Harbans Singh Vs. State of Punjab and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1140609
CourtPunjab and Haryana High Court
Decided OnMay-15-2014
AppellantHarbans Singh
RespondentState of Punjab and ors.
Excerpt:
crl. writ petition no.1483 of 2013 1 in the high court of punjab & haryana at chandigarh crl. writ petition no.1483 of 2013 (o&m) date of decision : 15.05.2014 harbans singh .....petitioner versus state of punjab & ors..respondents coram:- hon'ble ms.justice anita chaudhry present: mr.s.s.rana, advocate for the petitioner. mr.gazi mohd., dag punjab. -- anita chaudhry, j(oral) through the instant criminal writ petition filed under article 226 of the constitution of india, the petitioner has sought quashing of order dated 13.06.2013 (annexure p-2).whereby his case for premature release, has been declined. the petitioner has sought directions to the respondents to re-consider his case for premature release in the light of government instructions dated 08.07.1991( annexure p-1).the brief facts may now be unfolded. the petitioner was arrested in case fir no.17 dated 31.01.1991, under section 302 ipc, police station jagraon, district ludhiana for having committed the murder of his wife. the trial culminated into his conviction and he was awarded life imprisonment vide judgment dated 16.05.1992. with the plea that he has undergone more sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh crl. writ petition no.1483 of 2013 2 than 15 years and 5 months of actual sentence and more than 23 years and 4 months with remissions, he sought his premature release. it was also alleged in the petition that the petitioner was released on furlough on 06.08.1999, but did not surrender before the jail and was subsequently arrested on 07.08.2006 and a case was registered under the punjab good conduct prisoners (temporary release) act, 1962, in which he was convicted and sentenced to the period already undergone by him. the petitioner filed crl. misc. no.m-10751 of 2011, wherein the state filed the reply to the effect that the petitioner did not fulfill the conditions as he had committed the jail offence by overstaying furlough period and had not completed 5 years of sentence with good conduct after his re-arrest and therefore, his case for premature release could only be initiated after 08.08.2011. the case of the petitioner now is that even after the expiry of 5 years and having undergone 15 years and 5 months of actual sentence and a period of 23 years and 4 months with remissions, he was not being released. it is pleaded that pursuant to his petition in 2011, the jail authorities were directed to initiate his case within three weeks and his case was recommended by the jail superintendent to the government, but it was not considered. he then filed a petition, but it was rejected vide the impugned order on 13.06.2013. upon notice, jail superintendent has filed the reply. the custody certificate (annexure r-2) shows that he has sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh crl. writ petition no.1483 of 2013 3 undergone about 23 years and 04 month of sentence, including remissions and parole of about 08 years.it has been pleaded that the petitioner was released on furlough and he failed to surrender. he was arrested and a case was registered against him. it is pleaded that the petitioner had overstayed 2559 days (7 years).it is pleaded that the petitioner fulfilled the condition for consideration of premature release under instructions dated 08.08.2011 and his case was forwarded and it was considered, but was rejected vide order dated 13.06.2013. it was pleaded that under the new guidelines issued by the state government dated 04.04.2013, the premature release case of the convict can only be initiated after two years from the date of dismissal of old case and his case would now be initiated after the expiry of two years.i have considered the submissions made by learned counsel for the petitioner as well as learned state counsel. as per instructions dated 08.07.1991, the premature release case of the convict can be considered if he is a convict for a heinous crime, after completing 12 years of actual imprisonment and 18 years with remissions, in respect of crimes referred to in column b thereof. the contention made on behalf of the petitioner was that his case does not fall in that category as it was not a case of death on account of dowry and his case would fall in column c where actual imprisonment should be 10 years and 14 years with remissions, but taking the wors.case, even if it is taken that his case would fall under column b, he has sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh crl. writ petition no.1483 of 2013 4 completed that period and the period of 5 years has also been completed after his re-arrest. para 1.1 of this policy (annexure p- 1).in a tabulated form, has categorized the convicts in five categories namely ‘a’, ‘b’, ‘c’, ‘d’ and ‘e’. as per column b, the pre-requisite to seek premature release is that the convicts who have been imprisoned for life for offences for which death is a punishment and have committed serious crime, must have undergone actual imprisonment for 12 years and 18 years with remissions, while clause c, which is meant for the convicts who have been imprisoned for life for offences for which death is a penalty but crime is not considered heinous, the minimum requirement of actual imprisonment is 10 years and 14 years with remissions. as per own stand of the petitioner, his case could be considered under clause b and he has successfully completed the imprisonment period provided under this clause. it is not the case of the respondents that the petitioner does not fulfill the conditions of the policy. the only impediment, according to them, is the new policy which came into existence on 04.04.2013 and the case of the petitioner would now be considered two years after the rejection of earlier request for premature release. 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 sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh crl. writ petition no.1483 of 2013 5 judgment of conviction and not the policy which existed on the date of consideration of his premature release. in para no.43 of the judgment, it has been held:- “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 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 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 case of the petitioner is liable to be re- considered in the light of instructions of 08.07.1991 which were prevalent at the time of his conviction in the year 1992. sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh crl. writ petition no.1483 of 2013 6 in view of the above, the impugned order 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 six weeks. 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, ludhiana, shall inform the petitioner accordingly. the petition is allowed on the aforesaid terms.may 15, 2014 (anita chaudhry) jiten judge sharma jiten 2014.05.20 14:06 i attest to the accuracy and integrity of this document high court chandigarh
Judgment:

Crl.

Writ Petition No.1483 of 2013 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl.

Writ Petition No.1483 of 2013 (O&M) Date of decision : 15.05.2014 Harbans Singh .....Petitioner versus State of Punjab & Ors..Respondents CORAM:- HON'BLE Ms.JUSTICE ANITA CHAUDHRY Present: Mr.S.S.Rana, Advocate for the petitioner.

Mr.Gazi Mohd., DAG Punjab.

-- ANITA CHAUDHRY, J(ORAL) Through the instant criminal writ petition filed under Article 226 of the Constitution of India, the petitioner has sought quashing of order dated 13.06.2013 (Annexure P-2).whereby his case for premature release, has been declined.

The petitioner has sought directions to the respondents to re-consider his case for premature release in the light of government instructions dated 08.07.1991( Annexure P-1).The brief facts may now be unfolded.

The petitioner was arrested in case FIR No.17 dated 31.01.1991, under Section 302 IPC, Police Station Jagraon, District Ludhiana for having committed the murder of his wife.

The trial culminated into his conviction and he was awarded life imprisonment vide judgment dated 16.05.1992.

With the plea that he has undergone more Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Writ Petition No.1483 of 2013 2 than 15 years and 5 months of actual sentence and more than 23 years and 4 months with remissions, he sought his premature release.

It was also alleged in the petition that the petitioner was released on furlough on 06.08.1999, but did not surrender before the jail and was subsequently arrested on 07.08.2006 and a case was registered under the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, in which he was convicted and sentenced to the period already undergone by him.

The petitioner filed Crl.

Misc.

No.M-10751 of 2011, wherein the State filed the reply to the effect that the petitioner did not fulfill the conditions as he had committed the jail offence by overstaying furlough period and had not completed 5 years of sentence with good conduct after his re-arrest and therefore, his case for premature release could only be initiated after 08.08.2011.

The case of the petitioner now is that even after the expiry of 5 years and having undergone 15 years and 5 months of actual sentence and a period of 23 years and 4 months with remissions, he was not being released.

It is pleaded that pursuant to his petition in 2011, the jail authorities were directed to initiate his case within three weeks and his case was recommended by the Jail Superintendent to the Government, but it was not considered.

He then filed a petition, but it was rejected vide the impugned order on 13.06.2013.

Upon notice, Jail Superintendent has filed the reply.

The custody certificate (Annexure R-2) shows that he has Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Writ Petition No.1483 of 2013 3 undergone about 23 years and 04 month of sentence, including remissions and parole of about 08 yeaRs.It has been pleaded that the petitioner was released on furlough and he failed to surrender.

He was arrested and a case was registered against him.

It is pleaded that the petitioner had overstayed 2559 days (7 years).It is pleaded that the petitioner fulfilled the condition for consideration of premature release under instructions dated 08.08.2011 and his case was forwarded and it was considered, but was rejected vide order dated 13.06.2013.

It was pleaded that under the new guidelines issued by the State Government dated 04.04.2013, the premature release case of the convict can only be initiated after two years from the date of dismissal of old case and his case would now be initiated after the expiry of two yeaRs.I have considered the submissions made by learned counsel for the petitioner as well as learned State counsel.

As per instructions dated 08.07.1991, the premature release case of the convict can be considered if he is a convict for a heinous crime, after completing 12 years of actual imprisonment and 18 years with remissions, in respect of crimes referred to in column B thereof.

The contention made on behalf of the petitioner was that his case does not fall in that category as it was not a case of death on account of dowry and his case would fall in Column C where actual imprisonment should be 10 years and 14 years with remissions, but taking the wORS.case, even if it is taken that his case would fall under Column B, he has Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Writ Petition No.1483 of 2013 4 completed that period and the period of 5 years has also been completed after his re-arrest.

Para 1.1 of this policy (Annexure P- 1).in a tabulated form, has categorized the convicts in five categories namely ‘A’, ‘B’, ‘C’, ‘D’ and ‘E’.

As per column B, the pre-requisite to seek premature release is that the convicts who have been imprisoned for life for offences for which death is a punishment and have committed serious crime, must have undergone actual imprisonment for 12 years and 18 years with remissions, while Clause C, which is meant for the convicts who have been imprisoned for life for offences for which death is a penalty but crime is not considered heinous, the minimum requirement of actual imprisonment is 10 years and 14 years with remissions.

As per own stand of the petitioner, his case could be considered under Clause B and he has successfully completed the imprisonment period provided under this clause.

It is not the case of the respondents that the petitioner does not fulfill the conditions of the policy.

The only impediment, according to them, is the new policy which came into existence on 04.04.2013 and the case of the petitioner would now be considered two years after the rejection of earlier request for premature release.

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 Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Writ Petition No.1483 of 2013 5 judgment of conviction and not the policy which existed on the date of consideration of his premature release.

In para no.43 of the judgment, it has been held:- “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 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 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 case of the petitioner is liable to be re- considered in the light of instructions of 08.07.1991 which were prevalent at the time of his conviction in the year 1992.

Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.

Writ Petition No.1483 of 2013 6 In view of the above, the impugned order 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 six weeks.

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, Ludhiana, shall inform the petitioner accordingly.

The petition is allowed on the aforesaid terMs.May 15, 2014 (ANITA CHAUDHRY) Jiten JUDGE Sharma Jiten 2014.05.20 14:06 I attest to the accuracy and integrity of this document High Court Chandigarh