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High Court of Punjab and HaryanaCWP/8163/2018disposed of

Shashi Bala v. State Of Haryana And ANR

2019-07-18Mr. Justice Raj Shekhar Attri3 pages

-1IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision:-18.07.2019.

Shashi Bala .....Petitioner

Versus

State of Haryana through Principal Secretary to Govt., Govt. of Haryana, Home Department and others ......Respondents CORAM: HON'BLE MR. JUSTICE RAJ SHEKHAR ATTRI ****

Present:

Mr. Randeep S. Dhull, Advocate and Mr. Ajay Kumar Dahiya, Advocate for the petitioner. Mr. Pawan Garg, AAG, Haryana.

**** RAJ SHEKHAR ATTRI, J.

Petitioner has filed this petition under the provisions of Articles 226/227 of the Constitution of India for issuing writ in the nature of mandamus directing the respondents to consider her claim for premature release in terms of para 2 (c) of the Policy dated 12.04.2002 (Annexure P-3). Petitioner was convicted and sentenced for life imprisonment vide judgment of conviction dated 19.11.2009 and order of sentence dated 20.11.2009 (Annexure P-2) in case FIR No.298 dated 06.06.2006 registered under Sections 302, 306, 34 IPC at Police Sation City, Rohtak. Learned counsel for the petitioner placed reliance on the judgment passed by the Hon'ble Supreme Court in State of Haryana and others Vs. Jagdish reported as 2010 (4) SCC 216 wherein in para Nos.42 and 43, it has been held as under:- "42. We have already noticed that the earlier

-2policies including the policy dated 04.02.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.08.2008 is in exercise of the powers under Section 432 read with Sections 433 and 433A of Cr. P.C. The restriction under Section 433-A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 Cr.P.C. The notification dated 13.08.2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.08.2008 cannot override the policy dated 04.02.1993.

43. 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 was 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 pre-mature release, he should be given benefit thereof."

-3Learned counsel for the petitioner submits that he would be satisfied if a direction is issued to the concerned authorities to consider the case of the petitioner with regard to pre-mature release in view of the above cited Supreme Court decision.

In this view of the matter State is directed to consider the claim of the petitioner with regard to pre-mature release as per the ratio laid down by the Hon'ble Supreme Court in State of Haryana and others Vs. Jagdish (supra) within a period of 90 days from today.

With aforesaid direction, writ petition stands disposed of. (RAJ SHEKHAR ATTRI) JUDGE July 18, 2019.

sandeep Whether speaking/reasoned:- Yes / No Whether Reportable:- Yes / No.