Jagir Singh Vs. the State of Haryana and Another - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the.....order1. this is crl. misc. no. 15724-m of 1999 filed by jagir singh (petitioner herein) under section 482 cr.p.c. read with articles 226/227 of the constitution of india whereby he has prayed for the quashing of order annexure p1 and further direction to the respondents to consider his case for premature release in the light of instructions annexure p4 dated 27-2-1984 read with para 516-b of the punjab jail manual. 2. in support of this prayer, he has averred that he was arrested on 6-3-78 and was awarded sentence of imprisonment for life on 24-12-1979. he prayed for his premature release which was declined vide order annexure p2 by the respondents state of haryana saying that he has not undergone 10 years actual sentence including under-trial period and his case for premature release.....

Judgment:
ORDER

1. This is Crl. Misc. No. 15724-M of 1999 filed by Jagir Singh (petitioner herein) under Section 482 Cr.P.C. read with Articles 226/227 of the Constitution of India whereby he has prayed for the quashing of order Annexure P1 and further direction to the respondents to consider his case for premature release in the light of instructions Annexure P4 dated 27-2-1984 read with para 516-B of the Punjab Jail Manual.

2. In support of this prayer, he has averred that he was arrested on 6-3-78 and was awarded sentence of imprisonment for life on 24-12-1979. He prayed for his premature release which was declined vide order Annexure P2 by the respondents State of Haryana saying that he has not undergone 10 years actual sentence including under-trial period and his case for premature release will be reconsidered on completion of 10 years actual sentence including under-trial period.

3. As on 2-1-98, he had undergone 14 years 5 months and 21 days total sentence and actual 8 years 5 months and 12 days. He moved Crl. Misc. No. 26474-M of 1997 before this Court for direction to the respondents for considering his case for premature release on which direction was issued to the respondents by this Court vide order Annexure P3 for considering and deciding his case for premature release by complying with the instructions as were in force on the date of his conviction. It is averred that on the date he was convicted instructions Annexure P4 dated 27-2-84 were in force according to which he was to be considered for premature release after the completion of 8 1/2 years of substantive sentence and 14 years of sentence including remissions. He had definitely covered the period of 8 1/2 years of actual sentence and 14 years of total sentence and therefore his case for premature release was improperly declined by the respondent State of Haryana vide order Annexure P2.

4. Respondents contested this prayer urging that the petitioner was sentenced to imprisonment for life under Section 302, IPC. Sentence of imprisonment for life means that he has to remain in jail throughout the remaining period of his life. He cannot claim premature release as matter of right. He has to remain in jail throughout his life unless the sentence or any part thereof is remitted in exercise of the powers vesting in the President of India or Governor of the State by virtue of Article 72/161 of the Constitution of India. Petitioner is governed by instructions dated 4-2-93 as amended on 17-7-97 so far as his premature release is concerned. His case falls within the purview of Section 2(b) of the said instructions. He has to undergo 10 years of actual sentence. Besides, he has to earn 4 years remissions for consideration of premature release. Petitioner has not undergone 10 years of actual sentence. As and when he completes 10 years actual sentence and earns 4 years remissions, his case for premature release will be considered. His case for premature release was considered but was declined vide order Annexure R1 as he had not completed 10 years actual sentence. He has of course earned remissions to the extent of 6 years 5 months and 22 days. As to whether the instructions as were in force at the date of conviction or as are in force at the time when case for premature release is to be considered, the matter is pending before Hon'ble Supreme Court in SLP No. 9 of 1998. In SLP No. 9 of 1998, the Hon'ble Supreme Court has stayed the implementation of the order of this Court whereby this court had ordered the consideration of the premature release case of lifers in accordance with the instructions prevalent at the time of conviction. It was further urged that the premature release of petitioner shall be considered when he completes 10 years actual sentence and earns 4 years remissions as per para 2(b) of the instructions dated 4-2-93 as amended on 17-7-97 Annexure R2.

5. I have heard the learned counsel for the petitioner, learned AAG, Haryana and have gone through the record.

6. Learned counsel for the petitioner submitted that when the petitioner was convicted/sentenced on 24-12-79, 1984 instructions Annexure P4 were in force. As per these instructions, he became entitied to premature release after the completion of 8 1/2 years of substantive sentence and 14 years total sentence including remissions. As on 2-8-98, he had undergone 9 years 0 months and 12 days actual sentence including under-trial period Besides, he had enjoyed parole to the tune of 6 months and 3 days. In this manner, he had undergone actual sentence to the tune of 9 years 6 months and 15 days. He had been allowed remissions to the tune of 4 years 2 months and 27 days. He had thus undergone total sentence of 13 years 2 months and 27 days minus the parole period of 6 months and 3 days. It was submitted that he had thus fulfilled the condition as laid down in 1984 instructions Annexure P4. Under para 516-B of the Punjab Jail Manual also, he became entitled to release from jail after he had undergone 14 years of detention in jail together with remissions.

7. Section 433-A, Cr.P.C. was introduced in the Code of Criminal Procedure by the Parliament through Criminal Law Amendment Act 1978. It came in force on 18-12-78. Section 433-A, Cr.P.C. lays down that notwithstanding anything contained in S. 432, Cr.P.C. whereas 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 law or where a sentence of death imposed on a person stands commuted under S. 433 into one of imprisonment for life, such person shah not be released from prison unless he has served at least 14 years of imprisonment. Non-obstante clause makes it clear that such minimum punishment is notwithstanding anything contained in S. 432, Cr.P.C. which means that the power to suspend or remit sentence under that section cannot be exercised so as to reduce the imprisonment of a person convicted for such an offence or whose death sentence has been commuted to life imprisonment for less than 14 years. Section 433-A, Cr.P.C. is attracted to the case of the petitioner. Petitioner has to remain in jail for 14 years in the minimum unless the term of the sentence of any part thereof has been remitted by the President under Art. 72 of the Constitution or Governor of the State under Art. 161 of the Constitution or the Governor is a constitutional power which cannot be whittle down or curtailed by the provisions of S. 433-A, Cr.P.C.

8. Para 516-B of the Punjab Jail Manual cannot thus come to the rescue of the petitioner. Petitioner's case for premature release shall not be governed by 1984 instructions. Petitioner's case for premature release shall be governed by the instructions dated 4-2-93 as amended on 17-7-97. Power conferred upon the President of India or the Governor of a State under Art. 72/161 of the Constitution of India is a sovereign power. This power is exercised keeping in view the conditions prevailing at a particular time. The power to grant pardon or remission of sentence is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence. Exercise of this power continues to be modulated from time to time looking to the crime graph of the State. As per para 2(b) of the instructions dated 4-2-1993 as amended on 17-7-1997, the petitioner has to undergo 10 years of actual sentence and earn 4 years remissions for consideration of premature release.

9. In view of what has been said above, this Crl. Misc. petition is disposed of with the direction to the respondents to consider, the petitioner's case for premature release afresh and finally within one month of the receipt of copy of this order in the light of instructions dated 4-2-1993 as amended on 17-7-1997.

10. Order accordingly.