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2001 DIGILAW 1013 (PNJ)

Sher Singh v. State Of Haryana

2001-09-13

M.L.SINGHAL

body2001
Judgment M.L.Singhal, J. 1. Through this criminal misc. petition filed under Section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of Indian Sher Singh-petitioner has prayed for his premature release from jail. It is alleged by him in this criminal misc. petition that he was convicted and sentenced to under go imprisonment for life for committing murder of a woman in case FIR No. 215 dated 19.9.1998 registered under Section 302 IPC at Police Station, Mohindergarh on 4.2.1989 by the Sessions Judge, Narnaul. He has undergone actual sentence of 11 years, 2 months and has earned remissions of 4 years and 8 months. His conduct in jail has through out been good. Petition filed criminal misc. petition No. 11291-M of 1999 under Article 226/227 of the Constitution of India readwith Section 482 Cr.P.C. for his premature release and in compliance with the direction of this Court in the said criminal misc. petition, the case of the petitioner for his premature release was considered and it was ordered that the case of premature release of the petitioner would be considered when he completes 14 years of actual sentence and 20 years total sentence including remissions and held that the case of the petitioner falls in para 2(a) of the Haryana Government Instructions for premature release of life convicts dated 4.2.1993 as amended in 1997, Government of Haryana passed order Annexure P-1 whereby it was held that his case for premature release is governed by para 2(a) of the instructions dated 4.2.1993 as amended in 1997 and he will be considered for premature release as and when he completes 14 years actual sentence including undertrial period and 20 years total sentence including remissions, minus parole period. It is alleged that criminal misc. petition No. 11291-M of 1999 was in fact a writ in the nature of habeas corpus petition. A fellow prisoner named Satdev son of Dalle Ram who was lying confined in the same jail was ordered to be release prematurely under para 2(b) of the Government Instructions dated 4.2.1993 on 11.10.1999 who was also indicated for the murder of a woman and his case for premature release became due on 22.4.1999 whereas the case of the petitioner became due on 4.2.1999 for premature release. Not only Satdev, many other convicts who filed petitions in this Court for their premature release were held entitled to premature release because of instructions dated 4.2.1993. It was held that the policy which was in force on the date of conviction of the prisoner would govern the case of the prisoner for his premature release. 2. State of Haryana filed SLP in the Honble Supreme Court of India. Before any decision could be taken by the Honble Supreme Court, State of Haryana conceded that the instructions dated 4.2.1993 would be applicable to their cases. The order dated 26.2.1999 passed by the Honble Supreme Court is Annexure P-2. The prisoners mentioned in Annexure P-2 were thus given back door pass-port to save themselves from the clutches of arbitrary policy of 1997 by the Haryana Government which is not based on rational criteria. It is alleged that the Government should not be discriminatory in its behaviour. It should not be selective when it is distributing its largesse. 3. Section 433-A of the Code of Criminal Procedure which lays down 14 years inside the jail mandatory for a life convict, does not come in the way of constitutional provision under Article 161. In Maru Ram v. Union of India, AIR 1980 SC 2147, it was held that the powers under Article 161 for premature release of life convicts would be exercised in the true sense by the Government of a State, as Governor being a signatory head. It was also held that such policy would be applied uniformly and without political vendetta. 4. At the time when the State Government made a commitment before the Honble Supreme Court, the policies of 1993, 1997 and 1998 were in force. Thus, by this action of the State, the policies of 1997 and 1998 became redundant as the State owed a moral duty towards its citizens not to discriminate people from others similarly situated. It is alleged that he is entitled to be governed by 1993 instructions para 2(b) in the matter of premature release. He is not governed by the subsequently amended instructions. A continuance wrong is being done to him by keeping him incarcerated after 26.2.1999 when the State Government had made commitment before the Honble Supreme Court that the policy of 4.2.1993 would be applicable to the cases of persons who were respondents in these appeals. 5. He is not governed by the subsequently amended instructions. A continuance wrong is being done to him by keeping him incarcerated after 26.2.1999 when the State Government had made commitment before the Honble Supreme Court that the policy of 4.2.1993 would be applicable to the cases of persons who were respondents in these appeals. 5. Respondent-State of Haryana contested this prayer urging that in compliance with the order dated 31.5.1999 passed by this Court in Crl. Misc. No. 11291-M of 1999, his case was considered but he was not eligible to be released prematurely under the instructions dated 4.2.1993 as amended in the year 1997 because under the instructions dated 17.7.1997 "murder of a woman" falls under para 2(b) and such cases can be considered after completion of 14 years of actual sentence including undertrial period and after earning atleast 6 years remissions. As such, this petition is liable to be dismissed on this score. The case of the petitioner was rightly rejected. Convict Satdev was released prematurely in compliance with the order of this Court passed in criminal misc. petition No. 10607-M of 1998. 6. In criminal appeals Nos. 44 of 1994, 503 of 1999, 9 of 1998 and 10 of 1998 the Honble Supreme Court held that the matter of premature release of convicts will be governed by the latest instructions. Petitioner has to under go actual period of 14 years excluding remission. His case of premature release was decided as per the instructions dated 4.2.1993 as amended in the year, 1997 in view of the orders passed by this Court in criminal misc. petition No. 11291-M of 1999. 7. I have heard the learned counsel for the petitioner, learned AAG, Haryana and have gone through the record. 8. As per para 2(b) of 1993 instructions all adult life convicts would be entitled to premature release whose cases are not covered under para 2(a) and who have committed crimes which are not considered heinous as including mentioned in the clause (a). Their cases may be considered after completion of 10 years of actual sentence including undertrial period, provided that the total period of such sentence including remissions is not less than 14 years. Their cases may be considered after completion of 10 years of actual sentence including undertrial period, provided that the total period of such sentence including remissions is not less than 14 years. As per para 2(c) of 1993 instructions, juvenile life convicts below the age of 18 years at the time of commission of offence and female life convicts are entitled to be considered for premature release after completion of actual sentence of 8 years including undertrial period provided that the total period of such sentence including remissions is not less than 10 years. 9. As per para 2(a) of 1993 instructions, convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime such as murder with wrongful confinement for extortion/robbery, murder with rape, murder while in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant woman or murder after abduction or kidnaping, murder on profession hired basis, murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from judgment of sentence, persistent bad conduct in the prison and those who cannot for some definite reason be prematurely released without danger to public safety or convicts who have been imprisoned for life under section 120B IPC or life convicts who have been imprisoned for life second time under the NDPS Act or for any offence, may be considered after completion of 14 years of actual sentence including undertrial period/detention and after earning atleast 6 years remissions. 10. Learned counsel for the petitioner submitted that the murder of a woman was not included in 1993 instructions while illustrating what "heinous crime" is. Such inclusion of murder of a woman while illustrating heinous crime in the subsequent instructions is discriminatory. It was submitted that viewing the murder of a woman differently from the murder of a man is also discriminatory. It was submitted that there can be instances where the murder of a man can be termed "heinous" when it is cruel, calculated and barbaric. It was submitted that in the instructions do 4.2.1993 as amended on 17.7.1997 while illustrating "heinous crime" in para 2(a) of the instructions murder of a woman was included. 11. When the petitioners case for premature release matured for consideration, 1997 instructions had come into force. It was submitted that in the instructions do 4.2.1993 as amended on 17.7.1997 while illustrating "heinous crime" in para 2(a) of the instructions murder of a woman was included. 11. When the petitioners case for premature release matured for consideration, 1997 instructions had come into force. As per 1997 instructions murder of a woman has to be viewed with more seriousness than the murder of a man and a person convicted of the murder of a woman and sentenced to imprisonment for life cannot ask for premature release unless he has completed 14 years of actual sentence including undertrial period/detention and after earning atleast 6 years remissions. There is logic in the inclusion of the murder of a woman in para 2(a) of 1993 instructions as amended on 17.7.1997. Woman is looked upon with veneration in our society. She is viewed as "Laxmi" in our society. She is viewed as a weak creature always requiring male protection. When she is a child, she is required to be protected by her father. When she is young, she is required to be protected by her husband. When she is old, she is required to be protected by her sons. 12. There is another logic behind the inclusion of the murder of a woman in 1993 instructions as amended on 17.7.1997 namely that after 4.2.1993 there may have been increase in the murder of women in Haryana. Murder of woman was therefore included in the category of heinous crime. 13. Faced with this position, learned counsel for the petitioner submitted that murder is murder. Every murder is heinous inasmuch as it snuffs out human life. No body has the right to take anothers life. 14. It would bear repetition that murder of a woman was advisedly included in para 2(a) of 1993 instructions as amended on 17.7.1997 in view of the cultural heritage of our society inherited by us from hoary past. 15. In my opinion, instructions dated 4.2.1993 as amended on 17.7.1997 vide instruction Annexure P-4 are quite constitutional. These do not introduce any discrimination so far as the murder of a man vis-a-vis the murder of a woman is concerned as murder of a woman has to be viewed differently vis-a-vis the murder of a man. 15. In my opinion, instructions dated 4.2.1993 as amended on 17.7.1997 vide instruction Annexure P-4 are quite constitutional. These do not introduce any discrimination so far as the murder of a man vis-a-vis the murder of a woman is concerned as murder of a woman has to be viewed differently vis-a-vis the murder of a man. The Honble Supreme Court in Maru Ram v. Union of India, (1991)1 SCC 107 observed that "even if the remissions earned have totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoner cannot claim his liberty. The reason is that life sentence is nothing less than life long imprisonment. Moreover, the penalty then and now is the same life term. And remission vests no right to release when the sentence is life imprisonment. Nor is any vested right to remission cancelled by compulsory 14 years jail life once we realise the truism that life sentence is a sentence for a whole life. For the reasons given above, this criminal misc. petition fails and is dismissed.