Punjab-Haryana High Court
Ajay Jadeja Alias Janak vs State Of Haryana And Others on 14 December, 2012
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. W.P. No. 2104 of 2012
DATE OF DECISION : 14.12.2012
Ajay Jadeja alias Janak
.... PETITIONER
Versus
State of Haryana and others
..... RESPONDENTS
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE INDERJIT SINGH
Present : Mr. Vijay K. Jindal, Advocate,
for the petitioner.
***
SATISH KUMAR MITTAL , J.
1. The petitioner, who is undergoing sentence of life imprisonment in Bhondsi Jail, Gurgaon, has filed the instant petition seeking direction to the jail authorities to temporarily release him for three weeks under the provisions of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 (hereinafter referred to as `the Principal Act'), to meet his ailing wife.
2. It is the case of the petitioner that his relative approached the jail authorities at Gurgaon with an application for his temporary release for three weeks, but the office of the Superintendent, Bhondsi Jail, Gurgaon, refused to entertain the said application, on the ground that the petitioner being a `hardcore prisoner', as defined in the Haryana Good Conduct Crl. W.P. No. 2104 of 2012 -2- Prisoners (Temporary Release) Amendment Act, 2012 (hereinafter referred to as `the Amendment Act'), cannot be temporarily released to meet his ailing wife or for her treatment.
3. Vide the Amendment Act (notified on October 01, 2012), Section 5A has been inserted in the Principal Act, which provides that notwithstanding anything contained in sections 3 and 4, a hardcore prisoner shall not be released on temporary basis. However, such prisoner may be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parents-in-laws, parent-in-laws, sibling, spouse or child, under the armed police escort, for a period of forty eight hours to be decided by the concerned Superintendent Jail. Section 2 (aa) of the Principal Act defines `hardcore prisoner', means a person, who has been convicted of dacoity, robbery, kidnapping for ransom, murder with rape, serial killing, contract killing, etc.
4. In the present case, on 30.9.2010, the petitioner was convicted and sentenced to undergo imprisonment for life for the offences under Sections 148, 302/149 IPC. The appeal filed by him against his conviction is pending. Vide order dated 4.5.2012, his application for suspension of sentence during the pendency of appeal was dismissed by this Court and it was ordered that the appeal filed by him and his co-accused will be heard within a period of one year.
5. During the course of arguments, learned counsel for the Crl. W.P. No. 2104 of 2012 -3- petitioner does not dispute that the petitioner falls under the definition of `hardcore prisoner'. He is involved in many serious criminal cases.
6. Learned counsel for the petitioner argued that the provision of Section 5A, which was inserted in the Principal Act by the Amendment Act vide notification dated October 01, 2012, is not applicable to the petitioner, because he was convicted prior to insertion of the aforesaid provision in the Principal Act. While referring to the decision of Hon'ble Supreme Court in State of Haryana and others v. Jagdish, 2010 (4) SCC 216 and a decision of this Court in Bhola Ram v. State of Punjab and others, (Criminal Writ Petition No. 506 of 2007, decided on 17.3.2011), learned counsel argued that the aforesaid amendment is applicable prospectively and it cannot be made applicable retrospectively, in the case of the petitioner, who was convicted prior to insertion of Section 5A in the Principal Act.
7. After hearing learned counsel for the petitioner and going through the provisions of the Principal Act as well as the Amendment Act, and the aforesaid decisions, we are not inclined to accept the aforesaid contention.
8. The right of a convict to get himself released temporarily on parole is not a substantive right. It is a concession given to a convict during his imprisonment, on fulfilling certain conditions. Those conditions have been prescribed by the Principal Act and the Haryana Good Conduct Prisoners (Temporary Release) Rules, 2007. In case of change of conditions Crl. W.P. No. 2104 of 2012 -4- in the Principal Act and the Rules, which became applicable to all the convicts, whether convicted before or after the Amendment Act. Those conditions are to be looked into and applied on the date of making an application for temporary release of a prisoner and putting up the same before the competent authority for its consideration. If on that date, a particular prisoner is not entitled for temporary release, he cannot claim that on the date of his conviction, the Rules were different and he was entitled for temporary release under those Rules and he should be granted the benefit of temporary release.
9. In the present case, it has not been disputed before us that the petitioner is involved in many heinous crimes. He does fall under the definition of `hardcore prisoner' and on 30.9.2010, the date on which the petitioner was convicted, he was involved in many other cases. During the last years, several incidents have occurred, where the `hardcore prisoners' involved in many criminal cases, when temporarily released, have committed serious offences during that period. Keeping in view the said factual position, vide notification dated October 01, 2012, Section 5A has been inserted in the Principal Act, providing that a `hardcore prisoner' shall not be released on temporary basis, and he may only be allowed to attend the marriage of his child, grand child or sibling; or death of his grand parent, parent, grand parents-in-laws, parent-in-laws, sibling, spouse or child, and that too under the armed police escort, for a period of forty eight Crl. W.P. No. 2104 of 2012 -5- hours to be decided by the concerned Superintendent Jail. In this case, the application for temporary release of the petitioner was moved after insertion of the said amendment and the jail authorities declined to entertain the same on the ground that in view of Section 5A inserted in the Principal Act, the petitioner is not entitled to be released on temporary basis to meet his ailing wife or for her treatment. Therefore, in our opinion, the authorities were fully justified in not entertaining the application made on behalf of the petitioner for his temporary release.
10. The judgments, relied upon by learned counsel for the petitioner are not applicable in the present case. In State of Haryana and others v. Jagdish (supra), the issue of pre-mature release of a convict was in question. In this regard, it was observed by the Hon'ble Supreme Court that case of the convict for his pre-mature release is to be considered on the basis of the instructions/rules existing on the date of conviction and the said vested right could not have been taken away on the basis of the subsequent policy restricting the right of pre-mature release, while observing that the 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. There is a difference between pre-mature release and temporary release. Pre-mature release of a convict is a vested right whereas the Crl. W.P. No. 2104 of 2012 -6- temporary release is a concession and not a vested right. Therefore, the said decision would not help the petitioner. The case of Bhola Ram (supra) is with regard to grant of remission under the Punjab Grant of Remission of Punishment Policy, 2010. It was held in that case that the said benefit is to be granted prospectively and not retrospectively. The said policy was held to be applicable prospectively and not retrospectively. Therefore, the said decision has no bearing on the issue involved in the present case.
11. The test to determine whether a particular amendment would operate prospective or retrospective depends upon the question whether it affects vested right of a person. No prisoner has a vested right to get the benefit of temporary release on parole. It is a concession, which is given to a prisoner on fulfilling certain conditions. If on the date of making an application for grant of temporary release, a prisoner fulfills all the conditions applicable in his case, he can be considered for such concession for a limited period. The petitioner, being a hardcore prisoner is not entitled for the said concession. He cannot be granted this concession merely because he was convicted prior to insertion of Section 5A in the Principal Act. In case of a hardcore prisoner, who is involved in many serious crimes, liberal approach cannot be adopted.
12. In view of the aforesaid discussion, we are of the opinion that the jail authorities have rightly declined to entertain the application made on behalf of the petitioner for his release on temporary basis to meet his ailing Crl. W.P. No. 2104 of 2012 -7- wife.
13. Dismissed.
( SATISH KUMAR MITTAL )
JUDGE
December 14, 2012 ( INDERJIT SINGH )
ndj JUDGE