Punjab-Haryana High Court
Jagdish vs State Of Haryana on 26 August, 1996
Equivalent citations: I(1997)DMC230
Author: M.L. Singhal
Bench: M.L. Singhal
JUDGMENT M.L. Singhal, J.
1. This is Criminal Miscellaneous No. 6602-M of 1996 filed by Jagdish son of Shri Ram Dhari against the State of Haryana through the Secretary to Government of Haryana, Department of Home Affairs (Jail Administration Branch). Civil Secretariat, Chandigarh, under Articles 226 and 227 of the Constitution of India, read with Section 482, Cr.P.C. for issuance of writ, order or direction that he be released prematurely from jail. It is alleged by him that he was convicted and sentenced to undergo imprisonment for life by Sessions Judge, Karnal on 6.1.1984 under Sections 302/34 of Indian Penal Code. Since 5.1.1984 he has been undergoing the sentence of imprisonment. Prior to 5.1.1984 he was in jail as an under-trial since 1.4.1983. His mother was co-accused/co-convict with him. She died during the currency of this convictional period. He thus suffered bereavement over the death of his mother which took place on 30.1.1985. He has undergone 9 months and 4 days detention as an under-trial. He has undergone 12 years, 3 months and 10 days detention as a convict. He has thus undergone 13 years and 14 days imprisonment in jail. He has earned remissions to the extent of 6 years, 3 months and 10 days. Besides, he has enjoyed one parole of 2 months, duration and one furlough to the tune of one month and 12 days duration. He has thus undergone total imprisonment to the extent of 19 years, 7 months and 6 days. He is required to undergo 10 years actual imprisonment and 14 years imprisonment including remissions. He has undergone 19 years, 7 months and 6 days imprisonment in total including remissions.
2. The Government of Haryana took a policy decision and issued instructions in the exercise of powers vesting with the Government under Article 161 of the Constitution of India to release the convict-prisoners prematurely and directed vide letter 7483/2/JJ/30099 dated 18.11.1987 to put up the cases of those prisoners/convicts who could be released prematurely. Vide letter No. 36/11/88-JJ(2) dated 28.9.1988, the Government of Haryana issued fresh instructions to initiate the cases for premature release of the eligible convicts/prisoners of different categories. The petitioner's case was also falling within one of those categories. Still his case was not recommended by the Jail Authorities to the Government for decision under the aforesaid instructions. The Government of Haryana revised the said instructions and issued fresh instructions vide letter dated 19.11.1991 regarding the premature release of convicts/prisoners categorising them under different categories. These instructions are embodied in Annexure P/2. According to these instructions also, he had qualified for his premature release as his case also falls within the ambit of Clause 2(b) of these instructions. Under the instructions of 1991 Clause 2(b) adult life-convicts who have been imprisoned for life but whose cases are not covered by Clause 2(a) and who have committed crimes which are not considered heinous as mentioned in Clause 2(a) or for other life convicts imprisoned for life for offences for which death penalty is not a punishment/ their cases may be considered after 10 years of actual sentence including under trial period, provided that the total period of such sentence including remissions is not less than 14 years. The Superintendent Central Jail, Ambala forwarded his case for premature release to the State Government as he was fully satisfied that he was entitled to be released in view of Section 2(b)of the 1991 instructions as the crime committed by him was not heinous. So far no decision has been taken by the State Government on the recommendation of the Superintendent, Central Jail, Ambala. Government of Haryana has supplemented the instructions dated 19.11.1991 (Annexure P/2) by the instructions dated 4.2.1993 (Annexure P/3). The petitioner has given similar instances where the convicts/prisoners have been allowed premature release in view of Clause 2(b) of the instructions dated 19.11.1991 (Annexure P/2). In a sense, the prayer of the petitioner is that his case falls within the ambit of Clause 2(b) of the instructions dated 4.2.1993 (Annexure P/3). He in entitled to be allowed premature release as he has undergone 10 years of actual sentence and more than 14 years of sentence including remissions. The premature release cannot be denied simply because it is likely to affect peace and tranquillity in the locality, particularly when there is no basis for the formation of such an opinion. Similarly premature release cannot be denied because there are strained relations of the convict with the opposite party.
3. The respondents have opposed the premature release of the petitioner. It is argued by the respondents that the premature release case of the petitioner was put up before the State Level Committee on 18.8.1995 and the Committee observed that this life convict alongwith his father and mother committed the murder of Smt. Krishna, his wife by sprinkling kerosene on her and setting her ablaze because the accused and his parents were aggrieved that Smt. Krishna had not brought sufficient dowry. The State Level Committee recommended that his case for premature release may be considered after completion of 14 years of actual sentence including the under trial period and after earning at least 6 years remissions under Para 2(a) of the Government instructions dated 4.2.1993. The State Government vide order dated 26.7.1994. (Annexure R/l) accepted the recommendations of the State Level Committee. He has not yet undergone 14 years of actual sentence as required by Government order dated 26.7.1994. It was a dowry death. According to the instructions of the Government, convicts/ prisoners of dowry deaths have to undergo 14 years of actual sentence and after earning 6 years of remissions they are entitled to be considered for premature release.
4. It is contended by the learned Counsel for the petitioner that the petitioner's case falls within the ambit of Clause 2(b) of the instructions (Annexure P/2) dated 19.11.1991, according to which adult life convicts who have been imprisoned for life but whose cases are not covered under Clause 2(a) and who have committed crimes which are not considered heinous, as mentioned in Clause 2(a) or other life convicts imprisoned for offences for which death penalty is not a punishment; their cases may be considered after completion of 10 years of actual sentence including under trial period, provided that the total period of such sentence including remissions is not less than 14 years. Under Clause 2(b) of instructions (Annexure P/3) dated 4.2.1993, adult life convicts who have been imprisoned for life but whose cases are not covered under Clause 2(a) and who have committed crimes which are not considered heinous as mentioned in Clause 2(a), their cases may be considered after the completion of 10 years imprisonment including the under trial period, provided that the total period of such sentence including remissions is not less than 14 years.
5. The petitioner was convicted under Sections 302/34 of the Indian Penal Code for the murder of his wife Smt. Krishna. His father and mother were also convicted under Sections 302/34 alongwith him. Annexure P/l is the judgment of the learned Sessions Judge, Karnal, convicting and sentencing the petitioner, his mother and father to imprisonment for life. According to the prosecution, they were not satisfied with the dowry which Smt. Krishna, wife of the petitioner had brought in marriage. She had not brought radio, fan and steel utensils in dowry. They treated her shabbily. On 25.3.1983 they poured kerosene on her and set her ablaze. According to the prosecution, on 25.3.1983 at about 12.00 noon, Smt. Krishna was sitting in the 'Chaubara'. Her husband and mother-in-law came there and started cursing her. She kept sitting silent. Her mother-in-law brought kerosene, her husband and father-in-law caught hold of her and her mother-in-law sprinkled kerosene on her and lit a match-stick and set her ablaze.
6. In Virbhan Singh and Anr. v. State of U.P., 1983 Criminal Law Journal 1635 : AIR 1983 Supreme Court 1002, their Lordships of the Supreme Court observed that the instances of bride killing are alarmingly on the increase. If society should be ridden of this growing evil, it is imperative that whenever dastardly crimes of this nature are detected and the offence brought home to the accused, the Courts must deal with the offender most ruthlessly and impose deterrent punishment. The learned Sessions Judge while hearing the accused on the question of sentence observed so in Para 2 (Page 46 of the paper book) that he is in respectful agreement with this observation of the Hon'ble Supreme Court. However, he felt that the ends of justice will be squarely met, if the three accused are sentenced to life imprisonment. It is thus clear that the learned Sessions Judge was appreciating the heinousness of the crime for which the accused had been charged. He was also appreciating the fact that law should pounce upon such an accused with a very firm grip keeping in view that such acts are on the increase and they detract from the respect with which we ought to hold out womenfolk. WomeiLare an important segment of the society. They constitute the bulk of our population. Man and woman are the two wheels of the chariot of life. Man is born of woman. He should not deny her due. The word "heinous" has not been defined anywhere. There may still be cases which may not strictly fall within the ambit of Para 2(a) of 1991 instructions, and still they may be heinous offences. What can be more heinous than the commission of the murder of one's wife by pouring kerosene on her and setting her ablaze ? A convict convicted of murder in connection with dowry or convicted of murder for bride burning falls within Clause 2(a) of 1993 instructions. It lays down that such a convict can have his case considered for premature release after completion of 14 years of actual sentence including under trial period and after earning at least six years remissions. In 1991 instructions also, a convict convicted of murder in connection with dowry or a convict convicted of murder for bride burning, could have his case considered for premature release after he had completed 14 years of actual sentence including the under-trial period and after earning at least six years remissions. In 1993 instructions, instances have been given where murder can be categorised as a heinous crime if it falls within the sweep of certain categories enumerated therein.
7. So far as the petitioner is concerned, his case does not fal within the ambit of para 2(b) of the instructions of 1991 and 1993 instructions. His case squarely falls within Para 2(a) of 1991 instructions or 1993 instructions. It was highly heinous and foul on his part to set his wife on fire and kill her. In my opinion, the case of the petitioner squarely falls within the ambit of Para 2(a) of the 1991 instructions or Para 2(a) of 1993 instructions. His case definitely does not fall within the ambit of Para 2(b) of 1991 instructions or 1993 instructions. Even otherwise, these instructions are merely guidelines. Each such case could not have been visualised by the executive Government. Section 433-A, Cr.P.C. was introduced in the Criminal Procedure Code by Criminal Law (Amendment) Act, 1978 with effect from 18.12.1978. Section 433-A, Cr.P.C. reads as follows :
"Notwithstanding anything contained in Section 432 where sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least 14 years of imprisonment."
8. In Maru Ram v. Union of India, AIR 1980 SC 2147, the Hon'ble Supreme Court held that while exercising the powers under Articles 72 and 161 of the Constitution, neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and the executive power. The State Government has thus to take into account while issuing instructions in the exercise of the powers under Article 161 of the Constitution that the object, spirit and philosophy of Section 433-A is not overlooked. Similarly, while issuing these instructions, the Government has to take into account that these instructions do not defeat the object sought to be achieved by Section 433-A, Cr.P.C. In Godse's case, AIR 1961 SC 600, the Hon'ble Supreme Court laid down that imprisonment for life is imprisonment for the whole of one's remaining life. A lifer must breath his last breath in jail. Remissions can work only after a lifer has served 14 years of actual imprisonment in jail. This is the intent of Section 433-A of the Cr.P.C. The objects and reasons throw light on the 'why' of these new provisions. Code of Criminal Procedure, 1973 came into force on the 1st day of April, 1974. The working of the new Code has been carefully watched and in the light of the experience, it has been found necessary to make a few changes for removing certain difficulties and doubts. The notes on clauses explain in brief the reasons for the amendments. The notes on clauses give further explanation : Clause 33: Section 432 contains provisions relating to powers of the appropriate Government to suspend or remit sentences. The Joint Committee on the Indian Penal Code (Amendment) Bill, 1972, had suggested the insertion of a proviso to Section 57 of the Indian Penal Code to the effect that a person who has been sentenced to death and whose death sentence has been commuted into that of life imprisonment and persons who have been sentenced to life imprisonment for a capital offence should undergo actual imprisonment of 14 years in jail. Since this particular matter relates more appropriately to the Criminal Procedure Code, a new section is being inserted to cover the proviso inserted by the Joint Committee. Shortly put, the Parliamentary Committee concerned with the amendments to the Penal Code was seriously upset by the gross reductions and remissions resulting in premature releases of life sentences for capital offences. This proposal was transposed into the Criminal Procedure Code (Amendment) Bill in Clause 33 and eventuated in the incarnation of Section 433-A with none in Parliament shedding a human rights tear. Section 433-A was inserted in the Code of Criminal Procedure with effect from 18.12.1978 so that murderer remains in jail actually for at least 14 years remissions notwithstanding.
9. In view of that has been said above, it is ordered that the respondents shall consider the petitioner's prayer for premature release on the assumption that his case falls within the ambit of Para 2(a) of 1993 instructions and further keeping in view that these instructions do not defeat the intention of the Parliament reflected in Section 433-A of Criminal Procedure Code. Period during which the petitioner has been on parole 'shall be counted while calculating the actual sentence he is required' to serve before claiming premature release. He must remain in jail actually for 14 years, remissions notwithstanding. Remissions will work after he has remained in jail actually for 14 years. This Criminal Miscellaneous Petition is disposed of with these observations.