ANIL KUMAR versus STATE OF HARYANA & ORS.

[2023] 3 S.C.R. 666

[2023] 3 S.C.R.

ANIL KUMAR

STATE OF HARYANA & ORS.

(Writ Petition (Crl.) No. 46 of 2022)

BMARCH 24, 2023

[M. R. SHAH AND C. T. RAVIKUMAR, JJ.]

Haryana Good Conduct Prisoners (Temporary Release) Act,1988 – s.3(3) – Petitioner was released on emergency parole/temporary parole pursuant to the decision of the High-PoweredCCommittee constituted as per the orders issued by Supreme Court,due to the Covid-19 pandemic – Such parole period if shall becounted towards the total period of sentence of the petitioner –Held: No – In the State of Haryana, the temporary release on paroleis governed by the statutory provisions of the 1988 Act – s.3(3) ofDthe 1988 Act specifically provides that the period of temporary releaseshall not be counted towards the total period of the sentence of aprisoner – Thus, when the petitioner has been convicted for offencesu/s.302/34, IPC and sentenced to undergo life imprisonment, hehas to undergo the said sentence subject to any rule/policy in respectof remission and the period during which he is released onEemergency/interim parole has to be excluded for the purpose ofactual imprisonment – Petitioner not entitled to any relief prayed inthe writ petition – Penal Code, 1860 – ss.302/34 – Constitution ofIndia – Art. 32.

Rohan Dhungat Etc. v. The State of Goa & Ors. Etc.FSpecial Leave Petition (Crl) Nos. 12574-77/2022 :2023 SCC OnLine SC 16; State of Haryana & Ors. v.Mohinder Singh (2000) 3 SCC 394 : [2000] 1 SCR698 – relied on.

Avtar Singh v. State of Haryana (2002) 3 SCC 18 :G[2002] 1 SCR 1082 – referred to

Case Law Reference

CRIMINAL ORIGINAL JURISDICTION: Writ Petition(Criminal) No. 46 of 2022.

Under Article 32 of The Constitution of India.

Tushar Mehta, SG, Ms. Aishwarya Bhati, Balbir Singh, A.S.Gs.,Ms. Garima Prasad, Sr. A.A.G., Ms. Bansuri Swaraj, A.A.G., Mrs. AnkitaChoudhary, D.A.G., S. C. Verma, Sr. Adv., Ms. Ritu Kumar, Satya Mitra,Shreekant Neelappa Terdal, Dr. N. Visakamurthy, Ankur Talwar, Ms.Swati Ghildiyal, Rajat Nair, Ms. Ana Upadhyay, Ms. Manya Hasija, AkashSingh, Nihar Dharmadhikari, Ms. Sampriti Baksi, Dr. Monika Gusain,Manish Kumar, Vijay Kumar, Rahul Dev Singh, Vinod Sharma,M/s. Parekh & Co., Talha Abdul Rahman, Malak Manish Bhatt, Ms.Uttara Babbar, Ms. Sneha Kalita, Gaurav Agrawal, Vivek NarayanSharma, Ms. Mahima Bhardwaj, Ms. Laksha Bhavnani, ShubhamAwasthi, Pranshu Kausha, Rajeev Kumar Jha, Ram Kumar, T.L.V.Ramachari, Hitesh Kumar Sharma, Akhileshwar Jha, Ms. NiharikaDwivedi, Amit Kumar Chawla, T.N. Rama Rao, Ashok Reddy, G. N.Reddy, Ms. Jayshree Satpute, Prasanna S., Nirmal Kumar Ambastha,Ms. Ashmita Bisarya, Dr. Joseph Aristotle S., Shobhit Dwivedi,Ms. Nupur Sharma, Manendra Pal Gupta, Varun Varma, DhaneshIeshdhan, V. N. Raghupathy, Pukhrambam Ramesh Kumar, KarunSharma, Ms. Anupama Ngangom, Ms. Taruna Ardhendumauli Prasad,Shrirang B. Varma, Siddharth Dharmadhikari, Aaditya A. Pande, BharatBagla, Sourav Singh, M. Yogesh Kanna, Avijit Mani Tripathi, UpendraMishra, P.S. Negi, Krishnanand Pandeya, Nirnimesh Dube, SiddheshKotwal, Nihar Dharmadhikari, Ms. Sampriti Baksi, Neeraj Shekhar,Dr. Sumit Kumar, Ashutosh Thakur, Keshav Baheti, Chandra Pratap,Raj Bahadur Yadav, Harmeet Singh Ruprah, Anupam Raina, IrshadAhmad, G. M. Kawoosa, Ms. Palak Mittal, Shailesh Madiyal, Ms. SimranSadyora, Mohd. Farhan Khan, Vinod Sharma, Ms. Astha Sharma, SrisatyaMohanty, Sanjeev Kaushik, Ms. Mantika Haryani, Shreyas Awasthi,Himanshu Chakravarty, Ms. Ripul Swati Kumari, Bhanu Mishra,Ms. Muskan Surana, Ms. Supriya Juneja, Shibashish Misra, K. Rajeev,Maibam Nabaghanashyam Singh, Shridhar Y Chitale, Pranay Chitale,Ms. Mukti Chowdhary, Kanhaiya Singhal, Jasmeet S. Chadha, Prasanna,P. S. Sudheer, Rishi Maheshwari, Anne Mathew, Bharat Sood, Ms. ShrutiJose, Sandeep Singh, Subash Chandran, Sayooj Mohandas M,Ms. Kavitha Kt, Rakesh Kumar Singh, Ashok Anand, Samantha Padhan,Rajeev Ranjan, M/s. Venkat Palwai Law Associates, Ms. K. Enatoli

ASema, Ms. Limayinla Jamir, Amit Kumar Singh, Ms. Chubalemla Chang,Prang Newmai, Ms. Radhika Gautam, Mrs. Taruna Singh Gohil, MahfoozAhsan Nazki, Polanki Gowtham, Shaik Mohamad Haneef, T VijayaBhaskar Reddy, Ms. Rajeswari Mukherjee, Ms. Niti Richhariya, KvGirish Chowdary, Milind Kumar, Tapesh Kumar Singh, Mahesh Thakur,Maibam Nabaghanashyam Singh, Rishi Malhotra, M/s. Lambat &BLegiteam, Kishore Lambat, Ms. Kashmira Lambat, Sachin Pahwa,Ms. Suja Joshi, Sumeer Sodhi, Devashish Tiwari, Santosh Kumar - I,M/s. Arputham Aruna and Co, Avneesh Arputham, Ms. AnuradhaArputham, Ankit Sharma, Gaurav Khanna, Gurmeet Singh Makker, VinayArora, Sanjai Kumar Pathak, Arvind Kumar Tripathi, Mrs. Shashi Pathak,CAmrish Kumar, Nishe Rajen Shonker, Mrs. Anu K Joy, Alim Anvar, M.Shoeb Alam, G. Prakash, Ms. Binu Tamta, Manish Kumar, PrashantShrikant Kenjale, Nikhil Goel, Ms. Naveen Goel, Aditya Koshy Roy,Sibo Sankar Mishra, Sunil Mund, Niranjan Sahu, Debabrata Dash,Ms. Apoorva Sharma, Aravindh S., Ms. Uma Bhuvaneswari. C, Abbas.B, Sameer Abhyankar, Ms. Nishi Sangtani, Ms. Vani Vandana Chhetri,DSachin Patil, Narendra Kumar, Raghvendra Kumar, Anand Kumar Dubey,Ms. Rajlakshmi Singh, Sunil Saraogi, Apoorv Kurup, Ms. Nidhi Mittal,Vishnu Shankar Jain, Ms. Ranjeeta Rohatgi, Shuvodeep Roy, SaiShashank, Deepayan Dutta, S. Thananjayan, Ms. Mrinal Gopal Elker,Susheel Tomar, Sriharsha Peechara, Dhuvvuri Subrahmanya Bhanu, RajivEKumar Choudhary, Anoop Prakash Awasthi, Vivek Kumar Tiwari,Ms. Divya Dwivedi, Abhimanyu Tewari, Ms. Eliza Bar, Advs. for theappearing parties.

By Courts Motion

Applicant-in-personF

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. By way of this writ petition filed under Article 32 of theConstitution of India, the petitioner – convict in the State of Haryana hasGprayed for order or direction of quashing and setting aside the decisionof the High-Powered Committee dated 09.05.2021 constituted as perthis 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 paroleshall not be counted towards the total period of the sentence of theconvict prisoner.H

2. Ms. Ritu Kumar, learned counsel appearing on behalf of thepetitioner has vehemently submitted that the petitioner was released onemergency parole pursuant to the decision taken by the High-PoweredCommittee 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 thesubsequent orders that those convicts who were released on emergencyparole earlier pursuant to the decision of the High-Powered Committeeshall not be asked to surrender until further orders. It is submitted thattherefore, the petitioner was released pursuant to the decision of theHigh-Powered Committee and not on any application made by thepetitioner and/or under Section 3(3) of the Haryana Good ConductPrisoners (Temporary Release) Act, 1988 (hereinafter referred to asthe Act, 1988). It is submitted that therefore, subsequently in its meetingheld on 09.05.2021, the High-Powered Committee could not have takenthe decision that the period of release on interim/special parole shall notbe counted towards the total period of the sentence of the prisoner/convict.

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 countedtowards the total period of sentence of the convict/prisoner.

2.2 It is further submitted by learned counsel appearing on behalfof the petitioner that if the petitioner would not have been released oninterim parole and would have undergone the sentence in that case aftercertain period of sentence he would have been entitled to the remission.It is further submitted that as the petitioner was released on interimparole and if the said period is not counted towards the total period ofsentence in that case his right to claim the remission would further beextended which may be detrimental to the interest of the petitioner.2.3 Making the above submissions, it is prayed to issue the writfor which it is prayed for.

3. Present writ petition is vehemently opposed by Ms. BansuriSwaraj, learned AAG appearing on behalf of the State.

3.1 It is vehemently submitted by learned counsel appearing onbehalf of the State that in the present case the petitioner – convict hasbeen convicted for the offences under Sections 302/34 of IPC andsentenced to undergo life imprisonment. It is submitted that the convictionand sentence awarded by the learned Trial Court has been upheld up to

Athis Court and the SLP has been dismissed. It is submitted that therefore,the petitioner has to undergo the life imprisonment in accordance withlaw and the sentence imposed by the learned Trial Court.

3.2 It is submitted that thereafter, the petitioner has been releasedon emergency parole/temporary parole pursuant to the decision of theBHigh-Powered Committee constituted as per the directions issued bythis Court in SWM (C) No. 1/2020, due to the Covid-19 pandemic. It issubmitted that while granting the temporary parole/emergency paroleinitially the High-Powered Committee in the minutes of the meeting heldon 12.11.2020 specifically observed in paragraph 4 that no specificdirections for not counting period of special parole towards sentence areCrequired to be made in view of statutory provisions and authorities aredirected 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 oftemporary release/parole shall not be counted towards the total periodof sentence of prisoner. It is submitted that thereafter when the

Demergency parole/temporary parole has been further extended pursuantto the subsequent directions issued by this Court, the High-PoweredCommittee has specifically provided as per note in the minutes of themeeting that the period of release on interim parole shall not be countedtowards the total period of sentence of the convict – prisoner which as

such in consonance with the statutory provisions. It is submitted thatEtherefore, the decision of the High-Powered Committee in its meetingheld on 09.05.2021 on the period of release on interim parole shall not becounted towards the total period of the sentence of the prisoner/convictis neither illegal and nor contrary to the statutory provisions.

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

Fparole is to be counted towards the total period of the sentence of theconvict – prisoner is now not res-integra in view of the recent decisionof this Court in the case of Rohan Dhungat Etc. Vs. The State ofGoa & 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 earlierGdecisions, this Court has specifically observed and held that period duringwhich convict is released on parole shall not be counted whileconsidering the actual imprisonment. It is submitted that in the case ofAvtar Singh Vs. State of Haryana (2002) 3 SCC 18, this Courtconsidered the constitutional validity of Section 3(3) of the Act, 1988Hand while holding the constitutional validity, it is observed by this Court

that by valid legislative act the period of temporary release on parolecan be denied while counting the actual sentence undergone by the convict– prisoner. It is submitted that subsequently in the case of State ofHaryana & Ors. Vs. Mohinder Singh (2000) 3 SCC 394, this Courthas specifically observed and held that the period of parole should not becounted towards the total period of sentence as when prisoner is onparole his period of release does not count towards the total period ofsentence.

3.4 Making the above submissions, it is prayed to dismiss thepresent writ petition.

4. The short question which is posed for the consideration of thisCourt is whether convict/prisoner who has been released on temporaryparole/emergency parole, pursuant to the decision of the High-PoweredCommittee constituted as per the orders passed by this Court in SWM(C) No. 1/2020, such parole period shall be counted towards the totalperiod of sentence of the convict – prisoner?

4.1 At the outset, it is required to be noted that so far as the Stateof Haryana is concerned as such the temporary release on parole isgoverned by the statutory provisions of the Haryana Good ConductPrisoners (Temporary Release) Act, 1988. Section 3(3) of the Act, 1988,which specifically provides that the period of temporary release shallnot be counted towards the total period of the sentence of prisoner.Thereafter, the High-Powered Committee constituted pursuant to thedirections issued by this Court directed the convicts/prisoners to bereleased on temporary parole/emergency parole in the minutes of themeeting held on 12.11.2020 specifically observed that no specificdirections for not counting period of special parole towards sentence arerequired to be made in view of the statutory provisions and the authoritiesare directed to decide the issue in accordance with statutory provisions.That thereafter, when the emergency parole has been further extendedpursuant to the subsequent orders passed by this Court, the minutes/note of the meeting specifically provides that the period of releasepursuant to the decision of the High-Powered Committee shall not becounted towards the total period of sentence of the prisoner/convict. Assuch 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 by judgment and

Aorder passed in Avtar Singh (supra), this Court has upheld the vires ofSection 3(3) of the Act, 1988.

5.1 Subsequently, in the case of Mohinder Singh (supra), thisCourt has specifically observed and held that the period of parole shallnot be counted towards the total period of sentence. It is observed andBheld that when prisoner is on parole his period of release does notcount towards the total period of sentence.

5.2 In the recent decision of this Court in the case of RohanDhungat (supra), this Court had an occasion to consider the similarissue/question and after taking into consideration the object and purposeof parole, it is observed and held by this Court that period of release onCparole shall not be counted for the purpose of considering the actualimprisonment and the said period of parole has to be excluded. In thecase of Rohan Dhungat (supra), this Court has observed in paragraph10 as under: -

“10. If the submission on behalf of the prisoners that the period ofDparole is to be included while considering 14 years of actualimprisonment is accepted, in that case, any prisoner who maybe influential may get the parole for number of times as thereis no restrictions and it can be granted number of times and ifthe submission on behalf of the prisoners is accepted, it maydefeat the very object and purpose of actual imprisonment.EWe are of the firm view that for the purpose of consideringactual imprisonment, the period of parole is to be excluded.We are in complete agreement with the view taken by theHigh Court holding so.”6. In view of the above and when the petitioner has been convictedFfor the offences under Sections 302/34 of IPC and sentenced to undergolife imprisonment, he has to undergo the said sentence actually subjectto any rule/policy in respect of remission and the period during which heis released on emergency/interim parole has to be excluded for thepurpose of actual imprisonment. Under the circumstances, the petitionerGis not entitled to claim any relief prayed in the instant writ petition. Underthe circumstances, the present petition lacks merits and the same deservesto be dismissed and is accordingly dismissed.

Divya Pandey(Assisted by : Abhishek Agnihotri and Roopanshi Virang, LCRAs)

Writ Petition dismissed.