THE PUNJAB and Haryana High Court on Tuesday directed the Haryana government to consider the feasibility of drafting a fresh policy for premature release of life convicts in the state, particularly with respect to the Governor’s powers under Article 161 . The exercise will be completed within three months, the court ordered.
“…any such policy…would be required to be thrashed threadbare and final decision would be taken in consultation with Governor,” Justice Gurvinder Singh Gill said in a judgment pronounced Tuesday in a case of a lifer from Gurgaon, who was convicted in 2010 for murder.
Justice Gill in the judgment interpreted the policies issued in Haryana since 1987 in exercise of powers under 432 and 433 CrPC — which pertain to government, and Article 161 — which gives Governor the powers in respect of grant of remissions to convicts. The government in 2008 had issued a policy superseding all earlier policies including the one issued in 2002 for use of powers under Article 161.
A murder convict — serving life imprisonment — under the 2008 policy has to complete an actual sentence of 14 years and a total of 20 years of sentence including remissions for release to come in consideration for premature release. Under the 2002 policy, the person convicted for life but not falling under special categories could be released after completion of 10 years’ actual sentence and a total 14 years’ sentence including remissions. The Gurgaon convict was seeking application of the 2002 policy in his case.
“The fact that notification dated 13.08.2008 has not been set aside till date, rather leads to a situation where there would be no specific guidelines for consideration of cases for exercise of powers under Article 161…especially for those convicted after 13.08.2008. In such a scenario, each case would have to be considered individually, depending upon the circumstances and exigencies of each case,” the court observed.
Stating that the anomaly would become visible now in 2020 as the persons convicted in 2008 and onwards would now come in the consideration zone as they would have completed about 10 years of actual confinement, the court observed that the 2008 policy issued by government cannot be made applicable in case a convict’s request is to be examined for exercise of powers of Governor under Article 161 and further noted that persons convicted prior to 2008 continue to be governed by the earlier policies.
“While the powers of the Governor under Article 161 are unfettered, it is expected that there is some uniformity and consistency in exercise of such powers so that it does not smack of any arbitrariness even though the same may be involuntary,” the court said in the judgment, adding there are virtually no such guidelines for Article 161 in existence as earlier policies stand scrapped in 2008, but added that there is no bar on exercise of powers by the Governor.
Directing the state to consider the feasibility of having a policy with retrospective operation too, the court also ordered that the government can continue exercising powers in terms of 2008 policy till any such decision is taken, “but while strictly adhering to the restrictions imposed under 433-A C.r.P.C”, the order reads, while referring to the provisions regarding the requirement of minimum 14 imprisonment in certain type of cases.
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