of Haryana Vs. Mahender
Singh & Ors
 Insc 1117 (2
Sinha & Harjit Singh Bedi
APPEAL NO. 30 OF 2005 WITH
CRIMINAL APPEAL NO. 31 OF 2005 CONTEMPT PETITION (C) NO. 21 OF 2007 in CRIMINAL
APPEAL NO. 30 OF 2005 S.B. SINHA, J :
circular letter issued by the State of Haryana laying down criteria for pre-mature release of the prisoners has been
declared to be unconstitutional by a Division Bench of the Punjab and Haryana High Court by reason of
the impugned judgment.
Respondents herein are life convicts. They were chargesheeted for commission of
an offence of murder of Ran Singh, Rattan Singh and Satbir Singh. They have
been found guilty thereof by a judgment of conviction and sentence dated
25.01.1988. Indisputably, their appeals before the High Court as also this
Court [since reported in (1995) 5 SCC 187] had been dismissed.
State of Punjab in exercise of its power conferred
upon it under the Prisons Act, 1894 made rules. They have statutory force.
Sub-rules (a), (b), (c), (d) and (f) of Rule 2 read as under:
"prisoner" includes a person committed to prison in default of
furnishing security to keep the peace or be of good behaviour;
"class I prisoner" means a thug, a robber by administration of poisonous
drugs or a professional, hereditary or specially dangerous criminal convicted
of heinous organized crime, such as dacoity;
"class 2 prisoner" means a dacoit or other person convicted of
heinous organized crime, not being a professional, hereditary, or specially
"class 3 prisoner" means a prisoner other than a class 1 or class 2
"life convict" means
class 1 or class 2 prisoner whose sentence amounts to twenty-five years'
class 3 prisoner whose sentence amounts to twenty years' imprisonment"
Rules 20 and 21 of the said Rules read thus:
When a life-convict being a class 1 prisoner has earned such remission as
entitles him to release, the Superintendent shall report accordingly to the
Local Government with a view to the passing of orders under section 401 of the
Code of Criminal Procedure, 1898.
Save as provided by rule 20, when a prisoner has earned such remission as
entitles him to release, the Superintendent shall release him."
however, appears that on 12.07.1910, a note was appended to the existing Rules
20 and 21 which is in the following terms:
intention of these rules is
that the cases of class I life-convicts, or class II or class III life- convict
who have more than one sentence for offences committed either before their
admission to Jail or while in jail, and of any other life- convicts in whose
cases the local Government may have deemed it desirable, should be submitted
for the special orders of the local Government as to whether release should be
granted, and if so, on what conditions (such conditions must, it should be
noted, be prescribed by order under section 401, Code of Criminal Procedure),
all other convicts should, on the expiry of their sentences, less the periods
of remission earned, be released unconditionally without any special orders
from the Local Government."
Punjab Rules were amended on 9.03.1962, in terms whereof, 'life convict' has
been defined to mean 'prisoner whose sentence amounts to 20 years
Indisputably, the State of Punjab had
been issuing instructions in relation to pre-mature release of the convicts
from time to time. In the year 1988, when the respondents were convicted, the
Rules which were applicable were of 27.02.1984; relevant portion whereof is as
Haryana Government vide letter No. 7483/2JJ/77/30099 dated 28.11.1987 had
directed that cases of life convicts of the following two categories be put up
to the State Level Committee for review of their premature release and final
decision of the State Government thereon. The categories are:
Adult male life convicts After completion of 8-1/2 years of substantive
sentence and 14 years sentence including remission.
Female and Juvenile life convicts who were below 20 years of age at the time of
commission of offence.
completion of 6 years of substantive sentence and 10 years sentence including
or about 28.09.1988, the said instructions were amended in the following terms:
Convicts whose death sentence has been commuted to life imprisonment by the
President of India or by the Governor of Haryana on acceptance of mercy
cases will be reviewed after completion of 14 years actual sentence including undertrial/detention
period. In case of very good conduct in jail for 12 years, their cases will be
considered after 12 years of actual imprisonment including undertrial/
Juvenile life convicts below the age of 18 years at the time of commission of
offence and female life convicts.
cases may be considered after 6 years actual sentence including undertrial/
detention period, provided the total of period of such detention including
remissions is not less than 10 years.
Adult life convicts (above 18 years) not convicted for heinous crimes as
defined in (d) below.
cases may be considered after completion of 8 = years of substantive detention
including undertrial/ detention period, provided that the total period of such
detention including remissions is not less than 14 years.
Adult life convicts involved in heinous crimes such as dowry deaths, bride
burning, husband killing and cases disclosing great depravity of character and
greed and those involving extreme brutality, murder with rape, murder while
undergoing life sentence, organized and professional crimes of heinous nature
like dacoity with murder and life convicts, who are dangerous and hardened
criminals as evidenced for example from cumulative sentences, persistent bad
conduct in the prison and those who could not for some definite reasons be
prematurely released without danger to public safety.
undergoing 14 years actual detention including undertrial/ detention period.
Persons sentenced to life imprisonment inclusive of those convicted of crimes
under (d) above and in whose cases death sentence has been commuted to life
imprisonment but who are suffering from terminal illness like cancer or
tuberculosis likely to result in death in the near future.
prisoners may be considered for release irrespective of the detention undergone
on report of Medical Board designated by the Government. Medical re-
examination of the convict should be done 3 months after such release for the
confirmation of the disease.
of release should contain the provision regarding medical re-examination and
re- admission to the prison if patient is not found to be suffering from such a
disease or is on the road to recovery."
the 1984 and 1988 instructions, it would appear that there did not exist any
category of a life convict involved in a heinous crime apart from the ones
again on 19.11.1991, the policy was modified to the following effect:
Adult life convicts who have been imprisoned for life but whose cases are not
covered under (a) above and who have committed crime which are not considered
heinous as mentioned in clause (a) above.
cases may be considered after completion of 10 years of actual sentence
including their trial period, provided that the total period of such sentence
including remission is not less than 14 years.
Such cases will be put to the Governor through the Minister for Jails and the
Chief Minister, with full background of the prisoner and recommendations of the
State Level Committee, alongwith the copy of judgment etc. for orders under
Article 161 of the Constitution of India."
Similar provisions were again made by reason of a policy statement made on
Concededly, the Government of India, Ministry of Home issued instructions for
revising the rules made under Section 59(5) of the Prisons Act, 1894 wherein
the following recommendations were made:
for life" or "Imprisonment for life" should be taken to mean
imprisonment for 20 years in practice. However, in treating
"transportation or imprisonment for life" as a term of 20 years'
imprisonment, necessary distinction between different classes of prisoners can
be adequately allowed for, when reckoning remissions before release of
view of the decision referred to in para 1 above, according to which the period
of 25 years' imprisonment in case of class I and II prisoners, has been reduced
to 20 years. The Government of India consider
that it would be desirable to amend the relevant Remission Rules also for the
however, those powers are vested in the State Government under section 59(5) of
the Prisons Act, 1894, I am to suggest that the State Government may consider
taking necessary steps to amend the relevant provisions of the Remission Rules
at an early date This Ministry may be informed of the action taken in the
Paragraphs 516-B and 635 of the Punjab Jail Manual read as under:
( a) With the exception of females and of males who were under 20 years of age
at the time of commission of offence, the cases of every convicted prisoner
sentenced to :
Imprisonment for life,
Imprisonment/s for life and term/s of imprisonment,
Cumulative periods of rigorous imprisonment aggregating to more than 14 years,
single sentence of more than 20 years:
has undergone a period of detention in jail amounting together with remission
earned to 14 years, shall be submitted through the Inspector- General of
Prisons, Punjab for the orders of the State
case of a female prisoner and of a male prisoner under 20 years of age at the
time of commission of offence , who is undergoing
Imprisonment/s for life,
Imprisonment/s for life and a term/s of imprisonment,
Cumulative periods of rigorous imprisonment aggregating to more than 10 years
single sentence of more than 20 years shall be submitted through the Inspector-General
of Prisons, Punjab, for the orders of the State Government when the prisoner
has undergone a period of detention in jail amounting together with remission
earned to 10 years,
Notwithstanding anything contained above, a Superintendent, Jail may, in his
discretion, refer at any time, for the orders of the State Government through
the Inspector-General of Prisons, Punjab, the case of any prisoner sentenced to
imprisonment for life whose sentence might in the Superintendent's opinion be suitably
commuted into a term of imprisonment.
Scale of award of remission Ordinary remission shall be awarded on the
two days per month for thoroughly good conduct and scrupulous attention to all
two days per month for industry and the due performance of the daily task
Paragraph 647 is in pari materia with Rule 20 of the Statutory Rules.
The State of Haryana, however, formulated a policy in regard to pre- mature
release of life convicts in terms whereof the cases for remission were required
to be considered after completion of 10 years of actual imprisonment and 14
years including remission. The said policy, however, was reformulated on or
about 12.04.2002; the relevant portion whereof is as under:
whose death sentence has been commuted to life imprisonment and convicts who
have been imprisonment for life having committed a heinous crime such as :-
Murder after rape repeated chained rape/ unnatural offences.
Murder with intention for the ransom.
Murder of more than two persons.
Persons convicted for second time for murder.
Sedition with murder.
cases may be considered after completion of 20 years of actual sentence and 25
years total sentence with remissions.
Convicts who have been imprisoned for life having committed a heinous crime
Murder with wrongful confinement for extortion/ robbery.
Murder while undergoing life sentence
Murder with dacoity
Murder with offence under TADA Act, 1987
Murder with untouchability (offences) Act, 1955
Murder in connection with dowry.
Murder of a child under the age 14 years.
cases may be considered after completion of 14 years of actual sentence including
their trial period, provided that the total period of such sentence including
remissions is not less than 20 years."
The writ petition preferred by the respondents questioning the
constitutionality of the said policy decision has been allowed by the High
Court on the premise that no discrimination could be made inter se amongst the
life convicts; all of them being similarly situated and, thus, the purported
classification on the ground of number of murders was arbitrary and
State of Haryana is, thus, before us.
Mr. P.N. Misra, learned senior counsel appearing on behalf of the appellant,
submitted that the State having an unfettered right to formulate a policy
decision in regard to remission of sentence, the High Court committed a
manifest error in arriving at the aforementioned conclusion; particularly,
having regard to the provisions contained in Sections 54 and 55 of the Indian
Penal Code and Section 433A of the Code of Criminal Procedure, 1973.
The learned counsel would contend that the executive government of the State in
exercise of its constitutional power under Article 161 of the Constitution of
India can formulate such a policy decision and the same has been approved by
this Court and in that view of the matter it can also reformulate the policy
from time to time.
Article 14, learned counsel would contend, does not forbid reasonable
classification. Such a policy decision having been formulated for the benefit
of the convicts themselves, as in terms of Section 433A of the Code of Criminal
Procedure, a convict does not have any constitutional or statutory right of
remission of sentence, cannot be held to be unconstitutional.
Mr. Vijay Hansaria, learned senior counsel appearing on behalf of the respondents,
on the other hand, would submit that the right to be considered for obtaining
remission itself is a fundamental right. According to the learned counsel, the
said policy decision, if taken into consideration in the backdrop of the
criminal case in which the respondents had been convicted, would lead to an
inference of hardship inasmuch as although they have been found to be guilty
for murder of more than one person, the same arose out of a land dispute, and
although not accepted by the Trial Court, a plea of self- defence was also
Mr. B. Malik, learned senior counsel appearing on behalf of some of the
respondents, supplemented the submissions of Mr. Hansaria stating that no
policy decision could be formulated in derogation of the Statutory Rules and in
any event, the said policy decision would have prospective operation and, thus,
would not apply in the fact of this case, as the respondents have been
convicted in the year 1988.
The State indisputably is entitled to take a prison policy as contra-
distinguished from a sentencing policy. The Prisons Act, 1894 was enacted to
amend the law relating to Prisons. Sub-section (5) of Section 59 thereof
empowers the State Government to make rules for the award of marks and
shortening of sentences. The State of Punjab, pursuant to the said power,
The Rules put the convicts into three categories. It also defines the term
'life convicts'. Whereas a classification had been made from amongst the
convicts having regard to the gravity of the offences committed by them,
indisputably no classification has been made on the basis of the number of
deaths which might have taken place at the hands of the persons. The State
apart from making the Statutory Rules, as noticed hereinbefore, had been
issuing executive instructions.
Section 432 of the Code of Criminal Procedure provides for power to suspend or
remit sentences. Section 433 provides for power to commute sentence. Section
433A, which was inserted in the Code of Criminal Procedure by Act No. 45 of
1978 and which came into force with effect from 18.12.1978, provides that
'notwithstanding anything contained in Section 432, no convict shall be
released from prison unless he has served at least 14 years of imprisonment
where a sentence of imprisonment for life has been imposed'.
may also notice Sections 54 and 55 of the Indian Penal Code which read as
- Commutation of sentence of death: In every case in which sentence of death
shall have been passed, the appropriate Government may, without the consent of
the offender, commute the punishment for any other punishment provided by this
Commutation of sentence of imprisonment for life: In every case in which
sentence of imprisonment for life shall have been passed, the appropriate
Government may, without the consent of the offender, commute the punishment for
imprisonment of either description for a term not exceeding fourteen
is true that no convict has a fundamental right of remission or shortening of
sentences. It is also true that the State in exercise of its executive power of
remission must consider each individual case keeping in view the relevant
factors. The power of the State to issue general instructions, so that no
discrimination is made, is also permissible in law.
The question, however, which would inter alia arise for consideration is as to
whether new policy decision adopted by the State of Haryana will have a
the point of time when the respondents were convicted, viz., in the year 1988,
for consideration of their cases for remission, the following conditions were
required to be fulfilled:
They should have undergone at least 8 = years of the substantive or actual
They should have also undergone 14 years of sentence including the period of
however, the same was subject to Section 433A of the Code of Criminal
Validity or otherwise of Section 433A of the Code of Criminal Procedure came up
for consideration before a Constitution Bench of this Court in Maru Ram v.
Union of India and Others [(1981) 1 SCC 107] wherein this Court inter alia
The major submissions which deserve high consideration may now be taken up.
They are three and important in their outcome in the prisoners' freedom from
behind bars. The first turns on the "prospectivity" (loosely so
called) or otherwise of Section 433-A. We have already held that Article 20(1)
is not violated but the present point is whether, on a correct construction,
those who have been convicted prior to the coming into force of Section 433-A
are bound by the mandatory limit.
such convicts are out of its coils their cases must be considered under the
remission schemes and "short-sentencing" laws. The second plea,
revolves round "pardon jurisprudence", if we may coarsely call it
that way, enshrined impregnably in Articles 72 and 161 and the effect of
Section 433-A thereon. The power to remit is a constitutional power and any
legislation must fail which seeks to curtail its scope and emasculate its
the exercise of this plenary power cannot be left to the fancy, frolic or frown
of Government, State or Central, but must embrace reason, relevance and
reformation, as all public power in a republic must. On this basis, we will
have to scrutinise and screen the survival value of the various remission
schemes and short-sentencing projects, not to test their supremacy over Section
433-A, but to train the wide and beneficent power to remit life sentences
without the hardship of fourteen fettered years."
regard to the first point, it was held that a person convicted before coming
into force of Section 433A of the Code of Criminal Procedure goes out of the
pale thereof and will enjoy the benefits as had accrued to him.
regard to the second point, it was held that Articles 72 and 161 of the
Constitution of India must yield to Section 433A of the Code of Criminal
Constitution Bench was of the opinion that remission schemes offer healthy
motivation for better behaviour, inner improvement and development of social fibre.
It was observed that remission and short sentencing scheme provides for good
guidelines for exercise of pardon power, a jurisdiction meant to be used as
often and as systematically as possible and not to be abused, much as the
temptation so to do may press upon the men of power.
was also opined:
Although the remission rules or short- sentencing provisions proprio vigore may
not apply as against Section 433-A, they will override Section 433-A if the
Government, Central or State, guides itself by the selfsame rules or schemes in
the exercise of its constitutional power. We regard it as fair that until fresh
rules are made in keeping with experience gathered, current social conditions
and accepted penological thinking a desirable step, in our view the present
remission and release schemes may usefully be taken as guidelines under
Articles 72/161 and orders for release passed. We cannot fault the Government,
if in some intractably savage delinquents, Section 433-A is itself treated as a
guideline for exercise of Articles 72/161. These observations of ours are
recommendatory to avoid a hiatus, but it is for Government, Central or State,
to decide whether and why the current Remission Rules should not survive until
replaced by a more wholesome scheme."
However, in Sadhu Singh and Others v. State of Punjab [(1984) 2 SCC 310],
although this Court noticed the aforementioned binding precedent in Maru Ram
(supra) without dwelling upon the question in depth, while interpreting the
provisions of paragraph 516-B of the Jail Manual, opined that the same does not
have the force of a statutory rule and, thus, it would be open to the State
Government to alter or amend or even withdraw such executive instruction
other words any existing executive instructions could be substituted by issuing
fresh executive instructions for processing the cases of lifers for premature
release but once issued these must be uniformly and invariably applied to all
cases of lifers so as to avoid the charge of discrimination under Article
contention that those convicts who had been sentenced to death but whose
sentence on mercy petitions has been commuted to life imprisonment will be
governed by the 1976 instructions was negatived.
Court, however, upheld the right of two convicts whose cases were entitled to
be considered for pre-mature release immediately in view of 1976 instructions.
Unfortunately, the attention of this court was not drawn to the relevant
paragraphs of the decision in Maru Ram(supra).
may notice that the question has been considered by this Court in State of
Punjab and Others v. Joginder Singh and Others [(1990) 2 SCC 661] wherein it
in such cases Section 433-A of the Code or the executive instruction of 1976
does not insist that the convict pass the remainder of his life in prison but
merely insists that he shall have served time for at least 14 years. In the
case of other 'lifers' the insistence under the 1971 amendment is that he
should have a period of at least 8 1/2 years of incarceration before release.
The 1976 amendment was possibly introduced to make the remission scheme
consistent with Section 433-A of the Code. Since Section 433-A is prospective,
so also would be the 1971 and 1976 amendments.
We, therefore, find it difficult to uphold the view taken by the High Court in
this behalf. We may make it clear that paragraph 516-B insofar as it stands
amended or modified by the 1971 and 1976 executive orders is prospective in
supplied] [See also State of Haryana and Another v. Ram Diya [(1990) 2 SCC 701
and Rajender and Others v. State of Haryana [(1995) 5 SCC 187].
right to be considered for remission, keeping in view the constitutional
safeguards of a convict under Articles 20 and 21 of the Constitution of India,
must be held to be a legal one. Such a legal right emanates from not only the
Prisons Act but also from the Rules framed thereunder. Although no convict can
be said to have any constitutional right for obtaining remission in his
sentence, he in view of the policy decision itself must be held to have a right
to be considered therefor.
by reason of a statutory rule or otherwise if a policy decision has been laid
down, the persons who come within the purview thereof are entitled to be
treated equally. [State of Mysore and
Another v. H. Srinivasmurthy (1976) 1 SCC 817] It is now well-settled that any
guidelines which do not have any statutory flavour are merely advisory in
nature. They cannot have the force of a statute. They are subservient to the
legislative act and the statutory rules. [See Maharao Sahib Shri Bhim Singhji
v. Union of India and Others (1981) 1 SCC 166, J.R. Raghupathy and Others v.
State of A.P. and Others (1988) 4 SCC 364 and Narendra Kumar Maheshwari v.
Union of India 1990 (Supp) SCC 440]
Whenever, thus, a policy decision is made, persons must be treated equally in terms
thereof. A' fortiori the policy decision applicable in such cases would be
which was prevailing at the time of his conviction. [See Commissioner of
Municipal Corporation, Shimla v. Prem Lata Sood and Ors., 2007 (7) SCALE 737]
Furthermore, if the Punjab Rules are applicable in the State of Haryana in view
of the State Reorganisation Act, no executive instruction would prevail over
the Statutory Rules. The Rules having defined 'convicts' in terms whereof a
'life convict' was entitled to have his case considered within the parameters
laid down therein, the same cannot be taken away by reason of an executive
instruction by redefining the term 'life convict'. It is one thing to say that
the 'life convict' has no right to obtain remission but it is another thing to
say that they do not have any right to be considered at all.
to be considered emanates from the State's own executive instructions as also
the Statutory Rules.
reliance, however, has been placed by Mr. Misra on Mohd. Munna v. Union of India and
Others [(2005) 7 SCC 417]. In that case, a writ petition was filed under
Article 32 of the Constitution of India by the appellant therein stating that
as he had undergone 21 years of imprisonment he should be set at liberty
forthwith having regard to the provisions of Clause 751(c) of the West Bengal
Jail Code and Section 6 of the West Bengal Correctional Services Act, 1992.
Claim for damages was also advanced. It was in that factual backdrop, this
The Prisons Rules are made under the Prisons Act and the Prisons Act by itself
does not confer any authority or power to commute or remit sentence. It only
provides for the regulation of the prisons and for the terms of the prisoners
confined therein. Therefore, the West Bengal Correctional Services Act or the
West Bengal Jail Code do not confer any special right on the petitioner
said decision, unfortunately, again Maru Ram(supra) was not considered. In any
event, the respondents had inter alia prayed for payment of damages.
Reliance was also placed by Mr. Misra on Epuru Sudhakar and Another v. Govt. of
A.P. and Others [(2006) 8 SCC 161]. Therein, a Division Bench opined:
Exercise of executive clemency is a matter of discretion and yet subject to
certain standards. It is not a matter of privilege. It is a matter of
performance of official duty. It is vested in the President or the Governor, as
the case may be, not for the benefit of the convict only, but for the welfare
of the people who may insist on the performance of the duty. This discretion,
therefore, has to be exercised on public considerations alone.
President and the Governor are the sole judges of the sufficiency of facts and
of the appropriateness of granting the pardons and reprieves. However, this
power is an enumerated power in the Constitution and its limitations, if any,
must be found in the Constitution itself.
the principle of exclusive cognizance would not apply when and if the decision
impugned is in derogation of a constitutional provision. This is the basic
working test to be applied while granting pardons, reprieves, remissions and
may not be any dispute with regard to the said proposition of law. But herein
we are concerned with the right of the respondents to be considered for
remission and not what should be the criteria when the matter is taken up for
are, therefore, of the opinion that the High Court might not be correct in
holding that the State has no power to make any classification at all. A
classification validly made would not offend Article 14 of the Constitution of
India. We, thus, although do not agree with all the reasonings of the High
Court, sustain the judgment for the reasons stated hereinbefore.
appears that during pendency of the Special Leave, Respondent Nos. 6 and 11
have already been directed to be released. No order, therefor, is required to
be passed in their case. So far as the cases of other respondents are
concerned, the same may be considered by the appropriate authority in the light
of the observations made hereinabove.
The appeals are dismissed with the aforementioned observations. In view of the
findings aforementioned, it is not necessary to pass any order in the contempt
matter. The contempt application is dismissed. No costs.