Arjan Singh vs State of Punjab

V.S. Aggarwal, J.

Petitioner was tried for the offences punishable under Sections 302/307/148 and 149 of the Indian Penal Code along with others. This pertained to a first information report dated 17.6.1981 registered at Police Station Dinanagar. He was arrested on 27.6.1981. The learned Additional Sessions Judge, Gurdaspur held the petitioner guilty and sentenced him to imprisonment for life and a fine of Rs. 500/ for the offence punishable under Section 302/34 IPC. For the offence punishable under Section 307 IPC, he was sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs. 100/. He was sentenced to undergo rigorous imprisonment for one year for the offence punishable under Section 324/34 IPC. All the sentences were directed to run concurrently. The appeal filed by the petitioner was dismissed by this Court. The petitioner contends that he was convicted on 23.11.1981. He remained in jail till 11.5.1987. He was on bail from 12.5.1987 to 30.5.1995 when his Special Leave petition was pending in the Supreme Court. He surrendered on 1.6.1995 and since then is confined in jail.

By virtue of the present petition, it is claimed that petitioner was aged 17 years at the time of conviction. The learned Sessions Judge recorded the age of the petitioner as 17 years though observed that he appears to be 20 or 21 years of age.

Learned counsel for the petitioner contends that his case should have been considered in accordance with paragraph 516B of the Punjab Jail Manual since the petitioner was below the age of 18 years. He should be released in accordance with instructions issued under Article 161 of the Constitution of India. Needless to say that petition as such has been contested. Despite the opportunity, reply has not been filed. On 13.1.1997 last opportunity was given to the respondents to file the reply but the respondents did not care to do so. In these circumstances, there was no occasion for giving any further opportunity to the respondents to file the reply.

Learned counsel for the respondents in any case urged that the petitioner was not below 18 years of age on the date when the incident took place and consequently, he cannot take advantage of any such instructions. But the said contention has simply to be stated as rejected. The petitioner earlier had filed a petition (Criminal Misc. No. 5024M of 1996). It was decided by this Court on 8.5.1996. A learned Single Judge of this Court held that on the date of the incident, the petitioner was below 20 years of age. The said finding read :

"Along with the petition, petitioner filed Annexures P2 to show that his date of birth is 15.5.1963.

Thus, obviously, on the day of incident on 27.6.1981, he was about 18 years of age. In other words, on the day of incident, he was below 20 years."

Keeping in view the aforesaid, there is no escape but to hold that his Court has already adjudicated that on the date of the incident, the petitioner was below 20 years of age. His date of birth was 15.5.1963.

In that event the learned counsel on behalf of the State contended that under Section 433A of the Code of Criminal Procedure, the convict must undergo 14 years actual sentence and therefore, the petitioner cannot take advantage of any such instructions. Seemingly, this prevailed with the State while rejecting the case of the petitioner when the impugned order was passed. The said order reads :

"Whereas convict Arjan Singh s/o Charan Dass aged (sic) years resident of village Kalanaur District Gurdaspur was convicted under Section 302/34 IPC and awarded imprisonment for life and a fine of Rs. 700/ and in default of payment of fine, 10 months further imprisonment by the Additional Sessions Judge, Gurdaspur vide his order dated 24.11.1981.

The conviction of convict Arjan Singh S/o Charan Dass is of 24.11.1981. His case for premature release has been considered under section 433A of Criminal Procedure Code according to which he is required to undergo 14 years of actual sentence as decided by the Hon''ble Punjab and Haryana High Court in Crl. Misc. No. 11309M of 1994. The convict has undergone actual sentence of 6 years 9 months and 24 days as on 8.5.1996. Accordingly, the case of the convict has been rejected after one considered by the competent authority."

The said contention indeed cannot be accepted. Normally when there is difference of opinion, the matter should have been referred to a larger Bench but when the Supreme Court has already settled the controversy, it is wholly unnecessary to refer the matter to a larger Bench. This question had arisen in the case of Maru Ram etc. v. Union of India and others, AIR 1980 SC 2147. The Supreme Court discussed various aspects of the controversy and finally concluded :

"(1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteenyear gestation for reformation. But ours is to construe, not construct, to decide, not to make a code.

(2) We affirm the current supremacy of Section 433A over the Remission Rules and shortsentencing statutes made by the various States.

(3) We uphold all remissions and shortsentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individually, in that behalf.

(4) We hold that Section 432 and Section 433 are not manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power or partially these prior provisions do not violate or detract from the full operation of the constitutional power to pardon, commute and the like.

(5) We negate the plea that Section 433A contravenes Article 20(1) of the Constitution.

(6) We follow Godse''s case (AIR 1961 SC 600) (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.

(7) We declare that Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years'' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came into force. All ''lifers'' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that shortsentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.

(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.

(9) Considerations for exercise of power under Articles 72 and 161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.

(10) Although the remission rules or shortsentencing provisions proprio vigore may not apply as against Section 433A, they will override Section 433A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Article 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.

(11) The U.P. Prisoners'' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14year duration. Similar other statutes and rules will enjoy similar efficacy.

(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.

(13) We have declared the law all right, but lawinaction fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.

(14) Section 433A does not forbid parole or other release within the 14years span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty."

It is clear from the aforesaid that while constitutional validity of Section 433A of the Code of Criminal Procedure was upheld but the Supreme Court felt that the powers of the State under Article 161 of the Constitution were not interfered with. When necessary instructions have been issued, remissions can be granted in exercise of those constitutional powers. Since remissions can be granted under those orders issued under Article 161 of the Constitution, the petitioner cannot be denied the benefit of it. In face of this decision of the Supreme Court, the decision in Criminal Misc. No. 11309M of 1994 cannot be followed. One respectfully disagress with it.

It is true that the Supreme Court in the case of State of Punjab v. Kesar Singh, 1997(1) RCR 14 held that High Court can give direction for considering the case of the convict for premature release but cannot order the premature release itself. Still when the impugned order has been passed without considering instructions issued under Article 161 of the Constitution of India, the same necessarily has to be quashed. When earlier the petitioner had filed the petition, a direction had been given by this Court to expedite the case of the petitioner for premature release within two months. The case was considered but the relevant instructions issued under the provisions of the Constitution mentioned above, were ignored. It should be so done and direction, therefore, has to be issued in that light.

For these reasons, the impugned order Annexure P8 is quashed. The respondents are directed to consider the case of the petitioner for premature release as per the instructions/orders issued under the provisions of the Constitution (Article 161). This should be done at the earliest preferably within two months from the date of receipt of copy of the order.