Gurnam Singh vs State of Haryana

H.S. Brar, J.

In this petition under Articles 226/227 of the Constitution of India read with Section 482 of the Criminal Procedure Code, a prayer has been made to order premature release of the detenupetitioner Gurnam Singh as he fulfils all the requirements provided under the relevant instructions for the premature release of a convict.

Briefly stated, the facts as given in the petition are that Gurnam Singh detenupetitioner are arrested on 21.6.1981 and convicted by the trial Court on 23.4.1982 under Section 302 I.P.C. for life, in addition to some minor punishments under Sections 148/149 I.P.C. By now, he has undergone 13 years 2 months, actual sentence and 6 years as remissions. The total comes to about 19 years 2 months including remissions which means that the petitioner had undergone more than 13 years 2 months actual sentence and more than 19 years 2 months including remissions. During the entire period of sentence, he was never found guilty of any jail offence. He enjoyed parole/furlough on a number of occasions and there was no complaint of whatsoever nature against his antecedent and conduct. The petitioner has three more brothers, who are confined in jail alongwith him. Father of the petitioner is over 75 years of age and his mother is about 70/71 years. State of Haryana issued instructions in the year 1984 for premature release of the detenu wherein it was provided that adults life convicts were required to undergo 81/2 years actual sentence and 14 years sentence including remissions. Juvenile life convicts were required to undergo 6 years substantive sentence and 14 years sentence including remissions. The 1984 instructions are annexed as Annexure P2 with this petition. The petitioner under the instructions dated 27.2.1984, (Annexure P2) completed 81/2 years of actual sentence sometimes in February/March, 1990. He had completed 81/2 years actual sentence and 14 years sentence including remissions before coming into effect the new instructions dated 19.11.1991, which are annexed as Annexure P3 with this petition. The State of Haryana rejected premature release case of the petitioner vide its order dated 14.8.1991 and deferred the release of the petitioner till he completed 14 years'' actual sentence. Copy of the order dated 14.8.1991 is annexed as Annexure P4 with this petition.

Learned Counsel for the petitioner contends that the petitioner is required to be released on the following grounds :

(a) The case of the petitioner is required to be considered under the instructions dated 27.2.1984. As per the said instructions, the petitioner was required to undergo only 81/2 years sentence including remissions. The petitioner fulfils all the requisite conditions under the said instructions. It is a fact that the petitioner was only 19 years old at the time of his conviction on 23.4.1982. This fact is established from the judgment of the Additional Sessions Judge, Sirsa vide which the detenu Gurnam Singh was convicted and which is annexed as Annexure P1 with this petition. In the title of the judgment State v. Khem Singh & others, the age of Gurnam Singh son of Joginder Singh has been described as 19 years.

(b) The instructions dated 19.11.1991 Annexure P3 are not applicable in the case of the petitioner as he was convicted much earlier to the issuance of the said instructions. The instructions Annexure P3 cannot be made to have retrospective effect. These are prospective in nature like Section 433A of the Cr.P.C. These instructions are applicable on those life convicts who are convicted after the issuance of the instructions dated 19.11.1991. The counsel for the petitioner has relied on the decision of the Apex Court in Joginder Singh v. State of Punjab, AIR 1990 SC 1396.

(c) For arguments sake, if at all, the instructions dated 19.11.1991 are made applicable in the case of the petitioner, even then his case also deserves to be considered under para 2(b) of the said instructions as he was not found guilty of any kind of offence mentioned in para 2(a) of the instructions. Even in that case, the petitioner has become entitled to be released on the expiry of 10 years actual sentence and 14 years sentence including remissions. The petitioner has maintained good conduct inside the jail and there were no adverse remarks against him. He has earned various remissions, stet of parole/furlough on a number of occasions. There was no complaint against his antecedents/conduct during the entire period of parole/furlough.

(d) The detention of the petitioner is illegal, arbitrary and violative of Articles 14, 19 & 21 of the Constitution.

(e) The order refusing premature release to the petitioner is entirely nonspeaking and goes against the direction of the Supreme Court annexed is Annexure R3 by the respondents themselves. It is specifically mentioned in the order of the Hon''ble Supreme Court that the decision will be a speaking one.

Reply has been filed by the Superintendent, District Jail, Sirsa on his behalf and on behalf of the respondents. It has been admitted in the reply that the petitioner was never found guilty of any jail offence and he enjoyed parole/furlough on a number of occasions and the antecedents/conduct of the petitioner remained satisfactory in jail. It is stated in the reply that the petitioner had committed a heinous, gruesome and brutal murder and his case came under para 2(a) of the latest instructions dated 4.2.1993 annexed as Annexure R2.

I have heard the learned counsel for the parties and am unable to sustain the order dated 14.8.1991 vide which the premature release case of the petitioner was negatived, mainly on the following grounds

That the impugned order is not a speaking one. It has been held so even by the Apex Court in Criminal Appeal No. 246 of 1993 decided on 22.2.1993, annexed as Annexure R3 by the respondents themselves since the decision of the authorities disposing of the premature release case of the petitioner should be a speaking one. The points prima facie in favour of the release of the petitioner prematurely have been made out in the petition and they were not considered at all by the authority concerned while rejecting the premature release case of the detenupetitioner. These points may be noted as under

The petitioner was convicted on 23.4.1982, by the trial Court under Section 302 when he was awarded life sentence. Admittedly, according to the record of the case, he was only 19 years old at the time of his conviction.

As he had already completed the requisite sentence under the 1984 instructions (Annexure P2), his case could have been considered under the 1984 instructions as the instructions dated 14.8.1991 had not come into existence of that time. According to the learned counsel, the case of his client falls under para 2(b) even of the latest instructions dated 4.2.1993.

As the impugned order denying premature release to the detenupetitioner is a nonspeaking one, all these points described above which prima facie go in favour of the detenupetitioner, have not been considered and no reason has been advanced by the respondents either in the impugned order or before this Court as to why the case of the petitioner does not fall under the 1984 Instructions, 1991 Instructions or para 2(b) of the 1993 Instructions.

In the premature release case, the liberty of an individual is involved. The Authorities are expected to scan their case minutely; and if they deserve premature release according to the Instructions, then they should not be denied their rights to premature release under those Instructions. The impugned order shows that it was passed just casually without caring to see as to whether the case of the detenupetitioner fell under any of the requisite conditions of the Instructions which entitled the detenu to his premature release. Liberty and freedom of an individual in a democratic country of ours is zealously guarded and constitutional safeguards have been provided for the same. The executive authority which is clothed with the power of deciding such sensitive issues concerning the liberty of an individuals, is expected to be cautious and conscious of the constitutional safeguards provided for deciding such matters. A casual approach in this regard will certainly be not in consonance with the constitutional mandate and will not find approval from the Courts.

In these circumstances, I set aside the impugned order, dated 14.8.1991 Annexure P4 and direct the respondents to consider the case of the petitioner afresh after taking into consideration all the points raised by the petitioner, as indicated above in my judgment. The respondents are directed to pass a speaking order within four weeks from the date of receipt of a copy of this judgment.

The petition stands disposed of with the above said observations.

A copy of the judgment be also sent to the Authority concerned.