Baljit Singh vs State of Punjab

Surinder Singh, J.

This judgment will dispose of Criminal Writ Petition Nos. 16, 17, 19, 39, 48, 59, 60, 71, 73, 81, 98, 108, 110, 111, 115, 154 and 155A, all of 1985, in which common questions of fact and law arise for consideration. The facts in one of these Writ petitioners, namely Criminal Writ Petition No. 16 of 1985 may be noticed. The said petition has been filed by baljit Singh under ARts. 226/227 of the Constitution of India for issuance of a writ in the nature of Habeas Corpus, praying for the release of Gobinjit Singh, son of Dyal Singh, a convict confined in Central Jail, Ludhiana, undergoing life imprisonment. It is stated that the convict was convicted under S. 302. Indian Penal Code, and was sentenced to imprisonment, for life by the Sessions Judge, Jullunder, vide his order, dated Feb. 18, 1982. The following breakup of the Sessions undergone by the convict is mentioned:

Yrs Months Days

Period spent in detention before conviction from 0 3 23

25.5.71 to 18.2.72

Period spent in detention after conviction till 3.1.1985 11 4 8

12 1 1

Less because of bail from 30.6.82 to 6.1.1984 1 6 7

10 6 24

Remissions granted by the Govt. as well as Jail authorities 9 0 8

Total 19 6 24

On the basis of the above data, it is averred that the convict had undergone more than 8 1/2 years of substantive sentence and more than 14 years sentence including remission, even if the the period spent in detention before conviction is excluded.

The averment in the petition is that by virtue of S. 432 of the Code of Criminal Procedure (S. 401 of the Old Code), the case of premature release of life convicts are considered by the State Government. The legislative history of this enactment is traced out to a Resolution passed by the Government of India on Sep. 6, 1905, as power which the cases of life convicts were required to be considered for release after the expiry of 14 years sentence including remissions. The Resolution is said to provide that the local Government while deciding the question of granting remissions, is to take into the consideration the character of the convict, his conduct in the prison and the probability of his reverting to criminal habits or instigating others to commit crime.

It is further averred that the Punjab Government had adopted the guidelines contained in the aforesaid Resolution of the Government of India, for deciding the premature release cases of the convict. In fact, these guidelines have been incorporated in para 516B of the Punjab Jail Manual. This para is reproduced below for ready reference:

Action to be taken on expiry of 14 years. 516B(a) with the exception of females and of males who were under 20 years of age at the time of commission of offence, the case of every convicted prisoner sentenced to :

(i) Imprisonment/s for life.

(ii) Imprisonment/s for life and term/s of imprisonment.

(iii) Cumulative periods of Rigorous imprisonment aggregating of more than 14 years.

(iv) a single sentence of more than 20 years :

(a) who has undergone a a period of detention in jail amounting together with remission earned 14 years, shall be submitted through the Inspector General of Prisons, Punjab for the orders of the State Government.

Action to be taken on expiry of 10 years. (b) the case of a female prisoner under 20 years of age at the time of a commission of offence, who is undergoing :

(i) Imprisonment/s for life.

(ii) Imprisonment/s for life and a term/s of imprisonment.

(iii) Cumulative periods of Rigorous imprisonment aggregating to more than 10 years, or

(iv) A single sentence of more than 20 years shall be submitted through the Inspector General of Prisons, Punjab for the order of the State Government when the prisoner has undergone a period of detention in jail amounting together with remission earned to 10 years.

(v) Notwithstanding anything contained above, Superintendent, Jail may, in his discretion, refer at any time, for the orders of the State Government through the Inspector General of Prisons, Punjab the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent''s opinion be suitably commuted into term of imprisonment.

The contention raised in the petition is that according to the provision notice above, the Government is to take action regarding premature release of convicts just on, the expiry of 14 years sentence including remissions. In the case of prisoners who are below 20 years of age at the time of commission of the offence, this period has been fixed as 10 years instead of 14 years.

It is stated that on May 12, 1977, the Home Secretary of Government, Punjab issued instructions for proposal disposal of premature release cases. In these instructions, copy whereof has been produced as Annexure P/1 to the present petition, it is laid down that the Superintendent, Jail, where the prisoner is undergoing imprisonment, will prepare roll of the prisoner''s Jail record and will send the same to the Convener of the District Level Committee, two months before the date when the case becomes due for consideration. After the recommendation of the Committee, the case is required to be forwarded to the Government through the Inspector General of Prisons, Punjab. The Government is then to decide the question of premature release of the prisoner on the basis of the record collected, strictly in accordance with the instructions, referred to above.

In regard to the specific case of the prisoner in the present Writ petition, it is stated that the question of his premature release was fist time referred to the Govt. in the year 1981. On Aug. 7, 1981 the Government rejected the case of the prisoner for a period of one year. The case was not reconsidered after the expiry of one year, because the prisoner had been granted bail. However, on April 25, 1984, the case was reconsidered by the Government but once again it was deffered for another six months. The third reconsideration also resulted in the case being deferred for still another period of six months vide order passed in Oct. 1984. However, the prisoner was not supplied a copy of this order uptil now, even though he had made an enquiry in this behalf.

The grievance made in the petition is that under Art. 21 of the Constitution of India, no person can be deprived of life or personal liberty except according to the procedure established by law. The power to commute, remit or suspend the sentence is conferred upon the Government vide S. 432 of the Code of Criminal Procedure, and this power is to be exercised in accordance with the instructions, Annexure P/1. The statutory provision in this connection is contained in Para 516B of the Punjab Jail Manual, already noticed. The contention on behalf of the prisoner is that his case for premature release has not been considered by the Government strictly according to the procedure established by law. It is urged that the order passed by the State Government deferring the premature release of the prisoner from time to time, is illegal, void and unconstitutional for various reasons enumerated in the petition. In the wake of these facts and circumstance, a prayer is made that the entire record concerning the case of the prisoner may be summoned and after persual of the same, this Court may issue a Writ of Habeas Corpus directing any further detention of the prisoner is illegal and to release him forthwith.

In the present case, as also in most of the connected Writ Petitions, the respondentState has chosen to file reply in the shape of the affidavit of the InspectorGeneral of Prisons, punjab. In the reply, a breakup has been given of the actual sentence undergone by the prisoner and the remission earned by him. It is however, not disputed at the bar that according to the said breakup the prisoners in all these cases are entitled to have their cases considered for premature release in accordance with the provisions, of para 516B of the Punjab Jail Manual, read with the instructions, dated May 12, 1977, copy Annexure P/1 to the petition. Another circumstances mentioned in the reply is that the premature release case of the convict was considered by the Government on some occasions and when it was so considered on the last occasion, it was rejected on the ground that the same was not recommended by the District Level Committees/District Authorities. The stand in regard to the order passed by the Government rejecting the case of the convict is that "it is not obligatory on the Government of deliver a copy of the order to the convict disclosing the reasons for rejecting of the premature release case" and that "the convict is a lifer and he can be detained till his last breath". It may be observed here that the factual position is not denied at the bar that in no case the convict was supplied with a copy of the order rejecting his case.

The learned counsel for the convict has been heard at length and the contentions raised by him may be summarised as follows :

(i) Thought the Government is the exclusive Authority to grant or refuse remissions and premature release of the convict, yet its order must not be arbitrary, irrational, discriminatory or mala fide:

(ii) The act of granting or refusing to grant remissions is not merely an administrative act but a quasijudicial function, and hence any order passed by the Government in this connection must set out the reasons for granting or refusing to grant the remissions to the lifeconvict;

(iii) If the Government at the time of consideration, is not inclined to grant remissions to the lifeconvict, it should afford opportunity to the convict to make representation, if any, in support of his claim for premature release; and

(iv) If the Government has not passed any order under S. 432 of the Code of Criminal Procedure, finally disposing of the case of premature release, the concerned convict should be released on bail pending decision by the Government.

Taking up the points noticed above seriatim, the subject matter of point (i) has been adjudicated upon by the Highest Court of the land in Maru Ram etc. v. Union of India, AIR 1980 SC 2147. The following observations of their Lordships clinch the issue:

"72 (9) Considerations for exercise of power under Art. 72/161 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."

Nothing more need be said on the subject and the order, if any, passed by the Government will have to be examined in the light of the above dicta.

Re. point (ii), it is obvious that the only safeguard against the malady of arbitrariness is that the Authority concerned should pass a speaking order which can be subjected to security by a higher Authority or a Court of law. In this behalf the learned counsel for the convict has placed reliance upon the following observations in R. Raghupathy v. State of Tamil Nadu, 1984 Cri. LJ NOC 117 (Mad):

"The orders of Government either granting or not granting remission should set out the reasons, which had weighed with the Government in passing the order in question. Similarly, whenever the Government directs that a case should be placed for reconsideration after the lapse of more than six months, viz, one year or two years, as the case may be, the Government should give reasons why it should be put for consideration after the prescribed period or time. It is not enough that the Government is able to satisfy the Court, as and when an order is challenged, that its order is in accordance with law and the principles of natural justice and that it does not suffer from the vice of arbitrariness.

The Act of granting remission is, no doubt, an executive act, but it is more judicial than administrative in nature and effect. Therefore, in the fitness of things, the Government has to set out the reasons which influence its mind for passing an order either granting remission or refusing to grant remission to life convicts. Even if it is to be held that the order of Government is purely administrative in character, the order should contain reasons which would enlighten the mind of anyone, and more so of the concerned persons as to what factors were taken into consideration and the reasons which weighed with the Government for granting or not granting premature release to lifers. When the order passed by the Government should not offende the principles of equality and nonarbitrariness and is subject to judicial scan and review, it goes without saying that the order passed by Government should be self revealing and should set out the reasons which formed the basis for its final decision. Even when the Government does not grant premature release and directs the papers to be placed before it after a lapse of six months or one year or two years as the case may be, unless the Government discloses its mind, neither the affected person nor the Court would be able to know why the Government has directed the cases of certain convicts to be placed for consideration at an earlier point of time and the cases of others at a later point of time. Therefore, even in such cases it is not only desirable but also expedient that the Government gives its reasons for directing the resubmission of papers after varying intervals of time."

On behalf of the respondent, the general stand is that the premature release case of the convict had been considered and was rejected on the the ground that the District Level Committees/Local Authorities had not recommended his case. Such a stand clearly smacks of arbitrariness. It is significant to mention here that even though separate applications were filed in some cases in which a prayer was made that the State Government may be directed to produce the copies of the order passed in these cases rejecting the prayer for premature release of the convicts, but no such order has either been placed on the record or even produced before this Court for perusal. The action of the State Government is, thus, not bonafide, nor in accordance with the principles of natural justice. The order passed by the Government rejecting the case of the convict has, therefore to be quashed on this ground alone.

As regards point (iii), the learned counsel for the convict has again relied upon the relevant observations in R. Raghupathy''s case (1984 Cri LJ NOC 117) (Mad) (supra) which are to the following effect:

"If the Government is not inclined to grant remission to a life convict whose case is placed for consideration, the Government should afford an opportunity to the affected convict to make his representations, if any, in support of his claim for premature release. It is no doubt true that the lifers are not entitled under the Constitution or the statute to claim premature release as of right and it is equally true that the power of granting remission is exclusively vested in the Government. But even so, when the Government has evolved a system of premature release, and has framed rules to formulate the modalities for implementing the scheme of premature release, the Government cannot be heard to say that its order need not be backed by reasons and secondly that a person affected by its order cannot legally claim a right of representation. The principles of natural justice do require an opportunity being given to the person concerned to make whatever representations he wants to make before the Government passed its final order. Even if the orders of Government refusing to accept the recommendation of the Advisory Board and granting remission is considered to be administrative in nature, yet the concerned prisoners are entitled to notice of the proposed action of the Government so that they may have an opportunity of putting forth whatever representations they want to make against the proposed view taken by the Government. Thus whenever the Government is of the view that the Advisory Board''s recommendation for premature release is not worthy of acceptance and that the case should be taken up for consideration at a later point of time, the Government should give notice of its view to the affected prisoners and afford them an opportunity to make whatever representations they want to make and thereafter pass the final orders. It may be that in most of the cases, the prisoners may not be able to make successful representation so as to make the Government revise its stand, but nonetheless, the possibility of a few of the making effective representations so as to make the government change its views, cannot be ruled out." The observations noticed are in consonance with the principles of natural justice and audi alteram partem and I am in respectful agreement with the same. It is held accordingly.

Point (iv) is, in fact, the ultimate prayer made in the present petition and in the concerned Writ Petitions. Following the course adopted in R. Raghupathy''s case (1984 Cri LJ NOC 117) (Mad) (supra), it is ordered as follows:

(a) the orders passed by the Government in the present case and the connected Writ petitions, if they are of the nature of the final disposal of the matter, rejecting the request for premature release, stand quashed on account of the reasons noticed above;

(b) the Government is directed to consider afresh the case of the lifeconvicts in these writ petitions, for grant of premature release and pass a speaking order, after giving opportunity to the affected prisoners to make their representations, if any, before passing the final order;

(c) the final order shall be passed by the Government within two months from today and a copy of the order so passed, shall be provided to the convict concerned without delay in order to enable him to seek his remedy if he so chooses; and

(d) if no such final order is passed by the Government within the above mentioned period of two months the convicts in these Writ Petitions shall be released on bail to the satisfaction of the Chief Judicial Magistrate of the place where they were convicted. The convicts shall, however, give an undertaking that in case of adverse decision by the State Government on the question of their premature release, they shall immediately surrender themselves to the Jail where they were confined at the time of their release, irrespective of the fact that the said decision is impugned in proper proceedings, and they shall abide by this undertaking.

The present Writ Petition and the connected Writ Petitions enumerated in the opening part of the judgment are disposed of accordingly.