Jagga Singh vs State of Punjab and anr.

Ujagar Singh, J.

By this order, I am deciding Criminal Writ Petitions No. 1967/1987, 1391/1987, 1969/1987, 203/1988, 221/1988 and 840/1988 in which a common question of law is involved. All the petitioners had applied for premature release, but their petitions were declined by the concerned authorities. Chapter 32 of the Code of Criminal Procedure, 1973 (shortly the Code) deals with execution, suspension, remission and commutation of sentences. In this chapter, we are concerned only with its part E which contained Ss. 432, 433, 434 and 435. By an amendment, through Sec. 32 of Act 45 of 1978, which was enforced on 18121978, a new sec. 433A was added which reads as under :

"433A. Restriction on powers of remission or commutation in certain cases. Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he has served at least fourteen years of imprisonment."

This section gave rise to a controversy, as to whether a person sentenced to imprisonment for life could be released from prison before he has served at least 14 years of imprisonment. This provision prevails notwithstanding anything contained in Ss. 432 and 433 of the Code. This section came for interpretation in Maru Ram v. Union of India, AIR 1980 SC 2147 which was heard by a Bench of 5 Judges. The new section was discussed threadbare. Three separate judgments were delivered ; one by V. R. Krishan lyer, J. as his Lordship then was (on behalf of himself, Y. V. Chandrachud, CJ and P.N. Bhagwati, J.) ; the second was delivered by A.D. Koshal, J. and the third was delivered by S. Murtaza Fazal Ali, J. After discussing the facts and the points of law involved, the majority judgment laid down 14 principles out of which principles No. 7, 8, 9, 10 and 14 are reproduced as follows :

(7) We declare that Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years'' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came into force. All `lifers'' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Govt. for release on the strengh of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that shortsentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before section 433A was brought into effect.

(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.

(9) Considerations for exercise of power under Articles 72/161 may be, myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.

(10) Although the remission rules or shortsentencing provisions proprio vigore may not apply as against section 433A, they will everride section 433A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its Constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433A is itself treated as guideline for exercise of Articles 72/161. These observation of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.

(11)

(12)

(13)

(14) Section 433A does not forbid parole or other release within 14 years span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty .........

A.D. Koshal, J. fully agreed with V. R. Krishna Iyer, J. about his findings on 2 to 11, 13 and 14 enumerated by his Lordship in its concluding part, as also with the first sentence occurring in findings No. 1. So far as the other findings are concerned, a separate note was delivered. Murtaza Fazal Ali, J., while concurring in the judgment delivered by Krishna Iyer, J., expressed his own views on certain important features of the case and on the nature and correct aspect of the penology as adumbrated by Krishna Iyer, J. Ultimately, his Lordship found that he was unable to find any real consistency with section 433A of the Code and Articles 72/161 of the Constitution, as contended by the petitioners. It was held as under.

"It is,

therefore, manifest that while exercising the powers under the aforesaid Articles or the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of section 433A so as to create a conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter."

Out of the above petitions, I will refer the facts of Criminal writ Petition 1967/1987. The facts of other petitions where ever they differ will be discussed later on.

Jagga Singh he was petitioner was sentenced to undergo lifeimprisonment on 131979 and lie arrested on 1531978. Details of the sentence undergone by him are, as under :

Period spent In detention from 15.3.1978 till 3181988, is 10 years, 5 months and 16 days.

(ii) Remissions granted : 7 years.

Thus, the total period which can be said to have been undergone by him comes to 17 years, 5 months and 16 days. In case the words "unless he had served 14 years of imprisonment" in the new See. 433A are taken to include the remission period also, the petitioner can be safely said to have served for more than 14 years imprisonment and thus, he would be entitled to be released even in accordance with Sec. 433A. The petitioner has relied upon, various instructions issued from time to time by the State Government, laying down guidelines for applicability in question of premature release. The instructions are dated 791979, 26.3.85 and 121285 and these are annexed to the petition as Pl, P2 and P3. These instructions relate to the earning of premature release by a life, convict under Article 161 of the Constitution, requiring the actual sentence to be undergone as 81/2 years and if the convict is a female or a Juvenile then 5 to 6 years, as the case may be, The petition by the petitioner was moved for premature release under Article 161, and it was sent on 18101986 to the Governor of Punjab, Secretary to Government, Punjab, Department of Home Affairs and the concerned Superintendent of Jail and premature release was claimed on the basis of Annexures P1, P2 and P3 laying down following grounds :

a) On extreme compassionate grounds like no breadearner of the family and no support from different relations ;

b) Convict has completed more than 81/2 years actual sentence.

c) Fixation of responsibility of a particular life convict in gang murder case whereby others are also involved besides the convict; and

d) on grounds of bad health that could prove fatal due to continuous detention of the detenu in jail.

This petition remained pending with the State Government without any decision and led to the filing of Criminal Writ Petition No. 310/1987 which was put up for final hearing on 1281987 and Pritpal Singh, J. passed the following orders :

"The premature release case of the detenu Jagga Singh who is undergoing life imprisonment in Central Jail, Ferozepur was rejected on February 24, 1987. The detenu has challenged the validity of this order on the ground of arbitrariness. The impugned order of rejection is as follows:

"The mercy petition dated 18th October, 1986 filed by Shri V. K. Jindal, Advocate, Punjab and Haryana High Court an Chandigarh on behalf of life convict Jagga Singh son of Lal Singh, has been carefully considered. There are no extenuating circumstances or compassionate grounds warranting the exercise of powers of mercy under Article 161 of the Constitution of India and con. sequential remission of the unexpired portion of the sentence. Therefore, the Government has decided to reject it."

Manifestly no reason has been given in the impugned order for rejecting the mercy petition. It is not a speaking order and suffers from the vice of arbitrariness. A similar order was quashed by this Court in Cr. WP No. 600 of 1987 (Janta Singh v. State of Punjab and another), decided on July 27, 1987.

The impugned order (Annexure P5) is: therefore, quashed and the respondent State Government is directed to reconsider the detenu''s premature release case within three months from today by passing a speaking order.

This petition is disposed of in these terms."

This order makes it clear that a direction was given to the State Government to reconsider the petitioner''s premature release case within 3 months from the date of the order. Thus, the case was to be decided on or before 12111987. The State Government, again, rejected the case of the petitioner vide order dated 26.11.1987, Annexure P4. That order has been challenged by way of this petition on the following grounds :

i) The State Govt. has not disclosed any reason for the denial of release and the only reason given is that all the relevant aspects of the matter have been thoroughly analysed, examined and commented upon, on the file;

ii) A perusal of Annexures P1 to P3 reveals that the petitioner had undergone the requisite period of sentence, as per the policy laid down by the State Government and also the conduct of the petitioner inside the jail remained without any sort of complaint. There are numerous cases of convicts who have been released prematurely on the basis of the relevant instructions. Cases of Mann Singh, Karnail Singh, Pawan Kumar and Capt. Manjit Singh have been mentioned.

In any case, it is averred that the State Government has not stated any where that the policy laid down under the relevant instructions for premature release of persons is not being adopted by the State.

The State in its reply filed by Shri R. N. Bassi, Deputy Secretary Department of Home, Punjab strongly opposes this petition on the grounds that the petitioner was convicted on 131979 on two counts : u/s 302/149 of the Indian Penal Code and was sentenced on each count to imprisonment for life and to pay a fine of Rs. 2,000/ and in default of payment of fine, to undergo rigorous imprisonment for one year. It is further mentioned that on 2111987 he had undergone actual imprisonment for 9 years 6 month and 14 days and had earned remissions for 7 years 10 months and 14 days. Thus calculated, the total deemed imprisonment comes to 17 years 4 months and 28 days till that date and now it comes to 18 years, 2 months and 28 days. The other position is that a life convict is now entitled to earn his premature release under Article 161 of the Constitution of India even after he has undergone actual imprisonment for 81/2 years as this is against the spirit of the provisions of section 433A of the Code. Instructions issued by the Government on 791979 show that the Superintendents of Jails were desired to forward the relevant cases under Article 161 of the Constitution of India. A State Level Committee was constituted vide instructions Annexure P 2 and which ceased to function, in December, 1985 and since then the cases of remissions of sentences under Article 161 of the Constitution of India are being considered in official routine. Again, instructions have been issued on 12121985 laying down that totality of the facts and circumstances of each case, including the existence or otherwise of extreme compassionate grounds have to be kept in view. Thus the factors, including the motive behind the crime where the motive still persists or had been relevant, previous enmity between the parties, if any; the conduct of the convict inside and outside the jail; party faction in the village; and whether the convict belongs to any faction and if so, whether in the circumstances of the case, is entitled to premature release. He has referred to paragraph 72, subparagraph (10) of this case and has argued that the remission rules of short sentencing provisions will override section 433 A if the Government, Central or state, guides itself by the selfsaying rules or schemes in the exercise of its constitutional powers and their lordships regarded the said rules as fair until fresh rules are made in keeping with the experience gathered, social, conditions and accepted penological thinking which is a desirable step. It is further directed therein that the present remissions or shortsentencing orders passed under Articles 72 and 161 of the Constitution of India, will be followed. The observation further goes on that section 433A can itself be treated as a guideline in some cases of intractably savage delinquents. Here a reference to the Government Instructions dated 791979 Annexure P 1 will show that after considering the coming into force of section 433A, it was decided that cases of all eligible convicts be forwarded to the Governor of Punjab under Article 161 of the Constitution of India for remission of the sentences and such cases be divided into 2 categories : one category of convicts who fall in the proposed amended section 302 (1) of the Indian Penal Code and the second category of those who fall in the proposed S. 302 (2) of the Indian Penal Code. This notification further lays down that only those convicts will be entitled to be released who have completed the minimum requisite sentence as per earlier policy and who have satisfactory conduct in jail and in whose cases, District Level Committee makes a recommendation. From this notification it is clear that even lifers who have been sentenced after 18121978 have been held to be entitled for release after completing a minimum requisite sentence as per earlier policy. The said State Level Committee was constituted under the notification dated 2631985 Annexure P2, but later on it ceased to exist. Again, vide notification dated 12121985 Annexure P3, the Punjab Government lays down that although no executive instructions to deal with the premature release of convicts after 18121978 can be issued by the State Government, but mercy petitions have to be examined by the State Level Committee and recommendations are to be made to Government on the guidelines stated therein out of which only one is relevant for the purpose of this case which is reproduced as under :

"a minimum period of 5/6 years for juvenile and women prisoners and 71/2 to 81/2 years for adult mate prisoners can be taken as one of the guidelines for release on mercy petition."

Vide Annexure P4 dated 26111987, a letter of the Punjab Government, It is stated that the case of Jagga Singh petitioner was carefully examined and considered and the following orders have been passed :

"As brought out on the record, prisoner Jagga Singh s/o Lal Singh, resident of Shamsabad, PS Fazilka, District Ferozepur at present confined in Central Jail, Ferozepur was convicted on 131979 by the Sessions Judge, Ferozepur under sections 148, 307 and 302/149, IPC on two counts. He was sentenced on each count u/s 302/149, IPC to undergo imprisonment for life and to pay a fine of Rs. 2,000/ and in default thereof to undergo RI for another one year on each count. He was sentenced u/s307. IPC to RI for three years and a fine of Rs. 500/ and in default of payment to fine to undergo RI for another six months. He was sentenced under sections 323/1149 to Imprisonment for 3 months on one count, RI for two months on the second count. He was also sentenced to undergo RI for one year u/s 149, IPC. All the substantive sentences were ordered to run concurrently.

According to the provisions of section 433A of the Code of Criminal Procedure, 1973 an accused shall not be released from the prison unless he has served 14 years of imprisonment.

The convict has filed this mercy petition, seeking remission of the unexpired portion of sentence under Article 161 of the Constitution of India, All relevant aspects of the matter have been thoroughly analysed examined and commented upon the file. The grounds, on which he has claimed mercy, are that his father has died and there is none to look after the family of the convict and a widowed sister. It has also come on record that the convict has three brothers who can look after the family of the petitioner and their widowed sister. It is clear that none of these grounds constitute a valid exercise of the prerogative of mercy in this case. The mercy petition, in the circumstances, being devoid of any merit, is declined."

The only ground for rejection is that it was wrong that there is none to look after his family and widowed sister. Although the petitioner''s father had died, but he has 3 brothers who can look after his family and their widowed sister. There is no other ground mentioned for rejection of the mercy petition. In the mercy petition, it has been specifically stated that one of the brothers of the petitioner Jagga Singh was confined along with the petitioner and the other brother Nazir Singh was not doing any work. The petitioner has also his wife and a daughter aged 15/16 years. Balbir Singh and Kaka Singh his brothers are doing agricultural work and are living separately. This aspect has not been considered. In this view of the matter, it can be safety said that this aspect of the matter was not taken note of. A Full Bench of Patna High Court in Umesh (Unesh ?) Parshad Singh v. State of Bihar, 1984 Cri, LJ 183 thoroughly considered the matter and came to the conclusion that in the absence of any rule or specific decision of the State Government in this regard, a lifeconvict below the age of 20 years on the date of commission of the offence has no inflexible right to be released on. On completion of 10 years or imprisonment. Inclusive of remissions. The provisions of Bihar and Orissa Jail Manual did not provide for premature release of lifeconvicts, as in a manual for Superintendence and Management of Jails in Punjab a specific para 516 (b) exists and therefore, premature release could not be considered. One thing is apparent that para 516 (b) of the Punjab Jail Manual is still prevalent and valid.

in Dr. N.S. Jain v. Delhi Administration, 1986(1) RCR(Crl.) 23 : 1985(2) CLR 650 , a Division Bench of the Delhi High Court laid down that Article 14 of the Constitution of India stores the Administration in its face, and Article 21 does not get a even for a convict. It is further held that unless the State shows that its action is based upon cogent material, the action has to be struck down. In that case, the petitioner had been in jail for almost 16 years and in the circumstances of that case, it was held that the consideration has not been a valid consideration in law.

In Rakesh Kaushik v. Delhi Administration, 1986(2) R.C.R.(Criminal) 171 : 1986 Cr. LJ 566 it was specifically held that mere objection that there was partyfaction and therefore, premature release of the petitioner may cause mishap, was held to be not a consideration for refusal of premature release. In the present case, the instructions issued by the State Government, referred to above, have not been taken into consideration and there is no mention in the order as to the period undergone by the petitioner and the period of remissions earned by the petitioner. The total period comes to more than 17 years, as stated above.

In another case : Premlal Pyasi v. State of M.P. & Anr., 1984(2) Crimes 21, a Division Bench of Madhya Pradesh High Court, the petitioner had completed 14 years of sentence, including remissions and the State Government had been directed on 20101983 to consider the case within 3, months by order, but it was not considered within that period. The. petitioner therein was directed to be prematurely released. Although the surety bond was required to be furnished in the circumstances of that case, but the principle of premature release was accepted.

The learned counsel has referred to various other judgments wherein premature release has been directed.

In Cr. W.P. 1391/1987, Murat Singh is the petitioner. He was convicted and sentenced on 291975. He has undergone custody for more than 22 years, including remissions. He was below 20 years of age at the time of commission of the offence. His earlier petition was accepted and the State Government was directed to reconsider his case within one month from 4th August, 1987. Opposition of the State in his case is that on the facts ending in his conviction. It is admitted that this petitioner was less than 20 years of age at the time of commission of the offence. The rejection order dated 29111985 Annexure P. 1 was quashed vide order dated 481987 in Cr. W.P. 71/1987 decided by Pritpal Singh, J. (as he then was). The second order of rejection is dated 341987 and as this order was passed before the order dated 481987, it was deemed to have been quashed by the order dated 4.8.1987 passed by Pritpal Singh, J. (as he then was). Another order of rejection is Annexure P4 dated 491987. In this order, it has been admitted that as laid down in paragraph 516(b), the Inspector General of Prisons forwarded the petitioner''s case for remission of the unexpired portion oil sentence and for consequential release. But this Rule is stated to confer no right on the person to an unconditional release on expiry of a particular term. This order refers to rejection of the prayer vide earlier orders and also refers to the orders of this Court for reconsidering the premature release within one month from 481987. The only ground mentioned thereafter is that jail conduct of the petitioner was only one of the grounds on the basis of which the case was rejected earlier. As the petitioner was involved in an excise case, he was said to have criminal propensities. The petitioner is said to have sent threats to the witnesses that he would deal with them effectively when he comes out of the jail, but this is quite vague, without having given any dates or the names of the persons. This seems to be the only ground for rejection of his premature release case. The date of conviction under section 411 of the IPC is also not mentioned in Annexure P 4. Moreover threat version is quite vague. This order Annexure P 4 is, therefore, held untenable.

In Cr. WP 1969/1988, Sehjpal Singh petitioner seeks the release of Iqbal Singh convict on the ground that the convict has undergone custody for more than 17 years, including remissions of over 7 years. He was convicted and sentenced on 30111978. Under paragraph 516(b) of the Punjab Jail Manual, he sought premature release, but his case was rejected by the state Government on 29121986 vide Annexure P 1. Cr. WP. 319/1987 was filed, challenging Annexure P I and this order was quashed and as a result thereof, the state Government was directed to consider his premature release case within a period of 3 months. Copy of the order is Annexure P 2. The State Government, again, rejected the case of the Petitioner on 18111987 vide Annexure P 3. A copy of the instructions to deal with such cases has been attached as Annexure P 4 and the said instructions dated 29121986 are Annexure P 5. Annexure P 3 is the order which has been challenged by way of this petition. In this order, the ground of rejection given is that mere undergoing the requisite period is not sufficient for remission of unexpired portion of imprisonment. There has to be some other good and proper reason for remission and some extenuating circumstances and genuinely compassionate ground. The specific ground for rejection is that the bone of contention between the family of the deceased and that of the petitioner still persisted and the family of the deceased had a legitimate apprehension in its mind that premature release of the petitioner would jeopardize their safety.

In Vir Singh''s case, 1985(2) Rec. Cr. R. 230, a Division Bench of Himachal Pradesh High Court held that "there is no reason to assume that if the petitioner is granted the benefit of premature release, he would once again display criminal tenancy. Such an assumption overlooks not only that the petitioner is not shown to be a habitual offender, but also the reformatory aspect of the penalty procedure, as well as the good record of the petitioner during the entire period of his imprisonment. Even otherwise, the aggrieved party cannot be reconciled with the release of the petitioner even if he is not prematurely released and in such a situation, the ground given for rejection is not a valid ground.

In Cr. WP 203/1988, Mukand Singh petitioner seeks his premature release on the ground that he was sentenced to life imprisonment on 3181979 and he has undergone about 16 years custody, including his remissions which come to ;about 7 years. According to his averments, a person is required to undergo maximum actual sentence of 81/2 years. A reference is made to State Government instructions Annexures Pl, P2 and P3 and the merey petition Annexure P4. The petitioner earlier moved Cr. WP 392/1987 for premature release. It was decided on 381987 by Pritpal Singh, J., directing the State Government to decide his case within 3 months from that date. The State Government, again, rejected the petitioner''s case on 17.12.1987 and the order is Annexure P5. This order shows that all the relevant aspects of the matter have been thoroughly analysed, examined and commented upon on the file, but nothing has been specified in the order. The order further shows that the ground on which the mercy was claimed by the petitioner was that his mother was the 80 years old and he was the sole breadwinner of the family. This ground has not been accepted, as according to the reply, another brother of the petitioner Karnail Singh was there to look after the aged mother and other family affairs. A reference to mercy petition Annexure P4 shows that the petitioner has two other brothers who are living separately. This aspect has not been considered at all. In reply to the petition, the same ground of rejection is reiterated. This petitioner has decidedly undergone more than 81/2 years of actual imprisonment and has learned about 7 years of remissions This averment has not been denied in the reply of the State.

In Cr. WP 221/1988, the petitioner claims premature release on the ground that he was sentenced to life imprisonment on 18.5.1979 and has undergone about 17 years of imprisonment, including about 7 years of remissions and has thus, undergone actual imprisonment for a period of more than 81/2 years. The premature release case of this petitioner was not considered and Cr. WP 1099/1986 was filed and decided on 25.11.1986, with a direction to the State Government for considering the case within a period of 2 months. The State Government rejected the premature release case on 3.3.1987 vide Annexure P 5. The petitioner again filed Cr. WP 3591/1987 challenging Annexure P5 and this, petition was decided on 8.8.1987, quashing Annexure P5 and directing the State Government to pass fresh speaking order within a period of 3 months, commencing from that date copy of the order is Annexure P6. The State Government has again rejected the case of petitioner on 26.11.1987 vide Annexure P7 which has been challenged vide this petition. The order of rejection Annexure P7 shows that the mercy petition of this petitioner was rejected on the ground that the basis of his release claimed was that the petitioner''s mother was an aged lady and one of his sister was unmarried. This basis was found to be incorrect, as the petitioner''s elder brother was there. It has been specifically mentioned in the mercy petition Annexure P4 that the petitioner''s father had expired in the year 197879 and his mother was over 50 years of age. It is also mentioned that the petitioner has one brother aged 30 years and a sister 20 years old. Out of them, one is unmarried. The source of income of the family has been stated to be daytoday labour by the brother of the convict, as the petitioner''s family has no agricultural land. This aspect of the case put in the mercy petition has not been considered at all. In the circumstances prevailing, it is very difficult for the petitioner''s brother alone to look after his mother, as also his unmarried sister, from his daytoday labour, in the absence of any agricultural land.

Cr. WP No. 740/1988 is a petition from Jail filed by Gurcharan Singh convict, stating that he was sentenced on 26.4.1980 and he has not been punished for any jail offence. The petitioner further states that he enjoyed parole 4 times. He has undergone a period of about 16 years, including remissions. The reply of the State admits that as on 18 8.1988, the petitioner has undergone actual imprisonment for 8 years 7 months and 24 days, including the undertrial period and has earned remissions for 5 years 11 moths and 27 days. His conduct in jail is admitted to have remained satisfactory. The petitioner did not commit any jail offence.

The premature release case of the petitioner is opposed on the ground that his case cannot be considered in view of the new section 433A of the Code of Criminal Procedure. In the petition it is mentioned that the petitioner has old parents and there is none to look after them. The Panchayat of the village is also stated to have no objection to his release. These facts have not been controverted and therefore, should have been considered to be sufficient for his premature release.

Keeping the foregoing discussion in view, these Criminal Writ petitions are accepted and the convictpetitioners and Iqbal Singh convict are entitled to be prematurely released. They be released forthwith.