ORDER
S.S. Grewal, J.
1. This petition under Articles 226/227 of the Constitution of India, relates to grant of premature release of the petitioner on the basis of the recent instructions issued by the State of Haryana, vide, Memo No. 36/11/86-JJ(2) dated 28-9-1988 (Annexure P-1).
2. According to the petitioner, after his conviction and sentence to undergo imprisonment for life under Section 302 of the Penal Code, vide, order dated 4-5-81 passed by the Sessions Judge, Rohtak, he had already undergone 8 years 6 months and 27 days of actual sentence and same along with under-trial period is 9 years 2 months and 31 days. It was further pleaded that the petitioner had already earned jail remissions for a period of 3 years 3 months and 20 days, whereas, period of remissions granted to him by the Government is to the extent of 2 years and 7 months. Thus, according to the petitioner he had already undergone sentence including remissions for a period of 14 years 5 months and 17 days. It was further pleaded that according to the aforesaid instructions issued by the State Government on 28-9-88, cases for grant of premature release of adult life convicts i.e. above 18 years not convicted for heinous crimes, are, to be considered after completion of 8 1/2 years of substantive detention, including, undertrial/detention period, provided total period of such detention including remissions is not less than 14 years. It was next pleaded that keeping in view instructions mentioned in para 2(c) of the aforesaid Government Instructions (Annexure P-1), the case of the petitioner for consideration of his premature release was recommended by the jail authorities on 19-5-89 and was sent to the Inspector General of Prisons, Haryana, on the same day for onward transmission to the State Government for its consideration. The case of the petitioner for grant of premature release was to be decided within two months of its despatch by the Jail authorities. The petitioner learnt that his case has been considered and deferred/rejected by the State, although no such order has order supplied so far to the petitioner. The petitioner through his counsel vide letter dated 12-10-89 copy whereof is Annexure P-2, requested the State authorities to supply the order. A reminder was also subsequently issued on 23-10-89 to the State, but, to no effect.
3. In the return filed on behalf of respondents Nos. 2 and 3, it was pleaded that the case of the petitioner comes under the purview of Section 433A of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') and that the petitioner cannot claim his premature release as a matter of right. It was pleaded that the request for grant of premature release of the petitioner was deferred for one year on 26/27-10-89, by the State Government, in view of the facts and circumstances, and, the manner in which heinous nature of crime was committed by him and that he was duly apprised of the decision concerning rejection/ deferred for reconsideration after one year.
4. The learned counsel for the parties were heard.
5. On behalf of the petitioner it was mainly contended on the basis of instructions issued by the State Government (Annexure P1) that the case of the petitioner is covered by Clause (c) of para 2 of the instructions, and, not by Clause (d) of para 2 of the instructions.
6. For the sake of convenience the relevant provisions referred to above are reproduced as under:--
c) Adult life convicts (above 18 years) not convicted for heinous crimes as defined in (d) below Their cases may be considered after completion of 8 1/2 years of substantive detention including undertrial/detention period, provided that the total period of such detention including remissions is not less than 14 years
d) Adult life convicts involved in heinous crimes such as dowry deaths, bride burning, spouse killing, and, cases disclosing great depravity of character and greed and those involving extreme brutality murder with rape, murder while undergoing life sentence, organised and professional crimes of heinous nature like dacoity with murder, and life convicts, who are dangerous and hardened criminals, as evidenced for example from cumulative sentences, persistent bad conduct in the prison, and those who could not for some definite reasons be prematurely released without danger to public safety.
After undergoing 14 years actual detention including under trial period.
7. Perusal of copy of judgment of Sessions Judge, Rohtak shows that the present petitioner was convicted on 30-4-1981 under Section 302, I.P.C. for intentionally causing the death of Krishan, a 12 years old child, because of the animosity of the petitioner towards Hari Chand father of the deceased. According to the ocular account the petitioner while armed with an axe went to the field of Hafi Chand, where, the deceased and Naresh Chand PW 14 were watering their fields. The petitioner first gave a blow with his axe to the deceased on his head, who, fell down on receipt of the said injury. Thereafter, the petitioner gave another blow on the head, while, the deceased was lying on the ground. Thereafter, the present petitioner caught hold of the deceased from his legs, and, dragged him in the field of Bhartu up to a distance of five paces from the field of Hari Chand, and, there gave two more blows with the axe to the deceased, one on his face, and, the other on his head.
8. The petitioner was sentenced to undergo imprisonment for life by the learned trial Court, vide, its order dated 4-5-81. From the judgment of the trial Court referred to above, it is quite obvious that the offence committed by the present petitioner in assaulting the deceased, a 12 years old child and causing him four injuries mainly on his head and face, was obviously a brutal and heinous crime against the defenceless deceased.
9. Forced with this situation, it was further submitted by the learned counsel for the petitioner that the offence allegedly committed in the instant case would not be covered by the definition of a heinous crime in Clause (d) of para 2 of the instructions (Annexure P1). A careful perusal of Clause (d) would indicate that the definition of a heinous crime in Clause (d) of para 2 of the Government instructions (Annexure P-1) merely gives instances of some of the crimes such as dowry deaths, bride burning, spouse killing, and, cases disclosing great depravity of character and greed, and, those involving extreme brutality, murder with rape, murder while undergoing life sentence, organised and professional crimes of heinous nature like dacoity with-murder, and life convicts, who, are dangerous and hardened criminal for example from cumulative sentences, persistent bad conduct in the prison, and, includes those, who, could for some definite reasons be prematurely released without danger to the public safety. In my view the case in hand would be covered by the definition in Clause (d) of para 2 of the instructions, inasmuch as the offence committed by the present petitioner discloses great depravity of character and greed. Even otherwise, the instances of heinous crimes mentioned in Clause (d) of para 2 of the instructions are mere illustrations of some of the heinous crimes and the said definition does not cover the entire range of all the cases relating to commission of heinous offences.
10. As already discussed above, the present case relating to the death of brutal murder of 12 years child would be covered by the definition of Clause (d) in para No. 2 and not Clause (c) of said para, as submitted on behalf of the learned counsel for the petitioner. The mere fact that the jail authorities initiated the case for grant of premature release of the petitioner after completion of more than 8 1/2 years of substantive detention, would, not be sufficient to hold that the case of the petitioner would be covered by Clause (c) of para 2 of Government instructions (Annexure P-1) and not Clause (d) of para 2 thereof.
11. While dealing with the cases of the lifers convicted by the Courts, after coming into force of Section 433A of the Code on 18th December, 1978, it was observed by their Lordships of the Supreme Court in Maru Ram v. Union of India AIR 1980 SC 2147 : (1980 Cri LJ 1440), that the Government cannot be put to fault if in some intractably savage delinquents, Section 433A of the Code itself is treated as a guideline for exercise of Articles 72/161. I am further supported in my view on this point by Single Bench Authority of this Court in case Nirmal Singh v. State (1989) 2 Rec. Cr. R. 529.
12. The learned counsel for the petitioner referred to single Bench Authority of this Court in Mithu Singh v. State of Punjab (1989) 1 Rec. Cr. R. 238, wherein, dealing with the case of a life convict under para 516-B of Punjab Jail Manual and 432 of the Code, it was observed that gravity of the offence is merely a factor for awarding the sentence, and, law does not make any distinction between the life convict, who, has committed more than one murder and another life convict who has committed only one murder, for considering the case for grant of premature release. Apart from the fact that the aforesaid authority in Mithu Singh's case (supra) relates to commission of crime of murder much before coming into force of Section 433A of the Code, the old instructions referred therein were issued by the State Government vide letter dated 7-9-1979 for grant of premature release. As such case for grant of premature release of the life convict in the said case was dealt with in accordance with the provision of Section 432 of the Code read with paragraph 516-B of the Punjab Jail Manual. On the other hand, the case of a lifer convicted after coming into force of Section 433A of the Code on 18-12-78, has to be considered, at present, on the basis of the instructions Annexure P-1 and not on the basis of the old instructions including those issued by the State Government vide letter dated 7-9-79. Such old instructions could only survive for consideration of remission of sentence of the life convicts under the clemency power of the Government under Article 161 of the Constitution of India till new instructions contained in Annexure P-1 under Section 433A of the Code came into force, as held by single Bench authority of this Court in Nirmal Singh's case (1989-2 Rec. Cri R 529) supra, as well as in Crl. Writ Petn. No. 220 of 1980 re : Jarnail Singh v. State, decided by Sekhon J., on 16-1-89. Thus as per the Government instructions (Annexure P1) referred to above, the case of the present petitioner, who, has been convicted of heinous offence has to be considered separately under Clause (d) of para 2 of the Government instructions (Annexure P-1), whereas, the case of lifers who were not convicted of any heinous offence has to be considered on different considerations as detailed in Clause (c) of para 2 of the Government instructions. The authority in Mithu Singh's (1989-1 Rec Cri R 238) (Punj & Har) is clearly distinguishable and not applicable to the facts and circumstances of the present case.
13. The learned counsel for the petitioner also referred to Division Bench authority of Delhi High Court in Harbhajan Singh v. Lt. Governor of Delhi (1988) 2 Rec. Cri. R 125 wherein it was observed that gravity of offence is not to be seen for considering the case of premature release. This authority also relates to a case of lifer who was convicted on 14th of June, 1976 i.e. much before coming into force of Section 433A of the Code.
14. For the detailed reasons mentioned above, while dealing with the above cited authority in Mithu Singh's case, the authority in Harbhajan Singh's case (supra) is also clearly distinguishable and not applicable to the facts of the present case.
15. Reliance was further placed on single Bench authority of this Court in Dalbir Singh v. State of Haryana Cri. Writ Petn. No. 1657 of 1989 decided on 12-7-89 wherein without reference to the instructions dated 28-9-1988, issued by the State Government vide memo No. 36/11/86-JJ(2) (Annexure P-1) in the present case including the scope of Clauses (c) and (d) of para 2 of the said instructions, it was observed that the heinousness of the crime is a factor to be considered at the time of awarding the sentence and this is the function of the Court. Once a person is awarded life imprisonment, the perimeter of his punishment is fixed, and, heinousness of the crime does not remain a live factor. It could not continue to haunt the prisoner's case for premature release, in accordance with the general instructions of the Government. The perusal of Clause (c) and (d) of para 2 of the recent Government instructions (Annexure P-1) shows that heinousness of the crime is one of the key factors to be considered for grant of premature release under Article 161 of the Constitution of India. The aforesaid authority in Dalbir Singh's case is also not applicable to the facts of the case in hand and is clearly distinguishable.
16. The next authority relied upon by the learned counsel for the petitioner was Lale v. State of U.P. 1987 SCC (Cri) 224 wherein in the case of a lifer, who, was undergoing sentence in jail since 10-1-69 and had remained in jail for more than 23 years including remissions, the State Government was directed to consider his case for premature release. The facts of the aforecited authority of the apex Court which relates to commission of offence, much prior to coming into force of Section 433A of the Code, relate to facts which are quite different from those of the case in hand. The said authority is not applicable to the ' facts and circumstances of the present case and the same is clearly distinguishable.
17. Another important aspect of the case is that as per return the case of the present convict was deferred on 26/27-10-89 for one year by the State Government and no final decision has been taken so far for grant of premature release of the present petitioner. This petition is premature and is liable to be dismissed on that score also.
18. For the foregoing reasons, this petition is hereby dismissed. It would however be open for the State to reconsider the case for grant of premature release of the petitioner after 27-10-1990 according to law and procedure and the Government instructions applicable at the relevant time.