J.M. Tandon, J.
1. Ram Saran petitioner was convicted Under Section 302, Penal Code, and sentenced to death by Additional Sessions Judge, Karnal on January 29, 1971. He had undergone 16 years, 1 month and 28 days sentence, including 5 years, 8 months and 27 days remissions as on July 21, 1982, when he was released on bail.
2. The petitioner filed Criminal Writ Petition in the Supreme Court seeking direction to the State authorities to consider his case for premature release and the same was disposed of vide order dated December 10, 1980 in accordance with the decision in Maru Ram v. Union of India (UOI) : 1980CriLJ1440 , The order passed by the Supreme Court (P. 2) reads :
The writ petitions above mentioned being called on for orders before this Court on 10th day of December, 1980, upon hearing counsel for the petitioners this Court doth make the following orders :
All of these writ petitions except Writ Petitions Nos. 1477 and 1478 of 1980 shall stand disposed of in accordance with the judgment of this Court dated November 11, 1980, in Maru Ram v. Union of India (UOI). All persons who were released on bail shall surrender to their sentence and the respective State Govt. 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 any particular case, orders of release have been passed prior to the introduction of Section 433A, Criminal Procedure Code, the accused need not surrender to their bail.
Writ Petitions Nos. 1477 and 1478 of 1980 will be decided and will be listed for hearing and disposal separately.
3. The State authorities called for the premature release case of the petitioner for consideration in July, 1981 and declined his premature release on the ground that he was bound to undergo 14 years substantive sentence. The petitioner has assailed this decision of the State authorities in the present writ and has sought direction that his premature release case be considered in terms of the policy decision of the Government dated November 28, 1977 (P. 3).
4. The Government have issued letter No. 43/15783-JJ(2) dated February 27, 1984 (P. 4) clarifying the earlier instructions dated November 28,1977 (P. 3) and reiterating their inapplicability to life convicts whose death sentence had been commuted to life imprisonment on their mercy petitions and that the premature release cases of such convicts shall continue to be considered in the light of the government's policy decision dated December 12,1967 making it obligatory for them to undergo 14 years substantive sentence. The petitioner has assailed the application for Annexure P. 4 as well to his case in the present writ petition.
5. Section 432, Cr.P.C. empowers the Government to suspend or remit sentences awarded to the convicts. Sub-section (1) of Section 432 reads :
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions of upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) to (5) xx xx xx
6. In 1978, Section 433A was added in Cr.P.C. imposing restriction on the power of remission or commutation in certain cases. This section reads :
Nowithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted Under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.
Their Lordships of the Supreme Court in Mam Ram's case 1980 Cri LJ 1440 (supra) held that Section 433A would apply only prospectively and it will not apply to cases where conviction has been recorded and sentence imposed before it was enacted. The petitioner in the instant case apprehending that the State authorities may take his case covered by Section 433A filed Criminal Writ Petition in the Supreme Court which was disposed of by order dated December 10, 1980 (P. 2).
7. The relevant part of paragraph 516-B of the Punjab Jail Manual which deals with the pre-mature release of life convicts reads :
516-B(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 :
(i) Imprisonment for life.
- - - -(iv) who 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 Government. - - - -
8. On December 12, 1967, the State of Haryana took the following decision in the matter of consideration for premature release of the life convicts whose death sentence has been commuted to life imprisonment :
(i) The adult male life After completion ofconvicts whose death 14 years of substantivesentence has been sentence.commuted to lifeimprisonment.(ii) The female and After completion ofjuvenile life convicts 10 years substantivewho were below 20 sentence.years of age at thetime of commission ofoffence and whose deathsentence has beencommuted to life imprisonment.
9. The government of Haryana issued instructions vide letter No. 7883-JJ-77/30099 dated November 28,1977 (P. 3) in connection with the premature release of prisoners sentenced to imprisonment of life and it reads :
The issue of liberalising the policy of premature release of prisoners has engaged the attention of the State Govt, for some time past. It has been decided that such cases may be reviewed by a State Level Committee which will comprise of the following members :
1. Hon'ble Minister for Jails. Chairman
2. Secretary Haryana Govt. Member Jails.
3. Legal Remembrancer, Member Haryana.
4. I.G. Prisons, Haryana. Member Secretary.
The concerned Superintendent Jails shall submit cases of life convicts two months before they complete 81/2 years substantive sentence and sentence of 14/10 years including remission along with his comments to the Inspector General of Prisons, Haryana. The I.G. Prisons Haryana will put up all such cases along with his recommendation for consideration before the Committee. The Committee will meet once a month according to the wishes of the Hon'ble Jails Minister, Haryana. The Inspector-General of Prisons Haryana will forward a copy of the decision taken by the State Level Committee along with the roll of each prisoner to Govt. within one week.
10. The Government of Punjab examined the question of premature release of life convicts whose death sentence has been commuted and it took a policy decision in January, 1976, that cases of such life convicts should be considered for premature release only after completion of 14 years of life imprisonment and in that connection Memo No. 403-6JJ-76/3456 dated January 30, 1976 containing the necessary instructions was issued. In Sadhu Singh v. State of Punjab : 1984CriLJ404 their Lordships considered the question of applicability of these instructions contained in Memo dated January 30, 1976, to cases of prisoners convicted earlier to that date. Their Lordships held that such cases will also be governed by 1976 instructions. The relevant observations made by their Lordships are :
The second contention also must fail in view of the admitted 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 not be governed by the 1976 instructions. Here also the view of the Punjab 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 case of life convicts falling within that category will be governed by those instructions.
11. In Criminal Writ Petn. No. 472 of 1983 decided on April 26, 1984, the question of applicability of instructions dated February 27,1984 (P. 4) to the life convicts whose death sentence had been commuted to life imprisonment before that date was considered by a learned single Judge and relying on the ratio of Maru Ram's case, (1980 Cri LJ 1440) (SC) (supra), it was held that these instructions are not retrospective in-nature and will not be applicable to the life convicts whose death sentence had been commuted to life imprisonment before the date of their issue (February 27, 1984). The ratio of the decision in Criminal Writ Petn. No. 472 of 1983 was followed in Criminal Writ Petn. No. 80 of 1984 decided on April 30, 1984 by another single Judge.
12. The learned Counsel for the petitioner has argued that Criminal Writ Petn. No. 472 of 1983 was correctly decided vide order dated April 26,1984 by following the decision of the Supreme Court in Maru Ram's case (supra) irrespective of the fact that it runs counter to the ratio of another decision of the Supreme Court in Sadhu Singh's case (1984 Cri LJ 404) (supra). The contention is without merit. In Maru Singh's case (supra), their Lordships of the Supreme Court did not consider the retrospective effect of the executive decision of the government in the matter of premature release of the life convicts. This point was directly considered by their Lordships in Sadhu Singh's case (supra). The view taken by this High Court that such executive decision would apply prospectively i.e. to cases wherein the conviction is recorded and sentence awarded after the date of its enforcement was reversed in Sadhu Singh's case (supra). With great respect for the learned Judges, the decision taken in Criminal Writ Petn. No. 472 of 1983 decided on April 26, 1984 and followed in Criminal Writ Petn. No. 80 of 1984 decided on April 30, 1984 being contrary to the view taken by their Lordships of the Supreme Court in Sadhu Singh's case (supra) are overruled. The decision of the Government in relation to the premature release of the life convicts shall apply also to cases in which the conviction has been recorded and sentence imposed before the date of its enforcement.
13. In the Criminal Writ Petition filed by the petitioner in the Supreme Court decided vide order dated December 10, 1980, (P. 2) the State Government was directed to pass appropriate order within six months. The appropriate order was required to be passed in connection with the premature release of the petitioner. The State Government did take up the premature release case of the petitioner in July, 1981, and deferred the consideration till the petitioner had undergone 14 years substantive sentence and 20 years including remissions. The averment made by the Inspector General of Prisons in his written statement on this point is as under :
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 undergone 14 years substantive sentence and 20 years sentence including remission. His jail conduct will be considered when he has completed 14 years substantive sentence and 20 years sentence including remission.
The case of the petitioner for premature release was required to be considered in pursuance of the direction of the Supreme Court in 1981. Even otherwise his case for premature release had ripened for consideration by the appropriate authorities. It was obligatory for the State Government to consider the case of the premature release in 1981 in accordance with the instructions then prevailing. In July, 1981, the State Government declined the consideration of the case of the petitioner for premature release on merits by invoking the non-existing condition of his undergoing 14 year substantive sentence for the reason that his death on sentence had been commuted to life imprisoment. Under these circumstances, it would be appropraite that the State Government should consider the case of the petitioner for premature release on merits without applying the condition of his undergoing14 years substantive sentence. In other words, the State Government should consider the case of the petitioner for premature release in accordance with the instructions on the subject in force in 1981. It is understood that in case the rigour of 14 years substantive sentence only stood against him for his premature release, then he will be entitled to be released forthwith.
14. In the result, the writ petition is allowed to the extent that the State Government shall consider the case of the petitioner for premature release in the light of the observations made above. The petitioner is on bail. He shall continue to remain on bail till his case for premature release is considered on merits by the competent authorities.
D.S. Tewatia, J.
15. I agree.