Criminal Misc. No. M-451 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M-451 of 2009 Date of Decision:16.03.2009 [ENTITY] Petitioner Vs. [ENTITY] and others Respondents CORAM:- HON'BLE MR. JUSTICE [ENTITY] Present:- Mr. [ENTITY], Advocate for the petitioner. Mr. [ENTITY], Assistant Advocate General, Haryana. JUDGMENT
[ENTITY], J.
This petition has been moved by [ENTITY] under [SECTION] of the [ACT] read with [SECTION] of the [ACT] for holding that he has been illegally deprived of the benefit of pre-mature release and his further detention is violative of [SECTION], [SECTION] and [SECTION] of the [ACT] and he is entitled to be released forthwith on usual terms and conditions.
The brief facts giving rise to this petition are that the petitioner was involved in FIR No.267 dated 25.5.[SECTION]91 registered under [SECTION], [SECTION] [ACT] at Police Station Sadar, Hisar. He was convicted and sentenced on [SECTION].7.[SECTION]94 by the Court of learned Additional Sessions Judge, Hisar. The petitioner as per the details of period given in this petition has undergone more than 10 years of the actual sentence and more than 14 years of the sentence including remissions. While undergoing the sentence, he maintained good conduct. He was not involved in any other crime. He earned remissions on account of good conduct and enjoyed the benefit of parole and furlough. He is a well-behaved convict in the jail. As per [SECTION] of the [ACT] added on 18.12.[SECTION]78, the life convicts who were found guilty for having committed an offence for which death is one of the punishment provided by law are required to undergo at least 14 years of imprisonment. As per this Section, the appropriate government is fully competent to commute the sentence of imprisonment for life into imprisonment for a term not exceeding 14 years. In [ENTITY] v. Union of India and others, ([SECTION]81) 1 Supreme Court Cases 107, the provisions of the said Section have been upheld by the Apex Court. On [SECTION].7.[SECTION]94, when the petitioner was convicted, the government policy dated 4.2.[SECTION]93 was in force. As per this policy, the petitioner was required to undergo 10 years' actual sentence and 14 years sentence including remissions. The [ENTITY] has failed to consider the petitioner's case for grant of pre-mature release and deferred the pre-mature release case of the petitioner till he completes 14 years of actual sentence and 20 years' sentence including remissions but without following the observations rendered by the Apex Court in re: [ENTITY] v. [ENTITY] and others, 2007(4) Recent Criminal Reports (Criminal) 909.
In the joint written statement, filed on behalf of the respondents, inter-alia it has been pleaded that in case [ENTITY] (supra) and in another case bearing caption [ENTITY] v. Union of India and others, (2005) 7 Supreme Court Cases 417, it has been held that the sentence of imprisonment for life was nothing else than an imprisonment which lasted till the last breath. The sentence of imprisonment for life is a imprisonment for whole of the remaining period of the convicted persons' natural life, unless the same is commuted or remitted by appropriate authority under the relevant provisions of the [ACT]. The remission and commutation of sentence is not a fundamental right of a convict. The Government has framed the pre-mature release policy dated 13.8.2008 in which it has been categorically mentioned that the policy shall be applicable to all pre-mature release cases of life convicts with effect from the date of notification irrespective of their date of conviction. The date for consideration of pre-mature release of a convict would be the date of completion of his requisite sentence mentioned in the policy. The petitioner has undergone only 13 years, 6 months and 28 days of the actual sentence and a total sentence of 18 years, 6 months and 28 days including remissions. He does not qualify the conditions of pre-mature release as per Para 2(b) of Haryana Government Pre-mature Release policy dated 13.8.2008.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the parties have reiterated the averments as enshrined in their respective pleadings. In [ENTITY]'s case (supra), [ENTITY] as well as [ENTITY]'s cases were also considered. Their Lordships in re:
[ENTITY] (supra) were pleased to hold that `Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have right to be considered therefor. Whenever, thus a policy decision is made, persons must be treated equally in terms thereof. A `fortiori' the policy decision applicable in such cases would be which was prevailing at the time of his conviction. Furthermore, if the [ACT] are applicable in the [ENTITY] in view of the [ACT], no executive instruction would prevail over the statutory Rules. The Rules having defined `convicts' in terms whereof a `life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term `life convict'." It has also been observed that in [ENTITY]'s case, [ENTITY]'s case (supra) was not considered. Further in re: [ENTITY] v. [ENTITY] and others, 2009(1) Recent Criminal Reports (Criminal) 654, the Apex Court observed as under:-
"We, therefore, are of the opinion that keeping in view the decision of this Court in [ENTITY] (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in [ENTITY]'s case (supra) having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002."
Adverting to the facts of the instant case, there is no gainsaying the fact that the petitioner was convicted and sentenced on [SECTION].7.[SECTION]94 in case FIR referred hereinbefore.
In view of the preceding discussion, the respondents are directed to consider the case of the petitioner in terms of [ENTITY] and others' case (supra) as well as [ENTITY] and others' case (supra), having regard to the policy decision as was applicable on the date on which he was convicted within one month from the date of receipt of the certified copy of this judgment. If the petitioner's case is covered by the policy decision applicable in his case, he may be released as per rules.
Disposed of accordingly.
March 16, 2009 ( [ENTITY] ) renu JUDGE Whether to be referred to the Reporter? Yes/No