Summary
Haryana's 2002 premature-release policy, which required cases to be placed before the Governor for orders under Article 161, is a constitutional policy. The later statutory policy of 2008, framed under Sections 432 and 433 CrPC, cannot override it. State of Haryana v. Raj Kumar, which treated the 2002 policy as statutory, was held per incuriam in view of the three-Judge Bench decision in State of Haryana v. Jagdish. The life convict was held entitled to be considered under the 2002 policy.
Issues
- Whether the appellant's application for remission is governed by Haryana's 2002 policy for release of life convicts or by the 2008 policy for premature release.
- Whether the 2002 policy was issued under Article 161 of the Constitution or was statutory, and whether the 2008 statutory policy could supersede it.
- Whether State of Haryana v. Raj Kumar, holding the 2002 policy to be statutory, is per incuriam in view of State of Haryana v. Jagdish.
Provisions considered
- Article 161, Constitution of IndiaSince the 2002 policy, like the 1993 policy considered in Jagdish, required cases to go to the Governor for orders under Article 161, the Court held it to be an exercise of constitutional power, which is distinct and cannot be overridden by a statutory policy. (¶¶ 5, 9, 12, 13, 15, 16)
- Sections 432 and 433, Code of Criminal Procedure, 1973The 2008 policy was framed under Section 432(1) read with Section 433 and named the Chief Minister as the deciding authority; the Court treated it as a statutory policy that could not supersede the constitutional 2002 policy. (¶¶ 5, 9, 10, 13, 16)
Held
- The 2000 and 2002 policies required papers to be placed before the Governor for orders under Article 161, while the 2008 policy required them to go to the Chief Minister for orders under Section 432 CrPC. The former are constitutional in origin and the latter statutory, and a statutory policy cannot override an exercise of the distinct and independent power under Article 161. (¶¶ 9, 12, 13)
- Jagdish, a three-Judge Bench decision, held that the 1993 policy was made under Article 161, could not be overridden by the 2008 statutory policy, and that a life convict should get the benefit of a more liberal policy in force on the date his case is considered. The 2002 policy is materially identical to the 1993 policy in its source of power and so is also constitutional. (¶¶ 10, 12, 15)
- A judgment is per incuriam when its ratio cannot be reconciled with an earlier decision of a Bench of equal or larger strength, or when a governing provision was not brought to the Court's notice. The doctrine applies only to the ratio, must be used sparingly, and a Bench disagreeing with a co-equal Bench should refer the matter to a larger Bench. (¶ 14)
- Raj Kumar, which treated the 2002 policy as statutory and superseded by the 2008 policy, conflicts with the reasoning of the larger Bench in Jagdish and is per incuriam. As Jagdish is a controlling precedent, no reference to a larger Bench was required. (¶¶ 11, 13, 15)
- Since the 2002 policy was framed under the Constitution, the 2008 policy could not supersede it. The 2002 policy continues to apply to the appellant, who is entitled to the benefit of the shorter period of imprisonment it requires for remission. (¶ 16)
- These findings operate prospectively and do not reopen remission applications already decided; the State will in effect have two separate policies in operation. (¶ 17)
Result
Appeal allowed; the State was directed to decide the appellant's remission application consistently with the judgment within four weeks, and the Registry to send a copy to the Chief Secretary of Haryana within four days; the findings apply prospectively.