Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 1612 (PNJ)

Avtar Singh v. State of Punjab

2003-12-02

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 482 of the Code of Criminal Procedure, 1973 read with Article 226 of the Constitution of India prays for issuance of an order or direction to release the petitioner pre-maturely by extending him the benefit of instructions dated 13.4.2001 claiming that he has completed more than 8 years of actual sentence and with remissions more than 13 years sentence. The case of the petitioner had been rejected by the respondents on 9.10.2001 (Annexure P.4) on the ground that the instructions dated 13.4.2001 do not apply to his case because the petitioner is guilty of pre-planned ghastly and brutal murder of his wife and would be covered by exception to clause (vi) of the instructions. 2. Brief facts of the case are that the petitioner was convicted under Sections 302 Indian Penal Code in case FIR No. 209 dated 27.7.1992 P.S. Sadar, Patiala for committing the murder of his wife Kulwant Kaur. Learned Sessions Judge vide his judgment dated 4.11.1993 had convicted him by holding that the petitioner chopped off the head of his wife from body. The petitioner was awarded life imprisonment. It is appropriate to mention that he was arrested on 9.8.1992. His total period of sentence as an under-trial or after conviction is as under : Years Mon Days Period Spent in detention before and conviction from 9.8.92 to 4.11.1993 and 4.11.1993 to 13.4.2001. 8 7 29 Remissions granted by the Govt. as well as Jail Authorities 8 0 0 16 07 29 3. At the time of filing the petition, the petitioner was on parole for a period of six months and he has surrendered on 26.11.2001 after availing the parole period. 4. The case set up by the petitioner is that the State of Punjab has issued instructions under Article 161 of the Constitution on 13.4.2001 and according to clause (i) of the afore-mentioned instructions, the petitioner is entitled to be released pre-maturely after he has completed more than 8 years actual sentence which with remission comes to more than 13 years. Those instructions have been issued to commemorate the Bicentenary celebrations of the Coronation of Maharaja Ranjit Singh and the respondent-State had ordered to remit the unexpired portion of sentence of imprisonment for life and to grant special remission to the prisoners. Those instructions have been issued to commemorate the Bicentenary celebrations of the Coronation of Maharaja Ranjit Singh and the respondent-State had ordered to remit the unexpired portion of sentence of imprisonment for life and to grant special remission to the prisoners. On the strength of the afore-mentioned instructions, the petitioner filed an application claiming his pre-mature release. However, the same has been rejected by the respondents on 9.10.2001 (Annexure P.4). 5. Ms. Archana Sharma, learned counsel for the petitioner has argued that the case of the petitioner cannot be rejected on the ground that he had committed a ghastly crime because there is no finding given either by the ld. Sessions Judge or by this Court while deciding his case and convicting him under Section 302 Indian Penal Code. Learned counsel has further contended that no other consideration except the criterion laid down in the instructions could be imported while passing the order on the basis of those instructions. She has urged that the guide-lines are available in the instructions itself and the same should be applied. In support of her submission, the learned counsel has placed reliance on three judgments of this Court in the case of Gurvinder Singh v. State of Punjab and others, 2000(2) RCR (Crl.) 821;Roop Singh v. State of Punjab, 1997(2) RCR 132 and Bagla v. State of Haryana, 1996(2) RCR 64 and argued that in cases where three murders have been committed this Court has rejected the contention that petitioner was not entitled to the benefit of premature release on the ground that he had committed heinous crime as commission of three murders was not covered by the instructions in the clause defining heinous crimes. 6. Shri Gurpartap Singh Gill, learned State counsel has argued that the order dated 9.10.2001 passed by the respondent-State is absolutely consistent with the provisions of the instructions in as much the expression ghastly murder is fully applicable to the case of the petitioner. According to the learned counsel chopping off the head of his wife by a Gandasi in a pre-planned manner is certainly a ghastly murder which shows extreme brutality. Learned State counsel has maintained that finding to this effect is not required to be recorded by the trial Court or by this Court and it has to be determined by the respondent-authorities as to whether the murder committed was ghastly or it was otherwise. Learned State counsel has maintained that finding to this effect is not required to be recorded by the trial Court or by this Court and it has to be determined by the respondent-authorities as to whether the murder committed was ghastly or it was otherwise. Relying on the affidavit of Shri S.K. Dutta, Deputy Inspector General of Prisons, Punjab filed in the Court on 26.9.2003 the learned counsel has emphasised that the petitioner has undergone over 11 years upto 23.9.2003 and on completion of actual sentence of 12 years, his case would be considered in accordance with the instructions dated 8.7.1991. Therefore, at this stage, no case is made out for releasing the petitioner pre-maturely. 7. After hearing the learned counsel and perusing the record, I am of the view that this petition is liable to be dismissed because the instructions dated 13.4.2001 clearly carves out various exceptions which include exception (vi). Clause VI of the instructions contemplates that where a convict imprisoned for life has committed a ghastly murder then the benefit of those instructions is not to be extended. For facility of reference relevant portion of instructions dated 13.4.2001 is reproduced hereunder : "Remission of balance of sentence of Imprisonment for life, as on 13.4.2001 if : i) a male prisoner who was 20 years or above old at the time of commission of offence, has undergone actual sentence for more than 8 years and with remission more than 13 years xxx xxx xxx xx These benefits, however, are not admissible to the following categories of prisoners : (i) to (v) xx xx xx (vi) If the prisoner is involved in ghastly murders/double murder involving extreme brutality beastality in which the prisoner has been convicted and sentenced to imprisonment for life or if he is involved in the crime connected with terrorism in the State." 8. A perusal of the afore-mentioned clauses show that if the prisoner is involved in ghastly murder/double murder involving extreme brutality/beastality in which the prisoner has been convicted and sentenced to life imprisonment then he is not entitled to the benefit of the instructions. A perusal of the afore-mentioned clauses show that if the prisoner is involved in ghastly murder/double murder involving extreme brutality/beastality in which the prisoner has been convicted and sentenced to life imprisonment then he is not entitled to the benefit of the instructions. In the case of Gurvinder Singh (supra), this Court has taken the view that mere attempt to murder cannot be termed as heinous for the purpose of premature release but it would be heinous crime if the murder has been committed with such extreme brutality such as the deceased was choped off or cut into pieces. In the present case, the head of Kulwant Kaur was chopped off by a Gandasi by separating her head from the body in a pre-determined manner. Relationship of the petitioner with the deceased is also required to be kept in view. The deceased was the wife of the petitioner. Moreover, there is evidence showing that the petitioner was a habitual drunkard and used to indulge in illicit distillation of liquor. He also used to sell the same. Therefore, I am of the considered view that the order dated 9.10.2001 does not suffer from any legal infirmity warranting interference by this Court. 9. The judgments of this Court relied upon by the learned counsel do not advance the case of the petitioner because in Baglas case (supra) the authorities has taken into consideration such factors which were extraneous to the instructions issued under Article 161 of the Constitution. Similarly in Roop Singhs case (supra), this court was considering the question of heinous offence for premature release under the instructions of the Haryana Government issued on 6.3.1995. According to those instructions a triple murder was not included in the list of heinous offences. Therefore, in that case, this Court has shown interference. A perusal of para 9 of the judgment makes the afore- mentioned position absolutely clear and the same reads as under : "The sole question survives for consideration is as to whether the State Government was justified in rejecting the case of the petitioner for his pre- mature release solely for the reason that he was found to be guilty of committing triple murder. A careful perusal of the instructions Annexures P.2, P.3 and P.5 will go to show that the case of the petitioner falls within the category "C" i.e. the convicts who have been imprisoned for life for offence for which death is a penalty, but crimes are not considered heinous. It is important to note that what are heinous crimes for the purposes of these instructions are described and detailed therein. A conviction for more than one murder is not included within the ambit of the heinous crimes therein. Once it is held that a convict for more than one murder does not come within the category of a convict of a heinous offence for the purposes of these instructions, the rejection of the case of the petitioner for his premature release on such a ground can be safely said to be for extraneous reason, not recognized by the said instructions issued in exercise of the powers conferred by the Constitution of India." 10. The afore-mentioned judgment obviously has no application to the facts of the present case. Similarly, the case of Gurvinder Singh (supra) decided by this Court would also not apply to the facts of the present case which infact laid down the criterion to determine whether the commission of offence of murder could be termed as heinous. Therefore, the contention raised by the learned counsel for the petitioner by relying on the aforementioned judgments cannot be sustained and the petitions liable to be dismissed. 11. For the reasons recorded above, this petition fails and the same is dismissed. However, the case of the petitioner shall be considered by the respondent-State in accordance with the instructions dated 8.7.1991 as has been stated by the Deputy Inspector General of Prisons in his affidavit dated 26.9.2003. Petition dismissed.