Balwinder Singh vs State of Punjab

Swatanter Kumar

This is a petition under Section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India. The petitioner has prayed that he be released on parole for a period of four weeks under Section 3 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962, hereinafter referred to as the Act, for carrying out the repairs of his damaged house.

The petitioner was arrested on 1.7.1992 for an offence under Section 302 I.P.C. After trial he was sentenced to undergo life imprisonment by learned Additional Sessions Judge, Ferozepur, vide his judgment dated 14.12.1993. since then the petitioner is undergoing life imprisonment in the Central Jail, Ferozepur. According to the petitioner because of heavy rains his house has been damaged and it needs certain repairs. For this purposes he prayed for releasing him on parole, to the authorities. The case of the petitioner was forwarded by the authorities vide letter dated 22.12.1994, but his request for parole was declined by Inspector General of Prisons, Punjab, vide his order dated 7.7.1995. It was rejected on the ground that there is apprehension of breach of peace on the prisoner''s being released on parole. Copy of this order has been annexed to the writ petition as Annexure P/2.

The argument of the learned counsel for the petitioner is that I.G. Prisons, Punjab, has no jurisdiction to pass an order upon request of a prisoner under the provisions of the Act. According to the counsel this power is to be exercised by releasing authority under the provisions of the said Act and the rules framed thereunder. The short question is whether the I.G. Prisons, Punjab, has any jurisdiction to pass final order upon the representation of a prisoner for his release on parole. Under the provisions of the Act and the rules framed thereunder it is clear that the Jail Superintendent is the forwarding authority and the I.G. Prisons is the recommending authority. Besides exercising the powers of recommendation or otherwise the I.G. Prisons has not been vested with any power to taken any final decision on the request of the prisoner for being released on parole. The releasing authority is an authority duly postulated under the provisions of the Act and Rules framed thereunder and provisions of the Act do not assume any delegation of power. In fact the releasing authority has to consider the recommendation of the I.G. Prisons, who is in no way bound by such recommendation. It has to apply its mind and by a speaking order has to either grant or refuse to a prisoner for his release on parole. Under section 10 of the Act the State Government has been given power to make rules and notify the same in the gazette for the purpose of achieving the objects of the Act. Description of an authority under Section 2(c) of the Act relates to an authority prescribed by the Rules under the Act. Section 4 of the Act provides that the State Government or any other officer authorised by it in this behalf may, in consultation with the District Magistrate, and subject to such conditions, and in such manner as may be prescribed, release temporarily on parole or furlough any prisoner who has been sentenced to a term of imprisonment of not less than five years. Section 4, thus, postulates power of delegation while Section 3 does not provide for such delegation and power has to be exercised only by the releasing authority, which is empowered to pass such order. The requirement of the section is that the power has to be exercised by the releasing authority, which in terms of Section 3, would be a State Government or any other officer authorised in this behalf. Such officer then has to exercise powers in consultation with the District Magistrate and pass an order in conformity with the provisions of the Act and the rules framed thereunder. This question also came up for consideration of this Court and in Inder Singh v. Inspector General of Prisons and others, 1987(1) Recent Criminal Reports 474 , Mr. Justice M.M. Punchhi (as his Lordship then was) held as under:

"It has been contended by Manoj Swaroop, learned counsel for the petitioner, that the releasing authority under Section 3(1) (c) of the aforesaid Act was the State Government alone and the case of the convict could not have been disposed of unfavourably by the Inspector General of Prisons, Haryana (respondent No. 1). Though in the return the stance taken is that he is the releasing authority for the purposes of the said section yet the learned counsel for the State has not been able to point out any provisions of law whereunder the power of the State Government could be seen having been delegated to the Inspector General of Prisons. On the contrary, a delegation has been shown to that effect, but with regard to the powers under Section 3(1) (a) and section 4 of the said Act. There is no delegation of power under Section 3(1) (c) of the Act. In this view of the matter, learned counsel for the State concedes that the impugned order of the Inspector General of Prisons, Haryana, shall be taken to have been withdrawn and an undertaking has been given that the State Government shall consider the case of the petitioner for parole by itself."

Adopting the said reasoning it is clear that while exercising power under Section 3(1) (c) of the Act it is the State Government which has to exercise powers in consultation with the District Magistrate to pass an appropriate order under the provisions of this Act, upon a request by the prisoner for his release on parole. There is no dispute with the fact that there was a certificate furnished by the petitioner Annexure P/1 to the writ petition that his house required certain repairs, but such a request has been finally declined by the I.G. Prisons, who obviously, has no jurisdiction to pass such an order.

For the reasons stated above, the order of I.G. Prisons dated 7.7.1995 is hereby quashed and set aside. The respondents are directed to forward the representation of the petitioner for consideration to the releasing authority, which shall be decided within a period of six weeks from the date of receipt of this order.

This petition is disposed of with the above observations.