Avtar Singh Karla vs State of Punjab and ors.

S.K. Jain, J. (Oral)

Avtar Singh, petitioner herein, was tried, convicted and sentenced to undergo imprisonment for life vide judgment of conviction and order of sentence dated 3.7.1982 of Sessions Judge, Patiala. He has filed this petition under section 482, Criminal Procedure Code, read with Articles 226/227 of the Constitution of India, for the grant of premature release. Learned counsel for the petitioner has pressed two points :

(i) that it is evident from para 3 of the order of January 9, 1991 passed by Sh. A.S. Chatha, Financial Commissioner, Home and Secretary to Govt. of Punjab, Deptt. of Home Affairs and Justice, that the petitioner had not committed any jail offence;

(ii) that even if for the sake of argument it is admitted that he had committed a jail offence, then after the lapse of 3 years of the date of alleged commission of offence, it would not be a bar for grant of pre mature release.

I have given a thoughtful consideration to the aforesaid arguments. First argument first. In para 3 of the order of January 9, 1992, it has been stated as under :

"On 5.7.1987, he was found under intoxication and he was got examined from the jail doctor who confirmed that the convict had taken some intoxicating substance. As a punishment, he was kept segregated under para 575 of the Punjab Jail Manual."

In order to arrive at a conclusion as to whether the said punishment fell within the purview of para 575 of the Punjab Jail Manual, it is expedient to examine these provisions :

"575. Procedure when Separation by Day is not Feasible :

A convict who would ordinarily come under the operation of any of the preceding rules relating to the separation of prisoners, but can not be confined in a cell by day, by reason that he is required for some jail service, shall be confined in a cell by night (Part II Rules 232).

Note1 Separation under paragraphs 571 to 575 is distinct from `cellular'' confinement and "separate" confinement inflicted as a punishment under section 46 of the Prisons Act, and is restricted merely to the separation of individual prisoners either by day or night for the purpose of jail management; such separation is not to have any irksome conditions attached to it. (Paras 612 (10) and (8).

Note2 Paragraphs 571 to 575 are of general application, if in the opinion of the Suptd., the presence of any convict in association with others, is detrimental to good order and discipline or is likely to encourage or lead to the commission of any offence, such convict should be kept separate, in preference to others of his class."

Combined reading of order dated 9.1.1992 and the above provisions would show that the petitioner had been punished for having committed jail offence and that his case was not covered by the said provisions of para 575 of the Punjab Jail Manual. First argument, therefore, is without any force.

Now on to the second argument. Admittedly, the petitioner has undergone 9 years, 6 months and 24 days actual and earned remission for 6 years, 3 months and 21 days upto 8.12.1990 as admitted in para 1 of the written statement filed on behalf of the state.

In paragraph 516B of the Jail Manual as well as instructions of the State Government issued from time to time, an incentive is given to the prisoners for keeping good conduct in the jail in order to earn remission of the sentence and for premature release. Thus, the commission of jail offence by the prisoner herein on 5.7.1987 would not operate as a bar for his premature release for all times to come since in that case the very purpose of giving incentive to a prisoner to behave properly in jail would be frustrated. At the most, such punishment for jail offence would operate as a bar for a period of three years and not for all times to come. Identical question was considered by the following two single Benches of this court and it was held that after the expiry of three years of commission of the last jail offence, the prisoner shall be entitled to premature release :

(i) Charat Singh v. State of Punjab and another, Criminal Writ Petition No. 1414 of 1987, decided on August 4, 1989; and

(ii) Criminal Misc. No. 332M of 1991, Decided on August 6, 1991.

As mentioned hereinbefore, the jail offence was committed by the prisoner herein on 5.7.1987, i.e. more than four years ago. Thus, it appears to be a clear case of discrimination against the petitioner on the basis of national misconception regarding his misconduct in the jail. He is, therefore, directed to be released prematurely on the usual terms and conditions. The writ petition is allowed accordingly.