T.P.S.MANN, J. - (1.) THE petitioner herein seeks the advantage of period of parole towards the actual sentence undergone by him. He remained in custody as an under-trial for 1 year and 3 months. On 17.1.1996, when he was sentenced to undergo the imprisonment for 10 years, he was further remanded to judicial custody. Uptil 20.4.2006, he served a total period of 7 years 9 months and 11 days in jail including the under-trial period of 1 year and 3 months. The petitioner also earned remission for a period of 2 years 6 months and 22 days making it a period of 10 years 4 months and 3 days. During his stay in jail as a convict, he availed of parole on a number of occasions and the total period for which he was released on parole was 6 months and 16 days. After deducting the parole period, the actual sentence undergone by the petitioner, thus, came to be 9 years 9 months and 17 days uptil 20.4.2006.
(2.) ACCORDING to the learned counsel for the petitioner, if the parole period is not excluded from the total sentence undergone by him, he has completed the requisite sentence of 10 years imprisonment and deserves to be released from custody forthwith. However, according to the petitioner, the respondents are denying him the period spent by him on parole by deducting it from the total sentence undergone by him. In support of the said contention, learned counsel for the petitioner has placed reliance upon a judgment passed by this Court in Duni Ram v. State of Haryana and another, Criminal Misc. Petition No. 19131-M of 2004, decided on November 23, 2004 (Annexure P-1). The emphasis has been laid on the concluding paras of the said judgment which are reproduced hereinbelow :- "Thus, the view taken by the Apex Court is that the time spent on parole is part of imprisonment because it is a licensed release and the prisoner released on parole is not a free agent. The period of parole is to be counted towards the actual sentence undergone by a prisoner. The petitioner has, thus, already undergone more than seven years actual sentence, including the period of parole/furlough. The action of the respondents in keeping him in jail is violative of Article 21 of the Constitution of India. Consequently, this petition is allowed. The respondents are directed to add the period of parole/furlough of the petitioner towards the actual sentence of imprisonment undergone by him and to release him forthwith from jail." On the other hand learned counsel appearing on behalf of the respondents has brought to the notice of the Court the provision contained in Section 3(3) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988. As per this provision, the period of release of a prisoner on parole shall not count towards the total period of sentence. It has further been submitted that the vires of the said provision were challenged before the Apex Court and the Constitution Bench upheld the said provision holding that it was not hit by Article 21 of the Constitution of India. Reference was made to Avtar Singh and another v. State of Haryana and another, reported in 2001(3) RCR(Crl.) 797 : 2000(3) Supreme Court Cases 18. So far as the judgment in Duni Ram's case (supra) cited by learned counsel for the petitioner, it was stated that at the time of the said decision, learned counsel appearing on behalf of the State/respondent could not cite any case law in support of the contention that the period of parole was to be excluded while calculating the total sentence undergone by a convict.
(3.) I have perused the entire record of the case and heard the arguments.;