STATE OF PUNJAB Vs. JOGINDERSINGH:GURMAIL SINGH:AJIT SINGH:DHIR SINGH
LAWS(SC)-1990-3-62
SUPREME COURT OF INDIA (FROM: PUNJAB & HARYANA)
Decided on March 23,1990

STATE OF PUNJAB Appellant
VERSUS
AJIT SINGH,JOGINDERSINGH,GURMAIL SINGH,DHIR SINGH Respondents





Cited Judgements :-

P HANUMANTHAPPA VS. HOME SECRETARY STATE OF KARNATAKA [LAWS(KAR)-2006-12-17] [REFERRED TO]
GORI SHANKAR VS. STATE OF MADHYA PRADESH [LAWS(MPH)-2009-3-84] [REFERRED TO]
N RAJIAH VS. STATE [LAWS(MAD)-1997-2-72] [REFERRED TO]
PADMA VS. STATE OF TAMIL NADU [LAWS(MAD)-1998-3-120] [REFERRED]
PERIYALWAR VS. STATE OF TAMIL NADU [LAWS(MAD)-1999-10-15] [REFERRED TO]
JAIL REFORMS AND CONDITIONS FOR GRANTING PAROLE TO CONVICTS VS. STATE [LAWS(KER)-2006-10-68] [REFERRED TO]
STATE OF HARYANA VS. JAGDISH [LAWS(SC)-2010-3-9] [REFERRED TO]
BHAVANI SHANKAR KRIPALDAS MAHESHWARI VS. STATE OF GUJARAT [LAWS(GJH)-2000-2-32] [REFERRED TO]
MIRZA MOHAMMAD HUSAIN VS. STATE OF U P [LAWS(ALL)-2001-9-23] [REFERRED TO AND]
CHANDRIKA PRASAD VS. STATE OF U P [LAWS(ALL)-2002-8-126] [REFERRED TO]
GANESH DASS VS. STATE OF KERALA [LAWS(P&H)-1995-8-46] [REFERRED TO]
KAMESHWAR BELDAR VS. STATE OF BIHAR [LAWS(PAT)-2002-7-136] [REFERRED TO]
KASHMIR SINGH VS. STATE OF H.P. [LAWS(HPH)-2003-11-30] [REFERRED TO]
MAHENDER KAUSHIK AND ORS. VS. STATE OF DELHI [LAWS(DLH)-2015-11-241] [REFERRED TO]
GOVT OF ANDHRA PRADESH VS. M T KHAN [LAWS(SC)-2003-12-21] [REFERRED]
STATE OF HARYANA VS. MAHENDER SINGH [LAWS(SC)-2007-11-14] [REFERRED TO]
RAMRAJ ALIAS NANHOO ALIAS BIHNUN VS. STATE OF CHHATISGARH [LAWS(SC)-2009-12-43] [REFERRED TO]
BHOLESWAR SETHA VS. STATE [LAWS(ORI)-1993-3-9] [REFERRED TO]
GOVERNMENT OF TAMIL NADU SPECIAL SECRETARY TO GOVERNMENT VS. SUBRAMANIYAM [LAWS(MAD)-2010-11-375] [REFERRED TO]
S.A. MIYAJAN VS. UNION OF INDIA [LAWS(MAD)-2014-2-1] [REFERRED TO]
MUKUNDAN @ SURESH VS. STATE REP. BY PUBLIC PROSECUTOR, CBI, S.P.E. MADRAS AND THE SUPERINTENDENT OF CENTRAL PRISON, CENTRAL PRISON, MADRAS [LAWS(MAD)-1999-4-173] [REFERRED TO]
BHARAT VS. STATE OF CHHATTISGARH [LAWS(CHH)-2015-2-5] [REFERRED TO]
LAL DHAR AND OTHERS VS. STATE OF HIMACHAL PRADESH [LAWS(HPH)-1996-10-25] [REFERRED]
LAL SINGH @ MANJIT SINGH AND ORS VS. STATE OF GUJARAT AND OTHERS AND ORS [LAWS(P&H)-2012-8-620] [REFERRED]
LAL SINGH @ MANJIT SINGH AND ORS VS. STATE OF GUJARAT AND OTHERS AND ORS [LAWS(P&H)-2012-8-620] [REFERRED]
ATAUR MRIDHA @ ATAUR VS. STATE [LAWS(BANG)-2017-2-2] [REFERRED TO]
ARELLI ASHOKA BHAI VS. STATE OF TELANGANA [LAWS(TLNG)-2021-6-104] [REFERRED TO]


JUDGEMENT

- (1.)Special leave granted in all the above matters.
These appeals involve the interpretation of Paragraphs 516-B and 631 of the Manual for the Superintendent and Management of jails in the Punjab. The preface to the Manual shows that those paragraphs of the Manual against which a black line appears are, in substance, either quotations from the law, or from the Rules having the force of law, the authority having been indicated on the upper right hand margin of each paragraph whereas the paragraphs which have not been blacklined are executive instructions issued from time to time by the Government of India, or the Local Government or the Inspector General with the sanction and approval of the Local Government. It may at once be mentioned that paragraph 516-B contained in Chapter XV entitled 'Release of Prisoners' is not blacklined while paragraph 631 contained in Chapter XX entitled 'Remission System' is blacklined. The note in the upper right hand margin of paragraph 516-B refers to G of I Resolution No. 159-167 dated 6th September, 1905 and P.G. No. 18608 Jails dated 28th June, 1920. There is no dispute that this paragraph contains an executive instruction only. Paragraph 631 contains a note on the upper right hand margin referring to the G of 1 Resolution No. 161-172 of 2nd May, 1908 and P.G. Letter No. 1669-S (Home) of 31st July, 1908. At the foot of paragraph 631 is a 'Note' in small type with a right hand marginal note 'See para 516-B'. While there can be no controversy that paragraph 631 which is blacklined has statutory force, the question is whether the Note at the foot thereof, which is not blacklined, also has statutory force.

(2.)Paragraph 516-B provides that the case of every convicted prisoner (except females and males below 20 years at the date of the commission of the crime) sentenced to imprisonment for life or imprisonment agreegating to over 14 years and who has undergone a period of detention in Jail amounting, together with remission earned, to 14 years, 'shall be' submitted to the State Government, through the Inspector General of Prisons, for orders. In the case of female prisoners or prisoners who were below 20 years on the date of the commission of the crime, reference is required to be similarly made to the State Government on their completing a detention period of 10 years inclusive of remissions. Clause (v), however, provides that notwithstanding anything contained in the earlier part of the paragraph, a Superintendent of Jail 'may' in his discretion, refer at anytime, for the orders of the State Government, the case of any prisoner sentenced to imprisonment for life whose sentence might in the Superintendent's opinion be suitably commuted to a term of imprisonment. It would appear from a plain reading of this paragraph that in the case of a prisoner who has completed 14 years of detention in jail, inclusive of remissions earned, it is imperative on the part of the Superintendent of the Jail to submit his case, through the I.G. of Prisons, to the State Government for consideration. The use of the words shall be submitted' brings out this intention when we contrast them with the word 'may' and the words 'in his discretion' used in clause (v) thereto which begins with a nonobstante clause. Therefore, where the intention was to confer a mere discretion on the Superintent of Jail, it was made manifest by the use of the expression 'may' followed by the words 'in his discretion' and where the intention was to cast a duty to submit the case of the State Government, it was brought but by the word 'shall' preceding the words be submitted for the orders of the State Government'. We have, therefore, no doubt in our minds that paragraph 516-B, though an executive instruction, has been couched in language which clearly shows that in the former type of cases where the prisoner has completed 14 years of detention in jail, inclusive of remissions, his case must be referred to the State Government for consideration. Notwithstanding this limitation of completion of 14 years, clause (v) confers a discretion on the Superintendent of the jail to refer or submit the case of a prisoner to the State Government even before he has completed 14 years if in his opinion the case is fit for commuting the sentence.
(3.)Paragraph 631 is indisputably a statutory one as it is blacklined. But the blacklined portion of the paragraph merely defines certain expressions including the expression 'life convicts' which means a person whose sentence amounts to 20 years imprisonment. Then appears the Note which reads as follows :
"Note : The case of all life-convicts and of all prisoners sentenced to more than 14 years imprisonment or to transportation and imprisonment for terms exceeding in the aggregate 14 years shall, when the term of imprisonment undergone, together with any remission learned under the rules amounts to 10 or 14 years, as the case may be, submitted for the orders of the Local Government in accordance with the instructions contained in the Home Department Resolution No. 159-67 (Jails), dated the 6th September, 1905 (See para 516-B)."

It will be seen that the note merely reproduces the gist of paragraph 516-B. Even the right side marginal note says 'see para 516-B' and is based on the same Resolution of 6th September, 1905 on which paragraph 516-B 1st ,based. The note is not blacklined as in the case of the Note below paragraph 633. It was, therefore, urged that when paragraph 516-B is not blacklined, this note below paragraph 631, which too is not blacklined, cannot be construed to be statutory in character merely because paragraph 631 incorporates a statutory rule.

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