Convict Who Repeatedly Raped Minor Stepdaughter Shouldn't Be Entitled To Premature Release: Punjab & Haryana High Court

The Punjab & Haryana High Court has denied pre-mature release to a rape convict, who impregnated his minor step-daughter as a result of committing repeated sexual assault on her.

While refusing to grant the relief, Justice Nidhi Gupta noted that as per the 1991 policy applicable for pre-mature release to the convicts in Chandigarh, repeated rape with the minor victim "is not included in the list of 'heinous crime' as defined in the Policy for purposes of premature release."

"The State may consider revisiting the same to provide for cases such as the present one where the petitioner has been convicted for the repeated rape over several years (from 2004 to 2008), of his minor 12-year-old stepdaughter", said the Court.

It added that the deficiency in the Policy dated 8.7.1991 needs to be addressed, and in cases of heinous offences such as the present one, it may be recommended that prisoners should not be held entitled to premature release.

The Court was hearing the plea under Section 482 CrPC of a rape convict, seeking issuance of a writ in the nature of Certiorari for quashing the impugned order passed by the Under Secretary Home, for Home Secretary Chandigarh Administration, UT Chandigarh whereby the case of the petitioner for premature release has been rejected. He also sought directions to release him on the ground that he had already undergone the required sentence as per Policy dated 08.07.1991.

The petitioner was convicted and sentenced to undergo life imprisonment in 2009  under Section 376 IPC at Chandigarh, for repeatedly committing rape with his 12-year-old minor stepdaughter during the years 2004 to 2008.

Later, the minor prosecutrix had given birth to a girl child. As per the DNA report, the petitioner was found to be the biological father of the child born to the prosecutrix.

As such, the petitioner was convicted as above and a fine of Rs.5 lakh was imposed as compensation to be paid to the prosecutrix under Section 357(3) of Cr.P.C. Against the judgment, the petitioner filed an appeal which was dismissed by the High Court in 2014.

The counsel for the petitioner argued that he is entitled for premature release as per policy dated 08.07.1991 issued by Government of Punjab, Department of Home Affairs and Justice applicable to UT Chandigarh, as per which where death sentence has been commuted to life imprisonment, such cases are to be considered after undergoing period of 14 years actual sentence and with remission of 20 years and in case of heinous crime, case of the convict would be considered after undergoing period of 12 years of actual sentence and 8 years with remission.

After examining the submissions, the Court noted that in the order passed by the Secretary Home, UT, Chandigarh has considered the entire relevant facts such as the period of sentence undergone by the petitioner, as also the report of the Inspector General of Prisons, UT, as also the heinous nature of the crime committed by the petitioner, and then taken the impugned decision.

Justice Gupta observed that merely because the Government has thought it fit to concur with the opinion of the Additional Sessions Judge, "does not lead to the inference that the Government has exercised its discretion incorrectly."

Furthermore, the Court said that just because he has undergone 'X' number of years of the awarded sentence, does not automatically entitle him for remission of the remaining period. It is an established canon of justice that 'life sentence' in law, implies imprisonment for the entire natural life of the convict, till his last breath.

"Moreover, the power conferred under Section 432 CRPC has to be exercised with the utmost caution. The accused is convicted and sentenced after detailed deliberation and analysis, and therefore, the sentence so imposed by judicial order cannot be truncated mechanically by way of an administrative/executive order," it added.

The judge clarified that it is to be borne in mind that it is not the 'right' of a convict that his sentence be remitted. The only right which can be claimed by a convict is that his application for remission of sentence be considered by the concerned State authorities.

Justice Gupta also noted that in the present case, a 12-year-old girl was impregnated by her stepfather. "The trauma undergone by the minor victim cannot even begin to be imagined. Not only was the victim subjected to violation of the worst kind, that too by a father like figure in whom the minor child would normally repose trust, but the victim was also forced to become a mother while still a minor herself," the Court said.

Adding that as per 1991 policy repeated rape with a minor victim is not included in the list of 'heinous crimes for the purpose of premature release, the Court said, that the deficiency in the Policy dated 8.7.1991 needs to be addressed, and in cases of heinous offences such as the present one, it may be recommended that prisoners should not be held entitled to premature release.

The judge referred to the Policy in force in the State of Tamil Nadu.

Reliance was placed on the Division Bench judgment of the Madras High Court in the case of P.V. Bakthavatchalam Vs. State of T.N. to underscore that restriction on premature release for heinous offences is constitutionally valid.

In the light of the above, the plea was dismissed.

Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 119

Tushar Wadhwa, Advocate for the petitioner.