Punjab-Haryana High Court
Jaspal Singh And Another vs State Of Punjab And Others on 12 November, 2013
Author: Ritu Bahri
Bench: Ritu Bahri
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP No.147 of 2013
Date of decision : 12.11.2013
Jaspal Singh and another
......Petitioners
Versus
State of Punjab and others
...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present:- Mr. H.S. Sullar, Advocate
for the petitioners.
Mr. A.P.S.Gill, AAG, Punjab.
RITU BAHRI , J.
This writ petition under Article 226 of the Constitution of India is for directing the respondents to release the petitioners after granting them benefit of remission as per the Government Policy dated 08.07.1991. The petitioners were accused in FIR No. 85 dated 21.06.2011 registered under Section 302/34/120-B IPC, 27/29/54 of the Arms Act, registered at Police Station Sadar, Tarn Taran, District Amritsar. The petitioners were convicted as under:-
Section Sentence Fine Default
302 IPC Life 5000/- 6 months R.I.
Imprisonment
27 of Arms Act Six Months R.I. 500/- 1 month R.I.
Pooja Saini
2013.11.19 17:11
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integrity of this document
Chandigarh
-2- CRWP No.147 of 2013
Criminal Appeal No.99-DB of 2004 was dismissed vide order dated 25.01.2008. The petitioners were not guilty of any jail offence nor they committed any offence while on parole.
The case for premature release was recommended by Superintendent, Central Jail, Amritsar.
On notice, reply has been filed by Superintendent of Police , Central Jail, Amritsar. The case of premature release both the petitioners was initiated as per instructions dated 08.07.1991 on 25.02.2011 addressed to the District Magistrate, Tarn Taran for obtaining police verification from the Senior Superintendent of Police, Tarn Taran. The District Magistrate, Tarn Taran recommended the pre-mature release of both the petitioners. However, Punjab Government framed new policy on 08.08.2011 with regard to premature release of life convicts. Accused were again recommended and case was send to respondent No. 2. The District Magistrate, Tarn Taran recommended the pre-mature release of petitioners whereafter respondent No.1 rejected the case of the petitioner in the light of the new policy dated 08.08.2011 in which order dated 21.09.2012 while rejecting the case was considered under Clause 5(1)(a) (Annexure P-7).
As per the policy dated 25.08.2011 (Annexure P-7) clause 5(1) is reproduced as under:-
"5(1) in the following cases premature release cannot be ordered before the completion of 18 or 20 years sentence,
(a) If the murder has been committed of the elected representative (male or female) during his tenure.
(b) If the murder has been committed of some government employee while he is performing his Pooja Saini 2013.11.19 17:11 I attest to the accuracy and integrity of this document Chandigarh -3- CRWP No.147 of 2013 official duties.
(c) If the murder has been committed of a minor girl after committing rape and if murder has been committed by cutting the body into pieces mercilessly, the murder in connection with dowry cases."
The petitioners in the present case were convicted for life for having committed murder of Sarpanch of the village therefore, they were not entitled for premature release as per Clause 5(1)(a). This case was rejected vide order dated 21.09.2012 (Annexures R-1 and R2). Counsel for the petitioners has referred to a judgment passed by Supreme Court in State of Haryana Versus Jagdish 2010(4) SCC 216 to contend that it would be the date of conviction which would be relevant for the policy of the Government which was prevalent at the time of conviction which would be applicable for considering the case of pre-mature release.
I have heard counsel for the parties.
The judgment passed by Supreme Court in the State of Haryana Versus Jagdish has held that for the grant of remissions, the life life convicts 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 premature release. The relevant observation is made in para 43 of the judgment, which is as under:-
"43. The right of the respondent prisoner, therefore, to get his case considered at par with such of his immates, who were entitiled 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 Pooja Saini 2013.11.19 17:11 I attest to the accuracy and integrity of this document Chandigarh -4- CRWP No.147 of 2013 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. 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."
Coordinate Bench of this Court in Criminal Miscellaneous No.M- 8894 of 2013 and in the case Jatinder Kumar @ Bawa versus State of Punjab and others passed in Criminal Misc. No.M-30215 of 2013 decided on 02.08.2013 has followed the judgment of Supreme Court consistently.
In the facts of the present case, the petitioners were convicted on 13.12.2003 therefore, the instructions dated 18.07.1991 would be application for considering his case for premature release as per the Supreme Court judgment.
Respondents are directed to consider the case of the petitioners for premature release within a period of 4 weeks'. However, in case the premature release of the petitioners is not decided by the respondents within a period of 4 weeks', they shall be released on parole on their furnishing personal bonds and surety bonds to the satisfaction of District Magistrate, Pooja Saini 2013.11.19 17:11 I attest to the accuracy and integrity of this document Chandigarh -5- CRWP No.147 of 2013 Amritsar. Petitioners are also directed to give undertaking that they 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, Amritsar is directed to inform the petitioners accordingly.
This petition is disposed of with the above observations. Copy of this order be given to the State under the signatures of the Bench Secretary of this Court.
12.11.2013 (RITU BAHRI)
P.Saini JUDGE
Pooja Saini
2013.11.19 17:11
I attest to the accuracy and
integrity of this document
Chandigarh