Hari Ram vs State of Punjab and ors.

H.S. Brar, J.

In this petition under Section 482 of the Code of Criminal Procedure, read with Articles 226/227 of the Constitution of India, detenu Hari Ram prays for his premature release under Article 161 of the Constitution of India.

According to the averments made in the petition, Hari Ram petitioner was awarded death sentence under Section 302, Indian Penal Code, by the Sessions Judge, Ferozepur, which was later on commuted to imprisonment for life by this Court in appeal. Since the day of his arrest, the petitioner has averred in the petition, that his continuously confined in jail. He has undergone more than 8 years 4 months actual sentence and has also earned remissions exceeding six years (This was the position at the time of filing of this petition on August 12, 1991). The petitioner enjoyed parole/furlough on four occasions without any complaint whatsoever against his antecedents/conduct. The petitioner has not committed any jail offence and he has maintained satisfactory good conduct while undergoing the sentence of life imprisonment.

In reply to the petition, the averments made by the petitioner as stated in the above Paragraph have not been controverted by the respondents. It has been stated in the reply by Shri B.D. Aggarwal, Joint Secretary to Government, Punjab, Department of Home Affairs and Justice, on behalf of respondent No. 1 that the case of convicting petitioner was considered and rejected by the Government on December 9, 1991. The relevant portion of the reply is reproduced as under :

"Para 2 (a to m) ........... His case was considered and rejected by the Government on 9121991 keeping in view the facts and circumstances of the case, tendency to revert to crime and to instigate others to commit crime and reports of the local/district level authorities. Copy of the order is appexed as Annexure R.I. The facts of the case revealed that the convict had murdered his own wife Shanti and son Kishan without provocation. Secondly, the verification carried out a local level revealed that there was apprehension of breach of peace in case of release of the convict. According to the local/District Level Authorities, he could commit some heinous crime. As such, he did not deserve to be released on mercy."

From the reply, it is so revealed that the case of the petitioner has been rejected on two grounds (i) heinousness of the crime, that is the convict had murdered his own wife and son without provocation; and (ii) verification carried out a local level revealed that there was apprehension of breach of peace in case of release of the convict.

The learned counsel for the petitioner has argued that both the grounds on which the case of the petitioner had been rejected, are untenable in law. The case of the petitioner is covered under the Instructions of the Govt., dated May, 27, 1985, attached as Annexure P3 with the petition and heinousness of crime is not any of the grounds for which the petitioner''s prayer for mercy could be negative by the respondents. Moreover, he relies on ground (i) of Para 2 of the petition wherein he has stated that the respondents are discriminating his client''s case from other similar cases in which premature release was granted, for example, he submits that Darshan Singh son of Bhan Singh was sentenced to death on May 26, 1980 on account of five murders. The Supreme Court commuted him to undergo life imprisonment on five counts. November 27, 1989, JUDGMENT No. 2/323/87IIH7/40306 regarding release of the said convict was convict was released on or about December 15, 1989. Similarly, according to him, Jagraj Singh son of Mohinder Singh was awarded death sentence on two counts. He was released from the Central Jail, Amritsar, on August 27, 1990. He has given similar other circumstances and this averment, according to the learned counsel for the petitioner, has not been rebutted by the respondents in their reply.

The learned counsel for the petitioner further submits that the second ground on which his client has been denied premature release, is also not sustainable, as has been held in a number of cases that mere a apprehension of breach of peace is not a sufficient ground to deny premature release to a convict.

On the other hand, Mr. Dhillon, learned Assistant Advocate General, Punjab has opposed the prayer of the petitioner and has stated that the order rejecting the premature release of the petitioner is valid and in not liable to be set aside, as the crime committed by the petitioner is grave.

After hearing the learned counsel for parties, I am of the considered view that both the grounds on the basis of which the premature release case of the petitioner has been rejected are unsustainable in the eye of law. It has been held by this Court in a catena of authorities that mere apprehension of breach of peace cannot be a ground for refusal to release the detenu prematurely. Apprehension of breach of peace can well be safeguarded by demanding heavy amount of bond and surety from the detenu. (Reference in this connection may be made to Darshan Singh v. State of Punjab and another, 1990(1) Recent CR 674 and Bhagwant Saran and ors. v. State of U.P. and others, 1983(1) CLR 504, relevant portion of which reads as under :

"The Committee had recommended the release of these prisoners after taking into consideration the behaviour inside the jail as well as other factors. They only ground given by the State in the counter affidavit is that "after considering their cases sympathetically, keeping in view of the Law and order situation they cannot be released". A bald statement like that without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted. In fact there are why recommendations could not be accepted. We direct that the petitioners be released forthwith."

As regards the ground about heinousness of crime, the petitioner has cited various instances some of which have been stated above which he describes similar to his case and wherein the detenus in those cases were prematurely released. The case of the petitioner falls under the 1985 Instructions and his case cannot be distinguished from these of others where under similar circumstances the detenus were granted premature release. The gravity of the offence or the motive of the offence is a factor to be considered by the Court while awarding the sentence. Gravity or heinousness of offence is no ground to decline benefit of para 16B of the Punjab Jail Manual. This view of mine finds supports from the observations of a learned Single Judge of this Court in Mithu Singh v. State of Punjab and anr., 1989(1) Recent CR 238.

In view of my discussion above, this petition succeeds and the order, dated December 9, 1991, annexed as Annexure R1, with the reply is quashed and the respondents are directed to release the petitioner after he furnishes adequate security/surety to the satisfaction of the District Magistrate, concerned.