State of
Haryana & Anr Vs. Ram Diya [1990] INSC
134 (10 April 1990)
Pandian,
S.R. (J) Pandian, S.R. (J) Reddy, K. Jayachandra (J)
CITATION:
1990 AIR 1336 1990 SCR (2) 431 1990 SCC (2) 701 JT 1990 (2) 434 1990 SCALE
(1)760
ACT:
Code
of Criminal Procedure, 1973: Sections 432, 433 and 433A-Death sentence commuted
to life sentence--Conviction prior to introduction Of section 433A--Premature
release of such life convicts-Consideration by State Government--Com- pliance
with Court's directions.
Punjab Jail Manual: Paragraph 5
16-B---Executive in- structions-Convicts whose sentence of death commuted to
life imprisonment-Conviction prior to amendment of Cr. P.C. in 1978--Premature
release of--Applicability of the instruc- tions.
HEAD NOTE:
Paragraph
516-B of the Punjab Jail Manual provides for premature release of prisoners,
and is in the nature of executive instructions. The State Government modified
the instructions in 1971 and 1976. The 1976 instruction was to the effect that
cases of life convicts whose sentence has been commuted should be considered
for premature release only after completion of 14 years of actual imprisonment.
The
State Government further liberalised its policy and decided that such cases
might be reviewed by a state level committee and directed that cases of life
convicts who have completed 8 1/2 years substantive sentence and sentence of
14/10 years including remission be submitted to the Commit- tee. Later on the
State Government clarified that the lib- eralised policy would not be applicable
to the life convicts whose death sentence has been commuted to life
imprisonment.
In
1978, the Code of Criminal Procedure 1973 was amended introducing section 433A
providing that such life convicts should undergo actual imprisonment of 14
years in jail. This Court declared that section 433A of the Code is prospective
in effect and did not operate against those cases which were decided by the
trial court before 18.12.1978 (Maru Ram etc. etc. v. Union of India and Anr.,
[1981] 1 SCR 1196).
The
cases of respondents were in fact covered by the said decision.
432
They have filed writ petitions before the High Court for premature release and
the High Court directed the State Government to consider their cases. The State
Government has .,preferred these appeals, by special leave, against the orders
of the High Court.
Dismissing
the appeals, this Court,
HELD:
1.1.
No one has got a vested right to claim pre- mature release on the ground that
he has suffered the mini- mum actual imprisonment as prescribed under section
433A Cr.P.C. because a sentence of 'imprisonment for life' is incarceration
until death, that is, for the remaining period of convicted person's actual
life. There is no question of releasing such a lifer early in the absence of an
order of commutation under section 55 IPC by the appropriate Govern- ment, or
under section 433(b) of Criminal Procedure Code of 1973 by the appropriate
Government or on a clemency order in exercise of power under Article 72 or 161
of the Constitu- tion of India. [435E-F; G-H]
1.2.
In the instant case, the conviction of the respond- ents was recorded early to
the introduction of section 433A and, therefore, as per the ratio laid down in Maru
Ram's case, the two respondents are entitled for consideration of release by
the appropriate Government as per the prevailing rules or executive
instructions. Further, admittedly, the State Government did not take up the
cases of the respond- ents for premature release within six months of the order
of this Court dated 10th December 1980 in Sant Ram's case, (W.P. Nos.
1252-64/80 etc. etc.) and deferred the considera- tion of premature release
till the respondents had completed 14 years of substantive sentence. It has
become obligatory for the State to consider the cases of premature release of
the respondents in accordance with the rules or executive instructions
prevailing and applicable to them at the rele- vant time i.e. between the
period 10.12.1980 and 9.6.1981.
The
plea of the appellant that the premature release of the respondents was not
considered since they have not completed 14 years of substantive imprisonment
is in violation of the directions of the order dated 10th December, 1980 of
this Court and so the appellant cannot be permitted to make such a plea on the
strength of the executive instructions over- looking and ignoring the above
directions. There is no infirmity in the judgments of the High Court calling
for interference. [436E-F; 437F; 438H; 439A-C] Kishori Lal v. Emperor, AIR 1945
P.C. 64; Gopal Vinayak Godse v. The State of Maharashtra and Others, [1961] 3 SCR 440; Maru Ram etc. etc. v. Union
of India & Anr., [1981] 1 SCR 1196; Kartar Singh and 433 Others v. State of
Haryana, [1982] 3 SCC 1 and Sadhu Singh v.
State of Punjab, [1984] 2 SCR 741, relied on.
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal Nos. 365 of 1986 and 245 of 1990.
From
the Judgment and Order dated 21.12. 1984 of the Punjab and Haryana High Court in Crl. Writ Petition No. 399 of
1983 and 25 1 of 1983.
Mahabir
Singh (N.P.) and Dalveer Bhandari for the Appel- lants.
A.K. Goel
for the Respondents.
The
Judgment of the Court was delivered by S. RATNAVEL PANDIAN, J. Leave granted in
Special Leave Petition (Criminal) No. 1158 of 1985.
The
State of Haryana has preferred these two appeals
against the Judgment and Order of the Punjab & Haryana High Court dated
21.12. 1984 in Writ Petition Nos. 399/83 and 25 1/83 respectively passing
similar orders directing the State Government to consider the cases of the
respondents for premature release.
The facts
which lie in a very narrow compass may be stated thus:
The
respondents were convicted under Section 302 of the Indian Penal Code and
sentenced to death by the Additional Sessions Judge, Karnal which sentence
inflicted on each of them was subsequently commuted to life imprisonment on
mercy petitions.
It
seems that the State Government issued various execu- tive instructions from
time to time either altering or amending the existing instructions by fresh
executive in- structions specifying the minimum period of actual detention to
be undergone by a convict sentenced to life imprisonment before his case for
premature release could be considered by the State Government. To appreciate
the case of the respec- tive parties it would be apposite to make reference to
the relevant instructions. At the outset, the instructions contained in
paragraph 5 16-B of Punjab Jail Manual which are in the nature of executive
instructions by way of guid- ance may be referred to which instructions are
based on a Government of India resolution No. 159-167 dated 6th 434 September,
1905. The aforesaid paragraph reads thus:
"516-B(a)
With the exception of females and who were under 20 years of age at the time of
commission of offence, the cases of every convicted prisoner sentenced to:
(i) imprisonment
for life ..............................................
(iv)
.........................................
(a)
who has undergone a period of detention in jail amount- ing together with
remission earned to 14 years, shall be submitted through the Inspector General
of Prisons, Punjab for the orders of the State
Government".
The
substance of the above paragraph is that the case of a male lifer who was above
20 years of age at the time of commission of offence sentenced to life
imprisonment and who has undergone detention in jail amounting together with
remission earned to 14 years, should be submitted to the State Government for
consideration of his premature release.
It
further appears in the year 1971, the State Government after a considerable
deliberation took a policy decision and issued instructions through its
Memorandum No. 133 11-6J J- 71/ 39656 dated 10th of November, 1971 providing
that a period of actual sentence of 8 1/2 years in the case of adult life
convicts and 6 years in the case of female con- victs as well those male
convicts below 20 years of age at the time of commission of offence should be
regarded as the qualifying period of consideration for premature release.
This
memorandum was clarified that all cases of prisoners should be sent for
consideration of their premature release in the light of the said policy
decision with effect from 2nd November, 1971.
Thereafter,
in January 1976 the question of releasing prematurely life convicts whose death
sentence has been committed was again considered by the State Government and it
took a policy decision that cases of such life convicts should be considered
for premature release only after com- pletion of 14 years of actual
imprisonment and in that behalf Memorandum No. 403-6JJ-76/3456 dated 30th
January 1976 containing the necessary instructions was issued by the State
Government. It is culled out from the impugned judg- ment of the High Court in
Criminal Appeal No. 365 of 1986 (arising out of Writ Petition 435 No. 399/83)
that the State Government with a view to libera- lise the policy of premature
release of prisoners decided that such cases might be reviewed by a State Level
Committee comprising of four members inclusive of Minister for Prisons and
directed the concerned Superintendent of Jail to submit cases of life convicts
two months before they completed 81/2 years substantive sentence and sentence
of 14/10 years including remission along with his comments to the Inspector
General of Prisons, Haryana who thereupon would put up all cases along with his
recommendations for consideration before the Committee and further directed the
Inspector General of Prisons to submit a copy of the decision taken by the said
Committee along with the roll of each prisoner to Government within one week.
Be
that as it may, the Parliament introduced Section 433(A) by the code of
Criminal Procedure (Amendment) Act, 1978 (45 of 78) with effect from
18.12.1978. According to Section 433(A) that a person who has been sentenced to
death and whose death sentence has been commuted into one of imprisonment for
life and persons who have been sentenced to imprisonment for life for an
offence for which death is one of the punishments provided by law should
undergo actual imprisonment of 14 years in jail. We are referring to Sec- tion
433(A) in this judgment only for a limited purpose of showing that after the
introduction of this section, the life convicts failing within the purview of
Section 433(A) has to undergo the mandatory minimum 14 years of actual imprisonment.
It may be mentioned at this juncture that no one has got a vested fight to
claim premature release on the ground that he has suffered the minimum actual
imprisonment as prescribed under Section 433(A) because a sentence of
'imprisonment for life' is incarceration until death, that is, for the
remaining period of convicted person's actual life vide Kishori Lal v. Emperor,
AIR 1945 Privy Council 64;
Gopal Vinayak
Godse v. The State of Maharashtra and Others, [1961] 3 SCR 440; Maru
Ram Etc. Etc. v. Union of India & Anr., [1981] 1 SCR
1196; Kartar Singh and Others v. State of Haryana, [1982] 3 SCC 1 and Sadhu
Singh v. State of Punjab, [1984] 2 SCR 741.
There
is no question of releasing such a lifer early in the absence of an order of
commutation under Section 55 IPC by the appropriate Government which term is
defined under Section 55(A) IPC or under Section 433(b) of Criminal Proce- dure
Code of 1973 by the appropriate Government or on a clemency order in exercise
of power under Article 72 or 16 1 of the Constitution of India. Incidentally,
it may be stated that Section 54 empowers the appropriate Government to commute
the sentence of death for any other punishment provided by the Indian Penal
Code.
436
Section 432 of the Criminal Procedure Code gives the power to the appropriate
Government either to suspend or to remit the sentences. The meaning of the
expression 'appro- priate Government' occurring in Section 432 and 433 is given
under sub-section 7 of Section 432.
The
Constitution Bench of this Court in Maru Ram Etc.
Etc.
v. Union of India & Anr., [1981] 1 SCR 1196 after thoroughly examining the
intendment of Section 433(A) con- cluded by formulating its various findings
one of which is as follows:
"We
declare that s. 433A, in both its limbs (i.e. both types of life imprisonment
specified in it), is prospective in effect. To put the position beyond doubt,
we direct that the mandatory minimum of 14 years' actual imprisonment will not
operate against those whose cases were decided by the trial court before the
18th December 1978 (directly or ratro- actively, as explained in the judgment)
when s. 433(A) came into force. All 'lifers' whose conviction by the Court of
first instance was entered prior to that date are entitled to consideration by
Government for release on the strength of earned remissions although a release
can take place only if Government makes an order to that effect."' Now,
coming to the facts of case on hand, admittedly the conviction of the
respondents was recorded early to the introduction of Section 433(A) and,
therefore, as per the ratio laid down in Maru Rarn's case (ibid), these two re-
spondents are entitled for consideration of release by the appropriate
Government as per the prevailing rules or execu- tive instructions.
After
the judgment dated 11.11.1980 in Maru Ram's case, a number of life convicts
filed batch of writ petitions in Writ Petition Nos. 1252-64 etc. etc. captioned
Sant Ram etc. etc. v. Union of India & Ors. etc., and those
writ petitions were disposed of by an order of this Court dated December 10, 1980. Ram Diya, the respondent in
Criminal Appeal No. 365 of 1986 was one of the petitioners in the connected
batch of Writ Petition Nos. 1532-1539 of 1980. The common order passed in all
those petitions reads thus:
"All
of these Writ Petitions except Writ Petition Nos. 1477 and 1478 of 1980 shall
stand disposed of in accordance with the judgment of this Court dated November
11, 1980 in 437 Maru Ram Etc. Etc. v. Union of India & Anr., W.P. No.
865/79 etc. etc. All persons who were released on bail shall sur- render to
their sentence and the respective State Govern- ments will pass appropriate
orders in each individual case or generally in any group or class of cases in
the light of the judgment aforesaid within six months from today.
If in
particular cases, orders of release have been passed prior to the introduction
of Section 433(A), Criminal Proce- dure Code, the accused need not surrender to
their bail." From the impugned judgment of the High Court, it is seen that
the respondent (Ram Saran) also filed a Criminal Writ Petition seeking
direction to the State Government to con- sider his case for premature release
and the same was dis- posed of by an order dated December 10, 1980 in
accordance with the decision in Maru Ram's case, and that Ram Saran who is said
to have undergone 16 years 1 month and 28 days of imprisonment including 5
years 8 months and 27 days remis- sions as on July 21, 1982 was released on
bail.
It
appears the Government have issued letter No. 43/15783-JJ(2) dated February 27,
1984 clarifying the earli- er instructions dated November 28, 1977 and
reiterating their inapplicability to life convicts whose death sentence has
been commuted to life imprisonment on their mercy peti- tions and further stating
that consideration of premature release of such convicts shall continue to be
considered in the light of the Government policy decision dated December 12,
1967 thereby making it obligatory for them to undergo 14 years substantive
sentence.
Admittedly,
the State Government did not take up the cases of the respondents for premature
release within six months of the Order of the Supreme Court dated 10th December 1980 and deferred the consideration of
premature release till the respondents had completed 14 years of substantive
sentence. In the written statement filed by the Inspector General of Prisons,
it is averred as follows:
"It
is submitted that the conduct of the petitioner during his confinement in the
jail was satisfactory but it is irrelevant as far as the consideration of his
premature release case is concerned. According to the Government policy his
premature release case is to be considered when he has 438 undergone 14 years
substantive sentence and 20 years sen- tence including remission. His jail
conduct will be consid- ered when he has completed 14 years substantive
sentence. ' ' In Sadhu Singh's case (ibid), it has been urged on behalf of the
lifers that the State Government relying upon the executive instructions issued
on 30.1.76 had erroneously made a distinction between cases of prisoners who
had been sentenced to death but whose sentence on mercy petitions had been
commuted to life imprisonment and cases of prisoners who had been straightaway
sentenced to life imprisonment in the matter of consideration of their cases
for premature release and that it is not open to the State Government to rely
upon those executive instructions dated 30.1.76 for making the distinction and
postponing the consideration of the cases of prisoners falling within the
former category until 14 years of actual imprisonment has been suffered by
them. This argument was answered by this Court holding thus:
"The
second contention also must fail in view of the admit- ted position that cases
of prisoners who have been sentenced to death but whose sentence on mercy
petitions has been commuted to life imprisonment (who constitute a distinct
class) will now be governed by the 1976 instructions. Here also the view of the
Punjab High Court in the case of Mehar Singh (supra) that the 1976 instructions
issued on 30th of January 1976 will not be applicable to cases of prisoners
convicted earlier to that date is not tenable. Clearly existing cases of life
convicts falling within that category will be governed by those instructions."
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 class in that they have been initially
sentenced to death which has been commuted on their mercy petitions. This
argument is not available to the appellant because the respondents' premature
release is required to be considered as per the directions of this Court vide
Order dated 10.12.1980. Hence it has become obligatory for the State to
consider the cases of premature release of these respondents in 439 accordance
with the rules or executive instructions prevail- ing.and applicable to them at
the relevant time i.e. between the period 10.12.1980 and 9.6.1981. The plea of
the appel- lant as reflected from the written statement filed by the Inspector
General of Police that the premature release of the respondents was not
considered since they have not completed 14 years of substantive imprisonment
is in viola- tion of the directions of the Order dated 10th December 1980 of
this Court and so the appellant cannot be permitted to make such a plea on the
strength of the executive instruc- tions overlooking and ignoring the above
directions. In the premises, we see no infirmity in the judgments of the High
Court calling for interference.
For
the aforementioned reasons, we uphold the impugned Judgment and Order of the
High Court and dismiss these appeals as devoid of any merit.
G.N.
Appeals dis- missed.
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