DEO NARAYAN THANVI, J. - (1.) BY this instant writ petition for Habeas Corpus filed under Art.226 of the Constitution of India, petitioner Makkhan Singh, cousin brother of accused - convict Gyan Singh, has sought remedy for the release of convict from the Central Jail, Ganga Nagar by giving benefit of remission, as prayed for in the memo of petition.
(2.) FACTS leading to this petition are that convict - Gyan Singh was held guilty for the offence under S. 302, IPC and was sentenced to life imprisonment with a fine of Rs. 1,000/- and in default, to further undergo six months' S. I. along with other offences by the learned Sessions Judge, Sri Ganganagar on 12-7-04 in Sessions Case No. 9/04. He preferred appeal before this Court in which his conviction under S. 302, IPC was altered to that of S.304, Part I, IPC in D. B. Cr. Appeal No. 757/04 decided on 13-5-09 and was sentenced to seven years' R. I. with a fine of Rs. 1,000/- and in default, to further undergo six months' S. I. The judgment of this Court was sent to the trial Court for compliance and in pursuance to this, the learned trial Court prepared the amended warrant of arrest. Convict - Gyan Singh was undergoing the sentence pursuant to the amended warrant but on 1-6-09, his brother Makkhan Singh preferred this petition that convict - Gyan Singh is not being released from jail, despite there being different Circulars of the State Government regarding grant of remission to the Convict. According to the petition, convict - Gyan Singh has completed the sentence awarded by the Division Bench of this Court in the Criminal Appeal by counting the period of remission. Notice was issued to the respondent State. Reply to the petition was filed by the State, wherein the State has taken the plea that still the convict - Gyan Singh has not completed his period of sentence, therefore, he could not be released. The contention of the State was based on the Circular dated 29-3-06 issued by the Department of Home, Govt. of Rajasthan, on the occasion of "Rajasthan Isthapna Diwas" on 30-3-06. According to the reply of the State, earlier the remission was granted to the convict - Gyan Singh for a period of six months by virtue of Circular of the State Government issued on 22-1-05 on Republic Day of 26-1-2005 but by the Circular dated 29-3-06, the period has been reduced to four months from six months for life convicts and to two months from four months in cases of convicts undergoing sentence for a period of five to ten years. Therefore, in pursuance to the amended Circular of the State Government, the remission will be counted for the present convict, who is undergoing sentence of seven years i.e. Between five years to ten years as per the decision in appeal decided by this Court on 13-5-09 and he cannot be released. After filing of the reply, the matter was listed for hearing and during the course of arguments on 11-8-09, it was pointed out by the learned counsel for the petitioner that many of the life convicts, whose appeals were later on decided, were released by the Jail Authorities in pursuance to the earlier Circular of 22-1-2005. Upon this, the learned Government Advocate was asked to supply the figures by collecting the data from respondent No. 3 viz., the Director General of Jails. On 18-8-09, the Legal Assistant of the Office of the Superintendent, Central Jail, Jodhpur, Mr. Arun Sharma appeared in the Court and submitted on behalf of the Director General of Jails that the information may be treated as nil. Since there was no affidavit of the Director General vis - a - vis the history ticket of the convict, therefore, the Director General of Jails was asked to appear in person along with the required information. In compliance of the directions, Mr. Omendra Bhardwaj, Director General of Jails, appeared in person on 21-8-09 and sought time for collecting the data. Today, the State has filed the affidavit of Mr. Omendra Bhardwaj, Director General of Jails along with certain annexures including the list of 261 convicts of the similar nature in the State of Rajasthan, wherein it has been stated that the matter was taken up with the State Government and the State Government has issued the order on 7-9-09 which reads as under : "In exercise of the powers conferred under Art. 161 of the Constitution of India read with S.432 of the Code of Criminal Procedure, the State Government has issued orders on various special occasions like Independence Day, Republic Day, Rajasthan Day etc. for awarding State remission for the prisoners undergoing sentence. It has now been brought to the notice of the State Government that in cases of those prisoners, whose period of sentence was reduced by the decisions in appeal, period of State remission has been reduced proportionately by the respective Superintendents of Jail. The matter was examined and it is found that reduction in the period of State remission consequent upon the reduction of sentence of a prisoner in appeal is not in accordance with the established principles of law, as the State remission once awarded to the prisoners by the State Government as per law on a special occasion has to be allowed on that day itself irrespective of the change in the period of sentence in appeal thereafter. Therefore, it is enjoined upon all the Superintendents of Jail that the prisoners, whose period of sentence has been reduced by the decision in appeal, period of State remission awarded to them by the State Government as per law on a special occasion, shall be restored back immediately, as the right accrued to them on that special occasion cannot be taken back with retrospective effect. However, the cases of such prisoners who have undergone the period of sentence and have already been released shall not be opened, as the action taken in their cases by Superintendents of Jail is found to be under their bona fide belief having lack of proper understanding of the spirit behind the orders issued by the State Government from time to time for providing State remission to the prisoners." Upon perusal of the affidavit and the order issued by the State Government, it has been pointed out by the learned Government Advocate that convict Gyan Singh has been released from jail by treating his remission period of six months in pursuance to the Circular dated 22-1-2005. Though belatedly, the relief sought for by the petitioner has been granted by the State Government but before parting, we would like to emphasize that remission once granted to a convict and entered in his history sheet, cannot be later on revoked, as it will hit fundamental right of a citizen guaranteed under the Constitution of India under Art. 19 dealing with Right to Liberty and Art. 21, which says that no person shall be deprived of his life and liberty save by the procedure established by law. In this regard, we have considered the Full Bench decision of the Nagpur High Court in the case of Venkatesh Yeshwant Deshpande v. Emperor, reported in AIR 1938 Nagpur 513, cited by learned counsel for the petitioner, wherein it has been observed as under : "It is not open to Government, after remitting a sentence unconditionally, and in absence of fraud or mistake, to cancel the order and restore the sentence. Even assuming that the Government has such power, an order remitting sentence which has been acted upon to the extent of informing the Legislature of the remission, cannot be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of Central Jail a memorandum telling the Superintendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended. When the amending order is passed some days after an application under S. 491 for writ of Habeas Corpus had been launched and after the prisoner was entitled to be released under the order of remission, any possible locus poenitentiae is clearly at an end."
(3.) THOUGH the facts of the cited case were little different because the convict - Deshpande was sentenced to two years' R.I. under S.120 - B, IPC and his appeal was also dismissed by the High Court on 14-7-1937. He moved an application for grant of remission, which was granted to him on 24-2-1938 for a period of one year. Hon'ble the Premier announced a general remission of two months respecting all the prisoners throughout C. P. and Berar in commemoration of the introduction of jail reforms. The applicant contended that taking into consideration all the remissions, he was entitled to be released on 16th April, 1938 but he was not released. In reply, the learned Advocate General admitted the above facts but he replied that on 14th April, 1938 i.e. two days prior the date of release, the Local Government varied its previous order dated 24-2-1938 and directed that he should not be released. The Full Bench of the Nagpur High Court considered this aspect and came to the conclusion that once the remission granted by the State, cannot be revoked by a department of the State. Though at the relevant time, the Constitution of India was not in force as this judgment was of pre - independence. Now, we have our Constitution and Right to freedom is guaranteed to a citizen under Arts. 19 and 21 dealing with fundamental rights under Part III of the Constitution of India. Accordingly, once the remission granted by virtue of Art. 161 of the Constitution as in the present case granted by the State Government in the year 2005 by the Circular D/- 22-1-2005 on the occasion of "Republic Day" and entered in the history sheet of the Convict, cannot be revoked later on under S.432, CrPC by the department of the State, as the remissions are granted on a particular occasion and on that occasion, whatever sentence a prisoner is undergoing, has to be treated as a conviction and sentence under a particular Section. On 22-1-2005, convict Gyan - Singh was undergoing sentence of life imprisonment and not seven years' R. I. and on that day, he was granted remission of six months on the occasion of "Republic Day", which was also entered in the history sheet. Later on, the same cannot be altered to four months by remission granted on other occasion viz.; "Rajasthan Isthapna Diwas", on which day also, the convict was undergoing life imprisonment, though his appeal was decided in May, 2009 and sentence was also reduced from life imprisonment to seven years' R. I. After that decision of the appeal, if any remission could have been granted, has to be counted accordingly and not prior to this date. If we accept the contention of learned Govt. Advocate as advanced, an anomalous situation might emerge because if a life convict is short of six months of his release on 26-1-05, despite pending appeal, he was to be released by virtue of the remission on "Republic Day" granted vide Circular dated 22-1-05 and in case, the decision in appeal is made later on reducing his sentence to less than 10 years, then question will emerge as to whether the State could have called him back to undergo sentence of two months further vide Circular of 29-3-06 whereby remission was reduced from 6 months to 4 months of life convicts? Certainly, the answer is "NO To avoid this anomaly, we hold that once the powers exercised by the Governor under Art. 161 of the Constitution of India cannot be abrogated or taken away at a later stage under the garb of S.432, CrPC by the Department of the State or other delegated authority, as it will violate Arts. 19 and 21 of the Constitution of India as discussed above.;