http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

PETITIONER: STATE OF HARYANA AND ANR.

       Vs.

RESPONDENT: RAM DIYA

DATE OF JUDGMENT10/04/1990

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1990 AIR 1336            1990 SCR  (2) 431  1990 SCC  (2) 701        JT 1990 (2)   434  1990 SCALE  (1)760

ACT:     Code of Criminal Procedure, 1973: Sections 432, 433  and 433A-Death  sentence commuted to  life  sentence--Conviction prior to introduction Of section 433A--Premature release  of such  life convicts-Consideration by State  Government--Com- pliance with Court’s directions.     Punjab  Jail  Manual: Paragraph 5  16-B---Executive  in- structions-Convicts whose sentence of death commuted to life imprisonment-Conviction  prior to amendment of Cr.  P.C.  in 1978--Premature  release of--Applicability of  the  instruc- tions.

HEADNOTE:     Paragraph  516-B of the Punjab Jail Manual provides  for premature  release  of prisoners, and is in  the  nature  of executive  instructions. The State Government  modified  the instructions  in 1971 and 1976. The 1976 instruction was  to the  effect that cases of life convicts whose  sentence  has been  commuted  should be considered for  premature  release only  after completion of 14 years of  actual  imprisonment. The  State  Government further liberalised  its  policy  and decided  that such cases might be reviewed by a state  level committee and directed that cases of life convicts who  have completed  8 1/2 years substantive sentence and sentence  of 14/10 years including remission be submitted to the  Commit- tee.  Later on the State Government clarified that the  lib- eralised policy would not be applicable to the life convicts whose death sentence has been commuted to life imprisonment.     In 1978, the Code of Criminal Procedure 1973 was amended introducing  section 433A providing that such life  convicts should undergo actual imprisonment of 14 years in jail. This Court declared that section 433A of the Code is  prospective in effect and did not operate against those cases which were decided by the trial court before 18.12.1978 (Maru Ram  etc. etc. v. Union of India and Anr., [1981] 1 SCR 1196). The  cases of respondents were in fact covered by  the  said decision. 432 They  have  filed writ petitions before the High  Court  for premature  release  and the High Court  directed  the  State Government  to  consider their cases. The  State  Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

has .,preferred these appeals, by special leave, against the orders of the High Court. Dismissing the appeals, this Court,     HELD:  1.1. No one has got a vested right to claim  pre- mature release on the ground that he has suffered the  mini- mum  actual  imprisonment as prescribed under  section  433A Cr.P.C.  because  a sentence of ’imprisonment for  life’  is incarceration until death, that is, for the remaining period of  convicted person’s actual life. There is no question  of releasing  such a lifer early in the absence of an order  of commutation under section 55 IPC by the appropriate  Govern- ment, or under section 433(b) of Criminal Procedure Code  of 1973 by the appropriate Government or on a clemency order in exercise  of power under Article 72 or 161 of the  Constitu- tion of India. [435E-F; G-H]     1.2. In the instant case, the conviction of the respond- ents was recorded early to the introduction of section  433A and,  therefore,  as per the ratio laid down in  Maru  Ram’s case, the two respondents are entitled for consideration  of release by the appropriate Government as per the  prevailing rules  or executive instructions. Further,  admittedly,  the State  Government did not take up the cases of the  respond- ents for premature release within six months of the order of this  Court  dated 10th December 1980 in  Sant  Ram’s  case, (W.P. Nos. 1252-64/80 etc. etc.) and deferred the considera- tion of premature release till the respondents had completed 14  years of substantive sentence. It has become  obligatory for the State to consider the cases of premature release  of the  respondents in accordance with the rules  or  executive instructions prevailing and applicable to them at the  rele- vant  time i.e. between the period 10.12.1980 and  9.6.1981. The plea of the appellant that the premature release of  the respondents was not considered since they have not completed 14 years of substantive imprisonment is in violation of  the directions  of the order dated 10th December, 1980  of  this Court and so the appellant cannot be permitted to make  such a  plea on the strength of the executive instructions  over- looking  and  ignoring  the above directions.  There  is  no infirmity  in  the judgments of the High Court  calling  for interference. [436E-F; 437F; 438H; 439A-C]     Kishori Lal v. Emperor, AIR 1945 P.C. 64; Gopal  Vinayak Godse  v. The State of Maharashtra and Others, [1961] 3  SCR 440;  Maru Ram etc. etc. v. Union of India & Anr., [1981]  1 SCR 1196; Kartar Singh and 433 Others  v. State of Haryana, [1982] 3 SCC 1 and Sadhu  Singh v. State of Punjab, [1984] 2 SCR 741, relied on.

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 365 of 1986 and 245 of 1990.     From  the  Judgment and Order dated 21.12. 1984  of  the Punjab and Haryana High Court in Crl. Writ Petition No.  399 of 1983 and 25 1 of 1983. Mahabir  Singh  (N.P.) and Dalveer Bhandari for  the  Appel- lants. A.K. Goel for the Respondents. The Judgment of the Court was delivered by     S.  RATNAVEL PANDIAN, J. Leave granted in Special  Leave Petition (Criminal) No. 1158 of 1985.     The  State  of Haryana has preferred these  two  appeals against the Judgment and Order of the Punjab & Haryana  High Court dated 21.12. 1984 in Writ Petition Nos. 399/83 and  25

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

1/83 respectively passing similar orders directing the State Government  to  consider the cases of  the  respondents  for premature release. The  facts which lie in a very narrow compass may be  stated thus:     The respondents were convicted under Section 302 of  the Indian  Penal Code and sentenced to death by the  Additional Sessions  Judge, Karnal which sentence inflicted on each  of them was subsequently commuted to life imprisonment on mercy petitions.     It seems that the State Government issued various execu- tive  instructions  from  time to time  either  altering  or amending  the existing instructions by fresh  executive  in- structions specifying the minimum period of actual detention to be undergone by a convict sentenced to life  imprisonment before his case for premature release could be considered by the State Government. To appreciate the case of the  respec- tive  parties it would be apposite to make reference to  the relevant  instructions.  At  the  outset,  the  instructions contained  in paragraph 5 16-B of Punjab Jail  Manual  which are in the nature of executive instructions by way of  guid- ance  may be referred to which instructions are based  on  a Government of India resolution No. 159-167 dated 6th 434 September, 1905. The aforesaid paragraph reads thus: "516-B(a)  With the exception of females and who were  under 20  years of age at the time of commission of  offence,  the cases of every convicted prisoner sentenced to: (i) imprisonment for life  .............................................. (iv)  ......................................... (a) who has undergone a period of detention in jail  amount- ing  together  with remission earned to 14 years,  shall  be submitted  through the Inspector General of Prisons,  Punjab for the orders of the State Government".     The substance of the above paragraph is that the case of a  male lifer who was above 20 years of age at the  time  of commission of offence sentenced to life imprisonment and who has  undergone  detention in jail  amounting  together  with remission  earned  to 14 years, should be submitted  to  the State Government for consideration of his premature release. It  further appears in the year 1971, the  State  Government after a considerable deliberation took a policy decision and issued instructions through its Memorandum No. 133 11-6J  J- 71/  39656  dated 10th of November, 1971  providing  that  a period  of  actual sentence of 8 1/2 years in  the  case  of adult  life convicts and 6 years in the case of female  con- victs  as well those male convicts below 20 years of age  at the time of commission of offence should be regarded as  the qualifying  period of consideration for  premature  release. This  memorandum was clarified that all cases  of  prisoners should be sent for consideration of their premature  release in  the light of the said policy decision with  effect  from 2nd November, 1971.     Thereafter,  in January 1976 the question  of  releasing prematurely  life  convicts whose death  sentence  has  been committed  was again considered by the State Government  and it  took a policy decision that cases of such life  convicts should  be considered for premature release only after  com- pletion  of  14  years of actual imprisonment  and  in  that behalf  Memorandum  No. 403-6JJ-76/3456 dated  30th  January 1976 containing the necessary instructions was issued by the State  Government. It is culled out from the impugned  judg- ment  of the High Court in Criminal Appeal No. 365  of  1986 (arising out of Writ Petition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

435 No. 399/83) that the State Government with a view to libera- lise  the policy of premature release of  prisoners  decided that such cases might be reviewed by a State Level Committee comprising of four members inclusive of Minister for Prisons and directed the concerned Superintendent of Jail to  submit cases of life convicts two months before they completed 81/2 years  substantive  sentence  and sentence  of  14/10  years including remission along with his comments to the Inspector General  of Prisons, Haryana who thereupon would put up  all cases  along  with  his  recommendations  for  consideration before  the  Committee and further  directed  the  Inspector General of Prisons to submit a copy of the decision taken by the  said Committee along with the roll of each prisoner  to Government within one week.     Be  that  as it may, the Parliament  introduced  Section 433(A)  by the code of Criminal Procedure  (Amendment)  Act, 1978  (45 of 78) with effect from 18.12.1978.  According  to Section 433(A) that a person who has been sentenced to death and  whose  death  sentence has been commuted  into  one  of imprisonment for life and persons who have been sentenced to imprisonment for life for an offence for which death is  one of  the  punishments provided by law should  undergo  actual imprisonment  of 14 years in jail. We are referring to  Sec- tion  433(A) in this judgment only for a limited purpose  of showing  that  after the introduction of this  section,  the life  convicts failing within the purview of Section  433(A) has  to  undergo the mandatory minimum 14  years  of  actual imprisonment.  It may be mentioned at this juncture that  no one has got a vested fight to claim premature release on the ground that he has suffered the minimum actual  imprisonment as  prescribed  under Section 433(A) because a  sentence  of ’imprisonment  for life’ is incarceration until death,  that is,  for the remaining period of convicted  person’s  actual life vide Kishori Lal v. Emperor, AIR 1945 Privy Council 64; Gopal Vinayak Godse v. The State of Maharashtra and  Others, [1961]  3  SCR 440; Maru Ram Etc. Etc. v. Union of  India  & Anr., [1981] 1 SCR 1196; Kartar Singh and Others v. State of Haryana, [1982] 3 SCC 1 and Sadhu Singh v. State of  Punjab, [1984] 2 SCR 741.     There is no question of releasing such a lifer early  in the absence of an order of commutation under Section 55  IPC by  the appropriate Government which term is  defined  under Section 55(A) IPC or under Section 433(b) of Criminal Proce- dure  Code  of 1973 by the appropriate Government  or  on  a clemency order in exercise of power under Article 72 or 16 1 of the Constitution of India. Incidentally, it may be stated that  Section  54  empowers the  appropriate  Government  to commute  the  sentence  of death for  any  other  punishment provided by the Indian Penal Code. 436     Section  432  of the Criminal Procedure Code  gives  the power to the appropriate Government either to suspend or  to remit  the sentences. The meaning of the expression  ’appro- priate Government’ occurring in Section 432 and 433 is given under sub-section 7 of Section 432.     The  Constitution Bench of this Court in Maru  Ram  Etc. Etc.  v.  Union  of India & Anr., [1981] 1  SCR  1196  after thoroughly  examining the intendment of Section 433(A)  con- cluded  by formulating its various findings one of which  is as follows: "We declare that s. 433A, in both its limbs (i.e. both types of  life  imprisonment specified in it), is  prospective  in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years’ actual imprisonment will  not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

operate against those whose cases were decided by the  trial court  before  the 18th December 1978  (directly  or  ratro- actively, as explained in the judgment) when s. 433(A)  came into  force. All ’lifers’ whose conviction by the  Court  of first  instance was entered prior to that date are  entitled to  consideration by Government for release on the  strength of earned remissions although a release can take place  only if Government makes an order to that effect."’     Now, coming to the facts of case on hand, admittedly the conviction  of  the respondents was recorded  early  to  the introduction  of Section 433(A) and, therefore, as  per  the ratio  laid down in Maru Rarn’s case (ibid), these  two  re- spondents  are entitled for consideration of release by  the appropriate Government as per the prevailing rules or execu- tive instructions.     After the judgment dated 11.11.1980 in Maru Ram’s  case, a  number of life convicts filed batch of writ petitions  in Writ Petition Nos. 1252-64 etc. etc. captioned Sant Ram etc. etc. v. Union of India & Ors. etc., and those writ petitions were  disposed of by an order of this Court  dated  December 10,  1980. Ram Diya, the respondent in Criminal  Appeal  No. 365  of  1986 was one of the petitioners  in  the  connected batch  of Writ Petition Nos. 1532-1539 of 1980.  The  common order passed in all those petitions reads thus: "All of these Writ Petitions except Writ Petition Nos.  1477 and 1478 of 1980 shall stand disposed of in accordance  with the judgment of this Court dated November 11, 1980 in 437 Maru Ram Etc. Etc. v. Union of India & Anr., W.P. No. 865/79 etc.  etc. All persons who were released on bail shall  sur- render  to their sentence and the respective  State  Govern- ments  will pass appropriate orders in each individual  case or generally in any group or class of cases in the light  of the judgment aforesaid within six months from today. If  in particular cases, orders of release have been  passed prior to the introduction of Section 433(A), Criminal Proce- dure Code, the accused need not surrender to their bail."     From the impugned judgment of the High Court, it is seen that  the respondent (Ram Saran) also filed a Criminal  Writ Petition  seeking direction to the State Government to  con- sider  his case for premature release and the same was  dis- posed  of by an order dated December 10, 1980 in  accordance with the decision in Maru Ram’s case, and that Ram Saran who is  said to have undergone 16 years 1 month and 28  days  of imprisonment  including 5 years 8 months and 27 days  remis- sions as on July 21, 1982 was released on bail.     It  appears  the  Government  have  issued  letter   No. 43/15783-JJ(2) dated February 27, 1984 clarifying the earli- er  instructions  dated November 28,  1977  and  reiterating their inapplicability to life convicts whose death  sentence has been commuted to life imprisonment on their mercy  peti- tions  and further stating that consideration  of  premature release of such convicts shall continue to be considered  in the  light of the Government policy decision dated  December 12, 1967 thereby making it obligatory for them to undergo 14 years substantive sentence.     Admittedly,  the  State Government did not take  up  the cases  of the respondents for premature release  within  six months of the Order of the Supreme Court dated 10th December 1980  and  deferred the consideration of  premature  release till  the respondents had completed 14 years of  substantive sentence.  In the written statement filed by  the  Inspector General of Prisons, it is averred as follows: "It  is submitted that the conduct of the petitioner  during his  confinement  in  the jail was satisfactory  but  it  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

irrelevant  as  far as the consideration  of  his  premature release  case  is  concerned. According  to  the  Government policy  his premature release case is to be considered  when he has 438 undergone  14 years substantive sentence and 20  years  sen- tence including remission. His jail conduct will be  consid- ered when he has completed 14 years substantive sentence.  ’ ’     In  Sadhu  Singh’s  case (ibid), it has  been  urged  on behalf of the lifers that the State Government relying  upon the executive instructions issued on 30.1.76 had erroneously made  a distinction between cases of prisoners who had  been sentenced to death but whose sentence on mercy petitions had been  commuted to life imprisonment and cases  of  prisoners who had been straightaway sentenced to life imprisonment  in the  matter  of consideration of their cases  for  premature release  and that it is not open to the State Government  to rely  upon  those executive instructions dated  30.1.76  for making  the distinction and postponing the consideration  of the  cases of prisoners falling within the  former  category until  14 years of actual imprisonment has been suffered  by them. This argument was answered by this Court holding thus: "The second contention also must fail in view of the  admit- ted position that cases of prisoners who have been sentenced to  death  but whose sentence on mercy  petitions  has  been commuted  to  life imprisonment (who constitute  a  distinct class)  will now be governed by the 1976 instructions.  Here also the view of the Punjab High Court in the case of  Mehar Singh  (supra) that the 1976 instructions issued on 30th  of January  1976 will not be applicable to cases  of  prisoners convicted  earlier  to  that date is  not  tenable.  Clearly existing cases of life convicts falling within that category will be governed by those instructions."     So  far as these cases are concerned, premature  release of  the  respondents  has to be considered in  view  of  the directions  given by this Court in the Order dated  December 10,  1980 in the batch of writ petitions which  instructions admittedly have not been complied with merely on the  ground that  the respondents have not completed 14 years of  actual imprisonment  since these respondents constitute a  distinct class  in that they have been initially sentenced  to  death which  has  been  commuted on their  mercy  petitions.  This argument  is  not  available to the  appellant  because  the respondents’ premature release is required to be  considered as  per  the  directions  of this  Court  vide  Order  dated 10.12.1980. Hence it has become obligatory for the State  to consider the cases of premature release of these respondents in 439 accordance with the rules or executive instructions prevail- ing.and applicable to them at the relevant time i.e. between the  period 10.12.1980 and 9.6.1981. The plea of the  appel- lant  as reflected from the written statement filed  by  the Inspector  General of Police that the premature  release  of the  respondents  was  not considered since  they  have  not completed 14 years of substantive imprisonment is in  viola- tion of the directions of the Order dated 10th December 1980 of  this Court and so the appellant cannot be  permitted  to make  such a plea on the strength of the executive  instruc- tions overlooking and ignoring the above directions. In  the premises,  we see no infirmity in the judgments of the  High Court calling for interference.     For  the aforementioned reasons, we uphold the  impugned Judgment  and  Order  of the High Court  and  dismiss  these

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

appeals as devoid of any merit. G.N.                                           Appeals  dis- missed. 440