Punjab-Haryana High Court
Rakesh Kumar vs State Of Haryana And Others on 30 January, 2023
In the High Court for the States of Punjab and Haryana
At Chandigarh
CRWP-9645-2021 (O&M)
Date of Decision:-30.1.2023
Rakesh Kumar ... Petitioner
Versus
State of Haryana and others ... Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Vijay K.Jindal, Advocate for the petitioner.
Mr. Gurmeet Singh, AAG, Haryana.
*****
GURVINDER SINGH GILL, J.
1. The petitioner assails order dated 29.7.2021 (Annexure P-5) vide which
respondent - State of Haryana while considering the case of the petitioner
for his premature release has ordered that the case be deferred for three years
and that the same would be re-considered after three years subject to his
good conduct during the said deferred period.
2. The petitioner was tried by the Court of Sessions, Rewari in respect of FIR
No. 151 dated 2.8.2021, Police Station Khol, District Rewari, under Sections
302, 307, 394, 216-A, 213/120-B of Indian Penal Code and was held guilty
alongwith two other accused vide judgment dated 27.7.2006 (Annexure P-1)
passed by learned Sessions Judge, Rewari. The sentence imposed upon the
petitioner vide order dated 29.7.2006 is reproduced herein under :-
"Looking into the ages, character and the other antecedents, I sentence each
of the convicts as under :-
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(2) CRWP-9645-2021 (O&M)
Sr. Offence under Sentence Fine Sentence in default
No. Section of payment of find
(Further R.I.)
1 120-B IPC R.I. for Two years Rs. 500/- Three months
2 302 IPC Imprisonment for life Rs. 2,000/- Six months
3 307 IPC R.I. for Five years Rs. 1,000/- Four months
4 394 IPC R.I. for Ten years Rs. 2,000/- Six months
5 25 of Arms Act R.I. for one year Rs. 1,000/- Four months"
3. The case of the petitioner was considered for premature release in
accordance with policy dated 12.4.2002 (Annexure P-2) but his case was
deferred vide impugned order dated 29.7.2021. The relevant extract from
Para 2 of the impugned order dated 29.7.2021 (Annexure P-5) is reproduced
herein under :-
"2.The date of conviction of the convict is 29.07.2006. Hence, the policy of premature
release dated 12.04.2002 is applicable in this case. This convict has further committed
two jail offences, the details of which are as under:
i. On 12.05.2010, surrendered after lock up: Warned by the Superintendent Jail.
ii. On 16.05.2012, absconded from parole for 01 year, 06 months 24 days: A case FIR
No. 470/2010 U/s 8/9 Haryana Good Conduct Prisoners Act, PS. Sadar
Bahadurgarh was registered against him. Convicted and sentenced to
imprisonment as already undergone on 03.02.2014.
This life convict was also involved in the following two other criminal offences whose
detail is as under :-
i. FIR No. 27/1998 U/s 392 IPC, P.S. Sampla was registered against him. Convicted
and sentenced to imprisonment as already undergone on 10.10.2006.
ii. FIR No. 168/2012 U/s 174-A/229-A IPC, P.S Sadar Bahadurgarh was registered
against him. Convicted and sentenced to imprisonment as already undergone on
03.02.2014.
The State Level Committee in its meeting dated 07.06.2021, has considered his case
under para 2(a)(iii) of the Premature Release Policy dated 12.04.2002 and has
observed that this life convict alongwith his co-accused had committed double
murder of two innocent govt. employees i.e. Principal and Lecturer of Government
Senior Secondary School, village Kund who were performing their official duty and
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(3) CRWP-9645-2021 (O&M)
had gone to withdrawal of salary of the employees of the school, and the salary was
robbed, which is a very heinous crime.
Further, this life convict had also absconded from parole for 01 year, 06 months and
24 days and had misused the Government concession. In view of these facts, this life
convict does not deserve any concession from the Government at this stage and the
State Level Committee has recommended that the case for premature release of this
life convict be deferred for 3 years.
Moreover, no convict has fundamental right of remission or shortening of sentence.
In fact, these are privileges granted by the State to the convict prisoners. The State
Government in exercise of its executive/discretionary power of remission, is to
consider each individual case keeping in view all relevant factors."
4. Learned counsel for the petitioner has submitted that the period of total
custody, as on date, is more than 20 years and even the actual custody is
more than 18 years and as such, the petitioner deserves to be released
prematurely.
5. It has been vehemently argued that the authorities concerned have not
considered his case under the appropriate provisions and have incorrectly
considered his case under provisions of Para 2(a)(iii) of policy dated
12.4.2002 whereas the said provisions would be applicable only in a case
where murder has been committed while committing dacoity and since in
the instant case, no such charges for dacoity were framed and nor the
petitioner has been convicted either for offence under Section 395 or Section
396 IPC, therefore, the impugned order cannot sustain and is liable to be set
aside.
6. This Court has considered the aforesaid submissions.
7. The allegations, in nutshell, are that the petitioner alongwith nine co-accused
had committed the offence of double murder of Mahabir, Principal and Ram
Kishan, Lecturer and had also inflicted injuries to Lal Singh by fire shots
from country-made pistol and revolver and had robbed an amount of
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(4) CRWP-9645-2021 (O&M)
Rs. 3,14,000/-, which was salary of the employees. Pursuant to framing of
charges, the petitioner was convicted for having committed offences under
Sections 302, 307, 394, 120-B IPC and Section 25 of the Arms Act.
8. Before proceeding further, it is apposite to refer to the relevant provisions
pertaining to 'robbery' and 'dacoity' and the distinctions therein and also the
relevant provisions where sentence is prescribed. Sections 390, 391, 392,
394, 395 and 396 IPC are reproduced herein under :-
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of
the theft, or in committing the theft, or in carrying away or attempting to carry
away property obtained by the theft, the offender, for that end, voluntarily
causes or attempts to cause to any person death or hurt or wrongful restraint, or
fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the
time of committing the extortion, is in the presence of the person put in fear,
and commits the extortion by putting that person in fear of instant death, of
instant hurt, or of instant wrongful restraint to that person or to some other
person, and, by so putting in fear, induces the person so put in fear then and
there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put
the other person in fear of instant death, of instant hurt, or of instant wrongful
restraint.
391. Dacoity.--When five or more persons conjointly commit or attempt to commit
a robbery, or where the whole number of persons conjointly committing or
attempting to commit a robbery, and persons present and aiding such
commission or attempt, amount to five or more, every person so committing,
attempting or aiding, is said to commit "dacoity".
392. Punishment for robbery.--Whoever commits robbery shall be punished with
rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine; and, if the robbery be committed on the highway between
sunset and sunrise, the imprisonment may be extended to fourteen years.
394. Voluntarily causing hurt in committing robbery.--If any person, in
committing or in attempting to commit robbery, voluntarily causes hurt, such
person, and any other person jointly concerned in committing or attempting to
commit such robbery, shall be punished with 1[imprisonment for life], or with
rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
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(5) CRWP-9645-2021 (O&M)
395. Punishment for dacoity.--Whoever commits dacoity shall be punished with
imprisonment for life, or with rigorous imprisonment for a term which may
extend to ten years, and shall also be liable to fine.
396. Dacoity with murder.--If any one of five or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of
those persons shall be punished with death, or imprisonment for life, or
rigorous imprisonment for a term which may extend to ten years, and shall also
be liable to fine.
9. In the instant case, it was only three accused who were held guilty and have
been convicted for offence under Sections 120-B, 302, 307 and 394 IPC and
also for offence under Section 25 of the Arms Act. Apparently, since the
number of accused found guilty was less than 5, the robbery could not have
been termed as 'dacoity'.
10. In other words, the petitioner was neither convicted for offence of 'dacoity'
(Section 392 IPC) nor for having committed 'dacoity with murder' (Section
396 IPC).
11. Now, coming to the relevant provisions of policy dated 12.4.2002, Para 2 of
the same is reproduced hereinunder :-
2. In supersession of Haryana Govt. memo no.36/135/91-1JJ(II) dated
08.08.2000 which was further substituted bearing same no. and date on
23.02.2001, the Govt. have decided to revise the policy regarding,
premature release of life convicts as follows :-
(aa) Convicts whose death sentence has Their cases may be
been commuted to life considered after
imprisonment and convicts who completion of 20 yrs.
have been imprisoned for life actual sentence and 25
having committed a heinous crime years total sentence
such as :- with remissions.
(i) Murder after rape
repeated/chained rape/
unnatural offences
(ii) Murder with intention for the
ransom.
(iii) Murder of more than two
persons.
(iv) Persons convicted for
second time for murder
(v) Sedition with murder.
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(6) CRWP-9645-2021 (O&M)
(a) Convicts who have been imprisoned Their cases may be
for life having committed a heinous considered after
crime such as :- completion of 14 yrs.
(i) Murder with wrongful actual sentence
confinement for extortion/ including undertrial
robbery. period provided that the
total period of such
(ii) Murder while undergoing life sentence including
sentence remissions is not less
than 20 years.
(iii) Murder with dacoity
(iv) xx xxx xxx
to
(xiv)
12. A perusal of the impugned order shows that the case of the petitioner for his
premature release has been considered under provisions of Para 2(a)(iii) of
policy dated 12.4.2002 (Annexure P-2) whereas the petitioner has never
been convicted for offence of dacoity. In these circumstances, the petitioner
not having been considered under the correct provisions of the policy, the
impugned order cannot sustain and is hereby set aside.
13. The competent authority is directed to reconsider the matter afresh in
accordance with the provisions of relevant policy of premature release, as
applicable to him and to take a decision expeditiously, preferably within a
period of 3 months from receipt of copy of this order.
30.1.2023 ( Gurvinder Singh Gill )
kamal Judge
Whether reasoned/speaking Yes / No
Whether reportable Yes / No
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