondent No. 4), Mohinder Singh
(respondent No. 5), Ghala Singh (respondent No. 6), Daya Singh (since
deceased), Bachan Singh (since deceased ) and Gurdial Singh under
Section 302 read with Section 149 IPC and sentenced them to undergo
imprisonment for life. However, the other accused persons were acquitted.
3. Feeling aggrieved, the accused-convict preferred an appeal to
this Court, bearing Criminal Appeal No. 58-DB of 1986, which was allowed
vide judgment dated 12.10.1987, setting aside their conviction and sentence.
During the pendency of the said appeal accused/convict Bachan Singh son
of Shingara Singh died.
CWP No. 5169 of 2007 3
4. Thereafter, the petitioner filed Criminal Appeal No. 589 of
1988 (supra) and State of Punjab filed Criminal Appeal No. 784 of 1989
(supra) before Hon’ble the Supreme Court, which were allowed vide order
dated 6.3.1998 (P-1) and the accuseds were convicted under Section 304
Part I read with Section 34 IPC. They were sentenced to suffer rigorous
imprisonment for a period of 10 years. The concluding paras of the order
reads thus:-
” Having considered carefully the evidence of PWs-2 and
7 and the reasons given by the High Court for not believing
them and acquitting the respondents we are of the opinion that
the High Court not only failed to give due weight to the reasons
given by the trial Court but also failed to consider some very
relevant aspects while appreciating their evidence. But their
evidence does not rule out the possibility of the respondents’
entertaining an apprehension that PW-2 Harjinder Singh and
his men had come there to take forcible possession of land and
to attack them. However, there can be no doubt that they
exceeded the right of private defence when they chased Major
Singh and Nachhattar Singh outside the compound and killed
them. There was also no necessity for them to fire as many as
30 to 40 rounds at Jit Singh, Dayal Singh and Nazir Singh.
Thus, in view of the facts and circumstances of the case, they
can be said to have exceeded the right of private defence and
committed the offence punishable under Section 304 Part I read
with 34 IPC.
Therefore, these appeals are allowed, the acquittal
CWP No. 5169 of 2007 4of the respondents is set aside and they are convicted under
Section 304 Part I read with 34 IPC and sentenced to suffer
rigorous imprisonment for a period of 10 years.”
5. In pursuance to the order dated 6.3.1998 (P-1), learned
Additional Sessions Judge, Barnala, issued orders of conviction warrant,
dated 23.4.1998, to Karnail Singh, Gurcharan Singh, Mohinder Singh,
Ghala Singh and Daya Singh directing them to surrender in jail upto
10.5.1998. Accordingly, Karnail Singh, Gurcharan Singh, Mohinder Singh,
Ghala Singh and Daya Singh surrendered on 8.5.1998. On 24.9.1998,
learned Additional Sessions Judge, Barnala, passed an order requiring these
five convicts to undergo the balance sentence. The aforementioned
convicts surrendered within fifteen days. However, they were granted
remission in pursuance to Government order issued from time to time
between 11.11.1989 to 1999. On 31.10.1998, convict Gurcharan Singh and
Mohinder Singh were released from Central Jail, Amritsar, convict Karnail
Singh was released on 3.11.1998 from Central Jail, Gurdaspur, whereas
convict Ghala Singh and Daya Singh were released on 14.4.1999 from
Central Jail, Ludhiana. In this manner, the aforementioned convict were
released without serving the full term of sentence awarded by Hon’ble the
Supreme Court. It is claimed that convict Karnail Singh, Gurcharan Singh
and Mohinder Singh served a sentence of about 4½ years whereas Ghala
Singh and Daya Singh have served sentence of over 2 ½ years.
6. The petitioner challenged the action of the respondent State in
releasing the aforementioned convicts by granting them remission, by filing
C.W.P. No. 11126 of 2000 in this Court. During the pendency of the writ
petition, the petitioner filed an application bearing Civil Misc. No. 4971 of
CWP No. 5169 of 2007 5
2002, seeking disposal of the writ petition in terms of the judgment rendered
by Hon’ble the Supreme Court in the case of Joginder Singh v. State of
Punjab, JT 2001 (7) SC 587. On 31.7.2002 (P-2), the aforementioned
application and writ petition were disposed of by a learned Single Judge of
this Court by passing the following order:-
“CM 4971/2002
This application has been filed by the petitioner praying
that the writ petition be disposed of in the light of the law laid
down by the Supreme Court in Joginder Singh Vs. State of
Punjab and others JT 2001(7) SC 587.
In view of the above submission, the C.M. is allowed and
the writ petition is taken up for hearing.
CWP 11126/2000
Counsel for the parties are agreed that the cases of
respondent Nos. 2 to 6 for remission have to be examined
afresh in the light of the law laid down by the Supreme Court
in the case of Joginder Singh (supra).
Learned counsel for respondent Nos. 2 to 6 contend that
the cases of respondent Nos. 2 to 6 had been considered prior
to the judgment of the Supreme Court and, therefore, the ratio
of the aforesaid judgement is not applicable to their cases.
They shall be at liberty to raise all these objections when the
matter is decided afresh.
In view of the above, I dispose of the writ petition with a
direction to respondent No. 1 to consider and decide the cases
of respondent Nos. 2 to 6 for remission afresh in the light of the
CWP No. 5169 of 2007 6law laid down by the Supreme Court in the case of Joginder
Singh (Supra). Respondent Nos. 2 to 6 shall be afforded a
reasonable opportunity of being heard and shall be at liberty to
raise all the objections being raised now in the present
proceedings. Their cases shall be decided by passing a
speaking order. The necessary exercise shall be completed
within two months from today.
It is made clear that nothing stated in this order shall be
considered as an expression of the opinion of this Court on the
merits of the case.
Copy of the order be given dasti on payment of usual
charges.”
7. It is alleged that the accused-respondents are very influential
persons and they have managed their release on account of political
consideration. It has been further claimed that accused Ghala Singh, who
wielded significant political influence in the area, had bargained with S.
Parkash Singh Badal that in lieu of their release they would ensure complete
support of voters to whom their word was a command.
8. In terms of order dated 31.7.2002 (P-2), the matter was to be
decided within two months by respondent No. 1 but nothing was done.
Faced with this situation, the petitioner was compelled to file a contempt
petition bearing C.O.C.P. No. 643 of 2003 in this Court. On 2.9.2003, this
Court issued notice to the Advocate General, Punjab, to ascertain the facts.
When no reply was furnished, this Court took serious view of the matter and
on 1.12.2006 (P-3), following order was passed by the Contempt Court:-
” It was on 31.7.2002 that a direction was issued to the
CWP No. 5169 of 2007 7State of Punjab to reconsider the case of the respondents No. 2
to 6 (in the main Writ Petition) for the remission in the light of
the judgment rendered by Hon’ble Supreme Court of India in
Joginder Singh Vs. State of Punjab JT 2001 (7) SC 587.
The non-compliance of the aforesaid direction has led to
initiation of these contempt proceedings which are also
pending since 2003. Even reply has not been filed from the last
more than three years, what to talk of compliance of the time
bound directions. The order granting remission to respondents
No. 2 to 6 is prima facie in derogation of the principles laid
down by the Hon’ble Supreme Court.
Mr. Cheema learned State counsel seeks one more
opportunity to comply with the orders passed by this Court.
In the interest of justice and as last opportunity,
adjourned to 19.12.2006. The Principal Secretary (Home),
State of Punjab, shall remain present on the adjourned date.
Copy of this order be supplied to learned State counsel
dasti for information and compliance thereof.”
9. On 18.12.2006, a reply was filed in the contempt petition
stating that facts could not be brought to the notice of the Court due to some
communication gap as the speaking order with regard to reconsideration of
remission to the accused respondents in light of the judgment of Hon’ble the
Supreme Court in the case of Joginder Singh (supra) was already passed on
20/25.3.2003 after affording reasonable opportunity of being heard to
accused persons (P-4). In this view of the matter, the contempt petition
filed by the petitioner was disposed of vide order dated 19.12.2006 (P-6)
CWP No. 5169 of 2007 8
with liberty to the petitioner to challenge the order dated 20/25.3.2003.
10. In these circumstances the petitioner has filed the instant
petition impugning order dated 20/25.3.2003 (P-5), passed by respondent
No. 2. It is apposite to mention that respondent No. 2 has ordered that
remission granted to the accused persons/respondent Nos. 3 to 6 has to
prevail because they were released prior to the decision of Hon’ble Supreme
Court, dated 11.9.2001, in the case of Joginder Singh (supra). Para 7 of the
impugned order reads thus:-
“7. After examining the facts of the case it has come to the
notice that it is not possible to act according to the orders of the
Hon’ble Supreme Court dated 11.9.2001 on the persons who
were already released before this decision. In view of the
above position it has been decided that the earlier release
orders of Sarv Shri Karnail Singh S/o Wasakha Singh,
Gurcharan Singh S/o Jagir Singh, Mohinder Singh S/o Mehma
Singh, Ghala Singh S/o Bhajan Singh and Daya Singh S/o
Balwant Singh will prevail.” (emphasis added)
11.In the written statement filed on behalf of respondent Nos. 3 to 6
preliminary objections have been raised that they were released by the jail
authorities after granting benefit of various remissions under the Punjab
Jail Manual and also the special remissions granted by the State of Punjab
under Section 432 Cr.P.C. and Article 161 of the Constitution. Various
circulars granting remissions, after conviction of respondent Nos. 3 to 6
have been placed on record as Annexures R-3/1 to R-3/9. Regarding
applicability of the judgment of Hon’ble the Supreme Court rendered in
CWP No. 5169 of 2007 9
the case of Joginder Singh (supra), it has been asserted that the same is
not applicable to them under the doctrine of ‘prospective overruling’.
The said judgment was passed on 11.9.2001 whereas respondent Nos. 3
to 6 were released much prior in the year 1999. It has been further
asserted that the judgment in Joginder Singh’s case (supra) is applicable
only to those cases where the convicts remained on bail and who had not
served substantial part of their sentence. It is claimed by respondent Nos.
3 to 6 that they have actually served substantial part of their sentence.
The instant petition has been filed only because the petitioner is inimical
towards respondent Nos. 3 to 6 and the same is a calculative attempt to
harass, torture and victimize them. The allegation of political influence
on account of S. Parkash Singh Badal has been specifically denied.
12. In the counter filed on behalf of respondent Nos. 1 and 2
details with regard to remission granted to respondent Nos. 3 to 6 by the
Government and their release from various jails have been given and it
has been reiterated that the judgment of Hon’ble the Supreme Court in the
case of Joginder Singh (supra) is not applicable to the case of respondent
Nos. 3 to 6. In other words, the impugned order dated 20/25.3.2003 (P-5)
has been sought to be justified. It has been asserted that if the benefit of
Government remissions was not granted to respondent Nos. 3 to 6, it
would have led to legal complications because remission was granted in
similar cases in the State of Punjab as per the instructions of the
Government.
13. In the rejoinder to the reply filed by respondent Nos. 1 and 2,
the petitioner has taken the stand that while passing the impugned order
on 20.3.2003 neither he was heard by respondent No. 2 nor a copy of the
CWP No. 5169 of 2007 10
order was conveyed to him despite various inquiries. It was only after
filing of contempt petition that a copy of the order was for the first time
placed before this Court in December 2006. It is, thus, claimed that the
impugned order was stage managed and an attempt to frustrate the
proceedings, which the petitioner was pursuing.
14. Mr. I.K. Mehta, learned counsel for the petitioner has argued
that respondent nos. 3 to 5 have undergone only 4 ½ years of sentence as
against 10 years rigorous imprisonment ordered by the Hon’ble Supreme
Court vide its order dated 6.3.1998. According to the learned counsel
respondent no. 6 Ghalla Singh has undergone only over 2 ½ years of
sentence as against 10 years rigorous imprisonment awarded to him by the
Hon’ble Supreme Court. He has emphasised that according to the judgement
rendered in the case of Joginder Singh (supra), respondent nos. 3 to 6 have
not served substantial part of sentence as per the requirement of the
judgement in Joginder Singh’s case (supra) and therefore they are not
entitled to take advantage of the remissions granted to them in pursuance to
circulars R/3/1 to R/3/9. Mr. Mehta has also made reference to the
background facts showing that right from the beginning the prosecution and
respondent-State has adopted favourable attitude to the accused-
respondent nos. 3 to 6 and others in as much as proper prosecution could be
launched against respondent nos. 3 to 6 only when a private complaint by
the petitioner was filed and that the persons who have been granted the
benefit of remission are potential threat to the life and property of the
petitioner.
15.Mr. Suvir Sehgal and Mr. V.K.Jindal, learned counsel for the
respondents have argued that the power of the State to grant remissions
CWP No. 5169 of 2007 11
by issuing circular under Article 161 is well recognised and it cannot be
nullified by the mere complaint of the petitioner that respondent nos. 3 to
6 should be asked to undergo complete imprisonment. They have
submitted that the judgement rendered in the case of Joginder Singh
(supra) in the year 2001 would not apply to the case of respondent nos. 3
to 6 because they were released after serving sentence in accordance with
the remissions granted to them on 14.4.1999. The case of the petitioner
was considered as per the law prevailing at that time. The legal position
at that time was settled as per the judgement of Hon’ble the Supreme
Court in the case of Nalamolu Appala Swamy and others v. State of
Andhra Pradesh 1989 Supp (2) SCC 192 (Annexure R/3/10). According
to the afore-mentioned judgement it has been held that the benefit of
remission could not confine to prisoners actually in jail on the date of
issuance of government order and even persons on bail on the date of
issue of circular were also entitled to the benefit of remission. Therefore
it has been maintained that the benefit of remission have been rightly
granted to them.
16. Having heard learned counsel at a considerable length and
perusal of government circulars Annexures R/3/1 to R/3/9 we are of the
view that the only issue which needs determination is :
Whether judgement of the Hon’ble Supreme Court in the
case of Joginder Singh (supra) is applicable to the case in
hand?
17. It is well settled that the State Government under Article 161
and the Union Government under Article 72 of the Constitution are
empowered to issue circulars granting remission of sentence. The matter has
CWP No. 5169 of 2007 12
been considered by a Constitution Bench of the Supreme Court in the case
of Maru Ram v. Union of India (1981) 1 SCC 107. The view taken is that
the afore-mentioned provision clothe the President and the Governor
respectively to pass order of remission. However, such an order is open to
judicial review and the grounds of judicial review are extremely limited. It
is only a case of non consideration or considerations based on wholly
irrelevant grounds or on irrational, discriminatory or malafide decision of
the President or Governor which could provide a ground of judicial
review. All subsequent judgements of the Supreme Court draw support from
the case of Maru Ram (supra). In Sat Pal v. State of Haryana (2000) 5 SCC
170, the statement of law has been re-stated as under:
” …. (i) the Governor exercising the power under Article 161
himself without being advised by the Government; or (ii) the
Governor transgressing his jurisdiction; or (iii) the Governor
passing the order without application of mind; or (iv) the
Governor’s decision is based on some extraneous
considerations; or (v) malafide.”
18.The afore-mentioned view has been reiterated in the case of Bikas
Chaterjee v. Union of India (2004) 7 SCC 634; E.Puru Sudhakar v.
Government of Andhra Pradesh (2006) 8 SCC 161. Therefore, the
orders of remission passed by respondent nos. 1 and 2 have to be
examined within the para-meters laid down by their Lordships in the
afore-mentioned judgements.
19. It has come on record that respondent no. 3 karnail Singh
remained undertrial from 3.5.1983 to 28.1.1986. He was convicted on
29.1.1986 and served the sentence on his conviction from 29.1.1986 to
CWP No. 5169 of 2007 13
17.10.1987. He was acquitted on 12.10.1987. However, on the ground
that he was convicted by the Hon’ble Supreme Court vide order dated
6.3.1998 he surrendered on 8.5.1998 and served the sentence till
3.11.1998. In respect of each of respondent nos. 3 to 6.The whole
position could be summed up from the following four tables.
Respondent no. 3 Karnail Singh s/o Wasakha Singh, released
from Central Jail, Gurdaspur on 3.11.1998
From 3.5.1983 to 28.1.1986 (under trial) Years Months Days
Period 02 08 27
From 29.1.1986 to 17.10.1987 (conviction) 1 8 22
period
From 8.5.1988 to 3.11.1998 (conviction) – 5 26
period
Total Period 4 11 15
Remissions given by the Govt. 5 15
Total sentence with remission till 3.11.1998 10 0 0
Respondent no.4 Gurcharan Singh s/o Jagir Singh released from Central
Jail, Amritsar on 31.10.1998
From 3.5.1983 to 28.1.1986 (under trial ) Years Month Days
Period 02 08 27
From 29.1.1986 to 17.10.1987 (conviction) 1 8 22
period
From 8.5.1998 to 31.10.1998 (conviction ) – 5 23
Period
Total Period 4 11 12
Remissions given by the Govt. 5 – 18
Total sentence with remission till 31.10.1998 10 – –
Respondent no.5 Mohinder Singh s/o Mehma Singh released from Central
Jail, Amritsar on 3.10.1998
From 3.5.1983 to 28.1.1986 (Under trial) Years Month Days
period 02 08 27
From 29.1.1986 to 17.10.1987 (conviction) 1 8 22
period
From 8.5.1998 to 31.10.1998 (conviction) – 5 23
period
Total Period 4 11 12
Remissions given by the Govt. 5 – 18
Total sentence with remission till 31.10.1998 10 – –
CWP No. 5169 of 2007 14
Respondent no.6 Ghalla Singh s/o Bhajan Singh released from Central
Jail, Amritsar on 14.04.1999
Date of surrender 8.5.1998
Conviction period from 29.1.1986 to Years Months Days
17.10.1987 01 08 20
Less Parole period – 1 12
Less period spent in jail 1 7 8
After surrender conviction from 8.5.1998 to – 11 6
14.4.1999
Total conviction period 2 6 14
Availed Govt. Remiossions 89 months 16 7 -5 16
days.
Total sentence alongwith State Govt. 10 - -
Remissions
20. A close scrutiny of the afore-mentioned tables would show that
respondent nos. 3 to 5 have availed 5 years 15 days / 5 years 18 days
remissions whereas respondent no. 6 has availed 7 years 5 months 16 days
remission. Another feature which is discernible from the afore-mentioned
table is that respondent nos. 3 to 5 have served the sentence from 3.5.1983
to 17.10.1987 when they were acquitted vide order dated 12.10.1987 by
acceptance of their appeal by a Division Bench of this Court. They did not
serve any part of sentence after 12.10.1987. However, they were convicted
by the order passed by the Hon’ble Supreme Court on 6.3.1998 and they
surrendered on 8.5.1998 and served the sentence till October/ November,
1998. Likewise, respondent no.6 did not spend any period as an undertrial
which could be counted for serving sentence. He was convicted by an order
of conviction passed on 29.1.1986. He was taken into custody and
continued to serve the sentence till 17.10.1987 when the order of acquittal
was passed by this Court on 12.10.1987. He also surrendered in pursuance
to the order dated 6.3.1998 on 8.5.1998 and was released from the jail on
14.4.1999.
21. It is further appropriate to mention that Government orders
CWP No. 5169 of 2007 15
granting remission have been issued starting from 11.11.1989 to 8.4.1999
( Annexures R/3/1 to R/3/8). The remission orders passed by respondent
nos. 1 and 2 have granted benefit of government circulars Annexures R/3/1
to R/3/8. Admittedly, respondent nos. 3 to 6 were not serving any sentence
during the period when government circulars dated 10.11.1989 ( Annexure
R/3/1); 5.4.1992 ( Annexure R/3/2); 27.1.1994 ( Annexure R/3/3); 6.3.1995
( Annexure R/3/4); 18.12.1996 ( Annexure R/3/5); 14.8.1997 ( Annexure
R/3/6) and 14.8.1998 ( Annexure R/3/7) were in operation. Therefore, the
question which arises for consideration is whether respondent nos. 3 to 6
would become entitled to the benefit of provision available under those
circular/government order when they were free on account of order of
acquittal and were not serving any part of sentence. It is in this context that
the judgement of Hon’ble the Supreme Court rendered in the case of
Joginder Singh (supra) is required to be considered.
22. A perusal of paras 8,9,10 and 11 of the judgement in Joginder
Singh’s case (supra) shows that the Court was considering the effect of
various circulars Annexures R/3/1 to R/3/8. Rejecting the argument that the
accused in that case although have served 2 months 25 days of sentence out
of 1 ½ years they would be entitled to the benefit of afore-mentioned
circulars granting remission despite the fact that the accused were on bail. It
would first be appropriate to notice the argument rejected by the Hon’ble
Supreme Court in para 9 of the judgement in the context of various
notifications starting from notification dated 11.11.1989 to the notification
dated 14.8.1997 ( Annexure R/3/1 to R/3/6). The afore-mentioned argument
has been noticed by the Supreme Court as under:
” 9. Therefore, according to the argument of the learned
CWP No. 5169 of 2007 16counsel, even without taking into consideration the notification
dated 14.2.1997, the said respondents would be entitled to a
total remission of 17 ½ months. Therefore, the said respondents
even though have served just 2 months and 25 days and were
on bail rest of the period in view of the various notifications
referred to hereinabove, it is deemed that they have served their
entire period of conviction which is only for a period of 18
months ( 1 ½ years).”
23. After noticing the afore-mentioned argument, their Lordships also
considered another judgement rendered in the case of State of Haryana v.
Nauratta Singh and others JT 2000 (3) SC 85. While rejecting the above
extracted argument, the following observations were made in para 10 which
reads thus:
” 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 (JT 2000(3) SC 85). 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
judgements 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
CWP No. 5169 of 2007 17opinion, 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.”
24.It is thus obvious that despite the fact that word ‘bail’ has been used in
circular Annexures R/3/1 to R/3/9 the same is deemed to be omitted on
the interpretation provided by the Hon’ble Supreme Court in Joginder
Singh’s case (supra) which to our mind is clear enunciation of law.
25. The question which arises in the present case is whether the
benefit of various remission circulars could be granted to the respondents
3 to 6 of those circular which were issued by respondent nos. 1 and 2
when they were free citizen after their acquittal and then bail granted to
them on 5.10.1989 in pursuance to directions issued by Hon’ble the
Supreme Court. According to the judgement of the Supreme Court in
Joginder Singh’s case a person on bail cannot be granted benefits of
Government circulars R-3/1 to R-3/9. It is not possible to grant the
benefit of remission in respect of the period when respondent nos. 3 to 6
were free on account of their acquittal from 17.10.1987 to 5.10.1989 and
thereafter when they were on bail from 15.10.1981 to 8.5.1999.
Remission circulars cover the period 11.11.1989 to 8.4.1999. Respondent
nos. 3 to 5 have served their sentence from 3.5.1983 to 17.10.1987 which
include the period of under trial as well as the period of their conviction.
However, a Division Bench of this Court acquitted them vide order dated
12.10.1987 and they were released. From 17.10.1987 to 5.10.1989 they
remained free and thereafter on bail from 5.10.1989 to 8.5.1999. They
CWP No. 5169 of 2007 18
surrendered on 8.5.1999 to serve the sentence in pursuance to the orders
of Hon’ble the Supreme Court dated 6.3.1998 and continued to serve the
sentence till 14.4.1999 when they were released by granting the benefit
of circular dated 11.11.1989 and other circulars ( Annexures R/3/1 to
R/3/8).
26. A perusal of circular dated 11.11.1989 shows that it was issued
to celebrate the birth centenary of Independent India’s First Prime Minister
Pt. Jawahar Lal Nehru. Respondent nos. 3 to 6 were free to celebrate as they
were enjoying the life of free man after having been acquitted by the Court
vide order dated 12.10.1987 although on bail vide order dated 5.10.1989.
Likewise they were also free to celebrate the installation of new Ministry in
Punjab on 25.2.1992 when circular 5.4.1992 ( Annexure R/3/2) was issued.
The position would continue to be the same when special remissions were
granted to the prisoners by issuing circulars on 27.1.1994 and 6.3.1995
( Annexures R/3/3 and R/3/4). Similarly respondent nos. 3 to 6 were also
free to celebrate the Martyrdom Day of Shri Guru Teg Bahadur on
15.12.1996 when circular dated 18.12.1996 ( Annexure R/3/5) was issued.
They were also free to celebrate the 50th year of Indian’s independence when
circular of 14.8.1997 ( Annexure R/3/6) was issued and subsequent circular
(Annexure R/3/7) was issued on 12.8.1998. Therefore, we are of the
considered view that the judgement in Joginder Singh’s case (supra) would
apply to the facts of the present case with added force.
27. One of the grounds of judicial review laid down in the
judgement of Bikas Chaternjee and similar other judgements is that an
order passed by the authorities if lacks application of mind then the Courts
would be fully competent to set aside such an order. Taking into account the
CWP No. 5169 of 2007 19
fact that respondents have failed to consider the judgement in Joginder
Singh’s case (supra) in its proper prospective we are of the considered view
that the order dated 20.3.2003 passed by respondent no.2 suffers from lack
of application of mind and therefore the same cannot be sustained.
28. The argument of the learned counsel for the respondents that
the judgement in Joginder Singh’s case (supra) is prospective cannot be
accepted because firstly there is no observation in that case to give effect to
the operation of the judgement only prospectively. Secondly, it is
declaration of law which is binding on everyone under Article 142 of the
Constitution. Therefore, we have no hesitation to reject the argument raised.
29. For the reasons afore-mentioned this petition succeeds. Order
dated 20.3.2003 ( Annexure P.5) is set aside. The respondent nos. 1 and 2
are directed to re-calculate the remaining part of sentence of respondent nos.
3 to 6 within one month from the date of receipt of a copy of this order.
Within one week of passing of order by respondent nos. 1 and 2 the convict
respondent nos. 3 to 6 shall surrender before the Superintendent, District
Jail, Ludhiana
(M.M. KUMAR)
JUDGE
(SABINA)
September , 2008 JUDGE
Pkapoor/okg