03 Aug 2121

The premature release of prisoner cannot be before 14 years - Supreme Court of India

Case : The State of Haryana & Ors v. Raj Kumar Criminal Appeal No. 721 of 2021

Court : Supreme Court of India

Bench : Justice Hemant Gupta and Justice A.S Bopanna

Decided on : 03 Aug 2121

Relevant Statutes

Articles 161 and 162 of the Constitution

Section 401, 402, 432, 433, 433A of the Code of Criminal Procedure, 1973

Section 59(5) of the Prisons Act, 1894

Brief Facts and Procedural History

1. The State and the writ petitioner are aggrieved by an order passed by the learned Single Bench of the High Court of Punjab & Haryana at Chandigarh on 12.5.2020 whereby the policies of the State Government to grant remission to the prisoners were decided, inter alia, directing the State to consider the feasibility of drafting a fresh policy particularly in respect of the exercise of powers conferred under Article 161 of the Constitution.

2. It was also held that the State may also consider the feasibility of having a policy with the retrospective operation, provided the same does not lead to discrimination amongst a substantial number of identically situated prisoners.

3. The High Court of Punjab & Haryana further observed that till such time a decision is taken, the appropriate Government can exercise its powers under Sections 432 and 433 of the Code of Criminal Procedure, 1973 in terms of policy dated 13.8.2008, but while strictly adhering to the restrictions imposed under Section 433-A of the Code of Criminal Procedure, 1973.

4. The learned Single Bench has referred to certain policies circulated by the State Government. The first policy referred to was circulated on 23.4.1987 wherein the convicts on whom punishment of life imprisonment is imposed on conviction of an offence for which death is one of the punishments provided by law, or where the sentence of death imposed on a person had been commuted under Section 433 of the Code of Criminal Procedure, 1973 on or after 18.12.78, would be considered by the State Government for premature release after they have undergone 14 years of the substantive sentence. Thereafter, policies dated 28.9.1988, 19.11.1991, 8.8.2000 and 12.4.2002 were issued contemplating that case of premature release would be considered on an individual basis after review by the State Level Committee falling within the purview of Section 433 of the Code of Criminal Procedure, 1973 and cases thereafter shall be put up to the Hon’ble Governor. However, the policy dated 13.8.2008 did not contemplate.

The Issue of the Case

The issue arising in the present appeals is regarding the applicability of policy dated 12.4.2002 or the policy dated 13.8.2008 to the prisoner convicted on 25.3.2010.

The Observations of the Court

1. The Honourable Supreme Court held in State of Haryana & Ors. v. Jagdish, (2010) 4 SCC 216 inter-alia held that the policy dated 4.2.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is in the exercise of the powers conferred under Section 432 read with Sections 433 and 433-A of the Code of Criminal Procedure, 1973. The said policy is a rule of procedure, thus, subordinate to the Constitution. The power exercised under Article 161 is a mandate of the Constitution, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993.

.2. In State of Haryana & Ors. v. Jagdish(2010) 4 SCC 216 the Hon’ble Supreme Court did not approve the judgment in Sadhu Singh & Ors. v. State of Punjab, (1984) 2 SCC 310 wherein it was held that these policies are executive instructions. Instead, this Court approved the judgment of this Court reported as State of Haryana v. Mahender Singh & Ors. (2007) 13 SCC 606 wherein it was held that these policies of remission are in the exercise of the powers conferred under Section 59(5) of the Prisons Act, 1894, contemplating “for the award of marks and the shortening of sentences” and thus, they are statutory rules.

3. Sections 401 and 402 of the Code of Criminal Procedure, 1973 were not empowering the appropriate Government to issue general or special orders and the conditions on which petitions for premature release should be presented and dealt with. Sections 432 and 433 of the Code of Criminal Procedure, 1973 had corresponding provisions in Sections 401 and 402 of the Code of Criminal Procedure, 1973 but sub-section (5) of Section 432 empowers an appropriate Government to issue general or special orders. Therefore, after the commencement of the Code on 1.4.1974, the power to issue general or special orders allowing remissions is traceable to Section 432 of the Code of Criminal Procedure, 1973. Hence, the policies issued thereafter are statutory in nature, having been framed in exercise of powers conferred on appropriate Government under Section 432 of the Code of Criminal Procedure, 1973.

4. The Honourable Supreme Court observed that the prisoner herein has completed 12 years and 25 days as of 6.7.2021 as per the custody certificate produced by the State. The case for premature release of the prisoner in terms of the policy of the State Government dated 13.8.2008, the policy which was applicable on the date of his conviction, can be considered only after he completes 14 years of actual imprisonment. However, the State Government can consider the prisoner in question for premature release after undergoing imprisonment for less than 14 years only under Article 161 of the Constitution.

The Decision Held by the Court

The honourable Supreme Court disposed of the appeals.

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