Nachatter Singh vs State of Punjab

Dr. (Mrs.) Sarojnei Saksena, J.

The petitioner is seeking his premature release.

Vide judgment dated 25.8.1983, the petitioner was convicted under Section 302 read with Section 34 IPC and was sentenced to life imprisonment. Since then he is in custody. Indisputable by now he has undergone 14 years 10 months 15 days actual sentence including undertrial period as on 25.7.1996, and has earned remissions of 8 years 4 months and 25 days.

The petitioner''s contention is that the Apex Court in Maru Ram, Bhiwana v. State of Punjab, AIR 1980 SC 2147 has considered the vires of Section 433A Code of Criminal Procedure, which came into force on 18.12.1978. The Apex Court has held that "we declare that section 433A, in both its limbs (i.e. both types of imprisonment specified in it) is prospective in effect." The Apex Court directed "that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial Court before 17.12.1978, when Section 433A, Code of Criminal Procedure, came into force." It is also mentioned in the petition that the Government has laid down guidelines under Article 161 of the Constitution on July 8, 1991, which are produced at Annexure P2. The Government has also issued further instructions on March 6, 1995, Annexure P3. The petitioner''s contention is that since he has suffered more than 14 years actual sentence under the aforesaid provisions of law and the guidelines he is entitled to be released prematurely. Petitioner''s case is to be considered under 91/95 instructions. He fulfils all the conditions. Report, on which his prayer is declined, is based on presumption, but no such material is placed on record.

The petitioner''s contention is that the State Government of Punjab has issued instructions on 8.7.1991, and again on 6.3.1995. As per the instructions dated 8.7.1991, Annexure P2, petitioner is entitled to be released prematurely as he has already undergone for more than 14 years actual sentence including undertrial period as on 25.7.1996 and has earned remissions of 8 years, 4 months and 25 days. During continuation of these instructions, the State of Punjab also issued one time instructions with regard to life convicts, who fulfilled various requisite conditions on 27.2.1995.

As per the instructions issued on 6.3.1995, Annexure P3, a male prisoner above the age of 20 years at the time of commission of offence and who has undergone actual sentence for more than 81/2 years with remissions more than 14 years is ordered to be released by the government subject to usual terms and conditions. His case does not fall in those categories for which this concession is not permissible.

Petitioner''s petition has been declined by the respondents vide Annexure P4, due to security reasons. This order is wholly arbitrary and discriminatory as it is also void ab initio and illegal right from the date the petitioner was involved in the case; he is continuously confined in jail. With remission, he has undergone for more than 22 years of sentence. Hence, it is prayed that he be released prematurely.

The State in its reply has raised an objection that petitioner''s prayer for premature release was considered by the Government and was declined on 23.8.1996, on the ground of security reasons as the petitioner is a dangerous criminal. Copy of the order signed by the Secretary to the Government of Punjab dated 15.10.1992, (Annexure R1) is also filed, whereby his mercy petition was declined by the Government on the ground that as per the police report the petitioner "was convicted in the murder of Shri Jagat Narain, Chief Editor Hind Samachar newspaper. He was closely associated with Sant Jarnail Singh Bhindranwale, the activities of whose followers led to operation Blue Star and all the troubles that followed, and which are still continuing. It is feared that on his release militant elements may rally round him and draw him again into the orbit of their activities giving a fillip to terrorist activities in the State. Considering all the circumstances it is felt that it is not a fit case for the exercise of the prerogative of mercy."

Mr. Gill, learned D.A.G., Punjab, contends that on the aforementioned count the petitioner''s mercy petition was declined. His case for premature release was also declined by the Government. Since he is closely associated with the terrorists band, his premature release is not considered fit by the Government.

Arguments heard. I have gone through the judgment in Sessions case No. 66 of 1982, State Swaran Singh and Nachhatter Singh.

From para 56 onwards of that judgment, it is evident that the accused Swaran Singh is nephew of Sant Jarnail Singh Bhindranwale. The Sessions Court has observed that "merely on the basis of his relationship with Sant Jarnail Singh Bhindranwale accused Swaran Singh cannot be made to belong to that school of thought, if any, and thus cannot be said to be motivated against the deceased, who had neither been shown to be a Nirankari nor a person having "preNirankari" faith." Thus, vide para 58 of the judgment, the Sessions Judge has acquitted the accused Swaran Singh by giving him benefit of doubt. Petitioner is found guilty under Sections 302/34 of the Indian Penal Code. There is no whisper in the judgment that the petitioner is associated with terrorists activities. The said incident in which journalist Jagat Narain was murdered might have proved as a preclude to terrorists activities, which engulfed the Punjab for few years, but there is hardly anything on record of that judgment or anything placed before this Bench to arrive at the conclusion that the petitioner is closely associated with terrorists activities or with any known terrorist. From the order, Annexure P3, it is evident that due to security reasons and keeping in view the reports of the District Authorities and those of Additional Director General of Prisons, Punjab, that convict is a dangerous criminal, the competent authority has rejected the premature release case of the convict.

Indisputable the petitioner is not guilty of any jail offence; the State Government cannot decline the petitioner''s premature release solely for the purpose of maintaining law and order. Further, as is mentioned above, there is nothing on record to show how law and order is likely to be adversely affected by premature release of the petitioner. For holding this view, I rely on Apex Court''s decision in Bhagwat Saran and others v. State of U.P. and others, 1983(1) Chandigarh Law Reporter 504.

In Darshan Singh v. State of Punjab and another, 1990(1) Recent Criminal Reports 674, it is held that "release cannot be refused on the ground that there was apprehension of breach of peace. Apprehension of breach of peace can be well safeguarded by demanding heavy amount of bond and surety." Premature release prayer cannot be declined even on the ground that, that would endanger public safety because in this case it is not shown by the respondents as to in what manner the release of the petitioner would endanger public safety.

Petitioner''s case does not fall within the parameters of Section 433A Code of Criminal Procedure. As per guidelines issued by the State Government, under Articles 161 and 72 of the Constitution of India, Annexures P2 and P3, petitioner is entitled to be considered for premature release. The State Government is declining his prayer on the apprehension that he is closely connected with terrorists and in case he is released prematurely, militant elements may rally round him and draw him again into the orbit of their activities giving a fillip to terrorist activities in the State. There is hardly any material on record to substantiate this apprehension. Further if petitioner is released prematurely the law and order situation or even safety and security of the citizens can be taken care of by the Court.

Considering all the above facts, petition is hereby disposed of with the direction to the State Governmentrespondent No. 1 to reconsider the petitioner''s prayer for his premature release within three months from today, in the light of the observations made above and to pass a well reasoned and speaking release order.

Copy of the order be also given to the petitioner.