Iqbal Singh vs State of Punjab

Jai Singh Sekhon, J.—The petitioner was sentenced to undergo imprisonment for life on two counts by the trial Court vide its order dated January 13, 1980 u/s 302/34, I.P.C. Both the sentences were ordered to run concurrently. It is admitted case of the parties that by the September 14, 1988 the convict had undergone 9 years 1 month and 6 days of actual imprisonment including the period of detention. He earned remissions for 6 years, 3 months and 28 days. The petitioner has sought premature release on the ground of having undergone more than 14 years sentence including remissions. It is mentioned in the order Annexure P-5 that the case of the petitioner for premature release was declined on the ground that he has committed a heinous crime by killing two persons along with others and that there is reasonable apprehension of danger to the life of Gurnam Singh, as earlier, during parole the petitioner and his father had locked with an evil eye towards Gurnam Singh, (sic) eyewitness. It is maintained by the respondents that remissions of Sentence is a sole (sic) of the State Government as held in Kehar Singh v. U.O.I. (Special Leave Petition Criminal No. 3084/88) by the Supreme Court.

There is no dispute that the power of clemency rests with the State Government or the Central Government as the case may be, but all the same, State Government is to be guided by the rules/instructions laid down by itself in such like cases. Previously, Para 516-B of the Punjab Jail Manual provided guidelines in such like matters. It inter alia provided that in case of convicts above 20 years at the time of their conviction, were required to undergo 14 years'' sentence including remissions before their case for premature release can be considered by the State Government.

2-A. Thereafter, in view of the provisions of Section 433A of the Code of Criminal Procedure, 1973, the State Government again applied its mind to the matter and issued instructions on September 7, 1979 (Ann. P-1) to the effect that in future only those cases of prisoners should be treated as eligible for premature release who have completed requisite sentence as per earlier policy besides having satisfactory conduct in the jail. Again the State Government issued instructions on December 12, 1985 (Annexure P-3) laying down the following guidelines for premature release of the prisoners:--

"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 admitted the mercy petition.

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

The old age beyond 70 years can also be one of the facts 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 433A of Cr.P.C. w.e.f. 18-12-1978 since every premature release case of a lifer convict will be taken up after he completed 14 years actual sentence in a jail a minimum period 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 annuncement 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 convicts and where the proceedings cannot be reopened according to law."

The perusal of guideline figuring at item No. 6 shows that the case of an adult male prisoner for premature release can be considered by the State Govt. on mercy if he has actually undergone 81/2 years actual sentence. These instructions came to the scrutiny of this Court in Karnail Singh v. State of Punjab (1989) 1 All Cri LR 1019, wherein it was held that all the seven items figuring in the instructions Annexure P-3 of the State Govt., are independent grounds for considering the case of premature release of prisoners. In this view of the matter, gravity or nature of the heinous crime committed by the petitioner would be an independent consideration than the one of suffering actual sentence to the extent stated above. The petitioner had admittedly undergone more than 81/2 years actual sentence and more than 14 years including remissions. Thus, he is eligible for being considered for premature release.

The question then arises whether the premature release of the petitioner can be withheld on the ground that there is likelihood of danger to the life of one of the eyewitness in the parent case if he is released. In this regard it is noteworthy that there is no indication from the written statement that aforesaid Gurnam Singh had lodged any report with the concerned official or authorities when on earlier occasion the petitioner and his father while on parole had looked towards him with an evil eye or evil design. So the withholding of the grant of premature release on such a vague allegation of Gurnam Singh is neither here nor there especially when the prisoner is required to be released prematurely after execution of bond''s and furnishing a surety undertaking to keep peace and be of good behaviour during such period and has to surrender for undergoing the remaining period of his imprisonment, in case he violates the terms of such bonds. The ratio of Supreme Court decision in Bhagwat Saran v. State of U.P. (1983) 1 ChanLR 504, can safely be referred in this regard. In that case also the premature release concession was withheld by the State Govt. in view of the law and order situation. Thus it was held that there being nothing to indicate as to how law and order was likely to be adversely affected, the prisoner should be released forthwith.

The observations of the Supreme Court in Criminal Writ Petn. Nos. 526-27 of 1988 in a Special Leave Petn. Kehar Singh and Another Vs. Union of India (UOI) and Another, , are of no relevance to the facts of the present case as therein it was simply remarked that prerogative of the President and the Governor under the Constitution to grant pardon cannot be questioned in a judicial forum whereas in the case in hand, the withholding of premature release of the petitioner by the State Government as against the guidelines laid down by it in the instructions referred above, is involved.

For the foregoing reasons this writ petition succeeds and the State is directed to release the petitioner forthwith on usual terms and conditions.