LAWS(P&H)-2001-8-16

SANJEEV KUMAR Vs. STATE OF HARYANA

Decided On August 21, 2001
SANJEEV KUMAR Appellant
V/S
STATE OF HARYANA Respondents

JUDGEMENT

(1.) Through this Crl. Misc. No. 37935 M of 1999, filed under S. 482, Cr. P.C. read with Article 226 of the Constitution of India, Sanjeev Kumar son of Surinder Kumar resident of Bhiwani Road, Rohtak has prayed for a direction to the respondents to consider the grant of premature release to him in accordance with para 516 of the Punjab Jail Manual and as per para 2(b) of the Government Instructions Annexure P-2.

(2.) In this criminal miscellaneous petition, it is stated that he is a juvenile life convict under S. 302/498-A, IPC undergoing life imprisonment in District Jail, Rohtak. He was convicted under S. 302/498-A, IPC and was sentenced to imprisonment for life and to pay fine of Rs. 500.00 under S. 302 read with S. 34, IPC and he was sentenced to undergo RI for 2 years and to pay a fine of Rs. 200.00 under S. 498-A, IPC by Additional Sessions Judge, Rohtak vide order dated 17-2-89. In appeal, he was acquitted of the charge framed against him under S. 498-A, IPC read with S. 34, IPC but his conviction and sentence was maintained by Division Bench of this Court in Crl. Appeal No. 210-DB of 1989 under S. 302/34, Indian Penal Code. His case for premature release was considered and rejected by the Govt., on the ground, that he has not yet completed 14 years actual sentence. State level committee erroneously considered the case of the petitioner under para 2(a) of the Govt. instructions dated 4-2-93 as amended on 17-7-97/16-3-99 and rejected the premature release case of the petitioner with the observation that it was the murder of a "woman" and the cause for murder was that she had not brought adequate dowry. It is stated that these observations of the state level committee are contrary to the findings of Division Bench of this Court recorded in Crl. Appeal No. 210-DB of 1989 whereby he was acquitted of the charge under S. 498-A/34, IPC. State Govt. issued instructions dated 28-9-1988 (Annexure P-2) enumerating the policy regarding premature release of life convicts. He has undergone 9 years and 5 months of actual sentence and total sentence of more than 13 years, Instructions have categorised convicts into two categories namely convicts who have been imprisonment for life for having committed a heinous crime, are to be treated separately as per para 2(a) of the Instructions. State Govt. further amended instructions vide memo No. 36/135/91-1 JJ(II) dated 4-2-1993 regarding premature release of life convicts. Further amendment was also made in the year 1999. Annexure P-3 is the true copy of the instructions dated 4-2-1993. It is stated that amendment of para 2(a) of the instructions Annexure P-2 subsequently by way of instructions Annexure P-3 and subsequent instructions is violative of Arts. 14 and 15 of the Constitution of India as the description of "heinous crime" in para 2(a) of the Annexure P-3 is not based on any intelligible differentia. The State Govt. has further amended the instructions Annexures P-3 in 1997 and 1999, the true copies of the instructions of 1997 and 1999 are Annexures P-4 and P-5 respectively. Instructions P-3 to P-5 are ultra-vires of the Constitution of India as unreasonable discrimination has been introduced for consideration of the premature release case of life convicts. Para 2(a) of Annexures P-3 to P-5 includes that the convicts who have committed murder of a woman are said to have committed a "heinous crime" whereas murder of a man is not considered a heinous crime and the premature release of such a convict is to be considered as per para 2(b). The only discrimination is of sex otherwise all other heinous crimes of serious nature which are coupled with commission of offences committed in a series viz. murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing sentence, murder with dacoity etc. It is stated that on account of the unreasonable and unconstitutional provision incorporated in instructions, Annexure P-3 and subsequently issued instructions the petitioner is being subjected to injustice as the respondents have rejected the premature release case of petitioner on the ground that the case of the petitioner falls under para 2(a) of instructions embodying provisions for convicts who have committed heinous crime. His case is being taken as "heinous crime" only because of the reason that he committed the murder of a woman. It is stated that a convict is entitled to the benefit of the special remissions granted by the Govt. from time to time without the convicts being discriminated against on the ground that they committed certain specific types of offences. No discrimination can be made against a convict that he committed the murder of a woman. Instructions Annexures P-3, P-4 and P-5 have placed convicts who have committed murder of a woman in one category and those who have committed murder of a man in the other category which is discriminatory and violative of Arts. 14 and 15 of the Constitution of India. Murder of a woman held as heinous crime and the case to be considered under 2(a) of the Instructions P-3 is unconstitutional and further classification to put "juvenile convict" at par with the adult convict be also declared unconstitutional since it frustrates the aims and objects of the Juvenile Justice Act. It has been prayed that he being juvenile convict is entitled to be considered under para 2(b) of the policy for premature release. His case for premature release became due for consideration after the completion of actual sentence of 8 years including under-trial period and after total sentence of 10 years including remissions. He has completed actual sentence of 9 years and 5 months and total sentence of more than 13 years. He was convicted and sentenced vide judgment dated 17/21-2-89. His case for premature release became due for consideration well before the issuance of Govt. instructions dated 17-7-97 and subsequently on 16-3-99, Superintendent, District Jail, Rohtak did not forward his case before the State Level Committee for premature release at appropriate time and the benefit which was available to him vide instructions Annexure P-2 cannot be denied on the ground that at a later stage, fresh instructions came.

(3.) Respondent-State of Haryana contested this petition urging that the petitioner cannot claim premature release as a matter of right as "life imprisonment" means the whole of the remaining natural life unless remitted by the State in exercise of the powers conferred by Articles 72 and 161 of the Constitution of India. As he was convicted and sentenced to life imprisonment under S. 302, IPC on 21-2-89, his case falls within the purview of Section 433-A, Cr. P.C., according to which, he has to undergo minimum of 14 years of actual sentence which he has not undergone so far. Hon'ble Supreme Court vide judgment Annexure R-1 (Crl. Appeal No. 1008 of 1998, State of Haryana v. Sanjeev Kumar) (it may be mentioned here that Sanjeev Kumar is petitioner herein) directed the State Govt. to reconsider the applications of the respondent life convicts who fall under the purview of Section 433-A, Cr. P.C. in accordance with the current legal position which is that a life convict does not acquire a right to be released prematurely by earning remissions but if the Govt. has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guide-lines for exercising its power under Art. 161 of the Constitution. No convict can validly contend that his case for premature release should be considered in view of the Govt. policy/instructions in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. If according to the Govt. policy/instructions in force at the relevant time, the life convict has already undergone sentence for a period mentioned in the policy instructions than the right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Art. 161 of the Constitution. Premature release case of the petitioner shall be considered in accordance with the latest Govt. instructions dated 4-2-93 as amended on 17-7-97 and 16-3-99 regarding premature release of life convicts issued in exercise of the powers under Arts. 72 and 161 of the Constitution. His case falls within the purview of para 2(a) of the instructions dated 4-2-93 as amended on 17-7-97 and 16-3-99 regarding premature release of life convicts as he is undergoing life imprisonment for committing murder of a woman. He has to undergo a total of 20 years of sentence including under-trial period and the remissions earned which he has not undergone so far.