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2002 DIGILAW 1120 (PNJ)

Surjan Singh v. State Of Haryana

2002-10-23

R.C.KATHURIA

body2002
Judgment R.C.Kathuria, J. 1. Surjan Singh, petitioner has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code) read with Articles 226/227 of Constitution of India seeking his premature release after having undergone requisite period of sentence and thereby challenging his further detention in Central Jail, Hisar in violation of the provisions of Articles 14, 19 and 21 of the Constitution. 2. A few facts need to be noticed for the adjudication of the present petition. Alongwith his co-accused Karnail Singh and Jarnail Singh, the petitioner was convicted and sentenced under Section 302 read with Section 34 I.P.C. for life imprisonment and sentence of fine of Rs. 500/- each. Separate sentences were also awarded to them under Sections 324, 323/34 and 324/34 I.P.C. by the Additional Sessions Judge, Hisar as per order dated 17.12.1985 in case bearing FIR No. 118 dated 13.11.1984 registered with Police Station, Jakhal. Inder Kaur and Balvinder Kaur, co-accused were acquitted by the trial Court. The conviction of the above named accused was upheld by the High Court. According to the stand of the petitioner, he had undergone the following sentences thereafter :- Y. M. D. i) Period spent in detention before conviction 1 14 ii) Period spent in detention after conviction from 17.12.85 to 17.1.2002 16 1 0 Total : 17 2 4 iii) Plus remissions approximately 5 years 5 0 0 iv) Minus because of bail during the pendency of appeal say 5 years 5 0 0 Total : 17 2 4 3 The petitioner stated that in view of the aforesaid data, he had undergone 10 years of actual sentence and more than 14 years of sentence including remissions. During the period of sentence he had enjoyed parole and furlough for about nine years and had also not committed any jail offence. He had not violated any condition of parole. He claims that he was aged 70 years, when he was sentenced in the year 1985 and is not able to do any work. Karnail Singh and Jarnail Singh co-accused had been released by the State of Haryana after having completed ten years of actual sentence and 14 years of sentence including remissions. He claims that he was aged 70 years, when he was sentenced in the year 1985 and is not able to do any work. Karnail Singh and Jarnail Singh co-accused had been released by the State of Haryana after having completed ten years of actual sentence and 14 years of sentence including remissions. As per policy instructions of the government dated 8.8.2000 (Annexure P-2), his case for premature release was required to be considered by the State Level Committee and despite fulfilling of the requisite conditions in terms of the policy of the State Government, he had not been released and rather he had been informed that after considering his case, his claim had been rejected. It is thereafter, he has sought his premature release on the ground that his case does not fall under the heinous offences and since his co-accused had already been released he cannot be discriminated in the matter of pre-mature release in respect of the same offences and accordingly prayed that necessary appropriate direction be given to the State Government to release him forthwith as per policy instructions of the State Government on the conditions specified therein. 4. In pursuance to the notice given to the respondents, written statement has been filed by Jagjit Singh, Superintendent, Central Jail, Hisar on behalf of the respondents. The factual position as per stand of the State Government has been specified in para 2 of the preliminary objections which read as under :- "2. The premature release case of the petitioner was sent to the Director General of Prisons Haryana Chandigarh for consideration. The Director General of Prisons Haryana Chandigarh has intimated that the premature release case of this life convict/petitioner falls under Section XII of para 2(a) of the Govt. instructions dated 8.8.2000. The premature release case of this life convict will be considered on completion of 14 years actual sentence including under trial period provided that the total period of each sentence including remissions is not less than 20 years." The split of the sentence undergone by the petitioner as on 31.3.2002 is given as under :- Years Months Days 1. Sentence undergone after conviction 06 04 06 2. Sentence undergone after conviction before he was released on bail 02 09 04 3. Undertrial period (+) 01 00 27 10 02 07 4. Remission earned (+) 04 07 06 14 09 13 5. Sentence undergone after conviction 06 04 06 2. Sentence undergone after conviction before he was released on bail 02 09 04 3. Undertrial period (+) 01 00 27 10 02 07 4. Remission earned (+) 04 07 06 14 09 13 5. Parole (-) 00 05 04 14 04 09 As such, the petitioner has not yet undergone the 14 years actual sentence including undertrial period. As and when he completes the requisite sentence, his pre-mature release case will be sent to the Director General of Prisons Haryana Chandigarh for consideration. Hence, the present petition is also liable to be dismissed on this score also." In the written reply filed, the State Government has not disputed the stand taken by the petitioner in para 5 of the petition. Thus, it can be safely inferred that the State admits the stand of the petitioner that Karnail Singh and Jarnail Singh had been released after they had undergone ten years of actual sentence and 14 years of sentence including remissions. 5 I heard counsel representing the petitioner and the State counsel at length. 6. It is clear from the respective stands taken by the parties that the petitioner had based his claim of premature release on the policy instructions of the State Government dated 8.8.2000 (Annexure P-2) while the respondents state that the petitioner does not fulfil the requisite conditions as per policy instructions dealing with the premature release cases as his case falls under para 2(a) of the policy instructions dated 8.8.2000 and for that that the Director General of Prisons, Haryana vide letter No. 1881 GI/G3 dated 16.1.2002 had intimated that case of the petitioner for release would be considered after completion of 14 years of actual sentence including undertrial period provided that total period of such sentence including remission is not less than 20 years. 7. At this stage, I may refer to the cases to which reference had been made on behalf of the petitioner. 7. At this stage, I may refer to the cases to which reference had been made on behalf of the petitioner. In Mange Ram v. The State of Haryana and another, 1993(1) RCR(Crl.) 19 : 1993(1) All India Criminal Law Reporter 765, Mange Ram, petitioner had been sentenced to undergo imprisonment for life for offence of murder and when his case was considered by the State Government as per policy instructions dated 19.11.1991, the stand was taken that his case was covered under para 2(b) of the said instructions which deals with cases of adult life convicts, who had been sentenced for life imprisonment but who had not committed crime which was to be considered heinous as mentioned in clause (a) and at that time his case was rejected on the ground that he had not undergone actual sentence of ten years including undertrial period. When his case was taken up on subsequent occasions, it was rejected on the ground that he had committed a heinous crime but this plea was rejected because his co- accused who had caused injuries of the same nature was released prematurely. Consequently a direction was issued to the State Government to decide the case of the petitioner within the provisions of para 2(c) of the instructions dated 28.9.1998. 8. In Billu v. State of Haryana, 1993(2) RCR(Crl.) 395, Billu, petitioner a life convict had committed murder injuring five persons in connection with the dispute over land. It was construed that he had not committed heinous crime under Terrorists and Disruptive Activities Act or murder with Untouchability (Offences) Act, 1958 and had further undergone requisite ten years actual sentence and 16 years sentence including remissions. He was also not found guilty of any jail offence during entire period of his sentence. His two co- accused had already been released by the Government in exercise of the power under Article 161 of the Constitution of India but the case of the petitioner was rejected on the ground that he had committed a heinous crime and will not be eligible for consideration for premature release. The impugned order being discriminatory was held to be bad and for that reason order of the State Government was set aside. 9. The impugned order being discriminatory was held to be bad and for that reason order of the State Government was set aside. 9. In Dharma v. State of Haryana and others, 1995(2) RCR(Crl.) 238 (P&H) : 1995(1) C.L.R. 109, Dharma, petitioner was undergoing life imprisonment after his conviction under Section 302 I.P.C. He had undergone sentence of ten years of actual imprisonment and 14 years of sentence including remissions. His co-accused were released prematurely by invoking the provisions of para 2(b) of the Government instructions dated 19.11.1991 while the case of the petitioner in that case was rejected on the ground that his case falls in para 2(a) of the said instructions. Under these circumstances the order of the State Government rejecting the case of the petitioner was termed as bad and consequently set aside and the petitioner was ordered to be released prematurely on usual terms and conditions. 10. In Balwant Singh v. The State of Haryana and others, 1995(3) RCR(Crl.) 322 (P&H) : 1995(2) C.L.R. 337, Balwant Singh, petitioner was undergoing life sentence under Section 302 read with Section 34 I.P.C. His request for premature release was declined by the State Government on the ground that his case was covered under Clause 2(a) of the instructions on the subject and his case would be considered only after he had undergone 14 years of actual imprisonment and 20 years sentence including remissions. Notice was taken of the fact that co-accused of the petitioner had already been ordered to be released prematurely under the orders of the High Court, wherein it was held that their case was covered under Clause 2(b) of the said instructions and for that reason rejection of the prayer of the petitioner for premature release by the State Government was held to be unjustified. His petition was allowed and he was ordered to be set at liberty if not required in any other case subject to the conditions that may be imposed by the respondents. 11. In Nishan Singh v. State of Haryana and others, 1996(1) RCR(Crl.) 133, Nishan Singh, petitioner had undergone 14 years imprisonment which entitled him to seek premature release. The State Government rejected his prayer on the ground that he had committed heinous offence along with his co-accused. 11. In Nishan Singh v. State of Haryana and others, 1996(1) RCR(Crl.) 133, Nishan Singh, petitioner had undergone 14 years imprisonment which entitled him to seek premature release. The State Government rejected his prayer on the ground that he had committed heinous offence along with his co-accused. Two of the 11 accused were charged under Section 302 read with Sections 148 and 149 I.P.C. and were convicted on the basis of application of Section 148 and 149 I.P.C. Under these circumstances, it was held that case of the petitioner could not be dealt with differently then other accused who were ordered to be released by the State Government. It was also observed that even where the heinous offence is committed, the State Government was under obligation to consider the case of the petition under Clause 2(a) of Haryana Government Instructions dated 4.2.1995. Notice was taken of the judgment dated 13.12.1994 and 30.5.1995 passed in respect of the co-accused and consequently the order of the State Government was set aside. Respondents were directed to consider the case of the petitioner fresh (afresh ?) within six weeks from the date on which the petition on behalf of the convict was presented to the concerned authorities stating all the grounds that he wished to invoke in support of his request to the respondents for his premature release. 12. In Bhagwat Saran and others v. State of U.P. and others, 1983(1) C.L.R. 504, the State Government declined to release the petitioner solely for the purpose of maintaining law and order. Finding that there was nothing on record to indicate how law and order was likely to be adversely affected by their release, the Apex Court ordered the release of the petitioners forthwith. 13. The above mentioned cases are sufficient judicial precedents with regard to the interpretation of the instructions relating to the case of the petitioners seeking premature release. In this regard notice has to be taken of the another pronouncement of the Apex Court in State of Haryana v. Balwan, 1999(4) RCR(Crl.) 65 (SC). It would be appropriate to notice the observations contained in paras 4 to 6 of the judgment which read as under :- "4. In this regard notice has to be taken of the another pronouncement of the Apex Court in State of Haryana v. Balwan, 1999(4) RCR(Crl.) 65 (SC). It would be appropriate to notice the observations contained in paras 4 to 6 of the judgment which read as under :- "4. As held by this Court in Gopal Vinayak Godse v. State of Maharashtra, 1961(3) SCR 440 and in Maru Ram, by earning remissions a life convict does not acquire a right to release, but release would follow only upon an order made under the Criminal Procedure Code by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. This Court observed in Maru Ram as under :- "Even if the remissions earned have totalled upto 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 lifelong 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 a life sentence is a sentence for a whole life." Thus, this Court in clear term has laid down that by earning remissions a life convict does not acquire a right to be released pre-maturely. But if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guide-lines for exercising its power under Article 161 of the Constitution. 5. If this is the correct legal position then no life convict can validly contend that his case for pre-mature release should be considered according to the Government policy/instructions that were in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. 5. If this is the correct legal position then no life convict can validly contend that his case for pre-mature release should be considered according to the Government policy/instructions that were in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. If according to the Government policy/instructions in force at the relevant time the life convict has already undergone the sentence for a period mentioned in the policy decision/instructions, then the only right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. Ordinarily, when an authority is called upon to exercise its powers that will have to be done consistently with the legal position and the Government decision/instructions prevalent at that time. However, in order to see that a life convict does not lose any benefit available under the remission scheme which has to be regarded as the guide- line, it would be just and proper to direct the State Government to treat the date on which his case is/was required to be put up before the Governor under Article 161 of the Constitution as the relevant date with reference to which their cases are to be considered. The direction given by the High Court is not consistent with the decision of this Court in Maru Ram and the view which we are now taking and, therefore, it has to be set aside. 6. Accordingly, we allow these appeals, set aside the impugned judgments of the High Court and direct the State Government to re-consider the applications of the respondents-life convicts, who fall under the purview of the Section 433-A Cr.P.C. in accordance with the correct legal position pointed out above. The State Government is directed to do so within 15 days from the date of receipt of the order of the Court." 14. The State Government is directed to do so within 15 days from the date of receipt of the order of the Court." 14. Keeping in view the guide-lines laid down in the above mentioned case and considering the stand of the petitioner, it is manifest on record that State counsel has not been able to explain as to how case of the present petitioner is different than that of the co-accused, who had already been prematurely released by the State Government in accordance with the policy decision contained in instructions dated 8.8.2000 (Annexure P-2). The case of the petitioner cannot be evaluated with a different yard-stick as is sought to be done by the State Government as it would amount to discriminating the petitioner qua his co-accused. 15. For the aforesaid reasons, the petition is allowed. The impugned order Annexure R-1 is set aside. The State Government is directed to consider the case of the petitioner in view of the position explained above and the guide- lines laid down by the Apex Court and take decision within two months from the date of receipt of copy of this order. Petition allowed.