- (1.) Present petition has been filed under Article 226 of the Constitution of India for issuance of a writ in the nature of habeas corpus praying that the petitioner is entitled to be released prematurely from the jail and his further detention by the jail authorities is violative of Article 21 of the Constitution of India.
(2.) The facts briefly can be culled out from the pleadings, i.e., the petition and the written statement filed by the State. Petitioner was nominated as an accused in case FIR No.142 dated 21.7.1974, registered at PS Shahkot, District Jalandhar under Sections 302, 307, 326, 148, 149 IPC. The court of Additional Sessions Judge, Jalandhar held the petitioner and his 17 co-accused guilty of offence under Section 304 Part I IPC and awarded 5 years RI. The petitioner was also sentenced under Section 307 IPC to 2 years RI and the sentences were ordered to run concurrently. A copy of the judgment and order order passed by the court of Additional Sessions Judge, Jalandhar is annexed as Annexure P-1. Aggrieved against the acquittal of the petitioner under Section 302 IPC, the state filed Crl. Appeal No.928 of 1975. The same was accepted qua the petitioner and the conviction under Section 304 Part I was converted to Section 302 IPC. The petitioner along with his co-accused Suchet Singh, Sukhdev Singh and Karnail Singh was sentenced to undergo life imprisonment. A perusal of Annexure P-3, warrant issued by the Chief Judicial Magistrate, Jalandhar, reveals that the appeals were decided by this Court on 31.1.1978. In para 4 of the petition, it has been stated that the petitioner till 26.5.2011 had undergone 16 years 8 months and 16 days sentence including remissions awarded. In reply filed, State of Punjab has accurately demonstrated the period of sentence undergone by reproducing the following chart:- Y M D Custody as under-trial 19.7.1974 to 23.3.1975 00 08 04 Custody after conviction 24.3.1975 to 28.11.77, 02 08 04 20.4.78 to 6.3.85 & 06 10 14 20.4.7926.4.11 to 12.10.11 00 05 16 Total period undergone 10 08 08 (-) less parole/interim bail period 00 04 20 Actual sentence undergone 10 03 18 (12.10.11) Earned Govt. & Jail remissions 07 04 23 Total 17 08 11 It is further pleaded that the petitioner was released from jail as per the terms and conditions laid down under Para 516-B of the Punjab Jail Manual. Para 516-B of the Punjab Jail Manual reads as under:- 516-B. Action to be taken on expiry of 14 years.- (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/s for life. (ii) Imprisonment/s for life and term/s of imprisonment. (iii) Cumulative periods of rigorous imprisonment aggregating to more than 14 years. (iv) A single sentence of more than 20 years :- (a) 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 Prison, Punjab for the orders of the State Government. Action to be taken on expiry of 10 years (b) The case of a female prisoner and of a male prisoner under 20 years of age at the time of commission of offence, who is undergone- (i)Imprisonment/s for life. (ii) Imprisonment/s for life and term/s of imprisonment. (iii) Cumulative period of rigorous imprisonment aggregating to more than 14 years. (iv) A single sentence of more than 20 years shall be submitted through the Inspector General of Prison, 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. (v) 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. Note: For the purposes of preparing the rolls of prisoners under the above rules sentence awarded to a prisoner for an offence committed while in prison or during suspension of sentence will not be taken into account. It is further stated that as per the policy prevailing at the relevant time, petitioner had to undergo only 8-1/2 years actual sentence and 14 years in total including period of remissions. It was further stated that the petitioner was not being released in the year 1984-85. The petitioner approached this Court and this Court issued directions to the State authorities to consider the case of the petitioner for premature release. He was released by this Court on bail to the satisfaction of Chief Judicial Magistrate, Kapurthala. The petitioner has sought refuge under the long pendency of the case and has stated that since 26 years have elapsed, neither the petition filed by him nor the orders passed by this Court and nor the orders whereby the petitioner was released on bail, are available with him. However, it is pleaded that the petitioner has now been taken into custody vide order dated 26.4.2011 in pursuance of a warrant of arrest issued by Chief Judicial Magistrate, Jalandhar.
(3.) Counsel for the petitioner further states that even though it is apparent from the stand taken by the State that petitioner has undergone 17 years 8 months and 11 days, he is entitled to be released from jail and his further detention is not warranted. In the reply filed by State of Punjab, in para 2 of the preliminary submissions, it has been stated that the entire record regarding the detention, and release of petitioner on bail is not available. It is further submitted therein that petitioner was not prematurely released but was released due to the bail orders passed by this Court. Para 2 of the reply reads as under:- 2. That the convict was released on bail from District Jail Kapurthala on dated 06.03.1985 vide order dated 04.03.1985 of the Hon'ble Court of Shri K.B. Singh Basu Chief Judicial Magistrate, Jalandhar not from the orders of Chief Judicial Magistrate, Kapurthala/ District Magistrate, Kapurthala as mentioned by the petitioner in his writ petition. As the petitioner was transferred from this Jail to District Jail Kapurthala on dated 19.08.84 and the entire record is sent along with the convict but, the Superintendent District Jail Kapurthala has not made available any record but an information has been sent vide letter no.719/ASW dated 12.10.11 that no record regarding the premature release and copy of bail order is available (Annexure R/T-1). Moreover, most of the record of Central Jail Jalandhar was burnt in arson incident happened in this Jail on dated 07.01.2008. After the close perusal of the petition reveals that petitioner presumes himself that he was prematurely released in 1985. The petitioner has not given the particulars of Criminal Writ Petition filed by him for premature release in 1984-85. As per the Jail Record he was not released prematurely and was released on bail. It is further stated that the petitioner is confined in jail after 26 years, his conduct shall be watched and thereafter on due consideration his case for premature release shall be considered.;