Holding

A convict on bail is not entitled to remission, and a person convicted of rape is excluded from remission under the circular issued under Section 432 of the CrPC.

Summary

The State of Haryana issued circulars under Section 432 of the Criminal Procedure Code granting remission of sentence to prisoners confined in jail and those on parole or furlough on a specified date, expressly excluding persons convicted of rape or dowry death. Five respondents were on bail and one, Mohinder Singh, was convicted of rape under Section 376 IPC. The Punjab High Court held that the bail convicts were entitled to remission for the period they were on bail and that the rape convict was also eligible. The Supreme Court examined the scope of the circular, the meaning of bail, parole and furlough, and the exclusion clause, and held that a convict on bail is not covered by the circular and that a person convicted of rape is expressly excluded from remission. Consequently, the appeals filed by the State were allowed and the High Court judgments were set aside.

Issues considered

Whether a convict released on bail is entitled to remission of sentence under a circular issued under Section 432 CrPC.
Whether a person convicted of rape (Section 376 IPC) is eligible for remission when the circular expressly excludes such offences.
Interpretation of the terms parole and furlough in relation to eligibility for remission.

Legislation cited

Subjects

remission of sentenceSection 432 CrPCbailparolefurloughrapecircularprison law

Judgment

l
I

A STATE OF HARYANA AND ORS.
v.
MOHINDER SINGH

FEBRUARY 7, 2000

B [S. SAGHIR AHMAD AND D. P. WADHWA, JJ.J

Criminal Procedure Code, 1973-Section 432-Remission of sen-
tence--lssuance of circular by State Government-Applicability of-Circular
provides remission of sentence to all convicts who are confined in jail and
C are on parole or furlough from the jail on a specified date-But remission not
granted to the prisoners convicted of rape or dowry deatft-Held, remission of
sentence not available to prisoners 011 bail and those convicted for rape-Fur-
ther, merely because when bail granted to prisoner his conviction was not
suspended, the convict would not become entitled to remission under the
D circular for the period he was on bail-Punjab Jail Manual.
Words and Phrases:

Bail, furlough and Parole-Distinction between.

E In exercise of powers conferred under Section 432 of Code of
Criminal Procedure the State Government issued circulars for grant of
remission of sentence. It granted special remission to the prisoners con-
fined in jail and remission to all convicts on parole/furlough from the jail
on a specified date. However, rem;ission of sentence was not granted to
prisoners convicted of rape or dowry death. Five respondents were on bail
)
F and the sixth one was convicted of an offence under section 376 l.P.C. As
regards the respondent convicted for an offence under section 376 IPC, I
\__
High Court considered paras 633, 635 and 637 or the Punjab Jail Manual
as applicable in the State or Haryana. It held that the prisoner was entitled
to remission as it was granted to those prisoners who were on paroletrur-
G lough or were in jail on the date of ~he circular granting remission. Hence,
these appeals by the State.

Allowing these appeals, the Court

HELD : I.I. Tha respondents on bail are not entitled to the benefits
H of remission of sentence under the circular issued by the State Government
698
STATE v. MOHINDER SINGH 699

under sectio111 432 of tbe Criminal Procedure Code. When a circular A
s~cifically appli=:s to the prisoners who are undergoing sentence and are
confined in jail and even to those who are on parole or furlough, the
circular cannot extend to convicts who are 0111 bail and thus court cimnot
carve out another category to which they are not entitled under section 432
of tbe Code. (716-D; 717-D; 715-G-H]
B
1.2. The respondent convicted of an offence under ~ection 376 of the
Indian Penal Code is not entitled to remission of sentence under the
Government circular issued under section 432 of the Criminal Procedure
code as the circular is not applicable to a person convicted of an offence
under section 376 IPC. (716-C-D] C
1.3. The circular granting remission is authorised under the law. It
prescribes limitations both as regards the prisoners \?ho are eligible and
those who have Ileen excluded. Conditions for remission of sentence to the
prisoners who are eligible are also prescribed by the circular. Prisoners
have no absolute right for remission of their sentence except what is D
prescrib1:d by law and the circular issued thereunder. Special remission
not apply to a prisoner convicted of a particular offence can certainly be
relevant consideration for the State Government not to exercise pow;er of
remission In that case. Power of remission cannot be exercised arbitrarily.
Decision to grunt remission has to be well informed, reasonable and fair E
to all c11ncemed. (705-H; 7116-A·B]

Jai Prakash & Ors. v. State of Haryana and Others, (1987] 4 SCC 296,
held applicable.

Nalamolu Appala Swamy & Ors. v. State of Andhra Pradesh, (1989] F
Supp. 2 SCC 192, distinguished.

2.1. Bail Is granted by the officer-in-charge of a police station or by
the court when a pers11n is arrested and is accused of an offence other than
non-bailable offence. Court grants bail when a person apprehends arrest
in case 11f non-bailable offence or is arrested of a no11-bailable offence. G
When a person is convicted of an offence he can be released on bail by the
- appellate court till his appeal is decided. If he is acquitted his bail bonds
are discharged and if appeal is dbmissed he is ta!ten into custody. Bail
ran he granted subject to conditio11s. It does not appear to be quite
material that during the pendency of appeal though his sentence is H
700 Sl'PREME COURT REPORTS [2000] 1 S.C.R.

A suspended he nevertheless remain.s a convict. For the exercise of powers
under section 432 Cr.P.C. the State Govemment may remit the whole or
any part of the punishment to which a person has been sentenced even
though his appeal against convictim1 and sentence was pending at that
time. [706-C-E]

B 2.2. 'Furlough' and 'parole' a1re two distinct terms being used in the
Jail Manuals or laws relating to temporary release of prisoners. These two
terms heve acquired different melllllings in the statute with varied results.
When a prisoner is on parole his period 11f release does not count towards
the total period of sentence while whe~ he is on furlough he is eligible to
C have the period of release counted towards the total period of his sentence
undergone by him. [709-C; 711-E]

Poonam Lata v. M.L. Wadhawan & Others, [1987) 3 SCC 347, relied
on.

D Dictionary of American Penology, by Vergil L. Williams; Furlough
Programs and Conjugal Visiting in Adult Co"ectional Institutions by Carson
W. Markley; Black's Law Dictionary, (6th Edn.); Concise Oxford Dictionary
- New Edition; Report of the All Committee on Jail Reforms 1980-83
(Volume-I), referred to.

E CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
141of2000 Etc. Etc.

From the Judgment and Order dated 12.11.98 of the Punjab &
Haryana High Court in Crl. M. No. 26398-M of 1998.
F Mahabir Singh, S.R. Sharma, Shikha Roy Pabbi, S.K. Pabbi and Prem
'
)
Malhotra for the Appellants. \

Rao Ranjit, Kishan Datta, (Dayan Krishnan) for the Respondents.

G The Judgment of the Court was delivered by

D.P. WADHWA, J. Leave granted.

In five of the appeals (arising from SLP (Crt) Nos. 1810/99, 145/2CGO,
1812/99, 2033-34/99 llllld 2151/99) out of the batch of six qm:stion involved
H is if the respondent, a convict, is entitled to remission of his 5entence for
s·1 ATE v. MOHINDER SINGH [ D.P. WADHWA, J.j 701

tht: pt:riod during which he is on bail. In the sixth appeal (arising from SLP A
(Crl.) 643/99) qut:stion is if the prisoner, who is convicted of an offence
under Section 376 of Indian Penal Codi: (IPC), though confined in jail, is
t:ntitkd to remission of his sentence when the Govi:rnmi:nt circular issued
under Section 432 of the Code of Criminal Procedure ('Codi::' for short)
does not grant such remission to an inmate who has been convicted under
Section 376, IPC.
B

High Court in batch of five appeals observed that conviction and
sentence are two separate terms and that the moment a person is convicted
he becomes stigmatic. High Court said that at that point of time he is a
convict and if he has been granted bail by the appellate court it is by virtue C
of provision of Section 389 of the Code and his sentence stands suspended
and not that his conviction is suspended and that with the dismissal of
appeal of such convict stigma of conviction is not wiped of. High Court
was, thi:rcfore, of the opinion that such a convict would be entitled to
remission for the period he was on bail when the circular gave the benefit
of remission to a prisoner on parole/furlough. High Court gave direction D
to the State Government to reconsider the case of the convict who, it said,
should be entitlt:d to the remission as per the circular during the period
he was on bail.

In the sixth appeal (arising from SLP (Crl.) No. 643/99), where the E
respundi::nt was convicted for an offcnci:: undt:r Section 376 !PC. High
Court consideri::d var!ous provisions of the Punjab Jail Manual as ap-
plicable in the State of Haryana (Paras 634, 635 and 637 of the Jail Manual)
and held that the prisoner in this case was also entitled to remission as was
granted to those prisoners who were on parole/furlough or were in jail on
the date of the circular granting remission. F

Before we consider the rival contentions it would be appropriate to
set out the circulars granting remission to the prisoners. These circulars
have been issued under Section 432 of the Code and their language is same.
They were issued on diffen:nt dates on July 22, 1987; March 16, 1988; G
August 14, 1989; August 14, 1991; January 29, 1992; April 29, 1993; and
August 14, 1995. First such circular dated July 22, 1987 is applicable from
July 6, 1987 and is as under :

"'In t:xercise of the powers conforred under section 432 of the
Code of Criminal Procedure, 1973, the Governor of Haryana H
702 SVPREME COURT REPORTS [2CC0] 1 S.C.R.

A hereby grants special remission to the prisoners who happen to be
confined in Jails in the State of Haryana on 6th July, 1987 and who
have been convicted by Civil Courts of criminal jurisdiction
(Criminal Court of Competent jurisdiction) in the State of
Haryana. The remission is granted on the following scale :-

B Remission

(i) Those who have been sentenced
for a period exceeding 10 years 1 years

(ii) Those who have been sentenced
c for a period exceeding 2 years and upto
10 years 6 months.

(iii) Those who have been sentenced
for a period upto 2 years 3 months

D Provided that :

(i) No remission will bi: granted to persons convicted of rape or
dowry deaths.

(ii) The remission will not exceed 1/4th of the period of sentence.
E
(iii) The minimum effective imprisonment will be three months
(or less where the actual sentence is less than 3 months)

2. Remission will also bi~ granted to all the convicts who were on
parole/furlough from the jail on 6th July 1987 subject to the
F condition that they surrender at the jail on the due date after the
expiry of parole/furlough period for undergoing unexpired por-
tions of their sentences.

3. Sentence of imprisonment imposed in default of payment of the
fine shall not be treated as substantive for the purpose of grant of
G
this remission.

4. All the prisoners convicted by Civil Courts of criminal jurisdic-
tion (Criminal Court of Competent Jurisdiction) in Haryana but
undergoing their sentences in jails outside Haryana shall be en-
H titled to the grant of remission on the above scale.
STAThv. MOHINDERSINGH[D.P. WADHWA,J.] 703
-.... 5. The remission will not be admissible to :- A
(i) Detenus of any class.

(ii) The persons sentenced under the Foreigners Act 1948 and
the Passport-Act, 1967;
B
(iii) Pakishtani Nationals;

(iv) The persons sentenced under Sections 2 and 3 of Criminal
Law Amendment Act,1961 and sections 121 to 130 of the
Indian Penal Code, 1860;
c
(v) The persons sentenced under sections 3, 4, 5, 6 to 10 of the
Official Secrets Act, 1930;

(vi) The persons imprisoned for failing to give security for keeping
peace for their good behaviour under sections 107/109 of the
Criminal Procedure Code, 1973; D
(vii) The persons who committed any major jail offence during the
last two years and were punished for the same under the
relt:vant provisions of Punjab Jail Manual; and

(viii) The persons who got the benefit of such a remission during E
the past one year from 6.7.87. The grant of this remission to
life convicts will not effect the provisions of section 433-A
Cr.P.C.

Dated Chandigarh. M.C. GUPTA

- the 22.7.87 Financial Commissioner & Secy.
to Govt. Haryana, Jails
Department.''
F

Section 432 of the Code under which circular has been issued we
reproduce:-
G
"432. Power to suspend or remit sentences. - (1) When any
person has been sentenced to punishment for an offence, the
appropriate Government may, at any time, without conditions or
upon any conditions which the person sentenced accepts, suspend
the execution of his sentence or remit the whole or any part of the H
704 SUPREME COURT REPORTS (2000] 1 S.C.R.
A punishment to which ht: has been sentenced.

(2) Whenever an application is made to the appropriate Govern-
ment for the suspension or remission of a sentence, the appropriate
Government may require the pn.:siding Judge of the Court before
or by which the conviction was had or confirmed to state his
B opinion as to whether the application should be granted or refused,
together with his reasons for such opinion and also to forward with
the statement of such opinion a certified copy of the record of the
trial or of such record thereof as exists.

c (3) If any condition on which a sentence has been suspended or
remitted is, in the opinion of the appropriate Government, not
fulfilled, the appropriate Government may cancel the suspension
or remission, and thereupon the person in whose favour the sen-
tence has been suspended or remitted may, if at large, be arrested
D by any police officer, without warrant and remanded to undergo
the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted
under this section may be one to be fulfilled by the person in whose
favour the sentence is suspended or remitted, or one independent
E
of his will.

(5) The appropriate Government may, by general ru!es or special
orders, give directions as to the suspension of sentences and the
conditions on which petitions should be presented and dealt with:
F
Pn>.; ided that in the case of any sentence (other than a sentence
of fin~) passed on a mde person above the age of eighteen years,
no such petition by the persons sentenced or by any other person
on his behalf shall be entertained, unless the person sentenced is
in jail, and -
G
(a) 'where such petition is· made by the person sentenced, it is
presenkd through the officer-in-charge of the jail; or

(b) where such petition is made by any other person, it contains a
H declaration that the person sentenced is in jail.
STATE v. MOHINDER SINGH [ D.P. WAD HWA, J.] 705

(6) The provisions of the above sub-sections shall also apply to any A
order passed by a criminal court under any section of this Code
or of any other law which restricts the liberty of any person or
imposes any liability upon him or his property.

(7) In this section and in Sec. 433, the expression "'appropriate
Govt:rnment" means. - B

(a) In cases where the sentence is for an offence against, or the
order referred to in sub-section (6) is passed under any law relating
to a matter to which the executive power of the Vnion extends,
the Central Government;
c
(b) In other cases, the Government of the State within which the
offender is sentenced or the said order is passed".

Article 161 of the Constitution also grants power to the Governor to
grant pardons, etc. Though that Article may not be quite relevant in the
present appeals but we may note the same -
D

'161. Power of Governor to grant pardons, etc. and to suspend, remit
or commute sentences in certain cases. - The Governor of a State
shall have the power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the E
senknce of any person convicted of any offence against any law
rdating to a matter to which the executive power of the State
extends."

It is not disputed that the circulars have been issued by the State
Government in the exercise of powers conferred under Section 432 of the F
Code. Its authority to issue the circulars has not been questioned. From
the language of the circular aforesaid it is relevant to note three points for
the purpose of these appeals : (1) It grants special remission to the
prisoners, who are confined in jails in the State of Haryana on July 6, 1987
(2) Remission is also to be granted to all the convicts who are even on G
parole/furlough from the jail on July 6, 1987 (3) The remission of sentence
cannot be granted to prisoners convicted of rape or dowry deaths.

The circular granting remission is authorised under the law. It
prescribes limitations both as regards the prisoners who are eligible and
those who have been excluded. Conditions for remission of sentence to the H
706 SUPREM:~ COURT REPORTS (2C00] 1 S.C.R.
A prisoners who are eligiblt: are also prescribed by the circular. Prisoners
have no absolute right for remission of their sentence unless except what
is prescribed by law and the circular issued thereunder. That special
remission shall not apply to a prisoner convicted of a particular offence
can certainly be relevant consideration for the State Government not to
exercise power of remission in that case. Power of remission, however,
B cannot be exercised arbitrarily. Decision to grant remission has to be well
informed, reasonable and fair to all concerned.

Terms bail, furlough and parole have difforent connotations. Bail is
well understood in criminal jurisprudence. Provisions of bail are contained
C in Chapter XXXIII of the Code. It is granted by the officer-in-charge of a
police station or by the court when a person is arrested and is accused of
an offence otht::r than non-bailable offence. Court grants bail when a
person apprehends arrest in case of non-bailable offence or is arrested of
a non- bailable offence. When a person is convicted of an offence he can
D be released on bail by the appellate court till his appeal is decided. If he
is acquitted his bail bonds arc discharged and if appeal dismissed he is
taken into custody. Bail can be granted subject to conditions. It does not
appear to be quite material that during the pendency of appeal though his
sentence is suspended he nevertheless remains a convict. For the exercise
E of powers under Section 432 it may perhaps be reh:vant that the State
Government may remit the whole or any part of the punishment to which
a person has betn sentenced even though his appeal against conviction and
sentence was pending at that tum:. Appeal in that case might have to abate
inasmuch as the person convicted has to accept the conditions on which
State Government remits the whole or in part of his punishment.
F
In Dictionary of American Penology, by Vergil L. Williams 'furlough'
is described as under :-

"Furloughs are variously known as temporary leaves, home visits,
G or temporary community release. For decadt:s, prisons have oc-
casionally granted short furloughs to inmates who were suddenly
faced with a severe family crisis such as a death or grave illni::ss in
the i.Jnmediate family. Furloughs of that type are treated as spt:cial
circumstances, and often the inmate must be accompanied by an
H officer as part of the terms of the temporary release".
STATE v. MO HINDER SINGH [ D.P. WAD HWA, J.] 707

In the article 'Furlough Pragrams and Conjugal Visiting in Adult A
Correctional Institutions' by Carson W. Markley in Volume. "Federal
Probation" it is mentioned that "the term 'furlough' is frequently confused
with special leave, which most adult institutions have long been willing to
grant under extenuating circumstances, such as family crises. A prisoner
on special leave customarily travels under escort, while on furlough he is
B
on his own".

'Furlough' according to Black\ Law Dictionary (6th edn.) means "a
leave of absence; e.g. temporary leave of absence to one in the armed
service of the country; an employee placed in a temporary status without
duties and pay because of lack of work or funds or for other non-discipli- C
nary reasons. Also the document granting leave of absence.'' According to
The Concise Oxford Dictionary (new edition) ''Furlough" means : "leave of
absence, esp. granted to a member of the services or to a missionary".

Parole is defined in these two dictionaries as under :
D
The Concise Oxford Dictionary - New Edition

"The release of a prisoner temporarily for a special purpose or
completely before the expiry of a sentence, on the promise of good be-
haviour; such a promise, a word of honour".
E
Black's Law Dictionary - Sixth Edition

''Release from Jail, prison or other confinement after actually serving
part of sentence; conditional release from imprisonment which entitles
parolee to serve remainder of his term outside confines of an institution,
if he satisfactorily complies with all terms and conditions provided in F
parole order."

In Poonam Lata v. M.L. Wadhawan and Others, [1987] 3 SCC 347
this Court was considering the nature and scope of parole in a case of
preventive detentiop.. It said :-
G
''There is no denying of the fact that preventive detention is not
punishment and the concept of serving out a sentence would not
legitimately be within the purview of preventive detention. The
grant of parole is essentially an executive function and instances
of release of detenus on parole were literally unknown until this H
708 SCPREME COURT REPORTS [2L'GO) l S.C.R.
A Court and some of the High Courts in India in recent years made
orders of release on parole on humanitarian considerations. His-
...
torical!y 'parole' is a concept known tu military law and denott:s
release of a prisoner of war on promise tu return. Parole has
become an intt:gral part of the English and American systems of
criminal justice intertwined with the:: evolution of changing attitudes
B of the society towards crime and criminals. As a consequence of
the introduction of parole into th.: penal system, all fixed-term
sentences of imprisonment of above 18 monthi. are subject to
release on licence, that is,, parok after a third of the period of
sentence has been served. In those countries parole is taken as an
c act of gract: and not as a matter of right and the convict prisoner
may be released on condition that he abides by the promise. It is
a provisional release from confinement but is deemed to be a part
of the imprisonment. Release on parole is a wing of the reformative
process and is expected to provide opportunity tu the prisoner to
transform himself into a useful citizen. Parok is thus a grant of
D
partial liberty or lessening of restrictions to a convict prisoner, but
release on parole does not change the status of the prisoner. Rules
are framed providing supervision by parole authorities of the
convicts released on parole and in case of failure to perform the
promise, the convict released on parole is directed tu sum:nder to
E custody. (St:e The Oxford Companion to Law, editt:d by Walker,
1980 edn. p.931; Black's Law Dictionary, 5th edn., p. ICOo; Juwitt's
Dictionary of English Law, 2nd edn., Yul. 2, p. 1120; Kenny's
Outlines of Criminal Law, 17th edn., pp.574-76; Th<: English Sen-
tencing Syst..:m by Sir R:ipert Cross at pp.31-34, 87 d. seq.,
American Jurisprudence. 2nd edn., Vol. 59, pp.53-61; Corpus Juris
F
Secundum, Vol. 67; Probation and Parole, Lega: and Social
Dimensions by Louis P. Carney) It follows from these authorities
that parole is the release of a very long term prisoner from a penal
or correctional institution after he has served a part of his sentence
under the continuous custody of the State and under conditions
G that permit his incarceration in the event of misbehaviour.

Para 20.8 in Chapter XX dealing with ''Systt:m of Remission, Leave
and Premature Release" of the Report of the All India Committee on Jail
Reforms, 1980-83 (Volume-I) refers to leave which can be granted to the
H petitioner. The relevant portion is as under :
I

STATE v. MUHlNDERSINGH '. D.P. WADHWA,J.j 709

"Different concepts such as parole, furlough, ticket of leave, home A
leave, etc., are used in different States to denote grant of leave or
emergency release to a prisoner from prison. The terminology used
is not uniform and is thus confusing. Then; is also no uniformity
with regard to either the grounds on which leave is sanctioned or
the lt;vel of authority empowered to sanction it. There is also a lot
of diversity in the procedure for grant of leave. The scales at which
B
thesi: leaves arc granted also different from State to State; for
example in some States parolt; is granted for a period extending
upto 15 days while in other States it is restricted to 10 days only."

'Furlough' and 'parole' are two distinct term now being used in the C
Jail Manuals or laws relating to temporary release of prisoners. These two
terms have acquired different meanings in the statute with varied results.
Dictionary meanings, therefore, are not quite helpful. In this connection
we may refer to the Haryana Good Conduct Prisoners (Temporary
Release) Act, 1988 which has repealed the Punjab Good Conduct D
Prisoners (Temporary Release) Act, 1962. Punjab act was earlier ap-
plicable in the State of Haryana. Language of both the Acts is same and it
may be usdul to rder Sections 3 and 4 of any of these two Acts to
understand the difference between parole and furlough :

"3. Tempora1y release of prisoners on certain grounds. - (1) The E
State Government may, in consultation with thi: District Magistrate
or any othi:r officer appointed in this bi:half, by notification in thi:
Official Gaz.:tte and subject to such conditions and in such manner
as may be prescribed, release temporarily for a period specified
in sub-section (2), any prisoner, if the State Government is satisfied F
that -

(a) a member of the prisoner's family had died or is
seriously ill or the prisoner himself is seriou5ly ill; or

(b) the marriage of prisoner himself, his son, daughter, G
grandson, grand-daughter, brnther, sister, sister's son
or daughter is to be celebrated; or

(c) the temporary release of the prisoner is necessary for
ploughing, sowing or harvesting or carrying on any H
710 SUPREME COURT REPORTS [2000] l S.C.R.

A other agricultural operation on his land or his father's
undivided land actually in possession of the prisoner;
or

(d) it is desirable to do so for any other sufficient cause.

B (2) The period for whkh a prisontr may be released shall be
dekrmim:d by the State Gov.:rnment so as not to exceed :-

(a) where the prisont:r i' to be rdeased on the ground
specified in clause (a) of sub-section (1), three weeks;

c (b) where the prisom:r i~ to be released on the ground
specifit:d in clause (b) or clause (d) of sub-section (1),
four weeks; and

(c) where the p::isoner is to be releastd on the ground
specified in c:lause (c) of sub-section (1), six weeks:
D
Provided that the temporary release under clause (c) can be
availed more than once during the year, which shall not, however,
cumulatively exceed six weeks.

E (3) The period of release under this section shaU not count towards
the total period of stntence of a prisoner.

(4) The State Government may, by notification, authorise any
officer to extrcise its powers under this section in respect of all or
any other ground specified thereunder.
F
4. Temporary release of prisoners on furlough. - (i) The State
Government or any other office authorised by it is this behalf may,
in consultation with such other officer as may be appointed by the
State Government, by notification, and subject to such conditions
and in such manner as may be prescribed, release temporarily, on
G furlough, any prisoner who has been sentenced to a term of
imprisonment of not less than four years and who -

(a) has, immediately b'efore the date of his temporary release,
undergone continuous imprisonment for a period of three
H years, inclusive of the pre-sentence detention, if any ;
I

STATE v. MO HINDER SINGH [ D.P. WAD HWA, J.] 711

(b) has not during such period committed any jail offence (except A
an offence punished by a warning) and has earned at least
three annual good conduct remissions:

Provided that nothing herein shall apply to a prisoner who -

(i) is a habitual offender as defined in sub-section (3) of section B
2 of Punjab Habitual Offenders (Control and Reform) Act,
1952; or

(ii) has been convicted of dacoity or such other offence as the
State Government may, by notification, specify. C

(2) The period of furlough for which a prisoner is eligible undt:r
sub-section (1) shall be three weeks during the first year of his
release and two weeks during each successive year thereafter.

(3) Subject to the provisions of clause ( d) of sub-section (3) of D
section 8 the period of release referred to in sub-section (1) shall
count towards the total period of the sentence undergone by a
prisoner."

It would be thus seen that when a prisoner is on parole his period
of release does not count towards the total period of senlt:nce whilt: when
E
he is on furlough he is eligible to have the pt:riod of release counted
towards the total period of his sentence undergone by him. Delhi Jail
Manual also uses the same terminology which we may set out as under :-

"Part I (Parole) F

1.(i) A prisoner may be released on parole for such period as
government may order in cases of serious illness or death of any
member of prisoner's family or his nearest relatives. For this
purpose the prisoner's family or his nearest relatives mean his/her G
parents, brothers, sisters, wife/husband and children. A prisoner
may similarly be released on parole to arrange for the marriage of
his issue for a period of not exceeding four weeks.

(ii) The period spent on parole will not count as part of the
sentence. H
712 SVPREME COURT REPORTS (2CXXJ) l S.C.R.
A 2..................................... .

3..................................... .

Part II (Furlough)

B 1. (i) A prisoner who is sentenced to 5 years or more of rigorous
imprisonment and who has actually undergone thn:e years im-
prisonment e11.cluding remission may be released on furlough. The
first spell may be three weeks and subsequent spells of two weeks
each, ptr annum, provided that -

c (a) his conduct in Jail has been good; he has earned three Annual
Good Conduct Rt:missiuns and provided further that he con-
tinues tu earn good conduct remission or maintains good
conduct

(b) that he is not a habitual offender;
D
(c) that he :s not convicted of robbery with violence, dacoity and
arson;

(d) that he is not such a '.Jerson whose presence is considered
highly dangerous or prejudicial to public peace and tran-
E quility bv the District Magistrate of his home districL

(ii) The period of furlough will count as sentence undergone except
any sue [ period during which the prisoner commits an offence
outside.
F
2 to 6 .....''.

Chapter XX of the Punjab Jail Manual as applicable in the State of
Haryana contains remission system. paras 633, 633A, 635, 637, 644 and 645
are rdevant for our purpose which we set out hereunder :
G
"633. Cases in which ordinary remi.ssion not earned. • No ordinary
remission shall be earned in the following cases, namely ;

(1) in respect of any sentence of imprisonment amounting, ex-
clusive of any sentence: passed in default of payment of fme,
H to less than three months;
/

STATEv. MOHINDERSINGH [ D.P. WADHWA,J.] 713

(2) in rt:spect of any sentence of simple imprisonment except for A
any continuous period not being less than one month during
which the prisoner labours voluntarily:

633-A. Ordinary remission not eamable for ceTtain offenc es com-
mitted after admission to jail. - If a prisoner is convicted of an
B
offence committed after admission to jail under sections 147, 148,
152, 224, 302, 304, 304-A, 306, 307, 308, 323, 324, 325, 326, 332,
333, 352, 353 or 377 of the Indian Penal Code, or of an assault
committed after admission to Jail on a warder or other officer or
under section 6 of the Good Conduct Prisoners Probational
Release Act, 1926 (X of 1926), the remission of whatever kind C
earned by him under these rules up to the date of the said
conviction may, with the sanction of the Inspector-General of
Prisons, be cancelled.

635. Scale of award or remission - Ordinary remission shall be D
awarded on the following scale :-

(a) two days per month for thoroughly good conduct and
scrupulous attention to all prison regulations.
E
(b) two days per month for industry and the due performance of
the daily task imposed.

637. Application of remission of system - Subject to the provisions
of paragraph 634 remission under paragraph 635 shall be calcu-
lated from the first day of the calendar month next following the F
date of prisoner's sentence; any prisoner who after having been
released on bail or because its sentence has been temporarily
suspended is afterwards re-admitted in the jail shall be brought
under the remission system on the first day of the calendar month
next following his re-admission, but shall be credited on his return G
to jail with any remission which he may have earned previous to
his release on bail or the suspension of his sentence. Remission
under paragraph 636 shall be calculated from the first day of the
next calendar month following the appointment of the prisoner as
convict warder, convict overseer or convict night watchman. H
714 SUPREME COURT.REPORTS [2000] 1 S.C.R.

A 644. Special remission. - (1) Special remission may be given to any
prisoner whether entitled to ordinary remission or not other than
a prisoner undergoing a sentence referred to in paragraph 632, for
special service as for example. -

For the existing para the following shall be substituted.
B
(1) Special remission may be given to any prisoner whether entitled
to ordinary remission or not other ·~han a prisoner undergoing a sentence
referred to in paragraph 632, for special services as for example.

(a) assisting in detecting or preventing breaches of prison dis-
c cipline or regulations,

(b) success in teaching handicrafts,

(c) special excellence in, or greatly increased out-turn of work of
good quality,
D
(d) protecting an officer of the prison from attack,

(e) assisting an officer of the prison in the case of outbreak of
fire or similar emergency,

E (f) economy in wearing clothes,

(g) donating blood to the Blood Bank provided that the scale of
special remission for this service shall be fifteen days for each
occasion on which blood is donated subject to the limit laid
down in sub-para (3),
F
(h) voluntarily undergoing vasectomy operation by a prisoner,
having three children, provided that he scale of special remis-
sion for such service shall be 30 days, subject to the limits
laid down in sub-para (3).
G
(2) Special remission may also be given to any prisoner released
under the Good Conduct Prisoners' Probational Release Act, 1926
for special services as :

(i) Special excellence in, of greatly increased out- turn or good
H quality,
STATEv. MOHINDFRSINGH[D.P. WADHWA,J I 715

'(ii) Assisting employer in case of out-break or fire or protecting A
his life or property from theft and other meritorious services.

(3) Special remission may be awarded :-

(i) by the Superintendent to an amount not exceeding three days
in one year. B

(ii) by the Chief Probation Officer in the case of prisoners
released under the provisions of the Good Conduct Prisoners'
Probational Release Act, 1926 to an amount not exceeding
30 days in one year.
c
(iii) by the Inspector-General of the Local Government to an
amount not exceeding sixty days in one year.

EXPLANATION:- For the purpose of this rule, years shall be
reckoned from the date of sentence and any fraction of a year shall D
be reckoned as a complete year.

(4) An award of specia.l remission shall be entered on the history
ticket of the prisoner as soon as possible after it is made, and the
reasons for every award of special remission by a Supdt. shall be
briefly recorded, and in case of prisoners released under the Good E
Conduct Prisoners' Probational Release Act, 1926, such entries
and reasons thereof shall be recorded by the Probation Officer.

645. Total remission not to exceed one-fourth part of sentence. • The
total remission awarded to a prisoner under all these rules shall
not without the special sanction of the Local Government, exceed F
one-fourth part of his sentence.

Provided in every exceptional and suitable cases the lnspector-
General of Prisons may grant remission amounting to not more
than one-third of the total sentence."
G
When a circular specifically applies to the prisoners who are under-
going sentence and are confined in jail and even to those who are on parole
or furlough were cannot extend this circular to convicts who are on bail
and thus carve out another category to which Court is not entitled under
Section 432 of the Code. As noted above, validity of the circular has not H
716 SUPREME COURT REPORTS (2C00] 1 S.C.R.
A been challenged on any other ground.

In the case of Harphool Singh, who was convicted of rape, circular
specifically is not applicable to th1~ prisom:r convicted of an offence of rape
or other dowry offences. Perhaps, this provision was not brought to the
B notice of the High Court when it held that circular would also apply in the
case of Harphool Singh. It was submitted by Mr. Dayan Krishnan, learned
amicus curiae that nevertheless Harphool Singh might have already under-
gone the sentence after earning remi&sion under the Punjab Jail Manual
and present appeal in his case would be infructuous. It will be for the State
Government to consider, if Harphool Singh has served out his sentence in
C normal course without getting any remission under the circular on the basis
of the impugned judgment of the High Court. It is not disputed that
Harphool Singh has already got benefit of remission to which he was
entitled under Chapter XX of the Punjab Jail Manual. He is certainly not
entitled to remission under the circular as that is not applicable to a person
D convicted of an offonce under Section 376 IPC.

From para 637 as reproduced above a convict on bail is not entitled
to the benefit of remission system. In fact question is no longer res integra
as it is covered by the decision of this Court in Jai Prakash and Others v.
State of Haryana and Ors., [1987] 4 SCC 296. While considering the scope
E of para 637 this Court held:-

"On a n:ading of the aforesaid provision it is manifest that a
prisoner who has been released on bail or whose sentence has been
temporarily suspended and has afterwards been re-admitted in jail
F will be brought under remission system on the first day of the
calendar month next following his re-admission. In other words, a
prisoner is not eligible for :cemission of sentence during the period
he is on bail or his sentence is temporarily suspended. The sub-
mission that the petitioners who were temporarily released on bail
are entitled to get the remission earned during the period they
G were on bail, is not at all sustainable."

In the appeals where the convicts were on bail High Court in the
impugned judgments relied on a decision of this Court in Nalamolu Appala
Swamy and Others v. State of Andhra Pradesh, [1989] Supp. 2 SCC 192
H where this Court observed as under :
STATEv. MOHINDERSINGH :n.P. WADHWA,J.J 717

''We find m!!rit in the contention because the scheme of remission A
formulated under the GO is with reference to the period of
sentence actually undergone by diffen::nt classes of prisoners and
in the case of some the pt:riod of actual sentence together with the
remissions earned for reckoning the total sentence. The GO does
not stipulate that in order to get the benefit of remission the
prisoners must actually be in jail on the date the GO was issued.''
B

Decision of this Court in the case of Nalamolu Appala Swamy
aforesaid, however turns on the facts of that case. The GO which granted
remission has not been set out in the judgment though the judgment
noticed that GO has been issued by the Government for granting remission C
to certain categories of prisoners "to commemorate the occasion of the
anniversary of formation of the Andhra Pradesh State on November 1, 1984
and the restoration of democratic rule in the State". The Court also noticed
the argument of the appellants that GO nowhere sets out that benefit of
remission would be confined to prisoners who were actually in jail on thc
date of the GO and not to others who were on bail. D
We are of the opinion that the High Court was not right in the
judgments impugned in these appeals holding that the respondents were
entitled to remission of their sentences under the circulars in question
issued under Section 432 of the Code of Criminal Procedure. These
appeals are, therefore, allowed and the impugned judgments of the High
E
Court are set aside.

We place on record our appreciation of the valuable assistance
rendered to us by Mr. Dayan Krishnan, Advocate who appeared as amicus
curiae
F
NJ. Appeals allowed.