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2014 DIGILAW 1229 (PNJ)

Raj Kumar v. State of Punjab

2014-08-27

ANITA CHAUDHRY

body2014
JUDGMENT Ms. Anita Chaudhry, J.: - The petitioner is undergoing life imprisonment in FIR No. 40 dated 30.12.1994, under Section 302 read with Section 120-B IPC, Police Station Raman, District Bathinda, awarded by the learned Sessions Judge, Bathinda vide order dated 11.03.1997. His appeals have been dismissed by this Court as well as the Hon’ble Apex Court. 2. The jail authorities recommended his case for premature release, but the competent authority rejected the case vide order dated 21.08.2012 observing that he has committed a heinous crime by murdering his wife. He is said to have undergone more than 12 years of actual imprisonment and about 18 years with remissions. The grouse of the petitioner is that despite this, the State Government erred in declining the relief to him. 3. Upon notice, reply has been filed by the State of Punjab, wherein the custody and eligibility of the petitioner for consideration of his case for premature release is not disputed. It has also been admitted that the case of the petitioner was recommended for premature release. However, the case of the petitioner was rejected on 21.08.2012 by the competent authority as he had committed a heinous crime of murder of his wife. It has further been averred that in the light of policy dated 04.04.2013, the case of the petitioner has now to be reconsidered only after lapse of two years of rejection of the earlier request. 4. I have considered the submissions made by learned counsel for the petitioners as well as of the learned State counsel. 5. It is apparent from the reply filed by the State that there is no dispute as to the eligibility of the petitioner for consideration of his case for premature release. The primary objection of the State is that as per policy dated 04.04.2013, the case of the petitioner can only be considered after lapse of two years of rejection of earlier prayer for premature release. This issue is no more res integra. It has time and again been held by this Court that for the grant of remissions, the life convict would be governed by the policy of remission of government prevailing on the date of judgment of conviction and not the policy which existed on the date of consideration of his premature release. Reliance can be placed on the judgment of the Hon’ble Apex Court in State of Haryana & Ors. Reliance can be placed on the judgment of the Hon’ble Apex Court in State of Haryana & Ors. Vs. Jagdish, [2010(2) Law Herald (P&H) 1121 (SC) : 2010(2) Law Herald (SC) 1346] : 2010(2) RCR (Crl.) 464. Even otherwise, two years have already lapsed from the date when the earlier request of the petitioner for premature release was declined. Therefore, this stand of the State is not sustainable and the case of the petitioner for premature release has to be considered by the State Government in the light of policy instructions prevailing at the time of his conviction and not subsequent one. 6. It is also apparent from the perusal of rejection order (Annexure P-3) that the claim of the petitioner for premature release has been declined on the ground that he has committed heinous crime, but it is nowhere stated that the case of the petitioner does not fall in the category as mentioned in the policy concerning premature release, rather it speaks that the petitioner has undergone the requisite custody. The Competent Authority, thus, has simply adhered to the heinous crime yardstick for which the convict has already suffered. It is not in dispute that he did not indulge in any jail offence, rather the authorities recommended his case for premature release, considering the fact that he had undergone the custody required to be undergone by the inmate convicted for heinous crime. All these vital aspects were not considered by the competent authority while declining the relief. In Jagdish’s case (supra), the Hon’ble Apex Court while dealing with liberty of an individual and highlighting the modern reformative concept of punishment, held as under:- “37. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. “Society without crime is a utopian theory”. The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that “guilty must pay for his crime” should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of “Savage Justice” is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.” 7. No convict has a fundamental right of remission of shortening of sentence, but the order of the State Government while rejecting the case of pre-mature release must have reflection about the subjective satisfaction of the competent authority that the premature release of a convict would be harmful for the society or that there are chances of reoccurrence of offence. Not only this, the persons who are entitled to be released prematurely should not be kept in the prison at the cost of public. Of course the State should protect the law abiding citizens from the criminals, but at the same time, the State also should see that the deserving convicts are released prematurely on completion of prescribed period and are rehabilitated. In Jagdish’s case (supra), Hon’ble Apex Court, while relying upon State of Haryana Vs. Mahender Singh, [2007(4) Law Herald (P&H) 3156 (SC) : 2007(5) Law Herald (SC) 3393] : 2007(4) RCR(Crl.) 909, made the following observations: 38. In Jagdish’s case (supra), Hon’ble Apex Court, while relying upon State of Haryana Vs. Mahender Singh, [2007(4) Law Herald (P&H) 3156 (SC) : 2007(5) Law Herald (SC) 3393] : 2007(4) RCR(Crl.) 909, made the following observations: 38. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socioeconomic condition of the convict’s family and other similar circumstances. 39. Considerations of public policy and humanitarian impulses – supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. ‘Vana Est Illa Potentia Quae Nunquam Venit In Actum’ means-vain is that power which never comes into play. 40. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.” 8. In view of the above, order Annexure P-2 is set aside. Directions are issued to the respondents to re-consider the case of the petitioner in the light of the relevant policy decision(s) framed by the Punjab Government which existed at the time of his conviction and also the guidelines framed by Hon’ble Apex Court in Jagdish case (supra), within four months. In case, the case of the petitioner for premature release is not decided within the stipulated time, the petitioner shall be released on parole on his furnishing personal bond and surety bond to the satisfaction of the District Magistrate concerned. The petitioner shall give an undertaking that he will not leave the country without prior permission of the Court and will keep peace and shall not indulge in any criminal activity during parole. On receipt of order from the State Government, Superintendent, Central Jail, Bathinda, shall inform the petitioner accordingly. 9. The petition is allowed on the aforesaid terms. ---------0.B.S.0------------ —————————