Criminal Misc. No.M-19599 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-19599 of 2008 Date of decision : 30.10.2008 **** Naresh .....Petitioner Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. Vijay K.Jindal, Advocate for the petitioner. Mr. S.S.Mor, Senior Deputy Advocate General, Haryana for the respondents. ***** S. D. ANAND, J. The petitioner was convicted by the learned Trial Court for various offences and was awarded varying sentences therefor on 12.11.1998. For the moment, it is relevant to note that he was awarded imprisonment for life for the offence under Section 307 IPC/149 IPC. 2. The petitioner filed Criminal Writ Petition No. 1045 of 2007, which was disposed of by a Coordinate Bench of this Court (R.S.Madan, J.) with a direction to the competent authority to consider the premature release case of the petitioner in the light of the judgment rendered by the Apex Court in State of Haryana Vs. Criminal Misc. No.M-19599 of 2008 -2- **** Mohinder Singh and another. The further direction was that the exercise was to be completed within four months from the date of receipt a certified copy of the order. 3. In compliance with that order, the competent authority considered the case of the petitioner and held that the verdict of Apex Court in Mohinder Singh's case notwithstanding, the case of the petitioner was within ambit of provisions of Section 433-A of the Cr.P.C. The competent authority further observed as under:- “As per this section a life convict has to undergo 14 years of actual sentence and 20 years of total sentence. This life convict has not completed his requisite sentence i.e. 14 years actual sentence and 20 years total sentence. State Level Committee has recommended to defer the case of life convict Naresh Kumar s/o Ishwar Singh till the completion of 14/20 years of actual/total sentence.” 4. Initially, the policy (Annexure P-2) in the context of the premature release of life convicts was in vogue. As per that policy, a prisoner was entitled to be considered for premature release on completion of 10 years of actual sentence including undertrial period, provided that the total period of such sentence including remissions was not less than 14 years. 5. Thereafter, the policy underwent an amendment in the year 1997. As per it (Annexure P-3), two categories of cases were added to the column of 'heinous offences'. Relevant clause which Criminal Misc. No.M-19599 of 2008 -3- **** governs the case of the petitioner remained unchanged with regard to duration on point of eligibility (for consideration in the context of premature release and also categories of cases to which it applied). 6. The above noticed fact are apparent from the pleadings of the parties and are, even otherwise, beyond the pale of controversy as at the time of argument before this Court. The pure and simple plea of the petitioner, as presently presented, is that he having undergone actual sentence for a period of 14 years three months and 12 days and a total sentence of 15 years 5 months and 27 days, is eligible for consideration in terms of policy Annexure P-3 which was in currency on the date of conviction. In support of the plea that it is the policy in currency on the date of conviction which shall govern the issue, sustenance is drawn by the learned counsel for the petitioner from the judgment rendered by the Apex Court in State of Haryana Vs. Mahender Singh and others 2007 (4) RCR (Criminal) 909 (Annexure P-4). 7. Learned State counsel resists the plea advocated on behalf of the petitioner by arguing that the policy relied upon does not abrogate the provisions of Section 433-A of the Cr.P.C., as per which the life convict has to undergo 14 years of actual sentence and 20 years of total sentence in order to be eligible for consideration for premature release. 8. For appreciating the controversy in hand, it would be appropriate to reproduce the relevant part of the policy/instructions contained in 1993 instructions and also 1997 instructions:- Criminal Misc. No.M-19599 of 2008 -4- **** Annexure P/2:- “a) Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned, for life for having committed a heinous crime, such as, murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D.Act, 1987, murder with Untouchability (Offences) Act, 1955, murder in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant women or murder after abduction or kidnapping, murder on professional/hired basis, murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from Judgment of sentence, persistent bad conduct in the prison and those who can not for some definite reasons be prematurely released without danger to public safety; or convicts who have been imprisoned for life under Section 120-B of IPC or life convicts who have been awarded life imprisonment a second time under NDPS Act or life convicts who have been awarded life imprisoned for life second time under any offence. Their cases may be considered after completion of 14 years actual sentence including under-trial period and after earning at least 6 years remission. b) Adults life convicts who have been imprisoned for life but whose cases are not covered under (a) above and who have committed crime which are not considered heinous as mentioned in clause (a) above. Their cases may be considered after completion of 10 years of actual sentence including undertrial period, provided that the total period of such sentence including remissions is not less than 14 years.” Criminal Misc. No.M-19599 of 2008 -5- **** Annexure P/3:- a) Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned, foe life for having committed a heinous crime, such as murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D.Act, 1987, murder with Untouchability (Offences) Act, 1955, murder in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of women or murder after abduction or kidnapping, murder of professional/hired basis, murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from judgment or sentence, persistent bad conduct in the prison and those who can not for some definite reasons be prematurely released without danger or public safety, or convicts who have been imprisoned for life under Section 120-B of IPC or life convicts who have been awarded life imprisonment a second time under NDPS Act or life convicts who have been imprisoned for life second time under any offence or for any other crime that the State Level Committee consider to be “heinous” for reasons to be recorded in writing. Their cases may be considered after completion of 14 years actual sentence including under-trial period and after earning at least 6 years remissions. Criminal Misc. No.M-19599 of 2008 -6- **** (The other part of the policy instructions contained in Annexure P/2 did not undergo any change vide Annexure P/3. 9. A perusal of the judgment rendered by the Apex court in Mahender Singh's would categorically and unambiguously indicate that the decision by the Government in the context of classification of prisoner for purpose of grant of remissions was to be prospective and that the policy decision applicable in such cases would be one which was prevailing at the time of conviction. The following observations in the context were made by the Apex Court:- “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. [See Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Ors., 2007 (3) RCR (Civil) 249: 2007(3) R.A.J. 253: 2007(7) SCALE 737]” 10. Insofar as the case of the petitioner is concerned, it clearly falls within the ambit of Clause 'B' which pertain to cases which may be considered after completion of 10 years of actual sentence including undertrial period, provided that the total period of such sentence including remissions is not less than 14 years. The petitioner was convicted on a charge of having murdered one person. It cannot, by any stretch of interpretation, be said that the murder of one person would be a crime of heinous character, particularly when there are no attendant circumstances either on the Criminal Misc. No.M-19599 of 2008 -7- **** basis whereof the State could be heard to argue that the offence, for which the petitioner got convicted, was heinous in form. In that view of things, it is apparent that view obtained by the State Level Committee to the effect that petitioner, in order to be eligible for consideration for premature release, had to undergo 14 years of actual sentence and 20 years of total sentence is invalid. It is so held accordingly. It obviously follows thereufrom that the interpretation put on the judgment (in Mahender Singh's case) by the competent authority was in appropriate. 11. In the light of fore-going discussion, the petition shall stand allowed. The competent authority is directed to consider the premature release of the petitioner in the light of the observations made by this court in course of paras 9 and 10 of this judgment. The exercise shall be concluded within fifteen days from today. It will be for the State counsel to communicate the order to the competent authority. 8. Copy of the order be given to the learned State counsel under the signatures of the Court Secretary. October 30, 2008 (S.D. ANAND) Pka JUDGE