Crl. Misc. Application No. 41 of 2017. Case: Savitri Devi Vs State of Uttarakhand and Ors.. Uttarakhand High Court

Case NumberCrl. Misc. Application No. 41 of 2017
CounselFor Appellant: Shobhit Saharia, Advocate and For Respondents: P.S. Saun, Dy. Adv. General
JudgesRajiv Sharma, J.
IssueCode of Criminal Procedure, 1973 (CrPC) - Sections 428, 432, 432(1), 432(5), 433, 433A; Constitution of India - Articles 161, 72; Indian Penal Code 1860, (IPC) - Sections 302, 34, 45
Judgement DateJanuary 12, 2017
CourtUttarakhand High Court


Rajiv Sharma, J.

  1. The present petition has been filed by the petitioner-wife on behalf of her husband who was convicted under Sections 302/34 IPC and sentenced to undergo life imprisonment vide judgment and order dated 21.1.2010 rendered by learned Additional District Judge, Roorkee in S.T. No. 195 of 1991 arising from Case Crime No. 46/91.

  2. Petitioner's husband preferred Criminal Appeal bearing No. 1418 of 2001 before this Court. It was dismissed by this Court. The Hon'ble Apex Court also dismissed the Criminal Appeal No. 820 of 2010 vide its judgment dated 9.12.2014.

  3. Petitioner's husband was granted interim parole for 15 days by the respondent No. 3 on 9.5.2013. It was extended by another 15 days vide order dated 29.5.2013.

  4. On 26.5.2016, a Mercy Petition was preferred by the applicant for remission and commutation of sentence and the same was registered as Mercy Petition No. 89/2016. It is pending before His Excellency the Governor. Petitioner's husband has now attained the age of 62 years. Petitioner's daughter is 40 percent handicapped. She is 26 years old. Her marriage has been fixed on 28.1.2017. The ceremonies would last till 30.1.2017. Petitioner's husband submitted an application on 7.11.2016 for grant of parole. However, no decision, till date, has been taken on the application by the Secretary (Home).

  5. According to the averments made in the petition, there is no other elder male member in the family of the petitioner. Petitioner's husband has not misused the earlier short paroles granted to him. The presence of her husband is very important to perform the marriage ceremonies. Petitioner has prayed for two months' parole for her husband. It is also highlighted that the State of Uttarakhand, till date, has not framed any Special Rules/General Orders under Section 432(5) Cr.P.C. The State of Uttar Pradesh has framed the Rules called Uttar Pradesh (Suspension of Sentences of Prisoners) Rules, 2007. The Rules framed by the State of Uttar Pradesh have not been adopted by the State of Uttarakhand till date. It is in these circumstances the present petition has been filed seeking a direction to the Secretary (Home) to enlarge the petitioner's husband on parole to attend the marriage of her daughter which is fixed on 28.1.2017. Petitioner has also sought a direction to the State Government for framing the Special Rules/General Orders under Section 432(5) of Cr.P.C.

  6. Section 432(5) of the Code of Criminal Procedure reads as under:-

    432(5). The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-

    (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or

    (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.

  7. The State Government is required by general rules or special orders to give direction as to the suspension of sentences and the conditions on which the petitions should be presented and dealt with by prescribing the guidelines.

  8. No rules or such orders have been framed by the State Government till date. According to the petitioner, there is arbitrariness in granting parole etc. to the prisoners. Petitioner has also highlighted the manner in which a person, convicted for the murder of M.L.A. has been granted parole for two months by the State Government in an arbitrary manner. Framing of general rules and special orders would make the entire procedure transparent.

  9. In (1985) 2 SCC Page 580, the Constitutional Bench of Hon. Apex Court has held that the equitable considerations must prevail while construing beneficent provisions especially in criminal law. Their Lordships have held as under:-

    "15. We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law's benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the "mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life"...

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