Punjab-Haryana High Court
Rajesh Kumar vs State Of Haryana And Others on 16 October, 2024
Author: Rajesh Bhardwaj
Bench: Rajesh Bhardwaj
CRWP-8688-2023 -1-
292
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRWP-8688-2023
Reserved on : October 01, 2024
Pronounced on: October 16, 2024
Rajesh Kumar
......Petitioner
Versus
State of Haryana and others
......Respondents
CORAM: HON'BLE MR.JUSTICE RAJESH BHARDWAJ
Present: Mr.Hoshiar Singh Jaswal, Advocate
for the petitioner.
Mr.Tanuj Sharma, AAG, Haryana.
........
RAJESH BHARDWAJ, J.(ORAL)
1. Present petition has been filed praying for quashing/setting
aside the impugned order, dated 07.08.2023, Annexure P-4, passed by
respondent No.1, whereby premature release case of the petitioner has been
illegally ordered to be re-considered after completion of 14 years of actual
sentence and 20 years of total sentence, whereas case of the petitioner is
covered under Para 2(b) of the Policy/Instructions, dated 12.04.2002
(Annexure P-2), i.e. to undergo 10 years actual sentence and 14 years total
sentence which has already been undergone by the petitioner.
2. It is contended by learned counsel for the petitioner that
petitioner alongwith two others had faced the prosecution in FIR No.135,
dated 13.11.2001 for commission of offence under Section 302 read with
Section 34 IPC, registered at Police Station Bilaspur, District Yamuna
Nagar. On conclusion of the trial, the petitioner and the co-accused were
convicted and sentenced to undergo life imprisonment under Section 302
read with Section 34 IPC whereas one of the accused was acquitted vide
judgment and order, dated 09.05.2003 and 12.05.2003. He submits that the
petitioner assailed the same by way of filing CRA-D-487-DB-2003, which
was dismissed qua the petitioner whereas the appeal filed by co-convict was
allowed vide order dated 23.08.2016. He submits that as on date there is no
appeal or revision pending before this Court. He submits that case of the
petitioner for premature release is covered by the Policy/Instructions, dated
12.04.2002, which was prevalent at the time of his conviction as held by
Hon'ble Supreme Court of India in State of Haryana vs Jagdish and
others 2010(2) RCR (Criminal) 464. He submits that as per
Policy/Instructions, dated 12.04.2002, case of the petitioner is covered under
Clause 2(b), which enumerates that cases may be considered after
completion of ten years of actual sentence including the under-trial period
provided that such sentence including remissions is not less that 14 years. It
is submitted that as per custody certificate, dated 17.08.2023, the petitioner
has undergone 10 years 04 months and 03 days of actual sentence and 14
years 10 months and 15 days of total sentence of imprisonment. He submits
that petitioner is not involved in any other criminal case and he has never
misused the concession of parole or furlough granted to him, as per custody
certificate. It is submitted that for consideration of the premature release of
the petitioner, the State Level Committee was constituted and case of the
petitioner was considered on 30.06.2023 under Para 2(b) of the
Policy/Instructions, dated 12.04.2002. However, vide impugned order,
dated 07.08.2023, the same has been ordered to be re-considered after
completion of 14 years of actual sentence and 20 years of total sentence
without assigning any reason. He submits that the petitioner has availed
parole of more than two years and he never misused the said concession of
parole in any manner. He submits that admittedly case of the petitioner was
considered by the State Level Committee under Para 2(b) of the Premature
Release Policy, dated 12.04.2002 but no reason has been assigned in not
considering the case of the petitioner as per provisions of this clause. He
submits that in an ordinary manner, the respondent/authorities have ordered
to reconsider the case of the petitioner after completion of 14 years of actual
sentence and 20 years of total sentence, which is totally in violation of
provisions of the policy and the law settled. He relies upon the judicial
precedent of Hon'ble Apex Court in Sharafat Ali vs State of Uttar
Pradesh and another, passed in Writ Petition (Criminal)-439-2021 on
10.02.2022 and the judgments passed by this Court in Shiv Kumar vs State
of Haryana and others 2023:PHHC: 163124 and Manoj @ Manju vs
State of Haryana and others 2024: PHHC: 026373 and thus submits that
the impugned order deserves to be set aside by directing the
respondent/authorities to consider the case of the petitioner for premature
release as per the provisions of Para 2(b) of the Policy/Instructions, dated
12.04.2002.
3. Per contra, learned State counsel has opposed the submissions
made by learned counsel for the petitioner. He submits that as per Section
433-A Cr.P.C., a life convict has to undergo actual sentence of 14 years if he
is convicted in a case in which death penalty is one of the sentence. He
submits that as per the settled principles of law in Maru Ram vs Union of
India AIR 1980 SC 2147, no accused has a right to claim remissions as a
matter of right, however, the only right of the convict is for consideration of
his case for premature release. He submits that case of the petitioner was put
up before the State Level Committee, who considered his case under para
2(b) of the Premature Release Policy, dated 12.04.2002, which is applicable
in his case and hence the Committee rightly ordered to re-consider his case
after completion of 14 years of actual sentence and 20 years of total
sentence, as per Mandate of Section 433-A Cr.P.C. He submits that
inadvertently Section 433-A Cr.P.C. has not been mentioned in the
impugned order, dated 07.08.2023 and, thus submits that there being no
merit in the petition, the same deserves to be dismissed.
4. Heard.
5. After hearing learned counsel for the parties and perusing the
record, it is evident that the petitioner was convicted and sentenced by the
trial Court vide judgment and order, dated 09.05.2003 and 12.05.2003.
Appeal filed by him was dismissed by this Court vide order dated
23.08.2016. The petitioner filed a petition for consideration of his case for
premature release. The respondent/State found that date of conviction of the
petitioner is 12.05.2003 and thus, premature release Policy, dated
12.04.2002 would be applicable to his case. The State Level Committee
considered the case of the petitioner under para 2(b) of this Policy, dated
12.04.2002. For analysis of arguments and counter-arguments raised before
this Court, a perusal of para 2(b) of the Premature Release Policy, dated
12.04.2002, is relevant, which reads thus:-
" Adult life convicts who have been Their cases may be considered after
imprisoned for life but whose case completion of 10 years actual
are not covered under (aa) and (a) sentence including undertrial period
above and who have committed provided that the total period of such
crime which are not considered sentence including remissions is not
heinous as mentioned in Clause (aa) less than 14 years."
and (a) above.
6. Perusal of para 11 of the reply shows the details of the sentence
undergone by the petitioner, which reads as under:
" Sr.No. Particulars Period Years Months Days
1. Undertrial period From 22.11.2001 to 11.05.2003 01 05 20
2. Conviction period From 12.05.2003 to 04.08.2007 11 01 04
and
From 02.11.2016 to 12.09.2023
Total 12 06 24
3. Parole Availed (-) 109 weeks and 04 days
4. Bail period (-) From 07.08.2023 to 23.08.2023 00 00 15
5. Actual Sentence= 10 04 22
6. Earned Remission(+) 04 08 21
7. Total sentence 15 01 13"
7. From the reading of the provisions of para 2(b) of the Policy,
dated 12.04.2002, it is apparent that the convicts, who have been
imprisoned for life but whose cases are not covered under Clause 2(aa) and
(a), then the requisite condition for consideration of their premature release
case is the completion of ten years of actual sentence including undertrial
period provided that the total period of such sentence including remissions is
not less than 14 years.
8. Admittedly, the actual sentence suffered by the petitioner as on
12.09.2023 is 10 years 04 months and 22 days whereas the total sentence
including remissions is 15 years 01 month and 13 days. There is nothing on
record to show that the petitioner has misused the concession of parole or
furlough. Hence, case of the petitioner is not covered under Para 2(aa) and
(a) of the Policy, dated 12.04.2002. However, the respondent/State
considered this case specifically under para 2(b) of Premature Release
Policy, dated 12.04.2002 and has ordered for its reconsideration after
completion of 14 years actual sentence and 20 years of total sentence. There
is no denial to the fact that no convict has a right of claiming premature
release as a matter of right. However, a convict has definitely a right for
consideration of his case for premature release as per the policy of the State
framed under the relevant provisions of the Statute, Sections 432 and 433-A
Cr.P.C. and Articles 72 and 161 of the Constitution. There is no dispute
regarding the law settled by the Hon'ble Supreme Court, as relied upon by
the learned State counsel for consideration of the premature release case of
the convicts. However, consideration of premature release case of the
convicts has to be free from any arbitrariness. A perusal of the impugned
order would reflect that case of the petitioner has been considered by the
respondent/State under para 2(b) of the relevant Policy, dated 12.04.2002.
The petitioner, admittedly, qualifies for his consideration under this Policy.
However, the State has assigned no reason in ordering reconsideration of his
case after completion of 14 years of actual sentence and 20 years of total
sentence especially when his case is not covered under para 2(aa) and (a) of
the Policy. Though learned State counsel has argued to justify the impugned
order passed on the strength of Section 433-A Cr.P.C., however, it cannot be
denied that the respondent/State has framed the policy under these relevant
provisions only. The custody period of the petitioner would reflect that the
petitioner has availed the parole of more than two years and has earned
remissions of more than four and half years as well. There is nothing on
record to show that he has ever misused the concession of parole granted to
him. Thus, in the overall consideration, this Court finds the impugned order
passed to be a non-speaking order which assigned no reason or refer to any
material for reaching the conclusion while considering the case of the
petitioner as per mandate of para 2(b) of the premature release Policy, dated
12.04.2002.
9. Resultantly, present petition is allowed. Impugned order, dated
07.08.2023 is set aside. The respondent/State is directed to reconsider case
of the petitioner as per the mandate of the Policy, dated 12.04.2002, on the
anvil of the law settled and pass a fresh speaking order within three months
from the date of this order.
October 16, 2024 ( RAJESH BHARDWAJ )
meenuss JUDGE
1. Whether speaking/reasoned ? Yes/No
2. Whether reportable ? Yes/No
