Jagraj Singh vs State of Punjab

M.M. Punchhi, J.—This is a petition by a life convict seeking a writ in the nature of habeas corpus. It is based on the premises that he was entitled to have his case considered for premature release under Article 161 of the Constitution and since the State was sitting tight over it, he has asked for a suitable direction in his favour.

The petitioner was sentenced to death by the Additional Sessions Judge, Amritsar, on 21-11-1978 but his sentence was converted to life imprisonment on appeal to this Court. His case is obviously to be governed u/s 433A of that Cr. P.C. whereunder there is a bar put on the release of a convict sentenced to life imprisonment, unless he had served at least 14 years of imprisonment. The said Section 433A begins with a non-obstante clause, cutting down the power u/s 432 of the Cr. P.C., resting with the Government to suspend or remit the sentences. Any doubt in that regard was set at rest by the Supreme Court in Maru Ram and Others Vs. Union of India (UOI) and Others, . The State Government had, in order to guide its power u/s 432, Cr. P.C., issued executive instructions and the same were contained in Punjab Jail Manual, prominent of which was para 516B wherein a male convict about 20 years of age having undergone actually 8 1/2 years of sentence, and with remission 14 years'' sentence, was entitled to have his case moved for premature release. Now that source of Section 432, Cr. P.C., and its attendant para 516B of Punjab Jail Manual, having been overpowered by Section 433, Cr. P.C., the State Government of Punjab surprisingly made another outlet for the same purpose through Article 161 of the Constitution.

Annexure P2, appended to the petition, are instructions dated 7th Sept., 1979. It embodies the decision of the Government that in future, the cases of eligible convicts be forwarded to the Punjab Government under Article 161 of the Constitution of India for remission of the sentence. Those convicts were said to be covered for premature release who had completed the requisite actual sentence as per earlier policy and who had satisfactory conduct in jail, and in whose cases the District Level Committee had made requisite recommendations. Now, this practically meant that the old policy under the Punjab Jail Manual in para 516B thereof, though dead for the purposes of Section 432, Cr. P.C., was activated for the purposes of Article 161 of the Constitution. It was old wine in a new bottle. Instructions Annexure P3 dt. 26th March, 1985, clarified that the State Level Committee constituted for the purposes of Section 432, Cr. P.C., would be the State Level Committee for making recommendations on mercy petitions of the convicts. Annexure P4 are executive instruction dt. 12th Dec., 1986, which specifically say that since every premature release case of a life convict will be taken up after he completes 14 years of actual sentence in jail u/s 433A of the Cr. P.C., operative with effect from 18th December, 1978, the minimum period of five or six years for juvenile and women prisoners and 1 1/2 and 8 1/2 years for adult male prisoners can be taken as one of the guidelines for release on mercy petitions. Other guidelines too are embodied therein, such as serious illness, fixing responsibility in a gang murder, age, sex, mental deficiency, etc., and other compassionate grounds.

With regard to the instructions of 1979 (Annexure P2), the State in para 3 of its Return, has taken the stand that those instructions were issued at a time when it was not sure whether Section 433A, Cr. P.C., would be prospective in nature, or would operate retrospectively. With regard to the creation of the State Level Committee under Annexure P3, it is submitted that the State Level Committee has since been suspended in the year 1987 and those instructions automatically fail Still in the return it is not specifically denied that the power under Article 161 of the Constitution is being exercised by the State Government and to regulate the procedure, instructions have been issued which would be in complete defiance of the mandate of Section 433A, Cr. P.C. It has strenuously been maintained by the State that the power under Article 161 is a constitutional power and Section 433A, Cr. P.C., can not stand in its way while exercising its powers of mercy in a suitable case.

Mr. Jindal, learned Counsel for the petitioner, maintains that he only needs a direction from this Court issued to the State Government to have his mercy petition decided time-bound, like a premature release case initiated for the purposes of Section 432, Cr. P.C. He has pointed out a number of instances in which this Court and the Supreme Court of India had been issuing directions to the State to consider the premature release cases of convicts pending consideration u/s 432, Cr. P.C. Some cases of this Court have been pointed out in which learned single Judges have, during the pendency of mercy petitions, ordered the State Government to decide those petitions within a time bound period on the failure of which, as a consequence, the convicts ordered to be released on bail.

It is true that in a number of cases, such power was being exercised by this Court when the matter was pending with the State Government u/s 432, Cr.P.C, read with para 516B of the Punjab Jail Manual. The invocation of that power was under the Code of Criminal Procedure, and this Court was making the Executive Act in the matter not only under the provisions of Section 482, Cr. P.C. but also under its powers under Article 226 of the Constitution. The Court knew the respondents to be commanded for the purpose. But here the position is entirely different. Mercy petitions under Article 161 of the Constitution are to be decided by the Governor of the State. It is solely within the domain of the Governor when to decide a mercy petition. The instructions afore-quoted are only instructions meant for the State Government as to in which circumstances it would recommend a case for mercy. But this by itself does not confer any right on the convict to have his case moved from the Stale Government to the Governor to exercise the latter''s powers of marcy. Least of all can this Court interfere in the matter. The Supreme Court in Mohinder Singh Vs. State of Punjab, , where a mercy petition was pending with the President of India, categorically ruled that the Court has no jurisdiction to deal with a petition which is in seisin of the President of India and has no power, therefore, to pass any order, interim or otherwise, during the pendency of such a petition. It was counselled to the petitioner to have an interim order from the President of India on the strength that the larger power always implied incidental or ancillary powers. In the same way, if the petitioner wants his mercy petition to be decided quickly or within a time-bound period he has to represent to the Governor to give him an out of turn treatment. But this Court cannot regulate that power of mercy under its own directions.

Mr. Jindal, however, cited K. P. Mohammed v. State of Kerala 1985 SCC 142 to contend that the Supreme Court has itself laid down three months'' period during which a mercy petition should be decided Far from it in that case, The Supreme Court only expressed itself to the effect that in the matter of deciding mercy petition, a self-imposed rule of discipline should be imposed upon the powers to be that the mercy petition shall be disposed of within, say, three months. These observations are made in the context that under a Court process, death sentences had been imposed upon the convicts whose mercy petitions were pending with the President of India for 4 1/2 years. In that light, the Court observed that such like delays were gradually creating serious social problems by driving the courts to reduce death sentences even in these rarest of rare cases in which, on the most careful, dispassionate and humane considerations death sentence was found to be the only sentence called for. These observations have got no applicability in the case of life convicts. The next case cited by Mr. Jindal is Cr. Writ Petn. No. 378/1987 (Joginder Singh v. State of Madhya Pradesh) decided by the Apex Court on 20th April, 1987. It is a short order whereby the writ petition was dismissed and it was left open to the petitioners to make applications to the State Government for the consideration of their cases for premature release, with directions to the State Government to consider such applications if made within a period of four months on receipt thereof. There is no ratio in this order which can be spelt out so that this Court can direct mercy petitions to be decided within a specified period.

Lastly, Mr. Jindal referred to Virender Nath v. State (1988) 1 Crime 386 to buttress his argument on the same lines, but this decision can not guide the course to be adopted by this Court for the reason that the view expressed by this Court in Jagtar Singh Vs. State of Panjab and Another, is specifically to the contrary. That judgment was rendered by me and I had observed as follows (at p. 608 of Cri LJ):

The very concept of mercy rests on the compassion of the mercy-giver. There is no such thing as a right to abtain mercy. Besides, there is no such thing compelling the mercy-giver to decide whether he will bestow it or not within a time-bound period And further that if he won''t make a decision, then the convict must get bail. The very idea of letting a convict to go on bail on the pain of the mercy petition not being decided within a time limit runs counter to the mandatory provisions of Section 433A of the Cri. P.C., above noted.

And then again it was observed by me (at p. 608 of Cri. L.J.):

Decision in a mercy petition, in the very nature of things, is sensitive matter. No rush and hurry should be generated by this Court. This Court can normally be not a guide to the Governor when to decide a mercy petition but, I suppose, when such benign power is conferred on the Governor under Article 161 of the Constitution, he is presumed to be conscious of his obligations discharging them with reasonableness and as early as the circumstances may warrant.

The position of law as expressed in Jagtar Singh''s case (supra) continues today. There is no change whatsoever in the form of a judicial precedent from the apex Court or from a larger Bench of this Court. The end result is that no directions can be issued to the Government to decide the mercy petition of the petitioner within a time-bound period. Consequently, the petition fails and is hereby dismissed.