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2011 DIGILAW 679 (PNJ)

Sohan Singh v. State of Haryana

2011-03-01

GURDEV SINGH

body2011
JUDGMENT Gurdev Singh, J.:- The petitioner-prisoner, Sohan Singh, has filed this Criminal Writ Petition under Article 226 of the Constitution of India for the issuance of a writ in the nature of Habeas Corpus holding his further detention violative of Articles 14, 19 and 21 of the Constitution and that the order dated 22.6.2010 (Annexure P-5) deserves to be quashed being arbitrary, illegal and whimsical and that he is entitled to be released prematurely on usual terms and conditions. 2. The petitioner was one of the co accused in FIR No. 89 dated 16.7.1994 registered under Sections 302/34, 212, 449, 120-B IPC and Section 25 of the Arms Act, 1959 in Police Station Sadar, Ambala. He was tried for those offences by Additional Sessions Judge, Ambala, and was sentenced as under:- --------------------------------------------------------------------------------------------------------------------------------------- S. No. Under Section Sentence awarded Fine --------------------------------------------------------------------------------------------------------------------------------------- 1 302/34 IPC Life imprisonment Rs.5000/- In default of payment of fine to undergo rigorous imprisonment for one year 2 120-B read with Life imprisonment Rs. 5000/- In default of payment of fine to Section 302 IPC undergo rigorous imprisonment for one year --------------------------------------------------------------------------------------------------------------------------------------- The sentences so imposed upon him were to run concurrently. He filed Criminal Appeal No. 283-DB of 1997 against that conviction and sentence, which was dismissed. According to the petitioner, he has undergone actual sentence of 16 years, 01 month and 10 days and total sentence of 19 years, 04 months and 10 days and had maintained good conduct in the jail. As per the Policy dated 4.2.1993, Annexure P-3, which was applicable at the time of his conviction, he is entitled to be released prematurely. The punishment for jail offence is no bar for his premature release, in view of the Note appended to paragraph 516-B of the Punjab Jail Manual. His co-accused Naib Singh has already been released but the same benefit has been refused to him only on the ground of jail offence. 3. In the reply submitted by the respondents, they challenged the claim of the petitioner to be released prematurely by virtue of Policy dated 4.2.1993 on the ground that his case falls under para 2(a) of that Policy; according to which, his case for premature release is to be considered only after he completes 14 years of actual sentence and 20 years of total sentence. In addition to that, they also pleaded that he is also facing trial in FIR No. 41 dated 2.6.2010 registered under Sections 353 and 186 IPC in Police Station Lalru, and his conduct in the jail was unsatisfactory. 4. I have heard learned counsel for both the sides. 5. At the time of arguments, both the counsel reiterated their respective contentions, as made in the writ petition and the reply. 6. The first question to be decided in the present case is, whether the case of the petitioner is covered under paragraph 2(a) or 2(b) of the Policy dated 4.2.1993. Only those convicts fall under para 2(a) who have committed heinous crime. The heinous crimes are mentioned in that para itself and those are as under:- “Murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D.Act, 1987, murder with Untouchability (Offences)Act, 1955, murder in connection with dowry bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant women or murder after abduction or kidnapping, murder on professional /hired basis, murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from Judgment of sentence, persistent bad conduct in the prison and those who can not for some definite reasons be prematurely released without danger to public safety; or convicts who have been imprisoned for life under Section 120-B of IPC or life convicts who have been awarded life imprisonment a second time under NDPS Act or life convicts who have been awarded imprisonment for life second time under any offence.” 7. The copy of the judgment dated 4.2.1997, vide which the petitioner was convicted and sentenced, is annexed with the petition as Annexure P-1. As per the prosecution story disclosed in that judgment, he along with his co-accused attacked Satinder Sekhon, after forming an unlawful assembly in the prosecution of the common object of that unlawful assembly, committed his murder. It is not the case of the respondents that the petitioners was having persistent bad conduct in the jail. Therefore, case of the petitioner does not fall in paragraph 2(a) of the Policy dated 4.2.1993 and his case is covered by para 2(b). It is not the case of the respondents that the petitioners was having persistent bad conduct in the jail. Therefore, case of the petitioner does not fall in paragraph 2(a) of the Policy dated 4.2.1993 and his case is covered by para 2(b). Even the State Government while passing the impugned order dated 22.6.2010(Annexure P-5) held that premature release case of the petitioner falls under Section 2(b) of the Policy. The stand taken up the respondents that his case falls under para 2(a) of the Policy, is against the decision of the State Government itself. How that contradictory plea has been taken, has not been explained by the State counsel. Once the State Government itself decided that the case of the petitioner falls under para 2(b) of the Policy, it cannot be turn around and allege that his case falls under para 2(a) of the Policy. 8. It was not disputed by the State counsel that, as per paragraph 516-B of the Punjab Jail Manual, the petitioner was entitled to be released prematurely, after he completed the prescribed actual sentence and the total sentence. However, according to him, his case was rightly rejected by the State Government as his conduct during the last five years was found to be unsatisfactory. 9. As per the contents of the order, the said unsatisfactory conduct of the petitioner was on account of the fact that 7 gms of opium was recovered from his possession on 5.6.2008 in the jail and FIR No. 122 dated 5.6.2008 was registered against him under the ND & PS Act, 1985, and that another case pertaining to FIR No. 41 dated 2.6.2010 registered under Sections 353 and 186 IPC in Police Station, Lalru, is pending against him. Counsel for the petitioner has referred to the following judgments of this Court and on the basis thereof, has submitted that any offence committed by the prisoner in the jail or during the period his sentence remained suspended, cannot be taken into account for the purpose of his premature release, as per paragraph 516-B of the Punjab Jail Manual:- 1. Ravi Kumar alias Bitu vs. State of Punjab 2004(2)RCR(Criminal) 5 2. Teja Singh vs. State of Haryana and others 2008(1) RCR(Criminal) 590 State counsel has not been able to cite any judgment to the contrary. 10. Ravi Kumar alias Bitu vs. State of Punjab 2004(2)RCR(Criminal) 5 2. Teja Singh vs. State of Haryana and others 2008(1) RCR(Criminal) 590 State counsel has not been able to cite any judgment to the contrary. 10. As per the Note appended to the above said para of the Punjab Jail Manual, for the purpose of premature release of the prisoners under that paragraph, sentence awarded to a person for an offence committed while in prison or suspension of sentence, will not be taken into consideration. In Ravi Kumar alias Bitu’s case (supra), the case of the prisoner was rejected only on the ground that he had committed jail office on 6.9.1989 as he was found talking with another prisoner at a very loud pitch which had disturbed the sleep of other prisoners and when the Assistant Superintendent, who was on duty asked him to sleep and not to disturb others, he misbehaved and abused that jail official. It was held by this Court that the case of the petitioner was to be considered in view of the provisions of Section 516-B of the Punjab Jail Manual by taking into consideration the Note appended thereto. 11. In Teja Singh’s case (supra), the petitioner had committed the jail offence for which he was punished with forfeiture of 12 days remissions. While rejecting his case for premature release, the fact of his conviction for that jail offence was taken into consideration. It was held by this Court that in view of the Note appended to paragraph 516-B of the Punjab Jail Manual, the sentence awarded to a prisoner for the offence committed while in prison or during suspension of sentence is not to be taken into account. It was also held that a person cannot be made to suffer on account of some minor infirmity, which he happens to incur while undergoing the sentence. 12. The Note, so appended to paragraph 516-B of the Punjab Jail Manual, not only speaks of the jail offence but also speaks of any offence committed while in prison. Therefore, the case of the petitioner for premature release could not have been rejected by the State Government merely on the ground that he committed the above said offence while in jail or that he is involved in another criminal case. Therefore, the order passed by the State Government is liable to be set aside and I order accordingly. Therefore, the case of the petitioner for premature release could not have been rejected by the State Government merely on the ground that he committed the above said offence while in jail or that he is involved in another criminal case. Therefore, the order passed by the State Government is liable to be set aside and I order accordingly. 13. The State Government is directed to re-consider the case of the petitioner for premature release within two months of the passing of this order and while considering his case, the offence so committed by him in the jail and other criminal case pending against him are not be taken into consideration. 14. The petition is disposed of accordingly. ---------0.B.S.0------------