Punjab-Haryana High Court
Gopal Ganesh vs State Of Punjab And Ors on 8 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CRWP No. 101 of 2014 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP No. 101 of 2014 (O&M)
Date of decision : 08.09.2014
Gopal Ganesh ....Petitioner
versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr Prasang Raheja, Advocate
for the petitioner
Mr. Daljeet Singh Virk, AAG, Punjab
****
RITU BAHRI , J. (Oral)
This criminal writ petition under Article 226 of the Constitution of India is for issuance of directions to the respondents to release the petitioner prematurely forthwith in the light of the Punjab Government instructions/policy dated 08.07.1991 (P-1).
Vide order dated 15.10.2013, respondent No. 1 rejected the case of the petitioner of premature release, which is against the Government Policy dated 08.07.1991 on the ground that he had committed rape with 3 year old girl and he had committed heinous crime.
The petitioner was arrested in case F.I.R No. 67 dated GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -2- 11.10.2001 under Sections 376 IPC, Police Station Rehon. Distt. Nawanshahar. He was convicted and sentenced to undergo imprisonment for life, vide order dated 11.02.2003. The petitioner has already undergone more than 12 years 01 months and 06 days of actual sentence of imprisonment and 20 years 01 months 06 days with remissions.
In the present case, the respondents have filed their reply and taken a stand that the petitioner was convicted for having committed rape with a three year old minor girl, which was a very henious (bristle) crime and gave wrong signal to the society and as such releasing of such a life convict on the basis of sympathy prematurely before completing the sentence given by law will give encouragement to other persons to commit such offences and thus his request for premature release was declined.
In a separate reply filed by respondent Nos. 2 and 3, it has been submitted that the petitioner fulfills the conditions for consideration of his premature release case under the instructions dated 08.08.2011 , the premature release case of the petitioner has been initiated by respondent No. 3 vide letter dated 02.01.2012 under the Government Instructions of Para No. 3 (i) Clause (S). Respondent GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -3- No. 2 has forwarded the case of the petitioner to respondent No. 1 along with his recommendation vide letter dated 25.04.2012, which was rejected by respondent No. 1 vide order dated 08.11.2013 (R-1).
As per new guidelines issued by the State Government dated 04.04.2013, a new premature release case of the convict can only be initiated after two years from the date of dismissal of the old case copy of policy dated 04.04.2013 (R-4) The premature release case of the petitioner was rejected on 08.11.2013 and as per policy dated 04.04.2013, the fresh pre mature release case of the convict can only be initiated after a period of two years from the date of dismissal of the old case.
Heard learned counsel for the parties.
The undisputed facts are that the petitioner was arrested in case F.I.R No. 67 dated 11.10.2001 under Sections 376 IPC, Police Station Rehon. He was convicted and sentenced to undergo imprisonment for life, vide order dated 11.02.2003. The offence under Section 376 IPC for committing rape upon minor child as per policy dated 08.08.2011 is not covered under the definition of heinous crime. Hence the case of the petitioner had been rightly recommended by respondent No. 3 for premature release, as it falls in para 3 (1) clause s GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -4- of the policy dated 08.08.2011. The petitioner being convicted for life imprisonment, which was not covered under heinous crime and he has to complete 10 year of actual sentence and with remissions 14 years in custody. The instructions (R-3) came in to being on 08.08.2011. As per the judgment of Hon'ble the Supreme Court in a case of State of Haryana vs. Jagdish, 2010(4) SCC 216 , the government instructions prevails on the date of judgment of conviction and not the policy which exists on the date of consideration for premature release has to be followed by the Government.
Hon'ble the Supreme Court in a case of State of Haryana vs. Jagdish, 2010(4) SCC 216 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 the judgment of conviction and not by the policy which existed on the date of consideration of his for premature release. In paragraph 53 and 54 of the judgment, it has been held as under:-
"53. 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 GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -5- 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 was existing on the date of his conviction.
54. 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 pre-mature release, he should be given benefit thereof."
The date of the conviction of the petitioner being 2003, it was a policy of 08.07.1991, which was to be made applicable for consideration of premature release case of the petitioner. As per the said policy, the case of the petitioner falls in category (c) whereby the petitioner has to go 10 years actual imprisonment and with remission GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -6- 14 years and as per the said policy, the crime does not fall under the definition of heinous crime. Para A of the Heinous Crime read as under:-
"A. Heinous Crime with reference to column 'B' of 1 (I) of above are defined as follows:
I. Offence under Section 302 along with 347 of the I.P.C i.e murder with wrongful confinement for exortion. II. Section 302 with 375 i.e murder with rape. III. Offence under Section of IPC i.e dacoity with murder IV. Offender under Section 302 along with offences under the Terrorist and disruptive Activities (Prevention) Act, 1987. V. Offence under Section 302 along with offence under Untouchability (Offences) Act, 1955 VI. Offence under Section 302 where murder has been committed in connection with any dispute over dowry and this is indicated in the judgment of the trial Court. VII. Offence under Section 302 where the victims is a child under age of 14.
VIII. Any condition under Section 120-B of IPC. Heinous Crime with reference to Column 'D' of the revised policy are defined as follows:-
i) Offence under Section 304(b) of the IPC, i.e a dowry death.
ii) Offence under Section 304 along with Section 347 of the IPC, i.e culpable homicide with rape. GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -7-
iii) Offence under Section 304 with Section 375 i.e culpable homicide with rape.
iv) Offence under Section 304 along with offence
under the Terrorist and Disruptive Activities
(Prevention Act, 1987)
v) Offence under Section 304 where culpable
homicide has been committed in a connection with any dispute on dowry and this is indicated in the judgment of the trial Court.
vi) Offence under Section 304 where the victim is a child under the age of 14 years.
vii) Any conviction under Section 120-B of the IPC i.e for criminal conspiracy in connection with above crimes."
Reference has been made to judgment of Co-ordinate Bench of this Court in a case of Usman Khan vs. State of Punjab and others, passed in CRM-M-625 of 2011, decided on 17.03.2011 whereby the accused was convicted under Sections 302 and 376 IPC and he had undergone 21 years 09 months and 03 days of sentence including remissions. By making reference to the judgment passed by Hon'ble the Supreme Court in a case of Bhagwant Saran and others vs. State of U.P and others 1983 (1) CLR 504, direction was given to the respondents that till the case of premature release of the petitioner is decided by the respondent-State, he shall be released on GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -8- parole on furnishing personal bond and a surety bond to the satisfaction of District Magistrate, Ludhiana. The petitioner shall give an undertaking that he will not leave the country without permission of the Court and will keep peace and shall not indulge in any nefarious activity while on parole.
Reference has further been made to a judgment passed by this Court in a case of Jatinder Kumar @ Bawa vs. State of Punjab and others, passed in CRM-M-30215 of 2012, decided on 02.08.2013 wherein the convict had been imprisoned for life and his case for premature release was rejected as his case falls under heinous crime.
It is not a case of the respondents that the petitioner case for premature release is covered by the definition of heinous crime, as per policy dated 08.08.2011. His case for premature release has been rejected on the ground that he had committed a rape of 03 year of minor child.
As per instructions dated 08.07.1991, the premature release case of the convict can be considered if he is convicted for heinous crime and after completing 14 years of actual imprisonment and 20 years with remissions. As per instructions dated 08.07.1991, the following cases cannot be considered for premature release of the GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -9- convict "5(1) Before completion of a period of 18 to 20 years, below mentioned cases would not be considered for premature release:-
(A) Murdering or killing any elected representative during his/her tenure.
(B) Killing any Government Employee on his duty (C) Murdering/killing any underage girl after committing rape with the girl or murdering someone mercilessly like cutting their body into pieces, dowry deaths etc. (2) Following cases would not be considered for premature release:-
(A) Criminals who are dangerous for the society cannot be released prematurely.
(B) Criminals who cases come under Section 435 of the Cr.P.C 1973."
It is not a case of the respondents that the petitioner's case falls in any of the above exceptions. As per the instructions dated 08.08.2011, the accused has to complete actual imprisonment of 14 years and 20 years with remissions. In the written statement filed by the respondent, it has been stated that the petitioner has been convicted under Section 302 for life imprisonment for a offence which is heinous in nature. As per instructions dated 08.07.1991 the accused who is convicted for life imprisonment for offence in which death is GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -10- penalty the crime is not considered to be heinous, then the case of the petitioner should be sent after completion of actual imprisonment of 10 years and with remissions 14 years. As per custody certificate, the petitioner has already undergone actual sentence of 12 years 05 months and 19 days as on 02.04.2014 and including remissions 20 years 05 months and 19 days.
In view of the above, a direction is given to the respondents to consider the case for premature release of the petitioner, within a period of 4 weeks. It is ordered that in case, the case for pre-mature release of the petitioner is not decided by the respondents within a period of 4 weeks, he shall be released on parole on his furnishing personal bond and a surety bond to the satisfaction of District Magistrate, Ludhiana. 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 nefarious activity whilst on parole. After receipt of order from the State Government, Superintendent, District Jail, Ludhiana shall inform the petitioner accordingly.
The petition stands disposed of in the above terms.
08.09.2014 (RITU BAHRI) G.Arora JUDGE GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document CRWP No. 101 of 2014 -11- GAURAV 2014.10.06 16:13 I attest to the accuracy and integrity of this document