Nirmal Singh vs State of Punjab

S.S. Grewal, J.

This petition, as well as Criminal Writ Petitions Nos. 2171 of 1998 (Harbans Lal v. State of Punjab and others), 2172 of 1988 (Kirpal Singh v. State and others), 2173 of 1988 (Rajinder Singh v. State of Punjab and others), 2175 of 1988 (Asha Rani v. State of Punjab and others), 2176 of 1988 (Lajwanti v. State of Punjab and others), 2210 of 1988 (Satnam Singh v. State of Punjab and others), 215 of 1988 (Hakam Singh v. State of Punjab and others), 2362 of 1988 (Gurnam Singh v. Stte of Punjab and others), 2363 of 1988 (Dilbagh Singh v. State of Punjab and others), 1715 of 1988 (Gurnam Singh v. State of Punjab and others), 1832 of 1988 (Gurmel Singh v. State of Punjab and others), 1833 of 1988 (Baghel Singh v. State of Punjab and others), 1835 of 1988 (Jagtar Singh v. State of Punjab and others, 2084 of 1988 (Ramesh Chand v. State of Punjab), 2085 of 1988 (Puran Singh v. State of Punjab and others) and 40 of 1989 (Dharam Singh v. State of Punjab and others), shall be disposed of by one judgment as common questions of law and fact are involved. In all these petitions extraordinary jurisdiction of this Court is sought to be invoked for consideration of premature release of the petitioners under Article 161 of the Constitution of India, as the case of premature release of individual prisoners involved in these petitions had been declined by the State Government on various grounds.

Admittedly, prisoners in all these cases were convicted after insertion of Section 433A in the Code of Criminal Procedure, 1973 (hereinafter referred to as `the Code'') vide Amendment Act No. 45 of 1978, which, came into force on 18th December, 1978. After coming into force of Section 433A, controversy arose whether period of 14 years of imprisonment includes remissions earned by a prisoner because of his good conduct in Jail, or the same can be commuted, or remitted on other grounds covered by the Government instructions. As per majority view in case Maru Ram v. Union of India, AIR 1980 SC 2147, conclusions were formulated, out of which following would be relevant for determining matters in controversy in the present petitions :

"That imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government."

"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 identity the group of cases and indicate the application of mind to the whole group."

"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."

"Although the remission rules or short sentencing provisions propriovigore 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 constructional power. We regard it 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 scheme may usefully be taken as guidelines under Article 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinqunets, Secttion 43 it 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 replace by a more wholesome scheme."

In view of the aforecited binding authority, of the Apex Court, it is quite patent that the existing rules or instructions of the State Government can legally provide guidelines to the State to exercise its power to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit or communicate the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

Besides appointing State Level Committees to expedite the procedure for consideration of cases concerning premature release of the convicts vide instructions Annexure P1, it was directed that only those convicts would be eligible for premature release, who, have completed a requisite actual sentence as per earlier policy and who have satisfactory conduct in jail and whose cases District Level Committee recommends.

According to the instructions, it was obligatory for a convict to undergo imprisonment for 14 years where sentence of imprisonment for life was imposed on conviction for an offence, for which death is one of the punishments, as provided by law, or sentence of death on a person was commuted to one to undergo imprisonment for life. The petitioners have relied on various instructions issued by the State Government from time to time, laying down guidelines for determining the question of premature release of lifers under Article 161 of the Constitution of India. As per latest instructions issued by the State Government, ensuring expeditious review of cases of convicts for securing premature release, the Punjab Government vide Memo No. 12/152/836J/32987 dated 12.12.1985 (Annexure P3) has laid down following guidelines for mercy petitions, which are to be submitted to the Governor of Punjab after examination by the State Level Committee :

"1. On grounds of serious illness that could prove fatal due to continuous detention in jail.

Fixation of responsibility of a particular life convict in gang murder where others are also involved besides the convict who has submitted the mercy petition.

The aspect of young/adolescent age, sex, mental deficiency, grave or sudden provocation and absence of motive and premediation should also be the factors while scrutinsing the copies of judgments in mercy petition cases.

The old age beyond 70 years can also be one of the factors to grant mercy.

On extreme compassionate grounds like no bread earner of the family and no support from different relations. This will, however, differ from individual to individual.

After introduction of Section 433A of Cr.P.C. w.e.f. 18.12.1978 since every premature release case of a life convict will be taken up after he completed 14 years actual sentence in a jail, a minimum period of 5/6 years for juvenile and women prisoners and 71/2 and 81/2 years for adult male prisoner can be taken as one of the guidelines for release on mercy petition.

Cases where subsequent to the announcement of the judgment new facts have come to light which if known to the court at the relevant time would have resulted in acquittal of convict and where the proceedings cannot be reopened according to law."

Besides the Punjab Government had issued instructions vide letter dated 7th September, 1979 (Annexure P1) for consideration of premature release cases of life convicts under Article 161 of the Constitution of India. It was directed that preexisting instructions concerning suffering of actual sentence and satisfactory conduct in the jail shall be taken into consideration by the District Level Committee, while recommending the rolls of such convicts to the State Government.

The instructions issued by the State Government vide letter dated 7th September, 1979 (Annexure P1) would still survive for consideration of remission of sentence of the life convicts under the clemency power of the Government under Article 161 of the Constitution of India, as `held by brother Sekhon, J. in Cr. P.W. No. 220 of 19809 (Karnail Singh v. State of Punjab) decided on 16th January, 1989.

A perusal of the copy of the main petition, together with mercy petitions, copy of the orders, and other relevant record, would indicate that the petitioners in all the petitions had already undergone the requisite period of substantive sentence in Jail. However, in most of the cases, the factum of good conduct of the individual petitioners, while undergoing imprisonment, has not been taken into consideration, whereas in some other cases the other relevant grounds, covered by the aforesaid State Government instructions, have not been duly considered by the State, while dismissing their mercy petitions under Article 161 of the Constitution of India. Thus, in all the petitions, except Criminal Writ Petition No. 1835 of 1988 (Jagtar Singh v. State of Punjab), the impugned orders passed by the State Government for rejection of their mercy petitions are hereby quashed. The State Government is directed to reapply its mind and reconsider the cases of all the convicts except that of Jagtar Singh petitioner, and dispose of their cases by passing speaking orders on the individual mercy petitions, keeping in view all the relevant instructions already issued by the State Government within a period of four months from today. The said convicts shall be released on bail on their furnishing adequate surety bonds to the satisfaction of District Magistrates concerned. Such convicts would also undertake to surrender before the Jail Authorities concerned in case of rejection of their individual mercy petitions. On this point I am supported by the authority of the Apex Court in Criminal Appeal No. 313 of 1988, (State of Punjab v. Sada Singh), and the Single Bench authority of this Court in Karnail Singh''s case (supra), which, were followed by S.D. Bajaj, J. in Criminal Writ No. 1654 of 1988, (Kulwant Singh v. State of Punjab). I find further support in my view by the Single Bench authority of this Court in Criminal Writ Petition No. 1578 of 1987, decided on 29.8.1988 (Dharam Singh v. State of Punjab) decided by K.S. Bhalla, J. on 29th August, 1988.

As far as the case of Jagtar Singh petitioner in Criminal Writ Petition No. 1835 of 1988 is concerned, it is quite clear that there was a long standing enmity between the two parties. In case in which Jagtar Singh petitioner was convicted and sentenced, 17 persons are said to have been murdered in six incidents, spread over five villages, in a span of about six hours. Prior to that the opposite party was responsible for commission of murder of five persons belonging to the party of Jagtar Singh accused. As far as Jagtar Singh petitionerconvict is concerned, his mercy petitions has rightly been rejected by the State Government, and no interference in the said order is called for.

For the foregoing reasons, all the writ petitions, except Criminal Writ Petition No. 1835 of 1988 (Jagtar Singh v. State of Punjab), are allowed to the extent indicated above. Criminal Writ Petition No. 1835 of 1988 (Jagtar Singh v. State of Punjab) is, however dismissed.