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PETITIONER: STATE OF PUNJAB

       Vs.

RESPONDENT: BABU SINGH

DATE OF JUDGMENT16/04/1991

BENCH: SHARMA, L.M. (J) BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION:  1991 SCR  (2) 421        1991 SCC  (3)  18  JT 1991 (2)   347        1991 SCALE  (1)798

ACT:      Code  of  Criminal Procedure, 1973:  Section  433A-Life convict-Premature   release   of-Whether   permissible-Mercy Petition  pending-High  Court  releasing  convict  on  bail- Validity of order.

HEADNOTE:      On the application for pre-mature release, made by  the respondent, who was undergoing sentence of life imprisonment and had served a period of eleven and a half years the  High Court directed that the respondent’s mercy petition pending before the Governor, should be decided within three  months. Since this was not done, the High Court directed his release on bail, observing that if his mercy petition was  dismissed he would have to surrender.  Against this decision the State filed an appeal before this Court.      Allowing the appeal, this Court,      HELD:  The High Court has not taken into  consideration the  provisions  of Section 433A of the  Criminal  Procedure Code,  1973  while passing the order  for  the  respondent’s release  on bail.  The judicial proceeding dealing with  the conviction  and  sentence of the accused  had  been  earlier concluded, and the order was passed while finally  disposing of the writ petition alleging delay in disposal of the mercy petition.   Thus, no case is now pending before  the  court. The  order  for  the respondent’s release on  bail  has  not therefore,  been  passed as an interim measure  pending  the decision of a case before the Court. In such a situation the provisions of Section 433A are attracted.  The  words  "such person shall not be released from prison" are wide in  their application and cannot be restricted only to case where  the person has been released finally.      The  judgment  in question is set aside  and  the  case remitted  to  the  High Court for  reconsideration  of  writ petition confined to its limited scope.

JUDGMENT:      CRIMINAL  APPELLATE JURISDICTION:  Criminal Appeal  No. 294 of 1991.                                                   422

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    From  the  Judgment and Order dated  10.4.1990  of  the Punjab & Haryana High Court in Crl. Misc. No. 3635 of 1989.      R.S. Suri for the Appellant.      Brijender   Chahar   and  Ashok  Mathur   for   the      Respondent.      The following Order of the Court was delivered      We have heard the learned counsel for the  parties. The delay  in filing the special leave petition is condoned  and leave is granted.      2.  The respondent who was undergoing sentence of  life imprisonment,  had  served a period of eleven  and  an  half years  when he made an application for  pre-mature  release. The  Punjab  and Haryana High Court by  the  impugned  order issued  a  direction  to release  the  respondent  on  bail, observing  further  that if his mercy  petition,  which  was pending, is dismissed, he will have to surrender.     3. The High Court has not taken into  consideration  the provisions  of Section 433A of the Criminal  Procedure  Code while  passing  the order.  A week back  we have  allowed  a criminal  appeal against a judgment of the Punjab &  Haryana High  Court in another case directing pre-mature release  on account of good conduct of the respondent in jail serving  a life  sentence although he had actually been in jail  for  a period  of nine years only.  We set aside the order  as  the provisions  under  Section  433A had  not  been  taken  into consideration, and remitted the matter to the High Court for reconsideration  in accordance with the provisions  of  Jail Manual.   The  learned  counsel for the  respondent  in  the present  appeal  attempted to distinguish the  case  on  the ground  that here the respondent has been only  enlarged  on bail  and  has not been finally released.  We do  not  think that Section 433A, which is quoted below, is inapplicable in the present case:          "Restriction on powers of remission or  commutation          in certain cases-Notwithstanding anything contained          in  Section 432, where a sentence  of  imprisonment          for  life is imposed on conviction of a person  for          an   offence  for  which  death  is  one   of   the          punishments provided by law, or where a sentence of          death  imposed on a person has been commuted  under          Section  433  into one of  imprisonment  for  life,          such  person  shall  not be  released  from  prison          unless he had                                                        423          served at least fourteen years of imprisonment."                                        (emphasis supplied)  The  respondent in his writ petition before the High  Court relied  upon  three instructions (Annexures P-1 to  P-3)  in support  of  his  claim that he is  entitled  to  pre-mature release.   Earlier  the High Court had  directed  the  mercy petition, pending before the Governor, to be decided  within a period of three months.  This was not done and a reply was filed  on behalf of the State explaining  the  circumstances under which the matter remained pending.  In this background the  impugned  order was passed.   The  judicial  proceeding dealing with the conviction and sentence of the accused  had been earlier concluded, and the order of his release on bail was  passed  while finally disposing of  the  writ  petition alleging delay in disposal of the mercy petition.  In  other words,  no  case  in now pending before the  Court,  and  it cannot  be  suggested  that the order  of  the  respondent’s release  on  bail  has been passed  as  an  interim  measure pending the decision of a case before the Court.  In such  a situation the provisions of Section 433A are attracted.  The words  in the Section quoted above and underlined by us  are

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wide  in  their  application and  cannot  be  restricted  as suggested  by the learned counsel for the  respondent.   We, therefore, allow the appeal, set aside the impugned judgment and remit the case to the High Court for reconsideration  of the   writ  petition  confined  to  its  limited  scope   in accordance with law.  The respondent shall surrender without delay  and only thereafter he shall be allowed to press  his application before the High Court. N.P.V.                                       Appeal allowed.                                                   424