Criminal Misc. No.M-23798 of 2008 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-23798 of 2008 Date of decision : 5.12.2008 Rewta .....Petitioner Versus State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. V.K. Jindal, Advocate for the petitioner. Mr. S.S.Mor, Senior Deputy Advocate General, Haryana S. D. ANAND, J. The petitioner was convicted on 6.11.1993. Initially, the petitioner ( a lifer) filed Criminal Misc. No.M-4931- 2008, which was disposed of by a Coordinate Bench of this Court ( Augustine George Masih, J.) on 6.8.2008 by issuing a direction that the respondents shall decide the premature release case of the petitioner by or on 2.9.2008. This Court noticed, in the course thereof, that the petitioner was placing reliance upon the judgment rendered by the Apex Court in State of Haryana Vs. Mahender Singh and others AIR 2007 SCW 6988. The State counsel had informed the Court that “the meeting of the high level committee is fixed for today for reconsideration of the case ofd the petitioner and also to finalize the policy in the light of the judgments of the Hon'ble Supreme Court.” In compliance therewith, the competent authority considered the premature release case of the petitioner but declined it by placing reliance upon the provisions of Section 433-A of the Code of Criminal Criminal Misc. No.M-23798 of 2008 -2- **** Procedure. The State Level Committee noticed that though the petitioner had completed his actual sentence of 14 years, he could not be released as he has not completed 20 years of total sentence. It further noticed that it (State Level Committee) has recommended the filing of a review petition before the Apex Court for review of judgment in Mahender Singh's case (supra). However, learned State Counsel concedes that the judgment in Mahender Singh's case (supra) has not been stayed by the Apex Court till date. Insofar as the non completion of total sentence is concerned, a similar controversy came up before a Division Bench of this Court in Crl. Misc. No.12868-M of 2003 (Jiya Lal Vs. State of Haryana and others) In the context, the following observations were made by the Bench while negativing the very premise from which sustenance has been drawn by the Competent Authority in declining 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 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 Criminal Misc. No.M-23798 of 2008 -3- **** 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 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 fore-going discussion, the petition shall stand Criminal Misc. No.M-23798 of 2008 -4- **** allowed to the extent that the competent authority is directed to dispose of the premature release case of the petitioner-prisoner in the light of the Apex Court judgment in Mahender Singh's case (supra) which (judgment) is not indicated to have been stayed by the Apex Court till date). The State Level Committee shall keep this aspect in view. It shall also keep in view that the mere filing of the review plea, in the absence of a stay order, does not enable the Committee to defer the applicability of Mahender Singh's case to the cases of indicated category. 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. 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 05, 2008 (S. D. ANAND) Pka JUDGE