Punjab-Haryana High Court
Pawan vs State Of Haryana And Ors on 5 March, 2024
Author: Deepak Sibal
Bench: Deepak Sibal
Neutral Citation No:=2024:PHHC:031529-DB
2024:PHHC:031529-DB
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Sr. No.108 LPA-434-2024
Reserved on: 12.02.2024
Pronounced on: 05.03.2024
Pawan ..... Appellant
Versus
State of Haryana and others ..... Respondents
CORAM : HON'BLE MR. JUSTICE DEEPAK SIBAL
HON'BLE MR. JUSTICE DEEPAK MANCHANDA
Present : Ms.Anjali Sheoran, Advocate, for the appellant.
Ms.Shubhra Singh, Addl.A.G., Haryana.
*****
DEEPAK SIBAL, J.
1. Through judgment dated 18.12.2015, the Additional Sessions Judge,
Rohtak (for short, the trial court) convicted the appellant under Sections 302, 376-D,
377, 366, 201 read with Section 120-B IPC.
2. For commission of the offence under Section 302 IPC the appellant was
awarded the death penalty; for the commission of the offence under Sections 376-D
read with Section 120-B IPC he was awarded punishment of life imprisonment for the
remainder of his natural life; for the commission of the offence under Section 366 read
with Section 120-B IPC he was sentenced to undergo rigorous imprisonment for ten
years and that he was sentenced to undergo rigorous imprisonment for seven years for
commission of the offence under Section 201 read with Section 120-B IPC.
3. Through CRA-D-99-DB-2016 filed before this Court, the appellant
challenged his conviction and sentence which appeal of his was dismissed by a Co-
ordinate Bench on 19.03.2019. Through Special Leave to Appeal (Criminal)
No(s).5060-5066/2019 titled as Padam @ Parmod & others etc. vs. The State of
Haryana, the appellant, alongwith his co-convicts, then knocked the doors of the
Supreme Court. On 04.07.2019 the Supreme Court granted leave and in the
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meanwhile stayed the execution of the appellant's death sentence. The appellant's
criminal appeal remains pending before the Supreme Court.
4. On 30.10.2023 the appellant filed a petition before this Court being
CRWP-10846-2023-Pawan vs. State of Haryana and others seeking therein issuance
of directions to the State to release him on parole to enable him to attend the marriage
of his niece. On being put to notice, the State opposed the appellant's prayer.
According to the State because the appellant had been convicted for rape and murder,
in terms of Section 2(g) of the Haryana Good Conduct Prisoners (Temporary Release)
Act, 2022 (for short-the 2022 Act), he was a "hardcore convicted prisoner".
Therefore, in view of Section 6(2) of the 2022 Act he could not be released on parole
to attend the marriage of his niece as a "hardcore convicted prisoner" could be granted
parole and that too in custody, for only attending the marriage of his own children or
siblings.
5. In response to the stand taken by the State the appellant relied on the
interim order of the Supreme Court dated 04.07.2019 wherein execution of the
appellant's death sentence had been stayed. According to the appellant, after the stay
on the execution of his death sentence, the appellant was required to be considered as a
convict undergoing life imprisonment and in that eventuality his case, for the grant of
parole, would be covered under the first proviso to Section 6(3) of the 2022 Act as per
which a "hardcore convicted prisoner" who was sentenced to undergo life
imprisonment could be granted parole at par with other convicted prisoners after he
had undergone seven years of imprisonment after his conviction, which the appellant
had.
6. Through the judgment impugned before us the learned Single Judge has
held that even though the appellant, after his conviction, had been in custody for over
seven years, he would still not be entitled to the grant of parole for the reason that even
if the execution of his death sentence has been stayed by the Supreme Court his case
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could not be considered under the first proviso to Section 6(3) of the 2022 Act as he
would still continue to be a "hardcore convicted prisoner" and that he would not be
entitled to the benefits under the first proviso to Section 6(3) of the 2022 Act till the
setting aside of his death penalty.
7. Learned counsel for the appellant submits that through order dated
04.07.2019, while granting leave in the appellant's Special Leave to Appeal
(Criminal), the Supreme Court has stayed the execution of the appellant's death
sentence; in the light of the order of the Supreme Court dated 04.07.2019 the only
punishment qua the appellant which presently subsisted was life imprisonment for the
remainder of his natural life and therefore, even as a "hardcore convicted prisoner",
the appellant's case for the grant of parole is required to be considered like any other
convicted prisoner in terms of the first proviso to Section 6(3) of the 2022 Act.
8. Learned counsel for the parties have been heard and with their able
assistance the record of the case has also been perused.
9. The relevant provisions of the 2022 Act read as under: -
"2. (1) In this Act, unless the context otherwise requires,
(a) to (f) xxx xxx xxx
(g) "hardcore convicted prisoner" means any prisoner: -
(i) who has been convicted for any of the following offences: -
(1) to (4) xxx xxx xxx
(5) rape or penetrative sexual assault or aggravated
penetrative sexual assault or unnatural offence with
murder under section 376 or section 377 read with
section 302 of the Indian Penal Code, 1860."
(6) to (14) xxx xxx xxx
(ii) xxx xxx xxx
(iii) who has been sentenced to death penalty or imprisonment
till natural life."
"2(k) "Sentence" means sentence of imprisonment finally delivered in
appeal or revision or otherwise and includes an aggregate of
one or more sentence."
"6. (1) The competent authority shall grant custody parole to a
convicted prisoner subject to such conditions and procedure as
specified under sections 11 and 12.
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(2) Notwithstanding anything contained in sections 3, 4 and 5, no
hardcore convicted prisoner shall be entitled to be released on
emergency parole or regular parole or furlough:
Provided that a hardcore convicted prisoner may be granted
custody parole for attending funeral of his family members or
marriage of his children or siblings.
(3) Notwithstanding anything contained in sub-section (1), a hardcore
convicted prisoner, who has not been awarded death penalty or life
imprisonment till natural life and has completed five years of his
sentence (including maximum two years under trial period), without
committing any major jail offence or any cognizable offence during the
last five years, shall be entitled for emergency parole or regular parole
or furlough at par with convicted prisoners. Such period of five years
shall be counted from the date of his latest offence or act which falls
under the category of hardcore convicted prisoner:
Provided that a hardcore convicted prisoner who has been
sentenced for imprisonment till natural life shall be eligible for
emergency parole or regular parole at par with convicted
prisoners only after completion of seven years of imprisonment
after conviction:
Provided further that if the hardcore convicted prisoner so
released temporarily violates any condition of parole or
furlough or commits any cognizable offence, he shall be
debarred from such release for next three years."
10. Amongst other sections of the IPC the appellant stands convicted under
Sections 376-D and 302 IPC. He has also been sentenced to death for the commission
of the offence under Section 302 IPC and further sentenced to undergo life
imprisonment till the remainder of his natural life for commission of offences under
Section 376-D read with Section 120-B IPC. Thus, in terms of Section 2(1)(g)(5) as
also Section 2(1)(g)(iii) of the 2022 Act he is a "hardcore convicted prisoner".
11. Section 6 of the 2022 Act deals with the grant of parole to "hardcore
convicted prisoners". As per Section 6(2) of the 2022 Act no "hardcore convicted
prisoner" is entitled to be released on emergency parole or regular parole. The only
exception carved out under the proviso to Section 6(2) is to the grant of parole but in
custody to a "hardcore convicted prisoner" to enable him to attend the funeral of any
of his family members or the marriage of his children or siblings.
12. Section 6(3) of the 2022 Act provides that a "hardcore convicted
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prisoner" who has been awarded the death penalty or life imprisonment till his natural
life is not entitled to grant of parole. However, "hardcore convicted prisoners" who
have not been awarded the death penalty or life imprisonment till the remainder of
their natural life and have completed five years of their sentence, which includes two
years trial period and who have not committed any major jail offence or any
cognizable offence during the last five years, are eligible for the grant of emergency
parole or regular parole at par with other convicted prisoners. The only exception
carved out under the first proviso to Section 6(3) is that a "hardcore convicted
prisoner" who has been sentenced to undergo life imprisonment till the remainder of
his natural life would become eligible for the grant of emergency parole or regular
parole at par with other convicted prisoners after he has completed seven years of
imprisonment after his conviction.
13. Thus, a harmonious reading of Sections 6(2) and 6(3) of the 2022 Act
leads us to the conclusion that a "hardcore convicted prisoner" who has been awarded
the death penalty is entitled to be granted parole but in custody only to enable him to
attend the funeral of his family members or the marriage of his children or siblings. In
no other circumstance can such a prisoner be granted parole.
14. The appellant is a "hardcore convicted prisoner" who has been awarded
the death penalty. He does not seek parole to attend either the funeral of any of his
family members or the marriage of his children/ siblings. Therefore, in view of the
afore discussion, he is not entitled to the grant of parole.
15. The appellant's plea that in the light of the interim stay granted by the
Supreme Court with regard to stay on execution of his death sentence he should be
considered as a "hardcore convicted prisoner" who has been awarded life
imprisonment till the end of his natural life and therefore, be held entitled to the grant
of parole under the first proviso to Section 6(3) of the 2022 Act is misconceived.
16. The interim order passed by the Supreme Court on 04.07.2019 reads as
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under:-
"Leave Granted.
The execution of death sentence is stayed."
17. As per afore quoted order of the Supreme Court, while granting leave in
the Special Leave to Appeal (Criminal) filed by the appellant against the dismissal of
his criminal appeal by this Court, the Supreme Court, while granting leave, has simply
stayed the execution of the appellant's death sentence. Only the execution of the
appellant's death sentence has been stayed. There is no stay on his conviction. The
appellant's death sentence has not even been suspended. Therefore, he continues to be
a "hardcore convicted prisoner" who has been awarded the death sentence. Thus, the
appellant's case would not fall under the first proviso to Section 6(3) of the 2022 Act
rendering him disentitled for the grant of parole.
18. In view of the above, we find no infirmity, legal or factual, in the
judgment of the learned Single Judge.
19. Dismissed.
[DEEPAK SIBAL]
JUDGE
05.03.2024 [DEEPAK MANCHANDA]
shamsher/gk JUDGE
Whether speaking/reasoned : Yes / No
Whether reportable : Yes / No
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