Sukhbir Singh vs State of Haryana

M.L. Singhal, J.

This is a Criminal Miscellaneous Application filed under Section 482 Cr.P.C. by the petitioner (Sukhbir Singh) whereby he has prayed for his premature release in terms of the policy framed by the Haryana Government under Article 161 of the Constitution of India in 1993.

It has been alleged that he was convicted and sentenced to undergo imprisonment for life by Sessions Judge, Karnal on 17.9.1986 with regard to an occurrence of 3.8.1985 on the charge that the assailants had killed a passenger in the bus and thereafter they had escaped from custody. Petitioner was arrested on 3.8.1985 in case F.I.R. No. 235. He has undergone actual sentence to the tune of 11 years and some months. He remained in jail as under trial from 3.8.1985 to 16.2.1986 i.e. for six months and 13 days. He has earned remissions to the tune of 6 years, 2 months and 1 day. He has remained in jail as convict from 17.2.1986 to 12.(sic).1996. In this manner, he has undergone 17 years, 5 months and 10 days detention. His conduct in jail has been orderly and free from the commission of jail offence.

As per the policy instructions his case is covered under Para 2(h) of the 1993 instructions. His coaccused, Rakesh Kumar wrote a letter to this Court which was treated as Crl. Misc. No. 8112M of 1995 and vide order Annexure P 1, the learned Single Judge of this Court directed the respondents to consider the case of Rakesh Kumar for the grant of premature release. Under Clause 2(b) of the Government instructions as he had already completed 10 years of actual sentence. It is alleged that the attribution made to the petitioner was knife blow and similar role was attributed to Rakesh Kumar, namely, that he inflicted knife blow on the deceased. Petitioner''s case is thus squarely covered by judgment Annexure P1 and the respondents should be directed to consider the petitioner''s case for premature release expeditiously. Relying upon instructions issued by the Government of Haryana under Article 161 of the Constitution, the respondents have released seven persons, namely, Tarlok Chand, Murari Lal, Bijender Singh, Jagdish, Kashmir Singh and Ramesh vide orders passed on 27.9.1994, 29.11.1994, 17.7.1995 and 10.6.1996. They were released from the District Jail, Sonepat. It is alleged that the case of petitioner for premature release is similar to that of the said prisoners. Release order passed in regard to petitioner''s coaccused Rakesh Kumar is Annexure P2.

Petitioner, Sukhbir Singh, thus claims release under the policy instructions issued in 1993 by the Haryana Government under Article 161 of the Constitution of India. Respondents have contested this petition in view of the provisions of Section 433A Cr.P.C. Section 433A was introduced in the Criminal Procedure Code with effect from 18.12.1978. In view of the provisions of this section, person convicted of offence under Section 302 of Indian Penal Code has essentially to undergo 14 years of actual imprisonment before he can claim release from jail. The petitioner must complete a minimum imprisonment of 14 years without remissions before the accrual of any right for the consideration of his case for premature release. That is the intendment of Section 433A Cr.P.C. Petitioner has undergone 11 years, 7 months and 14 days detention in jail. Out of this period, he has remained on parole for 8 months and 12 days. In this way, he has undergone actual sentence for 10 years, 11 months and 2 days. He has earned remissions to the tune of 6 years, 5 months and 3 days. Petitioner''s case for premature release is not commensurate with the case of coaccused Rakesh Kumar for pre mature release. The case of the petitioner for premature release was sent to the Director General of Prisons Haryana as per the policy of the Haryana Government dated 4.2.1993 but the same was returned with the direction to re submit this case when due in the light of the verdict of this Court passed in Crl. Misc. No. 578M of 1996 Jai Singh v. State.

Ground urged in support of the prayer made in this petition for the petitioner''s premature release is that his case is at par with the case of Rakesh Kumar who was his coaccused in case F.I.R. No. 235 dated 3.8.1985 under Sections 302/148/149 I.P.C. in which he, Rakesh Kumar and other co accused were sentenced to undergo imprisonment for life. Rakesh Kumar was granted premature release by the respondents. In Clause 2(a) of 1993 instructions case of premature release of a convict who has been convicted for murder or which can be labelled as `heinous crime'' has been dealt with. As to when murder will be viewed as heinous, instances whereof have been given in instruction 2(a) of 1993 instructions. The term `heinous crime'' relates to murder with rape, murder with wrongful confinement, extortion etc. The heinous crime inhibits in it brutality such as cutting the body into pieces or burning/dragging the body as evident from the judgment. In Clause 2(a) of 1993 instructions, only a few instances have been given where murder can be termed heinous. There may be cases where murder may be heinous but it may not be murder with rape, murder with wrongful confinement, extortion etc. Heinousness of crime is relevant to the grant of pardon or premature release as was held by a Division Bench of this Court in Criminal Writ Petition No. 55 of 1990, Jalandhar Singh v. State of Punjab and another, 1992(1) RCR (Crl.) 11 : 1992(1) All India Criminal Law Reporter 130. Heinousness or gravity of offence can be a ground to discriminate the case of one accused from that of another accused for grant of premature release.

In Kehar Singh v. Union of India, AIR 1989 SC 653, Hon''ble Supreme Court, inter alia, observed as under :

"Learned counsel for the petitioners next urged that in order to prevent an arbitrary exercise of power under Article 72, this Court should draw up a set of guidelines for regulating the exercise of the power. It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude."

Learned counsel for the petitioner submitted that all life convicts form one class and they cannot be treated differently on the basis of heinousness or gravity of the crime. I do not find any weight in this submission. Heinousness of the crime is a relevant factor which has to be kept in mind by the executive while laying down guidelines governing the pre mature release of life convicts. In case of "intractably savage delinquents" the yardstick for the grant of mercy could be different from that in other cases.

In Kuljeet Singh alias Ranga v. Union of India and others, AIR 1981 SC 1572, Hon''ble Supreme Court observed as under :

"the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which can be said to have overtaken the accused at the crucial moment. In other words, there was a planned motivation behind the crime though the accused had no personal motive to commit the murder of these two children."

Further it was observed as under :

"The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society."

As to whether, the case is appropriate for the exercise of the powers conferred by Article 72 or 161 of the Constitution of India, depends upon the facts and circumstances of each particular case. The necessity or justification for exercising that power has therefore to be judged from case to case. Heinousness of crime and the intractable savagery of the delinquent are factors which are taken as relevant for the exercise of the powers under Articles 72 and 161 of the Constitution of India. The question of premature release has to be considered not only on the grounds mentioned in 1993 instructions alone. Factors like grave or sudden provocation and absence of motive and premeditation are relevant for determining heinousness of the crime. The gravity of the offence may persuade the executive whether the murder committed was foul or heinous warranting premature release of a convict. The conflict between individual''s freedom and social order has to be reasonably balanced on a comprehensive consideration of all relevant factors. Heinousness or gravity of the offence are not irrelevant to that consideration. The provisions of the Jail Manual are merely guidelines which can be taken into consideration by the Governor while passing orders under Article 161 of the Constitution. These do not preclude the Governor from taking into consideration factors like heinousness of the crime. There can be classification of convicts on the basis of the gravity of the offence.

On the merits of the claim of Sukhbir Singhpetitioner, learned counsel for the petitioner submitted that the petitioner''s case for premature release is not distinguishable from that of his coaccused Rakesh Kumar and Satbir Singh. The prayer of Rakesh Kumar for his premature release was dealt with by S.C. Malte, J. who vide order Annexure P1 directed the authorities to consider his case for premature release by treating it as falling within the ambit of Clause 2(b) of 1993 instructions.

Similarly, Sarojnei Saksena, J. in Criminal Misc. No. 2429M of 1997, Satbir Singh v. State of Haryana and others, decided on 2.7.1997, directed the authorities to deal with the case of Satbir Singh for premature release treating it as a case falling within the ambit of Clause 2(b) of 1993 instructions. Rakesh Kumar and Satbir Singh also dealt knife blows, Sukhbir Singhpetitioner also dealt knife blows. To them the role attributed is the same. It was a murder like any other murder. There is no indication in the judgment of the learned Sessions Judge, Karnal that the murder committed was foul or cruel, or the murder committed was in pursuance of a deep rooted conspiracy or a deep premeditation.

For the reasons given above, this criminal misc. petition is accepted and the respondents are directed to consider the case of the petitioner for premature release treating it to be a case as falling within the ambit of Clause 2(b) of 1993 instructions.