AMAR DUTT,J - (1.) THE petitioner Jai Singh, who is serving sentence of 7 years rigorous imprisonment under Section 376 IPC pursuant to an order passed by the Apex Court on 23.7.1999, asserts that he has already undergone the following sentence : Years Months Days, i) Undertrial period from 00 00 07 19.9.1992 to 25.9.1992. ii) Actual sentence undergone from 14.3.95 to 9.10.2000 05 06 26 Total Actual undergone 05 07 03 iii) Remissions earned 01 06 19 Total undergone 07 01 22 iv) Period of parole availed 00 06 16 and the respondents are denying him the benefit of 1 year 6 months 19 days of remissions which have been earned by him and has not counted the 6 months 16 days' period which he had spent on parole towards the computation of the sentence. The remissions, it is said, are being denied to him on account of the fact that according to the State he is not entitled to the benefit thereof as the crime committed by him was heinous in nature and, therefore, as per the judicial precedents he could not be treated differently from other similarly placed convicts, who are denied the benefit thereof. The petitioner seeks to rely on the provisions regarding the counting of the period spent by him on parole towards the period of a sentence on the basis of the law laid down in Sunil Fulchand Shah etc. v. Union of India and others, JT 2000(2) Supreme Court 230 and State of Haryana v. Nauratta Singh, 2000(2) RCR (Criminal) 294.
(2.) IN the reply filed by Superintendent, Central Jail, Ambala, the stand taken by the State was sought to be justified on the basis of Govt. Instructions issued on 14.8.1995, 14.8.1996 and 31.10.1996 according to which prisoners convicted under Section 376 IPC are not entitled to the benefit of the remissions. Regarding the second submission, the decision of this Court in Crl. Misc. No. 9025-M of 1997 decided on 9.11.1999 was sought to be relied upon for justifying the refusal to count the parole period towards the period of sentence already undergone. Factual matrix of the assertions about the period spent by the petitioner in jail was not controverted and it was submitted that view taken by this Court in Crl. Misc. No. 21747-M of 1998, Suresh Kumar v. The State of Haryana, decided on 6.7.1999, has been challenged in the apex Court and so the submission that the petitioner could not be denied the benefit of the remissions merely on account of the fact that he was serving sentence in a heinous offence could not be accepted. During the course of arguments, the only challenge sought to be made is with regard to the refusal of the State to count remissions that have accrued to the petitioner on account of the fact that he is serving sentence under Section 376 IPC. I have carefully considered the submissions of the learned counsel for the parties.
(3.) IN the present case the petitioner is challenging the refusal of the respondents to extend the benefit of remissions granted to the prisoners on the ground that he had committed heinous offence of rape as also the fact that the period spent by him on parole was not being counted towards the sentence served by him. Mr. P.C. Chaudhary, learned counsel for the petitioner during the course of his arguments did not seriously press the second submission made by him presumably in view of the fact taht the provisions of Section 9 of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 debar the counting of the period spent by a prisoner on parole towards the period of sentence but he assailed the refusal of the respondents to give the petitioner the benefit of remissions that have been granted to other prisoners on the basis of the view taken by this Court in Crl.Misc. No. 21746-M of 1998. The applicability of this judgment was initially contented (contested ?) on the ground taht the State had filed an appeal before the Apex Court but when the orders passed in Petition for Special Leave to Appeal (Crl.) No. 1487 of 2000 was produced, the challenge was no longer available to the State for the challenge to the extension of special remissions to cases of dowry death, which was disallowed by the State Government on the basis of some notifications which are being relied upon in this case was not pressed and therefore, the view of this Court still holds the field. The result is that it was not open to the State while granting general remissions to carve out special exceptions in cases, which according to it could be termed as heinous offences.;