Anil Kumar vs Union Territory Administration

S.S. Rathor, J.

Through this writ petition under Articles 26/227 of the Constitution of India, the petitioner, who is a convict and is undergoing lifeimprisonment for having committed an offence under Sections 302/307, IPC read with Section 27 of the Arms Act, immediately after the occurrence, was arrested on 2.7.1982 and was convicted for the said offences by the learned Sessions Judge, Chandigarh vide judgment dated 12.4.1983 and appeal against the said judgment was dismissed by this Court on 26.8.1983. The petitioner has categorically stated that he was about 16 years of age at the time of commission of offence as well as at the time of his conviction by the trial Court his age so recorded of 16 years in the judgment of the trial Court convicting him. In this petition, filed on 16.7.1990, he has further stated he was in judicial lock up during trial for a period of 9 months and 19 days. Actual sentence undergone by him on the date of his filing this petition is 7 years, 1 month and 9 days, alongwith total earned remissions under the Jail Manual rules of 5 years and 2 months. As such, total sentence undergone by him on the date of filing the present petition comes to 13 years and 8 days. It has also been stated that the act and conduct of the petitioner in Jail had been excellent throughout and he has not earned any punishment at all.

The other facts and reliance placed upon few judgments of the Supreme Court in the petition, are not considered relevant at this stage. On the aforesaid broad allegations and material facts, the petitioner has sought a direction from this Court holding that he is entitled to be considered for premature release under Article 161 of the Constitution of India.

The sole respondent, Union Territory Administration through its Secretary, Home Department, Chandigarh, has filed written statement to the petition. The facts as to age and total period of imprisonment under gone by him, have not be disputed. The other plea raised is that petition under Article 161 of the Constitution of India is not maintainable as the respondent, Union Territory is incompetent to decide his premature release petition. It has been further averred that the petitioner ought to have filed his representation/mercy petition for premature release to the President of India under Article 72 of the Constitution of India.

It is true that mercy petition of the petitioner for premature release is to be decided by the President of India, Chandigarh Administration being a Union Territory wherein trial took place and the petitioner has undergone imprisonment. But the petitioner being in the jail, could only make his representation to the respondent Union Territory Administration through its Secretary, Home Department, Chandigarh through the Superintendent Jail concerned. In the petition it has been specifically averred that his mercy petition for premature release sent by him has not been decided till filing of the petition in this Court. This fact has not been denied in the written statement. However, on the direction of the Court copy of order from the Home Secretary, Chandigarh Administration to Inspector General of Prisons, U.T. Chandigarh bearing Memo No. 6512HII (6)90/2390, dated 28.1.1990 has been placed on record, wherein it is mentioned that the mercy petition of the petitioner had been considered and rejected by the Administration. It was further stated that the convict be informed to approach the President of India under Article 72 of the Constitution of India. Passing of this order does not find mention in the written statement filed by the respondent. On the point of maintainability of the mercy petition, the stand taken in the written statement is that it lies to the President of India under Article 72 of the Constitution of India.

The aforesaid letter is only a communication and on the asking of the Court, the original record was shown to the Court by the Counsel for the respondent wherein also only remark made is that petition lies to the President. So the said mercy petition has not been decided on merits as it does not lie and cannot be decided by respondent and it lies to the President only under Article 72 of the Constitution of India. As stated earlier and conceded by the counsel for the petitioner, the mercy petition of the petitioner for premature release has to be considered and decided by the President of India. The fact remains that the petitioner is languishing in the jail and is seeking his cherished right of liberty through the mercy petition. He could move his petition through the jail authorities to the Home Secretary, Chandigarh Administration, Chandigarh. It does not lie in the mouth of the respondentHome Secretary, Chandigarh Administration Chandigarh that his mercy petition is dismissed being not maintainable and he should be directed to move fresh mercy petition directly to the President of India under Article 72 of the Constitution of India. When once the mercy petition had been brought before the respondent through the jail authorities, it was imperative obligation on the part of the respondent to refer the mercy petition to the President of India irrespective of the fact whether the petition as drafted was under Article 161 of the Constitution of India or under Article 72 of the Constitution of India. The respondent ought to have cared to look into the faith and substance of the mercy petition. The respondent should not have adhered to the technicalities of law which are of no significance regarding the incorrect mentioning of provisions of law in the petition. It is undisputed that even the mercy petition before the President of India made by the petitioner would have been channelised by the jail authorities through respondentHome Secretary.

From the observations made above, the only conclusion arrived at is that the mercy petition of the petitioner has not been adjudicated upon and would be deemed to be yet pending. The respondentHome Secretary would treat the said mercy petition still alive and pending before him and shall lose no time in sending the same to the President of India alongwith other relevant and necessary records of the case in his possession. The petitioner has also sought reliance on order No. 12380BII (3)89/25309, dated 2.12.1989, issued by Chandigarh Administration, Home Department, wherein guidelines have been laid down for the consideration of premature release. A copy of said order alongwith all the irrelevant instructions be also sent to the President of India.

The petitioner has also prayed that he may be enlarged on bail during pendency of the mercy petition for premature release. I am unable to accept this prayer of the petitioner in view of the latest judgment of the apex Court reported as State of Punjab v. Babu Singh, 1991(3) Recent Criminal Reports 564 : JT 1991 (2) SC 347. Of course the concession of bail is not available to the petitioner in view of the aforesaid judgment of the Supreme Court but it does not deprive the petitioner for the consideration of his mercy petition for premature release in terms of law i.e. Article 72 of the Constitution of India as early as possible, preferably within a period of the three months from the date of this order as so observed again by the apex Court in case reported as Sher Singh v. State of Punjab, AIR 1983 SC 645. In this judgment, period of three months was granted from the date of filing the representation. Keeping in view the facts and circumstances of the case, and as the mercy petition is yet lying with the respondentHome Secretary, Chandigarh Administration undecided, it would be deemed to be pending having been filed earlier.

Before parting with this order, I must emphasise the fact which is very relevant for consideration of the mercy petitions for premature release that the petitioner was admittedly 16 years of age at the time commission of offence and his age so was recorded as 16 years in the judgment of the trial court. The tender age of an offender has been taken note of by the law from time to time being very important aspect of criminology. Latently, the Juvenile Justice Act, 1986 has been brought into force with effect from 1.12.1986. Before this, differrent States had Children''s Act in their respective areas. I need not disuss teh provisions of the said Act/statute and even of the Juvenile Justice Act, 1986. It is suffice to say that the Children''s Act as well as the Juvenile Act treat the delinquent childrens juveniles as a special class and provide special procedure for enquiry in respect of charges levelled against them. Even if those serious charges of even murder and rap are established, a very liberal approach has been provided in respect of punishments for such offences. A statutory bar has been put on sending the child/juvenile to the jail custody either before, during or after the enquiry. Two judgments of the Supreme Court reported as Gopi Nath Ghosh v. State of West Bengal, 1984 CAR SC 91 and Supreme Court Legal Aid Committee v. Union of India, AIR 1989 SC 1278, have extensively death with and laid down the guidelines as to who the child/delinquent is to be dealt with by law and his right to remain as a free citizen in the society. In Gopi Nath''s case (supra), the Hon''ble Supreme Court set aside the conviction in appeal where age question was raised for the first time and it was held that the trial was bad and without jurisdiction. In the present case, unfortunately no appeal is pending before the Supreme Court and the judgment of the High Court has become final. I have taken note of the aforesaid Supreme Court''s judgments to emphasise that age factor even at this stage should be given due consideration for final disposal of the mercy petition for premature release. As the age factor has not been disputed by the respondentUnion Territory in the written statement, a judicial notice of the same can be conveniently taken as a fact admitted.

Resultantly, this petition is disposed of in the terms indicated above but with a positive direction to the respondent that the petition filed by the petitioner, addressed to the respondentHome Secretary, Chandigarh Administration under Article 161 of the Constitution of India, would be treated to be a petition under Article 72 of the Constitution of India and the same be sent to the President of India without any further loss of time immediately on receipt of this order. A copy of this order be sent to the respondentHome Secretary, Chandigarh Administration, Chandigarh. And it is hoped that due care and caution would be given for speedy disposal of the mercy petition and if the petitioner is not satisfied with the order disposing of his mercy petition for premature release, he shall be at liberty to challenge the same in a Court of law, if so advised.

JUDGMENT accordingly