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2001 DIGILAW 91 (HP)

BALWINDER SINGH v. STATE OF H. P.

2001-05-17

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.—The reliefs claimed by the petitioner in this petition are (i) that the order passed by respondents 1 and 2 rejecting the case of the petitioner for premature release may be held wrong, illegal, arbitrary, discriminatory, violative of the policy of the Government and may be set aside and quashed and (ii) that the respondents be directed to consider the case of the petitioner for premature release and pass appropriate orders regarding his premature release. 2. The case of the petitioner is that he is undergoing life imprisonment awarded to him in a case under Sections 302/34 IPC in Open Air Jail, Bilaspur. He has already completed more than 14 years of sentence including parole and remission earned by him on the basis of his good conduct. At the time of the commission of the offence, he was below 20 years of age without any bad antecedents. It is further claimed that during his incarceration, his conduct and behaviour had been good. It is further case of the petitioner that premature release cases of convicts under 20 years of age at the time of the commission of the offence should be referred to the Government for consideration of premature—release after 8 years of actual sentence and 10 years including parole and remission. However, the petitioner was called upon to represent his case for premature release after four years of the relevant time and his case for release has been rejected solely on the ground that he has not completed 14 years term in the prison. 3. The present petition has been resisted by the respondents on the ground that the petitioner has not completed 14 years of actual imprisonment excluding parole, therefore, he is not entitled for premature release. In their reply, the respondents have denied that the conduct of the petitioner has been to the entire satisfaction of the Jail authorities and even disciplinary action had to be taken against him for surrendering 20 days late from parole and that the case of the petitioner was considered by the Government in the light of the premature mature release policy and the provisions of the Code of Criminal Procedure and was rejected as it did not fall within the purview of these provisions. 4. 4. I have heard the learned Counsel for the petitioner and the learned Assistant Advocate General for the respondents and have also gone through the record. 5. It is not disputed that the State Government of Himachal Pradesh has formulated a Scheme for premature release of prisoners called "Policy Regarding Premature Release of Prisoners" and it has been circulated to the Inspector General of Prisons vide communication dated 2.8.1983. It is also not in dispute that the petitioner has been sentenced to life imprisonment under Sections 302 read with Section 34 IPC, for which one of the sentences provided by law is death. As per the matriculation certificate, copy whereof is placed on record, the date of birth of the petitioner is 9.3.1971 and he had been admitted convicted in a Sessions Trial registered in the Court of Sessions Judge in the year 1990. Evidently, at the time of commission of the offence, accused was below 20 years of age. Even otherwise, the petitioner has claimed that he is younger brother of Jagtar Singh, a co-convict, who was also under 20 years of age at the time of the commission of the offence and has already been prematurely released. These averments in the petition are not specifically denied in the corresponding paras of the reply. 6. The relevant part of the Scheme which will apply to the case of the petitioner 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 10 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 parole and furlough granted to him punctually.” 7. It is evident from the above quoted norms that for its application, para (i) supra divides the convicts into two distinct classes viz. (b) The prisoner has committed no jail offence. (c) The prisoner has returned from parole and furlough granted to him punctually.” 7. It is evident from the above quoted norms that for its application, para (i) supra divides the convicts into two distinct classes viz. (i) female prisoners and male prisoners under 20 years of age at the time of the commission of the offence and (ii) male prisoners other than those specified in (i) supra. In the case of female prisoners and male prisoners under 20 years of age at the time of commission of the offence, their cases, as per the scheme, should be referred to the Government when they have undergone 8 years of actual sentence and 10 years of sentence including remissions subject, no doubt, to the other conditions regarding conduct of the prisoner as specified in the Scheme. 8. It is evident from the reply of the respondents that the petitioners case has been rejected on the ground that he has not completed 14 years of actual imprisonment excluding parole and as such is not entitled for premature release. It is the case of the petitioner that on the basis of his good conduct he was selected and transferred to Open Air Jail, Bilaspur and was permitted to go outside the jail freely and to work in the open market for the last many years and was granted parole on various occasions and while on parole he has maintained good conduct as is certified by the concerned panchayat. These averments in the petition have also not been specifically denied by the respondents in their reply. Thus, it is clear from the reply submitted by the respondents that the age of the petitioner at the time of the commission of the offence and his undisputed conduct, as claimed by him in his petition, have not been taken into account while rejecting his case. Non consideration of these aspects has, thus, vitiated the order of the Government rejecting the claim of the petitioner for premature release. 9. Be it stated that with its reply, the respondents have enclosed a copy of the judgment rendered by a Full Bench of this Court in Cr.W.P. Nos. Non consideration of these aspects has, thus, vitiated the order of the Government rejecting the claim of the petitioner for premature release. 9. Be it stated that with its reply, the respondents have enclosed a copy of the judgment rendered by a Full Bench of this Court in Cr.W.P. Nos. 47 and 58 of 1995, respectively titled Lal Dhar and others v. State of Himachal Pradesh and Lal Dhar v. State of Himachal Pradesh and others, and on the strength of the said judgment, it has been claimed that a life convict has to undergo 14 years of actual imprisonment before he can claim premature release. Evidently, the said judgment does not pertain to female prisoners and male prisoners who were under 20 years of age at the time of the commission of offence. Therefore, the ratio regarding completion of 14 years of actual imprisonment before consideration of giving the benefit of premature release as laid down therein, will apply only to the cases of the prisoners other than the female prisoners or the male prisoners who were less than 20 years of age at the time of the commission of the offence. 10. This Court in Jagtar Singh v. State of H.P. and others, 2001 (1) Shim. L.C. 343, held as follows : "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 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” 11. Since the State Government of Himachal Pradesh has framed the Scheme/Policy to examine the cases of the prisoners for such release, therefore, such cases are required to be examined strictly in accordance with the said Scheme which has not been shown to have been done in the case of the petitioner. 12. Since the State Government of Himachal Pradesh has framed the Scheme/Policy to examine the cases of the prisoners for such release, therefore, such cases are required to be examined strictly in accordance with the said Scheme which has not been shown to have been done in the case of the petitioner. 12. As a result this petition is allowed and the State Government is directed to reconsider the case of the petitioner for premature release in accordance with para 1 of the scheme referred to above and the observations made hereinabove within 15 days of the receipt of the copy of this order. The petition is accordingly disposed of. 13. A copy of this order be sent to the State Government for necessary action. Petition allowed.