JANARDAN RAI Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) Janardan Rai, the petitioner, was convicted in Sessions Trial No. 144 of 1968, under Section 302/34 I. P. C. on 30-6-1969 and was awarded life imprisonment. An appeal preferred against the judgment of the Sessions Judge failed. The petitioner, thereafter, moved an application for Special Leave to the Supreme Court. This application was also rejected. After the dismissal of the appeal, the petitioner surrendered himself in the Court of the Additional District Magistrate (Judicial), Azamgarh, on 27-11-1972. While the petitioner was undergoing the sentence of life imprisonment, the Code of Criminal Procedure, 1973, was amended by means of Amending Act of 1973, as a result whereof Section 433-A was inserted. This was made to prohibit premature release where a sentence of life imprisonment is imposed on conviction of a person for an offence for which death is one of the punish ments provided by law. This section lays down that such person cannot be released from the prison unless he has served fourteen years of imprison ment. Thereupon, the petitioner and many others filed writ petitions in the Supreme Court under Article 32 of the Constitution challenging the validity of Section 433-A on a number of grounds. On the application for bail moved by the petitioner in this case, the Supreme Court directed the petitioner to be released if he was entitled to premature release order under the law prevalent in the State of which he was a citizen. Pursuant to the aforesaid order of the Supreme Court, the petitioner was released. The writ petition of Maru Ram and others was decided by the Supreme Court on 11-11-1980. The Supreme Court found that Section 433-A was not violative of Article 14 of the Constitution. The view, however, taken was that this section was prospective in operation and did not apply to cases where a person had been convicted by the trial Court before 18th December, 1978, when Section 433-A came into force. Upon the dismissal of the writ petition filed by the petitioner, proceedings for arrest of the petitioner were started. On 25-2- 1981, the Sessions Judge, Azamgarh ordered for the issue of warrant of arrest of the petitioner. Thereupon, the petitioner filed the present writ petition claiming, inter alia, the relief directing the respondents not to arrest the petitioner and to quash the order of the Sessions Judge issuing the warrants for his arrest. Two contentions had been raised in support of this petition by the learned counsel appearing for the petitioner. The first was that as the peti tioner had been relased on 6-8-1980, on the basis of an unconditional warrant of release, the Sessions Judge had no power on 25-2-1981 to direct for his arrest. Elaborating his submission, counsel urged that unconditional release of the petitioner having been granted on the basis that the petitioner was entitled to remission of the sentence awarded to him, there was no authority in law in the Sessions Judge to direct for his re-arrest for the same offence. The submission is not tenable. Taking all the facts and circumstances into account, it would be found that the release of the petitioner on 6-8-1980 had been made in pursuance of the order of the Supreme Court. The Court making the order for release held that the Supreme Court's order was that the petitioner was to be released on bail to the satisfaction of the Sessions Judge, provided premature release had become due. Having found that the jail authorities were taking time in complying with the order of the Supreme Court, the learned Sessions Judge thought it appropriate to release the peti tioner without going into the controversy as to whether the petitioner was entitled to premature release. From the above, it would be found that the order of release had been made by the Supreme Court in the writ petition which had been preferred by the petitioner. The life of the order for release could not last longer than the period for which the writ petition itself was pending. After the dismissal of the writ petition, the interim order made for release of the petitioner lapsed and became inoperative. As a consequence thereof, the petitioner cannot claim any right on the basis of the said order and argue that as the petitioner had been released on the basis of the same, he could not be re-arrested. It may be further pointed out that the Supreme Court made the order for release of the petitioner provided premature release had become due. In the present case, it would be seen that the Sessions Judge while releasing the petitioner on 6-8-1980 did not go into the question by clearly observing that "in some cases I have already held that it is not for this Court to decide whether the premature release has become due or not. " The question of premature release was neither decided by the Sessions Judge nor by the State Government. This order lapsed on 11-11-1980, when the writ petition of the petitioner failed. Consequently, the impugned order of the Sessions Judge dated 25-2-1981 for the arrest of the petitioner cannot be held to be invalid. In fact, the Supreme Court while finally deciding the writ petition cancelled the bail granted to the petitioner and directed that the petitioner would serve out the remaining period of his sentence. The second question that was argued was that the petitioner had become entitled to remission under Section 8 of U. P. Prisoners' Release on Probation Act, 1938. For the entitlement of his release, the petitioner referred to various Government Orders issued from time to time by the State Government remitting the sentence. Section 8 of the aforesaid Act confers power on the State Government to remit the whole or a part of the sentence of a prisoner sentenced to imprisonment for an offence under any Act. Rule 15 lays down that a prisoner would be entitled to move an application for remission of sentence under Section 8 of the Act to the District Magistrate of the District in which he was convicted. Sub-rule (2) of Rule 15 provides that the District Magistrate shall, on a consideration of the antecedents of the prisoner, his conduct in jail and his environment, and after consulting the Probation Officer, direct for release of the prisoner. In the present case, the petitioner brought to our notice that he had filed an application to the District Magistrate as provided for by Rule 15 of the aforesaid Rules for grant of remission, but the District Magistrate had not passed any order on the same. Counsel urged with the help of the allegations made in the various paragraphs of the writ petition that if the petitioner was given the benefit of remissions granted by the State Government on various occasions' the petitioner would not be liable to be sent to jail. The question, however, that needs consideration is whether the High Court has power under Article 226 of the Constitution to go into this question and to hold that the petitioner was entitled to remission. It has been settled by the various decisions of the Supreme Court that the power of remission is executive and it solely rests with the State Government. This power cannot be exercised by the Court. In Sarat Chand v. Khagendranath (A. I. R. 1961 S. C. 334.), the Supreme Court approved the following passage from Weater's "constitutional Law" at page 176; "the judicial power and the executive power over sentences are readily distinguishable, observed Justice Sutherland. To render a judgment is a judicial function. To carry the judgment into effect u an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua judgment. " In G. V, Godse v. The State of Maharashtra A. I. R. 1961 S. C. 600, this question was again considered. The Supreme Court held that- "unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term is prison. The Rules framed under the Prisons Act enable such a prisoner to earn remissions, ordinary, special-and State and the said remissions will be given credit towards his term of imprisonment. . . . . . . . . . . . . . . . . . . . . . . . . . . The question of remission is exclusively within the province of the appropriate Govern ment: and in this case it is admitted that, though the appropriate Government made certain remissions under Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release. " The above proposition was accepted in Maru Ram v. Union of India A. I. R. 1980 S. C. 2147, The Supreme Court observed: We follow Godse's case (supra) to hold that imprisonment for life last until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government. " From the above decision, it is apparent that the power to grant remis sion is exclusively that of the State Government. This power cannot be exercised by a Court of law. To cut short a sentence is an exercise of the executive power. Hence, the High Court cannot itself remit the sentence of the petitioner and find that as the petitioner had become entitled to remis sion, he was not liable to be re-arrested in pursuance of the order of the Sessions Judge made on 6-2-1981. The High Court cannot assume jurisdiction of the State Government and pass an order of remission. The jurisdiction conferred by Article 226 is supervisory in nature. It is an extraordinary jurisdiction and in matter like the present, the High Court can only direct the authorities concerned to proceed in accordance with law. It cannot assume the function of the authorities itself and after calculating the priod of remissions, to which the petitioner may be found entitled, remit the sentence. To do so would be to usurp the power of the executive. It is an erroneous notion that since the power granted by Article 226 of the Constitution is wide in nature, the High Court can take upon itself the job of considering the entitlement of an accused to get remissions and after having found that ha is so entitled, it can direct his release. We could not go into this question in the present proceedings. Even if we would have, after examining the merits that the petitioner was entitled to remission, the only course left would have been to call upon the State Government to make an appropriate order in that regard. From the facts narrated in the writ petition, it, however, appears that the jail authorities had recommended the case of the petitioner for remission to the District Magistrate. The petitioner had also applied in October, 1980, to the District Magistrate under Rule 15 (2) for being granted the remission. The District Magistrate was required by the aforesaid provision to decide the application. Since the petitioner alleges that the aforesaid application is still pending and has not been decided, he is entitled to a Mandamus directing the District Magistrate to decide the same. But, as already held above, the impugned order of the Sessions Judge directing the arrest of the petitioner cannot be said to be illegal. The petitioner will become entitled to release only when the District Magistrate has forwarded the application for remission to the State Government and an order to that effect has been made. Till the State Government grants the remission to the petitioner, he has got to remain in jail. It is, however, made clear that the District Magistrate if has already decided the application made by the petitioner for grant of remission, he would not be required to decide the same again. The direction for deciding the application has been given on the assumption that the application is pend ing decision before him. Subject to the above the writ petition is dismissed summarily. .