Criminal Misc. No.M-25128 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-25128 of 2008 Date of decision : 19.12.2008 Prem Kumar ....Petitioner Versus State of Haryana and others ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Rahul Rathore, Advocate for the petitioner Mr. S.S.Mor, Senior Deputy Advocate General, Haryana S. D. ANAND, J. It is apparent from a conjunctive perusal of the pleadings of the parties that Superintendent Incharge of the place of lodgment of the petitioner has not forwarded premature release case of the petitioner to the State level Committee on the premise that he is not eligible for consideration in terms of the Haryana Government Department notification dated 13.8.2008. It is otherwise averred, in the counter itself, that the petitioner has undergone actual sentence of 14 years 4 months and 25 days and total sentence of 18 years 3 months and 15 days as on 1.12.2008. There is otherwise no controversy that if the instructions in currency on the date of conviction are taken into consideration, the petitioner has indeed become eligible for consideration for premature release, however, if the instructions dated 13.8.2008 are taken into consideration (Annexure R/1), the petitioner would become eligible for consideration in the relevant behalf only after he has undergone 14 years Criminal Misc. No.M-25128 of 2008 -2- **** of actual sentence and 20 years of total sentence. In the context of former segment of the controversy, it was held by the Apex Court in State of Haryana Vs. Mahender Singh and others 2007 (12) SCALE 669 that the instructions prevalent on the date of conviction are to govern consideration. Thought the State is averred to have file a review plea in that context, it is beyond the pale of controversy that no stay orders have come to be granted by the Apex Court in the matter till date. In that view of things, the law of the land would require the competent authority to take a decision on the premature release plea of the petitioner-prisoner in accordance with instructions in currency on the date of conviction. Insofar as the averred insistence (in the course of the counter) upon the completion of total period of sentence is concerned, it is inapplicable to the petitioner-prisoner because he has otherwise undergone total sentence as well if it is counted as per the instructions in currency on the date of conviction. Even otherwise, the insistence of the competent authority on the completion of total sentence was invalidated by a Division Bench of this Court in Crl. Misc. No.12868-M of 2003. In the context, the following observations were made by the Bench while negativing the very premise upon which reliance has been placed in resisting the premature release of the petitioner – prisoner:- “We would also like to notice that condition 2(a) in the instructions dated August 3, 2000 and April 12, 2002, as per reply filed by the State, require a life convict to undergo 14 years actual sentence (inclusive of undertrial period) and total sentence (including remissions) of not less than 20 years. We cannot help noticing that the wording of the condition is not Criminal Misc. No.M-25128 of 2008 -3- **** clear. What is meant to be conveyed is that premature release would not be considered before 20 years have been undergone, and even with the benefit of remission, the convict must undergo 14 years. But what seems to be conveyed is that the convict’s case shall be considered after 14 years of actual sentence provided that total period of sentence including remissions is not less than 20 years. In the present case, the convict has completed actual sentence of 14 years. Supposing he has not earned any remission whatsoever, he would have no hope of release until he completes 6 more years. If the convict has undergone 10 years and has earned remission of 10 years, then he would have completed 20 years with remission but not 14 years of actual sentence. If the clause had been worded ---- “case may be considered after completion of 20 years total sentence, including remissions but only after 14 years of actual sentence, inclusive of undertrial period”, it would have been easier to understand. This conundrum can be explained illustratively. Take the case where the minimum age qualification for a particular post is 25 years but it can be relaxed to 22 years. Therefore, if this provision is drafted as “minimum qualification for the job is 22 years but with relaxation the candidate must be at least 25 years” would it make any sense? We think not. In plain language remission is relaxation. Therefore, remission of sentence is relaxation of sentence. Common sense would require that first the qualifying sentence should Criminal Misc. No.M-25128 of 2008 -4- **** be determined and then it should be relaxed. However, the regulation in question requires that first the minimum qualifying period of sentence must be reached at 14 years and then relaxation has to be added to make it upto 20 years.” In the light of the fore-going discussion, the petition shall stand disposed of accordingly with a direction to the respondents to consider the premature release case of the petitioner-prisoner in the light of the Apex Court judgment in Mahender Singh's case (supra) which shall be initiated by the respondent no.3 ( Superintendent, Central Jail, Hisar) forthwith. The exercise shall be concluded within two months from today. However, in the meantime, the petitioner shall be released on furnishing of adequate surety etc. (to the satisfaction of the District Magistrate concerned) undertaking return to the law in case so ordered, by this Court. That release is being ordered as an interim measure, in view of the conceded position that he has already undergone actual sentence and total sentence in terms of the policy prevalent on the date of conviction. It will be for the State counsel to communicate the order to the competent authority. Copy of the order be given to the learned State counsel under the signatures of the Court Secretary. December 19, 2008 (S.D. ANAND) Pka JUDGE