Punjab-Haryana High Court
Gopi Ram @ Gopi Chand vs State Of Haryana on 5 December, 2008
Criminal Misc. No.M-27997 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Misc. No.M-27997 of 2008
Date of decision : 5.12.2008
Gopi Ram @ Gopi Chand .....Petitioner
Versus
State of Haryana ...Respondent
CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. V.K. Jindal, Advocate for the petitioner.
Mr. S.S.Mor, Senior Deputy Advocate General, Haryana
S. D. ANAND, J.
The petitioner was convicted on 2012.1982 Initially, the petitioner ( a lifer) filed Criminal Misc. No.M-3404- 2008 for a similar relief, which was disposed of by a Coordinate Bench of this Court (Sham Sunder, J.) by passing the following order:-
"The counsel for the petitioner submits that the petitioner will be satisfied, if a direction is issued to the respondents to consider his case, for the benefit or pre-mature release, as per the instructions prevailing at the time of his conviction and in view of the judgment of the Apex Court in State of Haryana versus Mahender Singh & Ors. 2007(4) RCR (Criminal)
911. The petition is disposed of, with a direction, to the respondents to consider and decide the case of the petitioner, for premature release, if he is found eligible, in accordance with the provisions of law, Rules and Regulations, and instructions, Criminal Misc. No.M-27997 of 2008 -2- **** issued from time to time, within three weeks, from the date of receipt of a certified copy of the order."
In compliance therewith, the State Level Committee considered the premature release case of the petitioner but declined it by observing that the case falls within the ambit of Section 433-A of the Cr.P.C. As per which a life convict must undergo 14 years of actual sentence and 20 years of total sentence before his case for premature release can be considered. It was noticed that the petitioner herein had completed only 13 years 10 months and 23 days of actual sentence an as on 31.7.2008. The petitioner herein has, thus, completed 14 years of actual sentence now.
Learned counsel for the petitioner argues that the view obtained by the competent authority is violative of law laid down by the Apex Court in State of Haryana Vs. Mahender Singh and others 2007 (4) RCR (Criminal) 909. In that context, learned counsel for the petitioner invites the attention of this Court to an order dated 5.8.2008 passed by a Coordinate Bench of this Court (A.G.Masih, J.) in Criminal Misc. No. 39648-M of 2007. In the opening para thereof, the Court noticed a contention on behalf of the petitioner therein that the instructions prevalent at the time of conviction of the petitioner would be applicable for consideration of a premature release plea in view of the law laid down in Mahender Singh's case (supra). The Bench further noticed that "this position of law is accepted by the counsel for the respondent-State."
In the face thereof, learned State Counsel states that a review petition against the judgment in Mahender Singh's case (supra) has been filed before the Apex Court. He, however, concedes that the judgment in Mahender Singh's case (supra) has not been stayed by the Apex Court Criminal Misc. No.M-27997 of 2008 -3- **** till date.
Even otherwise, it is illogical for the competent authority to insist upon the petitioner to undergo 20 years of actual sentence. A similar controversy came up before a Division Bench of this Court in Crl. Misc. No.12868-M of 2003 (Jiya Lal Vs. State of Haryana and others) In the context, the following observations were made by the Bench while negativing the very premise from which sustenance has been drawn by the Competent Authority in declining the premature release of the petitioner - prisoner:-
"We would also like to notice that condition 2(a) in the instructions dated August 3, 2000 and April 12, 2002, as per reply filed by the State, require a life convict to undergo 14 years actual sentence (inclusive of undertrial period) and total sentence (including remissions) of not less than 20 years. We cannot help noticing that the wording of the condition is not clear. What is meant to be conveyed is that premature release would not be considered before 20 years have been undergone, and even with the benefit of remission, the convict must undergo 14 years. But what seems to be conveyed is that the convict's case shall be considered after 14 years of actual sentence provided that total period of sentence including remissions is not less than 20 years.
In the present case, the convict has completed actual sentence of 14 years. Supposing he has not earned any remission whatsoever, he would have no hope of release until he completes 6 more years. If the convict has undergone 10 years and has earned remission of 10 years, then he would Criminal Misc. No.M-27997 of 2008 -4- **** have completed 20 years with remission but not 14 years of actual sentence. If the clause had been worded ---- "case may be considered after completion of 20 years total sentence, including remissions but only after 14 years of actual sentence, inclusive of undertrial period", it would have been easier to understand.
This conundrum can be explained illustratively. Take the case where the minimum age qualification for a particular post is 25 years but it can be relaxed to 22 years. Therefore, if this provision is drafted as "minimum qualification for the job is 22 years but with relaxation the candidate must be at least 25 years" would it make any sense? We think not. In plain language remission is relaxation. Therefore, remission of sentence is relaxation of sentence. Common sense would require that first the qualifying sentence should be determined and then it should be relaxed. However, the regulation in question requires that first the minimum qualifying period of sentence must be reached at 14 years and then relaxation has to be added to make it upto 20 years."
In the light fore-going discussion, the petition shall stand allowed to the extent that the competent authority is directed to dispose of the premature release case of the petitioner-prisoner in the light of the Apex Court judgment in Mahender Singh's case (supra) which (judgment) is not indicated to have been stayed by the Apex Court till date). The State Level Committee shall keep this aspect in view. It shall also keep in view that the mere filing of the review plea, in the absence of a stay order, does not enable the Committee to defer the applicability of Mahender Singh's Criminal Misc. No.M-27997 of 2008 -5- **** case to the cases of indicated category. The exercise shall be concluded within two months from today.
However, in the meantime, the petitioner shall be released on furnishing of adequate surety etc. undertaking return to the law in case so ordered by this Court. That release is being ordered, as an interim measure, in view of the conceded position that he has already undergone actual sentence and total sentence in terms of the policy prevalent on the date of conviction. It will be for the State counsel to communicate the order to the competent authority.
Copy of the order be given to the learned State counsel under the signatures of the Court Secretary.
December 05, 2008 (S. D. ANAND) Pka JUDGE