Punjab-Haryana High Court
Nand Singh vs Ut Of Chandigarh on 18 November, 2014
250
CRWP Nos.759 and 2026 of 2013
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP No.759 of 2013
Date of decision : 18.11.2014
Nand Singh ...... Petitioner
Versus
State of UT, Chandigarh and others ...... Respondents
&
CRWP No.2026 of 2013
Date of decision : 18.11.2014
Subeg Singh ...... Petitioner
Versus
State of UT, Chandigarh and others ...... Respondents
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. R.S. Bains, Advocate
for the petitioner in CRWP No.759 of 2013 and
Mr. V.K. Jindal, Advocate
for the petitioner in CRWP No.2026 of 2013
Ms. Ashima Mor, Standing Counsel
for respondent No.1-UT.
Mr. Deepak Garg, AAG, Punjab.
***
1. Whether Reporters of local papers may be allowed to see the judgment?Yes.
2. To be referred to the Reporters or not? Yes.
3. Whether the judgment should be reported in the Digest? Yes.
AJAY TEWARI, J. (Oral)
These two petitions have been filed challenging the order of the UT, Chandigarh Administration for declining to grant premature release to the SONIA GUGNANI petitioners. Both the petitioners were originally convicted for offences under 2014.12.04 15:35 I attest to the accuracy and integrity of this document 250 CRWP Nos.759 and 2026 of 2013 2 Sections 302/392/380/120-B of Indian Penal Code for the murder of one Bachna Ram. It is also admitted that both these persons have been sentenced to life imprisonment. It is also admitted that both these petitioners have been in custody since 1995 and have undergone more than 22 years of actual imprisonment (including remissions). They moved applications for premature release under the Policy (Annexure P-3). However, the same was rejected by noticing that during their custody, an FIR No. 17 dated 22.01.2004 under Section 121, 121A, 123, 221, 217, 224, 452, 457 of IPC was registered in Police Station Sector 34, Chandigarh showing their involvement in the notorious Burail Jail Break case which is pending till date.
Learned counsel argued that firstly, as per the policy, Annexure P-3 good conduct in jail is a necessary pre-requisite for consideration of case for premature released it has been further laid down that good conduct means that the said convict has not committed any jail offence for a period of 5 years prior to the date of his eligibility for consideration of his case for release. In the present case, the petitioners became eligible in the year 2010 i.e. more than 5 years after the registration of FIR No.17 dated 22.01.2004. The second and more important argument raised by the learned counsel is that after the registration of FIR under these serious offences, ultimately charges were framed against the petitioners only under Section 224 of the IPC (for an attempt to escape from legal custody), and this took place before the issuance of the impugned order. Consequently, the competent Authority erred in law in not considering the actual charge framed and rather acting as if serious charges were still maintained against the petitioners. In the circumstances, they have relied upon the decision of the Hon'ble Supreme SONIA GUGNANI Court in State of Haryana vs. Jagdish, 2010(4) SCC216, to contend that this is 2014.12.04 15:35 I attest to the accuracy and integrity of this document 250 CRWP Nos.759 and 2026 of 2013 3 illegal.
Para No.29 of that judgment is as follows:
"29. There is no dispute to the settled legal proposition that the power exercised under Articles 72/161 could be the subject matter of limited judicial review. (vide Kehar Singh (supra);Ashok Kumar (supra); Swaran Singh v. State of U.P., 1998(2)RCR(Criminal) 267; Satpal & Anr. v. State of Haryana & Ors., 2000(2) RCR (Criminal) 757; and Bikas Chatterjee v. Union of India' (2004) 7 SCC 634). In Epuru Sudhakar (supra) this Court held that the orders under Articles 72/161 could be challenged on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or
wholly irrelevant considerations;
(d) that relevant materials have been kept out of
consideration;
(e) that the order suffers from arbitrariness."
It is the argument of learned counsel for the petitioners that by not noticing the reduction of the charge, and rather acting as if serious charges were still maintained against the petitioners, the competent Authority has violated the above exposition of law.
Learned counsel for the respondents have strenuously argued that SONIA GUGNANI the Burail Jail break was one of the serious offences to rock Chandigarh 2014.12.04 15:35 I attest to the accuracy and integrity of this document 250 CRWP Nos.759 and 2026 of 2013 4 because of which two dreaded terrorists were able to escape and still have not been apprehended for the last more than 10 years thereafter.
To my mind, the argument of the counsel for the petitioner cannot be brushed aside. Once, before the passing of the impugned order, the serious charges had been dropped against the petitioners and only charge under Section 224 IPC was maintained, the competent authority could not have ignored this fact.
In the case of Nand Singh, another reason which has been advanced is that he had participated in a hunger strike against some perceived atrocities. Even if that hunger strike was unjustified, to my mind, it could not be termed either as a jail offence or as 'bad conduct'. This would be impermissible in a country where still we exalt the hunger strike of Shaheed-e- Azam Bhagat Singh even after almost 100 years.
In the circumstances, the impugned order is set aside and a direction is issued to the respondents to re-consider the application for premature release and pass a fresh order in accordance with law. Let the necessary action be taken within two months of receipt of certified copy of the this order.
Disposed of accordingly.
( AJAY TEWARI )
November 18, 2014 JUDGE
sonia g.
SONIA GUGNANI
2014.12.04 15:35
I attest to the accuracy and
integrity of this document