Bhupinder Singh vs State of Punjab

Jai Singh Sekhon, J.

The petitioner was convicted on October 31, 1979 by the learned Sessions Judge, Hoshiarpur and sentenced to undergo imprisonment for life under section 302 Indian Penal Code, and imprisonment for two years under section 27 of the Arms Act. Both the sentences were, however, directed to run concurrently. The petitioner applied for premature release to the concerned authorities before he had undergone 1/2 years of actual sentence. The authorities rejected the mercy petition for premature release of the petitioner on September 30, 1986. Ultimately, this decision of the State Government was assailed before the Supreme Court in SLP No. 684 of 1987. The Supreme Court on May 4, 1487, disposed of this matter by remarking that a total period of 14 years is about to be completed and that the petitioner may make a afresh application which shall be disposed of expeditiously by the State Government. The petitioner then again moved the State Government vide petition (Annexure P4). This petition was rejected by the State Government on January 29, 1988 vide order Annexure P 5 on the ground that the father of the petitioner locked after the land owned by the petitioner and there was no other compassionate grounds entitling the petitioner to the concession of premature release. The petitioner then filed Cr. W P No. 1260 of 1987 before this Court, which was accepted on January 16, 1989, vide Annexure P6 and the State Government was directed to reconsider the matter for premature release of the petitioner afresh within four months. The petitioner was directed to be released on bail during this period. The State Government reconsidered the matter and rejected the case for premature release of the petitioner vide order dated May 15, 1989 (Annexure P7) on the ground that the respectables of the village Sham Churasi where the murder was committed by the petitioner apprehended danger to their lives and that during parole period, the petitioner had threatened Kapil Dev who had appeared as witness in the parent, case against him. Being aggrieved against the said order, the petitioner has again invoked the extraordinary jurisdiction of this Court under Articles 226/227 of the Constitution of India contending that the State Government had rejected the petition for premature release of the petitioner on extraneous considerations.

In the return filed by the respondent, it is contended that the State Government had rightly rejected the petition for premature release of the petitioner as the respectables of village Sham Churasi had reported that they apprehend danger to their lives from the petitioner.

I have heard the learned counsel for the parties besides perusing the record. There is no dispute between the parties that the cases for premature release, of life convicts have to be considered by the State Government while exorcising its power of clemency under Article 161 of the Constitution of India in accordance with the instructions issued by the State Government from time to time. The State Government had issued instructions Annexure P 1 on September 7, 1979, in the light of the provisions of section 433A of the Code of Criminal Procedure, directing the authorities that only those convicts will be eligible for premature release who have completed a requisite actual sentence as perearlier policy and who have satisfactory conduct in jail and in whose cases the District Level Committee had made a recommendation. The earlier instructions are embodied in Para 516B of the Punjab Jail Manual, which in turn provides that the case of premature release of the life convicts should be considered if they had undergone 14 years of sentence including remissions. Even on November 10, 1971, the State Government issued instructions that the cases of Premature release of the life convicts who were more than 20 years of age at the time of commission of offence should be forwarded to the Government for premature release after they had undergone 81/2 years of actual sentence and 14 years'' sentence including remissions. Thus, there is no doubt that the guidelines issued vide instructions dated Nov. 10, 1971 will survive in the matter of granting premature release.

The matter does not rest here as on December 12, 1985, the State Government again issued instructions Annexure P3 in this regard listing the following seven items

On ground of serious illness that could prove fatal due to continuous detention in jail.

Fixation of responsibility of a particular life convict in sang murder where others are also involved besides the convict who has submitted the mercy petition.

The aspect of young/adolescent age, sex, mental deficiency, grave or sudden provocation and absence of motive and should also be the factors while scrutinising the of judgments in mercy petition cases.

The old age beyond 70 years can also be one of the factors to grant mercy.

On extreme compassionate grounds like no breadearner of the family and no support from different relations. This will, however, differ from individual to individual.

After introduction of section 433A of Cr.P.C. w.e.f 18121978 since every premature release case of a lifer convict will be taken up after he completes 14 years actual sentence in a jail a minimum period of 5/6 years for juvenile and women prisoners and 1 and 8 years for adult male prisoners can be taken as one of the guidelines for release on mercy petition.

Cases where subsequent to the announcement of the judgment new facts have come to light which if known to the court at the relevant time would have resulted in acquittal of convict and where the proceedings cannot be reopened according to law.

A perusal of the same leaves no doubt that premature release of the prisoners can be released on any of these seven grounds. Similar view was taken by this Court in Cr. W.P. No. 220 of 1988 (Karnail Singh v. State of Punjab and another decided on January 16, 1989 (copy Annexure P6).

In the case in hand, the petitioner had taken the ground of having suffered more than 9 years of actual sentence and over 16 years including remissions for his premature release. The State Government had rejected his petition on the ground that the respectables of village Sham Churasi where the murder was committed, apprehend, danger to their lives at the hands of the petitioner if he is released prematurely. The abovereferred consideration is not only imaginative but, also extraneous of the issue involved. The petitioner is a resident of village Khojkipur and the Gram Panchayat of that village did recommend his case for premature release. In a premature release case, the petitioner is released after execution of due surety bonds undertaking to keep peace and be of good behaviour. Thus, the abovereferred contingency would be covered by demanding a heavy surety.

The petitioner has already undergone more than 9 years of actual imprisonment besides having earned remissions to the tune of 7 years 2 months and 28 days The State Government is expected to apply uniform stick in such like matters on the basis of instructions issued by it from time to time. Thus, it is a clear case of discrimination and nonapplication of mind by the concerned authorities even though the petitioner had undergone the required period of sentence much earlier.

Under these circumstances, the State Government is directed to prematurely release the petitioner on usual terms and conditions. The writ petition is accordingly allowed. The petitioner is already on bail and shall not surrender to the jail authorities.