PARVEEN KUMAR@ PARVEEN CHAUHAN v. STATE OF HARYANA & ORS.

1. Leave Granted.

2. The question to be considered in this appeal is whether the appellant’s application for grant of remission to the State of Haryana will be governed by the ‘Policy Regarding Release of Life Convicts 20021’ dated 12th April 2002 or the subsequent Policy dated 13th August 2008 termed as ‘Premature Release of Life Convicts 20082’ as notified by the Jails and Judicial Department, Government of 1 2002 Policy 2 2008 Policy

3. Since we are only concerned with the question of applicability of a policy, the facts in which the question arose has limited relevance, save and except to note that the appellant stood convicted for murder of a 12 year old child, on 3rd January 2009 in connection with FIR No.670 of 2007 dated 25th September 2007 lodged at PS City, Gurgaon. He was sentenced to undergo life imprisonment under Section 302 Indian Penal Code, 18603, five years of imprisonment under Section 365 IPC and two years under Section 201 IPC. The High Court by judgment4 dated 16th July 2013 partly allowed the appeal setting aside the conviction under Section 365 IPC. Appeal against the said judgment to this Court was dismissed5 by an order dated 15th September 2015 which has attained finality.

4. On 26th May 2022, the appellant filed a representation seeking release on the basis of 2002 Policy, having served 14 years of actual imprisonment; however, no response was received. Thereafter, he filed a writ petition6 against his pending representation, which was disposed on 16th August 2022, directing the prison authorities to decide the same within a period of three months. The said representation eventually came to be decided on 20th October 2022 and concluded in a rejection on two grounds – (i) that the appellant would be governed by the 2008 Policy and not the 2002 Policy; (ii) that as per the former he had completed only 13 years 7 months and 16 days of actual imprisonment and 16 years five months and 16 days of total imprisonment as on 21st September 2022 and as such was not eligible for not having completed the requisite period of twenty years of actual sentence and twenty five years of total sentence. He then filed another writ petition7 challenging the aforesaid decision by placing reliance on State of 3 IPC 4 CRA No.198 of 2009 5 SLP (Crl.) No.2128 of 2014 6 CRWP No.7465 of 2022 7 CRWP no.12409 of 2024 Haryana v. Jagdish8. By an order dated 27th January 2025, this writ petition came to be dismissed. Hence this appeal.

5. The substance of the appellant’s case as it appears, is that since the 2002 Policy had been brought in exercise of Article 161 of the Constitution of India, the coming into force of the subsequent 2008 Policy which was explicitly under the exercise of power bestowed by Section 432 and 433 of the Code of Criminal Procedure 19739, would not denude him of the benefits thereunder. Further, the beneficial remission policy would apply instead of policy relevant on the date of conviction. One more aspect of his submission is that the judgment in State of Haryana v. Raj Kumar would not have precedential value on account of the fact that Jagdish supra is rendered by a larger Bench.

6. The State, on the other hand, submits that a policy which is referable to Article 161/72 of the Constitution would override that enacted under the CrPC. But in view of the holding in Raj Kumar supra which observed that both the 2002 Policy and the 2008 Policy were, in fact, in exercise of power traceable to the provisions of the CrPC. Further, that since the 2008 Policy superseded the earlier one and as on the date of conviction only the 2008 Policy was in force, no question would arise of the applicability of the 2002policy to the appellant.

7. Heard learned counsel for the parties.

8. Hereinbelow is a chart referencing different remission policies issued by Haryana, including the erstwhile State of Punjab, till 2008, particularly regarding the power under which the same have been issued and the issuing authority. 9 CrPC Sr.No Date of Policy Provision read therewith 1 10.11.1971 (Memo No.13311-6JJ-71/39656) Section 432 CrPC read with para 516-B of the Punjab Jail Amended by: Manual - 28.11.1977: (para 3) (Letter No.7843/2JJ/77/30099) - 09.06.1978: (pertaining of female and juvenile prisoners) (Memo No.8530-6JJ-78/2131) - 27.02.1984 (Clarification on 28.11.1977 memo) (Letter No.43/19/83-JJ) 2 23.04.1987 (Memo No.36/11/86-JJ(2) Section 433 of CrPC Amended by: - 01.02.1988 (Upon announcement by CM) (Circular No.1190-1209/GI/G-3) 3 28.09.1988 (Memo No.38/11/86-JJ(2)) Section 433-A CrPC Amended by: - 17.05.1989 (para 2(d)) (Memo No.36/48/89-JJ(2)) - 29.05.1990 (para 2(d)) (Memo No.36/155/89-1J) 4 13.08.2008 (Memo No.36/135/91-1JJ(II) Section 432 and 435 of CrPC Sr.No Date of Policy Provision read therewith 1. 19.11.1991 (Memo No.36/135/91-1JJ(II) Article 161 of the Constitution of India - 04.02.1993 (para 2(c)) (Memo No.36/135/91-1JJ(II) - 22.02.1996 (adding to 1993 amendment) (Memo No.43/20/93-1JJ(II) - 17.07.1997 (further amending para 2(a) of 1993 amendment) (Memo No.36/135/91-1JJ(II) - 16.03.1999(further amending para 2(a) and 2(b) of 1993 and 1997 amendments) (Memo No.36/135/91-1JJ(II) 2. 04.02.1993 Article 161 of the Constitution of India 3. 08.08.2000 (Memo No.36/135/91-1JJ(II) Article 161 of the Constitution of India 4. 12.04.2002 (Memo No.36/135/91-1JJ(II) Article 161 of the Constitution of India

9. We have perused all the policies in detail, including the earlier policy of the year 2000. It appears that the policies of the year 2000 and 2002 clearly state that for orders to be passed under these policies, the papers are to be placed before the Hon’ble Governor of the State for soliciting orders under Article 161 of the Constitution of India. However, the later 2008 Policy specifically states that papers shall be put up before the Chief Minister for orders under Section 432 of CrPC. This clearly shows the constitutional ambit of the former and statutory ambit of the latter. It need not be said that a statutory policy, even if it may be so, cannot override a exercise of power under Article 161, for that power is distinct and independent, uninfluenced by any other power, more so statutory in nature.

10. In Jagdish supra the question before the three-judge Bench was for resolving the inconsistency between State of Haryana v. Balwan11, and State of Haryana v. Mahender Singh12, on the one hand; and State of Haryana v. Bhup Singh13, on the other. In doing so, the Court has discussed, extensively – (i) earlier judgments on sentencing; (ii) scope of power under Article 161 of the Constitution of India; (iii) the purpose of criminal justice and punishment, and; (iv) also the remission policies. It held that the 1993 remission Policy was in exercise of Article 161 powers of the Governor, whereas the 2008 Policy (which is also in issue before us) is a statutory policy, and as such, cannot override the former. It has also been held that if on the date of consideration for remission, a more liberal policy was in effect, then the prisoner should be given the benefit thereof. In deciding the issue, the benefit of the 1993 Policy was given to the respondent therein, Jagdish. The relevant paragraphs of the judgment are:

“52. We have already noticed that the earlier policies including the policy dated 4-2-1993 refer to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13-8-2008 is in exercise of the powers under Section 432 read with Sections 433 and 433-A CrPC. The restriction under Section 433-A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 CrPC. The Notification dated 13-8-2008 is, therefore, under a rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13-8-2008 cannot override the policy dated 4-2-1993. … 54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.” (emphasis supplied)

11. In Raj Kumar supra the question that arose was similar to this case i.e., the application of 2002 Policy or the 2008 Policy. It has been observed that none of the policies apart from the one framed in 2008, after 1974 mention the power under which the same have been brought in. Thereafter, with reference to para 9 of N. Mani v. Sangeetha Theatre14, it is concluded that the policy instructions would be statutory instructions framed either under the Prisons Act 1894 or Section 432 CrPC. This is the background in which the Court holds the 2002 Policy also to be having statutory origins and not a constitutional one. Paras 17 and 18 of the judgment read as under:

“17. The policy of premature release dated 13-8-2008 was issued in the name of the Governor and was published in the Official Gazette. Such notification is said to have been issued in exercise of the powers conferred under sub-section (1) of Sections 432 and 433 of the Code. Keeping in view the principles of law enunciated above, such policy is in exercise of the powers conferred on the appropriate Government in terms of the provisions of the Code and is thus statutory in nature. The other Policy dated 12-4-2002 is in fact a memo issued by the Financial Commissioner and Secretary to Government, Haryana, Jails Department, Chandigarh to the Director General of Prisons, Haryana, Chandigarh. Such policy of premature release would again be traceable to the provisions of the Code. 18. Mr Nikhil Goel, learned Additional Advocate General for the State of Haryana, submitted that different policies have been issued from time to time and the later policy has superseded the earlier one, so there was no hiatus when a policy of premature release was not in operation or at any given point of time, the two polices were operational. The argument of Mr Goel merit acceptance inasmuch as the Policy dated 12-4-2002 is in supersession of earlier policy circulated on 8-8-2000 substituted later on 23-2-2001. The Policy dated 13-8-2008 has substituted the earlier Policy dated 12-4-2002 and such policy has been published on behalf of the Governor of the State. The Policy dated 13-8-2008 has been issued in exercise of powers conferred by sub-section (1) of Section 432 read with Section 433 of the Code and in supersession of Government Memorandum dated 12-4-2002 and all other policies. The Policy dated 13-8-2008 is a statutory policy. The said policy cannot and has not tried to take over the discretion vested in the Hon'ble Governor to grant pardons, remissions or commute sentence in exercise of powers conferred under Article 161 of the Constitution but it is the policy issued under a statute and therefore, such policy has a statutory force. The Policy dated 12-4-2002 is again a statutory policy and cannot be put at a higher pedestal than the Policy dated 13-8-2008 for the reason that it seeks approval from the Hon'ble Governor. Such policy has been specifically superseded on 13-8-2008, ceases to be operative for the convicts who are convicted after 13-8-2008.” (Emphasis supplied) The co-ordinate Bench held that the respondent therein was not entitled to the benefit under the 2008 Policy since he had not completed the requisite time period thereunder, considering his case. It was observed that both 2002 and 2008 Policies were statutory in nature with the latter superseding the former. Significantly it is observed that the remedy under Article 161 of the Constitution remained open for the respondent therein to be pursued.

12. Jagdish supra had clearly observed that the power under 161 of the Constitution is untrammeled and unaffected by the provisions of CrPC. The 1993 Policy was held to be in exercise of this power. The 2002 Policy, in our view, is similar to the 1993 Policy, for it too contemplates orders to be passed by the Governor under this power though it does not specifically states the source of the exercise of such power. If we follow the dictum in Raj Kumar supra then despite this, it would be deemed to be statutory since the provision under which the policy has been brought in has not been mentioned. Hence, taking further, we endeavour to juxtapose the two policies-specifically on the points of power being exercised and the authority under whose signature, the notification was issued, in a tabular form: Date of Issue 04.02.1993 12.04.2002 Policy Letter From: The Commissioner From: The Financial & Secy. to Govt., Haryana, Commissioner & Principal Jails Department Secretary to Govt., Haryana, Jails Department To: The Addl. Director General of Prisons, To:The Director General of Haryana, Manimajra, Prisons, Haryana, Chandigarh Manimajra, Chandigarh Memo. No. 36/135/91- Memo No. 36/135/91- 1JJ(II) Dated Chandigarh, 1JJ(II) Dated, Chandigarh the 4-2-1993 the 12-4-2002 Subject: Policy regarding premature Policy regarding premature release of life convicts. release of life convicts. Relevant paragraph “4. … Additional Director “5. The Director General of General/Inspector General Prisons, Haryana shall put of Prisons, Haryana, who up all such premature will place the matter before release cases to the State the State Level Committee Level Committee for alongwith his comments for consideration. The consideration. He will very committee will meet once in clearly indicate the category three months according to under which each case is the convenience of the covered. The Committee Minister for Jails, Haryana will meet once in 3 months so that cases of review according to the under this policy are not convenience of the Minister delayed. The Director of Jails, Haryana so that General of Prisons, Haryana cases of review under this further will forward a copy policy are not delayed. The of the decision taken by the Additional Director committee alongwith the General/Inspector General roll of each of the life of Prisons, Haryana, will convict to the State forward a copy of the Government within one decision taken by the State week for further action. Level Committee alongwith Such cases will be put up the roll of each of the life to the Governor through convicts to the Government the Minister for Jails and within one week for further the Chief Minister, Haryana action. with full background of the prisoner and 5. Such cases will be put recommendations of the up to the Governor committee alongwith the through the Minister for copy of judgement etc. for Jails and the Chief orders under article 161 of Minister, with full the Constitution of India.” background of the prisoner and recommendations of the State Level Committee, alongwith the copy of judgement etc., for orders under article 161 of the Constitution of India.” Undersigned Official Superintendent, Jails & Under Secretary Jails & Judicial, Judicial, for Commissioner & for Financial Secretary to Govt., Commissioner & Haryana, Jails Principal Secretary to Department. Govt., Haryana, Jails No. 36/135/91-1JJ(II) Department. Dated 4-2-1993, Endst. No. 36/135/91- Chandigarh. 1JJ(II) Dated 12-04-02. Chandigarh. The effect of the discussion referred to above in Rajkumar supra would be that despite clear observations by Jagdish supra, both 1993 and 2002 policies will be treated as statutory. This clearly would be in the teeth of the decision in Jagdish. Given its identical nature on the above counts, the 2002 Policy in our view is under the provisions of the Constitution.

13. We now compare the 2002 and 2008 Policies by way of a tabular chart: Date of Issue 12.04.2002 13.08.2008 Policy Letter From: The Financial No. 36/135/91-1JJ(II).— In Commissioner & Principal exercise of the powers Secretary to Govt., conferred by Sub-section Haryana, Jails Department (1) of Section 432 read with Section 433 of the To: The Director General of Code of Criminal Prisons, Haryana, Procedure, 1973 (Act 2 of Manimajra, Chandigarh 1974) and in supersession of Haryana Government Memo No. 36/135/91- Memo No. 36/135/91- 1JJ(II) Dated, Chandigarh 1JJ(II), dated the 12th the 12-4-2002 April, 2002 and all other earlier policies, the Governor of Haryana hereby frames the following policy regarding premature release of life convicts… Subject: Policy regarding premature ----- release of life convicts. Relevant paragraph “5. The Director General of “8. The Director General of Prisons, Haryana shall put Prisons, Haryana shall put up all such premature up all such premature release cases to the State release cases to the State Level Committee for Level Committee for consideration. The consideration. The committee will meet once in Committee will meet once three months according to in three months, so that the convenience of the cases of review under this Minister for Jails, Haryana policy are not delayed. The so that cases of review Director General of Prisons, under this policy are not Haryana will forward a copy delayed. The Director of the decision taken by the General of Prisons, Haryana Committee along with the further will forward a copy commutation roll of each of of the decision taken by the the life convict to the State committee along with the Government within one roll of each of the life week for further action. convict to the State Such cases will be put up to Government within one the Chief Minister, Haryana week for further action. along with full background Such cases will be put up to of the convicts and the Governor through the recommendations of the Minister for Jails and the Committee and a copy of Chief Minister, Haryana the Court judgement etc. for with full background of the orders under Section 432 prisoner and Cr. P.C. It is reiterated that recommendations of the no convict has fundamental committee along with the right of remission or copy of judgement etc. for shortening of sentence. The orders under article 161 of State Government in the Constitution of India.” exercise of its executive/discretionary power of remission is to consider each individual case keeping in view all the relevant factors. This policy is issued in exercise of the power of the State in such a way that no discrimination is made while considering the case of life convicts for premature release. This policy shall be applicable to all premature release cases of life convicts with effect from date of notification irrespective of their date of conviction. The date for consideration of premature release of a convict would be the date of completion of his requisite sentence mentioned in the policy. However, the powers of pre-mature release of a life convict in cases covered under Section 435 of the Cr. P.C. shall not be exercised by the State Government except after consultation with the Central Government.” Undersigned Official Under Secretary Jails & Financial Commissioner Judicial, and Principal Secretary to for Financial Government Haryana, Commissioner & Jails Department. Principal Secretary to Govt., Haryana, Jails Department. Endst. No. 36/135/91- 1JJ(II) Dated 12-04-02. Chandigarh. It appears quite plainly that the 2002 Policy, as already observed supra banks on Article 161 while the 2008 Policy makes the Chief Minister, the deciding authority under Section 432 CrPC. Only the latter specifically states the origin of power. Though both the 2002 Policy and the latter were issued under the signature of the ‘Financial Commissioner, Government of Haryana’, but for Rajkumar supra to observe that the former Policy was merely a memo, perhaps may be a mistaken position.

14. We have to specifically deal with a submission on behalf of the appellant that the judgment in Rajkumar supra does not have value as precedent. When ‘does’ or ‘does not’ in a decision become per incuriam, is a question that has been discussed in various judgments. Certain facets emerge from these discussions as follows:

14.1 It is an exception to the rule of stare decisis and must be applied sparingly;

14.2 A judgment is per incuriam: (a) when its ratio is not reconcilable with an earlier decision rendered by a Bench of equal or higher strength; or (b) when a particular provision or a statute or a rule or a regulation has not been brought to the attention of the Court;

14.3 It applies only to the ratio decidendi of a judgment and not to obiter dicta;

14.4 Judicial discipline requires that if a bench disagrees with another bench of co-equal strength the matter should be referred to a bench of three judges to decide the issue;

14.5 The decision rendered by the Bench of largest strength binds any subsequent Bench of co-equal or lesser strength. A Bench of lesser strength cannot dissent from the view already taken by a Bench of larger strength;

14.6 A judgment cannot be said to be per incuriam: (a) if it makes reference to an earlier decision and then concludes correctly or incorrectly; or (b) if the ordinary reading of the judgment does not on the face of it show it to be in conflict with earlier decisions, the court should refrain adopting such an interpretation.

14.7 It is not the numerical strength of judges taking a particular view that is relevant but it is instead the strength of the Bench, which is the determinative factor of the binding nature of a particular view. [See: Sundeep Kumar Bafna v. State of Maharashtra15; Shah Faesal v. Union of India16; Pradip Chandra Parija v. Pramod Chandra Patnaik17; Central Board of Dawoodi Bohra Community v. State of Maharashtra18; Trimurthi Fragrances (P) Ltd., v. State (NCT of Delhi)19.

15. Applying the facets as culled out above to the present case, we are of the view that the submission of the appellant holds water. This is for the reason that the Policies of 1993 and 2002 are, as already observed above, identical in terms of their source of power under Article 161, and since the former has been declared by a Bench of three judges to be an exercise under the constitutional power, the inescapable conclusion would be that the identical later policy would also be the same. But for reasons discussed above, the judgment in Rajkumar supra held the 2002 Policy to be of statutory origin. This would fall foul of the reasoning in Jagdish supra and hence be rendered per incuriam. It may be noted here itself that a reference to a larger Bench would have been the available course before us, had it been that we differed with the learned judges in Rajkumar without there being a controlling precedent in the form of Jagdish supra. Since the latter is already there, in our view, there is no conflict that needs deciding.

16. In light of the discussion as aforesaid, we proceed to decide the question as has arisen in this case. Since the 2002 Policy stood framed under the Constitution and such power is to be exercised by the Governor himself, the subsequent Policy of 2008, cannot deter the effect of the former and the observation that it supersedes the 2002 Policy, is untenable in law. In respect of the appellant herein, it can be said that the 2002 Policy would still have its effect. The holding in Jagdish supra would operate, and the appellant would be entitled for the benefit of the lesser time served thereby making him eligible for remission.

17. It is clarified that the findings in this case shall apply prospectively and shall not operate to reopen any applications for remissions that already stood decided. In effect, now the respondent State shall have two distinct and separate policies functioning. How is it that the State want to proceed further is for them to decide.

18. The State shall take a decision regarding the remission application of the appellant consistent with this judgment within four weeks from the date of this judgment. Let a copy be sent to the Chief Secretary, Government of Haryana, by the Registry of this Court within four days for onward action to be taken by the appropriate authority. Appeal is accordingly allowed and pending applications if any are disposed of. ………………………………………………J. (SANJAY KAROL ) ………………………………………………J. (NONGMEIKAPAM KOTISWAR SINGH) New Delhi; July 1, 2026