M.L.SINGHAL,J - (1.) THROUGH this criminal misc. petition filed under Section 482 of the Code of Criminal Procedure, read with Articles 226/227 of the Constitution of India, Baldev Singh has prayed for issuance of a direction to the respondents to release him pre-maturely as his further detention in jail is violative of Articles 14, 16, 19 and 21 of the Constitution of India. It is alleged that he was sentenced to imprisonment for life and a fine of Rs. 1,000/- by the learned Additional Sessions Judge, Hisar, vide order dated 27.3.1991, under Section 302/149 and further to undergo imprisonment for one year Section 449 of the Indian Penal Code and in default of payment of fine to undergo further rigorous imprisonment for six months.
(2.) THE appeal filed by the appellant against the order of sentence and conviction was dismissed by this court some time in October, 1992. He has all along been in custody since the date of his arrest and was never released on bail. He remained in jail as an under-trial for four months. He has been in jail since 26.3.1991. He has been granted remissions by the Government as well as by the Jail authorities to the tune of four years. His period of detention is thus 13 years 8 months and 10 days. After he was sentenced, he was granted parole and furlough on a number of occasions. He was always found to be of good conduct during the period of temporary release. He always surrendered in jail after the period of parole/furlough without any demur. It is alleged that he moved the authorities for the grant of mercy under Article 161 of the Constitution of India (copy Annexure P2). In the mercy petition, he enumerated various grounds warranting the grant of mercy to him. It is alleged that at the time of conviction, he was 68 years old. Now, he is 77/78 years old. He is not maintaining proper health. He is not in a capacity due to old age to commit any offence. He is incapable of looking after him in jail. It is alleged that he has spent almost 10 years (actual) in jail, after conviction. He is suffering from hypertension, diabetes, weak eye-sight and general weakness. To him, the instructions dated 4.2.1993 (Annexure P-3) issued by the Government are applicable so far as his pre-mature release is concerned. As per 1993 instructions, handicapped convict is entitled to the consideration of his case after he had undergone detention for a period of six years, provided the handicap is of such a nature so to render him totally incapable of committing any offence and further even looking after himself in the prison. The respondent-State of Haryana issued instructions dated 17.7.1997 (Annexure P-4) amending the previous instructions dated 4.2.1993. The amended instructions dated 17.7.1997 provided that the murder of a woman should be viewed as "heinous offence". Except this, there was no other change. The respondent-State of Haryana issued fresh instructions on 16.3.1999 (Annexure P-5) modifying the earlier instructions. As per instructions dated 16.3.1999 cases of adult life convicts who have been imprisoned for life and who have not committed "heinous offence" have been ordered to be considered after completion of 10 years actual sentence including under-trial period, after earning 4 years remissions or after completion of 14 years total sentence including under-trial period and remissions. As per instructions dated 4.2.1993, Superintendents of the Jails concerned shall submit cases of life convicts two months before they complete the sentence alongwith their comments to the Additional Director General/Inspector General of Prisons, Haryana, who will put up all such cases alongwith the recommendations for consideration before the State Level Committee. In the case of physically handicapped convicts, the responsibility is that of the Superintendent of Jail to arrange for medical examination by the Medical Board designated by the Government well in time and forward the medical report to the Additional Director General/Inspector General of Prisons, Haryana, who will place the matter before the State Level Committee alongwith his comments. It is also provided in the instructions dated 4.2.1993 that the Committee will meet once in three months according to the convenience of the Minister of Jails, so that the cases of review under the policy are not delayed. The Additional Director General/Inspector General of Prisons, Haryana is further required to forward copy of the decision taken by the State Level Committee to the Government within a week for further action. The cases are required to be put up to the Governor through the Minister for Jails and the Chief Minister with full background of the prisoners and the recommendations of the State Level Committee alongwith copy of the judgment etc., for orders under Article 161 of the Constitution of India. The grievance of the petitioner is that his case is covered under the instructions dated 4.2.1993 (Annexure P-3) as well as the instructions dated 16.3.1999 (Annexure P-5). However, the question of liberty of the petitioner has been taken in a very casual manner. He has prayed for the grant of pre-mature release under para 2(b) of the Instructions dated 4.2.1993, as he had become totally incapable of looking after himself in the prison on the date of filing of the petition. It is alleged that he has undergone detention of over six years, as provided in 1993 instructions. The conditions laid down for physically handicapped prisoners right from the year 1993 are the same till date and these have not been altered, modified or suspended. These are having the force of law. It is alleged that the Jail authorities have declared him "nakara." They are not putting him to any work. He is burden upon the jail authorities. The very fact that he has been declared "nakara" shows that he is totally incapable of committing any offence. As per instructions dated 16.3.1999 also he is required to undergo 10 years actual sentence or 14 years total sentence including under-trial period and remissions. Under Article 161 of the Constitution of India, Govt. has the power to lay down guide-lines despite the fact that Section 433-A of the Code of Criminal Procedure talks of minimum 14 years of actual sentence. In the case State v. Rama Nand and 9 others, the accused persons have committed four murders and injured 23 persons. 10 accused were sentenced for the murder of Atma Ram, Ganga Ram and Raju on three counts alongwith conviction under Sections 302/149 IPC and they were also sentenced to various terms of imprisonment under Sections 451/148/324/326 and 325 IPC. The occurrence in the said case took place on 23.6.1991 in the area of Police Station City, Panipat. Seven accused who were sentenced to imprisonment on three counts namely Rama Nand and others, were released immediately on the completion of ten years actual sentence. Their cases were considered under para 2(b) of the instructions dated 19.11.1991.
(3.) THE respondent-State of Haryana contested this petition urging that the petitioner is undergoing imprisonment for life under Section 302 of the Indian Penal Code. He cannot claim pre-mature release as a matter of right as sentence for life is sentence for the whole of the remaining period of life unless remitted by the State Government in exercise of the powers conferred by Articles 72/161 of the Constitution of India because the State Government has liberalised the policy regarding pre-mature release of the convicts and as such he cannot claim his release prematurely because it is only a concession given by the State Government after considering the behaviour of the convict inside the jail and the gravity of the offence and the manner and the circumstances under which the crime was committed. So far as the remission of the remaining portion of the sentence of the convict through a written order under Section 432 Cr.P.C. is concerned, he had earlier filed Criminal Misc. No. 26944-M of 1997 wherein he had prayed for directions to the State of Haryana to release him prematurely in view of Government instructions dated 4.2.1993. The said Criminal Misc. was dismissed by this Court on 31.3.1998. He has undergone 12 years one month and 20 days total sentence including under trial period and the remissions minus parole period as on 18.9.2000. The split up of the sentence is as under :- Years Months Days 1. Sentence undergone after conviction 09 05 21 2. Under-trial period 00 02 28 3. Actual sentence undergone 09 08 19 4. Remissions earned (+) 03 02 25 5. Parole availed (-) 00 09 6. Total sentence undergone including undertrial period and remissions minus parole 12 01 20 ;