JAI SINGH SEKHON, J. - (1.) THE petitioner as per the written statement filed by, Respondent No. 1 had admittedly undergone 9 years, 2 months and 8 days of actual sentence including detention during trial by 17.10.1989 and he had earned remissions of more than 6 years. His conduct in the jail is stated to be good. The State Government has rejected his mercy petition vide order Annexure P. 7 dated 13.10.1989, which is reproduced below :- "Mercy petition case of life convict Gurbax Singh S/o Banta Singh has been considered by the Governor of Punjab and rejected.
(2.) I have heard the learned counsel for the parties besides perusing the record. No doubt, under Article 161 of the Constitution of India, the State Government is competent to commute or remit sentences and this power cannot ordinarily be subjected to judicial review, yet all the same if the State Government has laid down certain guidelines regarding the remission of sentences of convicts, then it should follow the same uniformly in similar circumstances as otherwise it will result in arbitrariness. There is no dispute that even after the insertion of section 433-A of the Code of Criminal Procedure, the State Government is competent to commute or remit sentences under Article 161 of the Constitution and in that regard could lay down guideliness for issuing instructions. The apex Court in Maru Ram v. Union of India, AIR 1980 S.C. 2147 after fully discussing the import of the provisions of section 433-A of the Code of Criminal Procedure had upheld the right of the State Government to lay down guidelines in the shape of instructions to deal with the mercy petitions of different prisoners in the matter of remission or commutation of sentences. The State of Punjab did issue such instructions from time to time which are appended as Annexure P. 1, P. 2 and P. 3 to the writ petition. The latest instructions on the point issued vide letter dated 12.12.1935 read as under :- "As the provisions of section 433-A of the Cr. P. C. are mandatory in nature no executive instructions to deal with premature release covered under the above said section of Cr. P. C. can be issued by the State Government. However, the mercy petitions submitted to the Governor of Punjab are to be examined by the State Level Committee and recommendations made to Government on the following considerations : 1. On ground of serious illness that could prove fatal due to continuous detention in jail. 2. Fixation of responsibility of a particular life convict in gang murder where others are also involved besides the convict who has submitted the mercy petition. 3. The aspect of young/adolescent age, sex, mental deficiency, grave or sudden provocation and absence of motive and premeditation should also be the factors while scrutinising the copies of the judgments in mercy petition cases. 4. The old age beyond 70 years can also be one of the factors to grant mercy. 5. On extreme compassionate grounds like no bread earner of the family and no support from different relations. This will, however, differ from individual to individual. 6. After introduction of section 433-A of Cr. P. C. w. e. f. 18. 2.1978 since every premature release case of a lifer convict will be taken up after he has completed 14 years actual sentence in a jail, a minimum period of 5/6 years for juvenile and women prisoners and 7-1/2 and 8-1/2 years for adult male prisoners can be taken as one of the guidelines for release on mercy petition. 7. Cases where subsequent to the announcement of the judgment new facts have come to light which if known to the court at the relevant time would have resulted in acquittal of convict and where the proceedings cannot be reopened according to law. A bare perusal of these instructions leaves no room for doubt that the State Government has laid down the above-referred guidelines for the concerned authorities for sponsoring the cases of premature release of different prisoners provided they had undergone 8-1/2 years of actual sentences and 14 years in all including remissions and their conduct in jail has been good. Of course, the other compassionate grounds mentioned in these instructions had also to be kept in view while initiating cases of premature release. Once the State Government has laid down such guidelines it was incumbent upon it to give reasons for withholding the concession of remission of sentences on the mercy petition because the possibility of arbitrariness on the part of the State Government cannot be ruled out in treating different prisoners differently under the same set of instructions and similar circumstances. Thus the observations of the apex Court in Kehar Singh and another v. Union of India and another, AIR 1989 S. C. 653 to the effect that the President is not required to give reasons for withholding the concession of commutation of sentence in mercy petitions are of no help to the respondent-State in this case, as the real controversy involved herein pertains to the factum whether the State had arbitrarily rejected the mercy petition of the petitioner for remission of sentences. On the other hand, a Division Bench of the Delhi High Court in Cr. P. No. 272 of 1985 (Bachan Singh v. State Delhi Admn.) decided on 27-5-1986, keeping in view the ratio of the decision of the Supreme Court in Late v. State of U.P., 1987 S.C.C. (Crl) 224, had held that if the prisoner had undergone more than 15 years of imprisonment including remissions, the State Government should in the normal course order his premature release unless there are very strong reasons for not doing so. The above referred view of the Delhi High Court was followed by a Single Bench of this Court in Darshan Singh v. State of Punjab and another, 1988(1) Recent Criminal Reports 472 as well as by another Single Bench of this Court in Khushal Singh v. State of Punjab and another, 1988(2) Recent Criminal Reports 163.
(3.) IN view of the above referred legal position, it transpires that the State Government has failed to give any cogent reason for withholding the concession of premature release to the petitioner as per the guidelines contained in its own instructions dated 12.12.1985. The petitioner is, therefore, directed to be released prematurely forthwith on furnishing usual bonds to the satisfaction of the District Magistrate, Patiala, by accepting this writ petition.;