G.S. Bhullar vs Union Of India
1996 Latest Caselaw 1015 Del

JUDGMENT

Jaspal Singh, J.

(1) The petitioner was an officer holding a permanent commission in the Regular Army and was attached to the Rajputana Rifles Regimental Centre. On August 8, 1988 he was charged as follows:

"DESERTING the service, in that he, at Delhi, on 11 Mar 87, absented himself without leave from his unit until apprehended by the civil police on 1 Jan 88"

HEwas, thereupon, tried by General Court Martial which finding him guilty, sentenced him "a) to be cashiered; and b) to suffer rigorous imprisonment for five years"

(2) This was on September 2, 1988. On December 6, 1988 the Chief of the Army Staff confirming the finding and sentence so awarded directed that the sentence of rigorous imprisonment be carried out by confinement in civil prison.

(3) From the material on the record, it appears that as far as the sentence in question is concerned, the petitioner was admitted in Jail on December 6, 1988. After his admission in the civil Jail on December 6, 1988, the petitioner was granted parole from September 9, 1989 to February 9, 1990. However, he did not surrender after the expiry of the parole period and it was only on January 13, 1995 that he was re-arrested.

(4) After having furnished the necessary background, what more needs to be noticed by way of introduction is that the petitioner has filed a lengthy writ petition through Jail seeking reversal of orders passed by the Army Authorities and his reinstatement.

(5) On March 27, 1996 Captain Varender kumar was appointed as amices Curiae to assist the court.

(6) On September 10, 1996 the petitioner moved an application under section 151 claiming that he was under illegal detention and required to be released forthwith. Though the petitioner also made a request for converting the petition "into a criminal one," it appears that this was not pressed before my learned predecessor. Even before me no such request was made.

(7) It is the application referred to above which has led to this order.

(8) Captain Virender Kumar had pressed the application on two grounds. His first contention was that since the petitioner was under suspension from October 1981 to March, 1987 which he termed as "illegal" and was, from December 25, 1987 to June 12, 1988 in Central Jail, Ferozepur, all this period ought to be treated as being part of the sentence undergone. His second contention was that as the petitioner was on parole from September 11, 1989 to February 9, 1990 the benefit of this period alongwith the period from February 10, 1990 to January 10, 1995 when he did not report back for completing jail term, should also go to the petitioner.

(9) As far as the first contention is concerned, I see no force in it. Mere suspension from service for a particular period on the basis of certain charges, cannot be termed as sentence of imprisonment. It is not even "punishment" as defined in Section 53 of the Indian Penal Code. It involves no incarcertaion. No conviction. It does nowhere thus serve the legislative purpose behind awarding of sentence. True, the expression "prison" and "imprisonment" must receive a wider connotation but then suspension was no detention and the law does not regard it as such. To further elaborate, here is the order of suspension dated December 27, 1981. "IC-26092Maj. Gurinder Singh, 2nd Lancers (Gardner's Horse) C/O 56 Apo DISCIPLINE: IC-26092 Major Gurinder Singh Under the provisions of Ra para 346 and based on Deputy Commissioner Police Crime and Rly Delhi letter No. 15515/Crime DA-II of 17 Oct 81, you are hereby suspended from duty with effect from 16 Oct 81. sd/- Ganga Singh) Lt. Col. Comdt."

(10) The suspension, thus, was under Para 346 which says: "SUSPENSION or Arrest of an officer - An officer may be suspended from duty (independent of arrest) by his Cc or any other superior authority, not only when he himself submits his case for investigation, but also in any case in which his character or conduct as an officer and a gentleman is impugned. An officer arrested by the civil authorities on a criminal charge will be suspended from duty from the date of his arrest."

(11) Does it not clearly distinguish between suspension and arrest?

(12) In any case, the suspension was not on account of the charge framed but on account of some criminal case registered by the civil police. How can he claim its benefit in the case in hand?

(13) It is claimed that the petitioner was in Central Jail, Ferozepur from December 25, 1987 to June 12, 1988. But then, he was arrested in connection with a smuggling and drug trafficking case and not as a deserter on request of the Army. The petitioner thus cannot get its benefit.

(14) Coming to the last contention of the learned counsel for the petitioner, Captain Virender Kumar had drawn my attention to the following from the celebrated judgment of the Constitution Bench of the Supreme Court in Maru Ram v. Union of India : "[T]HE expression "prison" and "imprisonment" must receive a wider connotation and include any place notified as such for detention purposes. 'Stone walls and iron bars do not a prison make'; nor are "stone walls and iron bars' a sine qua non to make a jail. Open jails are capital instances. Any life under control of the State, whether within the high-walled world or not, may be a prison if the law regards it as such. House detentions, for example. Palaces, where Gandhiji was detained, were prisons. Restraint on freedom under the prison law is the test. Licensed releases where instant capture is sanctioned by the law, and, likewise, parole, where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment."

(15) Does, what has been observed in Maru Ram's case and as reproduced above, mean that in the case in hand the petitioner must get the benefit of parole period from September 11, 1989 to February 19, 1990? Ofcourse, I am not detaining myself on the second limb of the contention which relates to the period February 10, 1990 to January 10, 1995 as the petitioner was not on parole during this period. He was to surrender on February 10, 1990 but failed to do so till January 10, 1995 and thus, for this period, even if the argument advanced with regard to parole period is accepted, he was neither in "prison" nor "imprisonment". It cannot thus be considered to be a period of detention. But then, what about the period from September 11, 1989 to February 9, 1990 when he was actually on parole?

(16) Maru Ram's judgment (supra} came up for consideration before a Division Bench of the Himachal Pradesh High Court in Karam Singh v. State of H.P. 1993 Cri Lj 3751. Relying upon the observations of the Constitution Bench and as reproduced by me above, the Division Bench said: "IT is undeniable that while a person is released on parole certain conditions are to be on him. He is not a free bird. He is to abide by these conditions or else face the consequences of the parole licence being cancelled. It cannot, therefore, be said that the parole period is not to be counted for the actual period of 14 years imprisonment to be served by a prisoner under Section 433-A of the Code of Criminal Procedure. As already noticed, the question of inclusion of parole period for the purpose of counting total period of imprisonment suffered by the prisoner is no longer controversial or of doubtful nature. The benefit of this period has to be given."

(17) It may be noticed that while arriving at the above-noted conclusion the Himachal Pradesh High Court sought to draw force from a judgment of the Madhya Pradesh High Court in Babupahalwan v. State of Madhya Pradesh 1990 Crl Lj 2704. It appears from the passages quoted from the said judgment that the benefit of release under the Prison Rule 358 as well as under an Act of 1954 and the Rules framed thereunder was held available as such release was taken to be "not an absolute release" but subject to "various conditions" on breach of which the convict could be "recommitted to prison again to serve out his remaining sentence."

(18) As would be apparent, while in the case from Madhya Pradesh the release was found to be subject to various conditions, in the case before the Himachal Pradesh High Court, the Court proceeded on the assumption (if I may say so, with respect) that: "It is undeniable that while a person is released on parole certain conditions are to be on him." Thus in both these cases conditions were either proved or assumed. I am laying emphasis on this because I do feel that the presence or absence of conditions would have a great bearing. I say so because as per Maru Ram also "restraint on freedom under the prison law is the test" and even in the case of parole, benefit may be available only where "the parole is no free agent".

(19) In Ashok Kumar v. Union of India , the learned counsel for the petitioner had raised a hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of Section 433A of the Code? And, the Court said: "IT is difficult and indeed not advisable to answer such a hypothetical question without being fully aware of the nature of conditions imposed for release."

(20) Thus, the answer lies in the nature of the conditions imposed.

(21) Were any conditions imposed while ordering the release of the petitioner on parole? Here is the order passed by a Division Bench of this court on August 14, 1989: "THE petitioner will be released on parole for a period of two months subject to his furnishing a personal bond in the sum of Rs.5,000.00 with one surety of the like amount to the satisfaction of C.M.M., Delhi. Upon the expiry of the parole, the petitioner will surrender to the jail authorities."

(22) I see no condition of a nature which may attract what has been said in Maru Ram's case or in the judgments coming from Himachal Pradesh and Madhya Pradesh. Moreover, it needs to be remembered that the sentence awarded in the case in hand, is for a specified period.

(23) For the reasons recorded above, it cannot be said that the petitioner is in illegal detention. Consequently, the application is dismissed.