Balwan Singh vs State of Haryana and Ors.

Harmohinder Kaur Sandhu, J.

The petitioner was tried for the offence of murder by learned Sessions Judge, Hissar, along with other coaccused and he was convicted and sentenced to undergo imprisonment for life vide judgment dated 18.5.1982. At present he is confined in Central Jail, Bhatinda. He alleged that at the time of commission of the offence he was less than 18 years of age. After his arrest on 15.9.1981 he remained continuously confined behind the bars and he had undergone more than 11 years 6 months of actual sentence and had earned remissions exceedings 6 years. According to the latest instructions issued by the State of Haryana on 19.11.1991 a juvenile offender was entitled to premature release after he had undergone 8 years'' actual sentence and 10 years sentence including remissions. The petitioner fulfilled requisite conditions for the grant of premature release but this benefit was withheld from him arbitrarily. His case for premature release was considered by the State Government but was rejected vide order Annexure P/4 on the ground that he had committed offence in brutal and ghastly manner and the offence was heinous. Thus, he was required to undergo 14 years'' actual sentence for carning the benefit of premature release. The petitioner alleged that the impugned order was passed in an arbitrary manner and the offence committed by him did not fall within the definition of heinous offence as contained in the instructions dated 19.11.1991. His case was covered by para 2(b) of the said instructions and it did not fall under para 2(a). In fact he was below 18 years of age at the time of commission of offence and as such the ground of heinousness of offence was not attracted at all. In the judgment Annexure P/1 his age was recorded as 1617 years. In any case he was not required to undergo more than 10 years sentence including remissions.

In the return filed by the respondents it was maintained that the petitioner along with four other persons murdered Chanan Singh with Gandasis, Takwa and Dhangi and the State Level Committee after taking into consideration the facts and circumstances of the case under which this heinous and brutal murder was committed after preplanning, recommended that premature release case of the petitioner may be reconsidered after completion of 14 years'' actual sentence. This fact was, however, admitted that the petitioner had undergone 11 years 8 months 13 days actual sentence and 17 years 20 days sentence including remissions.

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

The learned counsel for the petitioner contended that at the time of commission of the offence the petitioner was less than 18 years of age. He was a juvenile life convict and his case for premature release was to be decided as per instructions contained in para 2(c) of Annexure P/3. According to these instructions juvenile life convict below the age of 18 years at the time of commission of offence became eligible for consideration for premature release after completion of 8 years'' actual sentence including undertrial period provided that the total period of such sentence including remissions was not less than 10 years. The learned counsel contended that in the judgment Annexure P/1 the age of the petitioner was given as 18 years and after conviction the petitioner remained in borstal jail till 6.6.1986. Except copy of the judgment there is nothing on record to prove the age of the petitioner at the time of commission of the offence. No document was produced to show that the petitioner ever remained admitted in borstal jail. He was tried along with his coaccused and the question that he was a juvenile convict was never raised prior to the filing of the present petition. Without any definite proof regarding the age of the petitioner on the day of incident it cannot be determined at this stage if he was a juvenile offender and benefit of the instructions contained in para 2(c) of Annexure P/3 cannot be awarded to him.

The learned counsel for the petitioner referred to order Annexure P/4 whereby the State Level Committee recommended that case of the petitioner for his premature release may be reconsidered after completion of 14 years'' actual sentence including undertrial period and after earning at least 6 years remissions as the petitioner had committed a heinous crime. He argued on behalf of the petitioner that the impugned order was liable to be set aside as the petitioner had not committed a heinous crime as described in para 2(a) of the instructions Annexure P/3. He was held guilty of commission of murder alone along with his four coaccused and while committing murder he had not committed any other offence such as extortion, robbery, rape etc. It was further urged that one of the coaccused of the petitioner namely, Ram Rakha whose case for premature release was also rejected on the same basis that he had committed a heinous crime, assailed that order vide Criminal Misc. No. 4867M of 1993 which was allowed on 2.11.1993 and the respondents were directed to consider his claim for premature release afresh. The petitioner was, therefore, entitled to the same relief.

A perusal of the instructions Annexure P/3 will show that heinous crime has been described therein as under :

"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 (Offences) Act, 1955, murder in connection with dowry, bride burning, murder of child under the age of 14 years, murder of handicapped or pregnant women 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 imprisonment a second time under N.D.P.S. Act or life convicts who have been imprisoned for life second time under any offence."

The petitioner''s case who was simply held guilty for an offence under Section 302/34 I.P.C. is not covered by the definition of heinous crime as referred above. He has been sentenced for imprisonment to life but has not committed a heinous crime, so his case for premature release is to be considered in accordance with the instructions contained in para 2(b) of Annexure P/3. The learned State counsel was unable to point out as to how the crime committed by the petitioner fall under para 2(a) and not under para 2(b) of the instructions dated 19.11.1991. The conduct of the petitioner otherwise remained good and there is nothing to debar the consideration of his case for premature release afresh. More so, when the case of his coaccused has already been ordered to be reconsidered.

As a result I allow this petition and direct the respondents to consider the case of premature release of the petitioner afresh in accordance with the instructions contained in para 2(a) of Annexure P/3 within a period of three months on receipt of copy of this order.