Bagla vs State of Haryana

P.K. Jain, J.

Bagla son of Amar Singh has filed this petition under section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India for quashing the impugned order dated March 14, 1995/ April 5, 1995 (Annexure P.3), passed by the respondents rejecting the case of the petitioner for his premature release.

The facts necessary for the disposal of this petition are that the petitioner was arrested on April 3, 1983 in F.I.R. No. 195 dated 27.3.1983, registered for the offences under sections 302/34, 307, Indian Penal Code and section 25 of the Arms Act, at Police Station, Ratia. He along with three coaccused including Jagir Singh was tried and convicted for the offence under sections 302/307/323/34, I.P.C. and sentenced to life imprisonment for the offence under sections 302/34, I.P.C. and other imprisonments for the offences under sections 307/34, I.P. C. and 323/34. IPC, which sentences have been made to run concurrently. He has already undergone the sentence detailed as under :

Years Months Days

i) Undertrial period 0 5 26

ii) Actual sentence undergone till 1.5.1995 10 10 25

Total actual sentence undergone till 1.5.1995 11 04 21

iii) Remissions earned: 5 02 00

Total sentence undergone: 16 06 21

It has been stated in the petition that as per instructions dated 4.2.1993 (Annexure P.2) issued by the State of Haryana under Article 161 of the Constitution of India, the petitioner is required to undergo sentence of imprisonment for 10 years'' actual and total 14 years including remissions under para 2(b) thereof, which he has already undergone long time back. Respondent Nos. 2 and 3 recommended the premature release of the petitioner. However, the State Level Committee in its meeting held on 14.3.1995 refused to recommend the premature release of the petitioner solely on the basis of two alleged jail offences on the part of the petitioner and observed that the case would be reconsidered for premature release after completion of 14 year''s of sentence including undertrial period and after earning at least six years remission under para 2 (a) of the instructions (Annexure P.2). Accordingly, the recommendation of the Committee was accepted by the Government vide order dated April 5, 1995, copy of which is Annexure P.3.

It has been alleged that in respect of one alleged jail offence the petitioner has already been acquitted by a competent Court and for the second jail offence, he was merely warned which cannot be any reason to deny the benefit of premature release to him. It has been further stated that the case of his coaccused/coconvict Jagir Singh was similarly situated and an order dated 31.3.1995 (Annexure P.4) for his premature release was passed by the State Government. Thus, the action of the State Government in denying the benefit of premature release to the petitioner is illegal, arbitrary, discriminatory, ultra vires and violative of the statutory provisions including the instructions.

The respondents in their return have not disputed the factual position mentioned in the petition. It has been explained that the state (sic) ought to be considered after completion of 14 years actual sentence including under trial period after earning at least 6 years remissions under para 2(a) of the Government instructions dated 4.2.1993 and the State Government accepted the said recommendation. It has been admitted that the coaccused/convict Jagir Singh has been released prematurely but each case is to be considered on the facts and circumstances of that case. It has been further stated that no legal or constitutional right of the petitioner has been violated and as such the petition is liable to dismissed.

I have heard the learned counsel for the parties and have perused the record.

Paras 2(a) and 2(b) of the instructions dated 4.2.1993 (Annexure P.2) read as under:

"2(a) Convicts whose death sentence has been commuted to life imprison ment and convicts who have been imprisoned for life for having committed a heinous crime, such as, murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D. Act, 1987, murder with Untouchability (Offence) Act, 1955, murder in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant woman or murder after abduction or kidnapping, murder on professional/hired basis, murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from judgment of sentence, persistent bad conduct in the prison and those who cannot for some definite reasons be prematurely released without danger to public safety; or convicts who have been imprisoned for life under section 120B of IPC or life convicts who have been awarded life imprisonment a second time under NDPC Act or life convicts who have been imprisoned for life second time under any offence. Their cases may be considered after completion of 14 years actual sentence including undertrial period and after earning at least 6 years remission.

(b) Adult life convicts who have been imprisoned for life but whose cases are not covered under (a) above and who have committed crime which are not considered heinous as mentioned in clause (a) above. Their cases may be considered after completion of 10 years of actual sentence including under trial period, provided that the total period of such sentence including remission is not less than 14 years.".

A reading of the aforesaid paragraphs would indicate that the State Government has itself classified the offence of murder in different ways for the purposes of premature release. Once this classification has been made, the question of premature release of a convict will have to be considered strictly in accordance therewith. A case falling under para 2(b) of the instructions cannot be rejected by observing that the offence of murder was a heinous one. The obvious reason is that in every murder there is an element of brutality, and murder in itself is a heinous crime. Paragraph 2(a) deals with a situation where the murder is motivated by lust, greed or avarice, those are the cases of human instincts, or where it has been exceptionally brutal in its execution. A convict who has committed a crime which is not considered heinous as classified in para 2(a) of the instructions falls in a separate category and his case for premature release is to be considered after completing of 10 years of actual sentence including undertrial period provided that the total period of such sentence including remissions is not less than 10 years, as envisaged by para 2(b) thereof.

In the present case there was an engagement ceremony where the complainant party was taking the container consisting of meat inside the house for serving the same to the family members first, to which the petitioner and his coaccused had objected. Some time thereafter while the engagement ceremony was going on, a lalkara having been given, the petitioner and his coaccused Raj Singh and Jagir Singh gave gandasi and lathi blows to the PWs whereas their coaccused Karnail Singh fired 6/7 shots from his gun which hit certain persons including Bikar Singh who succumbed to the injuries on the spot. These allegations do not fall within the ambit of the various categories of the offence of murder as contained in para 2(a) of the instructions (Annexure P.2). Therefore, the necessary result is that the case of the petitioner then falls within the residue para 2(b) of the said instructions. The approach of the State Level Committee in bringing the case of the petitioner within the ambit of para 2(a) of the instructions is thus erroneous.

Coming to the next question, it may be stated that the petitioner is stated to have been punished for the two jail offences as under:

"1) 10.3.1991 He objected for search and misbehaved with the Jail Staff. Formal Warning.

2) 8.4.1991 Being a CNW he alongwith two other CNWs who were his coaccused quarrelled with other CNW Mahinder Singh s/o Devi Singh and beat him for which he was admitted in the hospital. Registered a case against the convict in the Police Station. Kept in cell and reduced to ordinary prisoner from CNW permanently."

As regards the offence No. 2 dated 8.4.1991, the petitioner along with his coconvict Jagir Singh was tried for the offences under sections 323/325/34, IPC, and both of them were acquitted by the Judicial Magistrate, Hissar, by judgment dated 14.5.1993. It is conceded at the Bar that the State did not challenge this order of acquittal by way of appeal. Therefore, it cannot be said that the petitioner had committed any jail offence dated 8.4.1991.

So far as the jail offence dated 10.3.1991 is concerned, the allegation is that he objected for search and misbehaved with the jail staff, for this offence, he was given a formal warning. In Balwant Singh v. State of Haryana, 1995(3) Recent C.R. 322 , the convict did not surrender in time after the expiry of furlough granted to him on two occasions, for which he was warned as per provisions of law. It was held by a Single Bench of this Court that this does not amount to a jail offence and nor premature release can be denied for such minor lapses. Even if it is assumed that this was a jail offence, may be minor in nature, in itself does not amount to bad conduct on the part of the petitioner. Therefore, even if the petitioner was to be considered under para 2(a), the premature release could not have been refused on account of two alleged jail offences discussed above.

As a result of the above discussion, this petition is allowed. JUDGMENT dated 14.3.1995/5.4.1995 (Annexure P.3) is hereby quashed. The respondents are directed to reconsider the case of the petitioner in the light of the observations made above within a period of one month from the date of receipt/production of a certified copy of this order, failing which the petitioner will be released to the satisfaction of the District Magistrate, Hissar, on usual terms and conditions.