JUDGMENT R.R.K. Trivedi and M.C. Jain, JJ.
1. Habeas Corpus Petition No. 38968 of 1998 was registered on the basis of letter sent by Smt. Vimla Devi wife of Jai Chand Singh whereas Habeas Corpus Petition No. 10757 of 1999 was registered on the basis of letter sent by Jai Chand Singh from Jail. The questions of fact and law involved in both the petitions are similar and they are consequently, disposed of by this common order.
2. The facts giving rise to these petitioners are that the petitioner Jai Chand Singh was convicted and sentenced for life imprisonment by the judgment and order dated 1-7-1981 passed by the learned II Additional Sessions Judge, Shahjahanpur in S.T.No. 531 of 1980 under Section 302/34/154/138/149 IPC. The aforesaid order was challenged in Criminal Appeal in this Court which was dismissed on 5th November 1982. The petitioner's claim is that he had already served out 25 years of sentence before 26th January 1999 and he ought to have been released from jail, like other convicts on the basis of the government orders. In this connection, the petitioner has claimed that he was in jail as under trial from 4-7-1980 to 1-7-1981, i.e., for a period of eleven months twenty seven days, which ought to have been set off under Section 428 Cr.P.C. and if this total period is given set off, the petitioner completed 25 years' sentence much before 26-1-1999. He has also pleaded that the period, during which he was released on parole before conviction, has been illegally excluded. Such period was three months. It is claimed that the respondents have illegally denied the benefit of the Government Orders to the petitioner.
3. The counter affidavit has been filed in both petitions. It has been stated in the counter affidavit that on 26-1-1999 the petitioner had served only 24 years 10 months of the sentence including remissions and he was not entitled for release. In paragraph 4 of the counter affidavit, it has been stated that before conviction, he was in actual detention as under trail for a period of 8 months 20 days, which could only be given set off under Section 428 Cr.P.C. It has also been stated that after conviction the petitioner was not granted either parole or licence at any point of time.
4. Thus, the question for determination in the present writ petitions is as to whether petitioner was legally entitled for set off under Section 428, Cr.P.C. in respect of that period also during which he was released on parole, short term bail.
5. Sri A.K. Tripathi, learned A.G.A. has submitted that after conviction if parole or licence is granted for any period, remission in sentence is also granted for that period by the State Government and hence, that period is added while computing the period of sentence served. However, this benefit cannot be given for the parole, short term bail granted before conviction as conviction and sentence were not in existence and there was no question of granting of remission in sentence. Parole is granted before conviction by Court under the provisions of Code of Criminal Procedure whereas, after conviction and sentence parole is granted by the State Government under the provisions contained in U.P.Prisoners' Release on Probation Act. Thus, the paroles granted before and after conviction are entirely of different nature and cannot be put at par for claiming benefit of release. The learned A.G.A. has submitted that on 26-1-1999 the petitioner had not completed 25 years sentence, hence he is not entitled for the benefit of Government Orders.
6. We have thoroughly considered the submissions of the learned A.G.A. and we find force in the submissions. The person serving sentence under a Court's judgment order is granted parole or licence under the U.P. Prisoners' Release on Probation Act (U.P. Act No. VIII of 1938). Section 4 of the Act provides that the period of release is to be reckoned as imprisonment for computing period of sentence served. Section 4 is being reproduced below :
The period during which a person is absent from prison under the provisions of this Act on a licence which is in force shall be reckoned as part of the period of imprisonment to which he was sentenced, for the purpose of computing the period of his sentence and for the purpose of computing the amount of permission of sentence which might be awarded to him under any rules in force relating to such remissions.
7. There is no provision in the law under which parole granted to an under trial before his conviction and sentence may also be computed in period of imprisonment which may be given set off under Section 428 Cr.P.C. The set off under Section 428 Cr.P.C. can be claimed only in respect of the period during which person concerned was in actual detention. The release of an under-trial on the short-term bail, parole or release on ball is altogether different from the parole or licence granted after conviction. In earlier case, as there was no sentence which could be served out, grant of remission of such period could not be even imagined. Hence, petitioner's claim that he is entitled for set off in respect of period during which he was on parole before conviction cannot be legally accepted. As the petitioner had not completed 25 years sentence on 26th January 1999, he is not entitled for the relief claimed.
8. For the reasons stated above, both the petitions are dismissed.
9. A copy of this order shall be given to the learned A.G.A. for service on the petitioner.