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PETITIONER: SADHU SINGH RODA S/O BUTA SINGH ETC.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT25/01/1984

BENCH: TULZAPURKAR, V.D. BENCH: TULZAPURKAR, V.D. PATHAK, R.S. MUKHARJI, SABYASACHI (J)

CITATION:  1984 AIR  739            1984 SCR  (2) 741  1984 SCC  (2) 310        1984 SCALE  (1)100  CITATOR INFO :  E          1990 SC1336  (7,16)

ACT:      Code of Criminal Procedure 1973-Secs. 433 and 433A.      Punjab Jail  Manual-Para  516-B-Interpretation  of-Para 516-B  is  not  a  statutory  rule  but  contains  executive instructions which  can be  amended by  subsequent executive instructions issued by State Government.

HEADNOTE:      Paragraph 516-B  of the  Punjab  Jail  Manual  provided inter  alia   that  after   a  person   sentenced  to   life imprisonment  had   undergone  detention   for  the   period specified in  that paragraph together with remission earned, his case  should be  submitted to  the State  Government for consideration of  his pre-mature  release. In 1971 the State Government issued  instructions laying  down certain minimum period of  actual detention  to be  undergone  by  a  person sentenced to  life imprisonment  before his  case  for  pre- mature release  could be considered by the State Government. In 1976  the State  Government issued  further  instructions that cases  of life  convicts whose  death sentence had been commuted to  life  imprisonment  should  be  considered  for premature release  only after  completion  of  14  years  of actual imprisonment.  The petitioners,  who claimed  to have satisfied the  requirements of  para 516-B  and thus  become entitled to  be considered for pre-mature release under that paragraph,  alleged   that  following   the  1971  and  1976 instructions the  jail authorities were not submitting their cases to  the State  Government for  consideration of  their pre-mature release. The petitioners contended that para 516- B  was   a  statutory  rule  and  the  subsequent  executive instructions issued  in 1971  and 1976  could not  amend  or alter the  statutory rule  thereby adversely affecting their rights under Para 516-B.      Dismissing  the   five  petitions   and  allowing   two petitions, ^      HELD: A sentence of imprisonment for life is a sentence for the  remainder of  the natural  life of  the convict and there is no question releasing such a convict earlier in the

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absence of a formal order of commutation passed by the State Government either under sec. 55, IPC. or sec. 433 (b) of Cr. P.C.  1973   and  that  even  the  Remission  Rules,  though statutory,  cannot   over-ride  the   statutory   provisions contained in the Penal Code. Admittedly, in the case of none of the  petitioners  before  the  Court  has  any  order  of commutation been passed by the State Government under either of the said provisions. [746E-F] 742      Pandit Kishori  Lal AIR 1945 PC. 64; Gopal Godse [1961] 3 S.C.R. 440; Maru Ram,[1981] 1 S.C.R. 1196 and Kartor singh [1982] 3 S.C.R. 1; referred to.      Para 516.B  of the  manual itself  contained  executive instructions and  had no  force of a statutory rule. If that be so  it would  always be open to the State Government from time to  time to  alter  or  amend  or  even  withdraw  such executive instructions  by issuing  fresh instructions.  But once fresh  instructions for processing the cases for lifers for pre-mature  release are  issued these  must be uniformly and invariably applied to all cases of lifers so as to avoid the  charge   of  discrimination   under  Art.   14  of  the Constitution. [748E-F]      In Naranjan  Singh’s case  (which decision  is  subject matter of  challenge in  criminal appeal  arising from leave being granted  in SLP  (Crl.) No. 499 of 1983) the fact that the State  Government had  issued the 1971 instruction which substituted Para 516-B of the manual was not properly placed before the  High Court  and in  the absence  of such  proper material the  High Court  took the  view that  the convict’s case for pre-mature release was required to be considered in the light  of the  provisions of Para 516-B. The view of the High Court cannot obviously be accepted. [748G-H]      The contention  of the  petitioners that  the State had been erroneously  making  a  distinction  between  cases  of prisoners  who   had  been  sentenced  to  death  but  whose sentences, on  mercy petitions,  had been  commuted to  life imprisonment  and   prisoners  who   had  been  straightaway sentenced  to   life   imprisonment   in   the   matter   of consideration of  their cases  for pre-mature  release, must fail  in  view  of  the  admitted  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. The  view of  the  High Court in  the case  of Mehar  Singh v.  State of Punjab (not reported) that  the 1976 instructions will not be applicable to cases  of prisoners convicted earlier to that date is not tenable. Clearly  existing cases  of life  convict’s falling within that category will be governed by those instructions. [749A-C]

JUDGMENT:      ORIGINAL JURISDICTION: Writ Petition (Criminal) Nos. 64 to 70 of 1983.      Under article 32 of the Constitution of India      Mrs. Urmila  Sirur, Sanjeev  Puri and  Amerdeep Jaiswal for the Petitioners.      Harbans Singh and S.K. Bagga for the Respondent.      The Judgment of the Court was delivered by      TULZAPURKAR, J.  In the  context of  the right  of  the ’lifers’ (prisoners  sentenced to life imprisonment prior to 18th December, 743

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1978 being  the date  of coming  into force  of  sec.  433A, Cr.P.C.) to  have  their  cases  considered  for  pre-mature release under  the Punjab  Jail Manual  two contentions were urged by  counsel appearing  for the lifers before us in the above matters. First, it was contended that such lifers were entitled  to   have  their   cases  for  pre-mature  release considered by the concerned authorities on completion of ten years of  sentence inclusive  of remissions in the case of a female prisoner  or a male prisoner of under 20 years of age at the  date of  the commission of the offence or completion of 14  years of sentence inclusive of remissions in the case of adult  prisoners under  Para 516-B  of  the  Punjab  Jail Manual but  since November,  1971 the  authorities concerned are not  submitting their cases for such consideration until actual substantive  imprisonment has  been undergone  for  6 years in  case of  female prisoners  and prisoners  below 20 years at  the date  of the  commission of  the offence and 8 years in  case of adult prisoners and in that behalf certain executive instructions  issued by  the Punjab  Government on 6th August,  1971 are being relied upon but according to the counsel for the lifers such executive instructions issued in 1971 cannot affect the right conferred upon the lifers under Para 516-B  which has  the force  of a  statutory  rule  and Statutory  Rules   cannot  be  amended  or  altered  by  any executive instructions;  hence the lifers concerned in these matters are entitled to have their cases considered for pre- mature release  since they  satisfy the requirements of Para 516-B of  the Punjab  Jail Manual.  In this  behalf  counsel relied upon the Punjab High Court’s decision dated 9.11.1982 in Naranjan  Singh’s case (which decision is subject. matter of challenge  in Criminal  Appeal arising  from leave  being granted in  SLP (Crl. No. 499/1983). In other words, counsel canvassed for  acceptance of the Punjab High Court’s view in the aforesaid case by this Court.      Secondly, counsel  for the  lifers urged that the State of Punjab  has been erroneously making a distinction between cases of  Prisoners who  have been  sentenced to  death  but whose sentences,  on mercy  petitions, have been commuted to life imprisonment  and prisoners  who have been straightaway sentenced  to   life   imprisonment   in   the   matter   of consideration of their cases for pre-mature release in that, in the  case of  the former completion of 14 years of actual sentence is  insisted upon  while in  the case of the latter only 8  years of  actual sentence  is regarded as sufficient for such  consideration, the  case  of  Tapinder  Singh  s/o Manjit Singh,  the petitioner in Writ Petition (Crl.) No. 68 of 1983  being in  point. According  to  counsel  the  State Government in this behalf has been relying upon certain 744 executive instructions  issued on  30th of January, 1976 but counsel pointed out that in the case of Mehar Singh v. State of Punjab(1)  a Single  Judge of  the Punjab High Court held that those  instructions will  not be applicable to cases of prisoners convicted  earlier to  that date and Special Leave Petition (Crl.)  No. 2142  of 1982 preferred by the State of Punjab against  that decision was dismissed by this Court on 18th of February, 1983 and, therefore, it is not open to the State Government  to rely  upon those executive instructions issued on  30th January, 1976 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.      Paragraph 516-B of the Punjab Jail Manual runs thus:           516-B. (a)  With the  exception of  females and of      males who  were under  20 years  of age  at the time of

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    commission of  offence, the  cases of  every  convicted      prisoner sentenced to:-      (i)  Imprisonment for life.      (ii) Imprisonment/s   for    life   and    term/s    of           imprisonment.       (iii)  Cumulative  Periods  of  Rigorous  imprisonment           aggregating of more than 14 years.      (iv) a single sentence of more than 20 years.:-      (a)  who has  undergone a  period of  detention in jail           amounting together  with remission  earned  to  14           years, shall  be submitted  through the Inspectors           General of  Prisons, Punjab  for the orders of the           State Government.      (b)  the case  of a  female  prisoner  and  of  a  male           prisoner under  20 years  of age  at the  time  of           commission of offence, who is undergoing-      (i)  Imprisonment/s for life.      (ii) Imprisonment/s  for   life   and   a   term/s   of           imprisonment. 745       (iii)  Cumulative  periods  of  Rigorous  imprisonment           aggregating to more than 10 years. or;      (iv) A single  sentence of  more than 20 years shall be           submitted  through   the  Inspector   General   of           Prisons, Punjab,  for  the  orders  of  the  State           Government  when  the  prisoner  has  undergone  a           period of  detention in  jail  amounting  together           with remission earned to 10 years.      (v)  Notwithstanding  anything   contained   above,   a           Superintendent, Jail may, in his discretion, refer           at  any   time,  for   the  orders  of  the  State           Government  through   the   Inspector-General   of           Prisoners,  Punjab,   the  case  of  any  prisoner           sentenced to  imprisonment for life whose sentence           might in  the Superintendent’s opinion be suitably           commuted into a term of imprisonment."      It appears  that from time to time the State Government had been  examining the  question of, and the procedure for, submission of  Roles for  pre-mature release of prisoners as contained in  the aforesaid  Para 516-B  of the  Manual  and after considerable  deliberation the State Government took a policy decision in 1971 and issued instructions (hereinafter called ’the  1971 Instructions’)  providing that a period of actual sentence of 8 years in the case of adult lifers and 6 years in  the case  of female  prisoners and  those below 20 years of  age at  the time  of the commission of the offence should  be   regarded   as   the   qualifying   period   for consideration of  their cases  for pre-mature release and in this behalf a Memorandum No. 133116JJ-71/39656 dated 10th of November, 1971  containing the  aforesaid  instructions  was issued by  the State  Government to the Inspector-General of Prisons, Punjab  and it  was clarified  that  all  cases  of prisoners should  be sent  for consideration  of their  pre- mature release  in the  light of  said policy  decision with effect from  2nd of  November, 1971. It further appears that the question  of releasing  pre-maturely life convicts whose death sentence has been commuted was again considered by the State Government  and it  took a policy decision in January, 1976 that  cases of  such life convicts should be considered for pre-mature  release only  after completion  14 years  of actual imprisonment and in that behalf a Memorandum No. 403- 6JJ-76/3456  dated   30th  January,   1976  containing   the necessary  instructions   (hereinafter  called   ’the   1976 Instructions’) was  issued by  the State  Government to  the Inspector-General of Prisons, Punjab with a

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746 request to  direct the  Superintendents of  Jails to  submit cases  of   such  life   convicts  for   pre-mature  release accordingly.  (Copies   of  the   Memoranda  dated  10th  of November, 1971  and 30th  January, 1976 have been annexed as Annexures and  to the Affidavit of Shri C.L. Goel in support of the  SLP No  499/1983 filed  by the  State of  Punjab  in Naranjan Singh’s  case. (Proceedings  of SLP No. 499/83 were made available  to us at the hearing.) It may be stated that these 1971  Instructions and  1976 Instructions  though  not incorporated in  the Punjab  Jail Manual  as yet,  are being followed and  implemented and  it appears  that  relying  on these Instructions  the Jail  Authorities are not submitting cases of  the concerned  lifers to  the State Government for pre-mature  release   though  they  may  have  suffered  the qualifying punishment  under para 516-B of the Manual. Hence Counsel for  the  petitioners  herein  has  raised  the  two contentions mentioned  above. In  our view,  for the reasons which we  are indicating presently, there is no substance in either of these contentions.      It is  well settled  as result  of  the  Privy  Council decision in  Pandit KishoriLal’s  (1) case  and this Court’s decisions in Gopal Godse’s (2) case, Maru Ram’s (3) case and Kartar Singh’s  (4) case that a sentence of imprisonment for life is  a sentence for the remainder of the natural life of the convict  and there  is  no  question  releasing  such  a convict  earlier  in  the  absence  of  a  formal  order  of commutation passed by the State Government either under sec. 55, IPC.  or sec, 433 (b) of Cr. P.C. 1973 and that even the Remission Rules,  though  statutory,  cannot  over-ride  the statutory provisions  contained in  the Penal Code. In other words, unlike  the cases  of prisoners sentenced to terms of imprisonment, in the case of lifers even the Remission Rules though statutory  are of no avail in the absence of a formal order of  commutation either under sec. 55, IPC. or sec. 433 (b) of Cr. P.C. 1973. Admittedly, in the case of none of the petitioners before  us has  any order  of  commutation  been passed by  the State  Government under  either of  the  said provisions and  the petitioners are merely relying upon para 516-B of the Punjab Jail Manual for contending that they are entitled to  have  their  cases  considered  for  pre-mature release since  they have  undergone the  requisite period of punishment-14 years/10  years inclusive of remissions as per the provisions of the said para and the contention is 747 that since  Para 516-B  has the  force of statutory rule the subsequent executive  instructions (the 1971 Instructions or the 1976 Instructions) issued by the State Government cannot adversely affect  their said  right in as much as the effect of a  statutory rule  cannot be  whittled down  by executive instructions. On  the  other  hand  counsel  for  the  State contended that  the provisions  contained in Para 516-B were themselves executive  instructions and  not a statutory rule and as  such these  could be amended or altered from time to time by  fresh executive  instructions issued  by the  State Government and  therefore the  petitioners’ cases  were  not submitted to  the concerned authorities for consideration of their pre-mature release because of the subsequent executive instructions issued in 1971 and 1976. We find ample material on record  which supports  the contention of counsel for the State.      In the  first place, it may be stated that the marginal note against  Para 516-B  of the  Punjab Jail  Manual  (1975 edition) clearly shows that the provisions thereof are based on a  Government of  India Resolution  No. 159-167 dated 6th

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September, 1905, copy whereof was produced before us and the contents  of   the  Resolution  clearly  show  that  various questions such  as the  places where  transported  prisoners should be kept, the nature of their punishment, remission of sentences,  pre-mature   releases,  etc.   had  engaged  the attention of Government of India and decisions were taken on those questions.  In particular  the Resolution records that the majority  of the authorities consulted were in favour of the proposal  of the  U.P. Government  that when the term of imprisonment undergone  together with  any remission  earned under the  rules  amounted  to  14  years  the  question  of remitting the remainder of the imprisonment should be raised and the  Governor-General in Council was accordingly pleased to direct  that such  a rule "shall be ordinarily adopted in future, though  he would  not, however,  lay down  that such prisoners must always be released at the end of the 14 years and it  would still be open to, and indeed incumbent on, the Local Government  to take  into consideration, when deciding on the remission to be granted, circumstances of each, case, the character  of the convict, his conduct in prison and the probability  of   his  reverting   to  criminal   habits  or instigating others to commit crimes". What is more copies of the Resolution  were forwarded  to various  State Government "for information  and guidance." This clearly shows that the contents of  Government’s Resolution  dated  6th  September, 1905, on  which para  516-B of  the Punjab  Jail  Manual  is based, were  in the  nature of executive instructions by way of guidance and not any hard and fast rule, 748 must less a statutory rule. Secondly, this position has been sufficiently clarified  at two  places in  the  Punjab  Jail Manual (1975 edition) itself. In the preface to that edition it has been clearly stated that the Paragraphs of the Manual against which  a  black  line  (side-line)  appears  are  in substance, either  quotations from the Law or from the Rules having the force of the law while the portions of the Manual without a  black line  (side-line) are executive instruction which have  from time  to time been issued by the Government of India, Local Government or the Inspector General with the sanction and  approval from  the Local  Government and  para 516-B is not side-lined by any black line. Again, Chapter XX which deals  with remission  system contains Para 631 to 650 which comprise  what in  terms are  called ’remission rules’ presumably having  statutory force since these paras are all side-lined, but what is of importance is that at the foot of para 631 there is a Note which is nothing but a reproduction of para  516-B and  at the  end of  Remission Rules (foot of para 650)  there is  a Nota bene which says that the Note to para 631  should not  be regarded  as part  of the Statutory Rules but  the same  has been  inserted for  convenience  of reference and  with the  object  of  assisting  officers  to interpret the rules. It is thus clear that para 516-B of the Manual itself  contained executive  instructions and  had no force of  a statutory rule. If that be so it would always be open to  the State  Government from time to time to alter or amend  or  even  withdraw  such  executive  instructions  by issuing fresh  instruction.  In  other  words  any  existing executive instructions could be substituted by issuing fresh executive instructions  for processing  the cases  of lifers for  premature   release  but  once  issued  these  must  be uniformly and  invariably applied  to all cases of lifers so as to avoid the charge of discrimination under Art. 14.      Reliance by  Counsel for  the petitioners on the Punjab High Court’s  decision in  Naranjan Singh’s case would be of no avail However, we would like to observe that in that case

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the fact  that the  State Government  had  issued  the  1971 Instructions which  substituted para 516-B of the Manual was not properly  placed before  it and  in the  absence of such proper material  the High  Court  took  the  view  that  the convict’s case  for per-mature  release was  required to  be considered in the light of the provisions of para 516-B. The view of  the Punjab High Court cannot obviously be accepted. The first  contention urged  by counsel  therefore has to be rejected. 749      The second  contention also  must fail  in view  of the admitted 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. It is  true that  SLP (Crl) No. 2142/1982 preferred by State of Punjab  against that decision was dismissed by this Court on 18th  February, 1983  but the  dismissal order  passed by this Court  itself indicates  that this  Court  did  so  not because it  approved the  view of  the Punjab High Court but that it  "did not  consider this  to be  a proper  cases for interference in  view of  the peculiar  facts of that case". This Court  did not  desire on  the facts  of that  case  to interfere with  the direction  given that  the case  of  the convict  should   be  submitted  for  consideration  of  his premature release.      Having regard to the above discussion it is clear there is no  entitlement on the part of the petitioners other than Jang Singh and Mukhtiar Singh to have their cases considered for pre-mature  release immediately  in  view  of  1971/1976 Instruction. Their Writ Petitions are therefore dismissed.      So far as Jang Singh s/o Bagga Singh and Mukhtiar Singh s/o Harnam Singh are concerned even the Counter Affidavit of Shri K.C.  Mahajan shows  that in  accordance with  the 1971 Instruction they  have undergone more than 8 years of actual imprisonment and  as such  they  have  the  entitlement.  We therefore issue  a writ  of Mandamus  that  their  cases  be submitted for  consideration of premature release forth with without any delay. H.S.K.                        Two petitions allowed and five                                     petitions dismissed. 750