Jarnail Singh vs State of Haryana and others

M.L. Singhal, J.

This criminal miscellaneous petition has been filed by Jarnail Singh in this Court under Section 482 of the Criminal Procedure Code read with Articles 226/227 of the Constitution of India whereby he seeks the issuance of direction to the State of Haryana to order his release prematurely from the jail after holding that his detention in jail was illegal after he had completed 6 years substantive sentence and 10 years sentence including remissions and he became entitled to be released forthwith, in view of the instructions of the Haryana Government embodied in Annexure P2 dated 27.2.1984 and that his detention, thereafter impinged seriously upon his liberty and is violative of Articles 14, 19 and 21 of the Constitution of India and hence liable to be quashed and that the instructions issued by the State of Haryana in the years 1983, 1991 and 1993 cover the cases only of those life convicts qua whom Section 433A of the Criminal Procedure Code operates and assuming that the instructions issued by the State of Haryana in 1988, 1991 and 1993 operate qua him also, even then he is entitled to release prematurely as he satisfies the requirements of those instructions also. It has been alleged in this criminal miscellaneous petition by Jarnail Singh that he was tried in case FIR No. 94 dated 28.3.1977 by the Sessions Judge, Karnal under Sections 302/376 of the Indian Penal Code and was sentenced to undergo imprisonment for life under section 302 of the Indian Penal Code and was further sentenced to undergo R.I. for 5 years under Section 376 I.P.C. vide order dated 18.2.1978 (Annexure P1). Sentences were to run concurrently. Section 433A of the Criminal Procedure Code came into force on 18.12.1978, Section 432A of the Criminal Procedure Code requires that a life convict has necessarily to remain in jail (actual) for 14 years for consideration of his case under Section 432 Cr.P.C. His case does not fall within the ambit of Section 433A of the Criminal Procedure Code as this section came into force w.e.f. 18.12.1978 whereas he was convicted and sentenced on 18.2.1978. In the year 1984, the State of Haryana issued instructions for consideration of premature release cases of life convicts who were tried and convicted in the State of Haryana. According to these instructions a juvenile life convict who was below 20 years of age at the time of the commission of offence was required to undergo 6 years substantive sentence and 10 years sentence including remissions before he could be considered for premature release. Life convict whose death sentence was commuted to that of life imprisonment, was required to undergo 14 years actual sentence and the Juvenile life convict who was below 20 years of age at the time of commission of offence and whose death sentence was commuted to life imprisonment was required to undergo 10 years substantive sentence. These instructions are embodied in Annexure P2 dated 27.2.1984. Jarnail Singh was below 20 years of age at the time of the commission of offence i.e. 28.3.1977. He was, thus, a juvenile. He was entitled to have his case for premature release considered after he had undergone six years substantive sentence and 10 years sentence inclusive of remissions in view of instructions Annexure P2. His case for premature release was considered, but was rejected by the State of Haryana. While rejecting his case, instructions embodied in Annexure P3 of the year 1988 were taken into account as thereunder a convict of rape and murder charge was entitled to have his case for premature release considered only on completion of 14 years (actual) detention. Thereafter, the State of Haryana issued instructions on 19.11.1991 which are the same instructions as were issued in 1988. State of Haryana issued instructions on 4.2.1993 which are embodied in Annexure P4. According to these constructions, a convict of rape and murder can have his case for premature release considered after he has remained in Jail (actual) for 14 years and has served 20 years sentence including remissions. So far as Jarnail Singh is concerned, he remained in detention as an undertrial from 28.3.1977 to 18.2.1978 and then as a convict from 18.2.1978 to 28.4.1995. During this period, he earned remissions to the tune of about 8 years. During this period, he remained on parole for 6 months. It is averred in this criminal miscellaneous petition that in fact Jarnail Singh was required to undergo 6 years actual sentence and 10 years sentence including remissions, as per 1984 instructions. He has been made to undergo about 17 years actual sentence and about 24 years sentence including remissions. He had completed the requisite period of sentence provided under instructions Annexure P2. It has been held in 1992(2) RCR 363, 585; 1992(2) Crimes 413; 1992(1) All India Criminal Law Reporter 384, 407; 1990(2) Crimes 26 that right once accrued, cannot be taken away on the basis of the subsequent instructions issued subsequent to the accrual of the right. Instructions issued in the years 1988, 1991 and 1993 are mere guidelines for consideration of premature release cases under Article 161 of the Constitution of India. Instructions issued in the years 1988, 1991, 1993 are not applicable so far as the premature release cases of these life convicts go who were convicted prior to 18.12.1978. State Government wrongly applied instructions, dated 28.9.1988, 19.11.1991 and 4.2.1993 in this case as the said instructions are applicable only in those cases where premature release is sought under Article 161 of the Constitution of India. Assuming that the instructions dated 28.9.1988, 19.11.1991 and 4.2.1993 are applicable to this case even then Jarnail Singh is entitled to premature release as he has undergone 14 years actual sentence and 20 years sentence including remissions. There can be no reason to defer his release after completion of 14 years actual sentence. He completed 14 years actual sentence some time in the year 1992. Period of parole is part of the actual sentence. Jarnail Singh was held guilty of single murder and was convicted and sentenced under sections 376/302 of the Indian Penal Code. There are instances where life convicts were ordered to be released prematurely under Article 161 of the Constitution of India though, they had committed much more heinous crimes.

In this criminal misc. petition, Jarnail Singh has quoted some of the instances where according to him lifers were released prematurely although they had committed much more heinous crimes.

State of Haryana resisted the claim of Jarnail Singh for premature release urging that in writ petition No. 116 of 1990 dated 23.8.1991, the Hon''ble Supreme Court has held that sentence of imprisonment for life means imprisonment for the whole of the remaining period of a personss natural life unless the remaining sentence is commuted or remitted by the Authorities. Hon''ble Supreme Court based this view upon the earlier judgment of the Constitutional Bench in Gopal Krishan Godse v. State of Maharashtra and others, 1962(2) SLR 440. Power to grant pardon is a sovereign power vested in the President/Governor of under Articles 72 and 161 of the Constitution of India. Court has no jurisdiction to interfere with the exercise of the sovereign powers conferred by Articles 72 and 161 of the Constitution of India. Premature release case of the petitioner was rejected by the Government on the recommendation of the State Level Committee keeping in view the heinous crime committed by him. His case for premature release was considered again by the State Level Committee and on the recommendations of the State Level Committee, the Government deferred the premature release case for one year as it was a heinous crime in which he was convicted and sentenced. His case for premature release was again submitted to the Government vide letter No. 3377 dated 2.8.1988 of the office of the Superintendent, District Jail, Karnal for third time. Meanwhile, the State Government issued instructions on 28.9.1988 according to which premature release case of the petitioner could be considered after he had remained in jail (actual) for 14 years including undertrial period. The State Government issued fresh instructions on 19.11.1991 and 4.2.1993 in supersession of all previous instructions (Annexure P. 4 is instructions dated 4.2.1993). Premature release case of Jarnail Singh was again submitted to the Government vide letter No. 2911 dated 27.8.1992 of the office of the Superintendent, District Jail, Karnal for the fourth time. State Level Committee after taking into consideration all the facts and circumstances in which this life convict had committed rape upon a minor girl of 12 years and thereafter killed her with hammer recommended that as it affected the society as a whole, premature release of this life convict would be reconsidered after he had completed 20 years actual sentence in jail including under trial period in jail (Annexure R.1). He had remained in Jail (actual) for 16 years 4 months and 2 days out of which he had earned remissions to the tune of 8 years 1 month and 14 days. He had thus not remained in jail (actual) for 14 years inclusive of undertrial period of detention. Pith of the reply filed by the State of Haryana is that his case for premature release can be considered after he served 20 years actual in jail inclusive of undertrial period detention. Paroles and remissions will not mitigate this sentence of 20 years period. Government of Haryana was justified in rejecting his premature release case on the recommendation of the State Level Committee when he had committed rape upon a girl of 12 years after he had called her from her house and after committing rape, he killed her with hammer and threw her in the fields belonging to his father.

I have heard Mr. V.K. Jindal, learned counsel for the petitioner and Mr. Rameshwar Puri, Advocate for the State of Haryana and have gone through the record. Jarnail Singh was convicted for committing rape and murder by Sessions Judge, Karnal vide order dated 16.2.1978. Section 433A Cr.P.C. came into force on 18.12.1978. InMaru Ram v. Union of India, AIR 1980 SC 2147, the Hon''ble Supreme Court held that every person who has been convicted by sentencing him before December 18, 1978 shall be entitled to the benefits accruing to him from the remission scheme or short sentencing projects as if section 433A did not stand in his way. Section 433A which obligates the actual detention in prison for full 14 years as a mandatory minimum does not stand in the way of Jarnail Singh who can claim that it is not necessary for him that he should remain in jail for full 14 years (actual) inclusive of undertrial period detention, remissions apart for claiming premature release. He can claim premature release even though he has not remained in jail for 14 years (actual). There can, thus, be no manner of doubt that Jarnail Singh could claim his premature release though he had not remained in jail (actual) for 14 years.

According to the instructions embodied in Annexure P.2 dated 27.2.1984, a life convict could claim premature release after he had completed 81/2 years substantive sentence and 14 years sentence including remissions. Female and juvenile life convicts who were below 20 years of age at the time of commission of offence could claim premature release after they had completed 6 years substantive sentence and 10 years sentence including remissions. These instructions are silent so far as a life convict of murder or rape is concerned.

It has been submitted by the learned counsel for the petitioner that his case for premature release should have been allowed in view of the instructions embodied in Annexure P. 2 dated 27.2.1984 when he had completed 6 years substantive sentence and 10 years sentence including remissions and he was a juvenile convict. Suffice it to say there was no finding returned by the Sessions Judge, that he was less than 20 years of age at the time of the commission of offence. In 1988 instructions, it is provided that adult life convicts involved in heinous crimes such as dowry death, bride burning, husband killing, and cases disclosing great depravity of character and greed and those involving extreme brutality, murder with rape, etc.... are entitled to be considered for premature release if they have undergone 14 years actual detention including undertrial/detention period. It would appear that in 1984 instructions, no distinction was drawn between ordinary adult male life convicts and convicts of heinous offences. This distinction was drawn in 1988 instructions. By virtue of 1988 instructions, previous instructions stood superseded. It goes without saying that instant was a case where Jarnail Singh was convicted of a heinous crime namely rape and murder of a girl aged 12 years. In 1993 instructions (Annexure P4) a life convict who was sentenced for murder with rape was entitled to have his case considered for premature release after he had completed 14 years actual sentence including under trial detention period and after earning atleast 6 years remissions.

Case of Jarnail Singh would fall in paragraph 2(a) of the instructions (Annexure P4) issued by the Haryana Government memo of even number 36/135/91IJJ (ii) dated 4.2.1993 governing the premature release of life convicts. Paragraph 2(a) of 1993 instructions reads as follows:

"Convicts whose death sentence has been commuted to life imprisonment and convicts who have been imprisoned for life for having committed a heinous crime, such as, murder with wrongful confinement for extortion/robbery, murder with rape, while undergoing life sentence murder with dacoity, murder under T.D. Act 1987, murder with Untouchability (offence) Act, 1955, murder in connection with dowry, bride burning, murder of a child under the age of 14 years, murder of handicapped or pregnant women or murder after abduction or kidnapping, murder on professional/hired basis murder exhibiting brutality such as cutting the body into pieces or burning/dragging the body as evident from judgment of sentence, persistent bad conduct in the prison and those who cannot for some definite reasons be prematurely released without danger to public society, or convicts who have been imprisoned for life under Section 120B of the Indian Penal Code or life convicts who have been awarded life imprisonment a second time under NDPS Act or life convicts who have been imprisoned for life second time under any offence."

Their cases may be considered after completion of 14 years actual sentence including undertrial period and after earning atleast 6 years remissions.

Instant is, thus a case where Jarnail Singh was convicted and sentenced for rape and murder which is undoubtedly a heinous crime. Jarnail Singh is entitled to be considered for premature release after he has put in actual 14 years sentence in jail including undertrial period and after earning atleast 6 years remissions in view of 1993 instructions. In view of 1988 instructions, he is entitled to be considered for premature release after he had put in 14 years actual sentence including undertrial detention period. As 1984 instructions did not cover the cases of the convicts of heinous crimes, those instructions had to be superseded giving place to 1988 instructions.

Premature released case of Jarnail Singh was rejected in the year 1993 by the Haryana Government on the recommendation of the State Level Committee which took into consideration the facts and circumstances of the case viz. that this life convict had committed rape upon a minor girl and thereafter killed her with hammer and that the premature release case of this convict may be reconsidered after he completes 20 years actual sentence including undertrial period in the jail. JUDGMENT of Haryana Government (Annexure R1) cannot be sustained as it goes against the spirit of 1991 and 1993 instructions governing the premature release of life convicts which provide that the cases of lifers who have been sentenced for murder with rape may be considered after completion of 14 years actual sentence including undertrial period and after earning atleast 6 years remissions.

Policy governing the release of a life convict prematurely is an act of Executive clemency. It is for the Executive Government to decide whether a particular lifer is or is not to be released prematurely after he has remained in jail (actual) for 14 years including undertrial period and other remissions. Still it is expected of the Executive Government that they shall not set at naught the policy carved out by themselves governing the premature release of life convicts.

In the result, this criminal miscellaneous petition is accepted only to the extent that the State of Haryana shall consider the premature release case of the petitioner in terms of 1993 instructions de novo if he has remained in jail (actual) for 14 years including under trial detention period and after he had earned at least six years remissions within two months and order his release forthwith.