Balwinder Singh vs State of Punjab

R.L. Anand, J.

Reply filed. Copy given.

Shri Balwinder Singh through this petition filed under Section 482 of the Code of Criminal Procedure read with Article 226 of the Constitution of India has prayed for the quashment of the order Annexure P3 dated 13.5.1997 passed by the State vide which the case of the petitioner for releasing him prematurely was declined.

The admitted facts are that the petitioner along with four others was convicted for the offence under Section 302 read with Section 149 I.P.C. on two counts and was sentenced to life imprisonment vide judgment dated 14.3.1975 and in these circumstances he was entitled to be considered for premature release as per the instructions dated 6.8.1971. The petitioner filed Crl. Misc. No. 15285M of 1996 earlier. The petition was contested by the State on the plea that the petitioner had committed offence under the Excise Act when he was granted parole and that he overstayed and, therefore, he was not entitled to premature release. Vide judgment dated 5.3.1997 passed in Crl. Misc. No. 15285M of 1996 the prayer of the petitioner was allowed and the relevant observations of the High Court are as under :

"In the face of this provision, the learned State counsel has not disputed that for the purposes of consideration of premature release of a life convict, the sentence awarded to him for an offence committed while in prison or during suspension of his sentence will not be taken into account. It is also not disputed that under the instructions dated 6.8.1971, issued by the State Government in exercise of its powers conferred by Section 432 of the Code, the case of the life convict for his premature release is to be considered after he has actually undergone 5 years 6 months of actual sentence and 14 years of sentence including remissions. It is also not disputed that this condition stands satisfied in the present case. In these circumstances, the competent authority was not justified in rejecting the case of the petitioner for his premature release merely on the ground that he was convicted and sentenced for 2 offences under the Excise Act or for violation of the terms of parole for which he was convicted and sentenced. It may also be clarified that the petitioner has already undergone the sentence imposed upon him under the Excise Act as well as for violating the terms of parole."

Finally, the High Court allowed the petition and directed the respondents to reconsider the case of the petitioner and pass appropriate orders according to law within one month from the receipt of the copy of the order.

The order Annexure P3 dated 13.5.1997 has been passed by the State Government in pursuance of the directions given above by the High Court. The Government has passed the following operative impugned order which I would like to quote as under :

"As per the directions of the Hon''ble Court in Criminal Miscellaneous No. 15285M of 1996, the case of convict Balwinder Singh has been reconsidered and the matter was placed before the State Level Committee. The State Level Committee in its meeting held on 15.4.1997 discussed the facts, that though the convict has been awarded punishment under the Excise Act as well as for absconding from the parole, hence his conduct is the main consideration relating to the consideration of premature release of the convict. The convict is still facing a complaint and a case under the Excise Act is pending in a Judicial Court which the State Level Committee has considered to be a matter of serious concern and to free that he would commit repeated crime. The Committee also noted that convict Balwinder Singh along with his coaccused committed the murder of S. Hans Raj and Shri Makhan Singh and the same were coldblooded murders. All the members of the Committee were unanimous that with the promulgation of Section 433A of Cr.P.C. every life convict has to undergo an actual sentence of 14 years. Though the case of convict Balwinder Singh does not fall under the ambit of Section 433A of Cr.P.C. which came into force w.e.f. 18.12.1978 and cannot be applied retrospectively, yet the spirit of this section cannot be ignored while considering the case of convict Balwinder Singh. Accordingly, the State Level Committee, keeping in view conduct of the convict and spirit of Section 433A of Cr.P.C., strongly recommended the rejection of the request for premature release of convict Balwinder Singh.

After taking into consideration the conduct of the convict, the spirit of Section 433A, the directions of the Hon''ble Punjab and Haryana High Court in Criminal Miscellaneous No. 15285M of 1996, and the apprehension that he may repeat such crimes in case his premature release is ordered, the request for premature release of convict Balwinder Singh son of Chet Singh undergoing life imprisonment at Central Jail, Amritsar is rejected."

The reading of the above order would show that the respondents have fallen in error again. This time they have rejected the case of the petitioner on an untenable plea that the petitioner is still facing a complaint and a case under the Excise Act is pending in the judicial court which the State Level Committee has taken into consideration being a matter of serious concern. Assuming for the sake of argument that the petitioner ultimately might be convicted in this Excise Act also, if this allowance is also given to the respondentauthorities, still the case of the petitioner for premature release cannot be defeated in view of the note added to para No. 516B of the Jail Manual. The said note reads as follows :

"NOTE : For the purposes of preparing the rolls of prisoners under the above rules sentence awarded to a prisoner for an offence committed while in prison or during suspension of sentence will not be taken into account."

The provisions of Section 433A of the Code of Criminal Procedure also cannot be taken into account by the respondents as the date of conviction of the petitioner is prior to 18.12.1978 and moreover the petitioner is seeking the benefit of the Government instructions/Policy issued under Article 161 of the Constitution. The impugned order has been passed merely on the apprehension that the petitioner might repeat such crime in case his premature release is ordered. This defence is not tenable in view of the earlier order passed by this Court which is based on the note appended to para No. 516B of the Punjab Jail Manual.

Resultantly, this petition is hereby allowed and fresh directions are given to the respondents to reconsider the case of the petitioner for premature release according to law and on merits within one month from the receipt of the copy of this order.

It is also made clear to the respondents that the case of the petitioner for premature release shall not be declined by taking into consideration that a criminal complaint under the Excise Act or any criminal case under the Excise Act is pending against the petitioner.