Raj Kumar alias Billa vs State of Haryana

R.L. Anand, J. (Oral)

Shri Raj Kumar alias Billa son of Kishori Lal has filed the present writ petition under Section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India praying for issuance of appropriate orders/directions for quashing the order dated 26.3.1998 vide which case of the petitioner for premature release was declined by the respondent authorites. It was also prayed in the petition that the State Government should apply those instructions which were enforceable on the date of the conviction. In the petition it was pleaded by the petitioner that even though latest instructions are applied, his case in covered under para 2(b) of the latest instructions dated 4.2.1993 as amended on 17.7.1998. Further contention of the petitioner in the writ petition is that he cannot be discriminated in the matter of premature release when his coaccused has already been granted benefit of premature release.

The stand of the petitioner has been disputed by the State on the ground that since the petitioner has committed heinous offence of murder by exhibiting brutality by burning a person of human being. Therefore, his case is covered under para (a) of the instructions dated 4.2.1993 as amended on 17.7.1997. The petitioner Shri Raj Kumar alongwith Rajinder alias Jangi, Tejinder Kumar and Padam Parkash were tried in case FIR No. 676 dated 3.11.1998, under Sections 302/323/307/34 I.P.C. registered at Police Station City, Yamuna Nagar. The offence was registered after the assassination of Smt. Indira Gandhi, the then Prime Minister of this country. The material allegations against the present petitioner and his coaccused are that petitioner Shri Raj Kumar alias Billa was having a bottle containing petrol and he put the petrol on the body of Santokh Singh. Other two coaccused Tejinder Kumar and Padam Parkash exhorted their coaccused present petitioner and Rajinder to put to body of Sukhdev Singh on fire on which Raj Kumar present petitioner who was having a match box showed fire upon the body of Santokh Singh. At that moment, Rajinder Kumar alias Jangi had released the hair of the deceased. As a result of the fire, Santokh Singh stated crying and he fell down and subsequently died.

The petitioner Shri Raj Kumar alias Billa earlier filed a petition seeking directions of this Court that his case for premature release may be considered as per instructions applicable on the date of conviction. Vide order dated 15.1.1998 (Annexure P5) the said petition was disposed of with the direction to the respondents to consider and decide the case of the petitioner for the grant of premature release on the basis of the instructions, as applicable on the date of conviction. This view was taken in view of decision dated 20.11.1996 passed in Misc. No. 16012M of 1996 (Dilbagh Singh v. The State of Haryana and others). It may also be mentioned here that against this order dated 15.1.1998 the State of Haryana has filed (appeal) before the Supreme Court. The appeal of the State of Haryana is on different aspect that the instructions which are enforceable on the date of filing of the application by a convict would apply. I am not adjudicating that issue in the present petition.

Learned counsel for the petitioner submits that even applying the latest instructions of the Haryana Government, the case of the petitioner is not covered under para 2(a) of the instructions dated 4.3.1993 and that this case falls under para 2(b) of those instructions. The learned counsel submitted that as per latest instructions the petitioner has become qualified for premature release. On the contrary contention of the State is that the case of the petitioner falls within para 2(a) of the instructions and since he has not undergone 14 years actual sentence including undertrial detention period, the petitioner is not entitled to premature release. In the alternative is was submitted by the learned counsel for the petitioner that the petitioner cannot be discriminated in the matter of premature release when his coaccused Rajinder alias Jangi has already been released by the State Government vide order Annexure P.7, dated 13.6.1997. The learned counsel submitted that the case of the petitioner and that of his coaccused Shri Rajinder who has been convicted in the same F.I.R. is the same.

The first point for determination would be whether the petitioner has qualified himself as per instructions date 9.2.1993 or not. A reading of the instructions would show that the convicts who have committed heinous offences such as murders, exhibiting brutality such as cutting body into pieces or burning or dragging the body as evident from the judgment of sentence, are supposed to complete 14 years actual sentence including under trial period and they are also supposed to earn atleast 6 years remissions. Though Shri P.C. Chaudhary, learned counsel for the petitioner has tried to distinguish the case of his client by stating that the alleged act attributed to the petitioner does not fall within act of brutility but I am not convinced with this argument. As per allegations of the prosecution in the trial of the case, the present petitioner Shri Raj Kumar showed fire upon the person of Santokh Singh as a result of which the death by burning took place and in these circumstances the offence is heinous one as per para 2(a) of the instructions. Since the petitioner has not qualified for 14 years of actual sentence, therefore, he is not eligible to apply for premature release.

The second point which exists for determination is whether the petitioner can be discriminated in the matter of premature release when has coaccused Rajinder alias Jangi has been extended the benefit of premature release. The order Annexure P.7 shows that the Government of Haryana remitted unexpired portion of sentence of Rajingder @ Jangi, on 13.6.1997. The learned counsel for the respondent tried to distinguish the case of the present petitioner from that of his coaccused Shri Rajinder alias Jangi on the plea that as per allegations Rajinder alias Jangi simply caught hold of the deceased by his long heirs but the petrol was actually put by the present petitioner who also showed fire upon the drenched body of Santokh Singh. On the contrary it has been submitted by the learned counsel for the petitioner that a particular role attributed to a particular accused would be immaterial so long as the death of a person has taken place by buring. After considering the rival submission of the parties I am of the opinion that the distinction which has been made by the learned State counsel is of technical nature and cannot be accepted. The death of Shri Santokh Singh was due to burn injuries. In such like incidents, the role can be attributed to any of the person. One can put k.oil/petrol and the other can show fire by letting a match stick. The finding of the trial Court is that the death of Santokh Singh took place on account of burning. In these circumstances, the case of the present petitioner cannot be distinguished from his coaccused Rajinder alias Jangi. By not granting benefit of premature release to the petitioner by passing impugned order Annexure P6, the petitioner has been discriminated. Such an order in these circumstances cannot be sustained in the eyes of law. Resultantly, I allow this petition and set aside the order Annexure P6 on the ground of discrimination and give further directions to the State Government to reconsider the case of the petitioner on merits and pass an appropriate order within three months from the date of receipt of copy of this order. It may be clarified here that this order will have no prejudicial effect on the appeal of the State of Haryana filed before the Hon''ble Supreme Court.

A copy of this order be sent to Director General of Police, Haryana, Chandigarh, for information.