Gurmej Singh vs State of Haryana

J.S. Sekhon, J.

Gurmej Singh petitioner was sentenced to death by the learned Sessions Judge, Ambala, for the offence punishable under Section. 302 of the Indian Penal Code, on March 16, 1974. The death sentence was confirmed by the High Court. It was ultimately commuted to imprisonment for life by the Hon''ble Governor of Haryana. He has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for issuing a writ directing the State to set him at liberty as his further detention is illegal because he has undergone 11 years 8 months and 29 days substantive imprisonment including his detention during the pendency of the case besides having earned 7 years and 6 months by wayof remission in view of his good conduct in the jail. It was also stressed that provisions of Section 433A of the Code of Criminal Procedure were not applicable to his case as the conviction order was passed by the learned Sessions Judge on March 16, 1974. It was further contended that paragraph 516B of the Punjab Jail Manual which is based upon Government of India''s resolution No. M159167 dated 6.9.1905, would override the instructions issued by the State of Haryana in this regard in view of the provisions of Article 372 read with Article 246 of the Constitution. The instructions issued by the Haryana Government vide memo No. 7882JJ/77/30099 dated November 28, 1977 were stressed in order to persuade the Court that a life convict having undergone 81/2 years of substantive sentence and 14 years in all including the remission, is entitled to be considered for premature release.

In the return filed by the State, it is admitted that the petitioner has undergone 11 years 8 months and 12 days of substantive sentence but maintained that imprisonment for life means sentence for the entire life of the individual and it is the prerogative of the Government to prematurely release him in view of the instructions issued from time to time. It was, however, admitted that provisions of Section 433A of the Code of Criminal Procedure were not applicable to the case of the petitioner. On the other hand, it was maintained that the case of a life convict whose death sentence has been commuted to life imprisonment by the Governor, could not be considered for premature release unless he has undergone 14 years of substantive sentence as per the instructions issued by the Haryana Government vide. memo No. 43/19/83JJ (2) dated February 27, 1984.

I have heard the learned counsel for the parties beside perusing the record.

In Maru Ram v. Union of India, AIR 198O Supreme Court 2147 their Lordship of the Supreme Court after elaborate discussion of the constitutional vires of Section 433A of the Code of Criminal Procedure as well as its prospective application and prerogative of the Government of India and the State Government under Articles 72/161 of the Constitution respectively have held as under : "(1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteenyear gestation for reformation.

"But course is to construe, not construct, to decode, not to make a code.

(2) We affirm the current supremacy of Section 433A over the Remission Rules and shortsentencing statutes made by the various States.

(3) We uphold all remissions and shortsentencing passed under Articles 72 and 161 of the Constitution but release will follow in life sentence cases, only on Government making an order enmasse or individually in that behalf.

(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.

(5) We negate the plea that Section 433A contravenes Article 20(1) of the Constitution.

(6) We follow Godse''s case (AIR 1961 SC 600)(supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of the remissions earned, the prisoner can claim release only if the remaining sentence is remitted by the Government.

(7) We declare that Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial Court before the 18th December 1978 when Section 433A came into force. All `lifers'' whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if the Government makes an order to that effect. To this extent the battle of the tenses is won by the poisoners. It follows, by the same logic, that shortsentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the Court of first instance was before Section 433A was brought into effect.

(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their owns. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify of the group of cases and indicate the application of mind to the whole group.

(9) Considerations for exercise of powers under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the Court examine the exercise.

(10) Although the remission rules or shortsentencing provisions proprivigore may not apply as against Section 433A, they will override Section 433A if the Government, Central or State, guide itself by selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered. current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government if in some intractably savage delinquents Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State. to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome. scheme.

(11) The U. P. Prisoners'' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of losses and liberal type and such licensed enlargement will be reckoned for the purpose of the 14year duration. Similar other statutes and rules will enjoy similar efficacy.

12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles subject to security safeguards, and other humanizing startegics for inmates so that the dignity and worth of the human person are not desecrated by makingmass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.

(13) We have declared the law all right, but lawinaction fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.

(14) Section 433A does not forbid parole or other release within the 14year span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty."

Thus, there is no doubt that the case of the petitioner regarding premature release had to be examined by the State of Haryana keeping in view the instructions prevalent at the time when the petitioner had completed his 81/2 years of substantive sentence i.e. in the year 1981. Till then prevalent instructions in the State of Haryana are embodied in paragraph 516B of the Punjab Jail Manual which in turn is based on the Government of India''s resolution No. M159167 dated September 6. 1905. In this para no distinction has been made for premature release of a convict sentenced to life imprisonment by the trial Court and those convicts whose sentence was commuted to life imprisonment. Similar situation continued prevailing till the Haryana Government issued notification No. 43/19/83JJ(2) dated February 27, 1984 prescribing completion of 15 years substantive sentence in the case of those life convicts whose sentence of death had been commuted to life imprisonment. For consideration of their case for premature release obviously the above referred instructions were issued by the Government of Haryana on the basis of the provisions of Section 433A of the Code, which came into force on December 18, 1978.

The instructions issued by the Haryana Government from time to time in this regard came under scrutiny of the Division Bench of this Court in the amended criminal writ petition No. 251 of 1983 (Ram Saran v. State of Haryana) (1985(1) Recent C.R. 166) decided on 21.12.1984. In that case after relying upon the guidelines laid down by the Supreme Court in Maru Ram''s case (supra), it was held that the condition of undergoing 14 years substantive sentence would not be applicable in those cases where 81/2 years substantive sentence had already been undergone by the convict before issuing of the instructions by the State Government in 1984. Towards the end of the judgment, it was directed that case of Ram Saran petitioner be considered in view of the prevalent instructions of the State Government in force in 1981.

There is no dispute that the petitioner has by now undergone 20 years of sentence if the period of remission is included thereon. Thus, under these circumstances the petitioner is directed to be released on bail on his furnishing bail bonds to the satisfaction of the Chief Judicial Magistrate, Ambala and the State is directed to consider his case for premature release under the prevalent instructions when the petitioner had completed his 81/2" years of substantive sentence, within a period of six months from today. In case the State Government declines the case of the petitioner for certain reason, the petitioner shall surrender before the Chief Judicial Magistrate, Ambala. for undergoing the remaining portion of his sentence.