Harbans Lal vs State of Punjab

S. S. Grewal, J.

This petition under Article 1226/227 of the Constitution of India relates to grant of premature release to the petitioner who along with his other convicts was convicted under Section 302 read with Section 34 of the Indian Penal Code, and sentenced to undergo imprisonment for life by the Sessions Judge, Bhatinda on a 13101979.

According to allegations in the petition, the petitioner has already undergone actual sentence for more than eight and half years and taking into consideration the remissions earned ay him, his period exceeds 14 years. It was further alleged that on completion of requisite period of sentence, the petitioner moved a petition under Article 161 of the Constitution of India for grant of premature release on the following grounds :

(i) Petitioner has undergone more than 8 years 6 months actual sentence and more than 14 years including remissions in the jail;

(ii) Petitioner has enjoyed parole and furlough on five occasions each and has maintained satisfactory conduct in jail;

(iii) while undergoing the sentence petitioner has passed B.A. from Panjab University and the detenu is a student of LL.B. (Academic) :

(iv) the family of the petitioner was in jail;

The State Government after consideration of the case of the petitioner for grant of premature release, rejected the same vide its order dated 761988, copy whereof is Annexure P4. The said order was challenged by the petitioner in this Court in Criminal Writ Petition No. 2171 of 1988. Similarly, the orders of rejection passed any the State Government in respect of Asha Rani and Lajwanti coconvicts of the petitioner for grant of premature release were challenged by them in Criminal Writ Petitions 2175 and 2176 of 1988 respectively. These writ petitions were decided together with the petition of the present writ petitioner by this Court on 31789 and the State Government was directed to reconsider the cases of petitioner, as well as of his coconvicts in the light of instructions issued by it from time to time, copies whereof are Annexures P1 to P3. In the meantime, the petitioner was ordered to be released on bail. He was released on or about 1581980 and since then he has been on bail. The cases of the coconvicts of the petitioner for premature release were considered afresh by the State Government and they were released prematurely.

It was next pleaded that the case for grant of premature release of the petitioner was reconsidered by the State Government and rejected vide impugned order dated 411990, copy whereof is Annexure P6, on the ground that it was a case of preplanned murder and not a case of suicide; that the case stood fully proved against the accusedparty and that the petitioner cannot be released on the ground that he has undergone the requisite period of sentence and maintained good conduct in jail. Most of these facts were admitted by the State in its return. However, Lajwanti mother of the petitioner was allowed premature release because of old age and also because the father of the petitioner was also an old man and there was none to took after him, whereas the factor which weighed with the Government in granting premature release to Asha Rani younger sister of the petitioner is that she was 30/31 years of age and if detained further, the chances of her marriage would be marred. It was farther asserted that from the facts and circumstances of the case, the motive behind the crime, previous enmity between the parties, part attributed to the convict, and other relent considerations and because of heinousness of crime, the case for grant of premature release of the petitioner was rejected.

Counsel for the parties were heard.

Admittedly, the present petitioner has already undergone the minimum period of actual sentence of eight and a half years and the said period together with remissions earned by him exceeds 14 years, and as such the petitioner has a legal right to get his application for grant of premature release considered under Art. 161 of the Constitution. As per the latest instructions issued by the State Government, ensuring expeditious review of cases of convicts for securing premature release, the Punjab Government vide Memo No. 12/152/83/CJ/32987 dated 12.12.1985 has laid (down following guidelines for mercy petitions :

"1. On grounds of serious illness that could prove fatal due to continuous detention in jail.

Fixation of responsibility of a particular life convict in gang murder, where others are also involved besides the convict who has submitted the mercy petition.

The aspect of young/adolescent age, sex, mental deficiency, grave or sudden provocation and absence of motive and premediation should also be the factors while scrutinising the copies of judgments in mercy petition cases.

The old age beyond 70 years can also be one of the factors to grant mercy.

On extreme compassionate grounds like no bread earner of the family and no support from different relations. This will, however, differ from individual to individual.

After introduction of Section 4.33A of Cr.P.C. w.e.f. 18121978 since every premature release case of a life convict will be taken up after he completed 14 years actual sentence in a jail, a minimum period of 5/6 years for juvenile and women prisoners and 71/2 and 81/2 years for, adult male prisoner can be taken as one of the guidelines for release on mercy petition.

Cases where subsequent to the announcement of the judgment new facts have come to light which if known to the court at the relevant time would have resulted in acquittal of convict and where the proceedings can not be reopened according to law."

Besides the Punjab Government had issued instruction vide letter dated 7th September, 1979 for consideration of premature release cases of life convicts under Article 161 of the Constitution of India. It was directed that preexisting instructions concerning suffering of actual, sentence and satisfactory conduct in the jail shall be taken into consideration by the District Level Committee, while recommending the rolls of such convicts to the State Government.

In the instant case, even though the State was earlier on directed to reconsider the case for grant of premature release to the petitioner vide order dated 3171989, copy whereof is Annexure P5 on the basis of instructions issued by the State Government, it had erred in rejecting the mercy petition of the petitioner under Article 161 of the Constitution of India on the ground that, it was a pre planned murder and was not a case of suicide. The heinousness of offence is no ground to deny grant of premature release to the petitioner, particularly, when his other convicts, namely. Lajwanti and Asha Rani were granted premature release by the State Government. The facts and circumstances of the case relating to conviction and sentence of the petitioner and his coconvicts do not indicate that it was a case of gang murder, or, that his was a case of intractably savage delinquent. Thus, there was no justification for the State Govern.ment for rejecting the case of grant of premature release to the petitioner, particularly, when he has already undergone minimum period of actual sentence of 8 and half years and his conduct inside the jail had been satisfactory.

For the foregoing reasons, the impugned order of rejection for grant of premature release of the petitioner passed by the State Government Annexure P6 is set aside. The petitioner is directed to be released forthwith. The personal bond and surety bound furnished by the petitioner shall stand discharged. A copy of this order be sent to the respondents as well as the Superintendent, District Jail, Bhatinda for compliance.

JUDGMENT accordingly.