Punjab-Haryana High Court
Narender @ Neeru vs State Of Haryana And Ors on 20 November, 2014
Author: S.S. Saron
Bench: S.S. Saron
CRWP No.1221 of 2014 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRWP No.1221 of 2014
Date of decision: 20.11.2014
Narender alias Neeru
..... Petitioner
VERSUS
State of Haryana and ors.
..... Respondents
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE GURMIT RAM
Present: Mr. B.S. Tewatia, Advocate
for the petitioner.
Mr. H.S. Deol, Addl. A.G., Haryana.
*******
S.S. SARON, J.
The criminal writ petition has been filed seeking quashing of the order dated 09.04.2014 (Annexure P-2) passed by the Commissioner, Gurgaon Division, Gurgaon and seeking a direction to the respondents to release the petitioner on emergency parole.
The petitioner has been convicted by the learned Additional Sessions Judge, Palwal on 29.08. 2011 in case FIR No.39 dated 28.01.2010 registered at Police Station Hathin, District Faridabad, now District Palwal for the offences punishable under Sections 302 and 201 of Indian Penal Code ('IPC' - for short). By a separate order passed on 30.08.2011, he has been sentenced to undergo rigorous imprisonment for life, besides, pay a fine of Rs.5,000/- and in default thereof to undergo further AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -2- rigorous imprisonment for two months for the offence punishable under Section 302 IPC. He has also been sentenced to undergo rigorous imprisonment for a period of two years, besides, pay a fine of Rs.2,000/- and in default thereof undergo further rigorous imprisonment for one month for the offence punishable under Section 201 IPC. Both the sentences have been ordered to run concurrently. The petitioner aggrieved against the said order of conviction and sentence has filed an appeal i.e. CRA-D-913-DB of 2011 in this Court, which was admitted on 03.10.2011. At present the petitioner is undergoing life imprisonment at the District Jail, Faridabad.
The petitioner applied for emergency parole on the ground that his son namely Nitesh and his sister namely Babita met with an accident. Due to serious injuries, they were admitted in the ICU. Nitesh had head injuries and fracture of left femur and sister of the petitioner who is stated to be four months pregnant had fracture of right femur. They were in critical conditions. The application for emergency parole of the petitioner has been declined vide impugned order dated 09.04.2014 wherein it has been held that the petitioner is a "hardcore prisoner" as defined in Section 2 (aa) of the Haryana Good Conduct Prisoners (Temporary Release) Act, 1988 ('Act' - for short). Aggrieved against the order declining temporary release, the petitioner has filed the present petition assailing the said order.
Reply has been filed by way of affidavit of Sh.Deepak Sharma, Superintendent, District Jail, Faridabad on behalf of AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -3- respondents No.1 to 3. It is submitted that no legal or fundamental right of the petitioner has been infringed, besides, parole is not a right of a convict and is a concession given by the State Government on fulfilling certain conditions. Apart from the conviction of the petitioner in case FIR No.39 dated 28.1.2010 registered at Police Station Hathin, District Palwal for the offences punishable under Sections 302 and 201 IPC, it is submitted that the petitioner was also convicted on 1.2.2012 by the learned Judicial Magistrate Ist Class, Gurgaon in case FIR No.334 dated 19.10.2008 registered at Police Station Sector 10, Gurgaon. He was sentenced to undergo rigorous imprisonment for a period of three years, therefore, the petitioner is not entitled for being released on parole.
Learned counsel for the petitioner contends that the conviction of the petitioner by the learned Judicial Magistrate Ist Class, Gurgaon on 01.02.2012 is of no consequence as the petitioner filed Criminal Revision petition No.650 of 2014 in this Court and this Court vide order dated 7.4.2014 (Annexure P-1) reduced the sentence of imprisonment to the period already undergone. Therefore, the said matter has been concluded finally and nothing survives.
Learned counsel for the State, however, submits that in view of the provisions of Section 5A of the Act, the petitioner is not entitled to be released on temporary basis on parole as he is a "hardcore prisoner" as defined in Section 2 (aa) of the Act and he has not completed five years of conviction between the two cases registered against him, one of which relates to an offence AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -4- under Section 387 IPC, which is covered by the provisions of Section 2 (aa) (i) (4) of the Act. Besides, the period of five years after second conviction, it is submitted, is to be counted backwards from the date of conviction in terms of the proviso to Section 2 (aa) (ii) of the Act.
We have given our thoughtful consideration to the contentions as raised and have perused the record. The petitioner was earlier convicted and sentenced by the learned Additional Sessions Judge, Palwal vide order dated 29.08.2011 and 30.08.2011 respectively in case FIR No.39 dated 28.01.2010 registered at Police Station Hathin, District Palwal for the offences punishable under Sections 302 and 201 IPC. Thereafter, the petitioner was tried by the learned Judicial Magistrate Ist Class, Gurgaon who vide order dated 01.02.2012 convicted him for the offences punishable under Sections 387 and 506 IPC. By a separate order passed on 04.02.2012, the said learned Judicial Magistrate Ist Class, Gurgaon sentenced him to undergo rigorous imprisonment for a period of three years, besides, pay a fine of Rs.2,000/- and in default thereof undergo further simple imprisonment for four months for the offence punishable under Section 387 IPC. He has also been sentenced to undergo rigorous imprisonment for a period of two years, besides, pay a fine of Rs.1,000/- and in default thereof undergo further simple imprisonment for two months for the offence punishable under Section 506 IPC. Both the sentences were ordered to run concurrently. Aggrieved against the orders dated 01.02.2012 and 04.02.2012, the petitioner filed an appeal before the Sessions AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -5- Court, Gurgaon. The learned Additional Sessions Judge, Gurgaon vide her order dated 30.01.2013 dismissed the appeal on the ground that there was no sufficient cause for condoning the inordinate delay of nine months in filing the appeal. Accordingly, the application for condonation of delay as also the appeal were dismissed being barred by time.
The petitioner aggrieved against the order dated 30.01.2013 passed by the learned Additional Sessions Judge, Gurgaon filed Criminal Revision Petition No.650 of 2014 in this Court, which has been disposed of vide order dated 07.04.2014 (Annexure P-1). This Court condoned the delay of 301 days in filing the revision petition. In the said revision petition, it was contended on behalf of the petitioner that the petitioner does not assail the judgments passed by the learned Courts below with regard to conviction of the petitioner but he pressed for hearing on the quantum of sentence. It was noticed that the petitioner had undergone imprisonment for a period of two years and ten months as on 07.04.2014. The sentence awarded to the petitioner for offences under Sections 387 and 506 IPC was reduced to the period already undergone. The revision petition was, accordingly, disposed of with the modification in the sentence in the aforesaid terms.
In order to appreciate the contentions of the learned counsel for the parties, the relevant extract of the provision of Section 2 (aa) of the Act, which defines "hardcore prisoner" may be noticed. The said provision reads as follows:-
"hardcore prisoner" means a person-AMIT KHANCHI
2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -6-
(i) who has been convicted of-
(1) robbery under Section 392 or 394 IPC;
(2) x x x
(3) x x x
(4) murder or attempt to murder for ransom
or extortion under Section 387 read with
Section 302 or Section 387 read with Section
307 IPC;
(5) to (14) x x x
(ii) who during a period of five years
immediately before his conviction has earlier been convicted and sentenced for commission of one or more offences mentioned in Chapter XII or XVII of IPC, except the offences covered under clause (i) above, committed on different occasions not constituting part of the same transaction and as a result of such conviction has undergone imprisonment at least for a period of twelve months.
Provided that while counting the period of five years, the period of actual imprisonment or detention shall be excluded:
Provided further that if a conviction has been set-aside in appeal or revision, then any imprisonment undergone in connection therewith shall not be taken into account for the above purpose.AMIT KHANCHI
2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -7- The contention of learned counsel for the State is that the case of the petitioner is covered under clause (4) of Section 2 (aa) (i) of the Act. Section 2 (aa) (i) (4) of the Act defines a "hardcore prisoner" to mean a person who has been convicted of murder or attempt to murder for ransom or extortion under Section 387 read with Section 302 or Section 387 read with Section 307 IPC. This evidently has to be part of the same transaction that is to say that the convict must have been convicted for murder or attempt to murder for ransom or extortion under Section 387 read with Section 302 or Section 387 read with Section 307 IPC. In the present case the conviction and sentence of the petitioner in case FIR No.39 dated 28.1.2010 registered at Police Station Hathin, District Palwal by the learned Additional Sessions Judge, Palwal on 29.08.2011 and 30.08.2011 respectively is for the offences punishable under Sections 302 and 201 IPC and is not under Section 387 read with Section 302 IPC. The conviction of the petitioner for the offences under Sections 387 and 506 IPC is in a later case on 1.2.2012 by the learned Judicial Magistrate Ist Class, Gurgaon in case FIR No.334 dated 19.10.2008 registered at Police Station Sector 10, Gurgaon. The petitioner, therefore, though stands convicted for the offence punishable under Section 387 IPC but the said conviction for the offence under Section 387 IPC is not conviction read with Section 302 or 307 IPC which is the requirement to fall within the definition of a "hardcore prisoner" in terms of Section 2 (aa) (i) (4) of the Act. The fact that this Court has reduced the period of sentence of imprisonment to that already undergone is AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -8- inconsequential as the conviction of the petitioner in any case stands. However, the same is not relevant as the conviction of the petitioner is not for the offence under Section 387 read with Section 302 IPC but both the convictions are independent of each other and in two distinct and separate FIRs.
In terms of Section 2 (aa) (ii) a "hardcore prisoner"
means a person who during the period of five years immediately before his conviction had earlier been convicted and sentenced for commission of one or more offences mentioned in Chapter XII or XVII of IPC, except the offences covered under clause (i) above, committed on different occasions not constituting part of the same transaction and as a result of such conviction has undergone imprisonment at least for a period of twelve months. In terms of proviso while counting the period of five years, the period of actual imprisonment or detention is to be excluded. In terms of second proviso if a conviction has been set-aside in appeal or revision, then any imprisonment undergone in connection therewith is not to be taken into account for the above purpose.
In the present case, the Commissioner, Gurgaon Division, Gurgaon has considered the provisions of Section 2 (aa)
(ii) of the Act and in terms of Section 5A of the Act held that the petitioner is not entitled to the concession of parole. As has already been noticed, the petitioner has been convicted and sentenced by the learned Additional Sessions Judge, Palwal in case FIR No.39 dated 28.1.2010 registered at Police Station Hathin, District Palwal for the offences punishable under Sections AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -9- 302 and 201 IPC on 29.8.2011 and 30.08.2011 respectively. It is thereafter that he was convicted by the learned Judicial Magistrate Ist Class, Gurgaon on 1.2.2012 in case FIR No.334 dated 19.10.2008 registered at Police Station Sector 10, Gurgaon for the offences punishable under Sections 387 and 506 IPC. The offence under Section 387 IPC falls under Chapter XVII. The requirement to attract clause (ii) of Section 2 (aa) of the Act, however, is that a convict during the period of five years immediately before his conviction must have earlier been convicted and sentenced for commission of one or more offences mentioned in Chapter XII or XVII of the IPC, except the offences covered under clause (i). In the present case, the petitioner has been convicted for the offences punishable under Sections 387 and 506 IPC on 1.2.2012, which is not the earlier conviction to his conviction and sentence for the offences punishable under Sections 302 and 201 IPC on 29.08.2011 and 30.08.2011 respectively. In fact the conviction for the offence punishable under Section 387 IPC which falls under Chapter XVII, is later.
The requirement of section is that he should have been convicted earlier in a case under Chapter XII or XVII of IPC. Therefore, the petitioner being not a "hardcore prisoner" the provisions of Section 5A of the Act, which relates to a "hardcore prisoner" shall not be released on temporary basis or on furlough would not apply.
In the circumstances, the Commissioner, Gurgaon Division, Gurgaon has erred in law in passing the impugned order dated 09.04.2014 (Annexure P-2) by taking into account the later AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh CRWP No.1221 of 2014 -10- conviction for the offences punishable under Sections 387 and 506 IPC. The impugned order dated 09.04.2014 (Annexure P-2) is, therefore, unsustainable and is liable to be quashed.
Accordingly, the writ petition is disposed of by quashing the impugned order dated 09.04.2014 (Annexure P-2) passed by the Commissioner, Gurgaon Division, Gurgaon and the matter shall be considered afresh by the Commissioner, Gurgaon Division, Gurgaon after taking into consideration the statutory provisions Section 2 (aa) of the Act. The necessary exercise of re-consideration shall be done as soon as possible and preferably within four weeks' from the receipt of copy of this order.
(S.S. SARON) JUDGE (GURMIT RAM) JUDGE November 20th , 2014 Brij/A.Kaundal/amit Note: Whether to be referred to the Reporter : Yes/No AMIT KHANCHI 2015.02.02 12:29 I attest to the accuracy and authenticity of this document High Court,Chandigarh