Suraj Bhan vs State of Haryana

K.S. Kumaran, J

PetitionerSuraj Bhan has approached this Court under Section 482 Cr.P.C. read with Article 226 of the Constitution of India, for directing the respondents namely (1) State of Haryana (2) Superintendent, District Jail, Bhiwani, to consider the premature release case of the petitioner in accordance with the instructions dated 28.11.1977 and 27.2.1984 (Annexures P1 and P2).

The case of the petitioner is as follows :

The petitioner was arrested on 16.4.1986 and was sentenced to life imprisonment under Section 302 of the Indian Penal Code on 12.3.1987 (in FIR No. 136 dated 10.4.1986 of Police Station Sadar, Rohtak) for murder of his wife. It is not a dowry case. The State Government has issued instructions vide letter No. 7883/JJ/77/3009 dated 28.11.1997 (annexure P1) and further instructions dated 27.2.1984 (Annexure P2). Subsequent directions given in 1988 and afterwards are not applicable to the petitioner, since the cases of premature release of convicts have to be considered in the light of the instructions that were in force at the time of the conviction of the accused/petitioner. According to the above instructions (Annexures P1 and P 2) the premature release of the convicts has to be considered after the completion of 81/2 years of substantive sentence and total sentence of 14/10 years including remissions. The petitioner has already undergone the substantive sentence of 10 years and 10 months and a total sentence of 16 years and 10 months including remission and, therefore, is legitimately entitled to the grant of premature release.

The Superintendent of District Jail, Bhiwani, the secondrespondent, filed reply on behalf of the respondents, opposing this application. It has been alleged in the reply that the right to consideration for permature release has not accrued to the petitioner as his case is not ripe for consideration under the existing instructions. It has also been alleged that in view of the instructions of the Government dated 4.2.1993 (annexure R1) and the judgment of this Court in Cr.M. No. 578M of 1996 (annexure R2) the petitioner''s case for premature release cannot be considered.

Therefore, we will have now to find out whether the petitioners case for premature release has to be considered ? As pointed out already, the petitioner was arrested on 16.4.1986, convicted and sentenced to life imprisonment on 12.3.1987. This petition was presented on 27.2.1997, and so, on the date of this petition, the petitioner has undergone 10 years and 10 months and 11 days substantive sentence. He claims to have undergone total sentence of 16 years 10 months including remissions. The allegations to this effect are found in paragraph 5 of the petition, which are not specifically denied in para5 of the reply, wherein it has been stated that the petitioner is to be considered for premature release in the light of the directions issued in Cr.M. No. 578M of 1996. That was also a case concerning premature release of a person sentenced to life imprisonment where this Court held that in view of Section 433A of the Code of Criminal Procedure, the respondent, while considering the case of a person for premature release will have to take into consideration whether he remained in Jail for 14 years including period of parole, but excluding remissions, and that the provisions of Section 433A Cr.P.C cannot be rendered nugatory by the exercise of power under Section 432 or 433 of the Code of Criminal Procedure.

Section 433A of the Code of Criminal Procedure was brought into that statute with effect from 18.12.1978. Section 433A of the Code of Criminal Procedure reads as follows :

"Notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served atleast fourteen years of imprisonment."

Even according to the petitioner, he was convicted under Section 302 I.P.C. on 12.3.1987 i.e. after Section 433A came into force, for the murder of his wife for which he could have been visited with the penalty of death. Therefore, in view of the above said provisions contained in Section 433A of the Code of Criminal Procedure, which apply to the case of the petitioner, the petitioner has to serve 14 years of imprisonment, irrespective of the remissions gained by him. Therefore, though his case for premature release has to be conviction in terms of the instructions that were in force at the time of his considered, his case for premature release cannot be considered until he has completed 14 years of imprisonment, including the periods of parole, in view of the provisions of Section 433A. Since, the petitioner had completed 10 years 10 months and 11 days of substantive sentence only on the date of the present petition, this Court cannot, at this stage, direct the respondents to consider the case of the petitioner for premature release.

The present petition on the other hand is premature.

In view of my findings above, this petition has to fail and is dismissed accordingly.