Nishan Singh vs State of Haryana and others

Swatanter Kumar, J. (Oral)

This is a petition under Articles 226/227 of the Constitution of India against order dated 26.7.1994 (copy of which was filed by the petitioner subsequently as Annexure P2). The petitioner was held guilty by the Additional Sessions Judge, Kurukshetra on 17.5.1980 for an offence punishable, under Section 302 of the Indian Penal Code read with sections 148 and 149 of the Indian Penal Code, besides under section 27 of the Arms Act. The petitioner was sentenced to undergo rigorous imprisonment for life with regard to an occurrence which had taken place on 15.3.1979. The petitioner was convicted and sentenced alongwith his coaccused Lashkar Singh, Kulwant Singh, Rattan Singh and others.

Learned counsel for the petitioner has argued that in the cases of co accused vide judgment dated 13.12.1994 passed by Hon''ble Mr. Justice V.K. Jhanji and vide judgment dated 30.5.1995 passed by Hon''ble Mr. Justice V.S. Aggarwal the respondents were directed to consider their cases for premature release. The State Level Committee vide its order dated 18.12.1994 has rejected the case of the petitioner for grant of premature release in spite of the fact that the petitioner has already undergone more than 14 years of actual imprisonment. The submission of the learned counsel for the petitioner is that the case of the petitioner is covered under the instructions issued by the respondentState and even if the crime committed by the petitioner is treated as heinous one, he is still entitled to be released prematurely because his conduct in the jail has been good.

Vide two judgments, aforesaid passed by the Benches of this Court, the orders of rejection have already been set aside and directions had been issued to the respondents to reconsider the cases of those coaccused. It is further averred by the learned counsel for the petitioner that out of 11 convicts, Rattan Singh and Kulwant Singh have already been released prematurely by the respondents themselves.

The impugned order is not reasoned one inasmuch as it does not give any reason for rejection except the ground that six persons had committed pre planned brutal murder and therefore, the case of the petitioner cannot be considered and should be put up for consideration only after two years of the date of the order i.e. 17.8.1994. This order was passed by the respondents on 26.7.1994.

On a previous petition containing the same prayer the Court had given direction on 22.7.1994 that the case of the petitioner for premature release should be considered by the Government. It is not the matter of sheer incident that the order dated 26.7.1994 was passed by the Competent Authorities without receiving the direction dated 22.7.1994. When the order was received, the competent authorities again considered the case of the petitioner and vide order dated 24/26.8.1994 the concerned authorities rejected the case of the petitioner. Thus, in the previous petition, there is a challenge to the illegal detention of the petitioner by the respondents and there is a prayer for his premature release in accordance with law. Mr. N.S. Bhinder, D.A. Haryana, learned counsel for the respondents has taken an objection that the order dated 24.8.1994 has not been assailed before this court in any petition and consequently the present petition is liable to be rejected on this short ground.

It is true that the order dated 24.8.1994 has not been assailed before this court specifically by filing any petition, but the court cannot lose sight of the fact that the petitioner has filed the present petition as back as in the year 1994 and since then the petition is pending. It is during the pendency of the petition and in furtherance to the direction issued in another petition that the case of the petitioner was considered and consequently rejected by the concerned authorities. A person who is undergoing the sentence and has been in jail for a considerable period of more than 14 years, cannot be expected to file a petition one after the other. It is in these circumstances especially the grounds the petitioner has urged in the petition that the court is not accepting the objection raised on behalf of the State with regard to maintainability of the present petition.

The main argument of the learned counsel for the petitioner is that the State Level Committee had recommended the names of coconvicts namely, Rattan Singh and Kulwant Singh for premature release and consequently the State Government had actually released the said convicts. The very fact that co convicts of the petitioner have been prematurely released by the Government, according to the learned counsel for the petitioner, constitutes a sufficient ground for proper reconsideration of the case of the petitioner. Learned counsel for the petitioner further submits that the orders i.e. 26.7.1994 and 24.8.1994 suffer from nonapplication of mind.

Certainly the submission of the learned counsel for the petitioner has some merit. The order, Annexure R1 is mere reproduction of order, Annexure P2 except that it refers to the direction passed by this Court vide order dated 22.7.1994. The respondents are expected to comply with apply their mind to the merits of the case and consider the case of each detenu/convict for premature release on the grounds which are available to them in accordance with law. Having opted to issue instructions the respondents would be bound by such instructions even if these are in conflict with the substantial law. Even if the petitioner/convict had committed heinous crime, the respondents are under an obligation to consider his case under clause 2(a) of the instructions issued by the respondentState dated 4.2.1995 Annexure P1 to the petition. The nature of the offence clearly shows that all the convicts in this case were charged under section 302 read with sections 148/149 of the Indian Penal Code and were convicted on the basis of application of sections 148/149 of the Code. Thus, it would be difficult to say that the petitioner is differently located or situated than the other coconvicts who are stated to have been prematurely released by the respondents. The liberty of an individual convict is a serious concern. Once a person claims to have undergone the requisite actual sentence awarded to him by the competent Court, the respondent authorities are under legal obligation to consider the case of the convict and decide it on merit by at least an order which may or may not be well reasoned, but it must bear the reasons which would indicate the mind of the authorities and give grounds to the convict to challenge such order. The reasons must be proper, whether such reasons are sufficient in law or not, is a question of judicial review, but giving of no reason in the order is one which hits the basic rule of law and deprive the convict or detenu of his right to challenge such order in any competent Forum or Court.

In view of the judgment passed by two different Benches of this Court and the reasons aforesaid, the order dated 26.7.1994 as well as 24.8.1994 in regard to the petitioner''s case, are hereby quashed and set aside. The respondents are directed to consider the case of the petitioner afresh within 6 weeks from the date on which the petition on behalf of the convict is presented to the concerned authorities completely stating all the grounds that he wishes to invoke for succeeding in his request to the respondents for pre mature release.

The petition is accordingly allowed. There shall be no order as to costs.