Punjab-Haryana High Court
Sardool Singh vs State Of Punjab And Others on 16 August, 2023
Neutral Citation No:=2023:PHHC:109561
2023:PHHC:109561
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRWP-3967-2021
Reserved on: 03.08.2023
Pronounced on :16.08.2023
Sardool Singh
. . . . Petitioner
Vs.
State of Punjab and others
. . . . Respondents
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Present: - Mr. Sandeep Verma, Advocate, for the petitioner
Mr. P.S. Pandher, AAG, Punjab.
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DEEPAK GUPTA, J.
Prayer in this petition filed under Section 226 of the
Constitution of India to be read with Section 482 Cr.P.C. is to issue a writ
in the nature of mandamus, directing the respondents to consider the case of
the petitioner for his premature release as per policy dated 08.07.1991
issued by the Government of Punjab (Annexure P1).
2. Petitioner is undergoing sentence in case FIR No.162 dated
09.05.2005 registered at Police Station Sadar Sri Muktsar Sahib under
Sections 302, 148, 307 & 149 IPC and Section 27 of the Arms Act, wherein
he was convicted vide judgment dated 04.06.2010 and was sentenced to
undergo imprisonment for life. Criminal Appeal No.595-DB of 2010 filed
by the petitioner was dismissed by this court on 23.09.2015, whereas SLP
filed by him was dismissed in limine by Hon'ble Supreme Court.
3. According to the petitioner, as per the policy dated 08.07.1991,
issued by the Government of Punjab, a person is required to undergo 10
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years actual sentence; whereas he has already undergone 9 years 11 months
and 29 days till date (as on the date of filing of the petition) and by adding
remission, this period has crossed 15 years and so, he is entitled to be
considered for premature release. It is further contended that his case was
recommended for premature release under 2017 policy, which is not
applicable to this case, as it is the policy applicable on the date of
conviction, which is to govern the case of pre-mature release, as has been
held by Hon'ble Supreme Court in the case of State of Haryana and others
Vs. Jagdish, 2010 (2) RCR (Criminal) 464. It is further submitted that
co-convicts, namely, Darshan Singh, Harpinder Singh and Balwinder
Singh, have already been given the benefit of premature release by the
respondent authorities, but the representations made by the petitioner
several times have not been considered. Petitioner contends that on the
basis of parity also, he is entitled to be released on premature release.
4. (i) As per the reply dated 25.05.2023 filed by way of affidavit of
Shri Rajiv Kumar Arora, Superintendent, Central Jail, Faridkot on behalf of
respondents No.1 to 3, petitioner has undergone actual sentence of 9 years,
3 months and 11 days only, though as per the 1991 policy, the actual
undergone sentence should be at least 10 years. Respondents have also
placed on record jail records of the co-convicts Balwinder Singh, Amritpal
Singh, Harpinder Singh, Pal Singh, Sarabjit Singh and Darshan Singh, who
have been given the benefit of premature release by submitting that they
fulfilled the requirement of the 1991 policy.
(ii) Respondents have submitted further that earlier the premature
release cases of the lifers were sent according to the formula, which is
"custody during undertrial period + conviction period + remissions -
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parole". The said matter was discussed in the State Level Committee under
the Chairmanship of the Principal Secretary, Jails (Punjab), Chandigarh and
as per the decision taken, the premature release of the convict person shall
be sent only after applying the formula "custody during trial period +
conviction period - parole = actual sentence." Respondents have further
referred to a decision of Hon'ble Supreme Court rendered in Appeal (Crl.)
271 of 2002 titled as Avtar Singh Vs. State of Haryana and another,
decided on 19.02.2002, wherein it had been held by the Hon'ble Supreme
Court that period of temporary release of a prisoner on parole is to be
counted towards the total period of detention, unless it is otherwise
curtailed by legislative act, rules, instructions or terms of grant of parole. In
the said case, it was held by the learned Apex Court as under: -
"The second contention of the learned counsel for the appellant has al-
so to be rejected in view of the decision of this Court in Sunil Fulchand
Shah (supra). The Constitution Bench has clearly held that though ordi-
narily the period of temporary release of a prisoner on parole needs to
be counted towards the total period of detention but this condition can
be curtailed by legislative act, rules, instructions or terms of grant of
parole.
We also do not find force in the contention of the learned counsel for the
appellant that sub-section (3) of Section 3 of the Act is hit by Article 21
of the Constitution. By a valid legislative Act, the period of temporary
release on parole has been denied while counting the actual sentence
undergone by the prisoner. It cannot be said that such right of a prison-
er has been taken away without due process of law. Consequently, these
contentions of the learned counsel for the appellant are rejected."
(iii) Respondents have further referred to Section 3 of Punjab Good
Conduct Prisoners (Temporary) Release Act, 1962 to contend that State gov-
ernment can temporarily release a prisoner for specified period on fulfilling
certain specified conditions but the period of release is not to be counted to-
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wards total period of the sentence of the prisoner. It is by keeping in view the
abovesaid provisions that the committee constituted for consideration of pre-
mature release case of lifer, has given the interpretation to the term 'actual sen-
tence'. Respondents have also given details about the custody period under-
gone by the co-convicts to justify their pre-mature release. Details of other cas-
es registered against the petitioner are also given.
(iv) With above submissions and re-iterating that petitioner has yet not
completed his requisite sentence as per 1991 policy, prayer is made for dismis-
sal of the petition.
5. I have considered submissions of both the sides and have perused
the record.
6. It is not in dispute that petitioner has been sentenced to un-
dergo imprisonment for life vide judgment dated 04.06.2010 in case aris-
ing out of FIR No.162 dated 09.05.2005 registered at Police Station Sa-
dar Sri Muktsar Sahib under Sections 302, 148, 307 & 149 IPC and Sec-
tion 27 of the Arms Act, and that this judgment has attained finality.
7. The Government of Punjab, Department of Home Affairs and
Justice framed a policy dated 08.07.1991 for grant of remissions of
sentences of life imprisonment under Section 432, 433 and 433(A) of the
Cr.P.C. and Article 161 of the Constitution of India. Copy of the said policy
is Annexure P2. As per the said policy, the minimum period of
imprisonment to be undergone for a convict before consideration of his
application for exercise of powers of the Government under Article 161 of
the Constitution of India is as under: -
A B C D E
For convicts Convicts who Convicts who Other life Other life
whose death have been have been convicts convicts
sentence has imprisoned for imprisoned for imprisoned for
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been commuted life for offences life for offences life for offences
to life for which death for which death for which the
imprisonment is a punishment is a penalty but death penalty is
and have crimes are not not a
committed considered punishment and
heinous crime heinous have committed
heinous crimes
Actual Impris Actual Impris Actual Impris Actual Impris Actual Impris
impris onment impris onment impris onment impris onment impris onment
onmen with onmen with onmen with onmen with onmen with
t remissi t remissi t remissi t remissi t remissi
on on on on on
14 20 12 18 10 14 10 14 8½ 14 Adult
10 14 8 12 8 12 8½ 12 6 10 Female
/Minor
8. As the policy reveals, the heinous crime is defined as under: -
A. Heinous crime with reference to column 'B' of 1(1) above are defined as
follows: -
I. Offence under Section 302 along with 347 of the l.P.G. i.e, murder with
wrongful confinement for extortion.
II. Section 302 with 375, i.e. murder with rape
III. Offence under Section of IPC i.e. dacoity with murder.
IV. Offence under Section 302 along with offences under the Terrorist and
Disruptive Activities (Prevention) Act, 1987.
V. Offence under Section 302 along with offence under Untouchability
(offences) Act. 1955.
VI. Offence under Section 302 where murder has been committed in
connection with any dispute over dowry and this is indicated in the
judgement of the Trial Court.
VII. Offence under Section 302 where the victims is a child under age of 14
years.
VIII. Any conviction under Section 120-B of the LP.C. Heinous Crime with
reference to column D' of the revised policy are defined as follows: -
i) Offence under Section 304 (b) of the IPC, i.e. a dowry death.
(ii) Offence under Section 304 along with Section 347 of the IPC, ie.,
culpable. homicide with Wrongful confinement for extortion.
(iii) Offence under Section 304 with Section 375, i.e., culpable
homicide with rape.
(iv) Offence under Section 304 along with offence under the Terrorist
and Disruptive Activities (Prevention Act, 1987).
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(v) Offence under Section 304 where culpable homicide has been
committed in connection with any dispute on dowry and this is
indicated in the judgement of the trial court.
(vi) Offence under Section 304 where the victim is a child under the
age of 14 years.
(vii) Any conviction under Section 120-B of the IPC i.e. for criminal
conspiracy in connection with the above crimes."
9. It is not disputed that case of the petitioner falls in category 'C'
of the table i.e., 'convicts who have been imprisoned for life for offences
for which death is a penalty but crimes are not considered heinous' and
thus, in order to consider the case of the petitioner for premature release, he
must have undergone actual imprisonment of 10 years and imprisonment
with remission as 14 years.
10. The custody certificate attached with the affidavit dated
25.05.2023 of the respondents reveals that the custody period of the
petitioner is as under: -
Year(s) Month(s) Day(s)
1. Period as undertrial: 28.04.06 to 30.08.06 00 04 02
2. Period after conviction 04.06.10 to 25.05.23 12 11 21
(Nine Years, Three Months and Eleven Days only)
11. Thus, it is clear from the above said custody certificate that
though the total period of sentence of the petitioner by including his
custody period as undertrial and custody period after conviction is 13 years,
03 months and 23 days as on 25.05.2023, but after excluding the parole
period, the actual custody period works out to be 9 years, 03 months and 11
days only. Thus, the case of the petitioner does not fall in the category 'C'
of the 1991 policy (Annexure P2). Petitioner has not completed the actual
custody period of 10 years imprisonment, as his total custody period of
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9 years, 03 months and 11 days only. It may be noted here itself that in the
custody certificate as filed along with reply dated 25.05.2023, the
respondents have not shown the remission period of the petitioner. In the
earlier affidavit dated 25.04.2023, 'the period of remission + GR' was
shown to be 08 years, which means that total sentence of the petitioner after
including the remission period was more than 17 years, though it is required
to be 14 years. Still, the condition of undergoing actual sentence of
minimum 10 years is not fulfilled in the case of the petitioner and so, his
case for premature release as per 1991 policy (Annexure P2) is not yet ripe.
12. As far as the co-convicts are concerned, Balwinder Singh had
already undergone actual sentence of 10 years and 6 days and total period
by including remission was 18 years and 6 days, as per the custody
certificate pertains to him.
Co-convict Amritpal Singh had completed actual sentence of
10 years 10 months and 18 days, whereas his total sentence after including
remission was 16 years 8 months and 20 days as per the custody certificate.
Custody certificate of another co-convict Pal Singh reveals that
he had undergone sentence of 17 years 8 months and 4 days by including
remission period and his actual sentence was 09 years 08 months and 4
days. However, he was given the benefit of extra remission of 01 year in
view of guidelines of Govt. of Punjab dated 23.10.2001, having remained in
Open Jail Nabha for one year.
As per custody certificate of co-convict Sarabjit Singh, who
though had completed actual sentence of 09 years 04 months and 27 days,
whereas his total sentence after including remission was 17 years 4 months
and 27 days, but was given the benefit of one month extra remission for
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having spent one year in the Open Jail Nabha, as per the guidelines of the
Government of Punjab dated 23.10.2001.
Co-convict Harpinder Singh had undergone actual sentence of
10 years 03 days.
Another co-convict Darshan Singh had completed actual
sentence of 07 years 03 months and 04 days, whereas his total sentence
after including remission was 09 years 07 months and 22days as per the
custody certificate. Respondents have specifically pointed out that the case
of co-convict Darshan Singh was on entirely different footing, as he was
80+ years at the time of initiation of his premature release and that as per
the premature release policy dated 14.12.2017, actual custody undergone by
the said convict should be 05 years and the total period of sentence by
including remission period should be 8 years.
13. It is, thus, clear that the petitioner cannot claim parity with
co-convicts, in as much as Darshan Singh's case was entirely on a different
footing, whereas other co-convicts had fulfilled the conditions under 1991
policy (Annexure P2).
14. In view of the above discussion, this Court finds no merit in the
present petition and as such, the same is hereby dismissed.
(DEEPAK GUPTA)
JUDGE
16.08.2023
Vivek
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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