IMPORTANT POINT
The policy prevailing at the time of consideration of premature release shall be applicable.

JUDGMENT

Dr. B.S. Chauhan, J. —

1. Delay condoned. Leave granted.

2. This matter has come up before us upon reference having been made by a Two-Judge Bench vide order dated 04.11.2009 upon noticing an inconsistency in the views expressed by this Court in the case of State of Haryana & Ors. v. Balwan,1 AIR 1999 SC 3333 on one hand and in the cases of State of Haryana v. Mahender Singh & Ors.2 (2007) 13 SCC 606; and State of Haryana v. Bhup Singh,3 AIR 2009 SC 1252, on the other hand. The inconsistency, which was pointed out in the said order was noticed by taking into account the para 5 of the judgment in Balwan (supra) which is as follows :-

“........However, in order to see that a life convict does not lose any benefit available under the remission scheme which has to be regarded as the guideline, it would be just and proper to direct the State Government to treat the date on which his case is/was required to be put up before the Governor under Article 161 of the Constitution as the relevant date with reference to which their cases are to be considered ......”

3. The views expressed in Mahender Singh (supra) and Bhup Singh (supra) were as follows :-

Mahender Singh (supra)

“40. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof. A’ fortiori the policy decision applicable in such cases would be which was prevailing at the time of his conviction.” Bhup Singh (supra)

“10..... The right to ask for remission of sentence by a life convict would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed .......

11. .....It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in Mahender Singh case having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002....”

4. The question that has been posed before us is as to whether the policy which makes a provision for remission of sentence, should be that which was existing on the date of the conviction of the accused or it should be the policy that exists on the date of consideration of his case for pre-mature release by the appropriate authority?

5. In the instant case, we find that the respondent, herein, has been granted the relief by the Punjab and Haryana High Court for consideration of his case for grant of clemency as per the policy prevailing on the date of his conviction. The respondent was convicted and sentenced for life imprisonment vide judgment and order dated 20.05.1999 and the policy which was in existence at that point of time was dated 04.02.1993. The respondent, having served more than 10 years imprisonment, approached the High Court that in spite of having undergone the sentence as per the aforesaid policy dated 04.02.1993, his case for pre-mature release was not being considered in view of the new policy of short sentencing, introduced on 13.08.2008. The policy dated 13.8.2008 has been brought on record, which expressly recites that the same was being issued in exercise of the powers conferred by Sub-Section (1) of Section 432 read with Section 433 of Criminal Procedure Code (hereinafter called Cr.P.C.), 1973. The same further recites that it is in supersession of the Government Memorandum dated 12.04.2002 and all other earlier policies.

6. The respondent was involved in a case, the FIR whereof was registered on 16.01.1995 and he was convicted vide judgment and order dated 20.5.1999 under Sections 302, 148 and 149 Indian Penal Code (hereinafter called IPC), 1860. In the above background, the respondent filed a Criminal Misc. Application before the High Court. The Court placing reliance on the judgments of this Court in Mahender Singh (supra) and Bhup Singh (supra) came to the conclusion that the case of the respondent for pre-mature release was to be considered in the light of