Punjab-Haryana High Court
Abdul Gaffar @ Guddu vs State Of U.T on 30 May, 2012
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 1 }:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: MAY 30, 2012
Abdul Gaffar @ Guddu
.....Petitioner
VERSUS
State of U.T., Chandigarh and others
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: None for the petitioner.
Mr. J. S. Toor, Advocate,
for respondent Nos.1,2 and 5.
Mr. K. S. Pannu, DAG, Punjab,
for the State.
*****
RANJIT SINGH, J.
Abdul Gaffar undergoing imprisonment for life at maximum security jail, Nabha, District Patiala, has approached this Court for issuing writ of habeas corpus on the ground that his continued detention is illegal and arbitrary as he has undergone the complete sentence imposed on him but still has not been released from custody.
The petitioner was tried and convicted on 13.7.2000 in a case FIR No.75, dated 13.7.1997. The petitioner was sentenced to undergo separate life imprisonment upon his conviction under CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 2 }:
Section 302 read with Section 34 IPC for these separate offences of murder. It is pleaded that the petitioner has been confined in jail for about 14 years. Giving the details of the period of his custody, it is stated that the petitioner has undergone custody as under-trial from 28.7.1997 to 12.7.2000 i.e. for a period of 2 years 11 months and 14 days. Thereafter, the petitioner has undergone a period of over 11 years as on 18.7.2011. By excluding the period of parole, the petitioner has, thus, undergone a total period of custody for 13 years 6 months and 1 day as on 18.7.2011. The petitioner claims to have maintained good conduct in jail.
The contents of the reply filed by Union Territory, Chandigarh, would show that the petitioner had murdered one Pushpa Rani, Uma Rani and Baby Milli by entering into House No.1235, Sector 18-C, Chandigarh. This house was occupied by widow lady alongwith her daughter-in-law and grand daughter. For committing these three murders, the petitioner was convicted separately and imposed three separate life sentences, in addition to five years rigorous imprisonment under Section 394 IPC.
It is also stated that the case of pre-mature release of the petitioner was considered by Inspector General of Police, U.T., and the report from the District Magistrate, Meerut (U.P.) was called for and received. It is stated in the report that the petitioner is involved in murder and dacoity case at Chandigarh and that there is a possibility of the petitioner indulging in illegal activities if released prematurely. It is also mentioned that conduct of the petitioner has not remained satisfactory and he had to be transferred to Central Jail, Ferozepur, CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 3 }:
for this reason and was now confined at District Jail, Nabha. It is otherwise stated that the petitioner has undergone 14 years 7 months and 14 days as actual period of custody as on 13.3.2012. He has earned a remission of 5 years 9 months and 5 days and, thus, total period of custody works out to be 20 years 4 months and 19 days. Excluding the period of parole, the petitioner has statedly undergone custody of 19 years 10 months and 3 days.
Reference is made to Section 433-A Cr.P.C to urge that the petitioner has to serve 14 years imprisonment before he can be released from custody. As per Para 431(3) of the Jail Manual, which regulates the premature release cases, if a person is imposed imprisonment for life after commuted death sentence or who has committed heinous crime, then he is required to undergo 14 years actual imprisonment and 20 years imprisonment by including remissions. Since the petitioner was falling short by a period of 1 month and 27 days to complete 20 years imprisonment with remission, it is stated in the reply that the petitioner has not undergone the requisite sentence for being released prematurely. The instructions relied upon were accordingly placed on record and counsel appearing for U.T took time to consider the release of the petitioner. Now it is intimated that the prayer of the petitioner has been rejected on 29.3.2012.
The case was adjourned to enable the counsel to place the order on record. An application has been filed to place on record the order dated 5.5.2012. It is stated that Inspector General of Prison, Chandigarh, has forwarded the case of the petitioner for CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 4 }:
premature release in which the report has been obtained from District Magistrate, Meerut, who has opposed the premature release of the petitioner. Considering this report of the District Magistrate and the fact that the petitioner is accused of committing a crime, which is heinous in nature, it is viewed that the petitioner does not deserve any consideration for premature release.
None has appeared for the petitioner. The counsel appearing for Union Territory would submit that this Court can only direct the appropriate Government to consider the commutation of sentence and prematurely release of particular convict but can do no further. This plea is raised on the basis of observations made in the case of Union Territory, Chandigarh Vs. Charanjit Kaur, 1996 (2) RCC 228. This was a case where the High Court had directed the release of respondent, Charanjit Kaur on the ground that the State had not filed the counter affidavit inspite of the fact that the case was adjourned on more than three occasions. The Court considered whether the High Court would have jurisdiction to direct release under Article 226 of the Constitution or under Section 482 Cr.P.C for release of prisoner. It is observed that in an appropriate case, where the petitioner has served a mandatory minimum sentence, the court may only direct the appropriate Government to consider the commutation of sentence and prematurely release a particular convict.
No doubt, the Hon'ble Supreme Court has so observed but that observation appears to have been made when the release of the prisoner was directed on account of non-filing of a counter.
CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 5 }:
The scope of writ of mandamus normally is simply to compel performance of legal duty on the part of the person or body, who is interested by law with that duty. The Court, in a proceeding for mandamus, will never sit in a court of appeal so as to examine facts or to substitute its own wisdom for the discretion vested by law in the person or body against whom the writ is sought. This being a scope of writ of mandamus, the courts normally would direct the State Government concerned to consider the case of premature release of a particular convict in accordance with law or the policy instructions. That opportunity was given to the State when Union Territory has passed the order rejecting the prayer of premature release of the petitioner, reference to which is made above. Now, it is to be seen if this order is based on relevant considerations or whether any irrelevant considerations have been taken into account to pass the order. Two reasons disclosed in the order to reject the prayer for premature release are that the District Magistrate, Meerut has sent a report and that the case is of heinous nature. Whether this action of the Government is justified under law or not is a question which the Courts have a jurisdiction to determine. If any order is passed by the Government, which is arbitrary or otherwise illegal and in violation of the policy, the Courts would always have jurisdiction to interfere in such orders to administer justice. The Hon'ble Supreme Court perhaps has considered the scope of mandamus while observing that the Courts can direct the Government concerned to consider the case of premature release. If the order is found to be arbitrary and in violation of the instructions, which the Government itself has issued, CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 6 }:
the Courts would have jurisdiction to interfere in such orders.
The case of premature release of the petitioner was duly recommended by Superintendent Jail, as can be seen from Annexure R-1. The procedure under Article 161 of the Constitution of India and Section 432, 433 and 433-A Cr.P.C is governed by the policy annexed with the reply as Annexure R-2. This policy was placed on record on the direction issued by this Court. It is provided that minimum period of imprisonment to be undergone by a convict before consideration of his application for exercise of power by the Government is as is mentioned in this policy instructions. Accordingly, different period of imprisonment is required to be undergone in respect of various types of convicts and of adults, female or minors. For convicts whose death sentence has been commuted to life and if he is adult, then he is required to undergone 14 years of actual imprisonment and 20 years after remission. This period in respect of female/minor is reduced to 10 years and 14 years respectively. The convicts who have been imprisoned for life, for which the death is the punishment and have committed heinous crime, then he is to undergo actual imprisonment of 12 years and 18 years with remission. This period is reduced to 10 years and 14 years in respect of adults, if the crime is not considered to be heinous. For normal life convicts, the actual imprisonment required to be undergone is 8-1/2 years and imprisonment with remission is 14 years. Where person is convicted for life and the crime is heinous but death penalty is not prescribed as punishment, then also he required to undergo 10 years actual and 14 years imprisonment with CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 7 }:
remissions. The heinous offences have also been described in this policy instructions and are as under:-
"(i) Offence under Section 302 alongwith 347 of I.P.C i.e. murder with wrongful confinement for extortion.
ii. Section 302 with 375 i.e. murder with rape. iii.Offence of dacoity with murder.
iv.Offence under Section 302 alongwith offences under the Terrorist & Disruptive Activities (prevention) Act, 1987.
v. Offence under Section 302 alongwith Offence under the 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 victim is a child under the age of 14 years.
viii.Double murder and murder committed after conviction while inside or on parole or an expiry or sentence shall be treated as heinous crime. ix.Any conviction under Section 120-B of the IPC heinous crime with reference to column `D' of the revised policy are defined as follows:-
CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 8 }:
1.Offence under Section 304(b) of the IPC i.e. a dowry death.
2. Offence under Section 304 alongwith Section 347 of the IPC i.e. culpable homicide with wrongful confinement for extortion.
3.Offence under Section 304 with Section 375 i.e. culpable homicide with rape.
4.Offence under Section 304 alongwith offence under the Terrorist and Disruptive Activities (Prevention Act) 1987.
5.Offence under Section 304 where culpable homicide has been committed in connection with any dispute on dowry and this is indicated in the judgement of the trial Court.
6.Offence under Section 304 where the victim is a child under age of 14 years.
7. Any conviction under Section 120-B of the IPC i.e. for criminal conspiracy in connection with the above crimes."
Adult is defined to be a person above the age of 18 years. It is also stated that the cases of premature release will be considered provided the convict has maintained good conduct in jail. The meaning of the words `good conduct' is also given by stating that CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 9 }:
he, who has not committed any jail offence for a period of five years prior to date of eligibility. Such a convict would fall within the term `good conduct'.
Undoubtedly, the petitioner is convicted of heinous offences. He accordingly has to undergo 14 years of actual sentence and 20 years including remission for being considered for premature release. The petitioner has undergo this sentence as is prescribed in the policy. His case is, thus, covered under the policy for premature release. There is no averment in the reply that the petitioner has not maintained a good conduct. The District Magistrate, Meerut, has not recommended the release of the petitioner only on the ground that he is convicted for the present offence at Chandigarh. Observation is that he may indulge in illegal activities. There is no basis of saying so and it is so mentioned only on the basis of some unspecified apprehension. This is without any basis. The heinous nature of the crime, thus, is the only reason indicated in the order, for which the prayer of the petitioner for premature release has been rejected.
The policy instructions issued in regard to premature release has made a distinction between the cases of release of those convicts who are undergoing imprisonment for committing heinous offences and those who have committed offences which are not termed as heinous offences. Will it then be fair to reject the prayer for premature release only on the ground that convict is accused of committing a heinous offence. The petitioner's case has already been distinguished from other premature release cases and, thus, he has undergone the rigors of punishment more in quantum as compared CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 10 }:
to the others, who could seek their release after undergone lesser period of imprisonment.
The instructions for premature release have been formulated by the Government while being well aware that the sentence of imprisonment for life is a sentence for remainder of natural life of the convict and there is no question of releasing such a convict earlier in the absence of a formal order or communication passed by the State Government. The statutory provision contained in Section 432, 433 and 433-A of Cr.P.C have a bearing on the question of premature release of a convict. The power is conferred on an appropriate Government to suspend the sentence or to remit the whole or part of sentence with or without condition. The State Government has a power to commute a sentence of death for any other imprisonment, No doubt the appropriate Government, thus, has a wide power of remission and commutation but such wide powers have to be exercised in a legal and proper manner and can not be exercised in an arbitrary manner. In order to rule out this arbitrary exercise of power, the Government apparently have evolved a policy for release of the convict who has been sentenced to imprisonment for life before his natural life comes to an end, so that such considerations are uniformly applied to every case. It is only to regulate this power given under Constitution that the Governments have laid down own schemes for premature release of convicts. The guidelines of the policy instructions for review of release of convicts for the purpose of premature release accordingly have been issued. The State Government has already categorized the convicts into CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 11 }:
various categories. Thus, the convicts whose death sentence has been commuted to life imprisonment were required to undergone 14 years actual sentence and 20 years of sentence including remissions. It can also be noticed that State has defined various crimes like murder with rape, murder with wrongful confinement and dacoity etc. to be different nature of crime, requiring the convict to undergo different period before he could be considered for his premature release. Thus, it will always be open for this Court to consider whether the State while declining the request has taken into account the relevant consideration or otherwise has ignored certain relevant considerations while declining the prayer. This Court has ordered the premature release of convicts where it was refused because family members of the deceased apprehended danger but no misconduct was found during parole. (see Sohan Singh Vs. State of Punjab, 1991 (1) RCR (Criminal) 362). Where no allegation of misconduct during parole or furlough was found and no other material to justify apprehension of the relatives of the deceased was noticed, the State was directed to allow premature release. For this, reference can be made to Narinder Kumar Vs. State of Punjab, 1990 (3) RCR (Criminal) 23. No material has been placed on record that if released premature, the petitioner would indulge in this activity. In Labh Kaur Vs. State of Punjab, 1991 (3) RCR (Criminal) 41, the Court ordered the premature release when no material on record was available to show that enquiry was held to confirm the breach of peace. The Court has further observed that the background in which murder was committed is no ground to conclude that there were CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 12 }:
chances of breach of peace. Reliance is placed on Bhagwant Saran & others v. State of U.P. & ors., 1983(1) CLR 504. In large number of cases, the release of the convict was ordered, when his case fell within the policies but was denied release on the ground, which were not justified or not substantiated.
In this case also, District Magistrate, Meerut has opposed the premature release of the petitioner on the ground that he is involved in a murder and dacoity case, which is the present case for which he is convicted and is seeking premature release and that he may indulge in illegal activities if he is so released. The present case, for which the petitioner is undergoing this sentence, may not have much relevance for considering the case of the petitioner for premature release, except that it is a heinous crime. There is no material placed to show that the petitioner indulged in such activity while he was released on parole. Simply because he was not found residing at his address would not mean that he had indulged in any such activity. The District Magistrate has not assigned any other reason to oppose the premature release of the petitioner. Thus, the only reason for which the petitioner has been denied the concession of premature release is the heinous nature of the offence. On this count, the petitioner has already undergone more period of imprisonment than the others imposed life imprisonment would have so undergone to pray for their premature release in terms of the policy. The petitioner is seeking his premature release being fully alive that he is undergoing imprisonment for committing a heinous offence. That may be a relevant consideration but petitioner has CRIMINAL WRIT PETITION NO.2754 OF 2011 :{ 13 }:
prayed for his release being alive of this position and is making this prayer on the ground that his case is covered by the policy formulated by the Government. The relevant considerations have, thus, not been fully kept in view while considering the case of the petitioner for premature release. Some considerations, which are not relevant, have also apparently percolated into the consideration of the authorities while rejecting the prayer of the petitioner for his premature release. Accordingly, case is made out for issuing direction to the Government to release the petitioner prematurely as his case is fully covered by the policy and there is no justification either offered or available on record to deny the order of premature release to the petitioner.
The impugned order is, therefore, set-aside and the State is directed to re-consider the case of the petitioner for his premature release keeping in view the policy and the law on the subject referred to above.
The petition is, thus, allowed.
May 30, 2012 (RANJIT SINGH ) khurmi JUDGE