Om Parkash vs State of Punjab and ors.

G.S. Chahal, J.

Om Parkash, petitioner has come to this Court, in this criminal miscellaneous under section 482, Code of Criminal Procedure, read with Articles 226/227 of the Constitution of India, seeking premature release.

The petitioner was convicted by the Add. Sessions Judge, Amritsar vide his order dated 1491979 and was sentenced to imprisonment for life. He has undergone more than 11 years 5 months of actual sentence and earned remissions of 7 years, besides his confinement in jail, as an undertrial. He has availed of paroles and furloughs. On the basis of instructions Annexures P 1 to P3, the petitioner moved a petition to the State Government under Article 161 of the Constitution of India on 711989, vide copy Annexure P4. The said mercy petition having not been decided by the concerned authorities, he came to this Court in Criminal Writ Petition No. 825 of 1989 that was decided on 1371989. A direction was issued therein that his premature release case be decided within a period of 4 months, vide copy Annexure P5. The case was, however, not decided. He then brought Criminal Writ Petition No 3974 of 1989, challenging the inaction of the Govt. This petition was decided by the Court on 881990 and a direction was issued, vide copy of order Annexure P6, that he be released on bail till decision of his case. The bail bonds were accepted by the District Magistrate, but the Superintendent Jail refused to release him on the basis that his mercy petition had been rejected on 7121989, vide copy of order supplied to him which is Annexure P7. However, when the earlier writ petition was decided vide Annexure P6, this fact was not brought to the notice of the Court.

The validity of the order Annexure P7 has been challenged on the basis that it was not a speaking order and guidelines laid down in Annexures P1 to P3 had not been considered. The fact that the murder was in the form of wife''s burning for lack of adequate dowry, could not be considered against him since that fact had been considered at the time of awarding the sentence and moreover, it has been held in the judgment and order dated 881990 that the murder was not heinous or committed in gruesome manner. Moreover, some other convicts, similarly placed, had been released by the State Govt. The petitioner had sought his premature release on the basis of his good conduct in jail and his having undergone more than 8 years 6 months actual sentence and a total of 14 years, including remissions.

The fact of the petitioner having undergone wore that 81/2 years actual sentence was admitted. It was stated that the State Govt. had considered the mercy petition on merits and rejected it and that fact had been intimated to the petitioner. In the additional written statement, It was stated that the premature release case of the petitioner had again beeninitiated on the direction of the Inspector General of Prisons and the same would be decided on merits :

The operative portion of Annexure P7 reads as follows :

"2. H.E. the Governor of Punjab has ordered that this is a case of wife burning for lack of adequate dowry. He does not think that this case deserves mercy. Hence, it is hereby rejected. The convict may be informed accordingly.

In Cr. W.P. No. 3974 of 1989 decided on 381990, J.S. Sekhon, J., made the following observation :

"It cannot be said that the petitioner had committed the murder in heinous or gruesome manner."

There was, thus a judicial pronouncement in favour of the petitioner that he has not committed a gruesome murder. In Dalbir Singh v. State of Haryana and another, 1989(2) All Indian Criminal L.R. 290, A.P. Chowdhri, J., dealt with, the matter of consideration of the heinousness of the crime, while deciding the premature release case and made the following observations :

"With regard to second part of the case, the heinousness of the case, the heinousness of the crime is a factor to be considered at the time of awarding the sentence and this is the function of the Court. Once a person is awarded life imprisonment, the perimeter of his punishment is fixed and heinousness of the crime does not remain a live factor. It could not continue to haunt the prisoner''s case for premature release in accordance with the general instructions of the Government,"

There is, thus, much force in the contention of the learned counsel for the petitioner that the motive for the murder could not be considered while deciding the matter of premature release of the petitioner.

In the instructions Annexure P3, one of the considerations while dealing with the mercy petition is contained in paragraph 6 which is to the following effect :

"6. After introduction of section 433A of Cr. P.C., w.e.f. 18121978, since every premature release case of a lifer convict will be taken up after he has completed 14 years actual sentence in jail, a minimum period of 5/6 years for juvenile and women prisoners and 71/2 and 81/2 years for adult male prisoners can be taken as one of the guidelines for release on mercy petition."

Admittedly, the petitioner has undergone 81/2 years actual sentence and a total of 14 years, including remissions granted. He was, thus, entitled to be considered for premature release, especially as he had quite a good conduct while in jail.

It is the stand of the respondentauthorities that consideration of the mercy petition of the petitioner for premature release has again been initiated by them. A direction is hereby issued to the respondentauthorities to redecide his mercy petition within 3 months, failing which, he shall be allowed bail to the satisfaction of the District Magistrate, Amritsar till the same is decided. He would also furnish security to surrender to jail for serving the remaining term of his sentence in case the mercy petition is rejected.