Bhajan Singh vs State of Punjab

R.L. Anand, J.

By this order, I dispose of two criminal Misc. Nos. 9206M (Gurmail Singh v. State of Punjab) and 22405M (Bhajan Singh v. State of Punjab), both of 1997, as in the opinion of this court, the common questions of law and fact are involved.

For the purpose of facts, I have taken the same from the petition filed by Bhajan Singh, who is seeking premature release through suitable directions on the ground that he has served more than one year of actual sentence in the Open Air Jail, Nabha, and he has also undergone 71/2 years of actual sentence, in terms of the Govt. policy dated 21.4.1972. Similar is the request of Gurmail Singh.

On facts there is no dispute. It has been conceded at the Bar by the counsel for the parties that both Bhajan Singh and Gurmail Singh have served more than one year of actual sentence in the Open Air Jail, Nabha, amd 71/2 years total substantive sentence. The petitioners are relying upon the policy of the State Govt. dated 21.4.1972. According to this policy decision, the cases of life convicts who have served atleast one year substantive sentence in Open Air Jail, Nabha shall be considered for premature release provided he has served actual substantive sentence of 71/2 years in case of males and 5 years in case of juveniles and females.

The case of the State on the contrary is that the petitioners have not qualified for premature release by virtue of the instructions dated 8.7.1991, Annexure R1. The State submits that as per these instructions, the petitioners were supposed to undergo 10 years actual sentence and with remissions 14 years.

The learned counsel for the State further submits that the introduction of the provisions of Section 433A, Cr.P.C., the policy letter dated 21.4.1972 stands nowhere and, in these circumstances, it was obligatory on the part of both the petitioners to serve 14 years of actual sentence or 10 years actual sentence and 14 years with remissions, as per the latest policy of the State Govt. incorporated in Circular dated 8.7.1991.

On the contrary, Mr. Trikha submitted that circular dated 21.4.1972 was never superseded in the policy dated 8.7.1991. The State Govt., of course, superseded 7 circulars starting from the years 1971 to 1981 but the circular dated 21.4.1972, which circular superseded the earlier circular dated 8.9.1970, was never superseded.

After hearing the rival contentions of the parties, this court is of the opinion that the State Govt. has no case. Section 433A, Cr.P.C., came into force with effect from 18.12.1978. It talks of those remissions which are granted by the State Govt. by virtue of the provisions of Section 432 Cr.P.C. So far as the power of the State Govt. under Article 161 of the Constitution of India, that is not affected by the provisions of Section 433A, Cr.P.C. The policy decisions are issued by the State Govt. from time to time by deriving powers under Article 161 of the Constitution of India. Even circular dated 8.7.1991 makes a mention of Section 433A, Cr.P.C. and Article 161, Constitution of India but the State Govt., in its wisdom, always thought proper not to supersede the policy decision as contained in the circular dated 21.4.1971 and there is a valid reason for this. At that stage, the State Govt. was of the opinion that the convicts who have undergone sentence for more than a year or so in the Open Air Jail, Nabha, be given special concession. With that object, the instructions dated 21.4.1972 were introduced. It was never thought proper by the State Govt. to withdraw these instructions. Wherever the State Govt. wanted to withdraw the concession to a convict, it has withdrawn by virtue of the notification dated 8.7.1991.

In this view of the matter, I am of the opinion that both the petitioners have qualified themselves for the purpose of premature release as per the instructions dated 21.4.1972.

The petitions are hereby allowed with the directions to the respondents to consider and decide the case of the petitioners afresh in the light of the observations made above, within 3 months from the receipt of the copy of this order.

Copy Dasti and one copy of this order be also sent to the Inspector General of Prisons, Punjab.