Malkiat Singh vs State of Punjab

R.L. Anand, J.

Malkiat Singh has filed the present petition under Articles 226/227 of the Constitution of India read with Section 482 Cr.P.C. praying for his release on the ground that the impugned order Annexure R.2 dated 27.7.1995 is not only illegal but also violative of Articles 14, 19 and 21 of the Constitution of India.

The present petitioner Malkiat Singh along with one Sohna Singh and Sukhdev Singh were allegedly responsible for the commission of four murders. At the trial stage Malkiat Singh was awarded death penalty and Sohna Singh and Sukhdev Singh were awarded life imprisonment. At the level of the Hon''ble Supreme Court Sukhdev Singh was acquitted and the life imprisonment of Sohna Singh was maintained and the death penalty of Malkiat Singh was converted into life imprisonment.

Now Malkiat Singh has sought the directions of this Court on the ground that he cannot be discriminated from the case of Sohna Singh, who was equally responsible for the commission of four murders like him and in the same FIR. It is also the plea of Malkiat Singh that number of murders is not criteria to say on the part of the State that since he has committed heinous offence and four murders to his credit, therefore, he is not entitled to the benefit of guidelines which have been framed by the Govt. under Article 161 of the Constitution of India.

On the contrary, the defence of the State is that no doubt Sohna Singh was ordered to be released prematurally but his order was cancelled. Perhaps the State is not aware that Sohna Singh challenged the order of withdrawal of his premature release and vide judgment dated 29.11.1996 passed by this Court in Criminal Misc. No. 19609M of 1995, the said order was quashed and directions were given to the State to reconsider the case of Sohna Singh for his premature release.

Now the question arises in the present petition would be twofold whether Malkiat Singh can be discriminated in view of the order dated 29.11.1996 and the answer of this Court is in the negative.

The other point is whether the petitioner is bound to undergo 14 years of actual sentence as contemplated under Section 433A of the Code of Criminal Procedure. Though an effort was made by the learned AAG, Punjab to convince this Court that the petitioner is bound to undergo 14 years of actual sentence and that the alleged guidelines and policy framed by the Government is not binding upon itself and that the order Annexure R.2 is justified, but this Court is not inclined to accept the argument raised by the learned AAG, Punjab, in this regard. There are two provisions which govern these types of cases, one is Section 432 Cr.P.C. vide which the Govt. has been granted the powers of remission and the other is under Article 161 of the Constitution of India. Section 433A Cr.PC of course, speaks that notwithstanding anything contained under Section 432, Cr.PC, the petitioner is bound to undergo 14 years of actual sentence before his case for premature release can be considered, but the constitutional powers have not been taken away by this provision, rather these constitutional powers stand on a higher pedestal than those of Legislature powers given to the Government under Section 433A of the Code of Criminal Procedure. The guidelines/policy framed by the Govt. Annexure P.6 have been framed under Article 161 of the Constitution. In these guidelines there is no separate clause that the persons responsible for more than one murder will not be entitled to the premature release until and unless they undergo 14 years of actual sentence, meaning thereby that the instructions as contained in para 516B of the Punjab Jail Manual will prevail. The petitioner is fulfilling the requisite eligibility criteria and under these circumstances the impugned order Annexure R.2 cannot be sustained in the eyes of law.

Resultantly, the present petition is hereby allowed and directions are given to the State to reconsider the case of the petitioner for his premature release in the light of the observations made above within 3 months from the receipt of the copy of this order.