S.S. Grewal, J. - (1.) THIS petition under Article 226/227 of the Constitution of India relates to the release of Harnek Singh detenu, as his detention is said to be violative of Articles 14, 19, 20 and 21 of the Constitution of India.
(2.) BRIEF facts relevant for the disposal of this petition, are, that Harnek Singh detenu after his arrest on 2nd November, 1979 was convicted and sentenced to undergo imprisonment for life on 9th June, 1980 by Sessions Judge, Faridkot. He has undergone detention for a period of 15 years 3 months and 23 days which includes 8 years 11 months and 8 days of actual sentence undergone (including undertrial period) and period of remissions to the extent of 7 years 1 month and 25 days. The detenu has been a convict -teacher for more than 5 years. He imparted education to a large number of convicts, and, also got Master's degree in English and Philosophy during the period he was undergoing sentence. He has availed of temporary release on parole and furlough 16 time, and, his conduct outside the jail was also good. The detenu moved his mercy petition under Article 161 of the Constitution of India on 15th February 1985 for remission of his unexpired sentence. The case of the detenu for his pre -mature release was recommended by 23 Panchayats, District Police. District Magistrate, Faridkot, Superintendent Central Jail, Patiala, Superintendent District Jail, Faridkot, Inspector General of Prisons. Punjab, and the Chief Minister. His case was finally submitted to the Governor on 29th September, 1986. However, the latter did not pass formal order for grant of premature release of the detenu, even though it was obligatory for the Governor to act upon the advice of the Chief Minister under Article 161 of the Constitution of India. Thereafter, the detenu filed Criminal Writ Petition No. 416 of 1987 in the High Court, which, - -vide its order dated 12th August, 1987 directed the State Government to decide the mercy petition of the detenu within a period of one month. The mercy petition was again declined and the information in this regard was sent to the detenu, - -vide letter dated 15th September, 1987 copy whereof is Annexure P -2, on the ground that there are no extenuating circumstances, or, compassionate grounds warranting the exercise of powers of mercy under Article 161 of the Constitution of India, and, consequential remission of the un -expired sentence. The State in its reply admitted that the detenu had been convicted on 9th June, 1980 under Section 302 I.P.C. and sentenced to undergo imprisonment for life. He was also convicted under Section 25/27 of the Arms Act. Upto 1st January, 1980 the detenu had already undergone actual sentence of imprisonment for a period of 9 years 4 months (including undertrial period of 7 months 7 days) as well as the period of remissions to the extent of 7 years 4 months and 20 days. It was pleaded that the mercy petition was rightly rejected under the orders of the Governor on 9th September, 1987, on the ground that the same could not be considered as the detenu had not undergone 7 1/2 years of sentence, and, at that time there was no elected Government in the State of Punjab. Counsel for the parties were heard.
(3.) IT was rightly submitted on behalf of the detenu that in view of the authority in Maru Ram v. Union of India, ATR 1980 S.C. 2147 the State Government can advise and act under Article 161, the Governor being bound by that advice. The action of commutation and release can thus be pursuant to a Governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. In the aforecited authority it was also held that, in the matter of exercise of the powers under Articles 72 and 161, the two highest dignitaries in our constitutional scheme, act, and must act not on their own judgment, but in accordance with the aid and advice of the Ministers. Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis -a -vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161.;