Darshan Singh vs State of Punjab and anr.

Jai Singh Sekhon, J. (Oral)

The mercy petition of Jagir Singh Prisoner for premature release under Article 161 of the Constitution of India was dismissed by the State Government vide its order dated 331989 Annexure P. 5 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 prisoner 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 Government on extraneous considerations than the one embodied in the direction of the State Government issued from time to time in this regard. It is also maintained that the prisoner has undergone more than 81/2 years of actual imprisonment besides having undergone mom than 14 years including remissions.

In return filed by the respondent State 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 remissions. It is further averred that the detenu is not entitled to premature release on compassionate grounds as them 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 P. 5 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 P. 3 which reads as under

"As the provisions of section 433A of Cr.P.C. are mandatory in nature no executive instructions to deal with premature release covered under the above said section of Cr.P.C. can be issued 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/dolescant 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 bread earner 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 life convict will be taken up after he has completed, 14 years actual sentence in a jail, a minimum period of 56 years of juvenile and women prisoners and 71/2 and 81/2 years for the adult male prisoners can be taken as one of the guidelines for release oil 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 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 the concession of premature release. The apex Court in Bhagwat Saran & ors. v. State of U.P., 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 Government. The Committee had recommended the release of these prisoners after taking into consideration their 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. We direct that the petitioners be released forthwith."

Moreover, the remote apprehension of breach of peace can be well safeguarded by demanding heavy amount of bond and surety by the concerned authority at the time of premature release.

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.