Maghar Singh vs State of Punjab and Another

M.M. Punchhi, J.—These are seventy-four petitions Nos. 368-M, 370-M, 372-M, 171-M, 173-M, 239-M, 279-M, 280-M, 294-M, 296-M, 298-M, 300-M, 310-M, 311-M, 503-M, 504-M, 506-M to 515-M, 517-M to 524-M, 550-M, 552-M, 553-M, 555-M, 557-M, 559-M, 561-M, 589-M to 592-M, 610-M, 611-M, 682-M to 688-M, 723-M, 725-M, 744-M, 745-M, 802-M, 821-M, 823-M to 825-M, 955-M, 1034-M to 1039-M, 1060-M, 1062-M, 1063-M and 1084-M of 1981 preferred by the petitioners undergoing life sentences seeking directions of this Court to wake the State Government out of its slumber, so that they avail the benefits of Para 516-B of the Punjab Jail Manual. It is not necessary to set out facts of any particular petition. In some of these cases, the respective Superintendents of Jails incarcerating the petitioners have recommended their cases for remission of sentences to the appropriate Government, In others, no such proposals have yet been made. The averments made in some petitions have either been admitted that those cases are due for recommendation and in others the facts remain undisputed for the present. So far as the disposal of all these petitions is concerned, as has been advised by the learned Counsel for the State, it can be taken that the cases of the petitioners are with the Government, recommended or otherwise, for exercise of powers to remit the sentences u/s 432, Criminal P. C. That such course has to be adopted by the appropriate Governments is not a matter of dispute any longer in view of the authoritative pronouncement of their Lordships of the Supreme Court in Maru Ram and Others Vs. Union of India (UOI) and Others, and a few judgments of this Court based thereon.

The relief which the petitioners now seek through these petitions is threefold� (1) that direction be issued to the appropriate Government to consider and decide their cases of remission forthwith; (2) that the Government be directed to decide these matters within a particular period and, (3) that during the pendency thereof, the petitioners be released on bail.

Point No. 1, as said before, in the initiation is not disputed, rather it is stated at the bar that the Government was keen to decide these matters, subject of course to the cases otherwise being due for remission. It was also stated at the bar by the learned Counsel for the State that a high level meeting had been arranged by the State Government for 5th Mar. 1981, but due to unavoidable circumstances the same could not be held. Be that as it may, the Government is now directed to consider the cases of the petitioners for remission of their sentences in the light of Maru Ram and Others Vs. Union of India (UOI) and Others, .

It has been brought to my notice that the Supreme Court later in some cases, while applying the principles laid down in Maru Ram''s case (supra) granted the appropriate Government six months for the purpose. The same deadline has been suggested by the learned Counsel for the State for the purpose. The learned Counsel for the petitioners, however, contended that each petitioner has set out his facts with accurate detail and it would not require such a long time to settle this matter. However, some time would necessarily be employed for the purpose and I think the period of six months as proposed by their Lordships of the Supreme Court for each individual case cannot be termed to be high. Let the Government decide these matters within a period of six months from today.

The third contention is the one which has generated healthy debate. Pending decision of the matter with the Government, bail of the petitioners was pressed on the strength of some Single Bench decisions of this Court in which prayer of bail had been granted in such situations. They are Cr. M. No. 3972-M of 1980 (Karnail Singh v. State of Punjab) decided by S. S Sidhu, J., on 26-9-1980, Cr. M. N. 4157:M of 1980 (Pritam Singh v. State of Punjab) decided by S. S. Dewan, J. on 3-12-1980, Cr. M. No. 4566-M of 1980 (Nishan Singh v. State of Punjab) decided by S. S. Dewan J. on 3-12-1980, Cr. M. No. 4536-M of 1980 (Pal Singh v. State of Punjab) decided by S. S. Dewan J., on 3-12-1930, and Cr. M. No. 5648-M of 1980 (Karam Singh v. State of Punjab) decided by me on 16-1-1981. In some of these cases, it was taken as if the Court had the power to grant bail in such a situation. It is now that the said view requires rectification,

In the last mentioned case, I had followed the decisions rendered by S. S. Dewan J. as that view was not contested before me. But now it has glaringly been brought to my notice that in Maru Ram and Others Vs. Union of India (UOI) and Others, their Lordships of the Supreme Court had clearly differentiated sentencing to be a judicial function and its execution to be an executive function. There is no power with the court to order release by reduction or remission of sentence in the manner in which the appropriate Government stands authorised u/s 432, Criminal Procedure Code. The exercise of the power of remission neither wipes out the offence nor the conviction as also the sentence passed by the court. Such an order has only the effect of requiring the convict concerned not to suffer the remaining part of the sentence which has been covered in the order of remission. In the same section the appropriate Government has also been given the power to suspend the sentence. Such power of suspension of sentence does not and cannot overlap the power of remission. The Court, on the other hand, in exercise of its judicial functions can grant bail to under-trials before it and the appellate Courts too, in the event of appeals against conviction and sentence, are authorised to suspend the execution of the sentence. In common working, even the* appellate Court passes the bail orders, though in effect they are nothing but orders suspending the execution of sentence. Thus the domain of the Court is clear and well defined, i. e., when there is some cause pending before it under the Criminal law of the land. The Courts have nothing to do in this regard with the petitioners any more during the subsistence of the period of sentence. If the Court cannot remit their sentence, equally it cannot suspend their sentence. Thus to suspend the sentence is an exercise of executive power, which means to suspend the enforcement of the judgment, but not to alter it.

Another aspect germane in this light worth noticing is the steps taken by their Lordships of the Supreme Court after pronouncing judgment \\n Maru Ram''s case (supra). It appears that interim bail orders granted by the Supreme Court were terminated on the pronouncement of the decision in that case. No concession of bail was granted to the then petitioners, though there were specific direction to implement the directives given in the judgment urgently since personal liberty was at stake. The Supreme Court adopted such course since its interim orders had to co-terminate with the ultimate decision.

If direction can be granted to the appropriate Government to consider the cases of the petitioners for remission time bound, there is no reason why direction cannot be issued to the said Government to consider the cases of petitioners for suspension of sentence time bound. Both the powers concededly are contained in Section 432, Criminal P.C. Thus on the same principles enunciated in Maru Ram and Others Vs. Union of India (UOI) and Others, , the appropriate Government is further directed to consider the cases of, the petitioners for suspension of their sentences, pending consideration of their cases for remission within a period of one month from today. The controversy raised whether this Court has power to grant such relief in exercise of its powers u/s 482, Criminal P. C, or under Article 227 of Constitution is futile as this Court can give such directions under Article 226 of Constitution. No wrong can be left unremedied.

For the foregoing reasons, these petitions are partially allowed but to the extent afore-indicated.