Raj Kumar vs State of Haryana

R.L. Anand, J.

Raj Kumar petitioner has filed the present petition under Section 482 Criminal P.C. read with Articles 226/227 of the Constitution of India praying for the issuance of the directions by quashing the orders dated 26.11.1997 Annexure5 and the orders dated 20.3.1998 Annexure P6. According to the petitioner, his case for premature release was wrongly declined by the respondent authorities under an illegal plea that since the petitioner had committed the murder of child of 11/12 therefore, his case is covered as per the instructions dated 17.7.1997 Annexure R3. The respondents have further taken the stand that the instructions dated 17.7.1997 supersede all the earlier instructions and in this manner the petitioner cannot take the advantage of the instructions dated 27.2.1984 Annexure P2 though these instructions were applicable qua the petitioner on the date of his conviction.

The stand of respondent authorities does not appear to be correct. Firstly, it is a settled principle of law that the instructions which are applicable on the date of the conviction should be made applicable in order to consider the case of a convict for his premature release. Faced with this difficulty, the learned Counsel for the respondents has referred to the orders dated 11.11.1997 passed by the Hon''ble Supreme Court of India and orders dated 5.1.1998 and submitted that similar point had arisen in State of Haryana and others v. Somnath and the point is under adjudication before the Supreme Court and in these circumstances the petition should be dismissed. I do not agree with the contention of Shri Azad Singh because the order of the Hon''ble Supreme Court though has to be respected by all the subordinate courts of the country, yet this court is of the opinion that the order of the Hon''ble Supreme Court may not come to the rescue of the respondents on account of the peculiar facts of this case. Earlier Raj Kumar filed a petition seeking his premature release mainly on the ground that the instructions applicable on the date of his conviction should be the guiding factor for releasing him prematurely. That Crl. Misc. No. 16450M of 1997 titled Raj Kumar v. State of Haryana was disposed of by Hon''ble Mr. Justice S.C. Malte on merits vide his judgment dated 2.9.1997 and it was held as follows :

".....Obviously, therefore, the case of the petitioner deserve to be considered in the light of those instructions insofar as it pertains to the period of remission available to him....."

It was further observed by His Lordship in the concluding portion of the order dated 2.9.1997 as follows :

"....Needless to state that these two decisions of this Court are binding on the jail authorities. It is, therefore, directed that the case of the petitioner for grant of remission and premature release be considered in the light of annexures P5 and P6 and the decisions referred to above. The case of the petitioner should be considered within two months from the date of the receipt of this order...."

The petitioner relied upon a judgment dated 20.11.1996 Dilbagh Singh v. Haryana in Crl. Misc. No. 16012 of 1996. After considering this judgment His Lordship vide orders dated 2.9.1997 passed the order. The order is inter parties and was supposed to be respected by the State. The State has not challenged this order before the Hon''ble Supreme Court. Even if it is assumed for the sake of argument that this order is not tenable in the light of the latest instructions of the State Government, still this court is of the opinion that so long this decision, which is inter parties and has adjudicated a controversy finally, is not set aside, the latest instruction issued by the State Government cannot supersede this judgment dated 2.9.1997 which was supposed to be respected.

In these circumstances, the impugned orders Annexures P5 and P6 cannot be sustained in the eyes of law and are hereby set aside. The petition is allowed in the above terms and directions are given to the respondent authorities to again reconsider the case of the petitioner for premature release by applying the instruction dated 27.2.1984, which were enforceable on the date of the conviction. This Court expects that necessary orders shall be passed by respondentauthorities within two months from the receipt of the copy of this order.