Supreme Court of India
PARVEEN KUMAR @ PARVEEN CHAUHANversusSTATE OF HARYANA & ORS.
- Citation
- 2026 INSC 667
- Decided
- 1 July 2026
- Disposal
- Appeal(s) allowed
- Bench
- N KOTISWAR SINGH
Holding
The 2002 remission policy, being exercised under the constitutional power of Article 161, continues to govern the appellant’s remission application and cannot be overridden by the 2008 policy, rendering him eligible for remission.
Summary
Parveen Kumar was convicted of murder and sentenced to life imprisonment in 2009. In 2022 he applied for remission under the 2002 Haryana remission policy, which required the Governor’s approval under Article 161 of the Constitution, but his application was rejected on the ground that the later 2008 policy, issued under Sections 432 and 433 of the CrPC, governed his case and that he had not satisfied its longer service requirements. The Supreme Court examined whether the 2002 policy, being a constitutional exercise of power, could be displaced by the statutory 2008 policy and whether the earlier Raj Kumar decision, which treated the 2002 policy as statutory, was per incuriam. Relying on the three‑judge judgment in Jagdish, the Court held that the 2002 policy remains operative and cannot be overridden by the 2008 policy. Consequently, the appellant is entitled to remission based on the lesser period of actual imprisonment required by the 2002 policy. The Court allowed the appeal, directing the State to decide the remission application in accordance with this ruling and clarified that the decision applies prospectively.
Issues considered
- The applicability of the 2002 remission policy framed under Article 161 versus the 2008 policy framed under Sections 432/433 of the CrPC to the appellant’s remission application.
- Whether the 2008 policy supersedes the earlier 2002 policy.
- Whether the judgment in State of Haryana v. Raj Kumar is per incuriam and therefore not binding.
- Whether the appellant satisfies the eligibility criteria for remission under the 2002 policy.
Legislation cited
- Code of Criminal Procedure, 1973s. 432, s. 433, s. 433-A, s. 435
- Constitution of Indias. Article 161
- Indian Penal Code, 1860s. 201, s. 302, s. 365
- Prisons Act, 1894
Headnote
Issue for Consideration 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 2002’ dated 12.04.2002 or the subsequent Policy dated 13.08.2008 termed as ‘Premature Release of as notified by the Jails and Judicial Department, Government of Haryana. Headnotes† Remission – Grant of – Policy Regarding Release of Life Convicts 2002 – Premature Release of Life Convicts 2008 – The appellant stood convicted for murder of a 12 year old child,
Subjects
Article 161 of the Constitution of IndiaSection 432 CrPCRemission PolicyPremature ReleaseLife ConvictPer IncuriamJudicial DisciplineBinding Nature of Larger BenchRetrospective ApplicationProspective Application
Judgment
[2026] 7 S.C.R. 554 : 2026 INSC 667
Parveen Kumar @ Parveen Chauhan
v.
State of Haryana & Ors.
(Criminal Appeal No. 3093 of 2026)
01 July 2026
[Sanjay Karol* and Nongmeikapam Kotiswar Singh, JJ.]
Issue for Consideration
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 2002’ dated 12.04.2002 or the subsequent Policy
dated 13.08.2008 termed as ‘Premature Release of Life Convicts
2008’ as notified by the Jails and Judicial Department, Government
of Haryana.
Headnotes†
Remission – Grant of – Policy Regarding Release of Life
Convicts 2002 – Premature Release of Life Convicts 2008 –
The appellant stood convicted for murder of a 12 year old
child, on 03.01.2009 – He was sentenced to undergo life
imprisonment – On 26.05.2022, the appellant sought release
on the basis of 2002 Policy, having served 14 years of actual
imprisonment – His representation was rejected 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 21.09.2022 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 –
Correctness:
Held: 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 u/Art.161 of the Constitution of India – However,
the later 2008 Policy specifically states that papers shall be put up
* Author
[2026] 7 S.C.R. 555
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
before the Chief Minister for orders u/s.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 u/Art.161, for
that power is distinct and independent, uninfluenced by any other
power, more so statutory in nature – 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 would operate, and the appellant
would be entitled for the benefit of the lesser time served thereby
making him eligible for remission. [Paras 9, 16]
Remission – Grant of – Policy Regarding Release of Life
Convicts 2002 – Premature Release of Life Convicts 2008 –
Conflict between State of Haryana v. Raj Kumar (2 Judges
Bench) [2021] 8 SCR 320 : (2021) 9 SCC 292 and State of
Haryana v. Jagdish (3 Judges Bench) [2010] 3 SCR 716 :
(2010) 4 SCC 216:
Held: The Policies of 1993 and 2002 are identical in terms of
their source of power u/Art.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 – The judgment in
Rajkumar (2 Judges Bench) held the 2002 Policy to be of statutory
origin – This would fall foul of the reasoning in Jagdish (3 Judges
Bench) and hence be rendered per incuriam. [Para 15]
Judgment – When ‘does’ or ‘does not’ in a decision become per
incuriamm, is a question that has been discussed in various
judgments – Certain facets emerge from these discussions
as follows:
Held: 1) It is an exception to the rule of stare decisis and must be
applied sparingly; 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; 3) It applies only to the ratio decidendi of a judgment
556 [2026] 7 S.C.R.
Supreme Court Reports
and not to obiter dicta; 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;
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; 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; 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. [Para 14]
Case Law Cited
The State of Haryana & Ors. v. Raj Kumar @ Bittu [2021] 8 SCR
320 : (2021) 9 SCC 292 – held per incuriam.
State of Haryana v. Jagdish [2010] 3 SCR 716 : (2010) 4 SCC
216 – relied on.
State of Haryana v. Balwan [1999] Supp. 2 SCR 211 : (1999) 7
SCC 355; State of Haryana v. Mahender Singh [2007] 11 SCR
932 : (2007) 13 SCC 606; State of Haryana v. Bhup Singh [2008]
17 SCR 1306 : (2009) 2 SCC 268; N. Mani v. Sangeetha Theatre
(2004) 12 SCC 278; Sundeep Kumar Bafna v. State of Maharashtra
[2014] 4 SCR 486 : (2014) 16 SCC 623; Shah Faesal v. Union
of India [2020] 3 SCR 1115 : (2020) 4 SCC 1; Pradip Chandra
Parija v. Pramod Chandra Patnaik [2001] Supp. 5 SCR 460 :
(2002) 1 SCC 1; Central Board of Dawoodi Bohra Community v.
State of Maharashtra [2004] Supp. 6 SCR 1054 : (2005) 2 SCC
673; M/s Trimurthi Fragrances (P) Ltd. Through Its Director Shri
Pradeep Kumar Agrawal v. Government of N.C.T. of Delhi Through
Its Principal Secretary (Finance) & Ors. [2022] 15 SCR 516 : (2024)
20 SCC 709 – referred to.
List of Acts
Penal Code, 1860; Constitution of India; Code of Criminal Procedure
1973; Prisons Act 1894.
[2026] 7 S.C.R. 557
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
List of Keywords
Article 161 of the Constitution of India; Section 432 CrPC;
Remission Policy; Premature Release; Life Convict; Per Incuriam;
Judicial Discipline; Binding Nature of Larger Bench; Retrospective
Application; Prospective Application.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
3093 of 2026
From the Judgment and Order dated 27.01.2025 of the High Court
of Punjab and Haryana at Chandigarh in CRWP No. 12409 of 2024.
Appearances for Parties
Advs. for the Appellant(s):
Sunil Kumar Verma, Ms. Kavita Vinayak, Ms. Bhavi Rathore, Desam
Sudhakara Reddy, Himank Nargotra.
Advs. for the Respondent(s):
Akshay Amritanshu, Ms. Aashna Gill, Ms. Harsh Rekha, Sarthak
Srivastava.
Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
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
2002 1’ 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
Haryana.
1 2002 Policy
2 2008 Policy
558 [2026] 7 S.C.R.
Supreme Court Reports
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 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
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
8 (2010) 4 SCC 216
[2026] 7 S.C.R. 559
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
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 Kumar10 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.
Sr. No Date of Policy Provision read therewith
1 10.11.1971 Section 432 CrPC read
(Memo No.13311-6JJ-71/39656) with para 516-B of the
Punjab Jail Manual
Amended by:
− 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/ 21318)
− 27.02.1984 (Clarification on
28.11.1977 memo)
(Letter No.43/19/83-JJ)
9 CrPC
10 (2021) 9 SCC 292
560 [2026] 7 S.C.R.
Supreme Court Reports
2 23.04.1987 Section 433 of CrPC
(Memo No.36/11/86-JJ(2)
Amended by:
− 01.02.1988 (Upon announcement
by CM)
(Circular No.1190-1209/GI/G-3)
3 28.09.1988 Section 433-A CrPC
(Memo No.38/11/86-JJ(2))
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 Section 432 and 435 of
(Memo No.36/135/ 91-1JJ(II) CrPC
Sr. No Date of Policy Provision read therewith
1. 19.11.1991 Article 161 of the
(Memo No.36/135/ 91-1JJ(II) 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 Article 161 of the
(Memo No.36/135/ 91-1JJ(II) Constitution of India
4. 12.04.2002 Article 161 of the
(Memo No.36/135/ 91-1JJ(II) Constitution of India
[2026] 7 S.C.R. 561
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
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
11 (1999) 7 SCC 355
12 (2007) 13 SCC 606
13 (2009) 2 SCC 268
562 [2026] 7 S.C.R.
Supreme Court Reports
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
14 (2004) 12 SCC 278
[2026] 7 S.C.R. 563
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
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
564 [2026] 7 S.C.R.
Supreme Court Reports
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 & F r o m : T h e F i n a n c i a l
Secy. to Govt., Haryana, Jails Commissioner & Principal
Department Secretary to Govt., Haryana,
Jails Department
To : T h e A d d l . D i r e c t o r
General of Prisons, Haryana, To:The Director General of
Manimajra, Chandigarh Prisons, Haryana, Manimajra,
Chandigarh
Memo. No. 36/135/91-1JJ(II)
Dated Chandigarh, the 4-2- Memo No. 36/135/91-1JJ(II)
1993 Dated, Chandigarh the 12-
4-2002
Subject: Policy regarding premature Policy regarding premature
release of life convicts. release of life convicts.
[2026] 7 S.C.R. 565
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
Relevant “4. … Additional Director “5. The Director General of
paragraph General/Inspector General Prisons, Haryana shall put
of Prisons, Haryana, who up all such premature release
will place the matter before cases to the State Level
the State Level Committee Committee for consideration.
alongwith his comments for The committee will meet once
consideration. He will very in three months according
clearly indicate the category to the convenience of the
under which each case is Minister for Jails, Haryana so
covered. The Committee that cases of review under this
will meet once in 3 months policy are not delayed. The
according to the convenience Director General of Prisons,
of the Minister of Jails, Haryana further will forward a
Haryana so that cases of copy of the decision taken by
review under this policy are the committee alongwith the
not delayed. The Additional roll of each of the life convict to
Director General/Inspector the State Government within
General of Prisons, Haryana, one week for further action.
will forward a copy of the Such cases will be put up
decision taken by the State to the Governor through the
Level Committee alongwith Minister for Jails and the Chief
the roll of each of the life Minister, Haryana with full
convicts to the Government background of the prisoner
within one week for further and recommendations of
action. the committee alongwith
the copy of judgement etc.
5. Such cases will be put
for orders under article 161
up to the Governor through
of the Constitution of India.”
the Minister for Jails and
the Chief Minister, with full
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 Superintendent, Jails & Under Secretary Jails
Official Judicial, for Commissioner & Judicial, for Financial
& Secretary to Govt., Commissioner & Principal
Haryana, Jails Department. Secretary to Govt., Haryana,
Jails Department.
No. 36/135/91-1JJ(II)
Dated 4-2-1993, Endst. No. 36/135/91-1JJ(II)
Chandigarh. Dated 12-04-02. Chandigarh
566 [2026] 7 S.C.R.
Supreme Court Reports
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., Haryana, conferred by Sub-section
Jails Department (1) of Section 432 read with
Section 433 of the Code
To: The Director General of
of Criminal Procedure,
Prisons, Haryana, Manimajra,
1973 (Act 2 of 1974) and in
Chandigarh
supersession of Haryana
Memo No. 36/135/91-1JJ(II) Government Memo No.
Dated, Chandigarh the 12- 36/135/91-1JJ(II), dated
4-2002 the 12th 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 “5. The Director General of “8. The Director General of
paragraph Prisons, Haryana shall put Prisons, Haryana shall put
up all such premature release up all such premature release
cases to the State Level cases to the State Level
Committee for consideration. Committee for consideration.
The committee will meet once The Committee will meet
in three months according once in three months, so that
to the convenience of the cases of review under this
Minister for Jails, Haryana so policy are not delayed. The
that cases of review under this Director General of Prisons,
policy are not delayed. The Haryana will forward a copy
Director General of Prisons, of the decision taken by the
Haryana further will forward a Committee along with the
copy of the decision taken by commutation roll of each of
the committee along with the the life convict to the State
[2026] 7 S.C.R. 567
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
roll of each of the life convict Government within one week
to the State Government for further action. Such cases
within one week for further will be put up to the Chief
action. Such cases will be put Minister, Haryana along with
up to the Governor through full background of the convicts
the Minister for Jails and the and recommendations of the
Chief Minister, Haryana with Committee and a copy of
full background of the prisoner the Court judgement etc. for
and recommendations of orders under Section 432 Cr.
the committee along with P.C. It is reiterated that no
the copy of judgement etc. convict has fundamental right
for orders under article 161 of remission or shortening
of the Constitution of India.” of sentence. The State
Government in 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.”
568 [2026] 7 S.C.R.
Supreme Court Reports
Undersigned Under Secretary Jails Financial Commissioner
Official & Judicial, for Financial and Principal Secretary to
Commissioner & Principal Government Haryana, Jails
Secretary to Govt., Haryana, Department.
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
[2026] 7 S.C.R. 569
Parveen Kumar @ Parveen Chauhan v.
State of Haryana & Ors.
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
15 (2014) 16 SCC 623
16 (2020) 4 SCC 1
17 (2002) 1 SCC 1
18 (2005) 2 SCC 673
19 (2024) 20 SCC 709
570 [2026] 7 S.C.R.
Supreme Court Reports
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.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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