Lilawati vs State of Punjab

R.L. Anand, J.

Smt. Lilawati, petitioner has filed the present petition under Articles 226/227 of the Constitution of India read with Section 482 Cr.P.C. for quashing the impugned order of rejection of premature release case Annexure P. 7 and she has sought further declaration that she has been deprived of her liberty without following the procedure established by law. Brief facts are required to be quoted for the disposal of the present petition. The petitioner was convicted under section 302 IPC on 18.8.1987. She was taken into custody during the course of investigation of the case and she is behind the bars for the last more than 9 years and this aspect of the case has not been disputed by the respondents. The case of the petitioner for her premature release has been rejected mainly on the grounds as stated in Annexure P.7 quoted below:

"Deceased Saroj Bala was married to Subhash Chander (accused son of Lilawati). The father of the deceased had given dowry to her daughter Saroj Bala at the time of her marriage, according to his status. The deceased came to her father Gurcharan Singh after the marriage and complained that she was being illtreated and beaten by her motherinlaw and husband on account of inadequate dowry. In spite of this the deceased was willing to go to her in laws and she was sent accordingly. Two months thereafter, father and mother of the deceased visited the house of inlaws of their daughter. At that time the deceased told her parents that her husband and motherinlaw were demanding dowry and they were illtreating and beating her. The parents of the deceased asked the accused as to why they are doing so. The accused quarrelled with them and asked them to take away Saroj Bala with them.

In April, 1986 father and elder brother of Subhash Chander accused and the wife of elder brother of Subhash Chander came to the father of deceased at Nakodar and asked him to send Saroj Bala with them with the promise that she would be kept properly. In the month of July, 1986, the parents of the deceased went to the house of the accused to condole the death of newly born child of elder brother of Subhash Chander. At that time also the deceased told her parents that she was continued to be treated with cruelty by the accused and further told that she was pregnant. Parentes of the deceased advised her to tolerate the illtreatment because after the birth of the child everything would be settled automatically. Parents came back. On 31.8.1986 at about 8.00 P.M. Saroj Bala deceased received burn injuries at the house of her inlaws. She was got rushed to Civil Hospital, Dasuya by her husband and was got admitted there with excessive burns. She made a statement before the Magistrate that her motherinlaw had sprinkled kerosene oil on her on the roof of the house and had set her on fire. She also stated that her husband and motherinlaw had been maltreated her on account of dowry. Her husband was downstairs at the time of occurrence and when the people raised noise, he came upstairs and tried to extinguish the fire. Saroj Bala died in CMC Hospital, Ludhiana on 2.9.86 at 5.45 P.M.

Convict Lila Wati has committed the murder of her daughterinlaw for bringing insufficient dowry. She does not deserve to be prematurely released. After consideration of the case the Governor of Punjab in exercise of the powers vested in him under Article 161 of the Constitution of India has rejected the premature release case of life convict Lila Wati wife of Bishamber Nath. She should undergo full term sentence".

In other words the stand of the State is that the petitioner was guilty of a case of bride burning therefore, she is not entitled to be considered for premature release.

After hearing the learned counsel for the parties, this Court is of the considered opinion that the case of the petitioner has not been rightly considered in its correct perspective. Admittedly, the petitioner was convicted in the year 1987 and at that time the instructions dated 12.12.1985 Annexure P.2 were applicable. A perusal of this Annexure would show that as per clause 6 it has been mentioned by the State Govt. itself that "After introduction of section 433A of Cr.P C w.e.f. 18.12.78, since every premature release cases of a lifer convict will be taken up after he has completed 14 years actual sentence in jail, a minimum period of 56 years for juvenile and women prisoners and 71/2 years and 81/2 years for adult male prisoners can be taken as one of the guidelines for release on the mercy petition."

The petitioner fulfils this qualification as enumerated in para No. 6 of Annexure P.2. These guidelines do not make any distinction with regard to a bride burning case or an ordinary murder. In these circumstances, the stand taken up by the State in Annexure P.7 cannot sustain in the eyes of law. After the instructions of 1985, the State has further revised the instructions by issuing Annexure P.3 dated 8.7.1991 and for the first time the State wanted to say that the murders which have been committed in connection with dowry will be enacted as heinous and for such convicts the minimum sentence required to be undergone by a female detenu is 8 years actual and 12 years including remissions. Even the petitioner fulfils this guideline as contained in Annexure P.3. The settled law of the land is that the guidelines which are applicable on the date of the conviction are supposed to be taken note of while considering the case of a premature release of a detenu. If the case of the petitioner is viewed from both the angles, she has fulfilled the requisite qualifications as contained in Annexures P.2 and P.3. In this view of the matter, the order of rejection Annexure P.7 cannot sustain in the eyes of law and is hereby struck down keeping in view the famous case of Maru Ram reported as AIR 1980 Supreme Court 2147, Maru Ram etc v. State of Punjab and relevant are the subparas 8, 9 and 10 of para No. 72 which are as follows :

"(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 short sentencing provisions proprio vigore may not apply as against Section 433A, they will override 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 a guideline for exercise of Articles 72/161. These observations 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."

Resultantly, the present petition is allowed. The order Annexure P.7 is hereby set aside and fresh directions are given to the respondent authorities to consider and decide the case of the petitioner for her premature release within 2 months from the receipt by taking into consideration the guidelines Annexure P.2 only.

Copy dasti to the petitioner. One copy of the order be sent to the Principal Secretary Home, Punjab Govt. for compliance.