Gurmail Kaur vs The State of Punjab and Another

S.S. Grewal, J.—This petition under Article 226/227 of the Constitution of India relates to the release of Harnek Singh detenu, as his

detention is said to be violative of Articles 14, 19, 20 and 21 of the Constitution of India.

Brief facts relevant for the disposal of this petition, are, that Harnek Singh detenu after his arrest on 2nd November, 1979 was convicted and

sentenced to undergo imprisonment for life on 9th June, 1980 by Sessions Judge, Faridkot. He has undergone detention for a period of 15 years 3

months and 23 days which includes 8 years 11 months and 8 days of actual sentence undergone (including undertrial period) and period of

remissions to the extent of 7 years 1 month and 25 days. The detenu has been a convict-teacher for more than 5 years. He imparted education to a

large number of convicts, and, also got Master''s degree in English and Philosophy during the period he was undergoing sentence. He has availed

of temporary release on parole and furlough 16 time, and, his conduct outside the jail was also good. The detenu moved his mercy petition under

Article 161 of the Constitution of India on 15th February 1985 for remission of his unexpired sentence. The case of the detenu for his pre-mature

release was recommended by 23 Panchayats, District Police. District Magistrate, Faridkot, Superintendent Central Jail, Patiala, Superintendent

District Jail, Faridkot, Inspector General of Prisons. Punjab, and the Chief Minister. His case was finally submitted to the Governor on 29th

September, 1986. However, the latter did not pass formal order for grant of premature release of the detenu, even though it was obligatory for the

Governor to act upon the advice of the Chief Minister under Article 161 of the Constitution of India. Thereafter, the detenu filed Criminal Writ

Petition No. 416 of 1987 in the High Court, which,--vide its order dated 12th August, 1987 directed the State Government to decide the mercy

petition of the detenu within a period of one month. The mercy petition was again declined and the information in this regard was sent to the

detenu,--vide letter dated 15th September, 1987 copy whereof is Annexure P-2, on the ground that there are no extenuating circumstances, or,

compassionate grounds warranting the exercise of powers of mercy under Article 161 of the Constitution of India, and, consequential remission of

the un-expired sentence.

The State in its reply admitted that the detenu had been convicted on 9th June, 1980 u/s 302 I.P.C. and sentenced to undergo imprisonment for

life. He was also convicted u/s 25/27 of the Arms Act. Upto 1st January, 1980 the detenu had already undergone actual sentence of imprisonment

for a period of 9 years 4 months (including undertrial period of 7 months 7 days) as well as the period of remissions to the extent of 7 years 4

months and 20 days. It was pleaded that the mercy petition was rightly rejected under the orders of the Governor on 9th September, 1987, on the

ground that the same could not be considered as the detenu had not undergone 7 1/2 years of sentence, and, at that time there was no elected

Government in the State of Punjab.

Counsel for the parties were heard.

It was rightly submitted on behalf of the detenu that in view of the authority in Maru Ram v. Union of India ATR 1980 S.C. 2147 the State

Government can advise and act under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be

pursuant to a Governmental decision and the order may issue even without the Governor''s approval although, under the Rules of Business and as a

matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. In the

aforecited authority it was also held that, in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our

constitutional scheme, act, and must act not on their own judgment, but in accordance with the aid and advice of the Ministers. Article 74, after the

42nd Amendment silences speculation and obligates compliance. The Governor vis-a-vis his Cabinet is no higher than the President save in a

narrow area which does not include Article 161.

Applying the aforesaid principle laid down in Maru Ram''s case (supra) it was urged on behalf of the detenu that since Minister Incharge Jails on

15th September 1976 and the Chief Minister on 29th September, 1986 had approved the recommendation of Special Secretary, Home, dated

10th September, 1986 for premature release of the detenu after completion of 7 1/2 years of actual sentence, it was obligatory for the Governor to

pass formal order for grant of pre-mature release of the Petitioner under Article 161 of the Constitution of India. The advice of the Chief Minister

referred to above was binding on the Governor, and, no separate order for grant of pre-mature release of the detenu was necessary.

On behalf of the State it was urged that the Petitioner had not undergone minimum period of 7 1/2 years of actual sentence as per guidelines

provided by the State Government,--vide Memo No. 12/152/83-6J/32987, dated 12th December, 1985 (hereinafter referred to as 1985

instructions) and as such the advice given by the State Government in September. 1986 to the Governor was not binding. Secondly, it was

submitted that the Governor had asked the Chief Minister to reconsider his advice as the convict was very well educated and comparatively a rich,

yet he committed murder, and put up a false alibi.

There is no doubt that the existing rules or instructions of the State Government can legally provide guidelines to the State to exercise its power

under Article 161 of the Constitution of India to grant pardons, reprieves, respites, or. remissions of punishment, or, to suspend, remit or commute

the sentence of any person convicted of any offence against any law relating to a matter, concerning which the executive power of the State

extends. Perusal of the 1985 instructions referred to above clearly indicates that minimum period of 7 1/2 and 8 1/2 years for adult male prisoners

can be taken as one of the guidelines for release on mercy petition. It is quite patent that the said guidelines do not create any legal bar for the State

to reconsider the case of the present Petitioner, before he had actually undergone 7 1/2 years of actual sentence. Nor sphere of the State

Government to exercise its powers under Article 161 of the Constitution of India can be curtailed so as to refuse even consideration of the case for

grant of premature release of the Petitioner, before undergoing minimum period of 7 1/2 years of actual sentence. The said power cannot be

permitted to be diluted by the Government instructions which merely provide guidelines for exercise of such power. The first limb of the argument

advanced by the learned State Counsel that the State Government could not exercise its powers under Article 161 of the Constitution of India for

considering the case of the detenu for grant of pre-mature release, before he had actually undergone 7 1/2 years of actual sentence, or. that such

advice was not binding, it hardly tenable.

The second limb of the argument advanced by the State counsel that the Governor had merely suggested to the Chief Minister to reconsider the

case of the detenu, because the said convict was very well educated and comparatively rich, and, yet committed murder and put up false alibi, too,

cannot prevail, as far as the facts and circumstances of the present case are concerned.

As already discussed above, the State had duly recommended the case of the detenu for grant of pre-mature release while exercising its power

under Article 161 of the Constitution, and, the Governor was bound to act on the said advice. The fact that the case was sent back to the State

Government for reconsideration of the case of the detenu on the objections, referred to above, indicates that the Governor did not agree, to act

according to the advice of the State Government in this case, even though the said advice, was, legally and, constitutionally binding on him.

The detenu was not granted parole till 30th June, 1987 as suggested by the Governor to the Chief Minister, while, returning the case of the

detenu for grant of pre-mature release, to the State Government. The case was resubmitted to the Governor in August, 1987 and the mercy

petition was rejected on 9th September, 1987, when, there was no elected Government in the State, as by; then the State had already been placed

under the President''s Rule. Mere fact that subsequent mercy petitions moved on behalf of the detenu through his mother Smt. Gurmail Kaur on

some additional grounds were rejected by the Governor would not make any material difference, as far as the recommendation by the State

Government dated 29th September, 1986 for grant of pre-mature release is concerned. The said order which is legally valid and had been passed

by the State Government in due exercise of its powers under Article 161 of the Constitution of India, still subsists, and, the same is binding on the

State Government. Since the detenu has already undergone more than 8 1/2 years of actual sentence and fulfills all other conditions of the order of

the State Government dated 29th September 1986 concerning his premature release, he is directed to be set at liberty forthwith subject to normal

safeguards and conditions. This petition is accordingly allowed.