Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 1069 (PNJ)

Ram Avtar v. State Of Haryana

2008-05-21

VINOD K.SHARMA

body2008
Judgment Vinod K.Sharma, J. 1. This petition has been filed under Section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India for issuance of appropriate order, writ or direction in the nature of habeas corpus holding that petitioners have completed the requisite period of sentence for grant of premature release and they are entitled to be released forthwith on usual terms and conditions as per the policy framed by State Govt. in exercise of power under Article 161 of the Constitution. 2. The petitioners alongwith other co-accused were involved in FIR No. 539 dated 17.11.1986 registered at Police Station Bahadurgarh under Sections 302/307/324/148/149 IPC. At the time of commission of offence, petitioner-Ram Avtar was found to be aged 18 years whereas petitioner-Balwan was aged 21 years. The petitioners were awarded the following sentence :- "107. Each of the accused is sentenced to imprisonment for life under Sections 302/149 of the Indian Penal Code for the murder of Ram Singh 108. Each of the accused is sentenced to imprisonment for life under Sections 302/149 of the Indian Penal Code for the murder of Rattan Singh. 109. Each of the accused is sentenced to imprisonment for life under Sections 302/149 of the Indian Penal Code for the murder of Satbir." 3. It was also ordered that all the sentences awarded in three different cases were to run concurrently. At the time of commission of offence, the instruction of the Haryana Govt. for pre-mature release dated 27.2.1984 was in force which provides that an adult male convicted to life imprisonment would be considered his pre-mature release after completion of 8-1/2 years of substantive sentence and 14 years sentence including remissions. However, during the conviction period, the State of Haryana issued instructions dated 12.4.2002 under which it was provided that the persons who were guilty of murder for more than two persons, were to be considered for pre-mature release after completion of 20 years actual sentence and 25 years total sentence with remission. The State of Haryana did not consider the case of the petitioner for pre- mature release keeping in view the fact that his case was not covered by instructions dated 12.4.2002 (Annexure P-3). 4. Aggrieved by this, the petitioner filed Crl. Misc. No. 30109-M of 2002 in this Court in which violation of instructions especially Clause 2(aa)(iii) was challenged being ultra vires the Constitution. 4. Aggrieved by this, the petitioner filed Crl. Misc. No. 30109-M of 2002 in this Court in which violation of instructions especially Clause 2(aa)(iii) was challenged being ultra vires the Constitution. The plea of the petitioner in the said case was that all convicts are required to be treated equally and there can be no discrimination between them. The petition filed by the petitioner was accepted by this Court on July 24, 2003 and operative part of the order passed in the case by this Court is as under :- "Consequently, in view of the discussion above, the petition is accepted and the petitioners are entitled for consideration of their cases for grant of pre-mature release on the expiry of 10 years of actual sentence and 14 years of sentence including remissions and their further detention, without consideration of their cases, is violative of Articles 14, 19 and 21 of the Constitution of India." 5. The order passed by this Court in Criminal Misc. No. 30109-M of 2002 was challenged by the State Govt. in the Honble Supreme Court by way of SLP(Criminal) No. 1488 of 2004 which stands admitted. However, it was ordered that there shall be no stay of the Judgment under appeal. The claim of the petitioners was ordered to be considered. 6. Thereafter, the Honble Supreme Court in Crl. Misc. No. 4293 of 2006 passed the following order :- "Case has been called twice. Nobody is present for the respondent. We have perused Annexure R-4 filed by the respondent with the counter affidavit. In spite of order dated 26th September, 2003, referred to in that annexure, this Court, while granting leave against the order dated 24th July, 2003, directed that there shall be no stay of the judgment under appeal, which means the order dated 24th July, 2003. Under these circumstances, we allow this criminal Miscellaneous petition and direct the State Government to forthwith consider the cases of the applicants (respondents in the appeal) for premature release in terms of the judgment of the High Court dated 24th July, 2003. Cont. Pet. (C) No. 88/2006 in Criminal Appeal No. 30 of 2005. The contempt petition is dismissed as not pressed." 7. Cont. Pet. (C) No. 88/2006 in Criminal Appeal No. 30 of 2005. The contempt petition is dismissed as not pressed." 7. It is in pursuance to the order of Honble Supreme Court that impugned order (Annexure P-8) has been passed by the State vide which claim of the petitioner for the petitioner for premature release was deferred by invoking the policy decision of the State Govt. dated 26.2.1984. 8. Learned counsel for the petitioners has challenged the order (Annexure P-8) firstly on the ground that the order (Annexure P-8) is contrary to the order passed by this Court in Criminal Misc. No. Crl. Misc. No. 30109-M of 2002 decided on July 24, 2003 as well as order passed by Honble Supreme Court in case Crl. Misc. No. 4293 of 2006 as referred above. 9. The learned counsel for the petitioner also placed reliance on the judgment of Honble Supreme Court in the case "State of Haryana v. Mohinder Singh and others," in Criminal Appeal No. 30 of 2005 decided on 2.11.2007 passed in the case of petitioners wherein Honble Supreme Court has been pleased to lay down as under :- "33. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A fortiori policy decision applicable in such cases would be which was prevailing at the time of this conviction. [See Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Ors., 2007(3) RCR (Civil) 249 : 2007(3) R.A.J. 253 : 2007(7) SCLE 737] 34. Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Reorganization Act, no executive instruction would prevail over the Statutory Rules. The Rules having defined `convicts in terms whereof a `life convict was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away be reason of an executive instruction by redefining the term `life convict. It is one thing to say that the `life convict has no right to obtain remission but it is another thing to say that they do not have any right to be considered at all. Right to be considered emanates from the States own executive instructions as also the Statutory Rules. Strong reliance, however, has been placed by Mr. Misra on Mohd. Right to be considered emanates from the States own executive instructions as also the Statutory Rules. Strong reliance, however, has been placed by Mr. Misra on Mohd. Munna v. Union of India and others, 2005(4) RCR(Criminal) 133 : 2005(3) Apex Criminal 287 : [(2005)7 SCC 417]. In that case, a writ petition was filed under Article 32 of the Constitution of India by the appellant therein stating that as he had undergone 21 years of imprisonment he should be set at liberty forthwith having regard to the provisions of Clause 751(c) of the West Bengal Jail Code and Section 6 of West Bengal Correctional Services Act, 1992. Claim for damages was also advanced. It was in the factual backdrop, this Court held : "14. The Prisons Rules are made under the Prisons Act and the Prisons Act by itself does not confer any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the terms of the petitioners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal Jail Code do not confer any special right on the petitioner herein." In the said decision, unfortunately, again Maru Ram (supra) was not considered. In any event, the respondents had inter alia prayed for payment of damages. 36. We are, therefore, of the opinion that the High Court might not be correct in holding that the State has no power to make any classification at all. A classification validly made would not offend Article 14 of the Constitution of India. We, thus, although do not agree with all the reasonings of the High Court, sustain the judgment for the reasons stated hereinbefore." 10. In view of the judgment of Honble Supreme Court, the petitioners seek their pre-mature release by invoking the instruction in force on the date of their conviction. 11. The reply has been filed on behalf of the State of Haryana stating therein that in the SLP filed in the case of Bhoop Singh and others titled as "State of Haryana v. Bhoop Singh and others," the orders dated 13.7.2007 and 12.10.2007 of this Court have been challenged. 11. The reply has been filed on behalf of the State of Haryana stating therein that in the SLP filed in the case of Bhoop Singh and others titled as "State of Haryana v. Bhoop Singh and others," the orders dated 13.7.2007 and 12.10.2007 of this Court have been challenged. It is further case of the State that in SLP, stand has been taken that judgment dated 2.11.2007 of the Honble Apex Court is contrary to the judgment dated 2.9.1999 in the case of State of Haryana v. Balwan Singh and others, vide which Honble Supreme Court was pleased to hold that for the premature release of the convict, the relevant policy is not the policy in force on the date of their conviction, but the policy in force on the date of the consideration of their cases. 12. The learned counsel for the State has also contended that in the present case, the claim of the petitioner in pursuant to the order passed by the Honble Supreme Court has been considered and keeping in view the provisions of Section 433A of the Code of Criminal Procedure, his case has been deferred as he is yet to complete 14 years of actual sentence. 13. On consideration of matter, I find force in the contention raise by the learned counsel for the petitioner in the present case. There is an order passed by this Court directing the respondent-State to consider the case of the petitioner on his completion of 10 years of actual imprisonment and 14 years including remission. The said order has been affirmed by the Supreme Court and therefore is binding upon the parties. The subsequent change of law, if any, would not apply to cases decided qua the parties which attain finality. 14. In view of this binding order passed by the Honble Supreme Court, inter se the parties, no reliance can be placed on the contention of learned counsel for the petitioner that he would be entitled to consideration of their case on completion of 8-1/2 years of substantive sentence and 14 years sentence including remissions. 15. However, the State Government is bound to consider the case of the petitioners for premature release in view of the fact that they have already completed actual sentence of 10 years with remission. 15. However, the State Government is bound to consider the case of the petitioners for premature release in view of the fact that they have already completed actual sentence of 10 years with remission. They have undergone more than 14 years of actual sentence in view of the order passed by this Court in Criminal Misc. No. 30109-M of 2002 and the order of Honble Supreme Court in Crl. Misc. No. 4293 of 2006 referred to above. 16. It may also be noticed that provisions of Section 433-A of the Cr. P.C. were challenged before the Honble Supreme Court in the case of Maru Ram v. Union of India, AIR 1980 SC 2147. 17. The Honble Supreme Court in the said case has been pleased to lay down that Section 433A would be subject to powers of the State Govt. to issue instruction under Article 161 of the Constitution of India. 18. The instructions relied upon by the petitioner as well as State are the instructions which have been issued under Article 161 of the Constitution of India and therefore, if is not permissible to the State to invoke provisions of Section 433-A of the Cr. P.C. to deny the consideration of the case for premature release, if the same is required to be considered on the basis of the instructions issued by the State Government. 19. This petition is allowed and order dated 13.12.2006 (Annexure P-8) is quashed. The case of the petitioners is remanded back to the State to consider the case of their premature release strictly in view of the order passed by this Court as affirmed by the Honble Supreme Court. The order be passed within a period of one month from the receipt of certified copy of this order.