Tarsem Singh vs State of Punjab

G.S. Chahal, J.

Tarsem Singh, petitioner has moved this criminal miscellaneous under section 482, Cr.P.C., read with Articles 226/227, Constitution of India for the issuance of a writ of habeas corpus, alleging that his detention is illegal, as he is entitled to premature release under Article 161 of the Constitution.

The petitioner was tried by the Court of Sessions, Hoshiarpur for the offence of murder and sentenced to life imprisonment on 28.2.1986. At the time of commission of offence he was less than 20 years and he has since undergone 6 years, 2 months actual sentence and also earned remission exceeding 5 years. Under instructions Annexure P1 to P3 he was entitled to premature release. The respondentauthorities received a mercy petition of the petitioner on 10.4.1990, but failed to decide the same within reasonable time and as such, he moved Cr Misc. 1280 (sic) M of 1990 and a direction was issued on 8.2.1990 for deciding that mercy petition within a period of 4 months. The premature release case of the petitioner was, thus, required to be decided on or before 18.4.1991, but the respondentauthorities had into released him so far.

In the return filed, the respondentauthorities have taken up the plea that the petitioner''s case has been considered and rejected by them on 14.10.1991, keeping in view the existing instructions issued by the State Government and as such he was not entitled to be released.

It is not disputed at the bar that the original instructions Annexures P1 to P3 were in force prior to 8.7.1991, and that on 8.7.1991 new instructions for deciding the premature release case of the convicts have been issued by the State Government. The respondentauthorities have acted upon and applied the instructions of 8.7.1991. Sh. Jindal, learned counsel urges that direction having been issued by this Court in Cr. Misc decided on 18.12.1990, the case of the petitioner should have been considered and decided under the instructions Annexures P1 to P3 and that instructions dated 8.7.1991 were not applicable. I find force in this contention of Sh. Jindal.

A similar situation came up for consideration before their Lordships of the Supreme Court in State of Haryana and Another v. Ram Diya and Another, 1990(2) Recent Criminal Report 245 : JT 1990 (2) SC 434. After deciding the case Maru Ram v. Union of India, AIR 1980 SC 2147 the writ petitions of a number of other convicts were disposed of by the Supreme Court on 10.12.1980 and a direction was given that all persons who had been released on bail shall surrender to their sentence and the respective State Government would pass appropriate orders in each individual case or generally in any group or calls of cases in the light of the judgement in Maru Ram''s case (supra), within 6 months from the date of its decision. Ram Diya was one of those persons regarding whom these instructions had been given. On the date the Supreme Court passed this judgment, certain instructions issued by the State Government were in force. On 27.2.1984 the State of Haryana issued clarification with respect to the earlier instructions dated 28.11.77. Ram Diya was not granted the concession of premature release as his case was considered under the clarification and not the instructions as they originally existed Ram Diya having come to this Court orders were passed directing the State of Haryana to consider the above case for premature release. Against the judgment of this Court, the State of Haryana went in appeal. After considering the arguments put forth and the factual position, their lordships of the Supreme Court made the following observations :

"18. So far as these cases are concerned, premature release of the respondents has to be considered in view of the directions given by this court in the order dated December 10, 1980 in the batch of writ petitions which instructions admittedly have not been complied with merely on the ground that the respondents have not completed 14 years of actual imprisonment since these respondents constitute a distinct calls in that they have been initially sentenced to death which has been commuted on their mercy petitions. This argument is not available to the appellants because the respondents'' premature release is required to be considered as per the directions of this Court vide JUDGMENT dated 10.12.1980. Hence it has become obligatory for the State to consider the cases of premature release of these respondents in accordance with the rules or executive instructions prevailing and applicable to them at the relevant time, i.e. between the period 10.12.1980 and 9.6.1981...."

The same principle is attracted to the facts of the present case. A direction having been issued by this Court and the same having been time bound, the State Government had to decide the premature release of the petitioner by keeping in view the instructions Annexures P1 to P3. The action of the State Government to wait for further instructions and then enforcing these instructions, cannot be justified.

I hearby accept the criminal miscellaneous and direct that the respondent authorities will reconsider the premature release case of the petitioner in the light of the instructions Annexures P1 to P3 and without reference to the instructions dated 8.7.91. The mercy petition may be disposed of expeditiously and preferably within three months.