Amarjit Singh vs State of Punjab

S.S. Grewal, J.

This petition under Articles 226/227 of the Constitution of India, for the issuance of a writ in the nature of habeas corpus has been filed for the release of Piara Singh detenu, who, was arrested on 31.1.1983. He was convicted under Section 302, Indian Penal Code, and sentenced to undergo rigorous imprisonment for life, by the Sessions Judge, Ropar. The detenu is said to have undergone actual sentence for a period of 5 years, 8 months, and 19 days, and earned remissions to the extent of 3 years, 3 months, and 11 days. These facts have been admitted on behalf of the State of Punjab.

Release of the detenu has been sought on the ground that the detenu has been suffering from ill health, ever since the period, he has been undergoing sentence. The detenu is totally infirm and incapacitated by illness. The instructions dated 21st August, 1986, issued by the State Government, relate to release of all those infirm prisoners, who were incapacitated by illness, provided the release is supported by the recommendations of a committee of three doctors of the District concerned. A copy of the said instructions is Annexure P1 with the petition. These instructions have been supplemented by instructions dated 27th April, 1988 (Copy Annexure P2). A combined reading of these instructions would reveal that the convicts, who, were convinced after 18.12.1978, were entitled to claim benefit of instructions dated 21st August, 1986 (Annexure P1).

Piara Singh detenu was examined on 10th August, 1988 by a board of five doctors headed by Dr. Harbhajan Singh, Civil Surgeon, Patiala and, the Board recommended vide Annexure P3 that the petitioner was incapacitated due to marked hypertension. The detenu has, thus, been illegally denied the benefit of release.

The State in the instant case has not filed any reply. In the reply filed by Dr. Harbhajan Singh, Civil Surgeon, Patiala who, was the President of Medical board, it has been admitted that the detenu was examined by the Medical Officer on 10th August, 1988, in consultation with the Principal, Government Medical College, Patiala, in terms of the instructions contained in Punjab Government letter dated 25th August, 1986, and the Medical report was personally handed over to the Superintendent, Central Jail, Patiala, on 30th August, 1988.

It was contended on behalf of the State Government that the matter is under consideration.

Admittedly, Piara Singh detenu was convicted after 18th December, 1978, and the instructions for premature release under Article 161 of the Constitution of India, including instructions P1 and P2, have to be kept in view for deciding the case of his premature release. On behalf of the State it has mainly been contended that under Article 161 of the Constitution of India, the power of the State to grant mercy is not justiciable and no direction can be issued to the State for consideration even for early disposal of the mercy petition.

It is for the State to exercise its power under Article 161 of the Constitution of India and to grant whatever relief it deems fit to the detenu. However, the State has to make up its mind and decide the application for premature release within a reasonable time I am supported in my view by the latest Supreme Court authority in Criminal Writ Petition No. 651 of 1986 (Sadhu and others v. State of Madhya Pradesh and others), decided on 20th April, 1987, wherein the State Government was directed to consider the application for premature release of the detenu within four months from the date of receipt of such application.

For the foregoing reason, the State is directed to consider the application for premature release of the detenu within a period of two months, because of his prolonged illness, failing which, the detenu shall be at liberty to move this Court for deciding the application.

JUDGMENT accordingly.