Kewal Krishan vs State of Punjab

Anita Chaudhary, J.—Through the instant criminal writ petition filed under Article 226 of the Constitution of India, the petitioner has sought quashing of order dated 13.11.2013 (Annexure P-2), whereby his case for premature release, has been declined.

The brief facts may now be unfolded. The petitioner was arrested in case FIR No. 249 dated 04.11.2000, u/s 302 IPC, Police Station Sadar Hoshiarpur, for having committed the murder of his own son, aged two years. The trial culminated into his conviction and he was awarded life imprisonment vide judgment dated 11.10.2001. With the plea that he has undergone more than 12 years of actual sentence and more than 19 years and 06 months with remissions, he sought his premature release. His case was recommended by the authorities. The State Government though admitted the custody period of the petitioner, but declined the relief sought by him vide the impugned order (Annexure P-2), by observing as under:-

Whereas kidnapping and murdering of his own 02 years son is a heinous, inhuman and a bristle (?) crime committed by the prisoner and it creates bad impact on the entire society, if such life convict is released on premature release on sympathetic grounds that too prior to completion of punishment awarded by law then other persons living in the society with same attitude, shall get encouragement to commit similar crimes.

Therefore, the premature release case of the prisoner Kewal Krishan son of Sh. Swaran Singh son of Swaran Chand, Borstal Jail, Ludhiana after considering all the aspects is rejected by the Hon''ble Governor, Punjab in exercise of his powers under Article 161 of the Constitution of India.

The aforesaid view of the competent authority is under challenge in the instant criminal writ.

Upon notice, Superintendent, Borstal Jail, Ludhiana has filed the reply, wherein it has been averred that the case of the petitioner was considered under subsequent instructions dated 08.08.2011 and was rightly rejected as it is the prerogative of the Government to release the convict prematurely. It has been admitted that the petitioner is not involved in any other case and his work and conduct as an inmate remained satisfactory throughout and he has not committed any jail offence. The custody certificate (Annexure R-2) shows that he has undergone actual sentence of more than 13 years and more than 21 years of sentence, including remissions and parole as on date.

I have considered the submissions made by learned counsel for the petitioner as well as of the learned State counsel.

The case of the petitioner has been rejected on the ground that he has committed a heinous crime. In the reply, it has come for the first time that his case was considered under the policy instructions dated 08.08.2011 and was rejected.

The first question that arises and requires adjudication, is that, whether the petitioner is governed by the policy instructions concerning premature release, prevailing at the time of his conviction or under the policies introduced later. This issue is no more res integra.

The Hon''ble Apex Court in State of Haryana and Others Vs. Jagdish and Harpal, has held that for the grant of remissions, the life convict would be governed by the policy of remission of government prevailing on the date of judgment of conviction and not the policy which existed on the date of consideration of his premature release. In para no. 43 of the judgment, read as under:-

The right of the respondent prisoner, therefore, to get his case considered at par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13.08.2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that the existing on the date of his conviction. State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for pre-mature release would be considered after serving the sentence, prescribed in the short sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a "lifer" for premature release, he should be given benefit thereof.

Thus, the policy instructions dated 08.08.2011 have no application to the case of the petitioners, for reconsideration of his claim for premature release and his case will have to be reconsidered in the light of instructions of 08.07.1991 which were prevalent at the time of his conviction.

It is apparent from the perusal of rejection order (Annexure P-2) that the claim of the petitioner for premature release has been declined on the ground that he has committed heinous crime and it is nowhere stated that the case of the petitioner does not fall in the category as mentioned in the policy concerning premature release, rather it speaks that the petitioner has undergone the requisite custody and that his case has been duly recommended by the authorities.

It is clear from the observations made in the impugned order that the competent authority has simply adhered to the heinous crime yardstick for which the convict has already suffered and it failed to take notice of the subsequent conduct of the petitioner as an inmate, which admittedly has remained satisfactory throughout. It is also admitted that he did not indulge in any jail offence, rather the authorities recommended his case for premature release, considering the fact that he had undergone the custody required to be undergone by the inmate convicted for heinous crime. All these vital aspects were not considered by the competent authority while declining the relief.

It is not the case of the respondents that petitioner does not fulfill the requirements as laid down in policy instructions dated 08.07.1991.

In Jagdish''s case (supra), the Hon''ble Apex Court while dealing with liberty of an individual and highlighting the modern reformative concept of punishment, held as under:-

Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it. Similarly, rehabilitation and social reconstruction of life convict, as objective of punishment become of paramount importance in a welfare state. "Society without crime is a utopian theory". The State has to achieve the goal of protecting the society from convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his crime and assist his rehabilitation. The Remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive. The basic principle of punishment that "guilty must pay for his crime" should not be extended to the extent that punishment becomes brutal. The matter is required to be examined keeping in view modern reformative concept of punishment. The concept of "Savage Justice" is not to be applied at all. The sentence softening schemes have to be viewed from a more human and social science oriented approach. Punishment should not be regarded as the end but as only the means to an end. The object of punishment must not be to wreak vengeance but to reform and rehabilitate the criminal. More so, relevancy of the circumstances of the offence and the state of mind of the convict, when the offence was committed, are the factors, to be taken note of.

No convict has a fundamental right of remission of shortening of sentence, but the order of the State Government while rejecting the case of pre-mature release must have reflection about the subjective satisfaction of the competent authority that the premature release of a convict would be harmful for the society or that there are chances of reoccurrence of offence. Not only this, the persons who are entitled to be released prematurely should not be kept in the prison at the cost of public. Of course the State should protect the law abiding citizens from the criminals, but at the same time, the State also should see that the deserving convicts are released prematurely on completion of prescribed period and rehabilitated. In Jagdish''s case (supra), Hon''ble Apex Court, while relying upon State of Haryana Vs. Mahender Singh and Others, made the following observations:

At the time of considering the case of pre-mature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio-economic condition of the convict''s family and other similar circumstances.

Considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasis that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances, e.g. suffering of a convict from an incurable disease at last stage, may warrant his release even at much early stage. ''Vana Est Illa Potentia Quae Nunquam Venit In Actum'' means-vain is that power which never comes into play.

Pardon is an act of grace, proceedings from the power entrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment which law inflicts for a crime he has committed. Every civilised society recognises and has therefore provided for the pardoning power to be exercised as an act of grace and humanity in appropriate cases. This power has been exercised in most of the States from time immemorial, and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice, supported by a wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people; who may properly insist upon the performance of that duty by him if a pardon or parole is to be granted.

In view of the above, the impugned order is set aside. Directions are issued to the respondents to re-consider the case of the petitioner in the light of the relevant policy decision(s) framed by the Punjab Government which existed at the time of his conviction and also the guidelines framed by Hon''ble Apex Court in Jagdish case (supra), within four months. In case, the case of the petitioner for premature release is not decided within the stipulated time, the petitioner shall be released on parole on his furnishing personal bond and surety bond to the satisfaction of the District Magistrate concerned. The petitioner shall give an undertaking that he will not leave the country without prior permission of the Court and will keep peace and shall not indulge in any criminal activity during parole. On receipt of order from the State Government, Superintendent, Central Jail, Ludhiana, shall inform the petitioner accordingly.

The petition is allowed on the aforesaid terms.