Anil Kumar vs The State Of Haryana

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRL.) NO. 46 OF 2022

Anil Kumar ...Petitioner(s)

Versus

State of Haryana & Ors. …Respondent(s)

JUDGMENT

M.R. SHAH, J.

1. By way of this writ petition filed under Article 32 of the

Constitution of India, the petitioner – convict in the State

of Haryana has prayed for order or direction of quashing

and setting aside the decision of the High-Powered

Committee dated 09.05.2021 constituted as per this

Court’s order dated 23.03.2020 passed in Suo-Moto W.P.

(C) No. 1/2020, in so far as it states that the period of

release on interim parole shall not be counted towards the

Signature Not Verified total period of the sentence of the convict prisoner. Digitally signed by Neetu Sachdeva Date: 2023.03.24 16:35:11 IST Reason: 1

2. Ms. Ritu Kumar, learned counsel appearing on behalf of

the petitioner has vehemently submitted that the petitioner

was released on emergency parole pursuant to the decision

taken by the High-Powered Committee constituted as per

the directions issued by this Court in SWM (C) No.

1/2020. It is submitted that this Court as such directed in

the subsequent orders that those convicts who were

released on emergency parole earlier pursuant to the

decision of the High-Powered Committee shall not be asked

to surrender until further orders. It is submitted that

therefore, the petitioner was released pursuant to the

decision of the High-Powered Committee and not on any

application made by the petitioner and/or under Section

3(3) of the Haryana Good Conduct Prisoners (Temporary

Release) Act, 1988 (hereinafter referred to as the Act,

1988). It is submitted that therefore, subsequently in its

meeting held on 09.05.2021, the High-Powered Committee

could not have taken the decision that the period of release

on interim/special parole shall not be counted towards the

total period of the sentence of the prisoner/convict.

2 2.1 It is submitted that so far as some of other States are

concerned, the period of release on interim parole has been

directed to be counted towards the total period of sentence

of the convict/prisoner.

2.2 It is further submitted by learned counsel appearing on

behalf of the petitioner that if the petitioner would not have

been released on interim parole and would have undergone

the sentence in that case after certain period of sentence

he would have been entitled to the remission. It is further

submitted that as the petitioner was released on interim

parole and if the said period is not counted towards the

total period of sentence in that case his right to claim the

remission would further be extended which may be

detrimental to the interest of the petitioner.

2.3 Making the above submissions, it is prayed to issue the

writ for which it is prayed for.

3. Present writ petition is vehemently opposed by Ms.

Bansuri Swaraj, learned AAG appearing on behalf of the

State.

3 3.1 It is vehemently submitted by learned counsel appearing

on behalf of the State that in the present case the

petitioner – convict has been convicted for the offences

under Sections 302/34 of IPC and sentenced to undergo

life imprisonment. It is submitted that the conviction and

sentence awarded by the learned Trial Court has been

upheld up to this Court and the SLP has been dismissed.

It is submitted that therefore, the petitioner has to

undergo the life imprisonment in accordance with law and

the sentence imposed by the learned Trial Court.

3.2 It is submitted that thereafter, the petitioner has been

released on emergency parole/temporary parole pursuant

to the decision of the High-Powered Committee constituted

as per the directions issued by this Court in SWM (C) No.

1/2020, due to the Covid-19 pandemic. It is submitted

that while granting the temporary parole/emergency parole

initially the High-Powered Committee in the minutes of the

meeting held on 12.11.2020 specifically observed in

paragraph 4 that no specific directions for not counting

period of special parole towards sentence are required to

4 be made in view of statutory provisions and authorities are

directed to decide the said issue in accordance with

statutory provisions. It is submitted that as per Section

3(3) of the Act, 1988, the period of temporary

release/parole shall not be counted towards the total

period of sentence of a prisoner. It is submitted that

thereafter when the emergency parole/temporary parole

has been further extended pursuant to the subsequent

directions issued by this Court, the High-Powered

Committee has specifically provided as per note in the

minutes of the meeting that the period of release on

interim parole shall not be counted towards the total

period of sentence of the convict – prisoner which as such

in consonance with the statutory provisions. It is

submitted that therefore, the decision of the High-Powered

Committee in its meeting held on 09.05.2021 on the period

of release on interim parole shall not be counted towards

the total period of the sentence of the prisoner/convict is

neither illegal and nor contrary to the statutory provisions.

5 3.3 It is further submitted that the issue whether the period of

parole is to be counted towards the total period of the

sentence of the convict – prisoner is now not res-integra in

view of the recent decision of this Court in the case of

Rohan Dhungat Etc. Vs. The State of Goa & Ors. Etc.

(Special Leave Petition (Crl) Nos. 12574-77/2022):

(2023 SCC OnLine SC 16). It is submitted that after

considering the law on the point and taking into

consideration the earlier decisions, this Court has

specifically observed and held that period during which a

convict is released on parole shall not be counted while

considering the actual imprisonment. It is submitted that

in the case of Avtar Singh Vs. State of Haryana (2002) 3

SCC 18, this Court considered the constitutional validity

of Section 3(3) of the Act, 1988 and while holding the

constitutional validity, it is observed by this Court that by

a valid legislative act the period of temporary release on

parole can be denied while counting the actual sentence

undergone by the convict – prisoner. It is submitted that

subsequently in the case of State of Haryana & Ors. Vs.

Mohinder Singh (2000) 3 SCC 394, this Court has

6 specifically observed and held that the period of parole

should not be counted towards the total period of sentence

as when a prisoner is on parole his period of release does

not count towards the total period of sentence.

3.4 Making the above submissions, it is prayed to dismiss the

present writ petition.

4. The short question which is posed for the consideration of

this Court is whether a convict/prisoner who has been

released on temporary parole/emergency parole, pursuant

to the decision of the High-Powered Committee constituted

as per the orders passed by this Court in SWM (C) No.

1/2020, such parole period shall be counted towards the

total period of sentence of the convict – prisoner?

4.1 At the outset, it is required to be noted that so far as the

State of Haryana is concerned as such the temporary

release on parole is governed by the statutory provisions of

the Haryana Good Conduct Prisoners (Temporary Release)

Act, 1988. Section 3(3) of the Act, 1988, which specifically

provides that the period of temporary release shall not be

counted towards the total period of the sentence of a

7 prisoner. Thereafter, the High-Powered Committee

constituted pursuant to the directions issued by this Court

directed the convicts/prisoners to be released on

temporary parole/emergency parole in the minutes of the

meeting held on 12.11.2020 specifically observed that no

specific directions for not counting period of special parole

towards sentence are required to be made in view of the

statutory provisions and the authorities are directed to

decide the issue in accordance with statutory provisions.

That thereafter, when the emergency parole has been

further extended pursuant to the subsequent orders

passed by this Court, the minutes/note of the meeting

specifically provides that the period of release pursuant to

the decision of the High-Powered Committee shall not be

counted towards the total period of sentence of the

prisoner/convict. As such the said note is absolutely in

consonance with the statutory provision, namely, Section

3(3) of the Act, 1988.

5. At this stage, it is required to be noted that vires of Section

3(3) of the Act, 1988 was challenged before this Court and

8 by judgment and order passed in Avtar Singh (supra), this

Court has upheld the vires of Section 3(3) of the Act, 1988. 5.1 Subsequently, in the case of Mohinder Singh (supra), this

Court has specifically observed and held that the period of

parole shall not be counted towards the total period of

sentence. It is observed and held that when a prisoner is

on parole his period of release does not count towards the

total period of sentence.

5.2 In the recent decision of this Court in the case of Rohan

Dhungat (supra), this Court had an occasion to consider

the similar issue/question and after taking into

consideration the object and purpose of parole, it is

observed and held by this Court that period of release on

parole shall not be counted for the purpose of considering

the actual imprisonment and the said period of parole has

to be excluded. In the case of Rohan Dhungat (supra),

this Court has observed in paragraph 10 as under: -

“10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted

9 number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded. We are in complete agreement with the view taken by the High Court holding so.”

6. In view of the above and when the petitioner has been

convicted for the offences under Sections 302/34 of IPC

and sentenced to undergo life imprisonment, he has to

undergo the said sentence actually subject to any

rule/policy in respect of remission and the period during

which he is released on emergency/interim parole has to

be excluded for the purpose of actual imprisonment. Under

the circumstances, the petitioner is not entitled to claim

any relief prayed in the instant writ petition. Under the

circumstances, the present petition lacks merits and the

same deserves to be dismissed and is accordingly

dismissed.

………………………………….J. [M.R. SHAH]

NEW DELHI; ………………………………….J.

10 MARCH 24, 2023 [C.T. RAVIKUMAR]

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