ANIL KUMAR Vs. THE UNION TERRITORY ADMINISTRATION

JUDGEMENT

(1.) THROUGH this writ petition under Articles 26/227 of the Constitution of India, the petitioner, who is a convict and is undergoing life-imprisonment for having committed an offence under Sections 302/307, IPC read with Section 27 of the Arms Act, immediately after the occurrence, was arrested on 2.7.1982 and was convicted for the said offences by the learned Sessions Judge, Chandigarh vide judgment dated 12.4.1983 and appeal against the said judgment was dismissed by this Court on 26.8.1983. The petitioner has categorically stated that he was about 16 years of age at the time of commission of offence as well as at the time of his conviction by the trial Court his age so recorded of 16 years in the judgment of the trial Court convicting him. In this petition, filed on 16.7.1990, he has further stated he was in judicial lock up during trial for a period of 9 months and 19 days. Actual sentence undergone by him on the date of his filing this petition is 7 years, 1 month and 9 days, alongwith total earned remissions under the Jail Manual rules of 5 years and 2 months. As such, total sentence undergone by him on the date of filing the present petition comes to 13 years and 8 days. It has also been stated that the act and conduct of the petitioner in Jail had been excellent throughout and he has not earned any punishment at all. The other facts and reliance placed upon few judgments of the Supreme Court in the petition, are not considered relevant at this stage. On the aforesaid broad allegations and material facts, the petitioner has sought a direction from this Court holding that he is entitled to be considered for premature release under Article 161 of the Constitution of India.

(2.) THE sole respondent, Union Territory Administration through its Secretary, Home Department, Chandigarh, has filed written statement to the petition. The facts as to age and total period of imprisonment under gone by him, have not be disputed. The other plea raised is that petition under Article 161 of the Constitution of India is not maintainable as the respondent, Union Territory is incompetent to decide his premature release petition. It has been further averred that the petitioner ought to have filed his representation/mercy petition for premature release to the President of India under Article 72 of the Constitution of India.

(3.) THE aforesaid letter is only a communication and on the asking of the Court, the original record was shown to the Court by the Counsel for the respondent wherein also only remark made is that petition lies to the President. So the said mercy petition has not been decided on merits as it does not lie and cannot be decided by respondent and it lies to the President only under Article 72 of the Constitution of India. As stated earlier and conceded by the counsel for the petitioner, the mercy petition of the petitioner for premature release has to be considered and decided by the President of India. The fact remains that the petitioner is languishing in the jail and is seeking his cherished right of liberty through the mercy petition. He could move his petition through the jail authorities to the Home Secretary, Chandigarh Administration, Chandigarh. It does not lie in the mouth of the respondent-Home Secretary, Chandigarh Administration Chandigarh that his mercy petition is dismissed being not maintainable and he should be directed to move fresh mercy petition directly to the President of India under Article 72 of the Constitution of India. When once the mercy petition had been brought before the respondent through the jail authorities, it was imperative obligation on the part of the respondent to refer the mercy petition to the President of India irrespective of the fact whether the petition as drafted was under Article 161 of the Constitution of India or under Article 72 of the Constitution of India. The respondent ought to have cared to look into the faith and substance of the mercy petition. The respondent should not have adhered to the technicalities of law which are of no significance regarding the incorrect mentioning of provisions of law in the petition. It is undisputed that even the mercy petition before the President of India made by the petitioner would have been channelised by the jail authorities through respondent-Home Secretary.