JASWANT RAM Vs. STATE OF HARYANA

JUDGEMENT

(1.) JASWANT Ram petitioner was sentenced to death. In appeal his sentence was reduced to imprisonment for life. The petitioner's case is that he has since undergone substantive imprisonment for 14 years, one month and 18 days, excluding the undertrial period, but including remissions, on 22nd May, 1982, the Government should have passed orders for his premature release in terms of Punjab Jail Manual which provides guidelines to the Jail authorities for the action to be taken after the expiry of 14 years imprisonment, but the Government is not considering his case. He, therefore, prays that the Government be directed to consider his premature release case and till his case is decided, he be released on bail. In reply the State pleaded that the premature release case of the petitioner is under consideration of the Department and will be put up for consideration before the State Level Committee in the next meeting.

(2.) FIRST , I take the question whether pending decision of the matter by the Government, bail can be granted to the petitioner or not. The learned counsel for the petitioner has brought to my notice some judgments of this Court in Criminal Writ Petitions, two of which are Criminal Writ No. 47 of 1982 Dharam Pal v. State of Haryana and another, decided in April 23, 1982, and Criminal Writ No. 42 of 1982, Hari Ram v. State of Haryana and another, decided on April 27, 1982 where bail was granted to similarly situated convicts. However, it appears that observations of their Lordships of the Supreme Court made in Maru Ram etc. v. Union of India and others, AIR 1980 SC 2147, were not brought to the notice of the Benches who decided those cases. Their Lordships of the Supreme Court remarked in that case : Sentencing is a judicial function but the execution of the sentence, after the Court's pronouncement, is ordinarily a matter for the Executive under the Procedure Code ....... Once a sentence has been imposed, the only way to terminate it before the stipulated term is by action under Sections 432/433 or Articles 72/161. And if the latter power under the Constitution is not invoked, the only source of salvation is the play of power under Sections 432 and 433 (a) so far as life is concerned. No release by reduction or remission of sentence is possible under the corpus juris as it stands, in any other way". "Ordinarily, where a sentence is for a definite term, the calculus of remissions may benefit the prisoner to instant release at that point where the subtraction results in zero. Here, we are concerned with life imprisonment and so we come upon another concept bearing on the nature of the sentence which has been highlighted in Godsels case (1961)3 SCR 440. Where the Sentence is indeterminate and of uncertain duration, the result of subtraction from an uncertain quantity is still an uncertain quantity and release of the prisoner cannot follow except on some fiction of quantification of a sentence of uncertain duration. Godse was sentenced to imprisonment for life. He had earned considerable remission which would have rendered him eligible for release had life sentence been equated with 20 years of imprisonment a la Section 55 I.P.C. On the basis of a rule which did make that equation, Godse sought his release through a writ petition under Article 32 of the Constitution. He was rebuffed by this Court. A Constitution Bench, speaking through Subba Rai, J., took the view that a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused. The nature of life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of long accumulation of remission. Release would follow only upon and order under Section 401 of the criminal Procedure Code 1898 (corresponding to Section 432 of the 1973 code) by appropriate Government or on a clemency order in exercise of power under Articles 72 of 161 of the Constitution." Similar matter came up in Criminal Misc. No. 368 -M of 1981 Maghar Singh v. The State of Punjab and another decided by Punchhi, J. on March 16, 1982 Bail was refused to the petitioner of that case and it was remarked : "In common working, even the appellate Court passed the bail orders, though in effect they are nothing but orders suspending the execution of sentence. Thus the domain of Court is clear and well defined i.e. when there is some cause pending before it under the Criminal law of the land. The Courts have nothing to do in this regard with the petitioners any more during the subsistence, of the period of sentence. If Court cannot remit their sentence, equality it cannot suspend their sentence. Thus to suspend the sentence is an exercise of executive power, which means to suspend the enforcement of the judgment but not to alter it. Another aspect garmane in this light worth nothing is the steps taken by their lordships of the Supreme Court after pronouncing judgment in Maru Ram's case (supra). It appears that interim bail orders granted by the Supreme Court were terminated on the pronouncement of the decision in that case. No concession of bail was granted to the then petitioner though there were specific directions to implement the directives given in the judgment urgently since personal liberty was at stake. The Supreme Court adopted such course since its interim orders had to co -terminate with the ultimate decision". Granting bail to the petitioner will amount to suspension of the sentence. As is clear from the above observations of their lordships of the Supreme Court, the power to suspend the execution of Sentence of a lifer can be exercised by the Government under Section 432 of the Code of Criminal Procedure by the President or the State Governor in exercise of the powers conferred upon them respectively under Articles 72 and 161 of the Constitution of India.

(3.) THE learned counsel for the petitioner has shown me an order passed by the Supreme Court in Writ Petition Nos. 1, 39 and 48 of 1982, Harbans Singh and other v. State of Punjab and others, on 17th May, 1982, granting bail to the petitioners of those cases. It is not clear from the order that on what grounds those writ were filed. Moreover the bail was granted in pending cases. In the present case, petitioner's prayer is that bail be granted for the period subsequent to the decision of this writ. I am bound by the observations of their Lordships made in Maru Ram's case (supra). Hence the prayer for the bail is refused.