2026 INSC 667 Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 1 of 16

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. ................. OF 2026

(@Special Leave Petition (Criminal) No.9920 of 2026)

PARVEEN KUMAR@ PARVEEN CHAUHAN … APPELLANT(S)

Versus

STATE OF HARYANA & ORS. … RESPONDENT(S)

J U D G M E N T

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 12

th

April 2002 or the

subsequent Policy dated 13

th

August 2008 termed as ‘Premature Release of Life

Convicts 2008

2

’ as notified by the Jails and Judicial Department, Government of

Haryana.

1

2002 Policy

2

2008 Policy

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 2 of 16

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 3

rd

January 2009 in connection with FIR No.670 of 2007 dated 25

th

September 2007

lodged at PS City, Gurgaon. He was sentenced to undergo life imprisonment

under Section 302 Indian Penal Code, 1860

3

, five years of imprisonment under

Section 365 IPC and two years under Section 201 IPC. The High Court by

judgment

4

dated 16

th

July 2013 partly allowed the appeal setting aside the

conviction under Section 365 IPC. Appeal against the said judgment to this Court

was dismissed

5

by an order dated 15

th

September 2015 which has attained finality.

4. On 26

th

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 petition

6

against

his pending representation, which was disposed on 16

th

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 20

th

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 21

st

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

petition

7

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

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 3 of 16

Haryana v. Jagdish

8

. By an order dated 27

th

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 1973

9

, 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

10

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.

8

(2010) 4 SCC 216

9

CrPC

10

(2021) 9 SCC 292

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 4 of 16

Sr.No Date of Policy Provision read therewith

1 10.11.1971 (Memo No.13311-6JJ-71/39656)

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)

Section 432 CrPC read with

para 516-B of the Punjab Jail

Manual

2 23.04.1987 (Memo No.36/11/86-JJ(2)

Amended by:

- 01.02.1988 (Upon announcement by CM)

(Circular No.1190-1209/GI/G-3)

Section 433 of CrPC

3 28.09.1988 (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)

Section 433-A CrPC

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)

- 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)

Article 161 of the

Constitution of India

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 5 of 16

- 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. Balwan

11

, and State of

Haryana v. Mahender Singh

12

, on the one hand; and State of Haryana v. Bhup

Singh

13

, 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;

11

(1999) 7 SCC 355

12

(2007) 13 SCC 606

13

(2009) 2 SCC 268

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 6 of 16

(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 Theatre

14

, it is concluded that the policy instructions

14

(2004) 12 SCC 278

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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)

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 8 of 16

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

& Secy. to Govt., Haryana,

Jails Department

To: The Addl. Director

General of Prisons,

Haryana, Manimajra,

Chandigarh

Memo. No. 36/135/91-

1JJ(II) Dated Chandigarh,

the 4-2-1993

From: The Financial

Commissioner & Principal

Secretary to Govt.,

Haryana, Jails Department

To:The Director General of

Prisons, Haryana,

Manimajra, Chandigarh

Memo No. 36/135/91-

1JJ(II) Dated, Chandigarh

the 12-4-2002

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 9 of 16

Subject: Policy regarding premature

release of life convicts.

Policy regarding premature

release of life convicts.

Relevant paragraph “4. … Additional Director

General/Inspector General

of Prisons, Haryana, who

will place the matter before

the State Level Committee

alongwith his comments for

consideration. He will very

clearly indicate the category

under which each case is

covered. The Committee

will meet once in 3 months

according to the

convenience of the Minister

of Jails, Haryana so that

cases of review under this

policy are not delayed. The

Additional Director

General/Inspector General

of Prisons, Haryana, will

forward a copy of the

decision taken by the State

Level Committee alongwith

the roll of each of the life

convicts to the Government

within one week for further

action.

5. Such cases will be put

up to the Governor

through 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.”

“5. The Director General of

Prisons, Haryana shall put

up all such premature

release cases to the State

Level Committee for

consideration. The

committee will meet once in

three months according to

the convenience of the

Minister for Jails, Haryana

so that cases of review

under this policy are not

delayed. The Director

General of Prisons, Haryana

further will forward a copy

of the decision taken by the

committee alongwith the

roll of each of the life

convict to the State

Government within one

week for further action.

Such cases will be put up

to the Governor through

the Minister for Jails and

the Chief Minister, Haryana

with full background of

the prisoner and

recommendations of the

committee alongwith the

copy of judgement etc. for

orders under article 161 of

the Constitution of India.”

Undersigned Official Superintendent, Jails &

Judicial,

Under Secretary Jails &

Judicial,

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 10 of 16

for Commissioner &

Secretary to Govt.,

Haryana, Jails

Department.

No. 36/135/91-1JJ(II)

Dated 4 -2-1993,

Chandigarh.

for Financial

Commissioner &

Principal Secretary to

Govt., Haryana, Jails

Department.

Endst. No. 36/135/91-

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

Commissioner & Principal

Secretary to Govt.,

Haryana, Jails Department

To: The Director General of

Prisons, Haryana,

Manimajra, Chandigarh

Memo No. 36/135/91-

1JJ(II) Dated, Chandigarh

the 12-4-2002

No. 36/135/91-1JJ(II).— In

exercise of the powers

conferred by Sub-section

(1) of Section 432 read

with Section 433 of the

Code of Criminal

Procedure, 1973 (Act 2 of

1974) and in supersession

of Haryana Government

Memo No. 36/135/91-

1JJ(II), dated the 12th

April, 2002 and all other

earlier policies, the

Governor of Haryana

hereby frames the

following policy regarding

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 11 of 16

premature release of life

convicts…

Subject: Policy regarding premature

release of life convicts.

-----

Relevant paragraph “5. The Director General of

Prisons, Haryana shall put

up all such premature

release cases to the State

Level Committee for

consideration. The

committee will meet once in

three months according to

the convenience of the

Minister for Jails, Haryana

so that cases of review

under this policy are not

delayed. The Director

General of Prisons, Haryana

further will forward a copy

of the decision taken by the

committee along with the

roll of each of the life

convict to the State

Government within one

week for further action.

Such cases will be put up to

the Governor through the

Minister for Jails and the

Chief Minister, Haryana

with full background of the

prisoner and

recommendations of the

committee along with the

copy of judgement etc. for

orders under article 161 of

the Constitution of India.”

“8. The Director General of

Prisons, Haryana shall put

up all such premature

release cases to the State

Level Committee for

consideration. The

Committee will meet once

in three months, so that

cases of review under this

policy are not delayed. The

Director General of Prisons,

Haryana will forward a copy

of the decision taken by the

Committee along with the

commutation roll of each of

the life convict to the State

Government within one

week for further action.

Such cases will be put up to

the Chief Minister, Haryana

along with full background

of the convicts and

recommendations of the

Committee and a copy of

the Court judgement etc. for

orders under Section 432

Cr. P.C. It is reiterated that

no convict has fundamental

right of remission or

shortening 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

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 12 of 16

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 &

Judicial,

for Financial

Commissioner &

Principal Secretary to

Govt., Haryana, Jails

Department.

Endst. No. 36/135/91-

1JJ(II)

Dated 12 -04-02.

Chandigarh.

Financial Commissioner

and Principal Secretary to

Government Haryana,

Jails Department.

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

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 13 of 16

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;

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 14 of 16

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 Maharashtra

15

; Shah Faesal v. Union

of India

16

; Pradip Chandra Parija v. Pramod Chandra Patnaik

17

; Central

Board of Dawoodi Bohra Community v. State of Maharashtra

18

; 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

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

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 15 of 16

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.

Crl.App.No….of 2026 @ SLP(Crl)No.9920 of 2026 Page 16 of 16

Appeal is accordingly allowed and pending applications if any are disposed

of.

……………………… ……………………… J.

(SANJAY KAROL )

……………………………… ………………J.

(NONGMEIKAPAM KOTISWAR SINGH)

New Delhi;

July 1, 2026