Jalfan vs State Of Haryana And Others
2022 Latest Caselaw 1231 P&H

            IN THE HIGH COURT OF PUNJAB & HARYANA
                     AT CHANDIGARH.


                                CRWP-3201-2021
                                Date of decision: 7 th March, 2022


Julfan                                                         .....Petitioner


                                  Versus


State of Haryana and Others                                 .....Respondents


CORAM: HON'BLE MR. JUSTICE SANT PARKASH


Argued by: Mr. Hoshiar Singh Jaswal, Advocate
           for the petitioner.

            Mr. Amreek Singh Narwal, DAG, Haryana

                         ****

SANT PARKASH, J.

(The case has been taken up for hearing through video

conferencing).

1. The petitioner has filed the present petition under Article

226/227 of the Constitution of India for quashing/setting-aside the

impugned order dated 08.01.2021 (Annexure P-3) passed by respondent

No. 1 deferring the premature release case of the petitioner for two

years with a further prayer directing the respondents to re-consider the

case of the petitioner afresh under the policy/instructions of Haryana

Government dated 12.04.2002 (Annexure P-2) applicable at the time of

his conviction.

2. The petitioner along with other co-accused was arrested in

case FIR No. 36 dated 12.03.2006 under Sections 120-B, 302, 323, 365

and 508 of the Indian Penal Code, 1860 registered at Police Station

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Buria, District Yamuna Nagar. The petitioner was tried for the aforesaid

offences and after completion of trial, the petitioner was convicted and

sentenced to undergo imprisonment for life by the Court of learned

Additional Sessions Judge Yamunanagar vide order dated 12.12.2007.

3. Feeling aggrieved, the petitioner assailed the aforesaid

judgment by filing appeal CRA-D-516-DB-2008 which was also

dismissed vide order dated 23.01.2012.

4. The petition has been opposed by the respondents/State in

terms of reply filed by way of affidavit of Jagjit Singh, Inspector

General of Prisons, Haryana, O/o the Director General of Prisons,

Haryana

5. Learned Counsel for the petitioner has submitted that the

petitioner has undergone actual sentence of more than 14 years and

total sentence of 20 years with remissions and the case of the petitioner

falls under the category 2(a) of the Premature Release Policy dated

12.04.2002 of the Haryana Government. The respondents vide

impugned order dated 08.01.2021 (Annexure P-3) have deferred the

case of premature release of the petitioner for two years. Further

detention of the petitioner is against the said Govt. policy and in

violation of Article 21 of the Constitution of India. The petitioner is

fulfilling all the conditions for grant of pre-mature release as per the

Govt. Instructions (Annexure P-2) and the present petition be allowed

and the petitioner be set at liberty forthwith.

6. On the other hand, learned State Counsel reiterating the

contents of reply has submitted that the petitioner along with four other

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persons hatched a criminal conspiracy as a result of which, mother-in-

law and father-in-law of the petitioner were murdered after their

abduction. Even, their minor daughter was kidnapped and caused hurt.

The petitioner has committed serious offences. The petitioner cannot

claim premature release as a matter of right and it is only a concession

given by the State Government after considering the behaviour of the

convict inside the jail, gravity, nature of offence, manner and

circumstances under which the crime was committed. In support of his

arguments learned Counsel for the State has placed reliance on

judgments passed by Hon'ble Apex Court in 'Maru Ram Vs. Union of

India' AIR 1980 SC 2147, decided on 11.11.1980 ; 'Swami

Shardhanand @ Murli Manohar Mishra Vs. State of Karnataka

(SC) 2008(3) R.C.R. (Criminal) 772; W.P. (Crl.) No.48 of 2014

Union of India Vs. V. Sriharan @ Murugan & Ors. and SLP (Crl)

No. 6467 of 2012 Crl. M.P. No. 17082 of 2012 titled State of U.P. Vs.

Sanjay Kumar.

7. Learned State Counsel has further submitted that on

completion of 14 years of actual sentence and 20 years and 1 day of

total sentence as on 23.03.2020, the case of premature release of the

petitioner was placed before the State Level Committee in its meeting

held on 20.11.2020 for consideration. After considering the matter, the

State Level Committee did not recommend the case of the convict for

premature release and observed that though the case for premature

release of the life convict is eligible for consideration as per para

2(a)(viii) and (xiii) of the premature release policy dated 12.04.2002,

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but keeping in view the nature of crime committed by the life convict in

a most cruel, ghastly and barbaric manner, the case for premature

release of the life convict be deferred for two years w.e.f. 31.03.2020,

the date of his eligibility for consideration of his premature release.

8. It has been mentioned in the premature release policy itself

that no convict has fundamental right of remission or shortening of

sentence and the State Government, in exercise of its discretionary

power of remission is to consider each case individually keeping in

view all the relevant factors. The case for premature release of the

petitioner will be re-considered after completion of two years w.e.f.

31.03.2020. Therefore, the present petition being devoid of any merits

may be dismissed.

9. Hon'ble Apex Court in its judgments passed in Maru Ram

and Swami Shardhananad (Supra) has held that a convict cannot

claim premature release as a matter of right and it would be at the sole

discretion of the Government to exercise the power conferred on it in

accordance with law.

10. In W.P. (Crl.) No.48 of 2014 Union of India Vs. V.

Sriharan @ Murugan & Ors. it was held that the powers under

Sections 432 and 433 of the Code of Criminal Procedure, 1973 are to

be exercised by the Appropriate Government statutorily and it is not for

this Court to exercise the said power and it is always left to be decided

by the Appropriate Government.

11. Further, in case, SLP (Crl) No. 6467 of 2012 Crl. M.P.

No. 17082 of 2012 titled State of U.P. Vs. Sanjay Kumar as relied

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upon by learned State Counsel, Hon'ble Supreme Court has held as

under :-

".......Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds for example non-application of mind while passing the order; non-consideration of relevant material; or if the order suffers from arbitrariness.

The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under Jail Manual etc. or even under Section 433-A Cr.P.C......."

12. In the above referred judicial precedents, it has been held

that the case of premature release of a life convict is governed by the

policy/guidelines of the Government and the gravity of the offence(s)

of the accused are also to be considered for the purpose.

13. However, Hon'ble Apex Court in its judgment passed in

'State of Haryana and Ors. Vs. Jagdish decided on 22.03.2010 has

held as under :-

27. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain

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and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfillment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433-A Cr. P.C. may have a different flavour in the statutory provisions, as short sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.

28. In Epuru Sudhakar & Another v. Govt. of A.P. & Ors. AIR 2006 SC 3385 this Court held that reasons had to be indicated while exercising power under Articles 72/161. It was further observed (per Kapadia, J) in his concurring opinion:

"Pardons, reprieves and remissions are manifestation of the exercise of prerogative power. These are not acts of grace. They are a part of Constitutional scheme. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgment has fixed...

Exercise of Executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty....

Granting of pardon is in no sense an overturning of a judgment of conviction, but rather it is an Executive action that mitigates or sets aside the

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punishment for a crime...

The power under Article 72 as also under Article 161 of the Constitution is of the widest amplitude and envisages myriad kinds and categories of cases with facts and situations varying from case to case."

38. At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict's family and other similar circumstances.

39. Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. `Vana Est Illa Potentia Quae Nunquam Venit In Actum' means-vain is that power which never comes into play.

40. Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who

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may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.... "

14. In view of the above judicial precedent, it has become clear

that pardons, reprieves and remissions are manifestation of the exercise

of prerogative power. These are not acts of grace and are a part of

Constitutional scheme. It is as much an official duty as any other act

which is vested in the Authority not for the benefit of the convict only,

but for the welfare of the people; who may properly insist upon the

performance of that duty by him if a pardon or parole is to be granted.

15. In the present case, the petitioner has sought his premature

release on the ground that as per policy dated 12.04.2002 which was

prevalent at the time of his conviction, he has completed the required

sentence for considering his case for pre-mature release. However, the

respondents have deferred the case of the petitioner keeping in view of

the heinousness/gravity of crime committed by him and his case will be

re-considered after two years from the date when he was eligible for

premature release.

16. The petitioner along with his co-accused by hatching

conspiracy had committed murder of his mother-in-law and father-in-

law with 'kulhari', 'gandasi' and stones after their abduction in order to

grab their property. Their minor daughter Alka was also kidnapped and

injuries were inflicted upon her.

17. The petitioner was convicted for sentence to life on

14.12.2007. Hence, the premature policy dated 12.04.2002 is applicable

upon the petitioner.

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The relevant Clause 2 (a) of the said policy reads as

under :-

(a) Convicts who have been                Their cases may be considered
imprisoned for life having                after completion of 14 years actual
committed a heinous crime such            sentence including undertrial
as :-                                     period provided that such sentence
                                          including remissions is not less
                                          than 20 years.
(i)   Murder     with    wrongful
confinement for extortion/robbery.
(ii) Murder while undergoing life
sentence.
(iii) Murder with dacoity.
(iv) Murder with offence under
TADA Act, 1987.
(v) Murder with untouchability
(Offences) Act, 1955.
(vi) Murder in connection with
dowry.
(vii) Murder of a child under the
age of 14 years.
(viii) Murder of a woman.
(ix) Murder after abduction or
kidnapping.
(x) Murder exhibiting brutality
such a cutting the body into piece
of burning/dragging the body as
evident from judgment of the
Court.
(xi) Persistent bad conduct in the
prison.
(xii) Convicts who cannot for
some     definite    reasons    be
prematurely     release    without
danger to public safety.
(xiii) Convicts who have been
imprisoned for life under Section
120-B IPC.
(xiv) Any other crime that the
State Level Committee considers
to be 'henious' for reasons to be
recorded in writing.



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18. As per the reply submitted by the respondent/State, the

petitioner has undergone 15 years and 20 days of actual sentence and

20 years, 4 months and 10 days of total sentence including remissions

as on 12.04.2021 and the case of the petitioner falls within the ambit of

the aforesaid clause of premature policy dated 12.04.2002.

19. Hon'ble Apex Court in its case Criminal Appeal No. 30

of 2005 titled as "State of Haryana Versus Mahender Singh and

Others" decided on 02.11.2007, has held as under :-

32. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. 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 a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules.

33. 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.

20. In view of the above referred judicial precedent, this fact is

not disputed that whenever a policy decision regarding remission of

sentence is made, persons must be treated equally in terms thereof and

the case of the petitioner for his premature release is to be considered

equally with other cases of life imprisonment where double murder has

been committed and the life convicts were released pre-maturely on

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their fulfillment of the criteria/conditions of the policy/instructions of

the State Government.

21. Further, in Mahender Singh's case (supra), this Court

observed that the petitioners had been found guilty for the commission

of three murders. However, the imprisonment for life was imposed on

each one of them by the trial court on three counts. The said

imprisonment awarded on three counts was ordered to run concurrently.

So, no discrimination could be done on the basis of classification of

two murders or three murders. There was no valid basis for the

classification because Article 14 of the Constitution of India provides

equality before law. It was also held that the provision of the policy is

discriminatory and violative of Articles 14, 19 and 20 of the

Constitution of India.

22. In similar circumstances, this Court in judgment dated

01.02.2011 (Jai Parkash Billu Vs State of Haryana and others), the

petitioner, who was convicted and sentenced in FIR registered under

Sections 302/364/377/511 IPC has released the petitioner on

completion of 14 years of actual sentence despite the requirement as per

the prevalent policy was that the petitioner had to undergo 20 years of

total sentence including 06 years of remissions.

23. In the case in hand, the policy dated 12.04.2002 is

applicable and as per clause 2 (a) thereof, the petitioner had to undergo

14 years of actual sentence and 20 years of total sentence including

remissions on account of the fact that offences alleged to have been

committed by him are covered under the said clause. The petitioner has

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undergone more than 15 years of actual sentence and more than 20

years of sentence with remissions. The said fact being not disputed by

the respondent/State. Therefore, the petitioner in this case was required

to be treated at par and he is held entitled to the same/similar treatment

for the purpose of premature release. Even otherwise also the deferred

period of two years is to be reckoned from 31.03.2020 which is going

to expire within few days.

24. In view of the above discussion, the present petition is

allowed and impugned order dated 08.01.2021 (Annexure P-3) is set

aside.

25. The petitioner be set at liberty forthwith, if not required in

any other case.

                                                       (SANT PARKASH)
7 th March, 2022                                           JUDGE
kavneet singh


                Whether speaking/reasoned        :      Yes/No
                Whether reportable               :      Yes/No




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