REPORABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.  2064-2066      OF 2008 (Arising out of SLP (C) Nos.8248-8250 of 2007)

State of Haryana … Appellant

Versus

Bhup Singh & Ors. … Respondents

J U D G M E N T

S.B. Sinha, J.

1. Leave granted.

2. Jurisdiction of the Court to interfere with the authority of the State in

terms of the Government Instructions in regard to release of the convicts is

in  question in this  appeal  which arises  from a judgment and order dated

13.7.2007 passed by a learned Single Judge of the Punjab and Haryana High

Court  at  Chandigarh  directing  release  of  the  respondents  from  prison,

stating:

“According  to  written  statement  in  the  case  of Bhup Singh, he had undergone actual sentence of 14 years and 26 days as on 6.5.2007.  Accordingly, he has undergone a few days more than 14 years and  3  months  of  actual  sentence  as  on  today. According to written statement in the case of Om Prakash,  he  had undergone  actual  sentenceof  13 years 11 months and 27 days as on 19.4.2007 and thus, he has undergone actual sentence of 14 years 3 months and 21 days as on today.  Thus, both the petitioners  have  undergone  more  than  3  months over  and above  the  actual  sentence  of  14  years. Thus,  provisions  of  section  433-A  of  the  Code also being taken into consideration, the petitioners deserve to  be released immediately as  they have already completed the actual sentence of 14 years. On the other hand, if judgment dated 24.7.2003 of this  Court  is  taken  into  consideration,  then  the petitioners  should  have  been  released  about  4 years  ago.   Thus,  viewed  from  any  angle, continued  incarceration  of  the  petitioners  in  the jail is completely illegal and untenable.

For the forgoing reasons, both these criminal writ petitions are allowed and both the petitioners are ordered to  be released forthwith from jail  unless they are required in  some other case.   However, this direction is subject to final outcome of Special

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Leave  Petition  (Criminal)  No.1488  of  2004 pending in the Hon’ble Supreme Court.”

3. Respondents  were  convicted  for  commission  of  offences  under

Section  302  of  the  Indian  Penal  Code,  by  a  judgment  and  order  dated

25.1.1988 for murder of three persons.   They were sentenced to undergo

rigorous imprisonment for life.

4. The  Government  of  Haryana  took  a  policy  decision  as  regards

premature release of the life convicts by putting them in various categories.

The cases for premature release of the appellants were not considered on the

premise that the offence committed by them fell in the category of ‘heinous

crimes’ as murder of more than two persons was involved and, thus, could

be considered only after completion of 20 years’ actual imprisonment and

25 years’ imprisonment including remissions.

5. The validity or otherwise of the said policy decision was questioned

by the respondents by a writ petition before the Punjab and Haryana High

Court which was marked as Criminal Miscellaneous No.30109-M of 2002.

The said writ petition was allowed by a judgment and order dated 24.7.2003

holding that they were entitled to be considered for premature release on the

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expiry of 10 years of actual  sentence and 14 years of sentence including

remissions.   

6. Correctness of the said judgment was questioned before this Court.

By  a  judgment  and  order  dated  13.10.2006,  the  State  was  directed  to

consider the cases of the respondents  and others for premature release in

terms of the judgment of the High Court dated 24.7.2003.  Pursuant thereto

and in furtherance thereof, the orders impugned before the High Court were

passed  by the  State  on  13.12.2006  declining  release  of  the  respondents,

observing  that  they  had  not  completed  the  requisite  period  of  sentence

undergone to qualify for premature release under the existing policy.

7. Mr.  Naseem, learned counsel  appearing  on  behalf  of  the  appellant

would  contend that  the  High Court  could  not  have  issued  the  impugned

direction inasmuch as the State Government could have only been directed

to consider the matter relating to their premature release treating the date on

which he was required to be put up before the State under Article 166 of the

Constitution as the relevant date with reference to which their cases were

required to be considered as opined by this Court in State of Haryana & Ors.

v. Balwan & Ors. [(1999) 7 SCC 355]

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8. The State in exercise of its power under the Prison Rules is entitled to

lay down the guidelines.  It may change its policy from time to time.  From a

recent decision of this Court in State of Haryana v. Mahender Singh & Ors.

[(2007)  12  SCALE 669],  it  appears  that  such policy decisions  had been

taken  by  the  State  on  28.11.1987,  19.11.1991  and  again  on  12.4.2002

(impugned  notification).   This  Court  held  that  the  said  policy  decision

would,  however,  be subject  to  the  statutory rules  framed by the State  in

terms of the Prison Act.  While upholding the right of the State to lay down

a policy decision as regards classification of prisoners, it was opined :

“34.  We  are,  therefore,  of  the  opinion  that  the High Court might not be correct in holding that the State has no power to make any classification at all. A classification validly made would not offend Article 14 of the Constitution of India.”

It was furthermore held :

“Furthermore, if the Punjab Rules are applicable in the  State  of  Haryana  in  view  of  the  State Reorganisation  Act,  no  executive  instruction would prevail over the Statutory Rules. The Rules having defined 'convicts'  in terms whereof a 'life convict'  was entitled to have his case considered within the parameters laid down therein, the same cannot  be taken away by reason of  an executive instruction by redefining the term 'life convict'. It is  one thing  to  say that  the 'life  convict'  has  no right to obtain remission but it is another thing to say  that  they  do  not  have  any  right  to  be

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considered at all. Right to be considered emanates from the State's own executive instructions as also the Statutory Rules.”

9. This Court issued a limited notice as to why the State shall  not be

directed to consider the case of the respondents in terms of Mahender Singh

(supra).  In view of the limited notice issued by this Court, Mr. Naseem,

although was not permitted to raise the contention that the date specified by

this Court in  Balwan Singh (supra) should be considered to be the cut off

date, we may only observe that the directions contained therein cannot be

held  to  be  declaration  of  law  within  the  meaning  Article  141  of  the

Constitution of India.

10. This Court therein did not have any occasion to consider the legality

and/or validity of the policy decision of the State vis-à-vis the Prison Rules.

The right to ask for remission of sentence by a life convict would be

under  the  law  as  was  prevailing  on  the  date  on  which  the  judgment  of

conviction and sentence was passed.  If the executive instructions cannot be

given  a  retrospective  effect  being  not  in  consonance  with  the  Prisoner’s

Rules framed under the Prison Act, we fail to understand as to how the said

decision constitutes a binding precedent.  A decision as is well known is an

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authority  for  what  it  decides  and  not  what  can  logically  be  deduced

therefrom.

11. We, therefore, are of the opinion that keeping in view the decision of

this Court in  Mahender Singh (supra),  the impugned judgment should be

modified directing the appellant to consider the cases of the respondents.  It

is, therefore, directed that if the respondents have not already been released,

the State shall consider their cases in terms of the judgment of this Court in

Mahender Singh’s case (supra) having regard to the policy decision as was

applicable on the date on which they were convicted and not on the basis of

the subsequent policy decision of the year 2002.   

12. Appeal is allowed to the aforementioned extent.  No costs.

……………………………….J. [S.B. Sinha]

..…………………………..…J. [Cyriac Joseph]

New Delhi; December 18, 2008

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