The legal position with regard to the power of the trial Courts to award
sentences with riders has been made explicit in the Constitution Bench
judgment of the Supreme Court in V. Sriharan (supra) in paras 103 to 105,
in the following words:
“103. That apart, in most of such cases where death
penalty or life imprisonment is the punishment imposed
by the trial Court and confirmed by the Division Bench of
the High Court, the concerned convict will get an
opportunity to get such verdict tested by filing further
appeal by way of Special Leave to this Court. By way of
abundant caution and as per the prescribed law of the
Code and the criminal jurisprudence, we can assert that
after the initial finding of guilt of such specified grave
offences and the imposition of penalty either death or life
imprisonment when comes under the scrutiny of the
Division Bench of the High Court, it is only the High
Court which derives the power under the Penal Code,
which prescribes the capital and alternate
punishment, to alter the said punishment with one
either for the entirety of the convict's life or for any
specific period of more than 14 years, say 20, 30 or so
on depending upon the gravity of the crime committed
and the exercise of judicial conscience befitting such
offence found proved to have been committed.
104. We, therefore, reiterate that, the power derived from
the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such
specified offences can only be exercised by the High
Court and in the event of further appeal only by the
Supreme Court and not by any other Court in this
country. To put it differently, the power to impose a
modified punishment providing for any specific term
of incarceration or till the end of the convict's life as
an alternate to death penalty, can be exercised only by
the High Court and the Supreme Court and not by
any other inferior Court.
11. Thus, after the judgment of the Constitution Bench of the Supreme
Court in V. Sriharan (supra), it is not open to a court inferior to the High
Court and Supreme Court, while awarding a sentence of life imprisonment
under the Indian Penal Code to further provide for any specific term of
incarceration, or till the end of a convict’s life, or to direct that there shall
be no remission, as an alternate to the death penalty. That power is
available only with the High Courts and the Supreme Court. Consequently,
the trial Court, in the instant case, while awarding the Petitioner the
sentence of rigorous imprisonment for life could not have added the riders
that it should be for the rest of her natural life or that she would not be
entitled to any remission.
IN THE HIGH COURT OF PUNJAB AND
HARYANA AT CHANDIGARH
CRWP-5238-2020 (O&M)
Date of Decision: 19th August, 2020
SAVITRI Vs STATE OF HARYANA
CORAM: JUSTICE S. MURALIDHAR
JUSTICE AVNEESH JHINGAN
Author: Dr. S. Muralidhar, J.
1. This is a petition challenging the order dated 5th June, 2020 of the
Divisional Commissioner, Hisar, (‘Divisional Commissioner’) rejecting the
Petitioner's application for temporary release/parole, on the grounds that
the trial Court i.e. the Court of the Additional Sessions Judge, Hisar, has by
an order dated 16th October 2018 awarded her a sentence of imprisonment
for life i.e. whole of her natural life, without any remission, consequent to
her conviction for the offences under Sections 302, 343 and 120-B of the
Indian Penal Code in FIR No. 429 of 2014 registered at Police Station
Barwala.
2. It has been argued by Mr. Arjun Sheoran, learned counsel for the
Petitioner, that the reasons given in the impugned order dated 5th June,
2020 of the Divisional Commissioner are contrary to the law laid down by the Supreme Court in Union of India v. V. Sriharan @ Murugan (2016) 1
SCC 1. In other words, he submitted that the trial Court could not have
while awarding the sentence directed that the Petitioner would not be
entitled to any remission and further that her request for temporary
release/parole could not have been refused on that ground. He pointed out
that the Petitioner had recently lost her husband and her two sons had
abandoned her. He referred to the photographs enclosed with the petition to
show that the Petitioner’s house needed urgent repairs for which reason she
had sought parole for four weeks.
3. On the other hand, Mr. Ankur Mittal, learned Additional Advocate
General, Haryana, to begin with, pointed out that the Petitioner sought
parle for a period of four weeks on the ground that her house needed
repairs and this request was referrable to Section 3 (1) (d) of the Haryana
Good Conduct Prisoners (Temporary Release) Act, 1988 (‘Act’) read with
Rule 8 (iii) of the Haryana Good Conduct Prisoners (Temporary Release),
Rules, 2007 (‘Rules’). He further pointed out that in terms of Rule 4 of the
Rules, the Petitioner shall be entitled to apply for parole only after
completing one year of imprisonment after conviction and has earned her
first annual god conduct remission (AGCR) under the Act. According to
Mr. Mittal since the sentence awarded by the trial Court specifically states
that the Petitioner should serve life sentence for her entire natural life,
without remission, the question of her being eligible for AGCR would not
arise and consequently, she would be ineligible to be considered for parole.
In this context he referred to a recent judgment dated 3rd July, 2020 of a learned Single Judge of the High Court of Delhi in Sanjay Kumar Valmiki
v. State [W.P.(Crl.) 2049 and 682 of 2019], and submitted that the
Divisional Commissioner cannot be stated to have committed any error as
long as the order on sentence passed by the trial Court, and which is under
appeal before this Court, stood.
4. On the last date of hearing, Mr. Sheoran, learned counsel for the
Petitioner had sought time to place on record copy of an order passed by
the Superintendent, Central Jail, Ambala granting parole to one of the coconvicts
in a connected FIR.
5. The Petitioner has, along with an application CRM-W-731-2020, placed
on record a copy of an order dated 7th January, 2020 passed by
Superintendent, Central Jail, Ambala granting parole/temporary release to
co-convict Pawan in a connected FIR No. 430 dated 19th November, 2020,
registered at Police Station, Barwala, Hisar. It has been pointed out that
Pawan too had been sentenced to undergo rigorous imprisonment for life
without remission till natural death and yet, in his case, not only was parole
granted, but, in fact, now stands extended as a result of the orders of the
High Powered Committee (‘HPC’).
6. The above submissions have been considered. To being with, the
applicable statutory provision and the Rules may be referred to. Sections 3
(1) (d) and 10 (2) (d) of the Act which are relevant for the present purpose
read as under:
“3. Temporary release of prisoners on certain grounds. - (1) The
State Government may, in consultation with the District Magistrate or
any other officer appointed in this behalf, by notification in the
Official Gazette and subject to such conditions and in such manner as
may be prescribed, release temporarily for a period specified in subsection
(2), any prisoner, if the State Government is satisfied that –
……….
(d) it is desirable to do so for any other sufficient cause.”
“10. Power to make rules. The State Government may, by
notification, by notification make rules for carrying out the purposes
of this Act.
(2) In particular, and without prejudice to the generality of the
foregoing power, such rules may provide for—
…………
(d) the conditions on which and the manner in which prisoners may be
released temporarily under this Act.”
7. Rules 4 and 8 (iii) of the Rules, which are also relevant, read thus:
“4. Eligibility. Section 10(2)(d). - (1) A prisoner shall be entitled to
apply for parole only after he has completed one year of his
imprisonment after conviction and has earned his first annual good
conduct remission under the Act.”
“8. Sufficient cause. sections 3(1)(d) and 10(2)(d). - Under section
3(1)(d) "sufficient cause" may be considered from amongst the
following reasons, namely:-
…………
(iii) house repairs/new construction of house owned by the convict.
Parole for house repair shall be granted only once, in three years;”
8. It is thus seen that in terms of Rule 4 and 8 (iii) of the Rules read with
Section 3 (1) (d) of the Act the earning of the first AGCR, apart from
completing one year of imprisonment post conviction, is a must. It is also
correct that the sentence awarded to the Petitioner by the trial Court in the
instant case is one of “rigorous imprisonment for life, without any
remission.” She has been, along with her co-convicts, “sentenced to
imprisonment for life of their natural death (sic)” meaning thereby that she
should remain in prison for the rest of her natural life. The Divisional Commissioner who passed the impugned order rejecting the Petitioner’s
request for parole was, therefore, constrained to apply Rule 4 in light of the
sentence awarded by the trial Court.
9. The question whether the trial Court could have passed such a sentence
would undoubtedly be one of the questions that would arise for
consideration in the Petitioner’s criminal appeal against her conviction and
sentence which is pending before this Court. However, it is unlikely that
the said appeal, which would have to be heard with the connected appeals
of her co-convicts, can be taken up for hearing in the near future. Further,
this would mean that till such question is decided, the authorities would be
precluded from considering any of her applications for release on parole. It
would be unreasonable, in the circumstances, for the examination of this
question to be postponed to the hearing of the appeal, particularly since, as
will be seen hereafter, the legal position in this regard is clear.
10. The legal position with regard to the power of the trial Courts to award
sentences with riders has been made explicit in the Constitution Bench
judgment of the Supreme Court in V. Sriharan (supra) in paras 103 to 105,
in the following words:
“103. That apart, in most of such cases where death
penalty or life imprisonment is the punishment imposed
by the trial Court and confirmed by the Division Bench of
the High Court, the concerned convict will get an
opportunity to get such verdict tested by filing further
appeal by way of Special Leave to this Court. By way of
abundant caution and as per the prescribed law of the
Code and the criminal jurisprudence, we can assert that
after the initial finding of guilt of such specified grave
offences and the imposition of penalty either death or life
imprisonment when comes under the scrutiny of the
Division Bench of the High Court, it is only the High
Court which derives the power under the Penal Code,
which prescribes the capital and alternate
punishment, to alter the said punishment with one
either for the entirety of the convict's life or for any
specific period of more than 14 years, say 20, 30 or so
on depending upon the gravity of the crime committed
and the exercise of judicial conscience befitting such
offence found proved to have been committed.
104. We, therefore, reiterate that, the power derived from
the Penal Code for any modified punishment within the
punishment provided for in the Penal Code for such
specified offences can only be exercised by the High
Court and in the event of further appeal only by the
Supreme Court and not by any other Court in this
country. To put it differently, the power to impose a
modified punishment providing for any specific term
of incarceration or till the end of the convict's life as
an alternate to death penalty, can be exercised only by
the High Court and the Supreme Court and not by
any other inferior Court.
105. Viewed in that respect, we state that the ratio laid
down in Swamy Shraddananda [(2008) 13 SCC 767] that
a special category of sentence; instead of Death; for a
term exceeding 14 years and put that category beyond
application of remission is well founded and we answer
the said question in the affirmative. We are, therefore, not
in agreement with the opinion expressed by this Court in
Sangeet and Anr. v. State of Haryana, 2013 (2) SCC 452
that the deprival of remission power of the Appropriate
Government by awarding sentences of 20 or 25 years or
without any remission as not permissible is not in
consonance with the law and we specifically overrule the
same.” (emphasis supplied)
11. Thus, after the judgment of the Constitution Bench of the Supreme
Court in V. Sriharan (supra), it is not open to a court inferior to the High
Court and Supreme Court, while awarding a sentence of life imprisonment
under the Indian Penal Code to further provide for any specific term of
incarceration, or till the end of a convict’s life, or to direct that there shall
be no remission, as an alternate to the death penalty. That power is
available only with the High Courts and the Supreme Court. Consequently,
the trial Court, in the instant case, while awarding the Petitioner the
sentence of rigorous imprisonment for life could not have added the riders
that it should be for the rest of her natural life or that she would not be
entitled to any remission.
12. This Court also notes that in the judgment dated 3rd July, 2020 of the learned Single Judge of the High Court of Delhi in Sanjay Kumar Valmiki v. State (supra) it has been noted to begin with that in the appeal filed by
that prisoner against his conviction and sentence, the Division Bench (DB)
of that High Court had in its judgment dated 24th May 2018 in Criminal
Appeal No. 773 of 2015 confirmed his conviction. As far as the sentence
was concerned it observed that in view of law laid down in V. Sriharan
(supra) “ it is clear that while the learned ASJ was empowered to award, to
the Appellant, sentence of imprisonment for life, he did not possess the
jurisdiction to caveat the said punishment to the further stipulation to the
effect that, for 25 years, the appellant would not be entitled to seek
remission.” Nevertheless, the DB in the exercise of its powers as a High
Court awarded the same sentence.
13. The learned Single Judge of the High Court of Delhi in Sanjay Kumar
Valmiki v. State (supra) drew a distinction between the request for grant of
parole and one for furlough and noted that the request of Sanjay Kumar
Valmiki in that case was for furlough and not parole. The judgment then
proceeded to discuss the requirement under the governing statute and Rules applicable to Delhi (which are more or less similar to the ones applicable in
Haryana) of the earning of AGCR as a pre-condition to the grant of parole.
The judgment concluded that while, in the circumstances where it was the
High Court that had awarded the modified sentence of imprisonment for
life for a minimum of 25 years without remission, the rejection of the plea
for furlough was justified, it was clarified (in para 21) that the petitioners
there would “be entitled to seek parole even for re-establishing social and
family ties.”
14. Therefore, in terms of the law explained by the Constitution Bench of
the Supreme Court in V. Sriharan (supra), the trial Court in its order dated
16th October 2018 awarding the sentence to the Petitioner of rigorous
imprisonment for life was in error in adding the rider that it would be for
the remainder of her natural life and without any remission.
15. With this being the clear legal position, the impugned order dated 5th
June 2020 passed by the Divisional Commissioner, Hisar rejecting the
Petitioner's application for parole on the above grounds is legally
unsustainable and is hereby, set aside. The Petitioner’s application for
parole is remitted to the Divisional Commissioner, Hisar to consider afresh
the Petitioner's application for parole in accordance with law. The further
ground pointed out by the Petitioner that Pawan, a convict in the related
FIR, has been granted parole will be taken note of by the Divisional
Commissioner while passing an order afresh on the Petitioner’s application
for parole. The fresh order be passed not later than 31st August, 2020 and communicated to the Petitioner forthwith and in any event not later than 2nd September 2020. If aggrieved by such order, it will be open to the Petitioner to seek appropriate remedies available to her in accordance with law. The petition is disposed of in the above terms.
16. The Court is informed that notwithstanding the clear legal position
explained in V. Sriharan (supra), the trial Courts have been adding riders
to orders on sentence passed by them similar to what the trial Court did in
this case. Accordingly, the Court directs that a soft copy of this judgment
together with the judgment of the Constitution Bench of the Supreme Court
in V. Sriharan (supra) be circulated by the Chandigarh Judicial Academy
through email to all the judicial officers as well as the Jail authorities in the
States of Punjab and Haryana and the Union Territory of Chandigarh.
(S. MURALIDHAR)
JUDGE
(AVNEESH JHINGAN)
19th AUGUST, 2020
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