CHATURBHAI DESAIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this Special Criminal Application through Jail, the applicant prisoner, Chaturbhai Desaibhai Patel, has made a grievance regarding the computation of remission of sentence as made in favour of the petitioner by the Jail authorities on the basis of four remission Notifications issued by the State of Gujarat from time to time. The remission granted to the petitioner on these four occasions works up to 100 days in all, while, according to the petitioner, he is entitled to 240 days in all, and thus, according to him, the computation of remission by the Jail authorities required to be increased by Additional 140 days. The grievance of the petitioner can be better appreciated by re-producing it in the following tabular form as submitted by him in para 4 of the application: Remission to be given to prisoners under going sentence of two years/four years: A mere glance at the aforesaid table shows that, according to the petitioner, he is entitled to be given remission on each of the aforesaid four occasions on the basis that he was undergoing sentence of imprisonment for four years and the remission granted to him on the basis that he was sentenced to undergo imprisonment for two years was not correct. This petition was admitted to final hearing and in response to the rule issued in this petition Mr. N.y. Thakkar, Senior Jailor. Baroda Prison, has filed his affidavit-in-reply and along with the affidavit-in-reply, be bas submitted for the courts perusal the relevant remission notifications pressed in service by the petitioner and the concerned clarifications issued by the State of Gujarat from time to time in connection with these remission notifications. It is stated by the learned. Assistant Public Prosecutor Shri Malik who appeared for the respondents before us that the entire bunch of relevant notifications alongwith the subsequent clarifications is produced for this Courts severing alongwith the affidavit-in-reply. We will refer to the relevant notifications and clarifications in latter part of this judgment while we will consider the grievance of the petitioner notification-wise. It is sufficient for the present to note that after the aforesaid affidavit it reply, a further affidavit in reply is also filed by Senior Clerk of Baroda Central Prison Shri A. S Patel in support of the earlier affidavit-in-reply filed by the Senior Jailor. The grievance made by the petitioner will have to be examined in the light of the contentions raised by him in the application and the factual data brought on record by the respondents as per the aforesaid, affidavit-in-reply. It is now time for us to come to the grip of the problem. Before we proceed to examine the grievance of the petitioner regarding the computation of days of remission notification-wise, it will be necessary to keep in view the prison history or the history of incarceration of the present petitioner. The petitioner was convicted on 23rd May, 1975 under sections 406, 408, 467 and 477 A I.P.C. by the Sessions Court of Kaira at Nadiad and was sentenced to undergo rigorous imprisonment for four years and six months and to pay a fine of Rs. 2.000/- in default to undergo further imprisonment for two years. He was taken in jail custody on that very date. Thereafter he approached this court by way of appeal and on 31st May, 1975 he was enlarged on bail pursuant to the order of this Court which admitted his appeal. His appeal remained pending on the file of this Court till 14.4.1971. On that date the appeal was dismissed subject to the reduction of sentence by six months, meaning thereby that the petitioner remained liable to undergo sentence of rigorous imprisonment for four years and to pay a fine of Rs. 2,000/- in default to undergo sentence of two more years. The petitioner thereafter surrendered to jail on Days Days (A) Declared one year remission on the 100th birth anniversary of late Shri Sardar Vallabhbhai Patel Vide Order No. R.T.P/1074/2962/J_of_15.7.75. 30 90 (B) Declared one year remission on the occasion of felicitating 29th Independent day vide Order No. R.T.P./10784-6-J, dated 24.1.1978 30 90 (C) Declared 75 days remission on the occasion of 75th birth anniversary of Shri Jaiprakash Narayan Vide Order No. R.T.P/ 1077.4092-J,_dated_10.3.87 20 30 (D) Declared 75 days remission on 101st Birth Anniversary of late Shri Ravi. shanker Chabaraj Vide Order No. J.I.K..32837996-J of 6.3.1984. 20 30 100 240 19th May, 1971, and was taken in jail custody. Thereafter, he approached the Supreme Court by way of special leave. Special Leave to appeal was granted by the Supreme Court on 27th of May, 1977 and the petitioner was again enlarged on bail on 27th May, 1977. He remained on bail during the pendency of his appeal before the Supreme Court till 22nd April, 1984. In the meanwhile his appeal came to be dismissed on 10th January, 1984 by the Supreme Court, subject to the modification in sentence to the effect that the petitioner was made liable to undergo rigorous imprisonment of 2 years on all the counts. The sentence of fine of Rs. 2,000/- and in default sentence of two years, however, were maintained. Ultimately, the petitioner surrendered to bail on 23rd April, 1984 and thereafter he is in jail undergoing the sentence of imprisonment as finally imposed by the Supreme Court and at present he is undergoing the sentence as prisoner No. 69839. It is in the background of the aforesaid date that the grievance of the petitioner about computation of remission on various occasion will have to scrutinised. So far as his first grievance is concerned, it centers round the computation of benefit of remission as per State of Gujarat Notification dated 25th of July, 1975. By that notification the State of Gujarat in the Home Department in exercise of powers conferred by sub-section (1) of section 432 of the Code of Criminal Procedure, 1973 remitted the punishment of various prisoners of the extent mentioned in the notification in commemoration of the Birth Centenary of Sardar Vallabhbhai Patel. The scales and extent of remissions in connection with various categories of prisoners undergoing diverse sentence were mentioned in paragraph 2 of the notification. So far as category 4 of the said paragraph is concerned, it pertains to prisoners with sentence from one year to two years and the scale of remission is one month. The respondents have treated the petitioner to be entitled to get the remission as per the 4th category by treating his case to be falling under that category. As seen above, the ultimate decision of the Supreme Court clearly lays down that the petitioner is sentenced to suffer rigorous imprisonment of two years on all counts. The petitioner also has admitted in his application in paragraph 4 of the application as per the tabular statement extracted above that he has been given 30 days remission pursuant to the notification dated 15.7.1975. However, he claims remission of 90 days.

(2.) So far as the claim of the petitioner for being granted 90 days of remission instead of 30 days of remission under the first notification dated 15.7.1975 is concerned, it must be observed that when the notification was issued the petitioner was already on bail granted by this Court. As per para 3 (iv) of the said notification, the prisoners released on bail are not to be made entitled to the scheme of remission mentioned by the said notification. However, by subsequent clarification issued by the Home Department on 1.6.1982, it was made clear that benefit of remission as granted by four remission notifications issued by the State of Gujarat from time to time viz. (i) remission notification issued on the occasion of Gandhijis Birth Centenary.; (ii) remission notification issued on the occasion of celebration of 75th birth anniversary of Jay Prakash Narayan, (iii) remission notification issued on the occasion of birth centenary of Sardar Vallabhbhai Patel and (iv) remission notification issued by the State of Gujarat on occasion of 28th Republic Day, will be made available also to the prisoners who might have been released on bail on the dates of these notifications. In view of the said later clarification, it is obvious that even though the petitioner was on bail on 15.7.1975, he became entitled to the benefit of the remission granted by the said notification. This is precisely the reason why remission of 30 days is granted to him under the said notification. His claim for remission of 60 more days pursuant to the said notification is based on the ground that in default sentence of two years, as confined by the Supreme Court, should be clubbed with the substantive sentence of imprisonment and he should be treated to have been sentenced to four years R.I. It is not possible to agree with this contention for the simple reason that nowhere in the notification 15.7.1975 or nowhere thereafter State of Gujarat has ever made such concession in favour of the concerned prisoners whose cases are covered by the said remission notification. Para 2 of the notification which gives scheme of diverse remissions available to the prisoners falling in different categories clearly indicates that remissions should go to these prisoners who are substantially sentenced to diverse sentences. In the absence of any indicates that in default sentence should also be clubbed with the substantive sentences for deciding the category of prisoners to whom requisite remission would be available, it is not possible to accept the petitioners contention in that behalf.

(3.) The very same reasoning would apply to the petitioners case for additional remissions under two subsequent notifications viz, notification dated 24.1.1978 issued by the State of Gujarat on the occasion of 28th Republic Day as well as his case for Additional remission on the basis of the remission notification dated 10.3.1978 issued on the occasion of 75th birth anniversary of Jay Prakash Narayan. As per both these notifications, the petitioner is already granted remission of 30 days and 20 days respectively on the basis that he was sentenced to suffer R.I. for two years Now, on both these occasions also, by sheer co-incidence, the petitioner was already on ball as granted by the Supreme Court pending the criminal appeal in the Supreme Court. However, he would be entitled to get benefit of these notifications by virtue of the subsequent clarifications dated 1.6.1982 issued by the Home Department as noted earlier. Still, however, the remission which he can get only be on the basis, that he was a prisoner sentenced to suffer R. I. for two years being the substantive sentence. In none of these later notifications, there is any indication nor is there any indication subsequently as per any later clarification issued by the State of Gujarat to suggest that in default sentences as passed against the continued prisoner are to be clubbed for the purpose of imputing the period of remission to be granted to the concerned prisoner. It should be kept in view that remission of sentence is not a prisoners right. Remission which is granted by the State Government in its discretion in exercise of its powers under the provisions of section 432 of the Code of Criminal Procedure has to be found from the four corners of the concerned notification. If it flow from it, it is available to the concerned prisoner. If it does not, by any process of reasoning, scheme of omission envisaged by the notification can be enlarged by the Court. Consequently, the petitioners case for being granted Additional remission of 60 days and 10 days as per remission notifications dated 24.1.1978 and 10.3.1978 respectively by clubbing in default sentence of fine with the substantive sentence of two years R.I. cannot be entertained. That leaves out his last claim for being granted 10 more days of remission as per the notification dated 6.3.1984. This remission notification is issued by the State of Gujarat on the occasion, of 101st Birth centenary of Ravi Shankar Maharaj. It is to b. recalled that the petitioner who was on bail pending disposal of his criminal appeal before the Supreme Court, lost his appeal before the Supreme Court on 10.1.1984 when his appeal was dismissed subject to reduction in sentence as already seen earlier. However, he continued to remain on bail till he surrendered on 23.4.1984 to serve out the sentence. Thus, on the date of the notification i.e. 6.3.1984, the petitioner was already on bail. Para 3(A) of the said notification in terms provides that the amnesty and State remissions granted under the said notification shall not be admissible to the different categories of prisoners listed therein and at category (iv) are mentioned prisoners released on bail. It is, therefore, obvious that benefit of remission order as per notification dated 6.3.1984 cannot be made available to the petitioner as he was already on bail on the day on which notification was issued. However, to the good luck of the petitioner, the respondents themselves have granted him 20 days remission under the said notification on 6.3.1984 perhaps because his appeal before the Supreme Court was decided on 10.1.1984 which was prior to the date on which the notification under reference was issued. So, the authorities seem to have extended the benefit of the notification to the petitioner by treating him not to be on bail, though in fact, he physically surrendered 17 days after the issuance of the notification on 6.3.1934. So that as it may, the respondents are not making any grievance regarding grant of remission for 20 days to the petitioner under the said notification: It is the petitioners grievance that he is entitled to 10 more days of remission because according to him, in default sentence should also be clubbed for computing the benefit of remission as per the said notification. So far as this contention is concerned, the subsequent clarifications issued by the State of Gujarat are required to be noticed. On 16.3.1984, it has been clarified in continuation of the communication dated 6.3.1984 that prisoners who have been sentenced to fine in addition shall be eligible to the remission in question provided they pay the fine amount on or before 31.3.1984. The later clarifacatory notification issued by the Government on 27.9.1984 in continuation of the earlier orders dated 6.3.1984 and 16.3.1984 points out that the Government in pleased to clarify further that the intention of the Government in the clarification made in the order dated 16.3.1984 is that the prisoners who have been sentenced to fine in addition will be entitled to the remission either on payment of the amount of find or he/she has undergone the sentence in default of payment of fine. On a conjoint reading of these later notifications when read in the light of the parent notification was 6.3.1984, J t becomes obvious that further concession was given to these persons who were given Additional sentences of fine to get their in default sentence clubbed with their substantive sentence-; provided they paid their fine amounts un or before 31.3.1984 or they had undergone ill different sentence on non-payment of fine by that time So far as the case of the petitioner is concerned, admittedly he paid the fine on 26.11.1984 much after the date on which the fine had lo be paid to earn the Additional benefit of getting in default sentence clubbed with the substantive sentence for the purpose of deriving the benefit of remission as per notification dated 6.3.1984. As we have already seen another, the notification dated 6.3 1984, itself will not apply to the case of the petitioner as he was already released Oil bail on that day. There was no later clarification issued by the State giving benefit to persons on bail as was done in the case of earlier notifications by communication dated 1.6.1984 as we have seen earlier. There is no such clarification or communication extending such benefit to persons on bail so far as notification dated 6.3.1984 is concerned. Consequently, strictly speaking, the question of clubbing in default sentence with the substantive sentence for giving benefit of remission to the petitioner as per notification dated 6.3.1984 does not survive and hence, it is not necessary for us to decide that query. However, as the respondents have given benefit of that notification to the petitioner, we have examined the case of the petitioner for such clubbing and these, it has been found by us on facts that benefit of clubbing of any in default sentence would not be available as unfortunately for him, he did not pay the fine by 31.3.1984 which was the last date on which fine had to be paid to earn the benefit of clubbing of in default sentence nor did he undergo in default sentence by that time. Consequently the last claim of the petitioner for being granted 10 more days of remission as per the notification dated 6.3.1984 also cannot be granted. As discussed above, none of the claims put forward by tile petitioner for being granted Additional remissions under the concerned notification can he legally entertained. Consequently, this petition fails discharged. Petition dismissed.