B.S.YADAV, J. - (1.) ACCORDING to the allegations in the petition, Harbant Singh was sentenced to death by the learned Additional Sessions Judge, Ludhiana vide his order dated 30.8.1968. It was confirmed by the High Court. The death sentence was commuted to imprisonment for life on Mercy Petition in the year 1969 on the occasion of Gandhi Jayanti. By this time, be has undergone 12 years 11 months and 14 days actual imprisonment, and has earned remissions of 11 years and thus, the total period he has undergone in 23 years 11 months and 4 days. In view of the Punjab Jail Manual, the convict was entitled to be considered for pre-mature release on the expiry of 14 years sentence, including the remissions. However, on 30.1.1976 the Punjab State issued instructions regarding pre-mature release of life convicts whose death sentence had been commuted on Mercy Petition. The Government took a decision that the said convicts must undergo 14 years actual imprisonment. Those instructions came up for interpretation in some criminal writ petitions before the High Court and it was held that those instructions were prospective in effect and those convicts whose death sentence was commuted on Mercy Petition and were convicted prior to the date of those instructions were not covered by them. One of such decisions was given in Criminal Writ Petition No. 215/1981. Aggrieved by that order, the State of Punjab filed an appeal in the Supreme Court, but the same was dismissed in limine on 8.4.1983. A copy of that order passed by the Supreme Court is annexed to this petition Annexure as P1. In spite of the said decision, the State of Punjab is bent upon to enforce 14 years actual imprisonment before the pre-mature release case such like convict is considered.
(2.) THE petitioner relying upon a decision of this court of Criminal Writ Petition No. 215 of 1981 (Mehar Singh v. State of Punjab and another), decided on 10th April, 1982, filed habeas corpus about the release of Harbant Singh convict. This Court directed the Government to decide the premature release case of the convict within a period of three weeks from 11.11.1982. While giving that direction, reliance was placed upon the judgment of the Supreme Court in Maru Ram v. Union of India, AIR 1980 SC 2147, Harbant Singh's premature release case was considered in the light of the order dated 11.11.1982, but was rejected. The only thing which weighed with the State was that the said convict had not completed 14 years of actual imprisonment. Except that factor, there was nothing against the convict. The petitioner again challenged that order of the State Government by filing a habeas corpus petition and it was decided on 23.2.1983. That petition was accepted on the ground that while dealing with the case of the detenu, no fresh reports were obtained from the District Level Committee. The State Government undertook that the premature release case of the convict would be decided within a period of two months after obtaining fresh reports. Bhagwant Singh has now filed the present habeas corpus petition. Under Articles 226/227 of the Constitution of India for the issuance of a writ in the nature of habeas corpus, holding that further detention of Harbant Singh is not based on sufficient ground and is violative of Articles 14, 19 and 21 of the Constitution of India. His case is that his case was considered on or before 23.4.1983 in the light of the order dated 23.2.1983 and that it was learnt that his case was considered and rejected for two years. He has further alleged that his conduct in the jail has been good and, therefore, the said order is bad. In the return filed on behalf of the respondents, the period which Harbant Singh has undergone is not much disputed. The plea taken is that the premature release case of the petitioner was considered on 29.4.1981, 26.11.1982, 4.2.1983 and 20.4.1983 and each time, it was not considered advisable to release him and on the last date, it was ordered that the case of detention be re-submitted to the Government for reconsideration after two years, along with fresh report of the District Level Committee. It was also pleaded that the executive powers of pardon/remissions available with the State Government under section 432 of the Code of Criminal Procedure, 1973 cannot be interfered with by any authority, as those powers are discretionary in nature and the State Government cannot be coerced to exercise those powers in favour of any particular prisoner/prisoners by means of litigation or otherwise. It was further alleged that in view of Maru Ram's case (supra), a life convict cannot claim his release as a matter of right and is required to serve and undergo his sentence, which is of indefinite duration, till his last breath, until and unless the Government decides to remit his sentence and release him earlier.
(3.) IT may be mentioned here that in the reply it is not mentioned that the conduct of the convict in jail has not remained good. The learned counsel for the petitioner has relied upon a judgment of this Court in Cr. Writ Petition No. 215 of 1981 (Mehar Singh v. State of Punjab and another), decided on April 10, 1982. In that case, as notice earlier, the instructions issued by the State Government on January 30, 1976, came up for interpretation. It was held :- "Mr. Brar says that even before the coming into force of section 433-A, Criminal Procedure Code, the case of the petitioner is to be considered in accordance with the instructions issued by the Government from time to time and that in the case of the convicts whose sentence was commuted imprisonment for life the premature release was considered only after they had actually undergone 14 years of actual imprisonment. The latest instructions which are relied upon by the State were issued on 10th January, 1976, but the petitioner was convicted earlier to that date. Thus, these instructions will also be not applicable in case of the petitioner on the same analogy as section 433-A of the Code of Criminal Procedure. Thus, in this view of the matter, it is directed that the State Government will consider the case of the petitioner for premature release within three months in accordance with the instructions prevalent at the time of the petitioner was convicted." In Baldev Raj v. Punjab State, 1983(1) C.L.R. 542 the view taken in Mehar Singh's case (supra) was followed. It was remarked :- "The learned counsel argued that the newly introduced policy of the State Government was challenged in Crl. Writ Petition No. 215 of 1981) Mehar Singh v. State of Punjab and another) decided on April 19, 1982. Therein the newly adopted instructions of the State Government on this subject were held not to have retrospective effect. This view was endorsed by another learned Judge of this Court in Crl. Writ Petition No. 363 of 1982 (Gurdev Singh v. State of Punjab) decided on November 23, 1982. I am in respectful agreement with the view taken in the aforementioned two cases because this view is in consonance with the spirit of Article 20 of the Constitution)". In Criminal Writ Petition 395 of 1982 (Wazir Singh v. State of Punjab), decided on 30th November, 1982 also the view taken in Mehar Singh's case (supra) was followed and it was held that the instructions dated 30th January 1976 would not be applicable to those cases where a person had been convicted prior to the issuance of those instructions and the convict was entitled to have his case of premature release considered by the State Government after he had undergone a period of fourteen year's imprisonment, including remissions in view of para 516-B of the Punjab Manual.;