Jai Gopal vs State of Haryana and ors.

G. S. Chahal, J.

Jai Gopal petitioner is undergoing life imprisonment for offence under Section 302, Indian Penal Code on the basis of conviction recorded by Sessions Judge, Rohtak on 16.8.1982. He has filed the present petition for quashing of order, Annexure P/1 and directing the respondent to release him from jail by absolving him from serving any further imprisonment.

The petitioner''s plea is that at the time of his conviction he was 17 years of age. He was first sent to Borstal Jail and on demand from Central Jail, Ambala, he was sent there. Ultimately he was lodged in District Jail, Rohtak and then transferred to Central Jail, Hissar. The petitioner has since undergone actual sentence of 8 years and 6 months inclusive of 5 months as under trial and has also earned remission of 3 years 7 months and 21 days. He has thus undergone a total sentence of nearly 12 years. Vide instructions issued by the Haryana State on 28.9.88, the case of premature release of a convict who was below 18 years of age at the time of commission of the offence has to be considered after he has undergone 6 years of actual imprisonment provided that the total period of detention including remission is not less than 10 years. He has relied upon the following instructions :

2(b) Juvenile life convicts below the age of 18 years at the time of commission of offence and female life convicts :

Their cases may be considered after 6 years of actual sentence including under trial detention period. Provided the total of such period of detention including remissions is not less than 10 years.

The petitioner was not a habitual offender and his conduct in jail had been recommended to be good. Considering his good record inside the jail, the Jail Superintendent recommended his case for premature release vide Memo. No. 643 dated 12.4.1989. The Government has, however, rejected his case vide letter dated 27.10.1989, Annexure P/1 considering instructions contained in para 2(d) which, was not applicable to the petitioner.

In the return, the fact of petitioner being a juvenile offender was admitted. It was confirmed that he had undergone a total period of 12 years and 4 months inclusive of remission and case of the petitioner was considered but was found to be covered under para 2(d) of the instructions and so his premature release case will be considered on completion of 14 years of actual sentence.

I may refer to para 2(d) of the instructions dated 28.9.88 as amended by the instructions dated 7.5.1989 :

"2(d). Adult life convicts involved in heinous crime such as dowry death. bride burning, spouse killing and cases disclosing grave depravity of character and greed and those involving extreme brutality, murder with rape, murder while undergoing life sentence, organised and professional crime of heinous nature like dacoity with murder and life convicts who are dangerous and hardened criminals as evidenced for example from cumulative sentences, persistent bad conduct in the prison and those who could not for some definite reasons be prematurely released without danger to public safety.

After undergoing 14 years actual detention including under trial periods."

These instructions apply to an adult convict and would not apply to a juvenile convict.

Learned counsel appearing on behalf of the State, Mr. Malik, could not advance any argument of substance against this proposition. The case of the petitioner has to be considered to be one covered by clause 2(b) of the aforesaid instructions. The fact of the petitioner being a juvenile convict was not taken into consideration while deciding his case for premature release. As such the order, Annexure 1/1 is quashed. The case for premature release of the petitioner had been recommended by the Jail Superintendent which will confirm the plea of the petitioner that his conduct during his stay in jail was good. Mr. Malik has not been able to show as to how the petitioner was not entitled to the premature release. A similar matter was considered by Bajaj J., in Criminal Misc. No. 1295M of 1990 wherein relying upon the observations in Darshan Singh v. State of Punjab and another, 1988(1) Recent Criminal Reports 472 , the release was ordered. Agreeing with the principles of the aforesaid decision, I hereby allow the petition and direct that Jai Gopal petitioner be released forthwith.