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Madhya Pradesh High Court · body

2019 DIGILAW 197 (MP)

Sobaran Singh v. State of M. P.

2019-03-05

SHEEL NAGU

body2019
ORDER 1. The petitioner is a life convict as per judgment dated 1.10.1994 in Sessions Trial No. 42/90 rendered by the learned Sessions Judge, Datia (M.P.) in a case of double murder which took place on 19.9.1989. This conviction was confirmed by the Division Bench of this Court by dismissal of Cr.A.No. 210/94 by judgment dated 9.3.2004. 2. The petitioner is before this Court making his grievance that co-convicted person namely, Mahendra who had also suffered similar conviction and sentence in the same offence has since been extended benefit of remission by the State Government by order dated 16.12.2008 and has been released on 26.1.2009 vide P-4. However, the claim of the petitioner has been rejected by AnnexureP-1 dated 21.12.2017 on the ground that at the time when the said co-convicted person was released under the then prevailing policy of remission, petitioner was denied release for not having completed 14 years custody under the new policy of remission which came into effect from 10.1.2012 P-6 prescribing additional pre-condition of custody of 20 years for becoming eligible for remission. 3. It is pertinent to point out that the said pre-requisite of completion of 20 years of custody was not part of earlier policy dated 16.12.2008 under which said co-convicted Mahendra was extended benefit of remission to be released on completing period of 14 years of incarceration. 4. Learned counsel for the petitioner has drawn attention of this Court to the 3 judge bench decision of the apex Court in the case of State of Haryana and others v. Jagdish [ (2010) 4 SCC 216 ], which inter alia lays down as follows : 52. We have already noticed that the earlier policies including the policy dated 4.2.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is in exercise of the powers under section 432 read with sections 433 and 433A of CrPC The restriction under section 433A is only to the extent of the powers to be exercised in respect of offences as referred to under section 432 CrPC The notification dated 13.8.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993. 53. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993. 53. The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.8.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction. 54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre-mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for pre-mature release, he should be given benefit thereof. 55. As per the information furnished by the appellant State of Haryana, the respondent Jagdish has served more than 14 years (actual) on 12.2.2009 i.e. prior to the date of judgment impugned herein dated 17.2.2009. By now, the respondent has served (actual) for more than 15 years. Respondent falls in category 3 of the prisoners as he did not indulge in any organised crime. 56. Accordingly, for the reasons given hereinabove, we find no reason to interfere with the judgment of the High Court, which is hereby affirmed. The appeal is dismissed accordingly, subject to the direction that the appellant-State Government shall proceed to calculate the sentence for the purpose of consideration of remission in the case of the respondent as per the policy dated 4.2.1993." 5. The appeal is dismissed accordingly, subject to the direction that the appellant-State Government shall proceed to calculate the sentence for the purpose of consideration of remission in the case of the respondent as per the policy dated 4.2.1993." 5. From the above it appears that difference of opinion which existed on the point of applicability of policy of remission prevailing at the time of conviction or not was sorted out by the apex Court and it was held that if co-convicted person has been benefited under an earlier policy, which was comparatively more beneficial than the subsequently introduced policy then the petitioner cannot be denied the same benefit merely because the new policy introduces an additional condition. The said decision also lays down that policy of remission prevailing at the time of conviction would apply. 5.1 Pertinently, there is nothing on record to reflect as to what was the policy of remission of offence at the time when petitioner stood convicted for the first time in 1994. 6. In view of the above undisputed facts and the law laid down by the apex Court in State of Haryana and others (supra), the present petition stands disposed of with direction to respondents No. 1 and 2 to re-consider the case of petitioner without being influenced by Annexure-P-1 dated 21.12.2017 in the light of policy which prevailed at the time when the petitioner was convicted in 1994 and thereafter pass fresh speaking order within a period of one month from the date of receipt of certified copy of this order. 7. Needless to emphasize that if petitioner is entitled to relief of remission then the same be extended forthwith if not wanted in any other criminal case.