Gurdev Singh vs State of Punjab

K.S. Bhalla, J.

Petitioner Gurdev Singh is undergoing life imprisonment under the orders of Sessions Judge, Sangrur and is lodged in Central Jail Bathinda. He was convicted and sentenced on 6.4.1979 i.e. after the enforcement of section 433A of the Code of Criminal Procedure, 1973 (in short the `Code''). His appeal was also dismissed by this Court. Through present petition he has prayed for his premature release mainly relying on the instructions of the Government issued in the month of August, 1986 (Annexure P2).

The matter regarding premature release of an accused convicted after the enforcement of section 433A of the Code was considered by a Division Bench of this Court in Ranbir Singh v. State of Haryana etc. (Crl. W.P. No. 628 of 1985), decided on May 2, 1986 in the light of Supreme Court judgment in Maru Ram etc. v. Union of India and others, AIR 1980 SC 2147. It was held therein that the correct interpretation of Maru Ram''s case (supra) is that section 433A of the Code has a way over Para 516B of the Punjab Jail Manual or similar other executive instructions regarding early release of the life convicts. It was held in Maru Ram''s case that these convicts are a class apart and cannot invoke the aid of the instructions incompatible with section 433A of the Code, issued by the Central or State Government prior to December 18, 1978. It was further observed that, however, wide powers of executive clemency existed and section 433A of the Code by no means precludes the State from working the same remission scheme which seems to be fairly reasonable, meaning thereby that executive instructions with regard to remissions were possible even after December 18, 1978 irrespective of section 433A of the Code.

Punjab Government have in fact issued instructions and guidelines on the subject even after enforcement of section 433A of the Code. The instructions issued on August 21, 1986 (Annexure P2) are not disputed, but according to respondent State the case of the petitioner is not covered under those instructions. These instructions are as under :

"Government have decided to release the following categories of life convicts :

(1) All prisoners who are undergoing life imprisonment and who are above the age of 78 years and have undergone atleast 51/2 years of actual imprisonment provided they were convicted before 81.12.1978 and their conduct during imprisonment has been satisfactory.

(2) All infirm prisoners who were incapacitated by illness provided their release is supported by the recommendations of a committee of three doctors of the district concerned.

The above decision will, however, not be applicable to those life convicts whose death sentences have been commutted to life imprisonment on mercy petition.

(3) The individual cases along with relevant documents viz; Rolls of the convicts etc. may kindly be sent to Government immediately for issuing formal orders u/s 432 Cr.P.C.

In addition Government have also decided to grant special remission to all prisoners confined in Punjab jails as on 20.8.1986. Necessary orders in this behalf are being issued separately."

The petitioner contends that his case falls under second category in the above instructions. He has clearly stated in para 6 of the petition that he is a very old person and has crossed the age of 75 years and has been declared infirm prisoner. When he claims to be an infirm prisoner, obviously his case is covered within the scope of second category. Annexure P3 is the report of Medical Board and the Board also recommended his case stating that due to old age and weakness his name is recommended for release. Member (Orthopedic) of the Medical Board has further remarked rupture with knees movement of spine painful and limited osteoarthritis with knees and spine. These remarks clearly indicate infirmity by illness. A bare reading of the instructions would show that the date of conviction of a prisoner is significant only for the life convicts of first category and not such restriction has been imposed regarding the prisoners of second category. This category consists or all infirm prisoners who were incapacitated by illness, provided their release is supported by recommendation of a committee of three doctors of the district concerned and provided they do not fall within category of life convicts whose death sentence had been communted to life imprisonment on mercy petition. Admittedly it is not a case in which the death sentence had been commutted and the board of doctors as referred to above has recommended his case. Consideration of case of premature release on mercy petitions under Article 161 of the Constitution is not disputed on behalf of respondent either and in the light of what has been stated above it is not proper to conclude that the case of the petitioner is not covered under the policy issued vide Punjab Government instructions dated 21.8.1986.

The State Government, accordingly, is directed to consider the case of the petitioner for premature release within three months from today in the light of the observations made above. In case the same is not decided within three months from today, the petitioner shall be released on bail to the satisfaction of the Chief Judicial Magistrate, Sangrur. Thereafter, if petitioner''s case is eventually rejected, the prisoner shall surrender to the bail bonds before the Chief Judicial Magistrate, Sangrur immediately after receipt of intimation from the State Government with regard to its rejection. He will, however, be at liberty to challenge the validity of the rejection order through appropriate proceedings. The writ petition is disposed of in these terms.