In CRWP-1020-2022 (O&M)-PUNJ HC- While considering premature release of convict and assessing offence committed by him, provision of 1991 policy is that five years’ conduct of such convict has to be seen prior to date of his eligibility: P&H HC Justice Vinod S. Bhardwaj [21-04-2022]

Read Order: Sukhdarshan Singh v. State Of Punjab And Others

Monika Rahar

Chandigarh, April 26, 2022: While dealing with a petition claiming premature release of the petitioner as per the terms and conditions of policy dated July 8, 1991 (policy of 1991), the Punjab and Haryana High Court has held that while dealing with the assessment of the offence committed by the petitioner (convict), the provision of the policy of 1991 is that five years’ conduct of a convict has to be seen prior to the date of his eligibility.

The bench of Justice Vinod S. Bhardwaj also added, “Hence, the evaluation of conduct of five years prior to the date of consideration of the claim of the petitioner is not a mandate of law, and that the conduct, which is required to be taken into consideration by the authorities, has to be seen as on the date of eligibility.”

By means of instant petition, the petitioner invoked the jurisdiction under Article 226 of the Constitution of India for claiming premature release as per the terms and conditions of policy of 1991 and in terms of the directions issued by the Supreme Court in the matter of State of Haryana Vs. Jagdish and for a further direction to respondentState to send and decide the case of the petitioner for premature release by passing a speaking order.

The facts in brief necessitating the filing of the present petition are to the effect that the petitioner faced prosecution in case FIR under Sections 148, 149, 302, 307, 324, 323, 506 of the IPC. He was convicted and sentenced to undergo life imprisonment. An appeal against the said judgment was preferred before the High Court and the same is pending adjudication.

The petitioner claimed that he had been in custody since 2008 and already spent more than 13 years of actual sentence. He also claimed that he completed more than 18 years of total sentence including remissions. He further claimed that in terms of the various precedent judgments of the High Court, the period of parole of about 02 years, 01 month and 01 day has to be deducted from the total sentence and not from the actual sentence.

It was further his case that he was released on parole on February 05, 2020 for a period of 08 weeks and thereafter, pandemic of COVID sat in and his parole was extended upto March 27, 2021. However, owing to being infected by COVID, he could not himself and thus he sent his medical report to the jail authorities. However, he contended that without considering the said fact, an FIR was registered against him under Section 8 and 9 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (‘the Act of 1962’). 

In this FIR, the petitioner was convicted by the Trial Court in the said case and was sentenced to undergo imprisonment for a period of 01 month and 21 days, against which an appeal was filed leading to suspension of his sentence. 

It was contended that despite being fully eligible to be considered for premature release, the respondent was considering his case. As per the petitioner, his case for premature release was not considered by the petitioner firstly by treating it a heinous offence under Column-B, and claiming that the total imprisonment with remissions should be 18 years, and secondly on the ground that an FIR under Section 8 and 9 of the Act of 1962 was already registered against the petitioner and he was convicted therein. 

Countering the first ground, the Counsel argued that the petitioner’s case did not fall in the category of heinous crimes in Column -B and he would be entitled to premature release upon completion of an actual sentence of 10 years and a total sentence of 14 years. On the second ground, it was argued that the petitioner already completed his period of sentence in the year 2021, hence any subsequent conduct was immaterial and could not be taken into consideration for processing and considering the case of the petitioner for premature release. 

After considering these submissions and the facts, the Court noted that the undisputed facts, which emerged from the arguments of both sides, were that the petitioner was in custody since 2008 for having been convicted for the offences under Sections 148, 149, 302, 307, 324, 323, 506 of the IPC. The Court noted that the respondents did not dispute or deny that the policy of 1991 was applicable to the petitioner. 

On the argument of the petitioner’s counsel on the nature of the offence, the Court observed that the Counsel even though raised an argument (his case not falling under Column B) however, the said case was not pleaded by the petitioner in his petition. As a matter of fact, the Court observed that the entire case set up by the petitioner was as regards the consideration of his claim for premature release despite the application of Column-B to his case and claimed that the petitioner fulfilled the eligibility conditions prescribed therein.

The Court noted that the Trial Court while convicting the petitioner, remarked that the offence was grave and serious. In this light, the Court noted that as per the policy of 1991, a grave and serious offence does not mean the same as a heinous offence, and after having looked at Column B, the Court observed that the offence for which the petitioner was convicted did not fall in any of the categories that were defined as heinous offence in the policy of 1991.

Thus, despite absence of a specific pleading in this regard, the Court was of the opinion that the case prima facie did not fall in the category of heinous crimes, and in such eventuality, the Court held that he would be prima facie entitled to be considered for premature release upon completion of 10 years of actual imprisonment, and a total sentence including remissions for a period of 14 years. 

Further, the Court also noted that while dealing with the assessment of the offence committed by the petitioner, the provision of the policy of 1991 is that five years’ conduct of a convict has to be seen prior to the date of his eligibility. Hence, the Court expounded that the evaluation of conduct of five years prior to the date of consideration of the claim of the petitioner is not a mandate of law, and that the conduct, which is required to be taken into consideration by the authorities, has to be seen as on the date of eligibility.

Thus, the claim of the petitioner to the effect that since his conviction under the Act of 1962 was an event subsequent to his eligibility, therefore, it could not be taken into consideration for denial of his entitlement to claim a premature release, was found plausible by the Court. It was further pointed out by the Court that the formula of deducting the period of parole from the actual sentence cannot be applied retrospectively. 

Thus, the Court pointed out the dual grounds on which the claim of the petitioner would succeed, the first of which is the petitioner’s case convicted did not fall under the category of heinous offence as defined and described in the policy of 1991 and further that the conduct, subsequent to the date of eligibility, could not be taken into consideration for the purposes of determining the eligibility and entitlement of a convict to claim premature release. 

Thus, in view of the above, the instant petition was allowed and a direction was issued to the respondent-State to process the case of the petitioner for premature release keeping in view the observations of the Court made herein above.