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2009 DIGILAW 287 (PNJ)

Didar Singh v. State of Haryana

2009-02-04

HARBANS LAL

body2009
JUDGMENT Harbans Lal, J 1. This petition has been moved by Didar Singh and Avtar Singh against State of Haryana and others under Section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India to quash/ set aside the impugned orders dated (a) 12.11.2008 Annexure P.3 and (b) 2.6.2008 Annexure P.4 passed by respondent No.1-State and to direct respondent No.1 to consider and decide their case for their pre-mature release as per policy instructions dated 4.2.1993 which was in force on the date of their conviction, i.e., 14.10.1995. 2. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 3. In re: State of Haryana v. Mahender Singh and others, 2007 AIR Supreme Court Weekly 6988, the Apex Court has ruled that “A' fortiori the policy-decision applicable in such cases would be one which was prevalent at the time of his conviction.” Further in re: State of Haryana v. Bhup Singh and others, Criminal Appeal Nos.2064-2066 of 2008 (Arising out of SLP (C) Nos.8248-8250 of 2007), the Apex Court while considering an identical question observed as under:- “We, therefore, are of the opinion that keeping in view the decision of this Court in Mahender Singh (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in Mahender Singh's case (supra) having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002. 4. Adverting to the facts of the instant case, there is no gainsaying the fact that the petitioners were convicted and sentenced on 14.10.1995 in case FIR No.151 dated 16.9.1993 under Sections 302/34 of IPC registered in the Police Station Ladwa. 5. Learned counsel for the petitioners contends that at the time of their conviction, the State Government policy instructions dated 4.2.1993 were in vogue. 5. Learned counsel for the petitioners contends that at the time of their conviction, the State Government policy instructions dated 4.2.1993 were in vogue. In view of Mahender Singh and others case (supra), this government policy dated 4.2.1993 is applicable to the case of the petitioners, whereas, as would be apparent from Annexure P.3, the order dated 12.11.2008 purportedly passed by Principal Secretary to Government Haryana Jail Department, the Haryana Government notification dated 13.8.2008 is being applied to the case of the petitioners, which is abhorrent to the ratio laid down by the Apex Court in Mahender Singh and others case (supra). 6. As against this, the learned State counsel submitted with a good deal of force that the petitioners have not undergone 14 years of actual sentence and 20 years total sentence and it is because of this reason that their pre-mature release case has been deferred. 7. I have given a deep and thoughtful consideration to the rival contentions. 8. In terms of Mahender Singh and others' case (supra) as well as Bhup Singh and others' case (supra), the policy decision dated 4.2.1993 of the State Government of Haryana is applicable in the case of the petitioners as they were admittedly convicted and sentenced on 14.10.1995. The policy decision dated 13.8.2008 is inapplicable in their case. 9. On being asked, the learned counsel for the petitioner submitted that the petitioners have not been released from the jail as yet. This petition is disposed of with the directions to the respondents to consider the case of the petitioners in terms of the judgment of Mahender Singh and others' case (supra) having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2008 within one month from the date of receipt of the certified copy of this judgment. Disposed of accordingly. Order accordingly.