@JUDGMENTTAG-ORDER
M.L. Singhal, J.@mdashThrough this Crl. Misc. No. 37935 M of 1999, filed u/s 482, Cr. P.C. read with Article 226 of the Constitution of India, Sanjeev Kumar son of Surinder Kumar resident of Bhiwani Road, Rohtak has prayed for a direction to the respondents to consider the grant of premature release to him in accordance with para 516 of the Punjab Jail Manual and as per para 2(b) of the Government Instructions Annexure P-2.
2. in this criminal miscellaneous petition, it is stated that he is a juvenile life convict u/s 302/498A, IPC undergoing life imprisonment in District Jail, Rohtak. He was convicted u/s 302/498A, IPC and was sentenced to imprisonment for life and to pay fine of Rs. 500/- u/s 302 read with Section 34, IPC and he was sentenced to undergo RI for 2 years and to pay a fine of Rs. 200/- u/s 498A, IPC by Additional Sessions Judge, Rohtak vide order dated 17-2-89. in appeal, he was acquitted of the charge framed against him u/s 498A, IPC read with Section 34, IPC but his conviction and sentence was maintained by Division Bench of this Court in Crl. Appeal No. 210-DB of 1989 u/s 302/34, Indian Penal Code. His case for premature release was considered and rejected by the Govt., on the ground, that he has not yet completed 14 years actual sentence. State level committee erroneously considered the case of the petitioner under para 2(a) of the Govt. instructions dated 4-2-93 as amended on 17-7-97/16-3-99 and rejected the premature release case of the petitioner with the observation that it was the murder of a "woman" and the cause for murder was that she had not brought adequate dowry. It is stated that these observations of the state level committee are contrary to the findings of Division Bench of this Court recorded in Crl. Appeal No. 210-DB of 1989 whereby he was acquitted of the charge u/s 498A/34, IPC. State Govt. issued instructions dated 28-9-1988 (Annexure P-2) enumerating the policy regarding premature release of life convicts. He has undergone 9 years and 5 months of actual sentence and total sentence of more than 13 years, Instructions have categorised convicts into two categories namely convicts who have been imprisonment for life for having committed a heinous crime, are to be treated separately as per para 2(a) of the Instructions. State Govt. further amended instructions vide memo No. 36/135/91-1 JJ(II) dated 4-2-1993 regarding premature release of life convicts. Further amendment was also made in the year 1999. Annexure P-3 is the true copy of the instructions dated 4-2-1993. It is stated that amendment of para 2(a) of the instructions Annexure P-2 subsequently by way of instructions Annexure P-3 and subsequent instructions is violative of Arts. 14 and 15 of the Constitution of India as the description of "heinous crime" in para 2(a) of the Annexure P-3 is not based on any intelligible differentia. The State Govt. has further amended the instructions Annexures P-3 in 1997 and 1999, the true copies of the instructions of 1997 and 1999 are Annexures P-4 and P-5 respectively. Instructions P-3 to P-5 are ultra-vires of the Constitution of India as unreasonable discrimination has been introduced for consideration of the premature release case of life convicts. Para 2(a) of Annexures P-3 to P-5 includes that the convicts who have committed murder of a woman are said to have committed a "heinous crime" whereas murder of a man is not considered a heinous crime and the premature release of such a convict is to be considered as per para 2(b). The only discrimination is of sex otherwise all other heinous crimes of serious nature which are coupled with commission of offences committed in a series viz. murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing sentence, murder with dacoity etc. It is stated that on account of the unreasonable and unconstitutional provision incorporated in instructions, Annexure P-3 and subsequently issued instructions the petitioner is being subjected to injustice as the respondents have rejected the premature release case of petitioner on the ground that the case of the petitioner falls under para 2(a) of in-; structions embodying provisions for convicts who have committed heinous crime, His case is being taken as "heinous crime" only because of the reason that he committed the murder of a woman. It is stated that a convict is entitled to the benefit of the. special remissions granted by the Govt. from, time to time without the convicts being discriminated against on the ground that they committed certain specific types of offences. No discrimination can be made against a convict that he committed the murder of a woman. Instructions Annexures P-3, P-4 and P-5 have placed convicts who have committed murder of a woman in one category and those who have committed murder of a man in the other category which is discriminatory and violative of Arts. 14 and 15 of the Constitution of India. Murder of a woman held as heinous crime and the case to be considered under 2 (a) of the Instructions P-3 is unconstitutional and further classification to put "juvenile convict" at par with the adult convict be also declared unconstitutional since it frustrates the aims and objects of the Juvenile Justice Act. It has been prayed that he being juvenile convict is entitled to be considered under para 2(b) of the policy for premature release. His case for premature release became due for consideration after the completion of actual sentence of 8 years including under-trial period and after total sentence of 10 years including remissions. He has completed actual sentence of 9 years and 5 months and total sentence of more than 13 years. He was convicted and sentenced vide judgment dated 17/21-2-89. His case for premature release became due for consideration well before the issuance of Govt. instructions dated 17-7-97 and subsequently on 16-3-99, Superintendent, District Jail, Rohtak did not forward his case before the State Level Committee for premature release at appropriate time and the benefit which was available to him vide instructions Annexure P-2 cannot be denied on the ground that at a later stage, fresh instructions came.
3. Respondent-State of Haryana contested this petition urging that the petitioner cannot claim premature release as a matter of right as "life imprisonment" means the whole of the remaining natural life unless remitted by the State in exercise of the powers conferred by Articles 72 and 161 of the Constitution of India. As he was convicted and sentenced to life imprisonment u/s 302, IPC on 21-2-89, his case falls within the purview of Section 433A, Cr. P.C., according to which, he has to undergo minimum of 14 years of actual sentence which he has not undergone so far. Hon''ble Supreme Court vide judgment Annexure R-l (Crl. Appeal No. 1008 of 1998, State of Haryana v. Sanjeev Kumar) (it may be mentioned here that Sanjeev Kumar is petitioner herein) directed the State Govt. to reconsider the applications of the respondent life convicts who fall under the purview of Section 433A, Cr. P.C. in accordance with the current legal position which is that a life convict does not acquire a right to be released prematurely by earning remissions but if the Govt. has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guide-lines for exercising its power under Article 161 of the Constitution. No convict can validly contend that his case for premature release should be considered in view of the '' Govt. policy/instructions in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. If according to the Govt. policy/instructions in force at the relevant time, the life convict has already undergone sentence for a period mentioned in the policy instructions than the right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. Premature release case of the petitioner shall be considered in accordance with the latest Govt. instructions dated 4-2-93 as amended on 17-7-97 and 16-3-99 regarding premature release of life convicts issued in exercise of the powers under Arts. 72 and 161 of the Constitution. His case falls within the purview of para 2(a) of the instructions dated 4-2-93 as amended on 17-7-97 and 16-3-99 regarding premature release of life convicts as he is undergoing life imprisonment for committing murder of a woman. He has to undergo a total of 20 years of sentence including under-trial period and the remissions earned which he has not undergone so far.
4. Petitioner has undergone the following sentence as on 20-12-1999 :
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(1) Actual sentence undergone including under-trial period 9 yrs 6 months 23 days
and parole period
(2) Remissions earned 4 vrs 5 months 13 days
Total 14 yrs 0 months 6 days
minus parole period 9 months
13 vrs 3 months 6 davs
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The State level committee kept in view para 2(a) of instructions dated 4-2-1993 as amended on 17-7-1997 and 16-3-1999 (sic) the declining his case for premature release. It has been observed that as per this para, a life convict has to undergo 14 years actual sentence including under-trial period and at least 6 years remissions or 20 years total sentence including under-trial period and remissions.
5. As per para 2(a) of instructions dated 4-2-1993 convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime, such as murder with wrongful confinement for extortion/robbery, murder with rape, murder while undergoing life sentence, murder with dacoity, murder under T.D. Act, 1987, murder with untouchability (Offences), Act, 1955 murder in connection with dowry.... their cases may be considered after completion of 14 years actual sentence including under-trial period and after earning at least 6 years remissions. As per para 2(c) of these instructions, juvenile life convicts below the age of 18 years at the time of commission of offence and whose cases are not covered under para 2(a) and who have committed crimes which are not considered heinous as mentioned in para 2(a) and female life convicts, their cases for premature release may be considered after actual sentence of 8 years including under-trial period provided that the total period of such sentence including remissions is not less than 10 years.
6. Learned counsel for the petitioner submitted that the petitioner''s case is not covered by para 2(a) of the instructions as the offence alleged to have been committed by him was not a heinous offence as it was not murder with rape or murder in connection with dowry. It was submitted that he is not governed by these instructions. He is not governed by the amended instructions amended as on 17-7-97 and 16-3-99. As per the amended instructions, convicts whose death sentence has been commuted to life imprisonment and convict who has been imprisoned for life for having committed a heinous crime such as murder with wrongful confinement for extortion/robbery, murder with rape, murder in connection with bride burning, murder of a child, their cases may be considered after completion of 14 years actual sentence including under-trial period and after earning at least 6 years remissions. It was submitted that their cases shall not be governed by instructions dated 4-2-1993 amended by instructions dated 16-3-99. As per instructions P-5 dated 16-3-99 amending instructions dated 4-2-93 convict whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime such as murder with wrongful confinement, extortion/robbery, murder with rape, murder while undergoing life sentence, murder in connection with dowry...their cases may be considered after 14 years of actual sentence including under-trial period and after earning at least 6 years remissions or after the completion of 20 years total sentence including under-trial period and remissions.
7. Learned counsel for the petitioner submitted that he is governed by para 2(b) of instructions dated 4-2-1993 which lays down that juvenile life convicts below the age of 18 years at the time of commission of offence and female life convicts, their cases may be considered after 8 years actual sentence including under-trial detention period provided the total period of such detention including remissions is not less than 10 years. It was submitted that his case for premature release was declined by the State level committee vide order Annexure P-1 on the erroneous plea that his case falls under para 2(a) of instructions dated 4-2-1993 as amended on 17-7-97 and 16-3-99. As it was the death of a woman simpliciter and dowry was not in issue and he was acquitted u/s 498A, IPC by a Division Bench of this Court, his case will fall in para 2(b) of 1993 instructions. It was also submitted that when he was convicted, the instructions that were in force were dated 28-9-88. According to these instructions (Annexure P-2), juvenile life convicts below the age of 18 years at the time of commission of the offence and female life convicts, their cases for premature release shall be considered after 6 years actual sentence including under-trial/detention period provided the total period of such detention including remissions is not less than 10 years.
8. in my opinion, the instructions that will govern the premature release case of a convict are those which are in force at the time his case for premature release comes up for consideration. in this case, Division Bench of this Court dismissed his appeal on 21-8-91 and therefore instructions dated 4-2-93 will govern his case for premature release. According to para 2(c) of these instructions juvenile life convicts below the age of 18 years at the time of commission of the offence and whose cases are not covered under para 2 (a) and who have committed crimes which are not considered heinous as mentioned in Clause (a) and female life convicts are entitled to have their cases considered for premature release after completion of actual sentence of 8 years including under-trial period of such sentence including remission is not less than 10 years. So far as Sanjeev Kumar is concerned, his case does not come within the ambit of para 2(c) of 1993 instructions, his case rather comes within the ambit of para 2(a) of 1993 instructions. He is a convict who was sentenced for the murder of a woman and the basis of the murder was inadequate dowry brought by the deceased. It was submitted by the learned counsel for the petitioner that the petitioner will be deprived of the consideration of his case for premature release under Clause 2(c) of instructions dated 4-2-93 only if he was guilty of murder of women and not if he was guilty of murder of a woman. It was submitted that his case for premature release will not fall within the ambit of 1993 instructions as ar ended through memo dated 17th July, 1997 (ibid) as there the words used are "murder of women" in clause 2(a). in Annexure P-7 which is the verbatim photostat of memo dated 17th July, 1997, the words used are "murder of woman". in my opinion, the petitioner cannot claim premature release by saying that his case is not governed by Clause 2(a) of 1993 instructions as amended in 1997 and 1999 as he is not guilty of murder of women but murder of a woman and the intention of the govt, was that murder of women should be viewed as heinous vis-a-vis mtirdef of a woman of murder of a child under the age of 14 should be viewed as heinous vis-a-vis the murder of a woman. It appears that this word "woman" was Inserted in para 2 (a) as it was being felt by the govt. that women are more vulnerable to the atrocities of man and therefore in case the murder of a woman is involved the convict should not be shown any compassion and not released prematurely after he has served only a sentence of few years. It was submitted by the learned counsel for the petitioner that it is discriminatory to view murder of a woman differently from the murder of a man so far as the question of the grant of premature release of a convict is concerned as viewing these two murders differently is violative of Article 14 and 15 of the Constitution. To my mind, if these two murders are viewed differently different considerations will arise so far as premature release of a convict is concerned when he is accused of the murder of a man or when he is accused of the murder of a woman. There is no violation of Articles 14 and 15 of the Constitution because a woman in our society is looked upon with veneration. She is viewed as "LAXMI". She is a weak creature requiring constant protection of a man, in young age, she requires to be protected by her father. in youth she requires to be protected by her husband and in old age she requires to be protected by her sons. A woman thus right from her birth is viewed as a creature unable to protect herself. Where a man is required to protect a woman, her murder by him is viewed with serious concern by the society.
9. For the reasons given above, this Crl. Misc. petition fails and is dismissed. Petitioner''s case for premature release shall be considered keeping in view para 2(a) of 1993 instructions as amended in 1997 and 1999.
