Darshan Singh vs State of Punjab and anr.

Jai Singh, Sekhon, J. (Oral)

The mercy petition of Balkar Singh prisoner for premature release under Article 161 of the Constitution of India was dismissed by the State Govt. vide its order dated 3.9.1989 Annexure P5 on the ground that the land dispute which led to the commission of the murder is still subsisting between the parties and there is strong apprehension of breach of peace again, if the detenu is released prematurely. The commission of the murder after premeditation also weighed with the concerned authorities.

The petitioner has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India contending that the mercy petition was rejected by the State Govt. on extraneous considerations than the one embodied in the instructions of the State Govt. issued from time to time in this regard. It is also maintained that the detenu has undergone more than 81/2 years of actual imprisonment besides having undergone more than 14 years including remissions.

In the return filed by the respondentState it is maintained that the mercy petition of the detenu was rightly rejected by the State although he has undergone 9 years 11 months and 22 days of actual sentence uptill 27111989 and more than 17 years including remission. It is further averred that the detenu is not entitled to premature release on compassionate grounds as there are other adult members in the family to look after the domestic affairs. The apprehension of breach of peace to the opposite faction of the detenu as stated in the above referred rejection order Annexure P5 is also reiterated.

I have heard the learned counsel for the parties.

The latest instructions of the State Government in this regard are embodied in Memo. No. 12/152/836J/32987 dated 12121985 Annexure P3 which read as under :

"As the provisions of section 433A of Cr.P.C. are mandatory in nature no executive instructions to deal with premature covered (sic) under the above, said section of Cr. P. C. can be (sic) by the State Government. However, the mercy petitions submitted to the Governor of Punjab are to be examined by the State level committee and recommendations made to Government on the following considerations :

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

Fixation of responsibility of a particular life convict in gang 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 premeditation should also be the factors while scrutinising the copies of the 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 has completed 14 years actual sentence in a jail, a minimum period of 5/6 years of juvenile and women prisoners and 71/2 and 81/2 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 knows 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 bare perusal of the above referred grounds leaves no doubt that the compassionate grounds and other circumstances figuring at Sr. No. 1 to 5 and 7 only support the premature release of the detenu by accepting mercy petition while the ground figuring at item No. 6 is an independent one. In other words, it can be well said that if a prisoner had undergone more than requisite sentence of 81/2 years, and 14 years in all including remissions is entitled to premature release. The law is well settled on the point that vague allegations regarding the apprehension of breach of peace on the premature release of a life convict are of no consequence in withholding such concession. The apex Court in Bhagwat Saran and others v. State of UP, and Others, 1983(1) Chandigarh Law Reporter 504 had settled this controversy as under :

"After hearing counsel on either side and considering the affidavit of the respondents filed herein we are satisfied that it is a case where the Committee''s recommendations should have been accepted by the Govt. The Committee had recommended the release of these prisoners after taking into consideration the behaviour inside the jail as well as other factors. The only ground given by the State in the counter affidavit is that "after considering their cases sympathetically, keeping in view of the law and order situation they cannot be released." A bald statement like that without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted. In fact there are no reasons why recommendations could not be accepted. We direct that the petitioners be released forthwith."

Moreover, the remote apprehension of breach of peace at the hands of released prisoner can be well safeguarded by demanding heavy surety bond by the concerned authority.

For the foregoing reasons, it is a clear case of nonexercise of jurisdiction on behalf of the State Government. Thus prisoner is directed to be released prematurely on requisite terms and conditions by accepting this petition.