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2008 DIGILAW 2141 (PNJ)

Jagdish Chander v. State of Haryana

2008-12-17

S.D.ANAND

body2008
JUDGMENT S. D. Anand, J.:- Notice of motion. 2. On the asking of the Court, Mr. S.S Mor. Learned Senior Deputy Advocate General, Haryana accepts notice on behalf of the respondents. 3. The petitioner, a lifer in case FIR No.123 dated 28.7.1987 under Sections 302, 148, 397, 326, 506, 149 IPC, Police Station Sadar, Bhiwani, had already undergone 14 years of actual sentence and more than 19 years of total sentence by the time he filed Criminal Misc. No. M-5098- 2008. The grievance indicated by the petitioner therein was that though he had become eligible for consideration for premature release, his case was not being taken up by the competent authority. That petition was disposed of by a Coordinate Bench of this Court (Sham Sunder, J.) on 2.7.2008 with a direction to the respondents “to consider, and dispose of the case of the petitioner, for premature release, in accordance with the provisions of law, rules, regulations, and instructions, on the point within a period of one month, from today.” 4. The competent authority declined the premature release plea of the petitioner by observing that petitioner was not eligible for consideration in terms of Haryana Government policy dated 12.4.2002. In short, thus, the competent authority declined to comply with the orders passed by the Apex Court in State of Haryana Vs. Mahender Singh and others, [2007(5) LAW HERALD (SC) 3393] : 2007 (12) SCALE 669. 5. The petitioner was compelled thereby to file Criminal Misc. No. M-29480-2008 which came to be disposed of by this Court by the following order dated 11.11.2008:- “Notice of motion. On the asking of the Court, Mr.S.S Mor. Learned Senior Deputy Advocate General, Haryana accepts notice on behalf of the respondents. The petitioner filed Criminal Misc. No. 5098-M of 2008 for redressal of his grievance that the competent authority was not inclined to consider his premature release plea in spite of the fact that he had already undergone actual sentence for more than 14 years and total period of sentence had undergone by him was for more than 19 years. That petition was disposed of by a Coordinate Bench of this Court (Sham Sunder, J.) vide order dated 2.7.2008. That petition was disposed of by a Coordinate Bench of this Court (Sham Sunder, J.) vide order dated 2.7.2008. The competent authority (State Level Committee) considered the premature release of the petitioner in compliance with the order dated 2.7.2008 (Annexure P-4) of this Court and declined the plea by observing that petitioner would become eligible for consideration for premature release only after he had undergone total period of sentence for 20 years. The view flowed from the inference that the matter is governed by the instructions presently in currency. That order also drew sustenance from the provisions of Section 433-A of the Code of Criminal Procedure. In support of the averment that the policy in force on the date of conviction is to govern the consideration of the issue of the indicated category, learned counsel relies upon the Apex Court judgment rendered in State of Haryana Vs. Mahender Singh and others 2007 (12) SCALE 669. It is also pointed out that a Coordinate Bench of this Court (Augustine George Masih, J) had also passed a similar order on 5.8.2008 in Criminal Misc. No. 39648-M of 2007 (Annexure P-4/A). It is pointed out that the position of law indicated by the Apex Court in Mahender Singh’s case (supra) had been accepted by the respondent-State (“Counsel for the petitioner relies upon the Supreme Court judgment in a case State of Punjab Vs. Mohinder Singh and others 2008 Criminal Law General 444 to submit that the instructions prevalent at the time of conviction of the petitioner would be applicable to the case of the petitioner for consideration of his premature release and not the present instructions which have been applied by the State. This position in law is accepted by the counsel for the respondent State.”) The petition shall stand allowed accordingly. The impugned order passed by the competent authority shall stand quashed. The view obtained by the State Level Committee in the matter of instructions which shall govern consideration is held to be invalid. It is held that, in the light of the Apex Court judgment in Mahender Singh’s case (supra), the competent authority is obliged to consider the premature release case of the petitioner in terms of the policy in currency on the date of conviction. The exercise shall be concluded within seven days from today. It will be for the State counsel to communicate the order to the competent authority. The exercise shall be concluded within seven days from today. It will be for the State counsel to communicate the order to the competent authority. Copy of the order be given to the learned State counsel under the signatures of the Court Secretary.” 6. In spite of the direction by this Court to the competent authority to conclude the exercise aforementioned within seven days from the date of the order, the order has not been complied with. 7. Though not in the present case, the stand otherwise taken up by the competent authority in the Government of Haryana in the context is that the orders passed by the Apex Court in Mahender Singh’s case (supra) are not being implemented because a review plea in that case has been filed before the Apex Court. This Court has observed in those cases that the competent authority cannot, in the absence of a stay order, withhold the implementation of the Apex Court verdict. Infact, in this case also, the impugned order dated 3.9.2008 does not even take cognizance of the law laid down by the Apex Court in Mahender Singh’s case (supra). It is otherwise apparent from a perusal of the order dated 3.9.2008 (Annexure P-5) of the State Level Committee that the petitioner had undergone actual period of sentence of 14 years 8 months and 11 days and total sentence of 17 years 8 months and 14 days as on 13.6.2008. The learned State counsel is not in a position to contest the averment that the petitioner is eligible for consideration in terms of the policy prevalent on the date of conviction. 8. The petition shall stand disposed of accordingly with a direction to the competent authority to dispose of the premature release plea of the petitioner in the light of the judgment rendered by the Apex Court in Mahender Singh’s case (supra) within one month from today. 9. However, in view of the fact that release of the petitioner has been delayed on account of dereliction on the part of the competent authority and for no fault of the petitioner in any case, it is ordered that the petitioner shall be released forthwith, as an interim measure. The release shall be subject to his furnishing of adequate surety etc. undertaking the return to the law subject to ultimate decision in the matter. The release shall be subject to his furnishing of adequate surety etc. undertaking the return to the law subject to ultimate decision in the matter. It will be for the State counsel to communicate the order to the competent authority. Copy of the order be given to the learned State counsel under the signatures of the Court Secretary. --------------------