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2001 DIGILAW 886 (PNJ)

Parveen Kumar v. State Of Haryana

2001-08-21

M.L.SINGHAL

body2001
Judgment 1. Through this Criminal Misc. Petition filed by Parveen Kumar-petitioner under Articles 226/227 of the Constitution of India, he has prayed for the grant of conditional release on licence under Section 2 of Good Conduct Prisoners Probational Release Act, 1926 read with Rules of 1927. 2. FACTS :Parveen Kumar-petitioner, his father, mother and sister were tried for offence under Sections 498/A, 307 and 406 read with Section 34, IPC registered at PS Civil Lines, Rohtak, vide order dated 9-10-1996, he was convicted and sentenced to undergo RI for 3 years and to pay fine of Rs. 500/- under Section 498-A, IPC, RI for 7 years and to pay fine of Rs. 500/- under Section 307, IPC and RI for 2 years and to pay fine of Rs. 500/- under Section 406, IPC by Additional Sessions Judge, Rohtak. He acquitted his father, mother and sister. He went in appeal, which was dismissed by this Court vide order dated 12-8-1998. Thereafter, he filedSLP to the Hon ble Supreme Court, which was dismissed in limine. He is presently lying confined in District Jail, Rohtak. At the relevant time i.e. in the year, 1991, when this occurrence took place, he was working as Officer in the Central Bank of India. It is stated that he is innocent but was found guilty, which was his bad luck. After his involvement in this case, he has undergone sentence as under : Year Month Days i) As an undertrial prisoner from 17-11-91 to 13-1-92 0126 ii) Period spent after conviction from 9-10-96 to 19-10-96 0010 iii) From 29-9-98 to 25-4-2001 2626 iv) Actual sentence undergone 2902 v) Remission granted by the Govt. as well as Jail Authorities on account of petitioners good conduct 0500 3202 3 He has remained on parole for three occasions. During the period, he was on parole, he was not involved in any untoward incident. His conduct has throughout been good. Now, he is on parole. He is undergoing 7 years imprisonment in District Jail, Rohtak, while undergoing sentence, he has maintained good conduct in jail. He has not committed any jail offence. From his conduct in the prison as well as his antecedents, he is likely to abstain from crime and lead useful and industrious life if he is released from prison. His case is fully covered under the Good Conduct Prisoners Probational Release Act, 1926 and the rules made thereunder. He has not committed any jail offence. From his conduct in the prison as well as his antecedents, he is likely to abstain from crime and lead useful and industrious life if he is released from prison. His case is fully covered under the Good Conduct Prisoners Probational Release Act, 1926 and the rules made thereunder. This Act received the assent of the Government of Punjab on 21-7-1992 and that of the Governor General on 16-8-1926. It was published in official gazette dated 27-8-1926. This Good Conduct Prisoners Probational Release Act, 1926 was brought into existence to provide for the conditional release from prison of good conduct prisoners in certain cases before the completion of the term of imprisonment to which they had been sentenced. Previous sanction of the Governor General under sub-section (3) of Section 80-A of the Government of India Act had also been obtained before its publication/bringing into force. This Good Conduct Prisoners Probational Release Act, 1926 was sought to remove from jail influences those prisoners whether adolescent or adult, whose antecedents or conduct while under restraint give promise that they will justify the privilege of conditional release with opportunities of earning their own livelihood and of having their families with them. He has prayed for his conditional release on licence under Section 2 of the Good Conduct Prisoners Probational Release Act, 1926 read with Rule 9 of the Good Conduct Prisoners Probational Release Rules, 1927. By virtue of Punjab Re-organisation Act, 1966 particularly Section 89 thereof the provisions of the Good Conduct Prisoners Probational Release Act, 1926 and the rules of 1927 have become automatically applicable to State of Haryana as the State of Haryana has not made any modification/alteration/amendment in the said provisions nor the State of Haryana has amended the provisions by a competent legislature or other competent authority. The provisions have thus become applicable to all those convicts who are under-going sentence in Haryana after 1-11-1966. It is stated that the petitioner fulfils the eligibility conditions as mentioned in Rule 9 of the 1927 Rules. A person convicted under Sections 498-A and 406, IPC is fully eligible for the grant of probational release. The benefit of probational release was not extended to him as his case was not forwarded to the competent authorities for the grant of probational release. He filed Criminal Misc. A person convicted under Sections 498-A and 406, IPC is fully eligible for the grant of probational release. The benefit of probational release was not extended to him as his case was not forwarded to the competent authorities for the grant of probational release. He filed Criminal Misc. No. 21961-M of 2000, which was listed for motion hearing on 12-7-2000. In the said petition, the State Government filed written statement mentioning therein that the petitioner has committed heinous crime of burning his wife for dowry and that hewas not entitled to be released under the Good Conduct Prisoners Probational Release Act, 1976. The State also took the plea that Section 498-A has not been included in Rule 9 of the Good Conduct Prisoners Probational Release Act, 1926. This section was inserted in the year, 1986. The offence committed under Section 307/406, IPC is much more serious than majority of the offences. The said petition was listed for final hearing on 16-1-2001 and this Court found the petitioner entitled to the consideration of his case. Direction was given to the State of Haryana for considering his case and pass appropriate order within two months of receipt of copy of this order. On 22-3-2001, State of Haryana vide order Annexure P-5 denied the grant of probational release on licence to the petitioner under the Good Conduct Prisoners Probational Release Act, 1926. Order Annexure P-5 is wholly arbitrary, illegal and whimsical and he deserves to be released under the Good Conduct Prisoners Probational Release Act, 1926 on usual terms and conditions. In re : Sunder Lal V/s. State of Haryana, vide order Annexure P-7 this Court directed State of Haryana to re-consider the representation of Sunder Lal in the light of the observations made thereunder and to pass fresh orders. Sunder Lal was a convict under Sections 498-A/304-B, IPC. 4. It is stated that the perusal of order Annexure P-5 dated 28-3-2001 will reveal that ground of rejection of the petitioners case is that he has undergone only three years, one month and 28 days total sentence including under-trial period and remissions as on 12-2-2001, whereas sentence imposed upon him was 7 years. Authorities found that the aforesaid period was insufficient sentence for the purpose of probational release, The conclusion drawn by the authorities is wholly irrelevant and arbitrary. Authorities found that the aforesaid period was insufficient sentence for the purpose of probational release, The conclusion drawn by the authorities is wholly irrelevant and arbitrary. As per the Good Conduct Prisoners Probational Release Act, 1926 and the Good Conduct Prisoners Probational Release Rules, 1927 the convicts who have been sentenced to imprisonment for a term exceeding three years are required to undergo 8 months of actual sentence. He was thus required to undergo only 8 months of sentence before he could claim probational release under this Act, whereas he has already undergone more than 3 years 1 month and 22 days total sentence inclusive of undertrial period and remissions as on 12-2-2001. The reason given in the order Annexure P-5 is that he has not spent much time in jail which could be sufficient to draw an inference that he would not commit the crime while outside the jail, which is not sustainable. As per the conditions of release, petitioner was required to undergo 8 months, of sentence of imprisonment in prison, instead of 8 months he has under- gone more than 8 years sentence. During this period, he has remained on parole on a number of occasions. During the period, he remained on parole, he maintained good conduct. He maintained good conduct in jail also. 5. State of Haryana contested this petition. It was urged that the case of the petitioner was considered by the government/competent authority. It was rejected after applying free judicious mind. He is not entitled to invoke extra ordinary jurisdiction of this Court because no legal right of the petitioner has been infringed. It was admitted that his case falls within Rule 9 of the Good Conduct Prisoners Probational Release Rules, 1927. His case was considered and rejected by the competent authority on the ground that he had not spent so much time in jail which could be sufficient to warrant an inference that he would not commit crime again. 6. It was submitted by the learned counsel for the petitioner that one Sunder Lal was convicted and sentenced under Sections 498-A/304-B, IPC to undergo RI for 7 years and his case for probational release under the Act of 1926 read with Rules of 1927 was rejected by the State of Haryana. He came in Crl. Misc. 6. It was submitted by the learned counsel for the petitioner that one Sunder Lal was convicted and sentenced under Sections 498-A/304-B, IPC to undergo RI for 7 years and his case for probational release under the Act of 1926 read with Rules of 1927 was rejected by the State of Haryana. He came in Crl. Misc. No. 13697-M of 1999 to this Court in which order Annexure P-7 was passed whereby the order rejecting his probational release under the Act of 1926 read with Rules, 1927 was set aside on the ground that Sections 304-B and 498-A, IPC are not included in Rule 9(a)(i) and therefore the prayer for probational release under the Act of 1926 read with Rules of 1927 could not be rejected. It was submitted that pursuant to the order passed in Criminal Misc No. 13697-M of 1999 by this Court, the claim of Sunder Lal for probational release under the Act and the rules framed thereunder was considered and he was allowed probational release on certain conditions incorporated in the order of probational release. It was submitted that the petitionerwas discriminated by the State of Haryana. The State of Haryana should have applied the same yardstick in his case as it had applied in the case of Sunder Lal. It was submitted that the only reason given for rejection of the petitioners claim to probational release under the Act is that he has not undergone sufficient sentence in the jail so that it could be inferred that he has not committed any crime in jail and that he would not commit crime again after his probational release. 7. Section 2 of the Act lays down as follows : "Power of Government to release by licence conditions imposed by it :Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (V of 1898) when a person is confined in prison under sentence of imprisonment and it appears to the State Govt. 7. Section 2 of the Act lays down as follows : "Power of Government to release by licence conditions imposed by it :Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (V of 1898) when a person is confined in prison under sentence of imprisonment and it appears to the State Govt. from his antecedents or his conduct in the prison that he is likely to abstain from crime and lead useful and industrious life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or a secular institution or of a person or society, named in the license and willing to take charge of him". 8. 8. Rule 9 of the Rules, 1927 lays down as follows : "Classes of offenders not eligible for conditional release :The following classes of offenders shall not be eligible for conditional release under the Act :(a) Persons who have been convicted for offences under the following Act, or provisions thereof :- (i) Chapters VI and VII, Section 216-A, 302, 303, 311, 328, 364, 376, 377, 382, 386 to 389, 392 to 402, 413, 455 to 460 of the Indian Penal Code.(ii) The Indian Criminal Law Amendment Act, 1908.(iii) The Explosive Substances Act, 1908.(iv) The Prevention of Corruption Act, 1947.(v) The Prevention of Food Adulteration Act, 1954.(vi) The Drugs and Cosmetics Act, 1940.(vii) Offences of Criminal conspiracy as defined in Section 120-A of the Indian Penal Code in so far as it relates to any of the offences mentioned in sub-clause (i) or under the Acts mentioned in sub-clauses (ii), (iii), (v) and (vi) above.(b) Except in the case of prisoners committed to prison on default of furnishing security, prisoners, the unexpired term of whose term of imprisonment is less than six months.(c) Prisoners who have been sentenced to imprisonment for a term of exceeding three years and have not completed 8 months of their sentence of imprisonment in prison.Note- The prohibition in Clause (c) shall not apply to a prisoner whose age on the date of his latest sentence was not above 21 years.(d) Prisoners, who have been convicted of an offence, under Section 7 of the Act, or whose license has been previously revoked on account of a breach of the conditions of the license." 9 It is thus clear that the persons who have been convicted for offences as mentioned in Rule 9(a)(i) to (vii) are not entitled to conditional release under this Act. 10. It is submitted by the learned counsel for the petitioner that a person sentenced to imprisonment under Sections 307/498-A/406, IPC is not excluded from claiming conditional release under this Act as if such a person was to be excluded from the benefit of conditional release, the legislature would have inserted Sections 307, 498-A and 406, IPC also in Rule 9(a)(i) of the Rules. 11. In my opinion, the submission made by the learned counsel is correct as the duty of the Court is to give effect to the intention of the legislature. 11. In my opinion, the submission made by the learned counsel is correct as the duty of the Court is to give effect to the intention of the legislature. The duty of the Court is not to say what was not intended by the legislature. Parveen Kumar could thus lay claim to conditional release in view of Rule 9(c) of the 1927 Rules as he has been sentenced to a term of 7 years imprisonment out of which he has suffered more than 3 years imprisonment. The requirement of Rule 9(c) is that those persons who have been sentenced to imprisonment for a period exceeding three years but have not completed 8 months of their sentence of imprisonment in prison shall not be eligible for conditional release. He is entitled to consideration of his claim because he has suffered more than three years sentence in prison so far. 12. For the reasons given above, this criminal misc. petition is allowed. The impugned order Annexure P-5 is quashed and the respondents are directed to reconsider his case for conditional release under Section 2 of the Good Conduct Prisoners "Probational Release Act, 1926 read with the Good Conduct Prisoners" Probational Release Rules, 1927 with three months of the receipt of copy of this order.