Denying Premature Release By Citing Crime For Which Accused Already Punished Is Double Jeopardy, Good Behaviour Should Be Considered: P&H High Court

The Punjab and Haryana High Court has held that citing the crime for which an accused is already punished for denying premature release would amount to "double jeopardy."

Justice Harpreet Singh Brar said, "It appears that certain petitioners were denied premature release on the ground that they were likely to be a threat to the society. However, the reasons for concluding this are conspicuously absent from the orders. The petitioners have already been punished once for the crime they have been convicted for and citing the same as a means to deny them premature release would amount to double jeopardy. There is no reason to deny premature release to petitioners who have maintained good behaviour and availed multiple paroles and furloughs and surrendered on time, without recording of any untoward incidents."

The Court further criticised the "practice of arbitrarily categorising convicts as threats to society." "The entire edifice of exercise of judicial or quasi-judicial power rests on the foundation of giving reasoned and detailed orders. It is a fundamental principle of natural justice and ensures that there is proper and due application of mind while exercising said power. Therefore, the practice of arbitrarily categorising convicts as threats to society or indiscriminately deferring their cases for premature release needs to be strongly discouraged. It is expedient that the competent authority does not act in a ritualistic fashion and application of mind is discernable," it said.

Justice Brar opined that, "It should not be assumed that all convicts when released will unleash revenge onto their prosecutors. The convict's conduct in jail, state of mind, gravity of the offence, social background and behaviour while on parole must be duly considered before deciding upon the question of his premature release."

Reference was also made to Justice Krishna Iyer's quote, who said that "Social Justice is the signature tune of our Constitution and the little man in peril of losing his liberty is the consumer of Social Justice."

The Court was hearing a batch of petitions, seeking  directions to reconsider the application for premature release. The applicants were convicted in different murder cases and serving sentence in jail.

Considering the submissions, the Court observed that, "The State is duty bound to act fairly and to proceed according to the policy formulated by it in a manner that does not discriminate between similarly situated persons in absence of an intelligible differentia. Non-arbitrariness is a facet in Article 14 of the Constitution of India and the State and all its agencies are required to abide by it."

It added that the State cannot indulge in cherry picking and only provide the concession of premature release to a select few out of the pool of similarly situated convicts and such approach is highly inequities.

"While the petitioners herein have committed grave and serious offences, once a duly enacted policy is in existence, it must be honoured and applied to each case in its letter and spirit. The theory of reformation and rehabilitation that emerged in the 18th century aims at separating the criminal from the crime and compels us to look beyond the one fateful act committed by him," the Court said.

Adding that in a civilised society like ours, it would be truly unfortunate if an offender is not given the opportunity to realise and fully fathom his mistakes and channel that awareness into making fruitful contributions in society, the Court said "the peno-correctional institutes must not only be looked at as a place where punishment is carried out, but also a place of rehabilitation."

In the light of the above the Court concluded the following:

(i) Involvement in other cases or jail offences.

In view of the law laid down by the Apex Court of India in cases including  Lila Singh v. State of Punjab & others 2014, involvement of the convict in other cases or jail offences cannot be a ground to deny the concession of premature release.

(ii) Premature release of convicts would pose threat to security.

In case, the convict has been periodically released on furlough/parole and during his release, he did not indulge in any such activity which disturbed the public peace or posed a threat to the society, rejection o his application for premature release on the ground that same would pose to be a serious threat to the society, is not sustainable.

(iii) Deferred in the absence of any specific provision in the applicable policy or rejected/deferred on the ground of offences being grave and serious in nature.

In the absence of any specific provision in the applicable policy at the time of conviction of the convict, the competent authority cannot act arbitrarily and defer the cases of prisoners for premature release especially by applying the rigours of change of policy, in view of the law laid down in Rajkumar v. State of UP, 2023 SC.

(iv) Opinion of Presiding Officers.

The concession of premature release cannot be denied because the case was not recommended by the Presiding Officer as his opinion is not binding. The Presiding Officers are required to scrupulously follow the instructions issued by the Registrar.

Noting that there are numerous petitions seeking premature release of the convicts in terms of applicable policy whose cases have been rejected on the grounds mentioned above, the following directions are issued:-

a) Secretaries, District Legal Services Authority across the Punjab and Haryana and the Union Territory of Chandigarh are directed to visit the jail premises periodically and identify such convicts undergoing life imprisonment, who are eligible for premature release in terms of applicable policy at the time of their conviction, but their cases were rejected on the grounds listed above.

(b) Thereafter, family members of the convicts, who are eligible for premature release, will be called upon by the Secretaries, District Legal Services Authorities and would be informed about the directions issued by this Court and provide legal assistance in filing appropriate applications for expeditious disposal their cases for premature release.

(c) If the case of any convict is pending consideration with the competent authority for more than six months, he is required to be released on interim bail, in view of the direction issued by this Court in Pawan Kumar v. D.K. Tiwari and another.

While disposing of the pleas, the Court set aside the order of rejection of premature release application and directed the authorities to "consider the cases afresh in three weeks."

Appearance: Aditya Yadav, Advocate for the petitioner in CRWP No.8232 of 2022.

Varinder Singh Rana, Advocate for the petitioners) in CRWP Nos.5189, 4607, 711 of 2023 and 428 of 2024.

Rahul Deswal, Advocate for the petitioners) in CRWP Nos.7000 of 2022 and 8889 of 2023.

Geeta Sharma, DAG, Haryana.

Akshay Jindal, Advocate Amicus Curiae.

Citation: 2024 LiveLaw (PH) 42

Title: Pohlu @Polu Ram v. State of Haryana and others

Click here to read/download the order