BALDEV SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) PETITIONER Baldev Singh is a life convict confined in Central Jail, Ferozepur. He was convicted and sentenced by Sessions Judge, Ferozepur on January 12, 1979, that is, after the enforcement of Section 433 -A of the Code of Criminal Procedure, 1973, in short the Code, which provision came into operation on 18th December. 1978. Through present writ petition, he has prayed for his premature release.

(2.) THE matter regarding premature release of an accused convicted after the enforcement of Section 433-A of the Code was considered by a Division Bench of this Court in Ranbir Singh v. State of Haryana etc, 1987(2) Recent Criminal Reports 268, Criminal Writ Petition No. 628 of 1985, decided on May 2, 1986; in the. light of the Supreme Court judgment in Maru Ram etc. v. Union of India and others. AIR 1980 SC 2147. It has been held by the Division Bench that para 516-B of the Punjab Jail Manual and similar executive instructions issued before 18th December, 1978, cannot be invoked by the detenus, who were convicted after the said date. It was observed therein that "the correct interpretation of Maru Ram's case is that Section 433-A of the Code has a sway over para 516-B of the Punjab Jail Manual or similar other executive instructions regarding the early release of the life convicts whose cases fall under this section. These convicts are a class apart and cannot invoke the aid of the instructions, incompatible with Section 433-A of the Code, issued by the Central or State Government prior to 18th, December, 1978."

(3.) IT is alleged on behalf of the petitioner that on 26th March, 1985, the State Government issued a set of instructions for consideration of premature release case under Article 161 of the Constitution of India a copy of which has been annexed with the petition as Annexure P.2. It is further alleged that on 12th December, 1985, Government issued instructions wherein it was held that if a juvenile prisoner of 20 years or above at the time of commission of the offence has completed 8-1/2 years' actual sentence he is entitled to consideration of his premature release case under Article 161 of the Constitution of India, apart from other grounds for consideration of premature release cases, and a copy of those instructions has been annexured with the petition as Annexure P.3. These contentions of the petitioner have not been controverted on the record. In fact, despite repeated opportunities given for the purpose, no return has been filed on behalf of the respondent and ultimately none even put in appearance on its behalf. Filing of the return cannot be awaited indefinitely. Rule 13 of Chapter IV-F of Rules and Orders of the Punjab High Court, Volume V, says that a copy of the return shall be filed in the office and a copy supplied to the petitioner or his counsel three days before the date fixed for appearance and the matter shall be heard and disposed of on the date fixed notwithstanding the fact that the return has been filed or not, which clearly implies that filing of the return is not to be awaited in such cases. It has already been held in Ajmer Kaur v. Shri R.D. Joshi, District Magistrate, Sangrur and the State of Punjab, 1975 Punjab Law Journal Criminal, 31 that in a petition for habeas corpus, the question involved is of the liberty of the citizen and in such cases the authorities who impose curbs on the freedom of movement of the citizens are expected to be ready with the return and other documents in support of the order of detention as and when they appear in court in response to a rule nisi. It is further observed therein that the proceedings cannot be treated in a casual manner and after the request for adjournment was declined, the detenu was ordered to be released forthwith. Under the circumstances, it can safety be concluded in the absence of any return filed by the respondent that State of Punjab issued instructions on the subject after 18th December, 1978, the date of enforcement of Section 433-A of the Code and a life convict can make a mercy petition to the Governor of Punjab for premature release irrespective of the said provision of law.