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2014 DIGILAW 590 (PNJ)

Gurdev v. State of Haryana

2014-03-21

R.P.NAGRATH

body2014
JUDGMENT Mr. R.P. Nagrath, J.:- The petitioner has sought intervention of this Court under Articles 226/227 of the Constitution of India seeking to quash/set aside order dated 03.06.2013 (Annexure P-2) passed by respondent No.1 declining the premature release case of petitioner. 2. Petitioner was convicted in FIR No.523 dated 24.11.1997 for offences under Sections 376/302 IPC, Police Station Kalayat, District Kaithal vide judgement dated 16.8.1999 passed by the trial Court. His appeal against the judgement of conviction and award of sentence was dismissed by this Court on 23.5.2008. 3. Petitioner was awarded imprisonment for life for offence under Section 302 IPC and Rigorous Imprisonment for 10 years for offence under Section 376 IPC and to pay small amount of fine on both these counts. 4. I have heard learned counsel for the petitioner and learned State counsel and after giving my thoughtful consideration to the arguments, I find force in the contention of learned counsel for the petitioner. 5. Before dealing with this question, it would be appropriate to state that the petitioner was found guilty of committing rape and murder of 5/6 years old girl. 6. Petitioner claims benefit of remission policy dated 4.2.1993 as amended on 16.3.1999 (Annexure P-1). Clause 2(a) of the said policy is reproduced as under: – ---------------------------------------------------------------------------------------------------------------------------------------- (a) Convicts whose death sentence has been commuted Their cases may be considered to life imprisonment and convicts who have been after completion of 14 years actual imprisoned for life for having committed a heinous sentence including undertrial crime, such as murder with wrongful confinement, period and after earning at least 6 for extortion/robbery, murder with rape, murder while years remissions or after the com- undergoing life sentence, murder with dacoity, murder pletion of 20 years total sentence under T.D. Act, 1987, murder with Untouchability including undertrial period and (offences), Act, 1955, murder in connection with dowry, remission. bride burning, murder of a child under the age of 14 years, murder of 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 as evident from judgment of sentence, persistent bad conduct in the prisons and those who cannot for some definite reasons be prematurely released without danger to public safety, or convict 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 N.D.P.S. Act or life convicts who have been imprisoned for life second time under any offence or for any other crime that the State Level Committee consider to be “heinous” for reasons to be recorded in writing. ---------------------------------------------------------------------------------------------------------------------------------------- 7. In the impugned order dated 03.06.2013 (Annexure P-2) it has been stated that petitioner has undergone 15 years 04 months and 20 days of actual sentence and more than 20 years of total sentence including the remission period after deducting the parole. 8. The matter was considered by the State Level Committee. Keeping in view the heinous nature of the crime committed by petitioner his premature mature release was not recommended. No ground to decline premature release of petitioner was stated except that the crime committed by petitioner is heinous in nature. These matters have already been dealt with in the policy Annexure P-1. The term heinous crime has been dealt with in clause 2(a) of the policy (Annexure P-1) which includes the persons convicted of the offences of murder with wrongful confinement, for extortion/ robbery, murder with rape etc. Apart from the illustrations mentioned in clause 2(a) of the policy, there can be other cases where the State Level Committee can consider the crime to be heinous for the reasons to be recorded in writing. 9. A similar question was raised before this Court in Jarnail Singh Vs. State of Haryana and others, 1996(2) RCR (Criminal) 512, where the petitioner was convicted and sentenced for rape and murder of a minor girl which fell within the category of a heinous crime. This Court observed as under: – “Policy governing the release of a life convict prematurely is an act of Executive clemency. State of Haryana and others, 1996(2) RCR (Criminal) 512, where the petitioner was convicted and sentenced for rape and murder of a minor girl which fell within the category of a heinous crime. This Court observed as under: – “Policy governing the release of a life convict prematurely is an act of Executive clemency. It is for the Executive Government to decide whether a particular lifer is or is not to be release prematurely after he has remained in jail (actual) for 14 years including undertrial period and other remissions. Still it is expected of the Executive Government that they shall not set at naught the policy carved out by themselves governing the premature release of life convicts.” 10. The guidelines have been laid down by the State keeping in view the reformative policy of prisoners who have undergone the minimum prescribed sentence. 11. Hon’ble Supreme Court in Ramraj @ Nanhoo @ Bihnu Vs. State of Chhattisgarh, [2010(1) Law Herald (SC) 125] : 2010(1) RCR (Criminal) 285 has observed as under:- “17. In the present case, the facts are such that the petitioner is fortunate to have escaped the death penalty. We do not think that this is a fit case where the petitioner should be released on completion of 14 years imprisonment. The petitioner’s case for premature release may be taken up by the concerned authorities after he completes 20 years imprisonment, including remissions earned.” 12. In Union Territory of Chandigarh Vs. Charanjit Kaur, 1996(2) RCR (Criminal) 183, Hon’ble Supreme Court held that period of 14 years of imprisonment is mandatory sentence required to be served under the Code. At best the Court, in an appropriate case, where the prisoner has served the mandatory minimum sentence, may only direct the appropriate Government to consider the commutation of the sentence and prematurely release a particular convict and nothing more. The Government, therefore, has to consider such a direction based upon the conduct of the prisoner and other relevant circumstances and act upon it. 13. Petitioner was about 23/24 years old at the time of commission of the offence. The trial Court did not impose the capital punishment despite holding that a heinous offence was committed by the petitioner. The Government, therefore, has to consider such a direction based upon the conduct of the prisoner and other relevant circumstances and act upon it. 13. Petitioner was about 23/24 years old at the time of commission of the offence. The trial Court did not impose the capital punishment despite holding that a heinous offence was committed by the petitioner. If there is a government policy under which benefits are being extended to the life convicts or other prisoners, the State cannot shy away from considering such cases for premature release even of those prisoners who have undergone the requisite period of sentence as laid down in the policy. If the contention of the State is accepted it would amount to keeping the petitioner in jail till the end of his life which cannot be approved unless there was a specific direction of the Court while awarding sentence. 14. The impugned order of the State government does not refer at all to the conduct of the petitioner while undergoing sentence or other relevant circumstances except by referring to the facts of the case which were considered in the trial and life imprisonment was imposed. 15. In view of the aforesaid discussion, the instant petition is allowed and impugned order dated 03.06.2013 (Annexure P-2) is set aside as the same has not been passed in conformity with the objective of the policy which the State has itself framed and the State of Haryana shall reconsider the premature release case of the petitioner strictly in terms of the policy (Annexure P-1). It is further directed that the State of Haryana would decide the case of the petitioner for premature release afresh expeditiously and preferably within a period of three months from the date of receipt of certified copy of this order. ---------0.B.S.0------------