Joginder Singh vs State of Punjab and anr.

A.P. Chowdhri, J. (Oral)

The petitioner was arrested on 410.1985. He was convicted & sentenced to life imprisonment by learned Sessions Judge, Patiala, on 7101986. He has been undergoing imprisonment since the date of his arrest. On 2181986 the Panjab Government issued instructions Annexure P2 for the release of old and infirm convicts. Para 2(ii) of the said instructions lay down that all infirm prisoners who were incapacitated by illness were to be released provided their release is supported by the recommendations of a committee of three doctors of the district concerned. The above instructions were supplemented by clarificatory circular Annexure P3 dated 2741988 to the effect that the benefit of premature release of old and infirm convicts will be extended to all prisoners irrespective of the fact whether they were convicted before the date of those instructions, namely, 2181986 or on a later date. This was done in the light of a judgment rendered by this Court. It was under these instructions Annexure P2 and Annexure P3 that petition Annexure P4 dated 15489 was made by the petitioner for considering his case for premature release. The Government failed to take any action on the said petition. The petitioner, therefore. filed Criminal Writ Petition No. 1095 of 1989. By order Annexure P5 dated 27111989 this Court ordered that in terms of instructions Annexure P2 and Annexure P3, the Government should dispose of the petition Annexure P4 made by the prisoner within a period of three months. Ultimately, the Government rejected the petition Annexure P4 by order Annexure P6 dated 741990. It is this order Annexure P6 rejecting the prayer for premature release which is assailed in the present writ petition.

A perusal of the impugned order shows that the Medical Board comprising of three doctors gave the following certificate regarding the petitioner :

"In our opinion, he is infirm and incapacitated due to post polio paralysis of both lower limbs."

A back reference was made and condition of the prisoner was ascertained from the Medical Officer, Central Jail, Patiala, where he was undergoing imprisonment. The Medical Officer stated that there was shortening of right lower limb and wasting of muscles. He further stated that the general condition of the prisoner was good. He could walk and talk. He had not complained of any symptoms and had not taken any treatment for these either as O.P.D. patient or as an indoor patient. From the above report of the Medical Officer, the authorities inferred that the prisoner could not be treated as infirm or as incapacitated. The grievance of Shri V.K. Jindal, learned counsel for the petitioner is twofold : one, that in the presence of categorical opinion given by the Medical Board, reproduced above, there was no occasion for a back reference and in accordance with the instructions and in the absence of any valid reason, the prisoner should have been granted premature release; two, that if a back reference was at all to be made, it should have been to the same Board or a similar board and not to the Medical Officer. In other words, according to Mr. Jindal, the Medical Officer was given the authority to overrule the considered findings of the Medical Board of three doctors.

The contention of Shri M.P. Gupta, learned counsel for the State is that it is always open to the authorities to make a back reference and seek clarification. They are not bound by the ipsi dixit of the Medical Board.

I have given my anxious consideration to the respective submissions of the learned counsel.

There appears to be no doubt that the authority concerned is well within its right to make a back reference and seek such clarification as it way think proper. It is, however, difficult to justify that clarification was sought not from the Medical Board but from the Medical Officer of the Jail. Even if a factual report was obtained from the Medical Officer of the Jail, it was incumbent on the authorities to have put those facts before the Medical Board and elicit their opinion. In other words, they should have given an opportunity to the Medical Board to have a second look at their opinion rendered earlier in the light of the facts brought to the notice of the authorities by the Medical Officer of the Central Jail. Patiala. In these facts and circumstances and for the reasons mentioned above, it is directed that the State Government shall intimate the facts reported by the Medical Officer, Central Jail, Patiala, referred to above. to a Medical Board consisting of three doctors in terms of the instructions dated 2181986 (Annexure P2) and obtain their opinion whether they would stick to the opinion given by the earlier Board or would revise the same. In the light of the opinion/finding returned by the board, the State Government shall decide the case of the petitioner within three months from. the receipt of the opinion of the Medical Board. The writ petition is disposed of in these terms. If there is any undue delay at any stage, it will be open to the petitioner to obtain farther directions of this Court.