Punjab-Haryana High Court
Gurnam Singh vs State Of Punjab And Ors on 11 September, 2014
Author: Ritu Bahri
Bench: Ritu Bahri
CRWP No. 263 of 2014 (O&M) -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRWP No. 263 of 2014 (O&M)
Date of decision : 11.09.2014
Gurnam Singh ....Petitioner
versus
State of Punjab and others ...Respondents
CORAM: HON'BLE MS. JUSTICE RITU BAHRI
Present: Ms B.P. Kaur Brar, Advocate
for the petitioner
Mr. Daljeet Singh Virk, AAG, Punjab
****
RITU BAHRI , J. (Oral)
This petition under Article 226/227 of the Constitution of India is for quashing of order dated 19.08.2013 (P-2) passed by respondent No. 1 declining the premature release case of the petitioner on the ground that the crime committed by the petitioner, under Section 302 IPC, is heinous and inhuman, which is unconstitutional and contrary to the policy guidelines dated 04.04.2013 (P-1) issued by Government of Punjab.
The petitioner was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- under Section 302 IPC, vide order dated 10.03.2004 in F.I.R No. 65 dated 20.04.2002 under Sections 302/34 IPC, P.S. Gurdaspur. The appeal GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document CRWP No. 263 of 2014 (O&M) -2- against this judgment was also dismissed, vide order dated 26.05.2010 by Division Bench of this Court.
The petitioner has suffered substantive sentence of 11¾ years and including remissions , he has undergone almost 18 years. Thus, he is now seeking his premature release, in view of the policy dated 04.04.2013 of the Punjab Government (P-1). The premature release case of the petitioner was rejected on the ground that the crime committed by the petitioner, under Section 302 IPC, is heinous and inhuman.
In the written statement filed by the respondents, the petitioner has undergone almost 19 years 11 month and 27 days including remission, as per custody certificate (R-2). It has been submitted by the respondents that as per para 12 of policy dated 04.04.2013, it is only an enabling provision and does not create a right to premature release of a prisoner. Even if prisoner fulfils the conditions for premature release he may not be released if the competent authority, keeping in view the facts and circumstances of the case, is satisfied that the prisoner does not deserve such release. Thus, the case of the petitioner was rightly rejected by the Competent Authority on 19.08.2013 (R-1/T), in view of the instructions dated 04.04.2013 .
GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document CRWP No. 263 of 2014 (O&M) -3-
The petitioner is relying upon policy dated 04.04.2013, which shows that a convict who has killed someone and has committed heinous crime, their case for premature release can be considered as per Schedule B whereby the actual imprisonment is 12 years and with remissions 18 years. In the case of the convicts who has killed some one but the crime is not considered as heinous, whereby the actual imprisonment is 10 years and with remissions 14 years. Now, it has to be seen that the case of the petitioner falls under heinous crime. The term 'heinous crime' as mentioned in sentence under Column A of the above schedule shall mena:-
"a. Offence committed under Section 302 along with 347 of the I.P.C i.e wrongful confinement of someone. b. Offence committed under Section 302 with 376 of Indian Penal Code i.e commission of rape and then killing c. Offence committed under Section 396, Indian Penal Code i.e dacoity and killing d. Offence committed under Section 302, Indian Penal Code i.e Terrorist and Disruptive activities (Prevention) Act, 1987 e. Offence committed under Section 302, Indian Penal Code i.e under the Prevention of Atrcities against Scheduled Castes and Scheduled Tribes Act, 1989 or Prevention of Illegal activities Act, 1967. f. Offence committed under Section 302, Indian Penal Code i.e killing on account of dowry which has been proved in the judgment of the trial Court. g. Offence committed under Section 302, Indian Penal Code in which the convict is child and whose age is less than 14 years and h. Offence relating to any of the offences mentioned above which is confessed under Section 120-B IPC.GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document CRWP No. 263 of 2014 (O&M) -4-
Heinous Crime with reference to Column 'D' of the revised policy are defined as follows:-
a) Offence under Section 304(b) of the IPC, i.e killing on account of dowry
b) Offence under Section 304 along with Section 347 of the IPC, i.e human killing with criminal tendency, which does not include
c) Offence under Section 304 with Section 376 i.e killing with criminal tendency, which does not include heinous crime of killing after rape.
d) Offence committed under Section 304, Indian Penal Code, including offences under Section 304 IPC as per Terrorist and Disruptive Activities (Prevention Act, 1987) and Illegal Activities, which does not include those heinous crimes committed on account of disputes relating to dowry and regarding which there is mentioned in the trial Court judgment
(e) Offence committed under Section 304 IPC, in which the convict is a child and his age is less than 14 years and
f) Offence relating to any of the above mentioned offences, which has been confessed under Section 120-B of the IPC"
The case of the petitioner does not fall in any of the categories mentioned above. It was a case of individual act whereby the petitioner had committed murder of Balwinder Kaur on account of land dispute. Order dated 19.08.2013 (P-2) passed by respondent No. 1 declining the premature release case of the petitioner on the ground that the crime committed by the petitioner, under Section 302 IPC, is heinous and inhuman, is not in accordance with the 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 GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document CRWP No. 263 of 2014 (O&M) -5- 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 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 GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document CRWP No. 263 of 2014 (O&M) -6- 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."
In view of the above, order 19.08.2013 (P-2) passed by respondent No. 1 is set aside and the matter is sent back to the respondent for re-consideration, in view of the policy 04.04.2013 (P-1). A detailed speaking order be passed within a period of three 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 within a period of 3 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 CJM/Duty Magistrate, Gurdaspur. 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, Gurdaspur shall inform the petitioner accordingly.
The petition stands disposed of in the above terms.
11.09.2014 (RITU BAHRI) G Arora JUDGE GAURAV 2014.09.30 10:41 I attest to the accuracy and integrity of this document