Remanded

Jahangir Son of Rafiq v. State of Haryana and Ors.

Punjab & Haryana HC16 Mar 2009CRM-M/1491/2009

Case brief

AI extract

What is this about?

Petitioner, a life convict, sought release claiming violation of fundamental rights due to lack of premature release consideration. The court, relying on Maru Ram and Mahender Singh, directed the State to consider the case under the policy applicable at the time of conviction. The matter was remitted within one month.

What did the court decide?

Respondents directed to consider the petitioner's case for premature release under the policy applicable at the time of conviction within one month.

Jahangir Son of Rafiq Vs State of… — Pension and Retirement Benefits | Punjab & Haryana HC (2009)

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Criminal Misc. No. M-1491 of 2009

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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Criminal Misc. No. M-1491 of 2009 Date of Decision:16.03.2009

Jahangir

.....Petitioner

Vs.

State of Haryana and others

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.....Respondents

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CORAM:- HON'BLE MR. JUSTICE HARBANS LAL

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Present:Mr. Surender Deswal, Advocate for the petitioner.

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Mr. Amit Kaushik, Assistant Advocate General, Haryana.

JUDGMENT

HARBANS LAL, J.

This petition has been moved by Jahangir under Section 482 of the Code of Criminal Procedure read with Article 226/227 of the Constitution of India for holding that he has been illegally deprived of the benefit of pre-mature release and his further detention is violative of Articles 14, 19 and 21 of the Constitution of India and he is entitled to be released forthwith on usual terms and conditions.

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The brief facts giving rise to this petition are that the petitioner was involved in FIR No.200 dated 18.9.1995 registered under Sections 302/323/324/325/326/149 IPC at Police Station Indri, District Karnal. He was convicted and sentenced on 29.10.1997 by the Court of learned Additional Sessions Judge, Karnal. The petitioner as per the details of period given in this petition has undergone more than 10 years of the actual sentence and more than 14 years of the sentence including remissions. While undergoing the sentence, he maintained good conduct. He was not

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Criminal Misc. No. M-1491 of 2009

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involved in any other crime. He earned remissions on account of good conduct and enjoyed the benefit of parole and furlough. He is a wellbehaved convict in the jail. As per Section 433-A of the Code of Criminal Procedure added on 18.12.1978, the life convicts who were found guilty for having committed an offence for which death is one of the punishment provided by law are required to undergo at least 14 years of imprisonment. As per this Section, the appropriate government is fully competent to commute the sentence of imprisonment for life into imprisonment for a term not exceeding 14 years. In Maru Ram v. Union of India and others, (1981) 1 Supreme Court Cases 107 , the provisions of the said Section have been upheld by the Apex Court. On 29.10.1997, when the petitioner was convicted, the government policy dated 4.2.1993 was in force. As per this policy, the petitioner was required to undergo 10 years' actual sentence and 14 years sentence including remissions. The State of Haryana has failed to consider the petitioner's case for grant of pre-mature release and deferred the pre-mature release case of the petitioner till he completes 14 years of actual sentence and 20 years' sentence including remissions but without following the observations rendered by the Apex Court in re: State of Haryana v. Mahender Singh and others, 2007(4) Recent Criminal Reports (Criminal) 909.

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In the joint written statement, filed on behalf of the respondents, inter-alia it has been pleaded that in case Maru Ram (supra) and in another case bearing caption Mohd. Munna v. Union of India and others, (2005) 7 Supreme Court Cases 417 , it has been held that the sentence of imprisonment for life was nothing else than an imprisonment which lasted till the last breath. The sentence of imprisonment for life is a

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Criminal Misc. No. M-1491 of 2009 -3-

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imprisonment for whole of the remaining period of the convicted persons' natural life, unless the same is commuted or remitted by appropriate authority under the relevant provisions of the Code of Criminal Procedure. The remission and commutation of sentence is not a fundamental right of a convict. The Government has framed the pre-mature release policy dated 13.8.2008 in which it has been categorically mentioned that the policy shall be applicable to all pre-mature release cases of life convicts with effect from the date of notification irrespective of their date of conviction. The date for consideration of pre-mature release of a convict would be the date of completion of his requisite sentence mentioned in the policy. The petitioner has undergone only 11 years, 6 months and 14 days of the actual sentence and a total sentence of 16 years, 5 months and 16 days including remissions. He does not qualify the conditions of pre-mature release as per Para 2(b) of Haryana Government Pre-mature Release policy dated 13.8.2008. Lastly, it has been prayed that this petition may be dismissed.

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I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the parties have reiterated the averments as enshrined in their respective pleadings. In Mahender Singh's case (supra), Maru Ram as well as Mohd. Munna's cases were also considered. Their Lordships in re: Mahender Singh (supra) were pleased to hold that Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have right to be considered therefor. Whenever, thus a policy decision is made, persons must be treated equally in terms thereof. <u>A fortiori' the policy decision applicable in such cases would be which was prevailing at the time

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of his conviction. Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Re-organisation Act, no executive instruction would prevail over the statutory Rules. The Rules having defined convicts' in terms whereof a life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term `life convict'.” It has also been observed that in Mohd. Munna's case, Maru Ram's case (supra) was not considered. Further in re: State of Haryana v. Bhup Singh and others, 2009(1) Recent Criminal Reports (Criminal) 654, the Apex Court observed as under:-

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“We, therefore, are of the opinion that keeping in view the decision of this Court in Mahender Singh (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in Mahender Singh's case (supra) having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002.”

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Adverting to the facts of the instant case, there is no gainsaying the fact that the petitioner was convicted and sentenced on 29.10.1997 in case FIR referred hereinbefore.

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In view of the preceding discussion, the respondents are directed to consider the case of the petitioner in terms of Mahender Singh and others' case (supra) as well as Bhup Singh and others' case (supra) ,

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Criminal Misc. No. M-1491 of 2009

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having regard to the policy decision as was applicable on the date on which he was convicted within one month from the date of receipt of the certified copy of this judgment. If the petitioner's case is covered by the policy decision applicable in his case, he may be released as per rules.

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Disposed of accordingly.

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March 16, 2009 renu

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( HARBANS LAL ) JUDGE

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Whether to be referred to the Reporter? Yes/No

Jahangir Son of Rafiq v. State of Haryana and Ors.

Case brief

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Jahangir Son of Rafiq v. State of Haryana and Ors.

Case brief

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What did the court decide?

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