Gurmukh Singh vs State of Punjab

J. S. Sekhon, J.

The petitioner is undergoing imprisonment for life in a murder case under the orders dated 391982 of the learned Sessions Judge, Jalandhar. He has undergone more than 81/2 years of actual sentence including the period of detention during trial and in all more than 13 years 9 months uptill 1341996. Thus by now he has completed more than 14 years in all including remissions. The petitioner avers that his mercy petition was wrongly dismissed by the State Government on the ground of his misconduct in the jail which resulted in awarding some punishment by the Superintendent, Jail, vide order dated 561984. It is further contended that the above referred order of the Superintendent Jail, under Sections 45 and 46 of the Prisons Act, 1894, is no order in the eye of law as judicial appraisal from the concerned Sessions Judge was not taken as per directions of the apex Court in Sunil Batra v. Delhi Administration, AIR 1980 SC 1579.

In return filed by Shri Jagdish Singh, Superintendent, Central Jail, Jalandhar, on behalf of the respondent, it is admitted that the petitioner has undergone more than 8'' 1/2 years of actual sentence including the period of detention during trial and in all more than 14 years including remissions. It is however maintained that the above referred order dated 561984 was passed by the Superintendent Jail, after following the due procedure laid down under Section 46 of the Prisons Act and that due opportunity was afforded to the prisoner to defend his case. However, the allegation of the petitioner in para No. 6(c) of the petition regarding not getting the concurrence from the concerned Sessions Judge to the punishment awarded has not been specifically refuted in corresponding para of the return. In para 8 of the return, it is maintained that the mercy petition now filed by the convict has been initiated by the Superintendent Jail, on 1271990 for the reports of the district authorities and it will be considered by the State Government on receipt of these reports in due course of time.

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

The apex Court in Sunil Batra''s case (supra) after elaborate discussion had observed that the judicial appraisal of the concerned Sessions Judge should be obtained to the proposed punishment by the Superintendent Jail a case where prisoner is being sentenced for his misconduct in a summary manner. It is also remarked that if the concerned authority fails to get the judicial approval before imposing the actual punishment the judicial appraisal should be obtained immediately after passing the punishment order. In the case in hand, it appears that the judicial appraisal of the concerned Sessions Judge was not obtained at all. Thus the order dated 561984 of the concerned Jail Superintendent being no order in the eye of law has to be ignored. The matter does not rest here as more than five years have elapsed since this order of imposing punishment was passed and it cannot be held to operate for all times to come because that will take away the very incentive from the prisoner to improve his conduct in the jail. In Gurmit Singh v. State, 1988(2) RCR 490 : 1988(2) All India Criminal Law Reporter 987 , this Court had held that order imposing jail punishment should remain operative at the most for a period of five years only. The stand of the State Government is that in view of the misconduct of the petitioner in the jail, his case does not fall within the instructions issued by the State Government on 11111989 Annexure P2.

Under these circumstances, the authorities concerned are directed to consider the case of premature release of the petitioner by remission of sentence under the instructions dated 11111989 as the petitioner had completed the requisite sentence of 81/2 years and was less than 20 years of age at the time of commission of offence, within three months of this order. The State government is also directed to dispose of the mercy petition filed by the petitioner under Article 161 of the Constitution within this period failing which, the petitioner shall be released on furnishing requisite bonds to the satisfaction of District Magistrate, Jalandhar, undertaking to surrender before the concerned authorities in case of dismissal of his mercy petition. The writ petition stands disposed of accordingly.