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Himachal Pradesh High Court · body

2000 DIGILAW 213 (HP)

JAGTAR SINGH v. STATE OF H. P.

2000-08-07

M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.—The petitioner who is undergoing life imprisonment under Section 302 read with Section 34 of the Indian Penal Code, by this petition claims his premature release inter alia on the following grounds: (i) that he was below 20 years of age at the time of commission of the offence; (ii) that he has already undergone more than 14 years of imprisonment including remission/parole period; and (iii) that during his incarceration his conduct and behaviour had been good, 2. The respondent State has failed to file any reply to the petition but the records relating to the rejection of the case of the petitioner for premature release have been produced. It appeals that the case for premature release of the petitioner was rejected on the grounds (i) that he had served out sentence of less than 14 years, and (ii) that the Superintendent of Police and the Deputy Commissioner concerned have not recommended his premature release on the ground that he can commit another offence against the aggrieved family. 3. I have heard the learned Counsel provided to the petitioner at State expenses and the learned Additional Advocate General and have also perused the records. 4. Section 433-A of the Code of Criminal Procedure provides as follows : "433-A. Restriction on powers of remission or commutation in certain cases.—Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been com muted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." 5. A bare reading of the above provisions make it clear that a convict who has been sentenced to life imprisonment for an offence for which death is one of the punishments provided by law or where the sentence of death awarded to the convict has been commuted into one of life imprisonment, such convict shall not be released from prison unless he has served at least fourteen years of imprisonment. Thus Section 433-A of the Code of Criminal Procedure imposes restrictions on the powers of the Government mandating that the prisoners as specified therein shall not be released by it in exercise of powers under Section 432 of the Code of Criminal Procedure unless they have served at least 14 years of imprisonment. Thus, Section 433-A being a specific provision will have precedence over any local or special law to the contrary. Therefore, if there is a scheme or policy which is violative of the provisions of Section 433-A, the provisions of the Section will prevail in view of the provisions of Section 5 of the Code of Criminal Procedure. 6. The above conclusion is fully supported in view of the ratio in case Maru Ram v. Union of India, AIR 1980 SC 2147, wherein the Honble Apex Court held as under: "38.....A thing is specific if it is explicit. It need not be express. The antithesis is between specific and indefinite or ominibus and between implied and express. What is precise, exact, definite and explicit, is specific. Sometimes, what is specific may also be special but yet they are distinct in semantics. From this angle, the Criminal Procedure Code is a general Code. The remission rules are special laws but Section 433-A is a specific, explicit, definite provision dealing with a particular situation or narrow class of cases, as distinguished from the general run of cases covered by Section 432 Cr.P.C. Section 433-A picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment. It follows that Section 433-A applies in preference to any special or local law because Section 5 expressly declares that specific provisions, if any, to the contrary will prevail over any special or local law. We have said enough to make the point that specific is specific enough and even though special to specific is near allied and thin partition do their bounds divide the two are different. Section 433-A escapes the exclusion of Section 5." 7. The petitioner has been convicted under Sections 302/34 of the Indian Penal Code and thus for an offence for which one of the punishment provided by law is death. Therefore, his case for premature release could be considered only after he has served imprisonment of at least 14 years. 8. Section 433-A escapes the exclusion of Section 5." 7. The petitioner has been convicted under Sections 302/34 of the Indian Penal Code and thus for an offence for which one of the punishment provided by law is death. Therefore, his case for premature release could be considered only after he has served imprisonment of at least 14 years. 8. It was contended by the learned Counsel for the petitioner that the petitioner had already served more than 14 years of imprisonment at the time of moving his case for the premature release, but the decision making authority did not compute the period of parole towards the period of imprisonment. 9. It is well settled that life imprisonment is life long imprisonment and a convict does not acquire a right by earning remission for his premature release unless rules/guidelines/scheme are framed by the State Government for premature release of the convicts. However, once the Rules/Scheme/Guidelines are framed by the State Government for premature release of the convicts, it is obligatory f on the part of the Government to examine the cases for such release in accordance with such Rules/Guidelines/Scheme. It is. only at the stage of examining such cases that the question as to how the period of imprisonment served by—the convict is to be calculated, will arise. 10. The State Government of Himachal Pradesh has admittedly formulated a scheme for premature release of prisoners called "Policy Regarding Premature Release of Prisoners" which lays down the norms prescribed for premature release of the prisoners. 11. The petitioner has been sentenced to imprisonment for life under Section 302/34 of the Indian Penal Code for which one of the sentence provided by law is death. Therefore, the relevant part of the scheme which will apply to his case reads as follows: "(i) The cases of premature release of prisoners should be sent to the Government after they have undergone 10 years of actual sentence and 14 years of sentence including remissions under para 516-B of the Punjab Jail Manual; and under the aforesaid para cases of female prisoners and of male prisoners under 20 years of age at the time of commission of offence should be referred to Government when they have undergone 8 years of actual sentence and ten years of sentence including remissions, subject to the following conditions: (a) Conduct of the prisoner during the imprisonment remained good. (b) The prisoner has committed no jail offence. (c) The prisoner has returned from parol and furlough granted to him punctually/ 12. It is evident from the above quoted norms that for its application it divides the convicts into two distinct classes viz. (i) female prisoners and male prisoners under 20 years of age at the time of commission of the offence, and (ii) male prisoners other than those specified in (i) supra. In the case of the former class, the case for considering the premature release is required to be initiated when the prisoner has served 8 years of actual sentence and 10 years of sentence including remission and in the later class on completion of 10 years of actual imprisonment and 14 years of imprisonment inclusive of the remissions. Thus the scheme providing for premature release of a woman prisoner and a male prisoner who was below 20 years of age at the time of commission of the offence only on having served imprisonment for a term of 10 years inclusive of remissions earned under para 516-B of the Punjab Jail Manual is contrary to the provisions of Section 433-A supra, therefore, the legality of this part of the Scheme is not beyond doubt. No considered opinion, however, need be recorded here for the purpose of the present case and can be dealt with in future in an appropriate case. 13. Even it need not be decided for the purpose of this case whether parole period is to be counted towards the "imprisonment undergone" or not as the petitioner has completed fourteen years of imprisonment including the remissions earned in May 2000 for the purpose of his claim for premature release. The ground to reject his claim for want of the requisite period of served imprisonment as under Section 433-A of the Code of Criminal Procedure has thus been rendered non-existent by efflux of time. 14. The other ground for rejection of the case appears that the Superintendent of Police has reported that the petitioner ma) commit offence against the aggrieved family and this report was agreed to by the Deputy Commissioner. Be it stated that the case of the petitioner was to be considered in view of the conditions (a) to (c) as specified in para 1 of the Scheme. Be it stated that the case of the petitioner was to be considered in view of the conditions (a) to (c) as specified in para 1 of the Scheme. No attention appears to have been given by the Government to the conduct record of the petitioner while in jail and during the period when he remained on parole. Non-consideration of these aspects based on the requisite conditions for release has thus vitiated the order of the Government rejecting the claim of the petitioner for premature release. 15. As a result, the State Government is directed to reconsider the case of the petitioner for premature release in accordance with conditions (a) to (c) of para 1 of the scheme referred to above and the observations thereon made here-in-above and dispose it of within fifteen days of the receipt of a copy of this order. 16. The petition stands disposed of in terms of the above orders. 17. A copy of this order be sent to the State Government for necessary action and a copy be sent to the Superintendent of the concerned jail for information of the petitioner. Petition disposed of.