STATE OF HARYANA Vs. BALWAN

JUDGEMENT

(1.) These appeals arise out of the judgments of the Punjab and Haryana High Court in writ petitions filed by "life convicts" for their premature release. The High Court held that for deciding their entitlement for premature release what was relevant to consider was the Government policy/instructions in force at the time of their conviction by the trial Court and that the State Government was not right in applying the subsequent policy decisions and instructions that were in force at the time when their cases were taken up for consideration. Taking this view the High Court allowed the writ petitions and directed the State Government to reconsider their applications. The view taken by the High Court is challenged in these appeals. As the point raised in these appeals is the same they were heard together and are disposed of by this common judgment.

(2.) It is not necessary to refer to the facts of these cases or the Government instructions issued prior to December 18, 1978 when Section 433-A came to be inserted into the Code of Criminal Procedure. As laid down by this Court in Maru Ram v. Union of India, (1981) 1 SCC 107, the power of the State Government under Sections 432 and 433, Cr. P.C. cannot now extend beyond what is provided by Section 433-A. The premature release of those convicted before that date had to be considered on the basis of the relevant Government instructions and the dates of their convictions. As regards those persons who have been convicted after Section 433-A came into force and thus fall within the purview of that Section their cases will have to be considered consistently with Section 433-A and if life convicts are to be given a larger benefit it can only be done now under Articles 72 and 161 of the Constitution.

(3.) The State of Haryana was earlier considering premature release of life convicts in accordance with the rules framed and instructions issued by it in that behalf. To be consistent with the correct legal position emerging after the enactment of Section 433-A and the decision of this Court in Maru Ram's case, AIR 1980 SC 2147, the State of Haryana modified its policy decision and instructions and declared that though the cases of life convicts for their premature release will still be governed by the instructions issued by it, in respect of those convicts who fall within the purview of Section 433-A their cases will be considered on individual basis and such cases will be put up to the Governor through the Minister of Jails and Chief Minister, with full background of the prisoners and recommendations of the State Level Committee, along with the copy of the judgment etc., for order under Article 161 of the Constitution of India. Neither the record of these cases nor the judgments of the High Court make it clear when the said change in the instructions was made but it appears that it was made, either sometime in 1982 or latest on June 27, 1984. Obviously, the cases of respondents-convicts, who are all life convicts and fall within the purview of Section 433-A, were required to be considered in accordance with the modified instructions as they could have been released prematurely only if an order in that behalf was passed by the State Government in exercise of its power under Article 161 of the Constitution.