State of H.P. and Another vs Convict Ex-Capt. A.K. Rana

R.S. Thakur, J.—This revision petition has been directed against the order of the learned Additional Sessions Judge, Shimla Division, Camp at Bilaspur, dated January 16, 1988, passed in Criminal Misc. Application moved by Shri A.K. Rana, Ex-Army Capt. (hereinafter referred to as the Respondent), who was at that time detained in the Model Central Jail, Nahan, at the instance of the State of Himachal Pradesh.

Most of the relevant facts in this case are not in dispute The Respondent was tried by the Court Martial and sentenced to undergo 14 years imprisonment and thereafter was transferred to civil jail in the State of Himachal Pradesh to serve out his sentence. When he was detained in the sub-jail at Mandi, the Inspector General of Prisons transferred him to Open Air Jail at Bilaspur in Bilaspur District on May 3, 1985. Later on, however, on January 14, 1986, this order was recalled by the State of Himachal Pradesh and the Respondent was transferred to a closed jail, namely, Model Central Jail, Nahan, in Sirmour District. The Respondent on this moved an application before the learned Additional Sessions Judge, Camp at Bilaspur against this arbitrary premature transfer from Open Air Jail to closed jail. His application, however, was dismissed by the learned Additional Sessions Judge, on July 30, 1987.

The Respondent, thereafter filed a criminal Writ Petition No. 14 of 1987 in the High Court on August 3, 987. The Union of India and the State of Himachal Pradesh who were the Respondents in that writ petition contested the same when it was asserted that the Respondent, A.K. Rana, being a convict under a special law was not eligible to be transferred to an Open Air Jail and that he was transferred there by mistake which mistake when detected resulted in the order of transfer of the Respondent from Open Air Jail, Bilaspur, to the closed jail at Nahan. This plea was up-held by the High Court and consequently vide order dated August 25, 1987 the Criminal Writ Petition filed by the Respondent was summarily rejected.

Meanwhile, Anr. application dated November 11, 1987, was moved by the Respondent before the learned Additional Sessions Judge, Shimla, at Bilaspur on November 21,1987 wherein he alleged that the Superintendent of the Open Air Jail, Bilaspur, Shri P.N. Bahuguna, out of malafide motive failed to enter in his jail record/history-ticket, the period of remission which he had earned with effect from January 21, 1986 to July 30, 1987 (in the Open Air Jail at Bilaspur) under the pretext that the case for such remission had been referred to the Central Government through the Inspector General of Prisons which he could not have done and he has, therefore, intentionally failed to perform his official duty with animus to harm him and he, therefore, requested the Court to direct the said Superintendent of Jail to properly record the remissions he had earned while he was undergoing sentence in the Open Air Jail, Bilaspur, with effect from May 31, 1985 to July 30, 1987. In response to the notice, Shri P.N. Bahuguna, the Superintendent, Open Air Jail, Bilaspur, submitted his reply dated December 11, 1987 wherein he took up the plea that the remissions in question due to Respondent and a co-accused Raghubir Singh, have not been forfeited but as a matter of fact they being subject to the approval of the Ministry of Defence, their cases had been sent to the Inspector General (Prisons), Himachal Pradesh, Shimla vide top-secret letters No. 1643 dated September 17, 1987 and No. 1557, dated September 4, 1987, respectively, to obtain the approval of the Ministry of Defence for the grant of said remissions. He further submitted that the records of the Respondents had already been sent to the Superintendent, Model Central Jail, Nahan, who has been apprised of the position and authorised to allow the whole remissions earned in the Open Air Jail in case of the approval of the Military (sic.) Ministry of Defence is received. Then followed the impugned order of January 16, 1988, wherein the learned Additional Sessions Judge held that there was no need to obtain the approval of the Central Government or the Ministry of Defence and that if the Respondent had earned any remissions during his stay in the Open Air Jail, he was entitled to the same. He, therefore, directed the Superintendent Open Air Jail, Bilaspur, to complete the history-ticket of the Respondent forthwith in accordance with the directions issued, either personally, or through the Superintendent, Model Central Jail, Nahan.

In the instant revision petition, challenge has been thrown against this order on behalf of the State of Himachal Pradesh, on the ground: (a)that it is contrary to the facts and circumstances and was liable to be set-aside in the interest of law and justice; (b) that since the confinement of the respondet in the Open Air Jail was erroneous abinitio he could not have claimed the special remission for the period he remained there especially when his writ petition for allowing the continuance of his stay in the Open Air Jail in Bilaspur, had been rejected.

During the pendency of this revision petition, the Union of India was also allowed to challenge the impugned order as a co-Petitioner with the State of Himachal Pradesh, as it claimed to be a necessary party to the petition in view of the fact that the Respondent was a military convict under the Court-martial at its request to the Court.

During the course of the arguments, the learned Counsel for both the Petitioners have strenuously urged before me that since the Respondent was a military convict under the Court-martial, it was the Army Act, 1950 which governed his case and that as such no remission could be awarded to the Respondent by the authorities incharge of the civil prison where an army convict is detained and this could be done only in accordance with the provisions of Section 179 of the said Act and that in these circumstances, the learned Additional Sessions Judge had no authority whatsoever to hold that there was no need to obtain the approval of the Central Government or the competent military authorities with regard to the remissions earned by the Respondent and the order, therefore, being illegal is liable to be set aside.

The Respondent who argued his own case with grit and capability, on the other hand, contended that since he was detained in a civil prison, his case is governed by the Jail Manual and the Rules contained therein and whatever remissions have been provided therein are applicable in his case as well, just like other co-prisoners in the jail and there is no question of obtaining approval in his case with regard to the remissions earned by him while confined to the civil prison from the military authorities or the Central Government and this type of remissions have nothing to do with the remission envisaged u/s 179 of the Army Act.

Now at this stage note be taken of various provisions of law and Rules having bearing on the case in hand.

Section 179 of the Army Act, 1950 relating to pardon and remission reads as follows:

Pardon and remission--When any person subject to this Act has been convicted by a court-martial of any offence, the Central Government or the (Chief of the Army Staff) or, in the case of a sentence, which he could have confirmed or which did not require confirmation, the officer commanding the army corps division or independent brigade in which such person at the time of conviction was serving, or the prescribed officer may-

(a) either with or without conditions which the person sentenced, accepts, pardon the person or remit the whole or any part of the punishment awarded; or

(b) mitigate the punishment awarded; or

(c) Commute such punishment for any less punishment or punishments mentioned in this Act:

Provided that a sentence of transportation shall not be commuted for a sentence of imprisonment for a term exceeding the terms of transportation awarded by the Court; or

(d) either with or without conditions which the person sentenced accepts, release the person on parole.

This Section is similar to Sections 432 and 433 of the Code of Criminal Procedure wherein appropriate government, that is, the State or the Central Government, as the case may be, enjoy similar powers which have to be read with Articles 161 and 72 of the Constitution of India respectively.

It has been conceded on both sides that the Punjab Jail Manual is applicable to the State of Himachal Pradesh. In this jail manual ''criminal prisoner'' has been defined as prisoners duly committed to custody under the writ, warrant or order of any court or authority exercising criminal jurisdiction, or by an order of a court-martial. Then ''convicted criminal prisoner'' has been described as any criminal prisoner under sentence of a Court or Court martial and includes a person detained in prison under the provisions of Chapter VIII of the Code of Criminal Procedure, 1898 or under the Prisoners'' Act, 1900. ''Remission system'' has been defined as the Rules for the time being in force regulating the award of remission to, and the consequent shortening of sentences of prisoners in jail. ''History-ticket'' according to the Manual, means the ticket exhibiting such information as is required in respect of each prisoner by this Act or the rules thereunder.

Then Chapter XX in the said Manual deals with Remission System. Paragraph 635 of the Manual says:

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. (G. of India Noth. No. F-503-2-22. dated 30-10-23).

(b) two days per month for industry and the due performance of the daily taskimposed.

Paragraph 637 lays down as to how these remissions are to be calculated and paragraph 639 relates to remission for good conduct. Then paragraph 642 says that the award of ordinary remission shall be made as nearly as possible, on 1st January, 1st April, 1st July and 1st October and the amount shall be, intimated to the prisoner and recorded on his history-ticket. Remission granted to a prisoner under paragaraph 639, i.e., for good conduct shall be recorded on his history-ticket as soon as possible after it is awarded. Then paragrpah 649 of the Manual reads as follows:

(1) When a prisoner is transferred to Anr. jail the total amount of remission earned by him up to the end of the previous month shall be endorsed on his warrant and entered on his history-ticket, these entries being signed by the Superintendent.

(2) The receiving Jail shall be responsible that the above information is duly obtained. Each jail at which a prisoner serves a portion of his sentence shall be held responsible for the correct calculation of the remission earned in that jail.

Paragraph 751, Chapter XXV, lays down that the following documents shall be sent with each prisoner transferred-

(a) his warrant,

(b) his descriptive roll,

(c) separate lists of the Government and personal property accompanying him, and

(d) his history-ticket written up to date.

Then Chapter XIX of the Manual, deals with the various types of prison offences which may be committed by a prisoner and the punishment(s) therefore which include inter-alia, forfeiture of remission.

Now in the premises of the foregoing legal and factual position, the first question that arises for determination of This Court is whether the learned Additional Sessions Judge, Shimla, at Bilaspur, was competent to entertain the complaint of the Respondent and pass the impugned order. I feel that there is no difficulty on this score. Article 141 of the Constitution of India in no uncertain terms lays down that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. The Hon''ble Supreme Court in Sunil Batra Vs. Delhi Administration and Others etc., has made a clear and categorical pronouncement that a criminal confined in jail is not denuded of his civil rights except that his incarceration in the prison restricts his movements as a free citizen. The Court has also inter-alia directed that--Sessions Judges, shall personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas corpus action. It has also been inter-alia laid down that ''within the next three months, Grievance Deposit Boxes shall be maintained by or under the orders of the District Magistrates and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be accorded to all prisoners.

Thus a clear mandate has been given to the Sessions Judge to investigate and adjudicate upon the grievances of the prisoners in the jail under his jurisdiction. The Respondent through his application laid the grievance before the learned Additional Sessions Judge, Bilaspur that Shri P.N. Bahuguna, the Superintendent of Open Air Jail was not performing his legal duties by way of completing his history-ticket incorporating the remissions he had earned during his confinment in the said jail, which he was bound to do under law and then forward the same to the Superintendent, Model Central Jail at Nahan on his transfer from the said jail duly completed and he had, through a malafide motive, improperly forwarded his case to the Central Government for approval with regard to the remissions. Thus, in my opinion, the learned Additional Sessions Judge, was perfectly within his right to pass the impugned order.

Now the next question arises as to whether the Superintendent of the Open Air Jail, Bilaspur, or the Inspector General of Prisons was justified under law, to send the case of the Respondent to the Central Government with regard to the remission he had earned while detained in the Open Air Jail at Bilaspur for approval? As already observed, the learned Counsel both for the State and the Union of India have strenuously urged that there was a justification for doing so for several reasons. In the first place, according to the learned Counsel, the very transfer of the Respondent to Open Air Jail, Bilaspur was erroneous abinitio.

My attention has been drawn to a notification dated December 14, 1978 of the Government of Himachal Pradesll which deals with the selection of prisoners for admission to the Open Air Jail, Bilaspur. Therein under paragraph-3 it has been laid down that certain categories of prisoners will not be admitted to the Open Air Jail and sub-para (b) thereof refers to convicts sentenced under provisions of the Special Power Act etc. who attracts this ineligibility. There is no doubt that the Respondent is governed by the Army Act of 1950 and that being special statute, it is clear that he was not eligible for selection to the Open Air, Jail, Bilaspur. In fact this was the precise point on which criminal writ petition of the Respondent was summarily dismissed by This Court as he incurred the disability of having been sentenced under the provisions of Special Act, namely, the Army Act. This, however, would not, in my opinion, affect the remissions that he had earned during his detention in the Open Air Jail at Bilaspur. Paragraph-1 of the said notification empowers the Inspector General of Prisons, to select prisoners for the Open Air Jail as a special case even if they are not eligible for such selection. In fact it has been held so by a Division Bench of This Court in Prithvi Chand v. State of Himachal Pradesh Cr. W.P. No. 7/83, decided on July 19, 1983. Admittedly, vide the provisions of the said notification of 1978, a prisoner convicted and sentenced u/s 376 of the I.P.C. was not eligible to be selected for the Open Air Jail Bilaspur. Said Prithvi Chand came with the said criminal writ petition to the High Court stating that his case for selection-was turned down whereas as many as five persons who were convicted for the same offence were selected for the said jail. The High Court in the said judgment found that at least two prisoners, namely Bhagirath and Harpal Singh were such who had been convicted u/s 376 IPC and vet were selected for the Open Air Jail. The Court however, has observed that the Inspector General of Prisons while exercising his powers under para-1 had selected them for Open Air jail as a special ease and that since ''the Petitioner Prithi Chand could not claim for such selection as of right and the Respondent had explained the circumstances under which he was not elected, his petition was dismissed. Thus keeping the ratio of this judgment in view, it cannot be said that the selection of the Respondent for the Open Air Jail at Bilaspur was erroneous abinitio. Of course this being discretionary relief, the Government or the Inspector General of Prisons was perfectly within his right to withdraw it at any stage and thus when the order of the transfer of the Respondent from the Open Air Jail to a closed jail was passed that could not be challenged and that was the reason why his Cr.W.P. challenging that order of transfer was summarily dismissed. In any case even assuming that the initial admission of the Respondent in the Open Air Jail was wrong, even then I am firmly of the view that the concerned authorities could not withhold the remissions earned by him during his detention there on this plea as the bar of promissory estoppel would fall on their way.

The next point contended on behalf of the Petitioners was that the State Government or the Inspector General of Prisons or the Superintendent of Open Air Jail at Bilaspur have no right whatsoever to grant remission to the Respondent since, he being governed by the Army Act, this was entirely Within the domain of the Central Government or the competent army authorities to do so. The learned Counsel have, apart from the provisions of Section 179 of the Army Act reproduced earlier and Sub-section (3) of Section 123 thereof, have also drawn my attention to para-3 of the document, Annexure R-3 (in Cr.W.P. No. 14 of 1987) which reads as under:

Periodic Reviews by Army Headquarters.

Periodic reviews by Army Headquarters are undertaken at set stages without receipt of any petitions. These reviews generally conform to the practice adopted on the civil side. Jail reports are called for to scrutinise the prisoners'' conduct in jail while he is serving his sentence. Terms of imprisonment are remitted based on the merits of the case and the degree of reformation that is evident from the jail report, which indicates inter-alia the remissions that the convict has earned under the jail rules. The intervals at which these reviews are carried out have been laid down in Army Headquarters letter No. 22548/PSI dated 24 June 63, and are reproduced below:

(a) On completion of 12 months actual imprisonment (i.e. imprisonment excluding remission) in cases of sentence of over one year but less than 2 years.

(b) On completion of half sentence of imprisonment (including remissions earned) in cases where the sentence is for a term of two years or more.

(c) On completion of 3/4th sentence of imprisonment (including remissions earned) in cases of persons convicted on charges of mutiny, theft of arms and ammunition, aiding the enemy, attempt to murder and breaches of security.

(d) On completing of 14 years imprisonment (including remissions earned) in cases of persons sentenced to imprisonment for life. A second review is carried out on completion of 18 years imprisonment (including remissions earned), and subsequently every year.

Note.--A person convicted for an offence of murder shall not be released from prison until he has served at least fourteen years of actual imprisonment (Section 433-A the Code of Criminal Procedure).

While construing the provisions of law and Annexure R-3, referred to above, it becomes abundantly clear that the learned Counsel for the Petitioners are clearly going wide off the issue in hand. The short issue that has arisen for decision here is only, whether the Respondent was per se entitled to the remissions he had earned as an Open Air Jail prisoner at Bilaspur during his detention in the said Open Air Jail? This type of remissions obviously, however, are not the one, that are envisaged u/s 179 of the Army Act or in paragraph-3 of Annexure R-3, referred to above. These remissions have reference only to those remissions which he had earned under Chapter XX of the. Jail Manual. Admittedly as the definition set out earlier would show, once an army convict under the Court martial is admitted in the civil prison his rights and liabilities are, during his detention, governed by the jail Manual just like any other prisoners convicted under the Indian Penal Code or any other special law as is evident from the definition of convicted criminal prisoner, therein. They are amenable to the same discipline and in case they, commit any jail offence they are liable to similar punishments and penalties at the hands of the jail authorities as set out in the Jail Manual. No special reference in this behalf has to be made in respect of. the prisoner convicted under the Court-martial to any authority. The same Manual then further lays down the duties of the jail authorities, that is the Superintendent of Jail and his subordinates as to how the records of these remissions are to be maintained by maintaining the history-ticket of the convict. The Army authority or the Central Government has nothing to do with such remissions.

The Jail Manual also, as noted above, in detail lays down as to how this history-ticket of each prisoner has to be maintained and at what intervals his earned remissions have to be recorded in the history-ticket and under what circumstances such remissions are awarded and also forfeited or withdrawn.

The remissions that are envisaged u/s 179 of the Army Act or Sections 432 or 433 of the Code of Criminal Procedure read with relevant provisions of the Constitution of India, are entirely of different nature. They come into play only when the authorities concerned in their discretion intend to remit the sentence of a particular convict with or without condition and the result of such a remission is that the convict concerned becomes entitled to be released forthwith without undergoing any further sentence whatever may be the quantum of that sentence in balance. It is an act of grace or charity on the part of the authorities concerned being extended in favour of a particular convict and cannot be demanded as of right, whereas in the remissions which he has earned; during his detention in, the prison-under the Jait Manual, he has a vested right which cannot be forfeited or taken away by any authority except in accordance with the) provisions laid down in the said Manual. This is also; clean from. paragrpah-3 of Annexure R-3 (referred to above), since it visualise that whenever the military authorities concerned undertake the exercise of periodic reviews with a view to grant such remission, they, call for the jail record where a particular military conduct is detained and while calculating the period on completion of which a particular convict is entitled to such re-view, this period has to be calculated by including the rescissions he has earned in the jail where he is being detained These remissions, stated there in obviously have reference, to the, remissions he has earned in the civil: prison of his detention which have to be reflected by the jail record namely, the, history-ticket. Thus the two types of remissions may be species of the same genus but they operate in, completely. two ,different spheres.

It may also be mentioned that the Respondent prior to his selection for the Open Air Jail Bilaspur had been serving out the sentence in closed jails, like Dharamsala and Mandr. Admittedly, during these periods he was earning remissions as envisaged in the Jail Manual. The Petitioners, however, have placed nothing one record to show that for these remission also they had sought the approval of the Central Government or the Army authorities. If no such approval was required in respect of those remissions, it is not under standable as to how the need arose when the remissions were to be recorded in the history-ticket of the Respondent during his detention in the Open Air Jail at Bilaspur for approval in respect thereof by the Central Government or Army authorities.

This Court in these circumstances is inclined to sustain the assertions of the Respondent that the Superintendent of the Open Air Jail at Bilaspur Shri P.N. Bahuguna had manipulated all this out of malice and vindictiveness. In fact This Court cannot help observing that the reply dated December 11, 1987 which this Superintendent of Jail Shri P.N. Bahuguna has filed in response to the notice of the learned Additional Sessions Judge, Shimla at Bilaspur, smacks of presumptuousness. It is felt that this document should not have been couched in the language in which it has been done when it was meant to be presented in the Court. He was probably emboldened to do so by the fact that the criminal writ petition of the Respondent had been dismissed in High Court and without realsing that the point on which that writ petition was dismissed, had no relevance whatsoever to the issue which the Respondent had raised before the learned Additional Sessions Judge. In fact it was his duty as laid down in the Jail Manual to have completed the entire history-ticket of the Respondent including the remissions earned for the period he was detained in the Open Air Jail at Bilaspur at the time of his transfer to the Model Central Jail, Nahan. If he was so concerned about the validity of these remissions which the Respondent had earned in the Open Air Jail at Bilaspui nothing prevented him from having separately written in this behalf to the Inspector General of Prisons for appropriate action. But in not completing the history-ticket of the Respondent at the time of the transfer of the Respondent from Open Air Jail, Bilaspur to Model Central Jail, Nahan, he had failed in his duty and the learned Sessions Judge had rightly directed him to do the needful.

In view of the above discussion, the revision petition fails and the same is dismissed. The directions issued by the learned Additional Sessions Judge in the impugned order shall be carried out by the authorities concerned within a period of 30 days from today under intimation to This Court and the Court of the learned Additional Sessions Judge, Shimla, at Bilaspur.