REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 171 OF 2016
(@ S.L.P. (Criminal) No. 7701 of 2012)
State of Gujarat & Anr. …Appellant(s)
Versus
Lal Singh @ Manjit Singh & Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, is directed against the
judgment and order dated August 23, 2012 passed by the High Court of Punjab
and Haryana at Chandigarh in Criminal Writ Petition No. 1620 of 2011
whereby the High Court entertaining the Writ Petition had opined that the
order dated 26.07.2011 passed by the Government of Gujarat declining to
grant the benefit of premature release to the first respondent herein is
illegal and further directed the State Government to reconsider his case
and take a fresh decision in the light of the discussions made in the
impugned order and further to release him on parole for a period of three
months on furnishing personal bond/security bond for a sum of Rs. 50,000/-
to the satisfaction of the concerned Jail Superintendent.
2. The facts which are essential to be stated are that the first
respondent along with 20 other accused was tried in TADA Cases Nos. 2, 7 of
1993 and 2 of 1994. The Designated Judge, Ahmedabad (Rural) at Mirzapur,
Ahmedabad convicted the first respondent and some others for the offences
punishable under Section 3(3) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short, “the TADA Act”) and sentenced to suffer
life imprisonment and to pay a fine of Rs. 10,000/- each and in default to
suffer RI for 6 months; under Section 120-B(1) IPC sentenced to suffer RI
for 10 years and to pay a fine of Rs. 5,000/- each, in default to suffer RI
for 3 months; under Section 5 of the TADA Act sentenced to suffer life
imprisonment and to pay a fine of Rs. 10,000/- and in default to suffer RI
for 6 months; under Section 5 of the Explosive Substances Act to pay a fine
of Rs. 5,000/- and in default to undergo RI for 3 months; under Section
25(1-A) of the Arms Act sentenced to suffer RI for 7 years and to pay a
fine of Rs. 5,000/- and, in default, to suffer RI for 3 months. Be it
stated, he was also convicted for the offence punishable under Section 3(3)
of the TADA Act read with Section 120-B IPC but no separate sentence was
awarded. All the sentences were directed to run concurrently.
3. The first respondent preferred Criminal Appeal No. 219 of 1997 and
the said appeal was heard along with the appeals preferred by other
convicts. This Court in Lal Singh v. State of Gujarat and another[1]
scrutinized the evidence in detail and ultimately dismissed the appeal
preferred by the first respondent and confirmed the conviction and the
sentence as imposed by the learned Judge, Designated Court.
4. During the pendency of the criminal appeal before this Court, the
first respondent sought transfer from the Central Prison, Ahmedabad to the
Central Prison, Jalandhar on the ground that his family is based in Punjab;
his old parents were suffering from number of ailments; and further the
financial condition of the family was precarious. Considering the reasons
ascribed in the representation, the State Government vide order dated
11.11.1998 consented to transfer the first respondent from Central Prison,
Ahmedabad to the Central Prison, Jalandhar. A condition was stipulated by
the State of Gujarat that tight security and proper police escort
arrangement was to be ensured.
5. The first respondent on 19.01.2004 sought premature release under
Section 432 of the Code of Criminal Procedure, 1973 (CrPC) on the ground
that he would complete 14 years of actual sentence in jail. His prayer
for premature release was considered by the competent authority of the
State of Gujarat which vide order dated 26.10.2006 considering the over all
aspects of the matter rejected the said application. The said order was
assailed in Criminal Writ Petition No. 505 of 2007 before the High Court of
Punjab and Haryana which vide order dated 25.08.2008 disposed of the Writ
Petition with the direction to the State of Gujarat to reconsider the case
of the first respondent for premature release considering the applicability
of Section 433 CrPC, Section 3 of the Transfer of Prisoner Act and the
decision in State of Haryana v. Mahender Singh[2].
6. Keeping in view the order passed by the High Court, the State
Government considered the prayer of the first respondent for premature
release on 06.03.2009 and considered all aspects that have to be taken note
of as per the direction of the High Court along with all other factors and
the decisions in U.T. Chandigarh v. Charanjit Kaur[3] and Laxman Naskar v.
State of West Bengal[4] and eventually rejected the application. The
grievance of rejection compelled the first respondent to prefer a Misc.
Criminal Application No. 6515 of 2009 before the Punjab and Haryana High
Court which was eventually withdrawn vide order dated 16.03.2009 wherein it
was observed that it was open to the said respondent to approach the
concerned authority. The order dated 06.03.2009 was again challenged in
Special Criminal Application No. 1274 of 2009 under Article 226 of the
Constitution of India which was dismissed by the High Court.
7. Remaining indefatigable the first respondent preferred Writ Petition
No. 677 of 2010 praying for a writ of habeas corpus on the ground that he
had already suffered requisite period of sentence and hence, he was
entitled to be released as per Sections 432, 433 and 433-A CrPC and para
431 of the New Punjab Jail Manual. A grievance was put forth that his
representation had not been considered by the State Government. On
20.04.2010, the High Court disposed of the matter directing the State
Government to pass a speaking order within a period of two months. Be it
stated, when the High Court passed the said order, it had not issued notice
to the State of Gujarat. However, regard being had to the direction issued
by the High Court, the competent authority took up the matter for
reconsideration and after obtaining the opinion from the appropriate
quarters as required under the manual, the State Government declined to
grant premature release to the first respondent vide order dated
30.12.2010. The said order was assailed before the High Court in Writ
Petition No. 158 of 2011 and the High Court vide judgment and order dated
25.05.2011 directed the State to reconsider the premature release taking
note of the actual sentence of 14 years and three months and more than 21
years including remission. The High Court had directed the first
respondent to be released on parole subject to certain conditions.
Pursuant to the order passed by the High Court, the State Government took
up the case for reconsideration and keeping in view the statutory
provisions of CrPC, Rule No. 1448 of the Bombay Jail Manual which governs
the State of Gujarat, the opinion of the advisory board and keeping in view
the number of cases the first respondent was really involved, the gravity
and nature of the crime and its impact on the society, it rejected the
proposal for release vide order dated 26.07.2011.
8. Being aggrieved by the aforesaid order, the first respondent invoked
the jurisdiction of the High Court under Article 226 of the Constitution of
India. It was contended on behalf of respondent No. 1 before the High
Court that provisions of Punjab Jail Manual, 1996 are applicable to him
since he had been transferred to the State of Punjab as per the Transfer of
Prisoners Act, 1950 and as there had been a recommendation by the competent
authority under the Punjab Jail Manual that he was entitled to the benefit
of the premature release but the same has been declined by the State of
Gujarat and hence, the whole action was arbitrary and illegal. It was also
urged that as per the Bombay Jail Manual which is applicable in State of
Gujarat, he was also entitled to premature release as he had already
undergone more than 14 years of sentence. It was also argued that refusal
to entertain the prayer for premature release was contrary to the concept
of Article 21 of the Constitution and, therefore, the order passed by the
State Government was non est in law.
9. The stand of the first respondent was controverted by the State of
Gujarat contending, inter alia, that the recommendations of the competent
authority under the Punjab Jail Manual are not binding on it which is the
sole authority to decide the matter relating to premature release; that the
High Court of Punjab and Haryana had no jurisdiction to issue a writ of
habeas corpus; that the factual background as depicted by the State do not
make out a case for premature release and, therefore, the Court should not
exercise its extra ordinary jurisdiction on the said score. It was also
contended that the first respondent having acceded to the earlier orders of
rejection by the High Court, was debarred from approaching the Court in
subsequent petitions.
10. The learned single Judge posed five questions for consideration. They
read as under:-
“i) Which is the appropriate Government empowered to consider the case of
premature release of the petitioner?
ii) Whether earlier dismissal of the petition for premature release by a
High Court operates as bar and estoppels to the filing of subsequent
petitions?
iii) Whether the High Court where prisoner is transferred has jurisdiction
to entertain the criminal writ petition?
iv) Whether non-release of a convict is worse sanction than the death
sentence, resultant encroachment upon the life and personal liberty by the
executive?
v) Whether order dated 26.07.2011 is subject to judicial review and is
arbitrary, whimsical and against the provisions of Article 21 of the
Constitution of India?”
11. Answering the first question, the High Court held that it is the
Government of Gujarat which is the appropriate Government for passing the
order with regard to premature release to the first respondent. Answering
the question No. 2, the High Court opined that dismissal of the earlier
petitions did not operate as a bar to file fresh petition nor do they
operate as estoppel when fresh cause of action arises. Dealing with the
third facet, the High Court opined that it had the jurisdiction to
entertain the Writ Petition keeping in view the ambit and scope under
Article 226 of the Constitution. While dealing with question No. 4, the
High Court referred to Universal Declaration of Human Rights, Article 21 of
the Constitution, the view expressed by this Court in Santa Singh v. State
of Punjab[5], Kuljeet Singh v. Lt. Governor of Delhi[6], Kehar Singh v.
Union of India[7], Mahender Singh (supra), Mohd. Munna v. Union of India
and others[8] and certain other authorities and came to hold thus:-
“In the light of the above discussions, facts and circumstances of the
cases in hand, the arguments of the counsel for the Government of Gujarat
that life imprisonment means natural life of the prisoner is against the
provisions of the Constitution and the International Human Rights Documents
and will amount to arbitrary exercise of power rejecting the premature
release of petitioners. I have no doubt that indeterminate life
imprisonment and non-release of a convict – prisoner is worse sanction
than the death sentence, resultant encroachment upon the life and personal
liberty by the executive. A barbaric crime does not have to be met with a
barbaric penalty which may upset the mental balance of a person who may
realize that he will never be out of prison. The reasonable determination
period of imprisonment with regard to offences where life imprisonment is
provided is a necessity and call for appropriate amendment for prescribing
determinate punishment keeping in view the gravity of the offence. This
Court feels that it is the primary obligation of the Legislature to carry
out necessary amendments in the cases where imprisonment for life is
provided to make aware the convict/prisoner how much period he has to
undergo in prison. Otherwise, the approach of reformative, rehabilitative
and corrective system will be only a futile exercise. Otherwise also, to
keep a prisoner behind bars is a financial burden on the State exchequer
and for that reason it is imperative to fix some determinate punishment by
making amendments.”
12. While adverting to the fifth issue, the High Court referred to the
decisions in Kehar Singh (supra), the Constitution Bench decision in Maru
Ram v. Union of India and others[9] and Swaran Singh v. State of U.P. and
others[10] and came to hold that the power of judicial review of the order
passed by the President or the Governor under Article 72 or Article 161 is
available on limited grounds. Thereafter the High Court opined that the
State of Gujarat while considering the representation of the first
respondent seeking premature release had not taken into consideration the
reports of the District Magistrate and the Senior Superintendent of Police,
Kapurthala as well as the Superintendent Maximum Security Jail, Nabha where
the first respondent was undergoing the sentence and no reason for
discarding such reports had been ascribed. The High Court further opined
that it is not recorded in the order how the Advisory Committee of Gujarat
has come to a conclusion for not recommending the case of premature release
of the first respondent. That apart, it has been observed that no
evidence or material had been placed before the Court to reject the
recommendations of the transferee State, that is, the Government of Punjab.
Thereafter, the learned single Judge proceeded to state thus:-
“… The petitioner more than 20 years had never been in the jurisdiction of
District Magistrate and District Superintendent of Police of the concerned
District of Gujarat, how their reports can outweigh the reports of the
transferee State. The absence of obligation to convey reason to the
petitioner for rejecting the recommendations of the State of Punjab where
the petitioner permanently resides does not mean that there should not be
legitimate and relevant reasons for passing order of rejection.
Furthermore, no such material has been placed on the paper book nor any
record has been shown to the Court which had formed the basis for rejecting
the claim of the petitioner. The obligation to supply reasons is entirely
different to apprise the Court about the reason for the action when the
same is challenged in Court…”
13. Eventually, the High Court directed to reconsider the first
respondent’s representation in the light of the discussion made in that
order and further to release him forthwith on parole for a period of three
months. The said order is the subject matter of assail in this appeal by
special leave.
14. We have heard Mr. D.N. Ray and Ms. Hemantika Wahi, learned counsel
for the State of Gujarat, Ms. Sunita Sharma, learned counsel for the first
respondent and Mr. V. Madhukar, learned Additional Advocate General for the
State of Punjab.
15. To appreciate the controversy specially in the backdrop of the
judgment delivered by the High Court, it is necessary to restate the law
pertaining to sentence of imprisonment for life and the concept of
remission as envisaged under CrPC.
16. In State of Madhya Pradesh v. Ratan Singh and others[11] a two-Judge
Bench speaking through Fazal Ali, J., after adverting to the decision in
Gopal Vinayak Godse v. State of Maharashtra[12] and other decisions and the
provisions of CrPC, has opined that that a sentence of imprisonment for
life does not automatically expire at the end of 20 years including the
remissions, because the administrative rules framed under the various Jail
Manuals or under the Prisons Act cannot supersede the statutory provisions
of the Indian Penal Code. A sentence of imprisonment for life means a
sentence for the entire life of the prisoner unless the appropriate
Government chooses to exercise its discretion to remit either the whole or
a part of the sentence under Section 401 of the Code of Criminal Procedure.
17. In Naib Singh s/o Makhan Singh v. State of Punjab and others[13] the
Court was dealing with a writ petition preferred under Article 32 of the
Constitution challenging the continued detention of the convict petitioner
in jail and seeking an order in the nature of habeas corpus claiming that
he had served more than the maximum sentence of imprisonment prescribed
under law and therefore he should be released. The petitioner therein was
convicted under Section 302 IPC and sentenced to death but on a mercy
petition preferred by him, his death sentence was commuted by the Governor
of Punjab to imprisonment for life. After serving rigorous imprisonment of
more than 22 years, a petition was filed seeking the release. The Court
referred to Sections 53 and 55 IPC and Section 433 CrPC., various decisions
of the High Court and then concept of transportation for life and
eventually held that it is well settled position in law that the sentence
of imprisonment for life has to be equated to rigorous imprisonment for
life and ultimately the claim of the petitioner to immediate release was
declined in the absence of any order of commutation being passed either
under Section 55 IPC or Section 433(b) CrPC.
18. In this regard, we may fruitfully refer to a two-Judge Bench decision
in Laxman Naskar (supra). In the said case, after referring to the earlier
decisions, the Court opined that though under the relevant Rules a sentence
for imprisonment for life is equated with the definite period of 20 years,
that is no indefeasible right of such prisoner to be unconditionally
released on the expiry of such a particular terms, including remissions
and that is only for the purpose of working out the remissions that the
said sentence is equated with definite period and not for any other
purpose. The Court proceeded to state thus:-
“… In view of this legal position explained by this Court it may not help
the petitioner even on the construction placed by the learned counsel for
the petitioner on Section 61(1) of the West Bengal Correctional Services
Act 32 of 1992 with reference to explanation thereto that for the purpose
of calculation of the total period of imprisonment under this section the
period of imprisonment for life shall be taken to be equivalent to the
period of imprisonment for 20 years. Therefore, solely on the basis of
completion of a term in jail serving imprisonment and remissions earned
under the relevant Rules or law will not entitle an automatic release, but
the appropriate Government must pass a separate order remitting the
unexpired portion of the sentence.”
19. It is essential to state here that while so stating the Court
adverted to the issue whether there had been due consideration of the case
of the petitioner by the Government. The Court took note of the fact that
earlier on the Court had directed the Government to reconsider the cases
for premature release of all life convicts who had approached the Court.
The Court took note of the fact that the Government had constituted a
Review Committee consisting of certain members, and enumerated the
guidelines issued earlier to form the basis on which a convict can be
released prematurely. The said guidelines read as under:-
“This Court also issued certain guidelines as to the basis on which a
convict can be released prematurely and they are as under:
“(i) Whether the offence is an individual act of crime without affecting
the society at large.
(ii) Whether there is any chance of future recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in committing crime.
(iv) Whether there is any fruitful purpose of confining this convict any
more.
(v) Socio-economic condition of the convict’s family.”
20. The Court analysed the reasons given by the Review Committee and
opined that the reasons given by the Government are palpably irrelevant or
devoid of substance and accordingly remitted the matter to the Government
again for examination in the light of what has been stated by the Court.
21. In Mohd. Munna (supra) a two-Judge Bench was dealing with a Writ
Petition wherein the prayer was made for issuance of a writ of habeas
corpus to set the petitioner at liberty on the ground that he had remained
in detention for more than 21 years. It was contended that the length of
the duration of imprisonment for life is equivalent to 20 years’
imprisonment and that too subject to further remission admissible under
law. The two-Judge Bench referred to various provisions of IPC, earlier
decisions in the field including K.M. Nanavati v. State of Maharashtra[14]
and Kishori Lal v. Emperor[15] and the law laid down in Gopal Vinayak
Godse (supra) and held that:-
“The Prisons Rules are made under the Prisons Act and the Prisons Act by
itself does not confer any authority or power to commute or remit sentence.
It only provides for the regulation of the prisons and for the terms of the
prisoners confined therein. …”
The Court further observed that the petitioner was not entitled to be
released on any of the grounds urged in the writ petition so long as there
was no order of remission passed by the appropriate Government in his
favour.
22. In Maru Ram (supra) the constitutional validity of Section 433-A CrPC
which had been brought in the statute book in the year 1978 was called in
question. Section 433-A CrPC imposed restrictions on powers of remission or
commutation in certain cases. It stipulates that where a sentence of
imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishments provided by laws, or where a
sentence of death imposed on a person has been commuted under Section 433
into one of imprisonment for life, such person shall not be released from
prison unless he has served at least fourteen years of imprisonment. The
majority in Maru Ram (supra) upheld the constitutional validity of the
provision. The Court distinguished the statutory exercise of power of
remission and exercise of power by the constitutional authorities under the
Constitution, that is, Articles 72 and 161. In that context, the Court
observed that the power which is the creature of the Code cannot be equated
with a high prerogative vested by the Constitution in the highest
functionaries of the Union and the States, for the source is different and
the substance is different. The Court observed that Section 433-A CrPC
cannot be invalidated as indirectly violative of Articles 72 and 161 of the
Constitution. Elaborating further, the majority spoke to the following
effect:-
“… Wide as the power of pardon, commutation and release (Articles 72 and
161) is, it cannot run riot; for no legal power can run unruly like John
Gilpin on the horse but must keep sensibly to a steady course. Here, we
come upon the second constitutional fundamental which underlies the
submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power. …”
23. In Kehar Singh (supra) the Constitution Bench opined that the power
to pardon is a part of the constitutional scheme and it should be so
treated in the Indian Republic. The Court further observed that it is a
constitutional responsibility of great significance, to be exercised when
occasion arises in accordance with the discretion contemplated by the
context. It has also been held that the power to pardon rests on the advice
tendered by the Executive to the President who, subject to the provisions
of Article 74(1), must act in accordance with the advice. Dealing with
the justiciability of exercise of power under Article 72, the Court after
due deliberation ruled that the question as to the area of the President’s
power under Article 72 falls squarely within the judicial domain and can be
examined by the court by way of judicial review. In this context, the
larger Bench ruled thus:-
“… The manner of consideration of the petition lies within the discretion
of the President, and it is for him to decide how best he can acquaint
himself with all the information that is necessary for its proper and
effective disposal. The President may consider sufficient the information
furnished before him in the first instance or he may send for further
material relevant to the issues which he considers pertinent, and he may,
if he considers it will assist him in treating with the petition, give an
oral hearing to the parties. The matter lies entirely within his
discretion. As regards the considerations to be applied by the President to
the petition, we need say nothing more as the law in this behalf has
already been laid down by this Court in Maru Ram (supra).”
24. In Swaran Singh (supra) a three-Judge Bench was called upon to deal
with the non-justiciability of an order passed by the President of India
under Article 72 of the Constitution or by the Governor of the State under
Article 161 thereof. The Court referred to the Constitution Bench
decision in Kehar Singh (supra) where the principles stated in Maru Ram
(supra) were followed and culled out the principles that in Kehar Singh
(supra) a point has been stressed to the effect that the power being of
the greatest moment, cannot be a law unto itself but it must be informed by
the finer canons of constitutionalism. The Court adverted to the facts of
the case and held thus:-
“In the present case, when the Governor was not posted with material facts
such as those indicated above, the Governor was apparently deprived of the
opportunity to exercise the powers in a fair and just manner. Conversely,
the order now impugned fringes on arbitrariness. What the Governor would
have ordered if he were apprised of the above facts and materials is not
for us to consider now because the Court cannot then go into the merits of
the grounds which persuaded the Governor in taking a decision in exercise
of the said power. Thus, when the order of the Governor impugned in these
proceedings is subject to judicial review within the strict parameters laid
down in Maru Ram case and reiterated in Kehar Singh case we feel that the
Governor shall reconsider the petition of Doodh Nath in the light of those
materials which he had no occasion to know earlier.”
25. In Bikas Chatterjee v. Union of India and others[16] the Constitution
Bench while dealing with the power of judicial review in respect of order
passed under Article 72 of the Constitution held that the powers are very
very limited. Relying on Maru Ram (supra), the Court observed that it is
only a case of no consideration or consideration based on wholly irrelevant
grounds or an irrational, discriminatory or mala fide decision of the
President which can provide ground for judicial review. Dealing with the
powers of the Governor, the Court referred to the authority in Satpal v.
State of Haryana[17] and opined that:-
“In a Division Bench decision of this Court in Satpal v. State of Haryana
(supra) these very grounds have been restated as: (i) the Governor
exercising the power under Article 161 himself without being advised by the
Government; or (ii) the Governor transgressing his jurisdiction; or (iii)
the Governor passing the order without application of mind; or (iv) the
Governor’s decision is based on some extraneous consideration; or (v) mala
fides. It is on these grounds that the Court may exercise its power of
judicial review in relation to an order of the Governor under Article 161,
or an order of the President under Article 72 of the Constitution, as the
case may be.”
Be it stated, the Court declined to entertain the writ petition on
the ground that there was no justification to assume that the President of
India had not applied his mind to all the relevant facts and accordingly
rejected the petition.
26. At this juncture, reference to a two-Judge Bench decision in Epuru
Sudhakar and another v. Govt. of A.P. and others[18] would be apposite. In
the said case, the convict was granted remission of the unexpired period of
sentence under Article 161 of the Constitution. The convict was granted
remission of unexpired period of about seven years imprisonment. The same
was challenged by the son of the deceased. The question of interference by
the Court arose for consideration. Arijit Pasayat, J. placed reliance on
the authority in Swaran Singh (supra) wherein Maru Ram (supra) and Kehar
Singh (supra) were referred to and dealt with and reiterated the view that
if the power is exercised in an arbitrary or malafide manner or in absolute
disregard of finer canons of constitutionalism, the order can be
scrutinized in exercise of power of judicial review and the judicial hands
can be stretched to it.
27. In the concurring opinion, S.H. Kapadia, J. (as His Lordship then was)
opined thus:-
“Exercise of executive clemency is a matter of discretion and yet subject
to certain standards. It is not a matter of privilege. It is a matter of
performance of official duty. It is vested in the President or the
Governor, as the case may be, not for the benefit of the convict only, but
for the welfare of the people who may insist on the performance of the
duty. This discretion, therefore, has to be exercised on public
considerations alone. The President and the Governor are the sole judges of
the sufficiency of facts and of the appropriateness of granting the pardons
and reprieves. However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the Constitution
itself. Therefore, the principle of exclusive cognizance would not apply
when and if the decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied while granting
pardons, reprieves, remissions and commutations.”
And, again:-
“… The Rule of Law is the basis for evaluation of all decisions. The
supreme quality of the Rule of Law is fairness and legal certainty. The
principle of legality occupies a central plan in the Rule of Law. Every
prerogative has to be subject to the Rule of Law. That rule cannot be
compromised on the grounds of political expediency. To go by such
considerations would be subversive of the fundamental principles of the
Rule of Law and it would amount to setting a dangerous precedent. The Rule
of Law principle comprises a requirement of “Government according to law”.
The ethos of “Government according to law” requires the prerogative to be
exercised in a manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive clemency is not
only for the benefit of the convict, but while exercising such a power the
President or the Governor, as the case may be, has to keep in mind the
effect of his decision on the family of the victims, the society as a whole
and the precedent it sets for the future.”
We respectfully concur with the aforesaid expression pertaining to
the constitutional norm and the concept of rule of law.
28. In this context, reference to Union of India v. V. Sriharan @ Murugan
& Ors[19] is quite seemly. The majority in the Constitution Bench referred
to the authority in Maru Ram (supra) and opined that constitutional power
of remission provided under Articles 72 and 161 of the Constitution will
always remain untouched, inasmuch as, though the statutory power of
remission, etc., as compared to constitutional power under Articles 72 and
161 looks similar, yet they are not the same. Be it stated, the Court was
dealing with imposition of sentence of life by fixing a period of 25 or 30
years without remission. The Court after analyzing various aspects held
that it is permissible and the law laid down in Swamy Shraddananda (2)
alias Murali Manohar Mishra v. State of Karnataka[20] deserved acceptance.
The Court referred to the decision in V. Sriharan alias Murugan v. Union of
India and others[21] wherein commuting the sentence of death into one of
life clearly laid down that such commutation was independent of the power
of remission under the Constitution as well as the statute. Elaborating the
proposition the Court while dealing with the power of remission in the
context of Article 21 of the Constitution, the majority said:-
“… It may also arise while considering wrongful exercise or perverted
exercise of power of remission by the Statutory or Constitutional
authority. Certainly there would have been no scope for this Court to
consider a case of claim for remission to be ordered under Article 32 of
the Constitution. In other words, it has been consistently held by this
Court that when it comes to the question of reviewing order of remission
passed which is patently illegal or fraught with stark illegality on
Constitutional violation or rejection of a claim for remission, without any
justification or colourful exercise of power, in either case by the
Executive Authority of the State, there may be scope for reviewing such
orders passed by adducing adequate reasons. Barring such exceptional
circumstances, this Court has noted in numerous occasions, the power of
remission always vests with the State Executive and this Court at best can
only give a direction to consider any claim for remission and cannot grant
any remission and provide for premature release. It was time and again
reiterated that the power of commutation exclusively rest with the
Appropriate Government. …”
29. After so stating the Court referred to series of judgments, analysed
the scope of constitutional provisions and the statutory provisions and
opined thus:-
“Therefore, it must be held that there is every scope and ambit for the
Appropriate Government to consider and grant remission under Sections 432
and 433 of the Code of Criminal Procedure even if such consideration was
earlier made and exercised under Article 72 by the President and under
Article 161 by the Governor. As far as the implication of Article 32 of the
Constitution by this Court is concerned, we have already held that the
power under Sections 432 and 433 is to be exercised by the Appropriate
Government statutorily, it is not for this Court to exercise the said power
and it is always left to be decided by the Appropriate Government, even if
someone approaches this Court under Article 32 of the Constitution. …”
30. In the said case, the question arose with regard to appropriate
Government in the context of Section 432(7) CrPC. The majority referred to
the authorities in Ratan Singh (supra), State of Madhya Pradesh v. Ajit
Singh and others[22], Hanumant Dass v. Vinay Kumar and others[23], Govt. of
A.P. and others v. M.T. Khan[24] and G.V. Ramanaiah v. The Superintendent
of Central Jail, Rajahmundry and others[25] and eventually held thus:-
“The status of Appropriate Government whether Union Government or the State
Government will depend upon the order of sentence passed by the Criminal
Court as has been stipulated in Section 432(6) and in the event of specific
Executive Power conferred on the Centre under a law made by the Parliament
or under the Constitution itself then in the event of the conviction and
sentence covered by the said law of the Parliament or the provisions of the
Constitution even if the Legislature of the State is also empowered to make
a law on the same subject and coextensive, the Appropriate Government will
be the Union Government having regard to the prescription contained in the
proviso to Article 73(1)(a) of the Constitution. The principle stated in
the decision in G.V. Ramanaiah (supra) should be applied. In other words,
cases which fall within the four corners of Section 432(7)(a) by virtue of
specific Executive Power conferred on the Centre, the same will clothe the
Union Government the primacy with the status of Appropriate Government.
Barring cases falling under Section 432(7)(a), in all other cases where the
offender is sentenced or the sentence order is passed within the
territorial jurisdiction of the concerned State, the State Government would
be the Appropriate Government.”
31. Be it stated, the aforesaid part forms a part of the conclusion. In
course of analysis, the Court has opined that when it comes to the question
of primacy to the Executive Power of the Union to the exclusion of the
Executive Power of the State, where the power is co-extensive, in the first
instance, it will have to be seen again whether, the sentence ordered by
the Criminal Court is found under any law relating to which the Executive
Power of the Union extends. In that context, the Court stated thus:-
“… In that respect, in our considered view, the first test should be
whether the offence for which the sentence was imposed was under a law with
respect to which the Executive Power of the Union extends. For instance, if
the sentence was imposed under TADA Act, as the said law pertains to the
Union Government, the Executive Power of the Union alone will apply to the
exclusion of the State Executive Power, in which case, there will be no
question of considering the application of the Executive Power of the
State.”
32. In the instant case, the High Court has opined that the State of
Gujarat is the appropriate Government. It is because it has been guided by
the principle that the first respondent was convicted and sentenced in the
State of Gujarat. As we find from the discussion, there has been no
reference to the authority in G.V. Ramanaiah (supra). That apart, the issue
was not raised before the High Court. The most important thing is that the
High Court has referred to, as has been indicated earlier, many aspects of
human rights and individual liberty and, if we allow ourselves to say so,
the whole discussion is in the realm of abstractions. The Court has not
found that the order passed by the State of Gujarat was bereft of
appropriate consideration of necessary facts or there has been violation of
principles of equality. The High Court has not noticed that the order is
bereft of reason. It has been clearly stated in the impugned order that the
convict was involved in disruptive activities, criminal conspiracy,
smuggling of arms, ammunitions and explosives and further he had also been
involved in various other activities. It has also been mentioned that the
prisoner under disguise of common name used to purchase vehicles for
transportation and his conduct showed that he had wide spread network to
cause harm and create disturbance to National Security. Because of the
aforesaid reasons remission was declined. In such a fact situation, the
view expressed by the High Court to consider the case on the basis of the
observations made by it in the judgment is not correct.
33. So far as direction for grant of parole is concerned, we find that
the learned Judge has directed parole to be granted for three months
forthwith. In Sunil Fulchand Shah v. Union of India and others[26] the
Constitution Bench while dealing with the grant of temporary release or
parole under Section 12(1) and Section 12(1-A) of the Conversation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA
Act) had observed that the exercise of the said power is administrative in
character but it does not affect the power of the High Court under Article
226 of the Constitution. However, the constitutional court before
directing the temporary release where the request is made to be released on
parole for a specified reason and for a specified period should form an
opinion that request has been unjustifiably refused or where the interest
of justice warranted for issue of such order of temporary release. The
Court further ruled that jurisdiction has to be sparingly exercised by the
Court and even when it is exercised, it is appropriate that the Court
should leave it to the administrative or jail authorities to prescribe the
conditions and terms on which parole is to be availed of by the detenu.
34. We have referred to the aforesaid authority only to highlight the
view expressed by the Constitution Bench with regard to grant of parole.
The impugned order, as we notice, is gloriously silent and, in fact, an
abrupt direction has been issued to release the first respondent on parole
for a period of three months. It is well settled in law that a Judge is
expected to act in consonance and accord with the legal principles. He
cannot assume the power on the basis of his individual perception or
notion. He may consider himself as a candle of hope but application of the
said principle in all circumstances is not correct because it may have the
effect potentiality to affect the society. While using the power he has to
bear in mind that “discipline” and “restriction” are the two basic golden
virtues within which a Judge functions. He may be one who would like to
sing the song of liberty and glorify the same abandoning passivity, but his
solemn pledge has to remain embedded to constitution and the laws. There
can be deviation.
35. Consequently, the appeal is allowed and the impugned judgment and
order of the High Court is set aside and liberty is granted to the first
respondent to submit a representation/application before the competent
authority of the Union of India within a period of eight weeks and the
authority shall consider the same as expeditiously as possible in
accordance with law and the guidelines framed for premature release.
...............................J.
[Dipak Misra]
...............................J.
New Delhi; [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1]
[2] (2001) 3 SCC 221
[3]
[4] 2007 (4) RCR (Criminal) 909 : (2007) 13 SCC 606
[5]
[6] JT 1996 (3) SC 30 : 1996 (7) SCC 492
[7]
[8] AIR 2000 SC 2762 : (2000) 7 SCC 626
[9]
[10] AIR 1976 SC 2386 : (1976) 4 SCC 190
[11]
[12] 1982 (1) SCC 417
[13]
[14] 1989 (1) SCC 204
[15]
[16] (2005) 7 SCC 417
[17]
[18] 1981 (1) SCC 107
[19]
[20] 1998 (4) SCC 75
[21]
[22] (1976) 3 SCC 470
[23]
[24] (1961) 3 SCR 440 : AIR 1961 SC 600
[25]
[26] (1983) 2 SCC 454
[27]
[28] 1962 Supp (1) SCR 567 : AIR 1962 SC 605
[29]
[30] AIR 1945 PC 64
[31]
[32] (2004) 7 SCC 634
[33]
[34] (2000) 5 SCC 170
[35]
[36] (2006) 8 SCC 161
[37]
[38] 2015 (13) SCALE 165
[39]
[40] (2008) 13 SCC 767
[41]
[42] (2014) 4 SCC 242
[43]
[44] (1976) 3 SCC 616
[45]
[46] (1982) 2 SCC 177
[47]
[48] (2004) 1 SCC 616
[49]
[50] AIR 1974 SC 31 : (1974) 3 SCC 531
[51]
[52] (2000) 3 SCC 409
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 171 OF 2016
(@ S.L.P. (Criminal) No. 7701 of 2012)
State of Gujarat & Anr. …Appellant(s)
Versus
Lal Singh @ Manjit Singh & Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, is directed against the
judgment and order dated August 23, 2012 passed by the High Court of Punjab
and Haryana at Chandigarh in Criminal Writ Petition No. 1620 of 2011
whereby the High Court entertaining the Writ Petition had opined that the
order dated 26.07.2011 passed by the Government of Gujarat declining to
grant the benefit of premature release to the first respondent herein is
illegal and further directed the State Government to reconsider his case
and take a fresh decision in the light of the discussions made in the
impugned order and further to release him on parole for a period of three
months on furnishing personal bond/security bond for a sum of Rs. 50,000/-
to the satisfaction of the concerned Jail Superintendent.
2. The facts which are essential to be stated are that the first
respondent along with 20 other accused was tried in TADA Cases Nos. 2, 7 of
1993 and 2 of 1994. The Designated Judge, Ahmedabad (Rural) at Mirzapur,
Ahmedabad convicted the first respondent and some others for the offences
punishable under Section 3(3) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (for short, “the TADA Act”) and sentenced to suffer
life imprisonment and to pay a fine of Rs. 10,000/- each and in default to
suffer RI for 6 months; under Section 120-B(1) IPC sentenced to suffer RI
for 10 years and to pay a fine of Rs. 5,000/- each, in default to suffer RI
for 3 months; under Section 5 of the TADA Act sentenced to suffer life
imprisonment and to pay a fine of Rs. 10,000/- and in default to suffer RI
for 6 months; under Section 5 of the Explosive Substances Act to pay a fine
of Rs. 5,000/- and in default to undergo RI for 3 months; under Section
25(1-A) of the Arms Act sentenced to suffer RI for 7 years and to pay a
fine of Rs. 5,000/- and, in default, to suffer RI for 3 months. Be it
stated, he was also convicted for the offence punishable under Section 3(3)
of the TADA Act read with Section 120-B IPC but no separate sentence was
awarded. All the sentences were directed to run concurrently.
3. The first respondent preferred Criminal Appeal No. 219 of 1997 and
the said appeal was heard along with the appeals preferred by other
convicts. This Court in Lal Singh v. State of Gujarat and another[1]
scrutinized the evidence in detail and ultimately dismissed the appeal
preferred by the first respondent and confirmed the conviction and the
sentence as imposed by the learned Judge, Designated Court.
4. During the pendency of the criminal appeal before this Court, the
first respondent sought transfer from the Central Prison, Ahmedabad to the
Central Prison, Jalandhar on the ground that his family is based in Punjab;
his old parents were suffering from number of ailments; and further the
financial condition of the family was precarious. Considering the reasons
ascribed in the representation, the State Government vide order dated
11.11.1998 consented to transfer the first respondent from Central Prison,
Ahmedabad to the Central Prison, Jalandhar. A condition was stipulated by
the State of Gujarat that tight security and proper police escort
arrangement was to be ensured.
5. The first respondent on 19.01.2004 sought premature release under
Section 432 of the Code of Criminal Procedure, 1973 (CrPC) on the ground
that he would complete 14 years of actual sentence in jail. His prayer
for premature release was considered by the competent authority of the
State of Gujarat which vide order dated 26.10.2006 considering the over all
aspects of the matter rejected the said application. The said order was
assailed in Criminal Writ Petition No. 505 of 2007 before the High Court of
Punjab and Haryana which vide order dated 25.08.2008 disposed of the Writ
Petition with the direction to the State of Gujarat to reconsider the case
of the first respondent for premature release considering the applicability
of Section 433 CrPC, Section 3 of the Transfer of Prisoner Act and the
decision in State of Haryana v. Mahender Singh[2].
6. Keeping in view the order passed by the High Court, the State
Government considered the prayer of the first respondent for premature
release on 06.03.2009 and considered all aspects that have to be taken note
of as per the direction of the High Court along with all other factors and
the decisions in U.T. Chandigarh v. Charanjit Kaur[3] and Laxman Naskar v.
State of West Bengal[4] and eventually rejected the application. The
grievance of rejection compelled the first respondent to prefer a Misc.
Criminal Application No. 6515 of 2009 before the Punjab and Haryana High
Court which was eventually withdrawn vide order dated 16.03.2009 wherein it
was observed that it was open to the said respondent to approach the
concerned authority. The order dated 06.03.2009 was again challenged in
Special Criminal Application No. 1274 of 2009 under Article 226 of the
Constitution of India which was dismissed by the High Court.
7. Remaining indefatigable the first respondent preferred Writ Petition
No. 677 of 2010 praying for a writ of habeas corpus on the ground that he
had already suffered requisite period of sentence and hence, he was
entitled to be released as per Sections 432, 433 and 433-A CrPC and para
431 of the New Punjab Jail Manual. A grievance was put forth that his
representation had not been considered by the State Government. On
20.04.2010, the High Court disposed of the matter directing the State
Government to pass a speaking order within a period of two months. Be it
stated, when the High Court passed the said order, it had not issued notice
to the State of Gujarat. However, regard being had to the direction issued
by the High Court, the competent authority took up the matter for
reconsideration and after obtaining the opinion from the appropriate
quarters as required under the manual, the State Government declined to
grant premature release to the first respondent vide order dated
30.12.2010. The said order was assailed before the High Court in Writ
Petition No. 158 of 2011 and the High Court vide judgment and order dated
25.05.2011 directed the State to reconsider the premature release taking
note of the actual sentence of 14 years and three months and more than 21
years including remission. The High Court had directed the first
respondent to be released on parole subject to certain conditions.
Pursuant to the order passed by the High Court, the State Government took
up the case for reconsideration and keeping in view the statutory
provisions of CrPC, Rule No. 1448 of the Bombay Jail Manual which governs
the State of Gujarat, the opinion of the advisory board and keeping in view
the number of cases the first respondent was really involved, the gravity
and nature of the crime and its impact on the society, it rejected the
proposal for release vide order dated 26.07.2011.
8. Being aggrieved by the aforesaid order, the first respondent invoked
the jurisdiction of the High Court under Article 226 of the Constitution of
India. It was contended on behalf of respondent No. 1 before the High
Court that provisions of Punjab Jail Manual, 1996 are applicable to him
since he had been transferred to the State of Punjab as per the Transfer of
Prisoners Act, 1950 and as there had been a recommendation by the competent
authority under the Punjab Jail Manual that he was entitled to the benefit
of the premature release but the same has been declined by the State of
Gujarat and hence, the whole action was arbitrary and illegal. It was also
urged that as per the Bombay Jail Manual which is applicable in State of
Gujarat, he was also entitled to premature release as he had already
undergone more than 14 years of sentence. It was also argued that refusal
to entertain the prayer for premature release was contrary to the concept
of Article 21 of the Constitution and, therefore, the order passed by the
State Government was non est in law.
9. The stand of the first respondent was controverted by the State of
Gujarat contending, inter alia, that the recommendations of the competent
authority under the Punjab Jail Manual are not binding on it which is the
sole authority to decide the matter relating to premature release; that the
High Court of Punjab and Haryana had no jurisdiction to issue a writ of
habeas corpus; that the factual background as depicted by the State do not
make out a case for premature release and, therefore, the Court should not
exercise its extra ordinary jurisdiction on the said score. It was also
contended that the first respondent having acceded to the earlier orders of
rejection by the High Court, was debarred from approaching the Court in
subsequent petitions.
10. The learned single Judge posed five questions for consideration. They
read as under:-
“i) Which is the appropriate Government empowered to consider the case of
premature release of the petitioner?
ii) Whether earlier dismissal of the petition for premature release by a
High Court operates as bar and estoppels to the filing of subsequent
petitions?
iii) Whether the High Court where prisoner is transferred has jurisdiction
to entertain the criminal writ petition?
iv) Whether non-release of a convict is worse sanction than the death
sentence, resultant encroachment upon the life and personal liberty by the
executive?
v) Whether order dated 26.07.2011 is subject to judicial review and is
arbitrary, whimsical and against the provisions of Article 21 of the
Constitution of India?”
11. Answering the first question, the High Court held that it is the
Government of Gujarat which is the appropriate Government for passing the
order with regard to premature release to the first respondent. Answering
the question No. 2, the High Court opined that dismissal of the earlier
petitions did not operate as a bar to file fresh petition nor do they
operate as estoppel when fresh cause of action arises. Dealing with the
third facet, the High Court opined that it had the jurisdiction to
entertain the Writ Petition keeping in view the ambit and scope under
Article 226 of the Constitution. While dealing with question No. 4, the
High Court referred to Universal Declaration of Human Rights, Article 21 of
the Constitution, the view expressed by this Court in Santa Singh v. State
of Punjab[5], Kuljeet Singh v. Lt. Governor of Delhi[6], Kehar Singh v.
Union of India[7], Mahender Singh (supra), Mohd. Munna v. Union of India
and others[8] and certain other authorities and came to hold thus:-
“In the light of the above discussions, facts and circumstances of the
cases in hand, the arguments of the counsel for the Government of Gujarat
that life imprisonment means natural life of the prisoner is against the
provisions of the Constitution and the International Human Rights Documents
and will amount to arbitrary exercise of power rejecting the premature
release of petitioners. I have no doubt that indeterminate life
imprisonment and non-release of a convict – prisoner is worse sanction
than the death sentence, resultant encroachment upon the life and personal
liberty by the executive. A barbaric crime does not have to be met with a
barbaric penalty which may upset the mental balance of a person who may
realize that he will never be out of prison. The reasonable determination
period of imprisonment with regard to offences where life imprisonment is
provided is a necessity and call for appropriate amendment for prescribing
determinate punishment keeping in view the gravity of the offence. This
Court feels that it is the primary obligation of the Legislature to carry
out necessary amendments in the cases where imprisonment for life is
provided to make aware the convict/prisoner how much period he has to
undergo in prison. Otherwise, the approach of reformative, rehabilitative
and corrective system will be only a futile exercise. Otherwise also, to
keep a prisoner behind bars is a financial burden on the State exchequer
and for that reason it is imperative to fix some determinate punishment by
making amendments.”
12. While adverting to the fifth issue, the High Court referred to the
decisions in Kehar Singh (supra), the Constitution Bench decision in Maru
Ram v. Union of India and others[9] and Swaran Singh v. State of U.P. and
others[10] and came to hold that the power of judicial review of the order
passed by the President or the Governor under Article 72 or Article 161 is
available on limited grounds. Thereafter the High Court opined that the
State of Gujarat while considering the representation of the first
respondent seeking premature release had not taken into consideration the
reports of the District Magistrate and the Senior Superintendent of Police,
Kapurthala as well as the Superintendent Maximum Security Jail, Nabha where
the first respondent was undergoing the sentence and no reason for
discarding such reports had been ascribed. The High Court further opined
that it is not recorded in the order how the Advisory Committee of Gujarat
has come to a conclusion for not recommending the case of premature release
of the first respondent. That apart, it has been observed that no
evidence or material had been placed before the Court to reject the
recommendations of the transferee State, that is, the Government of Punjab.
Thereafter, the learned single Judge proceeded to state thus:-
“… The petitioner more than 20 years had never been in the jurisdiction of
District Magistrate and District Superintendent of Police of the concerned
District of Gujarat, how their reports can outweigh the reports of the
transferee State. The absence of obligation to convey reason to the
petitioner for rejecting the recommendations of the State of Punjab where
the petitioner permanently resides does not mean that there should not be
legitimate and relevant reasons for passing order of rejection.
Furthermore, no such material has been placed on the paper book nor any
record has been shown to the Court which had formed the basis for rejecting
the claim of the petitioner. The obligation to supply reasons is entirely
different to apprise the Court about the reason for the action when the
same is challenged in Court…”
13. Eventually, the High Court directed to reconsider the first
respondent’s representation in the light of the discussion made in that
order and further to release him forthwith on parole for a period of three
months. The said order is the subject matter of assail in this appeal by
special leave.
14. We have heard Mr. D.N. Ray and Ms. Hemantika Wahi, learned counsel
for the State of Gujarat, Ms. Sunita Sharma, learned counsel for the first
respondent and Mr. V. Madhukar, learned Additional Advocate General for the
State of Punjab.
15. To appreciate the controversy specially in the backdrop of the
judgment delivered by the High Court, it is necessary to restate the law
pertaining to sentence of imprisonment for life and the concept of
remission as envisaged under CrPC.
16. In State of Madhya Pradesh v. Ratan Singh and others[11] a two-Judge
Bench speaking through Fazal Ali, J., after adverting to the decision in
Gopal Vinayak Godse v. State of Maharashtra[12] and other decisions and the
provisions of CrPC, has opined that that a sentence of imprisonment for
life does not automatically expire at the end of 20 years including the
remissions, because the administrative rules framed under the various Jail
Manuals or under the Prisons Act cannot supersede the statutory provisions
of the Indian Penal Code. A sentence of imprisonment for life means a
sentence for the entire life of the prisoner unless the appropriate
Government chooses to exercise its discretion to remit either the whole or
a part of the sentence under Section 401 of the Code of Criminal Procedure.
17. In Naib Singh s/o Makhan Singh v. State of Punjab and others[13] the
Court was dealing with a writ petition preferred under Article 32 of the
Constitution challenging the continued detention of the convict petitioner
in jail and seeking an order in the nature of habeas corpus claiming that
he had served more than the maximum sentence of imprisonment prescribed
under law and therefore he should be released. The petitioner therein was
convicted under Section 302 IPC and sentenced to death but on a mercy
petition preferred by him, his death sentence was commuted by the Governor
of Punjab to imprisonment for life. After serving rigorous imprisonment of
more than 22 years, a petition was filed seeking the release. The Court
referred to Sections 53 and 55 IPC and Section 433 CrPC., various decisions
of the High Court and then concept of transportation for life and
eventually held that it is well settled position in law that the sentence
of imprisonment for life has to be equated to rigorous imprisonment for
life and ultimately the claim of the petitioner to immediate release was
declined in the absence of any order of commutation being passed either
under Section 55 IPC or Section 433(b) CrPC.
18. In this regard, we may fruitfully refer to a two-Judge Bench decision
in Laxman Naskar (supra). In the said case, after referring to the earlier
decisions, the Court opined that though under the relevant Rules a sentence
for imprisonment for life is equated with the definite period of 20 years,
that is no indefeasible right of such prisoner to be unconditionally
released on the expiry of such a particular terms, including remissions
and that is only for the purpose of working out the remissions that the
said sentence is equated with definite period and not for any other
purpose. The Court proceeded to state thus:-
“… In view of this legal position explained by this Court it may not help
the petitioner even on the construction placed by the learned counsel for
the petitioner on Section 61(1) of the West Bengal Correctional Services
Act 32 of 1992 with reference to explanation thereto that for the purpose
of calculation of the total period of imprisonment under this section the
period of imprisonment for life shall be taken to be equivalent to the
period of imprisonment for 20 years. Therefore, solely on the basis of
completion of a term in jail serving imprisonment and remissions earned
under the relevant Rules or law will not entitle an automatic release, but
the appropriate Government must pass a separate order remitting the
unexpired portion of the sentence.”
19. It is essential to state here that while so stating the Court
adverted to the issue whether there had been due consideration of the case
of the petitioner by the Government. The Court took note of the fact that
earlier on the Court had directed the Government to reconsider the cases
for premature release of all life convicts who had approached the Court.
The Court took note of the fact that the Government had constituted a
Review Committee consisting of certain members, and enumerated the
guidelines issued earlier to form the basis on which a convict can be
released prematurely. The said guidelines read as under:-
“This Court also issued certain guidelines as to the basis on which a
convict can be released prematurely and they are as under:
“(i) Whether the offence is an individual act of crime without affecting
the society at large.
(ii) Whether there is any chance of future recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in committing crime.
(iv) Whether there is any fruitful purpose of confining this convict any
more.
(v) Socio-economic condition of the convict’s family.”
20. The Court analysed the reasons given by the Review Committee and
opined that the reasons given by the Government are palpably irrelevant or
devoid of substance and accordingly remitted the matter to the Government
again for examination in the light of what has been stated by the Court.
21. In Mohd. Munna (supra) a two-Judge Bench was dealing with a Writ
Petition wherein the prayer was made for issuance of a writ of habeas
corpus to set the petitioner at liberty on the ground that he had remained
in detention for more than 21 years. It was contended that the length of
the duration of imprisonment for life is equivalent to 20 years’
imprisonment and that too subject to further remission admissible under
law. The two-Judge Bench referred to various provisions of IPC, earlier
decisions in the field including K.M. Nanavati v. State of Maharashtra[14]
and Kishori Lal v. Emperor[15] and the law laid down in Gopal Vinayak
Godse (supra) and held that:-
“The Prisons Rules are made under the Prisons Act and the Prisons Act by
itself does not confer any authority or power to commute or remit sentence.
It only provides for the regulation of the prisons and for the terms of the
prisoners confined therein. …”
The Court further observed that the petitioner was not entitled to be
released on any of the grounds urged in the writ petition so long as there
was no order of remission passed by the appropriate Government in his
favour.
22. In Maru Ram (supra) the constitutional validity of Section 433-A CrPC
which had been brought in the statute book in the year 1978 was called in
question. Section 433-A CrPC imposed restrictions on powers of remission or
commutation in certain cases. It stipulates that where a sentence of
imprisonment for life is imposed on conviction of a person for an offence
for which death is one of the punishments provided by laws, or where a
sentence of death imposed on a person has been commuted under Section 433
into one of imprisonment for life, such person shall not be released from
prison unless he has served at least fourteen years of imprisonment. The
majority in Maru Ram (supra) upheld the constitutional validity of the
provision. The Court distinguished the statutory exercise of power of
remission and exercise of power by the constitutional authorities under the
Constitution, that is, Articles 72 and 161. In that context, the Court
observed that the power which is the creature of the Code cannot be equated
with a high prerogative vested by the Constitution in the highest
functionaries of the Union and the States, for the source is different and
the substance is different. The Court observed that Section 433-A CrPC
cannot be invalidated as indirectly violative of Articles 72 and 161 of the
Constitution. Elaborating further, the majority spoke to the following
effect:-
“… Wide as the power of pardon, commutation and release (Articles 72 and
161) is, it cannot run riot; for no legal power can run unruly like John
Gilpin on the horse but must keep sensibly to a steady course. Here, we
come upon the second constitutional fundamental which underlies the
submissions of counsel. It is that all public power, including
constitutional power, shall never be exercisable arbitrarily or mala fide
and, ordinarily, guidelines for fair and equal execution are guarantors of
the valid play of power. …”
23. In Kehar Singh (supra) the Constitution Bench opined that the power
to pardon is a part of the constitutional scheme and it should be so
treated in the Indian Republic. The Court further observed that it is a
constitutional responsibility of great significance, to be exercised when
occasion arises in accordance with the discretion contemplated by the
context. It has also been held that the power to pardon rests on the advice
tendered by the Executive to the President who, subject to the provisions
of Article 74(1), must act in accordance with the advice. Dealing with
the justiciability of exercise of power under Article 72, the Court after
due deliberation ruled that the question as to the area of the President’s
power under Article 72 falls squarely within the judicial domain and can be
examined by the court by way of judicial review. In this context, the
larger Bench ruled thus:-
“… The manner of consideration of the petition lies within the discretion
of the President, and it is for him to decide how best he can acquaint
himself with all the information that is necessary for its proper and
effective disposal. The President may consider sufficient the information
furnished before him in the first instance or he may send for further
material relevant to the issues which he considers pertinent, and he may,
if he considers it will assist him in treating with the petition, give an
oral hearing to the parties. The matter lies entirely within his
discretion. As regards the considerations to be applied by the President to
the petition, we need say nothing more as the law in this behalf has
already been laid down by this Court in Maru Ram (supra).”
24. In Swaran Singh (supra) a three-Judge Bench was called upon to deal
with the non-justiciability of an order passed by the President of India
under Article 72 of the Constitution or by the Governor of the State under
Article 161 thereof. The Court referred to the Constitution Bench
decision in Kehar Singh (supra) where the principles stated in Maru Ram
(supra) were followed and culled out the principles that in Kehar Singh
(supra) a point has been stressed to the effect that the power being of
the greatest moment, cannot be a law unto itself but it must be informed by
the finer canons of constitutionalism. The Court adverted to the facts of
the case and held thus:-
“In the present case, when the Governor was not posted with material facts
such as those indicated above, the Governor was apparently deprived of the
opportunity to exercise the powers in a fair and just manner. Conversely,
the order now impugned fringes on arbitrariness. What the Governor would
have ordered if he were apprised of the above facts and materials is not
for us to consider now because the Court cannot then go into the merits of
the grounds which persuaded the Governor in taking a decision in exercise
of the said power. Thus, when the order of the Governor impugned in these
proceedings is subject to judicial review within the strict parameters laid
down in Maru Ram case and reiterated in Kehar Singh case we feel that the
Governor shall reconsider the petition of Doodh Nath in the light of those
materials which he had no occasion to know earlier.”
25. In Bikas Chatterjee v. Union of India and others[16] the Constitution
Bench while dealing with the power of judicial review in respect of order
passed under Article 72 of the Constitution held that the powers are very
very limited. Relying on Maru Ram (supra), the Court observed that it is
only a case of no consideration or consideration based on wholly irrelevant
grounds or an irrational, discriminatory or mala fide decision of the
President which can provide ground for judicial review. Dealing with the
powers of the Governor, the Court referred to the authority in Satpal v.
State of Haryana[17] and opined that:-
“In a Division Bench decision of this Court in Satpal v. State of Haryana
(supra) these very grounds have been restated as: (i) the Governor
exercising the power under Article 161 himself without being advised by the
Government; or (ii) the Governor transgressing his jurisdiction; or (iii)
the Governor passing the order without application of mind; or (iv) the
Governor’s decision is based on some extraneous consideration; or (v) mala
fides. It is on these grounds that the Court may exercise its power of
judicial review in relation to an order of the Governor under Article 161,
or an order of the President under Article 72 of the Constitution, as the
case may be.”
Be it stated, the Court declined to entertain the writ petition on
the ground that there was no justification to assume that the President of
India had not applied his mind to all the relevant facts and accordingly
rejected the petition.
26. At this juncture, reference to a two-Judge Bench decision in Epuru
Sudhakar and another v. Govt. of A.P. and others[18] would be apposite. In
the said case, the convict was granted remission of the unexpired period of
sentence under Article 161 of the Constitution. The convict was granted
remission of unexpired period of about seven years imprisonment. The same
was challenged by the son of the deceased. The question of interference by
the Court arose for consideration. Arijit Pasayat, J. placed reliance on
the authority in Swaran Singh (supra) wherein Maru Ram (supra) and Kehar
Singh (supra) were referred to and dealt with and reiterated the view that
if the power is exercised in an arbitrary or malafide manner or in absolute
disregard of finer canons of constitutionalism, the order can be
scrutinized in exercise of power of judicial review and the judicial hands
can be stretched to it.
27. In the concurring opinion, S.H. Kapadia, J. (as His Lordship then was)
opined thus:-
“Exercise of executive clemency is a matter of discretion and yet subject
to certain standards. It is not a matter of privilege. It is a matter of
performance of official duty. It is vested in the President or the
Governor, as the case may be, not for the benefit of the convict only, but
for the welfare of the people who may insist on the performance of the
duty. This discretion, therefore, has to be exercised on public
considerations alone. The President and the Governor are the sole judges of
the sufficiency of facts and of the appropriateness of granting the pardons
and reprieves. However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the Constitution
itself. Therefore, the principle of exclusive cognizance would not apply
when and if the decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied while granting
pardons, reprieves, remissions and commutations.”
And, again:-
“… The Rule of Law is the basis for evaluation of all decisions. The
supreme quality of the Rule of Law is fairness and legal certainty. The
principle of legality occupies a central plan in the Rule of Law. Every
prerogative has to be subject to the Rule of Law. That rule cannot be
compromised on the grounds of political expediency. To go by such
considerations would be subversive of the fundamental principles of the
Rule of Law and it would amount to setting a dangerous precedent. The Rule
of Law principle comprises a requirement of “Government according to law”.
The ethos of “Government according to law” requires the prerogative to be
exercised in a manner which is consistent with the basic principle of
fairness and certainty. Therefore, the power of executive clemency is not
only for the benefit of the convict, but while exercising such a power the
President or the Governor, as the case may be, has to keep in mind the
effect of his decision on the family of the victims, the society as a whole
and the precedent it sets for the future.”
We respectfully concur with the aforesaid expression pertaining to
the constitutional norm and the concept of rule of law.
28. In this context, reference to Union of India v. V. Sriharan @ Murugan
& Ors[19] is quite seemly. The majority in the Constitution Bench referred
to the authority in Maru Ram (supra) and opined that constitutional power
of remission provided under Articles 72 and 161 of the Constitution will
always remain untouched, inasmuch as, though the statutory power of
remission, etc., as compared to constitutional power under Articles 72 and
161 looks similar, yet they are not the same. Be it stated, the Court was
dealing with imposition of sentence of life by fixing a period of 25 or 30
years without remission. The Court after analyzing various aspects held
that it is permissible and the law laid down in Swamy Shraddananda (2)
alias Murali Manohar Mishra v. State of Karnataka[20] deserved acceptance.
The Court referred to the decision in V. Sriharan alias Murugan v. Union of
India and others[21] wherein commuting the sentence of death into one of
life clearly laid down that such commutation was independent of the power
of remission under the Constitution as well as the statute. Elaborating the
proposition the Court while dealing with the power of remission in the
context of Article 21 of the Constitution, the majority said:-
“… It may also arise while considering wrongful exercise or perverted
exercise of power of remission by the Statutory or Constitutional
authority. Certainly there would have been no scope for this Court to
consider a case of claim for remission to be ordered under Article 32 of
the Constitution. In other words, it has been consistently held by this
Court that when it comes to the question of reviewing order of remission
passed which is patently illegal or fraught with stark illegality on
Constitutional violation or rejection of a claim for remission, without any
justification or colourful exercise of power, in either case by the
Executive Authority of the State, there may be scope for reviewing such
orders passed by adducing adequate reasons. Barring such exceptional
circumstances, this Court has noted in numerous occasions, the power of
remission always vests with the State Executive and this Court at best can
only give a direction to consider any claim for remission and cannot grant
any remission and provide for premature release. It was time and again
reiterated that the power of commutation exclusively rest with the
Appropriate Government. …”
29. After so stating the Court referred to series of judgments, analysed
the scope of constitutional provisions and the statutory provisions and
opined thus:-
“Therefore, it must be held that there is every scope and ambit for the
Appropriate Government to consider and grant remission under Sections 432
and 433 of the Code of Criminal Procedure even if such consideration was
earlier made and exercised under Article 72 by the President and under
Article 161 by the Governor. As far as the implication of Article 32 of the
Constitution by this Court is concerned, we have already held that the
power under Sections 432 and 433 is to be exercised by the Appropriate
Government statutorily, it is not for this Court to exercise the said power
and it is always left to be decided by the Appropriate Government, even if
someone approaches this Court under Article 32 of the Constitution. …”
30. In the said case, the question arose with regard to appropriate
Government in the context of Section 432(7) CrPC. The majority referred to
the authorities in Ratan Singh (supra), State of Madhya Pradesh v. Ajit
Singh and others[22], Hanumant Dass v. Vinay Kumar and others[23], Govt. of
A.P. and others v. M.T. Khan[24] and G.V. Ramanaiah v. The Superintendent
of Central Jail, Rajahmundry and others[25] and eventually held thus:-
“The status of Appropriate Government whether Union Government or the State
Government will depend upon the order of sentence passed by the Criminal
Court as has been stipulated in Section 432(6) and in the event of specific
Executive Power conferred on the Centre under a law made by the Parliament
or under the Constitution itself then in the event of the conviction and
sentence covered by the said law of the Parliament or the provisions of the
Constitution even if the Legislature of the State is also empowered to make
a law on the same subject and coextensive, the Appropriate Government will
be the Union Government having regard to the prescription contained in the
proviso to Article 73(1)(a) of the Constitution. The principle stated in
the decision in G.V. Ramanaiah (supra) should be applied. In other words,
cases which fall within the four corners of Section 432(7)(a) by virtue of
specific Executive Power conferred on the Centre, the same will clothe the
Union Government the primacy with the status of Appropriate Government.
Barring cases falling under Section 432(7)(a), in all other cases where the
offender is sentenced or the sentence order is passed within the
territorial jurisdiction of the concerned State, the State Government would
be the Appropriate Government.”
31. Be it stated, the aforesaid part forms a part of the conclusion. In
course of analysis, the Court has opined that when it comes to the question
of primacy to the Executive Power of the Union to the exclusion of the
Executive Power of the State, where the power is co-extensive, in the first
instance, it will have to be seen again whether, the sentence ordered by
the Criminal Court is found under any law relating to which the Executive
Power of the Union extends. In that context, the Court stated thus:-
“… In that respect, in our considered view, the first test should be
whether the offence for which the sentence was imposed was under a law with
respect to which the Executive Power of the Union extends. For instance, if
the sentence was imposed under TADA Act, as the said law pertains to the
Union Government, the Executive Power of the Union alone will apply to the
exclusion of the State Executive Power, in which case, there will be no
question of considering the application of the Executive Power of the
State.”
32. In the instant case, the High Court has opined that the State of
Gujarat is the appropriate Government. It is because it has been guided by
the principle that the first respondent was convicted and sentenced in the
State of Gujarat. As we find from the discussion, there has been no
reference to the authority in G.V. Ramanaiah (supra). That apart, the issue
was not raised before the High Court. The most important thing is that the
High Court has referred to, as has been indicated earlier, many aspects of
human rights and individual liberty and, if we allow ourselves to say so,
the whole discussion is in the realm of abstractions. The Court has not
found that the order passed by the State of Gujarat was bereft of
appropriate consideration of necessary facts or there has been violation of
principles of equality. The High Court has not noticed that the order is
bereft of reason. It has been clearly stated in the impugned order that the
convict was involved in disruptive activities, criminal conspiracy,
smuggling of arms, ammunitions and explosives and further he had also been
involved in various other activities. It has also been mentioned that the
prisoner under disguise of common name used to purchase vehicles for
transportation and his conduct showed that he had wide spread network to
cause harm and create disturbance to National Security. Because of the
aforesaid reasons remission was declined. In such a fact situation, the
view expressed by the High Court to consider the case on the basis of the
observations made by it in the judgment is not correct.
33. So far as direction for grant of parole is concerned, we find that
the learned Judge has directed parole to be granted for three months
forthwith. In Sunil Fulchand Shah v. Union of India and others[26] the
Constitution Bench while dealing with the grant of temporary release or
parole under Section 12(1) and Section 12(1-A) of the Conversation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA
Act) had observed that the exercise of the said power is administrative in
character but it does not affect the power of the High Court under Article
226 of the Constitution. However, the constitutional court before
directing the temporary release where the request is made to be released on
parole for a specified reason and for a specified period should form an
opinion that request has been unjustifiably refused or where the interest
of justice warranted for issue of such order of temporary release. The
Court further ruled that jurisdiction has to be sparingly exercised by the
Court and even when it is exercised, it is appropriate that the Court
should leave it to the administrative or jail authorities to prescribe the
conditions and terms on which parole is to be availed of by the detenu.
34. We have referred to the aforesaid authority only to highlight the
view expressed by the Constitution Bench with regard to grant of parole.
The impugned order, as we notice, is gloriously silent and, in fact, an
abrupt direction has been issued to release the first respondent on parole
for a period of three months. It is well settled in law that a Judge is
expected to act in consonance and accord with the legal principles. He
cannot assume the power on the basis of his individual perception or
notion. He may consider himself as a candle of hope but application of the
said principle in all circumstances is not correct because it may have the
effect potentiality to affect the society. While using the power he has to
bear in mind that “discipline” and “restriction” are the two basic golden
virtues within which a Judge functions. He may be one who would like to
sing the song of liberty and glorify the same abandoning passivity, but his
solemn pledge has to remain embedded to constitution and the laws. There
can be deviation.
35. Consequently, the appeal is allowed and the impugned judgment and
order of the High Court is set aside and liberty is granted to the first
respondent to submit a representation/application before the competent
authority of the Union of India within a period of eight weeks and the
authority shall consider the same as expeditiously as possible in
accordance with law and the guidelines framed for premature release.
...............................J.
[Dipak Misra]
...............................J.
New Delhi; [Shiva Kirti Singh]
June 29, 2016
-----------------------
[1]
[2] (2001) 3 SCC 221
[3]
[4] 2007 (4) RCR (Criminal) 909 : (2007) 13 SCC 606
[5]
[6] JT 1996 (3) SC 30 : 1996 (7) SCC 492
[7]
[8] AIR 2000 SC 2762 : (2000) 7 SCC 626
[9]
[10] AIR 1976 SC 2386 : (1976) 4 SCC 190
[11]
[12] 1982 (1) SCC 417
[13]
[14] 1989 (1) SCC 204
[15]
[16] (2005) 7 SCC 417
[17]
[18] 1981 (1) SCC 107
[19]
[20] 1998 (4) SCC 75
[21]
[22] (1976) 3 SCC 470
[23]
[24] (1961) 3 SCR 440 : AIR 1961 SC 600
[25]
[26] (1983) 2 SCC 454
[27]
[28] 1962 Supp (1) SCR 567 : AIR 1962 SC 605
[29]
[30] AIR 1945 PC 64
[31]
[32] (2004) 7 SCC 634
[33]
[34] (2000) 5 SCC 170
[35]
[36] (2006) 8 SCC 161
[37]
[38] 2015 (13) SCALE 165
[39]
[40] (2008) 13 SCC 767
[41]
[42] (2014) 4 SCC 242
[43]
[44] (1976) 3 SCC 616
[45]
[46] (1982) 2 SCC 177
[47]
[48] (2004) 1 SCC 616
[49]
[50] AIR 1974 SC 31 : (1974) 3 SCC 531
[51]
[52] (2000) 3 SCC 409
