Major Singh vs State of Punjab and ors.

J.M. Tandon, J.

Major Singh petitioner was convicted under section 302, Indian Penal Code and was sentenced to death by Sessions Judge, Bhatinda, vide order dated November 30, 1971. The death sentence awarded to the petitioner was committed to life imprisonment on his mercy petition by the Governor of Punjab. The petitioner had undergone actual sentence of 9 years 11 months and 16 days as on May 5, 1983, and had earned 8 years 5 months 21 days as remission by that date. The premature release case of the petitioner was considered by the State Government and vide Memo. No 12/728/814J/19417, dated November 25, 1981, opined that this premature release is not yet advisable and that his case for such release may be submitted to the Government for reconsideration after he had completed the prescribed period (14 years actual imprisonment and 20 years including remission) of his sentence. The petitioners has assailed the decision of the State Government contained in memo, dated November 25, 1981, in the present writ and has prayed that a direction be issued for consideration of his premature release by the authorities.

The relevant part of paragraph 516B of the Punjab Jail Manual reads :

"516B. (a) With the exception of female and of males who were under 20 years age at the time of commission of offence, the cases of every convicted prisoner sentenced to :

(i) Imprisonment/s for life.

(ii)

(iii)

(iv)

(a) who has undergone a period of detention in jail amounting together with remission earned to 14 years, shall be submitted through the Inspector General of Prisons, Punjab for the order of the State Government.

It is admitted by the learned counsel for the parties that by virtue of the instructions issued in 1971 by the State Government, a convict eligible for premature release must have undergone 8 years of substantive (actual) imprisonment. The contention of the learned counsel for the petitioner is that the petitioner being a life convict has undergone more than 81/2 years of actual imprisonment and 14 years including remission. He is, therefore, eligible to be considered for premature release by the State Government in terms of paragraph 516B(a)(i) and (a) of the Punjab Jail Manual. A contrary view taken by the State Government in the light of the instructions contained in letter No. 4036JJ76/3456, dated January 30, 1976, is erroneous for the reason that these instructions will apply to the cases of the convicts convicted after January 30, 1976, and cannot be made applicable to person (like the petitioner) who were convicted and sentenced before that date. Reliance has been placed on Mehar Singh v. State of Punjab and another (Criminal Writ Petition No. 215 of 1981 decided on April 19, 1982).

The learned counsel for the State has argued that the case of the petitioner for premature release shall also be governed by the instructions dated January 30, 1976, and further the view expressed in Mehar Singh''s case (Supra) has not been approved by their Lordships of the Supreme Court in Sadhu Singh and others v. The State of Punjab, 1984(2) Recent CR 83 Writ Petitions (Criminal No. 64 to 70 of 1983 decided on January 25, 1984).

The relevant part of the instructions dated January 30, 1976, which relate to the premature release of life convicts under section 432, Criminal Procedure Code, read with paragraph 516B of the Punjab Jail Manual reads :

"

In view of the above judicial trend, which has been legally formalised by section 354(3) of the Criminal Procedure Code, it is considered that prisoners whose death sentence is commuted to life imprisonment on mercy petitions should at least undergo the full term of `Life Imprisonment (as per section 57 of the Indian Penal Code viz. 20 years substantive imprisonment (excluding remission). After careful consideration of the matter the State Government have taken the following decisions, in this behalf :

a) Life convicts whose death sentence is commuted on mercy petition should, ordinarily serve at least 20 years substantive imprisonment, excluding remission;

b) the cases of such Life convicts may, however, be considered for premature release when they complete 14 years actual imprisonment and 20 years (including remission) provided their conduct in the Jail remains `good'' throughout; and

c) In cases, where the State Government decideds to order premature release of such life convicts before completion of 20 years actual sentence, the convict would be put under bond for the remaining period failing short of 20 years.

"

The point whether the persons (like the petitioner) who were convicted and sentenced before January 30, 1976, are covered by the instructions issued on that date was considered by their Lordships of the Supreme Court is Sadhu Singh''s case (supra), and the following observations have been made :

"The second contention also must fail in view of the admitted position that cases of prisoners who have been sentenced to death, but whose sentence on mercy petitions has been committed to lifeimprisonment who constitute a distinct class will now be governed by the 1976 Instructions. Here also the view of the Punjab High Court in the case of Mehar Singh (supra) that the 1976 Instructions issued on January 30, 1976, will not be applicable to cases of prisoners convicted earlier to that date is not tenable. Clearly existing case of life convicts falling within that category will be governed by those instructions. It is true that SLP (Cr.) No. 2142/1982 preferred by State of Punjab against that decision was dismissed by the Court on 18th February, 1983, but the dismissal order passed by this Court itself indicates that this Court did so not because it approved the view of the Punjab High Court did so but that it `did not consider this to be a proper case for interference in view of the peculiar facts of this case. '' This Court did not desire on the facts of that case to interfere with the direction given that the case of the convict should be submitted for consideration of his premature release."

Faced with the observations of their Lordships of the Supreme Court reproduced above, the learned counsel for the petitioner has argued that they run counter to earlier observations of their Lordships in Maru Ram and others v. Union of Indian and others, A.I.R. 1980 S.C. 2147. In this context the learned counsel for the petitioner has relied on the following observation of their Lordships made in Maru Ram''s case (supra) :

"We declare that section 433A in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years'' actual imprisonment will not operate against those whose cases were decided by the trial Court before the 18th December, 1978, when section 433A came into force. All `lifer'' whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government make an order to that effect. To this extent the battle of the tense is won by the prisoners. It follow, by the same logic, that shortsentencing legislations, if any, will entitle a prisoner to claim release thereunder if this conviction by the Court of first instances was before section 433A was brought into effect."

Section 433A, Criminal Procedure Code, is statutory. It came into force on December 18, 1978. Its operation has been held to be prospective in Maru Ram''s case (supra). The instructions issued by the State Government regarding premature release of the convicts have been held to be executive and nonstatutory by their Lordships of the Supreme Court in Sadhu Singh''s case (supra). It has been clarified therein that any existing executive instructions could be substituted by issuing fresh executive instructions for proceedings the cases of the lifers for premature release but once issued these must be uniformly and invariably applied to all cases of lifers so as to avoid the charge of discrimination under Article 14 and the further the executive instruction in force at the time of proceeding of the cases of the lifers processed shall be applicable irrespective of the fact that they were convicted and sentenced before the instructions were issued or thereafter. Under these circumstances, the contention of the learned counsel for the petitioner that the observations made by their Lordships of the Supreme Court in Sadhu Singh''s case (supra) are in conflict with those made in Maru Ram''s case (supra) is misconceived. It may be added that their Lordships of the Supreme Court did notice Maru Ram''s case (supra) in Sadhu Singh''s case (supra), though in a different context.

In the result, the petition is without merit and is dismissed. The petitioner was allowed bail during the pendency of this petition. His bail bond is cancelled and he may be taken into custody to undergo the unexpired period of his sentence.