Ashok Kumar vs State of Haryana and anr.

K.S. Bhalla, J.

Petitioner Ashok Kumar is undergoing life imprisonment in District Jail, Gurgaon. He was convicted by Sessions Judge, Narnaul. on 15th January, 1990, that is after the enforcement of Section 433 A of the Code of Criminal Procedure, 1973, which came into force on 18th December, 1978. In this writ petition be has prayed that direction be issued to the respondent State of Haryana to consider and decide his case of premature release. The petition is resisted by the State of Haryana, Respondent No. 1, and the superintendent, District Jail, Gurgaon, Respondent No. 2, on the plea that the petitioner''s case for premature release cannot be considered as he has not yet complete 14 years'' actual imprisonment as provided in Section 134A of the Code.

Relying on judgment of the Supreme Court in Maru Ram etc. v. Union of India and others, AIR 1980 S.C. 2147, it has been held by a Division Bench of this court in Ranbir Singh v. State of Haryana etc. 1987(2) Recent CR 268 , (Criminal writ petition No. 628 of 1985) decided on May 2, 1986, that para 516 B of the Punjab Jail Manual and similar executive instructions issued before 18th December, 1978, the date on which Section 433A was enforced, cannot be invoked by the detents who were convicted after due date. It was observed there in that the correct interpretation of Matu Ram''s case is that Section 433A of the Code has a sway ever para 516B of the Punjab Jail Manual or similar other executive instructions regarding the early release of the life convicts, whose cases fall under this section. These convicts are a class apart and cannot invoke the aid of the instructions, incompatible with section 433.A of the Code, issued by Central or State Governments prior to 18th of December, 1978."

The wide powers of executive clemency were accepted in Maru Ram''s case (supra) and it was observed that section 433A by no means precludes the State adopting as working rules the same remission schemes, which seems to be fairly reasonable, meaning thereby that executive instructions with regard to remissions were possible even after 18th December, 1978, irrespective of the said provision of the Code. But, before taking any such advantage the petitioner must prove that some such instruction/scheme was issued by the State of Haryana.

The learned counsel on behalf of the petitioner could not point out any instructions issued by the State of Haryana after 18th of December, 1978, in the light of section 433A of the Code of Criminal Procedure. In the absence thereof, the instant petition is not maintainable, it being not disputed that the case of the petitioner lies within the four corners of section 433A, which picks out of a mass of imprisonment cases a specific class of life imprisonment cases and subjects it explicitly to a particularised treatment.

Memo No. 43/19/83 JJ(2) dated 27th February, 1984, referred to in para No. 6 of the petition, a copy of which has been placed on the record as Annexure R1 on behalf of the respondents, cannot possibly be termed as instructions of remission by way of policy issued by Haryana Government in the light of section 433A of the Code of Criminal Procedure, 1973. On the other hard it is a clarification issued with regard, to its instructions issued on 28th November, 1977 that is, before coming into force of section 433A through Haryana Government Memo. No. 74832 JJ.77 300099. copy of which instructions is Annexure R2. This memo dated 27th February, 1984, was issued in response to the reference made by the Inspector General of Prisons, Haryana, Chandigarh, through his memo No. 3270 dated 21st February, 1984. copy of which is Annexure R3, and it has been specifically referred to in Annexure R. 1. In the said letter dated 27th February, 1984, copy Annexure R1, the instructions issued in November, 1977, were reiterated and it was clarified that the same did not apply to those life convicts whose death sentence had been commuted to that of life imprisonment by the President of India or by the Governor of the State on acceptance of mercy petitions, and their cases forpremature release were required to continue to be considered on the basis of guidelines envisaged in the Government policy dated 12th December, 1967, and the same was also reproduced. Said memo./letter does not contain any fresh instructions in the light of section 433A, which may be of any advantage to the persons convicted after coming into operation of Section 433A of the Code of Criminal Procedure.

There was nothing wrong in issuing clarification with regard to 1977 instructions. Subsequent to enforcement of Section 433A, because the persons who had been convicted by the sentencing Court before December 8, 1978, were still entitled to the benefits accruing to them from the remission scheme or short sentencing projects as if Section 433A did not stand in their way, as observed by the Supreme Court in Maru Ram''s case (supra) Similarly, if the Appellate Court reverses an earlier acquittal rendered before section 433A came into force, but allows the appeal and convicts the accused after section 433A came into force, such persons will also be entitled to the benefit of the remission system prevalent prior to Section 433A. This memo, however, as it relates to instructions of the year 1977, that is, prior to 18th December, 1978, cannot be of any advantage to the petitioner, who admittedly was convicted and sentenced after coming into force of section 433A of the Code of Criminal Procedure, 1973.

The result is that there is no merit in the present petition and the same is hereby dismissed.