Gobind Singh vs State of Punjab

M.L. Singhal, J.

Gobind Singh has petitioned to this Court under Section 482 of the Criminal Procedure Code praying that the direction be given to the State of Punjab for considering his premature release from jail and that the order passed by the State of Punjab bearing Endst. No. 1/76/931217/8785 dated 29.4.1994 (Annexure P2) is illegal and bad having not been passed in accordance with the instructions of the Government. It has been alleged in this petition that the petitioner was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life. He has been in prison since 16.9.1984. He has so far suffered an imprisonment to the tune of 9 years and 10 months. Besides, he has earned remissions to the tune of 11/2 years and total imprisonment suffered by him thus amounts to 17 years and 4 months. He has undergone substantial term of imprisonment and in accordance with the instructions issued by the Government from time to time, he is entitled to premature release. He is entitled to premature release in view of the instructions of the Government embodied in Endst. No. 1/61/82 4J/1769 dated 27.1.1994 issued on 24.1.1994. He is entitled to the remission of the remaining portion of the sentence and release from jail forthwith. In view of clause (iii) of the said instruction, a prisoner in the Open Air Jail is entitled to remission of balance of sentence of imprisonment for life, if he has remained in jail for more than 10 years inclusive of remissions. The Government did not consider the premature release case of the petitioner in the light of the aforesaid instructions and rather rejected his case for pre mature release through a cryptic and nonspeaking order dated January 14, 1994 issued vide endst. No. 1/76/931217/8785 dated April 29, 1994. He has approached this Court when he has failed to seek the desired relief from the Government. This prayer has been contested by the State of Punjab urging that the convictpetitioner has undergone actual sentence of 8 years, 5 months and 16 days and with remissions 14 years, 10 months and 20 days as on 31.3.1993. It was denied that he has undergone actual sentence of 10 years as on 16.1.1994 for becoming eligible for premature release in terms of Government Instructions dated 27.1.1994.

Representation for his premature release was considered but rejected as the same was not covered under any of the Government instructions. Instructions of the Government embodied in Endst. No. 1/61/824J/1769 dated 27.1.1994 issued on 24.1.1994 are not applicable. So far as the case of the petitioner is concerned and these instructions are applicable only in case of those convicts who fulfil the conditions laid therein. Petitioner is not confined in the Open Jail Nabha. He is confined in District Jail, Nabha. These are two separate jails. Petitioner is required to undergo 10 years actual sentence as on 16.1.1994 and not 71/2 years. He is not eligible for the remission of balance of sentence in terms of the Government instructions dated 27.1.1994.

I have heard the learned counsel for the petitioner and Sh. M. C. Berry, Deputy Advocate General for the State of Punjab and have gone through the record.

It has been submitted by the learned counsel for the petitioner that the petitioner is entitled to the remission of the remaining portion of the sentence which remains to be served as he is a prisoner working in the Open Air Jail and he has undergone actual sentence for more than 71/2 years and with remissions more than 10 years.

Learned Deputy Advocate General, Punjab has submitted that the petitioner is in District Jail Nabha, which is not an Open Air Jail and his case is not covered by instructions embodied in Annexure P.1 relating to prisoners working in Open Air Jail. His case was rejected by the Government vide order Annexure P2 on the ground that his case for premature release is not covered by any of the instructions of the Government.

Section 433A of the Code of Criminal Procedure lays down that a convict for an offence involving death or imprisonment for life has necessarily to remain in actual sentence in prison for minimum of 14 years. If the sentence is not for a fixed term, remission as such cannot help. If the sentence is for a fixed term, remission may help. Provision in Section 433A obligates the actual detention in prison for full fourteen years as a mandatory minimum in the two classes of cases where the Court could have punished the offender with death but did not, or where the Court did punish the culprit with death but he survived through commutation to life imprisonment granted under Section 433(a). Remission can do good to a lifer if he has undergone detention in jail for 14 years in the minimum.

For the reasons given above, this petition fails and is dismissed.