Criminal Procedure Code, 1973 – Sections 432 & 433 – Parole – Grant of – Temporary Release – it is appropriate that the Court should leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed of by the detenu – the impugned order is gloriously silent and, in fact, an abrupt direction has been issued to release the first respondent on parole for a period of three months – a Judge is expected to act in consonance and accord with the legal principles – he cannot assume the power on the basis of his individual perception or notion – while using the power he has to bear in mind that “discipline” and “restriction” are the two basic golden virtues within which a Judge functions.
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
[Dipak Misra] and [Shiva Kirti Singh] JJ.
June 29, 2016
CRIMINAL APPEAL NO. 171 OF 2016
(@ S.L.P. (Criminal) No. 7701 of 2012)
State of Gujarat & Anr. …Appellant(s)
Lal Singh @ Manjit Singh & Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
The present appeal, by special leave, is directed against the judgment and order dated August 23, 2012 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Writ Petition No. 1620 of 2011 whereby the High Court entertaining the Writ Petition had opined that the order dated 26.07.2011 passed by the Government of Gujarat declining to grant the benefit of premature release to the first respondent herein is illegal and further directed the State Government to reconsider his case and take a fresh decision in the light of the discussions made in the impugned order and further to release him on parole for a period of three months on furnishing personal bond/security bond for a sum of Rs. 50,000/- to the satisfaction of the concerned Jail Superintendent.
2. The facts which are essential to be stated are that the first respondent along with 20 other accused was tried in TADA Cases Nos. 2, 7 of 1993 and 2 of 1994. The Designated Judge, Ahmedabad (Rural) at Mirzapur, Ahmedabad convicted the first respondent and some others for the offences punishable under
Section 3(3) of the Terrorist and Disruptive Activities (Prevention) Act, 1987
(for short, “the TADA Act”) and sentenced to suffer life imprisonment and to pay a fine of Rs. 10,000/- each and in default to suffer RI for 6 months; under Section 120-B(1) IPC sentenced to suffer RI for 10 years and to pay a fine of Rs. 5,000/- each, in default to suffer RI for 3 months; under Section 5 of the TADA Act sentenced to suffer life imprisonment and to pay a fine of Rs. 10,000/- and in default to suffer RI for 6 months; under Section 5 of the Explosive Substances Act to pay a fine of Rs. 5,000/- and in default to undergo RI for 3 months; under Section 25(1-A) of the Arms Act sentenced to suffer RI for 7 years and to pay a fine of Rs. 5,000/- and, in default, to suffer RI for 3 months. Be it stated, he was also convicted for the offence punishable under Section 3(3) of the TADA Act read with Section 120-B IPC but no separate sentence was awarded. All the sentences were directed to run concurrently.
3. The first respondent preferred Criminal Appeal No. 219 of 1997 and the said appeal was heard along with the appeals preferred by other convicts. This Court in
Lal Singh v. State of Gujarat and another, (2001) 3 SCC 221
scrutinized the evidence in detail and ultimately dismissed the appeal preferred by the first respondent and confirmed the conviction and the sentence as imposed by the learned Judge, Designated Court.
4. During the pendency of the criminal appeal before this Court, the first respondent sought transfer from the Central Prison, Ahmedabad to the Central Prison, Jalandhar on the ground that his family is based in Punjab; his old parents were suffering from number of ailments; and further the financial condition of the family was precarious. Considering the reasons ascribed in the representation, the State Government vide order dated 11.11.1998 consented to transfer the first respondent from Central Prison, Ahmedabad to the Central Prison, Jalandhar. A condition was stipulated by the State of Gujarat that tight security and proper police escort arrangement was to be ensured.
5. The first respondent on 19.01.2004 sought premature release under
Section 432 of the Code of Criminal Procedure, 1973 (CrPC)
on the ground that he would complete 14 years of actual sentence in jail. His prayer for premature release was considered by the competent authority of the State of Gujarat which vide order dated 26.10.2006 considering the over all aspects of the matter rejected the said application. The said order was assailed in Criminal Writ Petition No. 505 of 2007 before the High Court of Punjab and Haryana which vide order dated 25.08.2008 disposed of the Writ Petition with the direction to the State of Gujarat to reconsider the case of the first respondent for premature release considering the applicability of Section 433 CrPC, Section 3 of the Transfer of Prisoner Act and the decision in
State of Haryana v. Mahender Singh, 2007 (4) RCR (Criminal) 909 : (2007) 13 SCC 606
6. Keeping in view the order passed by the High Court, the State Government considered the prayer of the first respondent for premature release on 06.03.2009 and considered all aspects that have to be taken note of as per the direction of the High Court along with all other factors and the decisions in
U.T. Chandigarh v. Charanjit Kaur, JT 1996 (3) SC 30 : 1996 (7) SCC 492
Laxman Naskar v. State of West Bengal, AIR 2000 SC 2762 : (2000) 7 SCC 626
and eventually rejected the application. The grievance of rejection compelled the first respondent to prefer a Misc. Criminal Application No. 6515 of 2009 before the Punjab and Haryana High Court which was eventually withdrawn vide order dated 16.03.2009 wherein it was observed that it was open to the said respondent to approach the concerned authority. The order dated 06.03.2009 was again challenged in Special Criminal Application No. 1274 of 2009 under Article 226 of the Constitution of India which was dismissed by the High Court.
7. Remaining indefatigable the first respondent preferred Writ Petition No. 677 of 2010 praying for a writ of habeas corpus on the ground that he had already suffered requisite period of sentence and hence, he was entitled to be released as per Sections 432, 433 and 433-A CrPC and para 431 of the New Punjab Jail Manual. A grievance was put forth that his representation had not been considered by the State Government. On 20.04.2010, the High Court disposed of the matter directing the State Government to pass a speaking order within a period of two months. Be it stated, when the High Court passed the said order, it had not issued notice to the State of Gujarat. However, regard being had to the direction issued by the High Court, the competent authority took up the matter for reconsideration and after obtaining the opinion from the appropriate quarters as required under the manual, the State Government declined to grant premature release to the first respondent vide order dated 30.12.2010. The said order was assailed before the High Court in Writ Petition No. 158 of 2011 and the High Court vide judgment and order dated 25.05.2011 directed the State to reconsider the premature release taking note of the actual sentence of 14 years and three months and more than 21 years including remission. The High Court had directed the first respondent to be released on parole subject to certain conditions. Pursuant to the order passed by the High Court, the State Government took up the case for reconsideration and keeping in view the statutory provisions of CrPC, Rule No. 1448 of the Bombay Jail Manual which governs the State of Gujarat, the opinion of the advisory board and keeping in view the number of cases the first respondent was really involved, the gravity and nature of the crime and its impact on the society, it rejected the proposal for release vide order dated 26.07.2011. 8. Being aggrieved by the aforesaid order, the first respondent invoked the jurisdiction of the High Court under Article 226 of the Constitution of India. It was contended on behalf of respondent No. 1 before the High Court that provisions of Punjab Jail Manual, 1996 are applicable to him since he had been transferred to the State of Punjab as per the Transfer of Prisoners Act, 1950 and as there had been a recommendation by the competent authority under the Punjab Jail Manual that he was entitled to the benefit of the premature release but the same has been declined by the State of Gujarat and hence, the whole action was arbitrary and illegal. It was also urged that as per the Bombay Jail Manual which is applicable in State of Gujarat, he was also entitled to premature release as he had already undergone more than 14 years of sentence. It was also argued that refusal to entertain the prayer for premature release was contrary to the concept of Article 21 of the Constitution and, therefore, the order passed by the State Government was non est in law.
9. The stand of the first respondent was controverted by the State of Gujarat contending, inter alia, that the recommendations of the competent authority under the Punjab Jail Manual are not binding on it which is the sole authority to decide the matter relating to premature release; that the High Court of Punjab and Haryana had no jurisdiction to issue a writ of habeas corpus; that the factual background as depicted by the State do not make out a case for premature release and, therefore, the Court should not exercise its extra ordinary jurisdiction on the said score. It was also contended that the first respondent having acceded to the earlier orders of rejection by the High Court, was debarred from approaching the Court in subsequent petitions.
10. The learned single Judge posed five questions for consideration. They read as under:-
“i) Which is the appropriate Government empowered to consider the case of premature release of the petitioner?
ii) Whether earlier dismissal of the petition for premature release by a High Court operates as bar and estoppels to the filing of subsequent petitions?
iii) Whether the High Court where prisoner is transferred has jurisdiction to entertain the criminal writ petition?
iv) Whether non-release of a convict is worse sanction than the death sentence, resultant encroachment upon the life and personal liberty by the executive?
v) Whether order dated 26.07.2011 is subject to judicial review and is arbitrary, whimsical and against the provisions of Article 21 of the Constitution of India?”
11. Answering the first question, the High Court held that it is the Government of Gujarat which is the appropriate Government for passing the order with regard to premature release to the first respondent. Answering the question No. 2, the High Court opined that dismissal of the earlier petitions did not operate as a bar to file fresh petition nor do they operate as estoppel when fresh cause of action arises. Dealing with the third facet, the High Court opined that it had the jurisdiction to entertain the Writ Petition keeping in view the ambit and scope under Article 226 of the Constitution. While dealing with question No. 4, the High Court referred to Universal Declaration of Human Rights, Article 21 of the Constitution, the view expressed by this Court in