Punjab-Haryana High Court
Vinod vs State Of Haryana And Others on 8 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CRWP No 1561 of 2013 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP No. 1561 of 2013 (O&M)
Date of decision : 08.09.2014
Vinod ....Petitioner
versus
State of Haryana and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Mr Vijay K. Jindal, Advocate
for the petitioner
Ms. Kirti Singh, DAG, Haryana
****
RITU BAHRI , J. (Oral)
This petition under Article 226/227 of the Constitution of India is for issuance of writ in the nature of habeaus holding that the petitioner has been illegally deprived of the benefit of premature release, under Haryana Government Policy (P-3).
The petitioner along with other co-accused i.e Jai Narayan and Smt. Shanti were facing a trial in F.I.R No. 641 dated 04.10.1994 under Sections 304-B IPC. The petitioner along with co-accused Shanti were held guilty under Section 302 IPC and were awarded punishment of life imprisonment along with fine of Rs.5000/-. However, the other co-accused Jai Narayan was acquitted by the Court. The appeal against GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -2- this judgment was also dismissed. However, the accused Shanti Devi had been released prematurely in May/June, 2011, by the Government of Haryana, in exercise of their power under Article 161 of the Constitution. As per reply dated 22.09.2013 filed by District Jail, Rohtak, the petitioner has undergone 13 years 04 months and 20 days of actual sentence including remission.
The petitioner is now seeking his premature release, in view of the policy dated 04.2.1993 of the Haryana Government (P-2), as it was applicable at the time of conviction of the petitioner on 26.11.1996 and also keeping in view the fact that co-accused had been released prematurely by the Government of Haryana.
The petitioner is relying upon para 2(b) of policy dated 04.02.1993 (P-2), which reads as under:-
(b) Adults life convicts who have been Their case may be considered after imprisoned for life but whose cases are not completion of 10 years of actual covered under (a) above and who have sentence including undertrial period, committed crime, which are not considered provided that the total period of such heinous as mentioned in clause (a) above sentence including remissions is not less than 14 years.
Subsequently, the above policy dated 04.02.1993 was amended on 17.07.1997 and as per amended policy, the Murder of Women is also covered under the definition of Heinous Crime. However, the case of the petitioner is not being considered by the Competent Authority, keeping in view the amended notification dated GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -3- 17.07.1997 (P-3).
Learned counsel for the petitioner has referred to para 26 of the judgment dated 26.11.1996 whereby the role of the petitioner has been discussed in detail. Dinesh Kumari in her first statement Ex PJ as well as in her second statement Ex PL/III implicates that her mother in law poured kerosene oil upon her and her Dewar lit a match stick and set her on fire, in the presence of her husband and whole night she was crying for help and requesting to take her to hospital but she was taken to hospital next morning. The role attributed to the present petitioner that he did not make any attempt to save her wife.
The petitioner was convicted on 26.11.1996 and was sentenced on 03.12.1996. Thus the policy dated 04.02.1993 (P-2) is applicable to him for premature release.
On notice, a reply dated 22.09.2013 has been filed by Supdt. District Jail, Rohtak. As per reply, the accused has already undergone 13 years 04 months and 20 days of total sentence including remission. The respondents have taken a stand that as the petitioner was convicted on 03.12.1996, therefore, the premature release case of the petitioner comes under the purview of para 2(a) of the State Government policy dated 04.02.1993, being a case of bride burning GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -4- and thus the petitioner has to undergo 14 years of actual sentence including under-trial period and after earning at least 06 years remission being a case of bride burning. Thus his case has not been recommended so far.
Another affidavit dated 07.07.2014 has been filed by Sanjay Joon, IAS, Special Secretary to Government of Haryana, Jails Department, Haryana Civil Secretariat, Chandigarh on behalf of respondent No. 1 wherein in para 12 of the affidavit, it has been stated that the premature release case of the petitioner is not required to place before the State Level Committee as the policy dated 04.2.1993 is clear and as per para 2(a) of this policy, he has not complete the requisite sentence. Further in para 5, it has been stated that being a female convict, the premature release case of the co- accused Smt. Shanti Devi falls under para 2(c) of the premature release policy dated 04.02.1993, as per this para, she was required to undergo 8 years of actual sentence including under-trial period and 10 years of total sentence including remission, which she completed and was released from jail.
The case of the petitioner has been considered as per para 2(a) of policy dated 04.02.1993 whereby the accused who had been GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -5- convicted for life for having committed the heinous crime which includes bride burning, their cases may be considered after completion of 14 years actual sentence and including under-trial period and after earning at least 6 years remission. However, at the same time, the case of co-accused Smt. Shanti Devi was considered as per Para 2(c) of the policy whereby the case of female life convict can be considered for premature release after completion of 08 years including under-trial period of such sentences including remission is not less than 10 years.
Once both the accused have been convicted for the same offence and were sentenced to undergo life imprisonment, it cannot be accepted that in the category of henious crime of bride burning, the convict has to be male. From the judgment, it transpires that it was Shanti Devi who had poured kerosene oil and Dewar lit a match stick and set her on fire, in the presence of her husband. Thus, her case should also falls in para 2 (a) of the above policy.
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 police of remission of Government prevailing on the date the judgment of GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -6- conviction and not by the policy which existed on the date of consideration of his for premature release. In paragraphs 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 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 GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -7- 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 petitioner remained on jail from 20.08.1998 to 06.05.2005 during the pendency of the appeal in Hon'ble the Supreme Court against the judgment of this Court. Petitioner is also entitled to the remissions granted by Governement of Haryana during bail period but the same have not been extended to him. If the remissions granted by the State of Haryana during the period 20.08.1998 to 06.05.2005 are taken in to consideration, the sentence undergone by the petitioner exceeds 10 years actual imprisonment and 14 years including remission.
In view of the above, a direction is given to respondent No. 1 to place the case of the petitioner before State Level Committee, who shall examine the issue as to how the co-accused Shanti Devi was given the benefit of para 2 (c) of policy dated 04.02.1993 by not considering his case under the category of heinous crime and why the petitioner was not given the said benefit. A detailed speaking order be passed within a period of four months from the date of receipt of certified copy of this order. It is ordered that in case, the case for pre- mature release of the petitioner is not decided by the respondents GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document CRWP No 1561 of 2013 -8- within a period of 4 months, it is ordered that the petitioner shall be released on parole on his furnishing personal bond and a surety bond to the satisfaction of District Magistrate, Rohtak. 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, Rohtak shall inform the petitioner accordingly.
The petition stands allowed in the above terms.
A copy of this order be given dasti to learned State counsel under the signatures of Special Secretary attached to this Court.
08.09.2014 (RITU BAHRI) G.Arora JUDGE GAURAV 2014.10.06 16:14 I attest to the accuracy and integrity of this document