Baldev Raj vs State of Punjab

M.R. Sharma, J.

Baldev Raj convict undergoing life imprisonment, addressed a letter to the Chairman, Committee for implementing Legal Aid Schemes, New Delhi, wherein he made out a grievance that he was 18 years old at the time of commission of the offence for which he was convicted under section 302 of the Indian Penal Code; if remissions were taken into consideration he had undergone 22 years 2 months'' imprisonment during the period he remained in jail he did not commit a single jail offence, passed Giani and B.A. examinations while undergoing life imprisonment, availed of 5 items of parole/furlough without any trouble outside the jail and yet his case for premature release was not properly considered by the State Government. In his letter he mentioned the cases of three persons, namely, Mohinder Singh, Bhagwan Singh and Piara Singh, who were also undergoing life imprisonment on murder charges, and who had been granted premature release. This letter was forwarded to me, upon which I ordered that it should be registered as Criminal Miscellaneous petition, appointed Shri V.K. Jindal, Advocate, on behalf of the petitioner and issued notice to the learned AdvocateGeneral, Punjab, to show cause why the petitioner be not ordered to be released from custody. I had also ordered that the learned counsel for the State should produce the records of the cases of the persons mentioned in the petition, who according to the petitioner, had been released even though the reports were against them.

The Inspector General of Prisons, Punjab filed an affidavit in reply, stating therein that the case of the petitioner for premature release was considered by the State Government on December 31, 1981, and rejected with the remarks that it may again be submitted to the Government after 6 months along with fresh report. In compliance with the aforementioned direction of the State Government, the case was resubmitted to it and rejected by it on November 26, 1982.

When the case came up for hearing before me a couple of days before, it was represented by Shri V.P. Prashar, learned Assistant Advocate General. Punjab, that the petitioner belonged to Uttar Pradesh and the Government usually took into consideration the views expressed by the Deputy Commissioner and the Superintendent of Police of the District, wherein the convict usually resides and the reports of those officers were against the petitioner.

I have perused those reports today. The police authorities of District Bijnore have conceded that the petitioner was given paroles for a number of times but there was nothing on the record to show about his character as a lawabiding citizen one way or the other. The learned Assistant Advocate General also showed me the record of the District Level Committee, Kapurthala, which did not recommend the case of the petitioner. The record shows that the matter was inquired into by the Assistant Sub Inspector of Police, who went to the village where the offence had been committed by the petitioner and collected the opinions expressed by respectable citizens. His report indicates that the close heirs of the victims apprehended that if the petitioner was released, he might again commit another crime. This opinion expressed by the A.S.I. was endorsed by the higher officers and on the basis of this opinion the District Level Committee made a report against the petitioner.

Today an affidavit has been filed by the Deputy Secretary to Government, Punjab, Department of Home Affairs Justice, Punjab. In this affidavit it has been mentioned that the petitioner was awarded death sentence, which was later on committed to imprisonment for life by the President of India. It has also been mentioned that the case of such persons, whose death sentence is commuted to that of life imprisonment on their mercy petitions, is considered when they undergo 14 years actual sentence in case of adults about the age of 20 years and 10 years actual imprisonment in the case of juveniles and women prisoners. The affidavit also mentions the dates on which the case of the petitioner for premature release had been considered on earlier occasions.

Mr. Jindal, learned counsel for the petitioner, has submitted that the new policy of the State Government under which the case of the convicts who were below the age of 20 years at the time of their respective convictions, could not be governed by the new instructions adopted by the State Government on January 30, 1970 and such cases had to be decided on the basis of para 516B of the Punjab Jail Manual, which lays down that the cases of male persons under 20 years of age at the time of the commission of the offence have to be considered or remature release after they have undergone 10 years of imprisonment including remissions. The learned counsel argued that the newly introduced policy of the State Government was challenged in Criminal Writ Petition No. 215 of 1981 (Mehar Singh v. State of Punjab and another) decided on April 19, 1982. Therein the newly adopted instructions of the State Government on this subject were held not to have retrospective effect. This view was endorsed by another learned Judge of this Court in Criminal Writ Petition No. 363 of 1982 (Gurdev Singh v. State of Punjab) decided on November 23, 1982. I am in respectful agreement with the view taken in the aforementioned two cases because this view in consonance with the spirit of Article 20 of the Constitution. In the circumstances, I hold that the case of the petitioner for premature release deserved to be considered after he had put in 10 years'' imprisonment including remissions.

The learned counsel for the State has argued that para 516B of the Punjab Jail Manual does not apply to the case of a person who had earlier been awarded death sentence and whose sentence of death is commuted to life imprisonment on a mercy petition. I do not find any merit in this submission. If the President of India, in exercise of his constitutional power of clemency, commutes death sentence into life imprisonment, then the persons concerned would be deemed to have been awarded life imprisonment in the eyes of law. It therefore, follows that whatever privileges accrue to a convict under the Punjab Jail Manual regarding the consideration of his case for premature release, would be available also to convict whose death sentence is commuted to life imprisonment.

I would like to notice at this place that petitioner did not commit any jail offence for over 9 years i.e. the period for which he remained in custody. During this period he availed of five chances of going out on parole and returned to custody without any untoward incident, while undergoing imprisonment, he passed Giani and B.A. examinations. The InspectorGeneral of Prisons did recommend his case for premature release.

Mohinder Singh convict, whose name appears in the letter, committed two jail offences. Bhagwan Singh committed one jail offence Piara Singh committed two jail offences. Their cases were also recommended for premature release by the InspectorGeneral of Prisons on the ground that the jail offences committed by them were 1 11/2 years, 5 11/2 years and about 6 years old at the time of their respective releases. None of these three persons did achieve any academic qualifications when they remained in jail. The petitioner''s record is certainly better than the records of the these three persons, who were similarly situated. If the Deputy Commissioner and the Superintendent of Police of District Bijnore (U.P.) did not recommended the case of the petitioner for premature release, the recommendation was based on the ground that there was nothing available against the petitioner in the form of evidence with Police Station Bijnore. The nonrecommendation was in fact akin to a `No Objection Certificate''. The police authorities in Kapurthala District did not have any opportunity of meeting anybody who might have been sympathetically disposed towards the petitioner because all his relations probably resided in Uttar Pradesh. In these circumstances, I feel that the State Government should have attached much more importance to recommendations of the InspectorGeneral of Prisons under whose custody the petitioner had remained. I do not wish to be categoric in my observation on this point because it is for the State Government to decide whether the recommendations made by one officer or the other should be attached more weight or less weight, but I do feel that a person should not be a disadvantage merely because his permanent place of residence happens to be in a different State. In the cases of convicts belonging to other States also the competent authority who has to take a decision for premature release is excepted to keep in view that such cases deserve sympathetic and impartial consideration.

The petitioner was admittedly below 20 years of age at the time of the commission of the offence. Under para 516B of the Punjab Jail Manual, his case for premature release was admittedly due for consideration in May, 1978. Actually the first recommendation was initiated in August 1980 and the first consideration was made on December 31, 1981. In other words, the right of consideration for premature release was denied to the convict for over a period of 11/2 years.

Normally speaking, this Court does not interfere with the powers exercised by the Government under para 516B of the Punjab Jail Manual. If it is shown that the case of a convict is considered at the proper time, the Court declines to go any further. Herein, however, the consideration leaves something to be desired. Even though I do not wish to intrude upon the jurisdiction of the State Government, I deem it proper to make a recommendation to the State Government to make a fresh consideration of the case of the petitioner as early as possible so that the petitioner might not have a feeling that he has been differently treated in the State of Punjab simply on the ground that his place of origin was in the State of Uttar Pradesh. I do hope that the authorities will do full justice to the petitioner.

The petitions stands disposed of accordingly.

Mr. V.P. Prashar, Assistant Advocate General, Punjab, appearing for the State of Punjab, is directed to inform me about the result of fresh consideration made by the State Government.

Let a copy of this order be forwarded to the Chairman, Committee for Implementing Legal Aid Schemes, 3 Janpath Road, New Delhi, for information.

The Legal Remembrancer, Punjab, is directed to pay Rs. 300/ as fee in this case to Shri V.K. Jindal, Advocate.