{"id":241515,"date":"2008-09-18T00:00:00","date_gmt":"2008-09-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-vs-state-of-punjab-and-others-on-18-september-2008"},"modified":"2016-03-04T22:45:13","modified_gmt":"2016-03-04T17:15:13","slug":"harjinder-singh-vs-state-of-punjab-and-others-on-18-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-vs-state-of-punjab-and-others-on-18-september-2008","title":{"rendered":"Harjinder Singh vs State Of Punjab And Others on 18 September, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Harjinder Singh vs State Of Punjab And Others on 18 September, 2008<\/div>\n
CWP No. 5169 of 2007                 1\n\n       IN THE HIGH COURT OF PUNJAB AND HARYANA AT\n                       CHANDIGARH\n\n                        C.W.P. No. 5169 of 2007\n                   Date of Decision: September , 2008\n\nHarjinder Singh\n                                                               ...Petitioner\n                                  Versus\nState of Punjab and others\n                                                            ...Respondents\nCORAM: HON'BLE MR. JUSTICE M.M. KUMAR\n       HON'BLE MRS. JUSTICE SABINA\n\nPresent:    Mr. I.K. Mehta, Senior Advocate, with\n            Ms. Ranjit Mehta, Advocate,\n            for the petitioner.\n            Mr. Suvir Sehgal, Addl. AG, Punjab,\n            for respondent Nos. 1 and 2.\n            Mr. V.K. Jindal, Advocate,\n            for respondent Nos. 3 to 6.\n\nM.M. KUMAR, J.\n<\/pre>\n
            This petition filed under Article 226 of the Constitution<\/p>\n
challenges order dated 20.3.2003 (P-5), passed by the Principal Secretary to<\/p>\n
Government of Punjab, Department of Home Affairs and Justice,<\/p>\n
Chandigarh-respondent No. 2.As per the impugned order respondent Nos. 3<\/p>\n
to 6 and Daya Singh son of Balwant Singh (since deceased) have been<\/p>\n
released by granting them remission without requiring them to serve the<\/p>\n
sentence of 10 years rigorous imprisonment as per the orders dated 6.3.1998<\/p>\n
(P-1), passed by Hon’ble the Supreme Court in Criminal Appeal No. 589<\/p>\n
of 1988, titled as Harjinder Singh v. Karnail Singh and others<\/a>, and<\/p>\n
Criminal Appeal No. 784 of 1989, titled as State of Punjab v. Karnail<\/p>\n
Singh and others<\/a> now reported in AIR 1998 SC 1648. A further prayer<\/p>\n
has also been made for commanding respondent Nos. 1 and 2 to comply<\/p>\n
with orders dated 6.3.1998 (P-1), passed by Hon’ble the Supreme Court, to<\/p>\n
take respondent Nos. 3 to 6 into custody and confine them to jail to undergo
\n CWP No. 5169 of 2007                 2<\/span><\/p>\n
the remaining period of sentence of ten years rigorous imprisonment.<\/p>\n
2.            Facts: There is a village called Bhadaur in the Sub Division<\/p>\n
Barnala ( District Sangrur). Late in the evening of 24.4.1983 a number of<\/p>\n
persons were killed by a group of accused. A case FIR No. 41, dated<\/p>\n
25.4.1983 was registered at Police Station Bhadaur on the statement of<\/p>\n
Head Constable Chanan Singh, regarding the occurrence. The petitioner<\/p>\n
and his companions were arrested. It is claimed that the actual accuseds<\/p>\n
were not named in the FIR. Therefore, on 2.8.1983 the petitioner was<\/p>\n
compelled to file a private complaint in the Court of Judicial Magistrate Ist<\/p>\n
Class, Barnala, naming nine other accused persons.           The case was<\/p>\n
committed to the Court of Sessions by the learned Magistrate, vide order<\/p>\n
dated 30.3.1984. Both the cases arising out of FIR No. 41, dated 25.4.1983<\/p>\n
and arising out of private complaint, dated 2.8.1983, filed by the petitioner<\/p>\n
were clubbed by the learned Additional Sessions Judge, Barnala. It was<\/p>\n
ordered that the evidence recorded in one case be treated as evidence in the<\/p>\n
other case.     On 29.1.1986, the Trial Court convicted Karnail Singh<\/p>\n
(respondent No. 3), Gurcharan Singh (respondent No. 4), Mohinder Singh<\/p>\n
(respondent No. 5), Ghala Singh (respondent No. 6), Daya Singh (since<\/p>\n
deceased), Bachan Singh (since       deceased ) and Gurdial Singh under<\/p>\n
Section 302 read with Section 149 IPC and sentenced them to undergo<\/p>\n
imprisonment for life. However, the other accused persons were acquitted.<\/p>\n
3.            Feeling aggrieved, the accused-convict preferred an appeal to<\/p>\n
this Court, bearing Criminal Appeal No. 58-DB of 1986, which was allowed<\/p>\n
vide judgment dated 12.10.1987, setting aside their conviction and sentence.<\/p>\n
During the pendency of the said appeal accused\/convict Bachan Singh son<\/p>\n
of Shingara Singh died.\n<\/p>\n
 CWP No. 5169 of 2007                    3<\/span><\/p>\n
4.             Thereafter, the petitioner filed Criminal Appeal No. 589 of<\/p>\n
1988 (supra) and State of Punjab filed Criminal Appeal No. 784 of 1989<\/p>\n
(supra) before Hon’ble the Supreme Court, which were allowed vide order<\/p>\n
dated 6.3.1998 (P-1) and the accuseds were convicted under Section 304<\/p>\n
Part I read with Section 34 IPC. They were sentenced to suffer rigorous<\/p>\n
imprisonment for a period of 10 years. The concluding paras of the order<\/p>\n
reads thus:-\n<\/p>\n
               ”     Having considered carefully the evidence of PWs-2 and<\/p>\n
               7 and the reasons given by the High Court for not believing<\/p>\n
               them and acquitting the respondents we are of the opinion that<\/p>\n
               the High Court not only failed to give due weight to the reasons<\/p>\n
               given by the trial Court but also failed to consider some very<\/p>\n
               relevant aspects while appreciating their evidence. But their<\/p>\n
               evidence does not rule out the possibility of the respondents’<\/p>\n
               entertaining an apprehension that PW-2 Harjinder Singh and<\/p>\n
               his men had come there to take forcible possession of land and<\/p>\n
               to attack them. However, there can be no doubt that they<\/p>\n
               exceeded the right of private defence when they chased Major<\/p>\n
               Singh and Nachhattar Singh outside the compound and killed<\/p>\n
               them. There was also no necessity for them to fire as many as<\/p>\n
               30 to 40 rounds at Jit Singh, Dayal Singh and Nazir Singh.<\/p>\n
               Thus, in view of the facts and circumstances of the case, they<\/p>\n
               can be said to have exceeded the right of private defence and<\/p>\n
               committed the offence punishable under Section 304 Part I read<\/p>\n
               with 34 IPC.\n<\/p><\/blockquote>\n
                           Therefore, these appeals are allowed, the acquittal
\n CWP No. 5169 of 2007                 4<\/span><\/p>\n
            of the respondents is set aside and they are convicted under<\/p>\n
            Section 304 Part I read with 34 IPC and sentenced to suffer<\/p>\n
            rigorous imprisonment for a period of 10 years.”<\/p>\n<\/blockquote>\n
5.          In pursuance to the order dated 6.3.1998 (P-1), learned<\/p>\n
Additional Sessions Judge, Barnala, issued orders of conviction warrant,<\/p>\n
dated 23.4.1998, to Karnail Singh, Gurcharan Singh, Mohinder Singh,<\/p>\n
Ghala Singh and Daya Singh directing them to surrender in jail upto<\/p>\n
10.5.1998. Accordingly, Karnail Singh, Gurcharan Singh, Mohinder Singh,<\/p>\n
Ghala Singh and Daya Singh surrendered on 8.5.1998.            On 24.9.1998,<\/p>\n
learned Additional Sessions Judge, Barnala, passed an order requiring these<\/p>\n
five convicts   to undergo the balance sentence.       The aforementioned<\/p>\n
convicts surrendered within fifteen days.     However, they were granted<\/p>\n
remission in pursuance to Government order issued from time to time<\/p>\n
between 11.11.1989 to 1999. On 31.10.1998, convict Gurcharan Singh and<\/p>\n
Mohinder Singh were released from Central Jail, Amritsar, convict Karnail<\/p>\n
Singh was released on 3.11.1998 from Central Jail, Gurdaspur, whereas<\/p>\n
convict Ghala Singh and Daya Singh were released on 14.4.1999 from<\/p>\n
Central Jail, Ludhiana. In this manner, the aforementioned convict were<\/p>\n
released without serving the full term of sentence awarded by Hon’ble the<\/p>\n
Supreme Court. It is claimed that convict Karnail Singh, Gurcharan Singh<\/p>\n
and Mohinder Singh served a sentence of about 4\u00bd years whereas Ghala<\/p>\n
Singh and Daya Singh have served sentence of over 2 \u00bd years.<\/p>\n
6.          The petitioner challenged the action of the respondent State in<\/p>\n
releasing the aforementioned convicts by granting them remission, by filing<\/p>\n
C.W.P. No. 11126 of 2000 in this Court. During the pendency of the writ<\/p>\n
petition, the petitioner filed an application bearing Civil Misc. No. 4971 of
\n CWP No. 5169 of 2007                    5<\/span><\/p>\n
2002, seeking disposal of the writ petition in terms of the judgment rendered<\/p>\n
by Hon’ble the Supreme Court in the case of Joginder Singh v. State of<\/p>\n
Punjab, JT<\/a> 2001 (7) SC 587. On 31.7.2002 (P-2), the aforementioned<\/p>\n
application and writ petition were disposed of by a learned Single Judge of<\/p>\n
this Court by passing the following order:-\n<\/p>\n
             “CM 4971\/2002<\/p>\n
                   This application has been filed by the petitioner praying<\/p>\n
            that the writ petition be disposed of in the light of the law laid<\/p>\n
            down by the Supreme Court in Joginder Singh Vs. State of<\/p>\n
            Punjab and others JT 2001(7) SC 587.\n<\/p><\/blockquote>\n
                   In view of the above submission, the C.M. is allowed and<\/p>\n
            the writ petition is taken up for hearing.\n<\/p><\/blockquote>\n
            CWP 11126\/2000<\/p>\n
                   Counsel for the parties are agreed that the cases of<\/p>\n
            respondent Nos. 2 to 6 for remission have to be examined<\/p>\n
            afresh in the light of the law laid down by the Supreme Court<\/p>\n
            in the case of Joginder Singh (supra).\n<\/p><\/blockquote>\n
                   Learned counsel for respondent Nos. 2 to 6 contend that<\/p>\n
            the cases of respondent Nos. 2 to 6 had been considered prior<\/p>\n
            to the judgment of the Supreme Court and, therefore, the ratio<\/p>\n
            of the aforesaid judgement is not applicable to their cases.<\/p>\n
            They shall be at liberty to raise all these objections when the<\/p>\n
            matter is decided afresh.\n<\/p><\/blockquote>\n
                   In view of the above, I dispose of the writ petition with a<\/p>\n
            direction to respondent No. 1 to consider and decide the cases<\/p>\n
            of respondent Nos. 2 to 6 for remission afresh in the light of the
\n CWP No. 5169 of 2007                   6<\/span><\/p>\n
            law laid down by the Supreme Court in the case of Joginder<\/p>\n
            Singh (Supra). Respondent Nos. 2 to 6 shall be afforded a<\/p>\n
            reasonable opportunity of being heard and shall be at liberty to<\/p>\n
            raise all the objections being raised now in the present<\/p>\n
            proceedings.    Their cases shall be decided by passing a<\/p>\n
            speaking order.       The necessary exercise shall be completed<\/p>\n
            within two months from today.\n<\/p><\/blockquote>\n
                  It is made clear that nothing stated in this order shall be<\/p>\n
            considered as an expression of the opinion of this Court on the<\/p>\n
            merits of the case.\n<\/p><\/blockquote>\n
                  Copy of the order be given dasti on payment of usual<\/p>\n
            charges.”\n<\/p><\/blockquote>\n
7.          It is alleged that the accused-respondents are very influential<\/p>\n
persons and they have managed their release on account of political<\/p>\n
consideration. It has been further claimed that accused Ghala Singh, who<\/p>\n
wielded significant political influence in the area, had bargained with S.<\/p>\n
Parkash Singh Badal that in lieu of their release they would ensure complete<\/p>\n
support of voters to whom their word was a command.\n<\/p>\n
8.          In terms of order dated 31.7.2002 (P-2), the matter was to be<\/p>\n
decided within two months by respondent No. 1 but nothing was done.<\/p>\n
Faced with this situation, the petitioner was compelled to file a contempt<\/p>\n
petition bearing C.O.C.P. No. 643 of 2003 in this Court. On 2.9.2003, this<\/p>\n
Court issued notice to the Advocate General, Punjab, to ascertain the facts.<\/p>\n
When no reply was furnished, this Court took serious view of the matter and<\/p>\n
on 1.12.2006 (P-3), following order was passed by the Contempt Court:-<\/p>\n
            ”     It was on 31.7.2002 that a direction was issued to the
\n CWP No. 5169 of 2007                  7<\/span><\/p>\n
            State of Punjab to reconsider the case of the respondents No. 2<\/p>\n
            to 6 (in the main Writ Petition) for the remission in the light of<\/p>\n
            the judgment rendered by Hon’ble Supreme Court of India in<\/p>\n
            Joginder Singh Vs. State of Punjab JT 2001 (7) SC 587.<\/p>\n<\/blockquote>\n
                   The non-compliance of the aforesaid direction has led to<\/p>\n
            initiation of these contempt proceedings which are also<\/p>\n
            pending since 2003. Even reply has not been filed from the last<\/p>\n
            more than three years, what to talk of compliance of the time<\/p>\n
            bound directions. The order granting remission to respondents<\/p>\n
            No. 2 to 6 is prima facie in derogation of the principles laid<\/p>\n
            down by the Hon’ble Supreme Court.\n<\/p><\/blockquote>\n
                   Mr. Cheema learned State counsel seeks one more<\/p>\n
            opportunity to comply with the orders passed by this Court.<\/p>\n<\/blockquote>\n
                   In the interest of justice and as last opportunity,<\/p>\n
            adjourned to 19.12.2006.      The Principal Secretary (Home),<\/p>\n
            State of Punjab, shall remain present on the adjourned date.<\/p>\n<\/blockquote>\n
                   Copy of this order be supplied to learned State counsel<\/p>\n
            dasti for information and compliance thereof.”<\/p>\n<\/blockquote>\n
9.          On 18.12.2006, a reply was filed in the contempt petition<\/p>\n
stating that facts could not be brought to the notice of the Court due to some<\/p>\n
communication gap as the speaking order with regard to reconsideration of<\/p>\n
remission to the accused respondents in light of the judgment of Hon’ble the<\/p>\n
Supreme Court in the case of Joginder Singh (supra) was already passed on<\/p>\n
20\/25.3.2003 after affording reasonable opportunity of being heard to<\/p>\n
accused persons (P-4). In this view of the matter, the contempt petition<\/p>\n
filed by the petitioner was disposed of vide order dated 19.12.2006 (P-6)
\n CWP No. 5169 of 2007                   8<\/span><\/p>\n
with liberty to the petitioner to challenge the order dated 20\/25.3.2003.<\/p>\n
10.         In these circumstances the petitioner has filed the instant<\/p>\n
petition impugning order dated 20\/25.3.2003 (P-5), passed by respondent<\/p>\n
No. 2. It is apposite to mention that respondent No. 2 has ordered that<\/p>\n
remission granted to the accused persons\/respondent Nos. 3 to 6 has to<\/p>\n
prevail because they were released prior to the decision of Hon’ble Supreme<\/p>\n
Court, dated 11.9.2001, in the case of Joginder Singh (supra). Para 7 of the<\/p>\n
impugned order reads thus:-\n<\/p>\n
             “7.   After examining the facts of the case it has come to the<\/p>\n
             notice that it is not possible to act according to the orders of the<\/p>\n
             Hon’ble Supreme Court dated 11.9.2001 on the persons who<\/p>\n
             were already released before this decision.        In view of the<\/p>\n
             above position it has been decided that the earlier release<\/p>\n
             orders of Sarv Shri Karnail Singh S\/o Wasakha Singh,<\/p>\n
             Gurcharan Singh S\/o Jagir Singh, Mohinder Singh S\/o Mehma<\/p>\n
             Singh, Ghala Singh S\/o Bhajan Singh and Daya Singh S\/o<\/p>\n
             Balwant Singh will prevail.” (emphasis added)<\/p>\n<\/blockquote>\n
11.In the written statement filed on behalf of respondent Nos. 3 to 6<\/p>\n
  preliminary objections have been raised that they were released by the jail<\/p>\n
  authorities after granting benefit of various remissions under the Punjab<\/p>\n
  Jail Manual and also the special remissions granted by the State of Punjab<\/p>\n
  under Section 432 Cr.P.C. and Article 161 of the Constitution. Various<\/p>\n
  circulars granting remissions, after conviction of respondent Nos. 3 to 6<\/p>\n
  have been placed on record as Annexures R-3\/1 to R-3\/9. Regarding<\/p>\n
  applicability of the judgment of Hon’ble the Supreme Court rendered in
\n CWP No. 5169 of 2007                  9<\/span><\/p>\n
  the case of Joginder Singh (supra), it has been asserted that the same is<\/p>\n
  not applicable to them under the doctrine of ‘prospective overruling’.<\/p>\n
  The said judgment was passed on 11.9.2001 whereas respondent Nos. 3<\/p>\n
  to 6 were released much prior in the year 1999. It has been further<\/p>\n
  asserted that the judgment in Joginder Singh’s case (supra) is applicable<\/p>\n
  only to those cases where the convicts remained on bail and who had not<\/p>\n
  served substantial part of their sentence. It is claimed by respondent Nos.<\/p>\n
  3 to 6 that they have actually served substantial part of their sentence.<\/p>\n
  The instant petition has been filed only because the petitioner is inimical<\/p>\n
  towards respondent Nos. 3 to 6 and the same is a calculative attempt to<\/p>\n
  harass, torture and victimize them. The allegation of political influence<\/p>\n
  on account of S. Parkash Singh Badal has been specifically denied.<\/p>\n
  12.             In the counter filed on behalf of respondent Nos. 1 and 2<\/p>\n
  details with regard to remission granted to respondent Nos. 3 to 6 by the<\/p>\n
  Government and their release from various jails have been given and it<\/p>\n
  has been reiterated that the judgment of Hon’ble the Supreme Court in the<\/p>\n
  case of Joginder Singh (supra) is not applicable to the case of respondent<\/p>\n
  Nos. 3 to 6. In other words, the impugned order dated 20\/25.3.2003 (P-5)<\/p>\n
  has been sought to be justified. It has been asserted that if the benefit of<\/p>\n
  Government remissions was not granted to respondent Nos. 3 to 6, it<\/p>\n
  would have led to legal complications because remission was granted in<\/p>\n
  similar cases in the State of Punjab as per the instructions of the<\/p>\n
  Government.\n<\/p>\n
  13.       In the rejoinder to the reply filed by respondent Nos. 1 and 2,<\/p>\n
  the petitioner has taken the stand that while passing the impugned order<\/p>\n
  on 20.3.2003 neither he was heard by respondent No. 2 nor a copy of the
\n CWP No. 5169 of 2007                 10<\/span><\/p>\n
  order was conveyed to him despite various inquiries. It was only after<\/p>\n
  filing of contempt petition that a copy of the order was for the first time<\/p>\n
  placed before this Court in December 2006. It is, thus, claimed that the<\/p>\n
  impugned order was stage managed and an attempt to frustrate the<\/p>\n
  proceedings, which the petitioner was pursuing.\n<\/p>\n
14.           Mr. I.K. Mehta, learned counsel for the petitioner has argued<\/p>\n
that respondent nos. 3 to 5 have undergone only 4 \u00bd years of sentence as<\/p>\n
against 10 years rigorous imprisonment ordered by the Hon’ble Supreme<\/p>\n
Court vide its order dated 6.3.1998. According to the learned counsel<\/p>\n
respondent no. 6 Ghalla Singh has undergone only over 2 \u00bd years of<\/p>\n
sentence as against 10 years rigorous imprisonment awarded to him by the<\/p>\n
Hon’ble Supreme Court. He has emphasised that according to the judgement<\/p>\n
rendered in the case of Joginder Singh (supra), respondent nos. 3 to 6 have<\/p>\n
not served substantial part of sentence as per the requirement        of the<\/p>\n
judgement in Joginder Singh’s case (supra) and therefore they are not<\/p>\n
entitled to take advantage of the remissions granted to them in pursuance to<\/p>\n
circulars R\/3\/1 to R\/3\/9. Mr. Mehta has also made reference to the<\/p>\n
background facts showing that right from the beginning the prosecution and<\/p>\n
respondent-State has       adopted favourable attitude to the accused-<\/p>\n
respondent nos. 3 to 6 and others in as much as proper prosecution could be<\/p>\n
launched against respondent nos. 3 to 6 only when a private complaint by<\/p>\n
the petitioner was filed and that the persons who have been granted the<\/p>\n
benefit of remission are potential threat to the life and property of the<\/p>\n
petitioner.\n<\/p>\n
15.Mr. Suvir Sehgal and Mr. V.K.Jindal, learned counsel for the<\/p>\n
  respondents have argued that the power of the State to grant remissions
\n CWP No. 5169 of 2007                 11<\/span><\/p>\n
  by issuing circular under Article 161 is well recognised and it cannot be<\/p>\n
  nullified by the mere complaint of the petitioner that respondent nos. 3 to<\/p>\n
  6     should be asked to undergo complete imprisonment. They have<\/p>\n
  submitted that the judgement rendered in the case of Joginder Singh<\/p>\n
  (supra) in the year 2001 would not apply to the case of respondent nos. 3<\/p>\n
  to 6 because they were released after serving sentence in accordance with<\/p>\n
  the remissions granted to them on 14.4.1999. The case of the petitioner<\/p>\n
  was considered as per the law prevailing at that time. The legal position<\/p>\n
  at that time was settled as per the judgement of Hon’ble the Supreme<\/p>\n
  Court in the case of Nalamolu Appala Swamy and others v. State of<\/p>\n
  Andhra Pradesh 1989 Supp (2) SCC 192 (Annexure R\/3\/10). According<\/p>\n
  to the afore-mentioned judgement it has been held that the benefit of<\/p>\n
  remission could not confine to prisoners actually in jail on the date of<\/p>\n
  issuance of government order and even persons on bail on the date of<\/p>\n
  issue of circular were also entitled to the benefit of remission. Therefore<\/p>\n
  it has been maintained that the benefit of remission have been rightly<\/p>\n
  granted to them.\n<\/p>\n
  16.       Having heard learned counsel at a considerable length and<\/p>\n
  perusal of government circulars Annexures R\/3\/1 to R\/3\/9 we are of the<\/p>\n
  view that the only issue which needs determination is :<\/p>\n
                Whether judgement of the Hon’ble Supreme Court in the<\/p>\n
               case of Joginder Singh (supra) is applicable to the case in<\/p>\n
               hand?\n<\/p><\/blockquote>\n
17.         It is well settled that the State Government under Article 161<\/p>\n
and the Union Government        under Article 72 of the Constitution are<\/p>\n
empowered to issue circulars granting remission of sentence. The matter has
\n CWP No. 5169 of 2007                 12<\/span><\/p>\n
been considered by a Constitution Bench of the Supreme Court in the case<\/p>\n
of Maru Ram v. Union of India (1981) 1 SCC 107. The view taken is that<\/p>\n
the afore-mentioned provision clothe the President and the Governor<\/p>\n
respectively to pass order of remission. However, such an order is open to<\/p>\n
judicial review and the grounds of judicial review are extremely limited. It<\/p>\n
is only a case of non consideration or considerations based on wholly<\/p>\n
irrelevant grounds or on irrational, discriminatory or malafide decision of<\/p>\n
the President or Governor which could       provide a ground       of judicial<\/p>\n
review. All subsequent judgements of the Supreme Court draw support from<\/p>\n
the case of Maru Ram (supra). In Sat Pal v. State of Haryana<\/a> (2000) 5 SCC<\/p>\n
170, the statement of law has been re-stated as under:<\/p>\n
            ” …. (i) the Governor exercising the power under Article 161<\/p>\n
            himself without being advised by the Government; or (ii) the<\/p>\n
            Governor transgressing his jurisdiction; or (iii) the Governor<\/p>\n
            passing the order without application of mind; or (iv) the<\/p>\n
            Governor’s    decision    is   based   on      some    extraneous<\/p>\n
            considerations; or (v) malafide.”\n<\/p><\/blockquote>\n
18.The afore-mentioned view has been reiterated in the case of Bikas<\/p>\n
  Chaterjee v. Union of India<\/a> (2004) 7 SCC 634; E.Puru Sudhakar v.<\/p>\n
  Government of Andhra Pradesh (2006) 8 SCC              161.   Therefore, the<\/p>\n
  orders of remission passed by respondent nos. 1 and 2 have to be<\/p>\n
  examined within the para-meters laid down by their Lordships in the<\/p>\n
  afore-mentioned judgements.\n<\/p>\n
   19.            It has come on record that respondent no. 3 karnail Singh<\/p>\n
  remained undertrial from 3.5.1983 to 28.1.1986. He was convicted on<\/p>\n
  29.1.1986 and served the sentence on his conviction from 29.1.1986 to
\n CWP No. 5169 of 2007                     13<\/span><\/p>\n
  17.10.1987. He was acquitted on 12.10.1987. However, on the ground<\/p>\n
  that he was convicted by the Hon’ble Supreme Court vide order dated<\/p>\n
  6.3.1998 he surrendered on 8.5.1998 and served the sentence till<\/p>\n
  3.11.1998.    In respect of each of respondent nos. 3 to 6.The whole<\/p>\n
  position could be summed up from the following four tables.<\/p>\n
        Respondent no. 3 Karnail Singh s\/o Wasakha Singh, released
\n        from Central Jail, Gurdaspur on 3.11.1998
\n        From 3.5.1983 to 28.1.1986 (under trial)            Years Months                 Days
\n        Period                                               02           08              27<\/span>
\n        From 29.1.1986 to 17.10.1987 (conviction)            1                      8          22
\n        period
\n        From 8.5.1988 to 3.11.1998 (conviction) –                          5                   26<\/span>
\n        period
\n        Total Period                                               4               11          15<\/span>
\n        Remissions given by the Govt.                              5                           15<\/span>
\n        Total sentence with remission till 3.11.1998              10                0           0<\/p>\n
        Respondent no.4 Gurcharan Singh s\/o Jagir Singh released from Central
\n        Jail, Amritsar on 31.10.1998
\n        From 3.5.1983 to 28.1.1986 (under trial )       Years            Month           Days
\n        Period                                          02                08                  27<\/span><\/p>\n
        From 29.1.1986 to 17.10.1987 (conviction)                  1                8          22
\n        period
\n        From 8.5.1998 to 31.10.1998 (conviction )       –                           5          23
\n        Period
\n        Total Period                                               4               11          12<\/span>
\n        Remissions given by the Govt.                              5               –           18<\/span>
\n        Total sentence with remission till 31.10.1998             10               – –<\/p>\n
         Respondent no.5 Mohinder Singh s\/o Mehma Singh released from Central
\n         Jail, Amritsar on 3.10.1998
\n        From 3.5.1983 to 28.1.1986 (Under trial)        Years            Month           Days
\n        period                                               02           08              27<\/span>
\n        From 29.1.1986 to 17.10.1987 (conviction)                  1                8          22
\n        period
\n         From 8.5.1998 to 31.10.1998 (conviction)       –                           5          23
\n        period
\n        Total Period                                               4               11          12<\/span>
\n        Remissions given by the Govt.                              5           –               18<\/span>
\n        Total sentence with remission till 31.10.1998             10 –                    –
\n CWP No. 5169 of 2007                     14<\/span><\/p>\n
        Respondent no.6 Ghalla Singh s\/o Bhajan Singh released from Central
\n        Jail, Amritsar on 14.04.1999
\n        Date of surrender                             8.5.1998
\n        Conviction period from 29.1.1986 to            Years       Months           Days
\n        17.10.1987                                     01          08                20<\/span>
\n        Less Parole period                             –                    1             12<\/span>
\n        Less period spent in jail                              1            7              8<\/span>
\n        After surrender conviction from 8.5.1998 to    –                11                 6
\n        14.4.1999
\n        Total conviction period                                2            6             14<\/span>
\n        Availed Govt. Remiossions 89 months 16                 7        -5                16<\/span>
\n        days.\n<\/p>\n
        Total sentence alongwith State Govt.                10 -                -\n        Remissions\n\n<\/pre>\n
20.          A close scrutiny of the afore-mentioned tables would show that<\/p>\n
respondent nos. 3 to 5 have availed 5 years 15 days \/ 5 years 18 days<\/p>\n
remissions whereas respondent no. 6 has availed 7 years 5 months 16 days<\/p>\n
remission. Another feature which is discernible from the afore-mentioned<\/p>\n
table is that respondent nos. 3 to 5 have served the sentence from 3.5.1983<\/p>\n
to 17.10.1987 when they were acquitted vide order dated 12.10.1987 by<\/p>\n
acceptance of their appeal by a Division Bench of this Court. They did not<\/p>\n
serve any part of sentence after 12.10.1987. However, they were convicted<\/p>\n
by the order passed by the Hon’ble Supreme Court on 6.3.1998 and they<\/p>\n
surrendered on 8.5.1998 and served the sentence till October\/ November,<\/p>\n
1998. Likewise, respondent no.6 did not spend any period as an undertrial<\/p>\n
which could be counted for serving sentence. He was convicted by an order<\/p>\n
of conviction passed on 29.1.1986. He was taken into custody and<\/p>\n
continued to serve the sentence till 17.10.1987 when the order of acquittal<\/p>\n
was passed by this Court on 12.10.1987. He also surrendered in pursuance<\/p>\n
to the order dated 6.3.1998 on 8.5.1998 and was released from the jail on<\/p>\n
14.4.1999.\n<\/p>\n
21.          It is further appropriate to mention that Government orders
\n CWP No. 5169 of 2007                  15<\/span><\/p>\n
granting remission have been issued starting from 11.11.1989 to 8.4.1999<\/p>\n
( Annexures R\/3\/1 to R\/3\/8). The remission orders passed by respondent<\/p>\n
nos. 1 and 2 have granted benefit of government circulars Annexures R\/3\/1<\/p>\n
to R\/3\/8. Admittedly, respondent nos. 3 to 6 were not serving any sentence<\/p>\n
during the period when government circulars dated 10.11.1989 ( Annexure<\/p>\n
R\/3\/1); 5.4.1992 ( Annexure R\/3\/2); 27.1.1994 ( Annexure R\/3\/3); 6.3.1995<\/p>\n
( Annexure R\/3\/4); 18.12.1996 ( Annexure R\/3\/5); 14.8.1997 ( Annexure<\/p>\n
R\/3\/6) and 14.8.1998 ( Annexure R\/3\/7) were in operation. Therefore, the<\/p>\n
question which arises for consideration is whether respondent nos. 3 to 6<\/p>\n
would become entitled to the benefit of provision available under those<\/p>\n
circular\/government order when they were free on account of order of<\/p>\n
acquittal and were not serving any part of sentence. It is in this context that<\/p>\n
the judgement of Hon’ble the Supreme Court rendered in the case of<\/p>\n
Joginder Singh (supra) is required to be considered.<\/p>\n
22.         A perusal of paras 8,9,10 and 11 of the judgement in Joginder<\/p>\n
Singh’s case (supra) shows that the Court was considering the effect of<\/p>\n
various circulars Annexures R\/3\/1 to R\/3\/8. Rejecting the argument that the<\/p>\n
accused in that case although have served 2 months 25 days of sentence out<\/p>\n
of 1 \u00bd years they would be entitled to the benefit of afore-mentioned<\/p>\n
circulars granting remission despite the fact that the accused were on bail. It<\/p>\n
would first be appropriate to notice the argument rejected by the Hon’ble<\/p>\n
Supreme Court in para 9 of the judgement in the context of various<\/p>\n
notifications starting from notification dated 11.11.1989 to the notification<\/p>\n
dated 14.8.1997 ( Annexure R\/3\/1 to R\/3\/6). The afore-mentioned argument<\/p>\n
has been noticed by the Supreme Court as under:\n<\/p>\n
            ” 9. Therefore, according to the argument of the learned
\n CWP No. 5169 of 2007                  16<\/span><\/p>\n
              counsel, even without taking into consideration the notification<\/p>\n
              dated 14.2.1997, the said respondents would be entitled to a<\/p>\n
              total remission of 17 \u00bd months. Therefore, the said respondents<\/p>\n
              even though have served just 2 months and 25 days and were<\/p>\n
              on bail rest of the period in view of the various notifications<\/p>\n
              referred to hereinabove, it is deemed that they have served their<\/p>\n
              entire period of conviction which is only for a period of 18<\/p>\n
              months ( 1 \u00bd years).”\n<\/p><\/blockquote>\n
23.   After noticing the afore-mentioned argument, their Lordships also<\/p>\n
considered another judgement rendered in the case of State of Haryana v.<\/p>\n
Nauratta Singh and others JT<\/a> 2000 (3) SC 85. While rejecting the above<\/p>\n
extracted argument, the following observations were made in para 10 which<\/p>\n
reads thus:\n<\/p>\n
              ” With respect, we are unable to agree with the learned counsel<\/p>\n
              for the said respondents. In other words, acceptance of this<\/p>\n
              argument, in our opinion , would reduce the criminal justice<\/p>\n
              system to mockery as has been said by this Court in Nauratta<\/p>\n
              Singh’s case (JT 2000(3) SC 85). In the cases cited by the<\/p>\n
              appellant, this Court has categorically held that there is<\/p>\n
              substantial difference between the words ‘parole’ and ‘furlough’<\/p>\n
              on one hand and the expression ‘bail’ on the other. These<\/p>\n
              judgements have also held that persons who are enlarged on<\/p>\n
              bail cannot claim the benefit of the period during which they<\/p>\n
              were on bail for the purpose of counting the period of sentence<\/p>\n
              already undergone to apply the remission given by the<\/p>\n
              government. In view of this clear enunciation of law, in our
\n CWP No. 5169 of 2007                 17<\/span><\/p>\n
            opinion, even by the inclusion of the word ‘bail’ in the<\/p>\n
            notification of the Punjab Government an accused who has<\/p>\n
            always remained on bail or has not served the substantial part<\/p>\n
            of his sentence cannot take advantage of the remission<\/p>\n
            notification.”\n<\/p><\/blockquote>\n
24.It is thus obvious that despite the fact that word ‘bail’ has been used in<\/p>\n
  circular Annexures R\/3\/1 to R\/3\/9 the same is deemed to be omitted on<\/p>\n
  the interpretation provided by the Hon’ble Supreme Court in Joginder<\/p>\n
  Singh’s case (supra) which to our mind is clear enunciation of law.<\/p>\n
  25.         The question which arises in the present case is whether the<\/p>\n
  benefit of various remission circulars could be granted to the respondents<\/p>\n
  3 to 6 of those circular which were issued by respondent nos. 1 and 2<\/p>\n
  when they were free citizen after their acquittal and then bail granted to<\/p>\n
  them on 5.10.1989 in pursuance to directions issued by Hon’ble the<\/p>\n
  Supreme Court. According to the judgement of the Supreme Court in<\/p>\n
  Joginder Singh’s case a person on bail cannot be granted benefits of<\/p>\n
  Government circulars R-3\/1 to R-3\/9. It is not possible to grant the<\/p>\n
  benefit of remission in respect of the period when respondent nos. 3 to 6<\/p>\n
  were free on account of their acquittal from 17.10.1987 to 5.10.1989 and<\/p>\n
  thereafter when they were on bail from 15.10.1981 to 8.5.1999.<\/p>\n
  Remission circulars cover the period 11.11.1989 to 8.4.1999. Respondent<\/p>\n
  nos. 3 to 5 have served their sentence from 3.5.1983 to 17.10.1987 which<\/p>\n
  include the period of under trial as well as the period of their conviction.<\/p>\n
  However, a Division Bench of this Court acquitted them vide order dated<\/p>\n
  12.10.1987 and they were released. From 17.10.1987 to 5.10.1989 they<\/p>\n
  remained free and thereafter on bail from 5.10.1989 to 8.5.1999. They
\n CWP No. 5169 of 2007                  18<\/span><\/p>\n
  surrendered on 8.5.1999 to serve the sentence in pursuance to the orders<\/p>\n
  of Hon’ble the Supreme Court dated 6.3.1998 and continued to serve the<\/p>\n
  sentence till 14.4.1999 when they were released by granting the benefit<\/p>\n
  of circular dated 11.11.1989 and other circulars ( Annexures R\/3\/1 to<\/p>\n
  R\/3\/8).\n<\/p>\n
26.         A perusal of circular dated 11.11.1989 shows that it was issued<\/p>\n
to celebrate the birth centenary of Independent India’s First Prime Minister<\/p>\n
Pt. Jawahar Lal Nehru. Respondent nos. 3 to 6 were free to celebrate as they<\/p>\n
were enjoying the life of free man after having been acquitted by the Court<\/p>\n
vide order dated 12.10.1987 although on bail vide order dated 5.10.1989.<\/p>\n
Likewise they were also free to celebrate the installation of new Ministry in<\/p>\n
Punjab on 25.2.1992 when circular 5.4.1992 ( Annexure R\/3\/2) was issued.<\/p>\n
The position would continue to be the same when special remissions were<\/p>\n
granted to the prisoners by issuing circulars on 27.1.1994 and 6.3.1995<\/p>\n
( Annexures R\/3\/3 and R\/3\/4). Similarly respondent nos. 3 to 6 were also<\/p>\n
free to celebrate the Martyrdom Day of Shri Guru Teg Bahadur on<\/p>\n
15.12.1996 when circular dated 18.12.1996 ( Annexure R\/3\/5) was issued.<\/p>\n
They were also free to celebrate the 50th year of Indian’s independence when<\/p>\n
circular of 14.8.1997 ( Annexure R\/3\/6) was issued and subsequent circular<\/p>\n
(Annexure R\/3\/7) was issued on 12.8.1998. Therefore, we are of the<\/p>\n
considered view that the judgement in Joginder Singh’s case (supra) would<\/p>\n
apply to the facts of the present case with added force.<\/p>\n
27.         One of the      grounds of judicial review laid down in the<\/p>\n
judgement of Bikas Chaternjee and similar other judgements is that an<\/p>\n
order passed by the authorities if lacks application of mind then the Courts<\/p>\n
would be fully competent to set aside such an order. Taking into account the
\n CWP No. 5169 of 2007                  19<\/span><\/p>\n
fact that respondents have failed to consider the judgement in Joginder<\/p>\n
Singh’s case (supra) in its proper prospective we are of the considered view<\/p>\n
that the order dated 20.3.2003 passed by respondent no.2 suffers from lack<\/p>\n
of application of mind and therefore the same cannot be sustained.<\/p>\n
28.         The argument of the learned counsel for the respondents that<\/p>\n
the judgement in Joginder Singh’s case (supra) is prospective cannot be<\/p>\n
accepted because firstly there is no observation in that case to give effect to<\/p>\n
the operation of the judgement only prospectively. Secondly, it is<\/p>\n
declaration of law which is binding on everyone under Article 142 of the<\/p>\n
Constitution. Therefore, we have no hesitation to reject the argument raised.<\/p>\n
29.         For the reasons afore-mentioned this petition succeeds. Order<\/p>\n
dated 20.3.2003 ( Annexure P.5) is set aside. The respondent nos. 1 and 2<\/p>\n
are directed to re-calculate the remaining part of sentence of respondent nos.<\/p>\n
3 to 6 within one month from the date of receipt of a copy of this order.<\/p>\n
Within one week of passing of order by respondent nos. 1 and 2 the convict<\/p>\n
respondent nos. 3 to 6 shall surrender before the Superintendent, District<\/p>\n
Jail, Ludhiana<\/p>\n
                                                        (M.M. KUMAR)
\n                                                           JUDGE<\/p>\n
                                                            (SABINA)
\nSeptember , 2008                                               JUDGE
\nPkapoor\/okg\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Harjinder Singh vs State Of Punjab And Others on 18 September, 2008 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-241515","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nHarjinder Singh vs State Of Punjab And Others on 18 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/harjinder-singh-vs-state-of-punjab-and-others-on-18-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Harjinder Singh vs State Of Punjab And Others on 18 September, 2008 - 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