Sat Pal vs State of Haryana

R.S. Mongia, J. (Oral)

This judgment will dispose of Crl. Misc. Nos. 1468M of 1993 and 1471M of 1993 wherein prayer has been made for the quashing the jail punishments awarded to the petitioner from time to time. In the former petition 9 jail punishments awarded to the petitioner from the period 9.8.1983 to 30.7.1988 have been impugned. In the latter petition, 3 jail punishments dated 29.4.1986, 15.11.1989 and 18.9.1989 have been impugned. Learned counsel for the petitioner has argued that in fact at this stage none of the abovesaid punishments in both the petitions can be taken into consideration, for the purpose of consideration of the petitioner for premature release as all punishments are more than 3 years old. In support of his contention, he cites the judgments rendered in Avtar Singh @ Kahla v. State of Punjab and others, 1992(3) Recent CR 391 and Prem Singh v. State of Punjab and others, 1992(1) Recent Criminal Reports 635 .

On the other hand, learned counsel for the respondents cites the judgments rendered in Ram Singh v. State of Punjab and another, 1990(2) Recent Criminal Reports 21 and Sewa Singh v. State of Punjab and another, 1990(2) Recent Criminal Reports 623 wherein it was held that the jail punishments which are more than 5 years old cannot be taken into consideration.

Admittedly all the punishments excepting punishments dated 15.11.1989 and 18.9.1989 (JUDGMENTs Annexures P/2 and P/3 in the latter petition) are more than 5 years old. Even as per the judgments relied upon by the learned counsel for the respondents, all other punishments, excepting the two referred to above, cannot be taken into consideration for the purpose of consideration of the case of the petitioner for premature release. Learned counsel for the petitioner on the other hand states that two different Single Benches have taken the view that if the jail punishment is more than 3 years old, the same cannot be taken into consideration. There seems to be obvious conflict on this point in the judgments cited by the learned counsel for the respondents. However, that would not detain me for disposing of these petitions. The punishment dated 15.11.1989 was for alleged attempt to commit an unnatural offence, when forfeiture of 10 days remission was ordered, whereas punishment dated 18.9.1989 is only a warning for retaining Rs. 25/ with him, which the petitioner could not legally keep. Even if these punishments are to be taken into consideration, I am of the view that these are sufficiently old. Let the petitioner''s case be considered for premature release, if he fulfils the conditions under the Government Instructions dated 4.2.1993. Let this be done within six weeks from today. The petition stands disposed of accordingly. Copy of this judgment attested by my Court Secretary be given to the learned counsel for the respondents for compliance.

Since the matter as to which jail punishments is not to be taken into consideration for the purpose of premature release is likely to arise again and again and because of the obvious conflict between the judgments cited by the counsel for the parties, I am of the view that this matter should be settled by a Larger Bench. Let the papers of this case be laid before My Lord, the Chief Justice for constituting the Larger Bench for the purpose of resolving the above conflict in the above referred to judgments.

JUDGMENTOF DIVISION BENCH CONSISTING OF THE HON''BLE MR. JUSTICE H.S. BEDI AND THE HON''BLE MR. JUSTICE S.C. MALTE, DATED 22.8.1995 IN CRL. MISC. NO. 1471M OF 1995.

H.S. Bedi, J. (Oral) 5. This matter has been referred to a Division Bench vide order dated 2nd February, 1994, made by R.S. Mongia, J. in a Criminal Misc. No. 1468M of 1993. The reference has been necessitated as there were various single Bench decisions of this Court in Avtar Singh alias Kahla v. State of Punjab and others, 1992(3) Recent CR 391 and Prem Singh v. State of Punjab and others, 1992(1) Recent Criminal Reports 635 , laying down that for the purpose of premature release of a prisoner undergoing sentence, a jail punishment of more than three years was not to be taken into count, whereas on the other hand, the cases reported as Ram Singh v. State of Punjab & another, 1990(2) Recent Criminal Reports 21 and Sewa Singh v. State of Punjab and another, 1990(2) Recent Criminal Reports 623 provided that this period could be up to five years and a jail punishment which was beyond that period alone could not be taken into consideration. As the learned Single Judge was of the view that this apparent difference was to be sorted out, the matter required consideration by a Division Bench.

The learned counsel for the parties are agreed that the State of Haryana has issued no instructions with regard to the question posed though such instructions have been issued in the State of Punjab and the State of Haryana is acting on the basis of the various judgments delivered by this Court from time to time and in some cases taking into consideration jail punishments upto five years, while in other cases upto three years only. We find that these apparently whimsical decisions should not be encouraged but we are of the opinion that as the matter directly pertains to an administrative act within the purview of the State Government it would not be proper for us to stipulate the period for which a jail punishment was to be taken into consideration, and deem it appropriate to leave it to the State Government to take a decision. As the matter is of urgeny involving the liberty of an individual we direct that the State of Haryana could issue instructions within six months from today on the subject in issue keeping in view that some instructions have already been issued by the Punjab Government. We, however, feel that the State of Haryana should also keep in mind the nature of the jail offence committed in stipulating such a period and to provide for different periods keeping in view the gravity of the jail offence. During the interregnum we direct that in the light of Avtar Singh''s and Prem Singh''s cases supra, the jail offences beyond three years should not be considered. The present petition is disposed of in the above terms.