Sube Singh vs State of Haryana

K.S. Kumaran, J.

PetitionerSube Singh, presently undergoing imprisonment for life in Central Jail, Hissar, has approached this Court under Section 482 Cr.P.C. read with Articles 226/227 of the Constiution of India for directing the respondents, namely, the State of Haryana and the Director General of Prisons, Haryana to consider the case of the petitioner for premature release on medical grounds.

The case of the petitioner is as follows :

The petitioner was arrested in F.I.R. No. 271 dated 18.9.1987 under section 302 I.P.C. on 1.10.1987, tried, convicted and sentenced to undergo life imprisonment by the learned Sessions Judge, Jind on 4.2.1989. He is in Jail since the day of his arrest.

The petitioner has undergone 9 years 5 months and 14 days of sentence (before and after conviction) and has earned remission of 3 years 2 months and 26 days, totalling to 12 years 8 months and 10 days. The petitioner is aged 60 years and suffering from multiple diseases such as Ch. Br. Asthma, Hypertension, I.H.D. Pulmonary effusion enlarged prostate and very low vision etc. since 1991 and he remained admitted in the Government Hospital, Hissar and Medical College Hospital, Rohtak. The medical certificate annexure P1 shows that he becomes serious and develops chest pain and he requires treatment. He cannot move from one place to another without taking the help of another person.

The Haryana Government has issued instructions dated 4.2.1993 (annexure P2) for consideration of cases for premature release of life convicts after coming into force of Section 433A Cr.P.C. In para 2(e) of the aforesaid instructions, it has been provided that where a physical handicap has developed after the sentence, then the case of the convict for premature release will be considered after undergoing six years of sentence provided that the handicap is of such a nature to render him totally incapable of committing any offence and further renders him incapable of looking after himself in the prison. The petitioner is aged about 60 years, very weak and is, therefore, entitled to be released forthwith. The case of the petitioner was recommended by the Jail Superintendent on the basis of annexure P2, but the respondents have not considered the case of the petitioner. His ailment is increasing day by day. Bhana Ram and Sunder Dass, similarly situated convicts were released on medical grounds. The conduct of the petitioner has been good and satisfactory and he has not committed any jail offence.

The Superintendent of District Jail, Karnal filed the following reply on behalf of respondents 1 and 2 :

The petitioner has undergone 9 years 4 months and 18 days of imprisonment and earned remissions of 3 years 1 month and 2 days. Sentence of imprisonment for life means imprisonment for the whole remaining period of a prisoner''s natural life unless commuted or remitted by the authories. This Court in Criminal Misc. No. 578M of 1996 (Jai Singh v. State of Haryana) has held that the instructions cannot override the legislative intent as reflected in Section 433A of the Code of Criminal Procedure and that while considering the case of the convict for premature release, the respondents will have to take into account the fact whether he has remained in jail actually for 14 years inclusive of parole, excluding remissions. This Court also held that the provisions of Section 433A Cr.P.C. cannot be rendered nugatory either by the exercise of power under Section 432 or 433 Cr.P.C. or under Articles 72 and 161 of the Constitution of India.

It is admitted that the petitioner is suffering from poorly controlled hypertension with I.H.D., C.O.A.D. Periarthritis right shoulder joint and benign enlargement of prostate (vide annexure R1). The petitioner remained under treatment in various hospitals but it is not correct that he cannot move without the help of any other person. He can move without any help. Petitioner''s case does not come under para2(e) of the instructions dated 4.2.1993, as he can eat, do his daily routine work himself and move from one place to another without any help.

The Superintendent of Central Jail, Hissar did not recommend his case for premature release but the same was sent to the Director General of Prisons since the petitioner made a request to the Director General of Prisons, Haryana regarding his release. The petitioner has undergone 9 years 4 months and 18 days of actual sentence and does not fulfil the conditions laid down in the government instructions dated 4.2.1993.

The petitioner was released on parole for two weeks on 2.1.1996, but he surrendered after overstaying for 9 days. He was punished by the Superintendent of Jail for this offence (annexure R2). Therefore also petitioner''s case for premature release cannot be considered.

I have heard the learned counsel for both the sides and perused the records.

According to the respondents, the petitioner has completed 9 years 4 months and 18 days of actual imprisonment and has earned remissions of 3 years 1 month and 2 days, whereas the petitioner claims that he has undergone 9 years 5 months and 14 days of actual sentence and earned remissions of 3 years 2 months and 26 days. This difference between the petitioner and the respondents does not make any difference in view of the fact that the petitioner claims that this case for premature release be considered under para 2(e) of the instructions dated 4.2.1993 (annexure P2) issued by the Government of Haryana. As per this clause, the case of life convicts, who are physically handicapped, for premature release can be considered if the handicap developed after the sentence, provided the handicap is of such a nature as to render him totally incapable of committing any offence and further renders him incapable of looking after himself in the prison. He must also have undergone detention for six years. Of courts, the petitioner has admittedly undergone imprisonment for more than six years, but the question is whether he developed any handicap after the sentence and whether such handicap has rendered him totally incapable of committing any offence and looking after himself in the prison.

Of course, even according to the respondents, the petitioner is suffering from poorly controlled Hypertension, I.H.D., C.O.A.D., Periarthritis right shoulder joint and benign enlargement of prostate (vide annexure R1 dated 17.2.1997). The certificate annexure P1 dated 20.11.1996 produced by the petitioner only says that the petitioner is aged about 60 years with moderate health and that he is suffering from diseases since long. It also says that he was admitted in the hospital at Rohtak or Hissar or in the Central Jail, since October, 1991. According to the certificate, he is suffering from Ch. Br. Asthma, Hypertension, I.H.D. Pulmonary effusion, enlarged prostate and very low vision. It has also been stated that he becomes serious and develops chest pain off and on and he requires long treatment and regular hospitalization, to avoid any kind of physical and mental tension; otherwise he can be serious at any time.

The contention of the other respondents is that in view of Section 433A of the Code of Criminal Procedure, which came into effect from 18.12.1978, and the decision of this court in Criminal Misc. No. 578M of 1996 (Jai Singh v. State of Haryana), the provisions of Section 433A Cr.P.C. cannot be rendered nugatory by the executive instructions and a life convict has to undergo 14 years of imprisonment and that the case of the petitioner, who had admittedly not undergone 14 years of imprisonment excluding remissions, cannot be considered for premature release.

Section 433A of the Cr.P.C. came into effect from 18.12.1978. The petitioner was arrested in 1987 and convicted in the year 1989. Therefore, Section 433A Cr.P.C. will be applicable to the case of the petitioner. Section 433A Cr.P.C. provides that notwithstanding anything contained in section 432 or section 433 Cr.P.C., a life convict on whom sentence of death could have been imposed shall not be released from prison unless he had served 14 years of imprisonment. Even though the instructions annexure P2 have been issued on 4.2.1993, i.e. after Section 433A came into force, the provisions contained in para2(e) cannot override the provisions contained in section 433A Cr.P.C. under which such a life convict has to undergo imprisonment for 14 years. Section 433A Cr.P.C. restricts the power of the appropriate Government to grant remissions or commutation as per Sections 432 and 433 Cr.P.C. Therefore, after Section 433A Cr.P.C. came into force, the case of a life convict, who could have been sentenced to death, for premature release can be considered only if he has served 14 years of imprisonment. A perusal of these provisions shows that even if the Government wants to remit a portion of the sentence of such a life convict on the ground that he has become physically handicapped after the sentence to such an extent that he is totally incapable of committing any offence or looking after himself in the prison, the Government can do so only after the expiry of 14 years of imprisonment undergone by him, excluding reissions, since life imprisonment means the imprisonment for the rest of the life of a convict. The petitioner in this case has been convicted and sentenced to life imprisonment under Section 302 IPC for which ''death'' is one of the punishments. Therefore, even if we presume that the petitioner is entitled to the benefits of para 2(e) of the instructions dated 4.2.1993 (annexure P2), his case for premature release can be considered only if he has completed 14 years of imprisonment, excluding remissions. So on this ground alone, this petition has to fail.

Further, neither annexure P1 nor annexure R1, the certificate issued by the doctors show that the petitioner suffered any handicap after he was sentenced to life imprisonment. While annexure P1 merely says that he is suffering from diseases since long, annexure R1 does not mention the date from which he is suffering from the diseases. There is also nothing to show that he is totally incapable of committing any offence or looking after himself in the prison though he is suffering from certain diseases for which he may require regular hospitalisation and even long treatment. But that does not mean that he has been rendered physically handicapped to the extent as indicated above. On this ground also, the petition has to fail.

Resultantly, the petition is dismissed.