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2012 Supreme(MP) 173
2012(2) JLJ 203
S.K. Gangele and G.D. Saxena, JJ.
Gaffar Khan v. State of M.P.
Writ Appeal No.696 of 2011 (Gwalior) : against the judgment of Single Judge of the High Court, passed in
Writ Petition No.2135 of 2011 (Cri.); Decided on 16.3.2012.
S.K. Shrivastava for appellant;
Vivek Khedkar, Deputy Advocate General for respondents No.1 to 5/State.
Headnote:Criminal P.C., 1973 -- S.432 -- appropriate Government --may remit the sentence -- but bound to consider the effect of early release of that particular convict on the society -- persons convicted for heinous offences should not be given the benefit of premature release for a long period leniently.
Held : Hence, in our opinion, it is obligatory on the part of the appropriate Government to consider one aspect of the release of a prisoner on temporary basis that what would be the effect of early release of a particular convict on the society.
In the present case, respondent No.6 had committed an heinous crime, he murdered three persons and also injured number of persons by indiscriminate firing. Those persons are innocent persons. They had not offered any resistance. As per the findings of the trial Court the crime was committed on a petty issue and respondent No.6 was granted the benefit of temporary release for a period of one year after serving a jail sentence for four years. This is not a case that health of the convict was deteriorated or he was ill. Only he had been given the benefit because he completed 62 years of age. In our opinion, it is not proper. It is also obligatory on the part of the State to keep in mind the fact that the convicts who have been convicted for heinous offences should not be given the benefit of premature release for a long period leniently. (2007)13 SCC 606 and (2008)13 SCC 767 followed. (2009)2 SCC 268, (2009)12 SCC 646, (2009)12 SCC 748, (2010)4 SCC 216, (2010)11 SCC 748 and (2011)10 SCC 398 referred to.
[Paras 10 & 11
naM izfdz;k lafgrk] 1973 & /kkjk 432 & leqfpr ljdkj & naMkns‘k dk ifjgkj dj ldrh gS & ijarq ml fof‘k"V fl)nks"k ds ‘kh/kz NksM+s tkus dk lekt ij izHkko ij fopkj djus ds fy, vkc) & t?kU; vijk/kksa ds fy, fl)nks"k O;fDr;ksa dks mnkjrk ls yach dkykfof/k ds fy, le; iwoZ NksM+s tkus dk Qk;nk ugha fn;k tkuk pkfg, A
vfHkfu/kkZfjr % blfy,] gekjh jk; esa] leqfpr ljdkj ds fy, canh dks vLFkk;h vk/kkj ij NksM+s tkus ds bl igyw ij fopkj djuk vkc)dj gS fd ml fof‘k"V fl)nks"k dks ‘kh?kz NksM+s tkus dk lekt ij D;k izHkko gksxk A
izLrqr ekeys esa] izR;FkhZ dz-6 us t?kU; vijk/k fd;k] mlus rhu O;fDr;ksa dh gR;k dh rFkk va/kk/kaq/k xksykckjh )kjk muds O;fDr;ksa dks {kfr Hkh igq¡pkbZ A os O;fDr funksZ"k O;fDr gSa A mUgksaus dksbZ izfrjks/k ugha fd;k Fkk A fopkj.k U;k;ky; ds fu"d"kksZ ds vuqlkj vijk/k rqPN fook|d ij fd;k Fkk rFkk izR;FkhZ dz-6 dks 4 o"kZ rd tsy naMkns‘k Hkksxus ds i‘pkr~ ,d o"kZ dh dkykfof/k ds fy, vLFkk;h :i ls NksM+s tkus dk Qk;nk fd;k x;k A ekeyk ;g ugha gS fd fl)nks"k dk LokLF; {kh.k gks jgk Fkk ;k og vLoF; Fkk A mls ek= blfy, Qk;nk fn;k x;k Fkk D;ksafd mlus 62 o"kZ dh vk;q iw.kZ dj yh Fkh A gekjh jk; esa] ;g mfpr ugha gS A jkT; ds fy, efLr"d esa ;g rF; j[kuk Hkh vkc)dj gS fd mu fl)nks"kksa dks tks t?kU; vijk/kksa ds fy, fl)nks"k Bgjk, x, gSa mnkjrk ls yach dkykfof/k ds fy, le; iwoZ NksM+s tkus dk Qk;nk ugha fn;k tkuk pkfg, A ¼2007½13 ,l lh lh 606 rFkk ¼2008½13 ,l lh lh 767 vuqlfjr A ¼2009½2 ,l lh lh 268] ¼2009½12 ,l lh lh 646] ¼2009½12 ,l lh lh 748] ¼2010½4 ,l lh lh 216] ¼2010½11 ,l lh lh 748 rFkk ¼2011½10 ,l lh lh 398 fufnZ"V A
¼iSjk 10 ,oa 11
Gangele, J. -- 1. This appeal has been filed against the order dated 11.11.2011 passed by the learned Single Judge of this Court in Writ Petition No.2135/2011 (Cri.).
2. Respondent No.6, Ahmed Saeed, was tried and convicted vide judgment dated 13.4.2010 delivered in Session Trial No.15 of 2004 and sentenced to life imprisonment. The charge against respondent No.6, Ahmed Saeed, was that he had killed three persons i.e. Abdul Aziz, Fida Mohammad and Rabiya Bi and also injured number of persons, namely, Rubina Bi, Ajra Bi, Khalil, Chhammu Khan, Anwar Khan, Jameel Ahmed, Mohammad Ishad and Jayra Bi. Against his conviction and sentence respondent No.6, Ahmed Saeed filed an appeal before this Court, which is pending adjudication. The complainant also filed another appeal for enhancement of sentence on the ground that the act of respondent No.6, Ahmed Saeed amounts to heinous offence and the case falls within the definition of ‘rarest of rare case’, hence, a death sentence be awarded to respondent No.6, Ahmed Saeed. That appeal is also pending adjudication.
3. The Jail Department, Government of Madhya Pradesh issued a notification dated 22nd January 2011, copy of which was filed as Annexure P-3 before the writ Court, in regard to grant of suspension and remission of sentence to the prisoners in exercise of powers conferred by sub-section (1) of section 432 of the Code of Criminal Procedure, 1973. Condition No.(8) of the aforesaid notification is relevant, which prescribes release of prisoners for a period of one year, who is aged 62 years or more. The relevant condition is as under :
“(8) Male prisoners, sentenced to life imprisonment and who have attained the age of 62 years or more and female prisoners, sentenced to life imprisonment and who have attained the age of 60 years or more, as on 25th January, 2011 and have served 4 years of actual sentence including under trial period, their sentences shall be suspended for a period of 1 year i.e. up to 25th January, 2012 on submission of security bond of Rs.50,000/- within a period of 30 days from the date of issue of this order, shall be released after 25th January, 2011.”
In accordance with the aforesaid notification respondent No.6, Ahmed Saeed was granted benefit of release for a period of one year and he was released for the aforesaid period.
4. The appellant challenged the order of release of respondent No.6, Ahmed Saeed, before the writ Court on the ground that respondent No.6 did not complete 62 years of age, hence, he was not eligible for the aforesaid benefit.
5. Learned writ Court rejected the writ petition.The period of one year of release of respondent No.6 has already been completed and respondent No.6 has already surrendered before the competent Court and he is now suffering the remaining jail sentence. In this view of the matter, learned counsel for appellant did not press the point on the ground of benefit of suspension of sentence for one year in favour of respondent No.6. However, learned counsel challenged the notification dated 22nd January 2011, Annexure P-3, in regard to grant of benefit to the prisoners aged 62 years or more of suspension of sentence for a period of one year. Learned counsel submitted that the aforesaid condition is arbitrary and illegal because in the aforesaid condition no differentiation has been made in regard to nature and gravity of offence. In support of his contentions learned counsel relied on the following judgments :
(1) State of Haryana v. Mahender Singh, (2007)13 SCC 606;
(2) Swamy Shraddananda Alias Murali Manohar Mishra v. State of Karnataka, (2008)13 SCC 767;
(3) State of Haryana v. Bhup Singh, (2009)2 SCC 268;
(4) State of Rajasthan v. Jagdish Prasad, (2009)12 SCC 646;
(5) Mohammed Ishaq v. S. Kazam Pasha, (2009)12 SCC 748;
(6) State of Haryana v. Jagdish, (2010)4 SCC 216;
(7) State of Haryana v. Harpal, (2010)11 SCC 748 and
(8) D. Ethiraj v. Secretary to Government, (2011)10 SCC 398.
6. As per condition No.(8) of the afor
