Judgment:
Crl.
Writ Petition No.1098 of 2013 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.
Writ Petition No.1098 of 2013 (O&M) Date of decision : 08.07.2014 Rishi Kesh Rai .....Petitioner versus State of Punjab & Ors..Respondents CORAM:- HON'BLE Ms.JUSTICE ANITA CHAUDHRY1Whether Reporters of local papers may be allowed to see the judgment?.
Yes/No 2.To be referred to the Reporters or not?.
Yes/No 3.Whether the judgment should be reported in the digest?.
Yes/No Present: Mr.S.S.Rana, Advocate for petitioner Rishi Kesh Rai.
Mr.Varun Sharma, AAG Punjab.
-- ANITA CHAUDHRY, J.
The instant writ petition has been filed by the petitioner seeking directions to the respondents to release him prematurely in the light of Government instructions dated 08.07.1991.
The facts, as culled out from the petition, are being noticed first.
Petitioner Rishi Kesh Rai was convicted in FIR No.69 dated 01.04.1997, under Sections 302 IPC and Section 27 of the Arms Act, Police Station Kotwali, Ludhiana and sentenced to undergo life imprisonment for life by the trial Court vide judgment dated 19.01.1999.
The appeal preferred against the said judgment is stated to have been dismissed by this Court.
It is claimed that he has undergone about 15 years of actual sentence and more than 23 years with remissions, he sought his Sharma Jiten 2014.07.18 16:42 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.1098 of 2013 2 premature release, as per the Government instructions dated 08.07.1991.
The grouse of the petitioner is that despite his undergoing the requisite period, coupled with the facts that his conduct in jail had remained satisfactory throughout and he was not involved in any jail offence and that his case for premature release was duly recommended by the authorities, the State Government erred in declining the relief by relying upon the subsequent instructions dated 08.08.2011 and 04.04.2013.
Upon notice, reply been filed by the State of Punjab.
It has been averred that premature release case of petitioner Rishi Kesh Rai was initiated way back on 08.11.2006, but it could not be finalized pending certain modalities as report from the authorities concerned was not received.
However, on 08.08.2011 the State of Punjab issued new instructions, superseding the earlier one, regarding premature release cases, under which the case of the petitioner was again taken up and his case was recommended for his premature release.
But, as he was required to undergo 18 years of actual sentence and 20 years with remissions, under the new policy of 2011 and he had undergone about 14 years of actual sentence, his case was rejected on 25.04.2012.
Further, new policy dated 04.04.2013 has been introduced by the Government under which no case for consideration of premature release could be considered prior to two years of rejection of earlier request.
I have considered the submissions made by learned counsel for the petitioner as well as learned State counsel.
Sharma Jiten 2014.07.18 16:42 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.1098 of 2013 3 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 under the policy instructions dated 08.07.1991 which prevailed at the time when he was sentenced by the trial Court.
There is also no dispute that the conduct of the petitioner as an inmate remained satisfactory throughout and that he was not involved in any kind of jail offence.
However, the primary objection of the State is that his case is not covered under the latest policy instructions and it will be reconsidered only after a period of two yeaRs.The question that arises, which requires adjudication, is that, whether the petitioner is governed by the policy instructions concerning premature release, prevailing at the time of his conviction or under the policies introduced later.
This issue is no more res integra.
The Hon'ble Apex Court in State of Haryana & ORS.versus Jagdish, 2010(2) RCR(Crl.) 464, has held 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.
Para no.43 of the judgment, reads as under:- “43.
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 13.08.2008.
This is evident from a bare perusal of the Sharma Jiten 2014.07.18 16:42 recitals contained in the policies prior to the year I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.1098 of 2013 4 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 the existing on the date of his conviction.
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 premature release, he should be given benefit thereof.”
.
Thus, the policy instructions dated 08.08.2011 or 04.04.2013 have no application to the case of the petitioner, for reconsideration of their claim for premature release.
In view of the above, the impugned order (Annexure R/T-11) 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, within four months.
In case, the case of the petitioner for premature release is not decided Sharma Jitenwithin the stipulated time, the petitioner shall be released on 2014.07.18 16:42 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.
Writ Petition No.1098 of 2013 5 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.
July 08,2014 (ANITA CHAUDHRY) Jiten JUDGE Sharma Jiten 2014.07.18 16:42 I attest to the accuracy and integrity of this document High Court Chandigarh