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1988 Supreme(P&H) 388
PUNJAB & HARYANA HIGH COURT
Ujagar Singh, J.
Jagga Singh
Versus
State Of Punjab
Criminal Writ Petition No. 1967 of 1987,
Decided On : SEPTEMBER 1, 1988
Section 433A of the CrPC is prospective in effect and does not apply to prisoners whose convictions were entered before the section came into force on 18th December 1978. The power to grant premature release under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The guidelines issued by the State Government for premature release of life convicts are fair and can be used as guidelines under Articles 72 and 161 of the Constitution until fresh rules are made.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 433A - PREMATURE RELEASE - LIFE IMPRISONMENT - INTERPRETATION - APPLICABILITY - GUIDELINES - CONSTITUTIONAL PROVISIONS - ARTICLES 72 AND 161 - EXERCISE OF POWER - CONSIDERATIONS - JUDICIAL REVIEW.
Fact of the Case:
The petitioners, sentenced to life imprisonment, challenged the rejection of their premature release applications by the State Government. They argued that they had served more than 14 years of imprisonment, including remissions, and were entitled to release under Section 433A of the Code of Criminal Procedure (CrPC) and the guidelines issued by the State Government. The State Government opposed the petitions, contending that Section 433A barred the release of life convicts before they had served 14 years of actual imprisonment.
Finding of the Court:
The Court held that Section 433A of the CrPC was prospective in effect and did not apply to prisoners whose convictions were entered before the section came into force on 18th December 1978. The Court also held that the power to grant premature release under Articles 72 and 161 of the Constitution could be exercised by the Central and State Governments, not by the President or Governor on their own. The Court further held that the guidelines issued by the State Government for premature release of life convicts were fair and could be used as guidelines under Articles 72 and 161 of the Constitution until fresh rules were made.
Issues: 1. Whether Section 433A of the CrPC barred the premature release of life convicts who had served more than 14 years of imprisonment, including remissions, if their convictions were entered before the section came into force? 2. Whether the power to grant premature release under Articles 72 and 161 of the Constitution could be exercised by the Central and State Governments, not by the President or Governor on their own? 3. Whether the guidelines issued by the State Government for premature release of life convicts were fair and could be used as guidelines under Articles 72 and 161 of the Constitution until fresh rules were made?
Ratio Decidendi: 1. The Court held that Section 433A of the CrPC was prospective in effect and did not apply to prisoners whose convictions were entered before the section came into force on 18th December 1978. The Court relied on the majority judgment in Maru Ram v. Union of India, AIR 1980 SC 2147, which held that Section 433A was intended to be prospective in operation and would not affect the rights of prisoners who had already been sentenced to life imprisonment. 2. The Court held that the power to grant premature release under Articles 72 and 161 of the Constitution could be exercised by the Central and State Governments, not by the President or Governor on their own. The Court relied on the judgment in Maru Ram v. Union of India, which held that the power to grant premature release was an executive power that could be exercised by the Government, not by the President or Governor. 3. The Court held that the guidelines issued by the State Government for premature release of life convicts were fair and could be used as guidelines under Articles 72 and 161 of the Constitution until fresh rules were made. The Court noted that the guidelines were based on the experience gathered, current social conditions, and accepted penological thinking, and were therefore fair and reasonable.
Final Decision: The Court allowed the petitions and directed the State Government to release the petitioners forthwith.
Ujagar Singh, J.
1. By this order, I am deciding Criminal Writ Petitions No. 1967/1987, 1391/1987, 1969/1987, 203/1988, 221/1988 and 840/1988 in which a common question of law is involved. All the petitioners had applied for premature release, but their petitions were declined by the concerned authorities. Chapter 32 of the Code of Criminal Procedure, 1973 (shortly the Code) deals with execution, suspension, remission and commutation of sentences. In this chapter, we are concerned only with its part E which contained Ss. 432, 433, 434 and 435. By an amendment, through Sec. 32 of Act 45 of 1978, which was enforced on 18-12-1978, a new sec. 433-A was added which reads as under :
"433-A. Restriction on powers of remission or commutation in certain cases. Notwithstanding anything contained in section 432, 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 law, 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."
This section gave rise to a controversy, as to whether a person sentenced to imprisonment for life could be released from prison before he has served at least 14 years of imprisonment. This provision prevails notwithstanding anything contained in Ss. 432 and 433 of the Code. This section came for interpretation in Maru Ram v. Union of India, AIR 1980 SC 2147 which was heard by a Bench of 5 Judges. The new section was discussed threadbare. Three separate judgments were delivered ; one by V. R. Krishan lyer, J. as his Lordship then was (on behalf of himself, Y. V. Chandrachud, CJ and P.N. Bhagwati, J.) ; the second was delivered by A.D. Koshal, J. and the third was delivered by S. Murtaza Fazal Ali, J. After discussing the facts and the points of law involved, the majority judgment laid down 14 principles out of which principles No. 7, 8, 9, 10 and 14 are reproduced as follows :
(7) We declare that Section 433A, in both its limbs (i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came into force. All `lifers whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Govt. for release on the strengh of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before section 433A was brought into effect.
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be, myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.
(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against section 433-A, they will everride section 433-A if the Government, Central or State, guides itself by the self-same rules or schemes i
