Punjab-Haryana High Court

Jitender Alias Jitey vs State Of Haryana And Others on 13 November, 2024

                                Neutral Citation No:=2024:PHHC:146689

CRWP-8232
     8232-2024 (O&M)                                                    -1-




      IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
                  HARYANA AT CHANDIGARH
281
                                                   CRWP-8232-2024 (O&M)
                                                  Date of decision : 13.11.2024

Jitender @ Jitey                                                  ...Petitioner

                                         Versus

State of Haryana and others                                   ...Respondents

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:-    Mr. Varinder Singh Rana, Advocate
             for the petitioner.

             Mr. Neeraj Poswal, AAG, Haryana.

MANISHA BATRA, J. (Oral)

1. The present petition has been filed by the petitioner under

Article 226 of the Constitution of India making prayer for setting aside the

order dated 06.08.2024 (Annexure P-2), P 2), passed by the respondent No. 1-

Additional Chief Secretary, Govt. of Haryana, Jail Department, whereby the

case of the petitioner for premature release, as per the policy dated

08.08.2000 (Annexure ( P-1)

1) as issued by the Govt. of Haryana, had been

rejected with an observation that the same will be reconsidered after one year

after evaluating his conduct. He has also made prayer for issuance of

directions to the respondents to release him on iinterim nterim bail till the final

decision is taken by the competent authority with regard to premature release

of the petitioner.

2. As submitted in the petition, the petitioner had been held guilty

and convicted for commission of offecnces punishable under Sec Sections tions

302, 148, 149 of IPC, vide judgment of conviction 2009 and order on

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quantum of sentence dated 20.02.2022, passed by the Court of learned

Additional Sessions Judge, Faridabad in case arising out of FIR No. 661

dated 10.09.1999, registered under Sections 302, 148 and 149 of IPC at

Police Station Central Faridabad, District Faridabad and had been sentenced

to undergo rigorous imprisonment for life. Admittedly, he had filed an appeal

against his conviction, which had been dismissed by a Divis Division ion Bench of this

Court, vide judgment dated 23.04.2013 passed in CRA-D-186-DB-2002.

3. Learned counsel for the petitioner has vehemently argued that

the petitioner had been convicted on 20.02.2002 and at that time, policy

dated 08.08.2000 was applicable with regard to premature release of the

convicts. It is further submitted that as per Clause (b) of the said policy, the

petitioner was required to undergo actual sentence of 10 years and total

sentence of 14 years including remissions for his premature rrelease.

elease.

However, despite having undergone actual sentence of 11 years, 10 months

and 04 days and total sentence of 15 years, 08 months and 16 days, as is

evident from the impugned order itself, the case of the petitioner for his

premature release has been rejected and deferred for a period of one year for

its reconsideration. Respondent No. 1, while passing the impugned order, has

relied upon the recommendation of the State Level Committee which is in

fact based on the report received from the Additional Di District strict & Sessions

Judge, Faridabad as per Section 432(2) of Cr.P.C., wherein it was observed

that keeping in view the facts, evidence and circumstances of the case, the

petitioner does not deserve premature release. However, respondent No. 1

has ignored the the fact that the case of the petitioner was fully covered under the

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policy issued by the Govt. of Haryana on 08.08.2000 and, therefore, he

deserves to be extended benefit of premature release, especially in view of

the fact that his case for premature relea release se had been recommended by

respondent Nos. 2 and 3. Respondent No. 1 also ignored the fact that the

report of Additional Sessions Judge alone could not be a ground for rejecting

the prayer as made by the petitioner. It is further argued that while passing

the impugned order, respondent No. 1 was swayed by the report given by the

Additional Sessions Judge, Faridabad alone and did not consider the

requirements necessary for arriving at this conclusion.

4. It is further argued by learned counsel for the pet petitioner itioner that

even the Presiding Judge/Additional Sessions Judge, while giving his report,

did not take into account the factors laid down by Hon'ble Supreme Court in

Laxman Naskar vs. Union of India : (2000) 2 SCC 595

595.. The further

argument as raised by him is that the reason for rejection of the prayer of the

petitioner on the basis of report submitted by the Presiding Judge was

perfunctorily relied upon, though the same demonstrated a casual opinion. It

is also submitted that over emphasis was given to the opinion of the

Presiding Judge and the recommendation made by respondent Nos. 2 and 3

giving no objection for premature release of the petitioner had been ignored,

thereby making the impugned order unsustainable in the eyes of law. To

fortify his arguments, arguments, learned counsel for the petitioner has relied upon the

latest judgments of Hon'ble Supreme Court cited as Rajo alias Rajwa alias

Rajendra Mandal vs. State of Bihar and others : 2023 SCC Online 1068

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and Satish @ Sabbe vs. the State of Uttar Pradesh : 202 20233 SCC (Criminal)

626.

5. Reply has been filed by the respondent respondent-State.

State. In terms of the

same, learned State counsel has submitted that the petitioner has been

convicted for commission of a heinous crime, hence, his application for

premature release has rightly rightly been dismissed. Report from the Presiding

Judge, as per Section 432(2) of Cr.P.C., was sought, wherein it was reported

that the petitioner did not deserve the benefit of premature release. Hence,

the State Level Committee has recommended for rejection of the case of the

petitioner for premature release and it was only thereafter that the same was

rejected with an observation that the case of the petitioner for premature

release shall be considered after a period of one year. While submi submitting tting that

there is no infirmity or illegality in the impugned order and the petitioner

cannot claim such relief as a matter of right right,, it is urged that the petition is

liable to be dismissed.

6. I have heard learned counsel for the parties at considerable considerabl

length and have also gone through the material placed on record carefully.

7. At the outset, it may be mentioned that Section 432(2) Cr.P.C.

empowers the appropriate government to seek opinion of the Presiding Judge

of the Court before or by which, the applicant had been convicted on whether

the application should be allowed or rejected. In Rajo's 's case (supra), Hon'ble

Supreme Court observed that sentencing was a judicial exercise of power.

The act thereafter of executing the sentence awarded, however, was a purely

executive function - which included the grant of remission, commutation,

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pardon, reprieves, or suspension of sentence. This executive power, which is

inherently discretionary discretionary in nature, has to be exercised fairly, reasonably, and

not arbitrarily. It was also observed that the absence to do so, when

compelled the Court to exercise its judicial review and in appropriate cases,

remit the matter for reconsideration. Hon'ble Su Supreme preme Court had also made

reference to the judgment cited as State of Haryana v. Jagdish : (2010) 4

SCC 216, 216, wherein the framework of the executive power in this regard and

the same was to be exercised was lucidly explained. The relevant paragraph

of the judgment udgment in Jagdish's 's case (supra) may be reproduced as under :

"27. Nevertheless we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitut Constitution ion 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 utilized by thee 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 wh which ich 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 liberalized policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or

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under Section 433-A A CrPC may have a different flavour in the statutory provisions, as short short-sentencing sentencing policy brings about a mere reduction in the period of imprisonment ment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself."

8. In Rajo's 's case (supra), Hon'ble Supreme Court had also

discussed the outlined parameters to be considered when considering the

grant of remission by referring re to Jagdish Jagdish's casee (supra), whereby in

paragraph No. 38, it was observed as under:

"38. At the time of considering the case of premature release of a life convict, the authorities may require to consider his case mainly taking into consideration whe whether ther 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 fr fruitful uitful purpose of confining the convict anymore; the socio socio-economic economic condition of the convict's family and other similar circumstances."

9. Reference had also been made by Hon'ble Supreme Court in

Rajo's 's case (supra) to Laxman Naskar Naskar's case (supra) indicating ing the

following factors to be taken into account by the Presiding Judge:

(i) whether the offence affects the society at large;

(ii) the probability of the crime being repeated;

(iii) the potential of the convict to commit crimes in future;

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(iv) if any fruitful purpose is being served by keeping the convict in prison; and

(v) the socio-economic economic condition of the convict's family.

10. Now it may be mentioned that the Govt. of Haryana has framed

policy dated 08.08.2000 (Annexure P-1) P granting remissions of sentences of

life imprisonment keeping in view the provisions of Sections 432, 433 and

433(A) of Cr.P.C. as well as Article 161 of Constitution of India. As per this

policy, the minimum period of imprisonment to be undergone by a convict, convict

who has been imprisonment for life but whose case is not covered under

Clause (a) and who has committed crime which is not considered heinous as

mentioned in Clause (a) of the policy, is 10 years of actual sentence and 14

years of total sentence.

11. It is important to mention here that in this very policy dated

08.08.2000, the details of offences which fall into the category of heinous 08.08.2000,

crime have also been given and as per the same, the case of the petitioner

does not fall within the definition of heinous crime. His case admittedly

stands covered under Clause (b) of the policy dated 08.08.2000,, as per

which, the case of a convict for premature release is to be considered after 10

years of actual imprisonment and 14 years of imprisonment with remissions.

Since as per impugned order itself, as on 30.06.2024 30.06.2024, the period of actual

sentence undergone by the petitioner was 11 years, 10 months and 04 days

and total sentence including remissions was 15 years, 08 months and 16

days,, therefore, as per Clause (b) of the said policy, icy, he has completed the

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requisite period, required for considering the case of a convict for premature

release.

12. Undoubtedly, the well settled proposition of law is that once a

policy is formulated by the State defining the terms for premature release, releas

then due consideration in terms of the policy must be given to all eligible

convicts as the Constitution guarantees against the arbitrary treatment and the

right to secure life and personal liberty must not be foreclosed by an unfair

process of considering considering the applications for premature release in terms of

policy. Reliance in this regard can be had to the observations made by the

Apex Court in Rashidul Jafar @ Chota vs. State of Uttar Pradesh : 2022 (4)

RCR (Criminal) 702, 702, wherein similar observations we were re made and it was

also held that implementation of the policy for premature release has to be

carried out in an objective and transparent manner as otherwise it would

impinge on the constitutional guarantees under Articles 14 and 21 of the

Constitution. Undisputedly, Undisputedly, no convict has fundamental right of seeking

remission or shortening of sentence as a matter of right and it is always the

discretion of the Government to grant remission by considering the peculiar

facts of each case but it is equally well set settled tled that the discretion so vested is

to be exercised in an unbiased and fair manner and once a convict has been

placed under a particular category, he cannot be discriminated against the

others. Similar proposition of law was laid down by Hon'ble Supreme Court

in Raj Kumar vs. State of Uttar Pradesh : 2023 Live Law SC 144.

13. In this case, respondent No. 1 had rejected the claim of the

petitioner for his premature release by passing impugned order. On a glance

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of the impugned order, it is revealed that while passing the same, respondent

No. 1 had taken into consideration the opinion given by the State Level

Committee which was based on the opinion given by the Presiding

Judge/Additional Sessions Judge, Faridabad dabad to the effect that keeping in

view the facts, evidence and circumstances of the case, the petitioner does

not deserve premature release as well as on the recommendations made by

the State Level Committee, Committee, wherein it was observed that the petitioner along long

with other co-accused co accused had planned murder of the victim by giving multiple

injuries with knife blows, blows, therefore, he does not deserve to be granted the

benefit of premature release. However, it is not the stand of the respondents

that the premature release rele of the petitioner was not to set a right example

before the society, resulting into not approving the clemency under Section

432(2) Cr.P.C. A perusal of the impugned order also shows that the case of

the petitioner for premature release was rejected wi with th an observation that the

same would be reconsidered after one year on the basis of evaluation of his

conduct. However, the impugned order nowhere reveals that the case of the

petitioner was declined due to his misconduct. The respondents have failed to

assign ssign any reason for deferring the case of the petitioner for one year. In

Rajo'ss case (supra), Hon'ble Supreme Court, while dealing with a case of

similar nature, had observed that the report of the Presiding Judge cannot be

relied on as carrying predominance, predominance, if it focusses on the crime, with little or

no attention to the criminal. The appropriate government, should take a

holistic view of all the opinions received (in terms of the relevant rules),

including the judicial view of the Presiding residing Judge of thee concerned court,

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keeping in mind the purpose and objective, of remission but over emphasis

on the Presiding Judge's opinion and complete disregard of comments of

other authorities, while arriving at its conclusion, would render the

appropriate government's government's decision on a remission application, unsustainable.

14. In Rajo's 's case (supra), it was further observed that the views of

the Presiding Judge were based on the record, which existed, containing the

facts resulting in conviction, including the nature of the crime, its

seriousness, the role of the accused and the material available at that stage

regarding their antecedents. However, post post-conviction conviction conduct, particularly,

resulting in the prisoner's earned remissions, their age and health, work done,

length h of actual incarceration, etc., rarely fall within the domain of such

Presiding Judge. Hon'ble Supreme Court also observed that another factor to

bear in mind was that the Presiding Judge would not be the same Presiding

Judge, who had the occasion to observe observe the convict and then form opinion

and such Presiding Judge will only look into the record leading to conviction.

By further observing that the judicial involvement in executive decision

making is limited to the input it provides regarding the nature of the crime,

its seriousness etc.; that the aim and ultimate goal of imprisonment, even in

the most serious crime, is reformative, after the offender undergoes a long

spell of punishment through imprisonment and that the State authority was

under an obligation obligation to exercise its discretion in relation to an honest

expectation perceived by the convict, at the time of his conviction that his

case for premature release would be considered after serving the sentence,

prescribed in the short-sentencing short sentencing policy existi existing ng on that date. While relying

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upon Jagdish's Jagdish's case (supra), it was further observed that the State has to

exercise its power of remission keeping in view any such benefit to be

construed liberally in favour of a convict which may depend upon case to

case. In case, a liberal policy prevails on the date of consideration of the case

of the convict for premature release, he should be given benefit thereof. In

Rajo's 's case (supra), Hon'ble Supreme Court, in view of the above

discussion, directed the Remission Board Board to reconsider the application of the

petitioner afresh considering the report of the police and other authorities, the

post-prison prison record of the petitioner, the remissions earned for his good

conduct, his age, health condition, family circumstances, and his potential for

social engagement, in a positive manner.

15. On applying the ratio of law as laid down by Hon'ble Supreme

Court in above cited judgments to the peculiar facts and circumstances of the

present case, it is observed that while passing the impugned order,

respondent No. 1 had mainly taken into consideration the report of the

Presiding Judge declining the claim of the petitioner for his premature

release.. The Presiding Judge is also not shown to have taken all the factors

which were required to be taken into consideration as per instructions issued

to the Presiding Judges/Sessions Judges, vide letter dated 21.03.2023 bearing

No. 622/Spl.Gaz.II.17. The said factors are reproduced as under:

1. The conduct of the convict in prison.

2. Whether the offence is an individual act of crime without affecting society at large.

3. The gravity of the offence, the cruelty displayed by the accused while perpetrating crime and the circumstances

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in which he committed the offence resulting into his conviction.

4. The genuineness of the reason(s) given by the convict to have temporary suspension/remission of sentence.

5. Whether there is any chance of future recurrence of commission of crime by the convict.

6. Whether the convict has lost hi hiss potentiality in committing crime.

7. Whether there is any fruitful purpose of confining the convict anymore.

8. Socio-economic economic condition of the convict's family.

9. The injury that could be caused to the convict in the event of denial of suspension/remission of ssentence.

10. Any danger to the life of convict himself in the event of denial of suspension/remission of sentence.

11. Whether the convict poses a threat to the victim, victim's family or any other person related to the victim.

12. The pendency of an appeal, if any, aagainst gainst such conviction.

13. Other aspects which in the opinion of the Presiding Officer are relevant.

15. As such, in view of the discussion as made above and while

taking into consideration the fact that the petitioner has undergone the period

of more than actual actual sentence as well as total sentence including remission

period as minimum required under the policy dated 08.08.2000,, the

impugned order dated 06.08.2024 does not sustain and accordingly, the same

is set aside. The respondents-authorities respondents authorities are directed to consider the case of

the petitioner in view of the observations made in this order and in the light

of the policy dated 08.08.2000,, within a period of two months from today. In

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case, the respondents-authorities respondents authorities fail to take any decision with regard to

premature release of the petitioner within the time stipulated by this Court,

the petitioner will be released on interim parole till the time his case for

premature release is decided by the respondents respondents-authorities, authorities, subject to

completing requisite formalities.

formalit

16. The petition stands allowed accordingly.





13.11.2024                                                 (MANISHA BATRA)
Waseem Ansari                                                  JUDGE


          Whether speaking/reasoned                        Yes/No

          Whether reportable                               Yes/Np




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