Arsal Singh vs State of Punjab and ors.

G.S. Chahal, J.

Arsal Singh has moved this criminal miscellaneous under section 482 Cr. P.C. read with Articles 226/227 of the Constitution of India, seeking his premature release under Article 161 of the Constitution of India.

According to the petitioner, he was convicted and sentenced to life imprisonment by the learned Sessions Judge, Ferozepur on 22989. On the date of moving this criminal miscellaneous, he had undergone 9 years 2 months actual sentence. He claims to have earned remissions exceeding 6 years and 6 months. He has maintained satisfactory conduct in the jail and not committed any jail offence. He has enjoyed parole/furlough on numerous occasions and no complaint was made against his conduct. The State had issued instructions P1 to P3, laying down the guidelines for decision of mercy petitions and grant of premature release. His case having not been considered for premature release, he moved Criminal Writ No. 3830 of 1989 and vide judgment dated 11490 a direction was issued therein for decision of his mercy petition by 31.790. It was also ordered therein that in case his mercy petition was not decided within the period stipulated by the Court, he would be allowed bail. His mercy petition was not decided and he was released on bail in the month of August 1990, for two weeks. The State Govt. has since rejected his mercy petition vide order Annexure P5 dated 201190. That his mercy petition has been rejected on the basis that there was apprehension of breach of peace in case of his release and that the Panchayat was reluctant to take the responsibility. There was absence of grounds for exercise of discretion by the respondentauthorities for rejecting his mercy petition. The petitioner challenges the validity of Annexure P5.

In the return filed by the respondentauthorities, it was admitted that the petitioner had undergone actual sentence for 9 years, 2 months and 7 days and earned remissions for 7 years and 11 days and at present, he was on bail under orders of this Court, in Cr. WP 3830 of 1989. The mercy petition in question has since been considered and rejected for the reasons given in Annexure P. 5. While deciding the mercy petition, a number of factors, including the facts and circumstances of the case; character of the convict; his conduct inside and outside jail; tendency to revert to crime or to instigate others to commit crime and grounds of compassionate nature, if any, have to be taken into account, besides the period of imprisonment undergone. In case of intractably savage delinquents, even 14 years of actual sentence, as laid down in section 433A, Cr. PC could be taken as a guideline. The minimum requisite period only entitled a convict to have his case considered and not his release.

Annexure P 5, so far as it gives reasons for rejecting the mercy petition, runs as under :

"3. The mercy petition has been considered keeping in view the facts and circumstances of the case and the other instructions/guidelines issued in this regard. The facts of the case show that this double murder was not the result of any sudden provocation. A large chunk of land measuring 35 acres was involved and the accused party wanted to dispossess the aggrieved party from the said piece of land. They made all efforts to dispossess the complainant party and it was with the same purpose that when Arsal Singh convict and others had gone to the fields to remove the fallen tree, they had gone fully armed with lethal weapons. It was, therefore, not a case of sudden provocation.

Smt. Balbir Kaur widow of Jagir Singh, one of the deceased, apprehends danger. She has gone on record to say that whenever they come on parole/furlough, she does not send her minor children even to the fields. Even the local panchayat is reluctant to take any responsibility for Arsal Singh convict. In such a situation, there is hardly any ground keeping which in view, the prerogative of mercy may be exercised in his favour.

In instructions Annexure P 3, instruction No. 6 reads as follows :

After introduction of section 433A of Cr. PC w.e.f. 18121978, since every premature release case of a lifer convict will be taken up after he has completed 14 years actual sentence in jail a minimum of 5/6 years for juvenile and women prisoners and 71/2 and 81/2 years for adult male prisoners can be taken as one of the guidelines for release on mercy petition."

It has been held in a number of authorities of this Court that instruction No. 6 is an independent instruction and the mercy petition can be allowed and premature release ordered if the condition in this instruction is met with. Admittedly, the petitioner had undergone the prescribed period of sentence. He had maintained satisfactory conduct during his stay in jail and had not committed any jail offence. The respondent authorities do not claim that at the time of his going on parole or furlough, the petitioner had committed some such acts which might justify the conclusion that there was apprehension of breach of peace. The background in which the murder was committed, was hardly relevant to reach the conclusion that there were chances of breach of peace.

The law is well settled that vague allegations relating to breach of peace are not relevant for withholding the concession of premature release.

In Bhagwat Saran & others. v. State of U.P. & others, 1983(1) Chandigarh Law Reporter 504, their Lordships of the Supreme Court observed as under :

"After hearing counsel on either side and considering the affidavit of the respondents filed herein we are satisfied that it is a case where the Committee''s recommendations should have been accepted by the Government. The Committee had recommended the release of these prisoners after taking into consideration their behaviour inside the jail as well as other factors. The only ground given by the State in the counter affidavit is that "after considering their cases sympathetically, keeping in view the law and order situation, they cannot be released." A bald statement like that without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted. In fact, there are no reasons. We direct that the petitioner be released forthwith."

In Bhupinder Singh v. State of Punjab, 1990(1) Recent C.R. 689, it was again observed that if the village respectables apprehend danger from the convict his premature release cannot be refused on this ground. Such a contingency can be met by demanding heavy surety.

In the present case, the only apprehension shown is that the widow of the victim of crime had not been sending her children to the school when. ever petitioner went on parole. This conduct of Smt. Balbir Kaur was based on her own apprehension and without any further act of the petitioner.

In the light of the foregoing discussion, the impugned order of rejecting the mercy petition needs reconsideration by the respondent authorities. I hereby allow the criminal miscellaneous and issue a direction to the respondentauthorities to reconsider the mercy petition of the petitioner and dispose of the same expeditiously, preferably within three months.

JUDGMENT accordingly.