CRWP No. 1959 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRWP No. 1959 of 2010 Date of decision: 01.02.2011 Jai Parkash @ Billu ........ Petitioner Versus State of Haryana and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mr. P.R. Yadav, Advocate, for the petitioner. Mr. Ravish Kaushik, AAG, Haryana. JORA SINGH, J. Jai Parkash @ Billu, preferred this writ petition under Articles 226/227 of the Constitution of India, for issuance of a writ in the nature of Habeas Corpus holding that petitioner has been illegally deprived of the benefits of premature release under the Haryana Government Policy dated 4.2.1993 (Annexure P-2) and that petitioner has become entitled to be released on completion of 14 years of imprisonment and that his further detention without consideration of his case under the policy has become violative of Articles 14, 19 and 21 of the Constitution of India. That FIR No. 9 dated 14.1.1995, registered Sections CRWP No. 1959 of 2010 -2- 302/364/377/511 IPC, Police Station Bawal, District Rewari, was registered against the petitioner and sentenced to undergo life imprisonment, vide judgment of conviction dated 2.3.1998 and order of sentence dated 5.3.1998, copy of which is Annexure P-1, passed by the learned Additional Sessions Judge, Rewari. Under Sections 432, 433 and 433-A of the Code of Criminal Procedure, appropriate Government has the power to suspend or remit sentences, power to commute sentence and restrictions on powers of remission or commutation. As per judgment of the Hon'ble Supreme Court in the case of State 0f Haryana Vs. Mahinder Singh and others, 2007 (13) SCC 606, cases of life convicts for grant of premature release are required to be considered as per the policy available at the time of conviction of the accused. Again Hon'ble Supreme Court in the recent judgment dated 22.3.2010, in case of “State of Haryana Vs. Jagdish” held that the policy which was inexistence at the time of conviction of the accused that will apply for the purpose of premature release. Annexure P-2 is the policy dated 4.2.1993, which was inexistence at the time of conviction of the petitioner. Petitioner has undergone more than 14 years of the actual imprisonment and during the entire period of sentence, petitioner was not found guilty of any jail offence but respondents refused to consider the case of the petitioner for grant of pre-mature release on the ground that petitioner has not yet earned 6 years remissions. That the case of the petitioner is fully covered for grant of pre-mature release after completion of more than 14 years of actual imprisonment as per policy CRWP No. 1959 of 2010 -3- dated 4.2.1993, (Annexure P-2). In pursuance of the notice issued to the State, reply was filed in the shape of affidavit of the Superintendent, District Jail, Gurgaon. As per reply, concession of pre-mature release cannot be claimed as a matter of right by the convict as the Court of law has already convicted and sentenced him for life imprisonment. As per order of the Hon'ble Supreme Court of India in AIR 1961 S.C. 600 and 2005 SCC, imprisonment for life is to be treated as imprisonment for the whole life for the convict. Hon'ble Supreme Court, held in CP No. 166/1990 decided on 23.8.1991 reported in Recent Criminal Reports that sentence of imprisonment for life means imprisonment for whole of remaining natural life, so the petitioner cannot claim his premature release as a matter of right. That petitioner has undergone actual sentence of 15 years, 9 months and 29 days. Total sentence undergone is 18 years and 8 days. Remissions earned is 4 years and 14 days. Petitioner was on parole for about 1 year, 10 months and 5 days. Case of the petitioner falls under para 2 (a) of the Haryana Government Premature Release Policy dated 4.2.1993 and case of the petitioner can be considered only after completion of 14 years of actual sentence including undertrial period and total period of 20 years including 6 years of remission. He has not completed total sentence of 20 years, so, the pre-mature release case of the petitioner will be considered after completion of 20 years of total sentence including remissions. Learned counsel for the petitioner argued that FIR No. 9 CRWP No. 1959 of 2010 -4- dated 14.1.1995, under Sections 302/364/377/511 IPC, Police Station Bawal, District Rewari, was registered against the petitioner and vide judgment of conviction dated 2.3.1998 and order of sentence dated 5.3.1998 (Annexure P-1), appellant was sentenced to undergo life imprisonment. As per custody certificate and reply filed by the State appellant has undergone actual sentence of 15 years, 9 months and 29 days. As per policy dated 4.2.1993 (Annexure P-2) case of the petitioner is fully covered for pre-mature release. Learned State counsel argued that appellant has not completed 20 years of sentence including 6 years of remissions. Appellant has actually undergone 15 years, 9 months and 29 days. After completion of 20 years case of the petitioner is to be considered. Undisputedly, FIR No. 9 dated 14.1.1995, under Sections 302/364/377/511 IPC, Police Station Bawal, District Rewari, was registered against the petitioner and vide judgment of conviction dated 2.3.1998 and order of sentence dated 5.3.1998 (Annexure P-1), appellant was sentenced to undergo life imprisonment. Allegation of the petitioner is that in view of the policy dated 4.2.1993 (Annexure P-2), when the petitioner has actually undergone more than 14 years of the sentence then his pre-mature release case should be considered whereas allegation of the respondents is that petitioner has completed 14 years of actual sentence but not 20 years including remissions. Annexure P-2 is the copy of policy dated 1.2.1993 and relevant portion para 2 (a) of the police is reproduced as CRWP No. 1959 of 2010 -5- under : (a) Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life 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 with offence under T.D. Act, 1987, Murder with untouchability (Offences) Act, 1955, Murder in connection with dowry, Murder of a child under the age of 14 years, Murder of a handicapped or pregnant woman, Murder after abduction or kidnapping, Murder exhibiting brutality such cutting the body into pieces or burning/dragging of the body as evident from judgment of sentence, Persistent bad conduct in the prison and those who cannot for some definite reasons be prematurely released without danger to public safety or Convicts who have been imprisoned for life under Section 120-B 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 any offence Their cases may be considered after completion of 14 years actual sentence including undertrial period and after earning at lest 6 years remission. Mukhtiar Singh, filed SLP titled “Mukhtiar Singh Vs. State of U.P.” before the Hon'ble Supreme Court of India and Hon'ble Supreme Court as per order Annexure P-4, held that appellant has already completed 14 years of imprisonment as on 26.1.2000, so he ought to be released. Direction was given to the appropriate authority to release the appellant forthwith, subject to the final decision in the appeal. CRWP No. 1959 of 2010 -6- Hon'ble Supreme Court while disposing of Special Leave to Appeal titled “Shiv Pal and other Vs. State of Uttar Pradesh and others” held that petitioner No.22 Radhey Shyam, who is undergoing imprisonment in Sitarganj Jail, District Udhamsingh Nagar, Uttranchal, has already undergone sentence of 16 years, 4 months and 17 days as on 26.1.2000, without remission, so he was directed to be released forthwith, if not required in any other case. Similarly, petitioner No. 30 namely Ram Avtar, was also directed to be released forthwith because he has already completed a period of 15 years, 4 months and 16 days of sentence as on 26.1.2000. Annexure P-5 is the copy of the judgment. Jiya Lal S/o Nihal Singh, filed CRM No. M 12868 of 2003. He has undergone more than 14 years of the actual sentence. Vide judgment dated 28.7.2006 (Annexure P-7), passed by this Court he was ordered to be released on the usual terms and conditions subject to the final decision in Anil Sharma's case. Gopi Ram @ Gopi Chand, filed CRM No. M 27997 of 2008 and same was allowed vide order dated 5.12.2008 (Annexure P-9), with a direction to the authorities to dispose of his premature release case in the light of Apex Court judgment in Mahender Singh's case (supra) within two months. Gopi Ram @ Gopi Chand had completed 14 years of actual sentence at the time of decision. Similar view was taken while disposing of writ petition (Annexure P-10) filed by Jasbir Singh. Case of Subhash Chand convicted in FIR No. 26 dated CRWP No. 1959 of 2010 -7- 3.2.1994, Police Station Safidon under Sections 302/364/201/120-B/34 IPC and 25 of the Arms Act, decided on 19.10.1996 (Annexure P-6), was also considered. He had undergone 15 years, 10 months and 08 days of the actual sentence including undertrial period and earned 05 years, 10 months and 17 days remission as on 25.7.2010. Present petitioner as per reply has undergone actual sentence of 15 years, 9 months and 29 days. 4 years and 14 days remissions was earned but case of the petitioner was rejected simply on the ground that he has not completed 20 years of total sentence but approach of the respondents is not correct one as per the law laid down by the Hon'ble Supreme Court as well as by this Court. In view of all discussed above, I am of the opinion that petitioner also deserves to be granted premature release because he has undergone 15 years, 9 months and 29 days of actual sentence. For the reasons recorded above, the instant petition is allowed and the competent authority is directed to dispose of the pre- mature release case of the petitioner within a period of one month from the date of receipt of the certified copy of this order. February 01, 2011 (JORA SINGH) rishu JUDGE