ORDER
R.L. Anand, J.
1. The prayer made in the present Criminal Misc. is to strike down the order dated 25-7-1996 Annexure R. 1 and to give directions to the respondents to consider the case of the petitioner Chhinna Singh for his premature release. The prayer of petitioner Chhinna Singh is being contested primarily on two grounds that he had not served actual substantive sentence of 14 years as required under Section 433-A, Cr. P.C.’ and secondly that he had committed double murder and as such he is not entitled to be considered for premature release.
2. Admittedly if the remission period of petitioner is clubbed with his actual sentence it would come more than 10 years as the petitioner claims that he was less than 20 years on the date of the commission of offence.
3. There are two sets of provisions under which the premature release can be granted. Firstly, I would like to revert to the provisions of Section 432 and 433 and 433-A, Cr. P.C. Section 432, Cr. P.C. lays down : —
(1) When any person has been sentenced to punishment for an offence, the appropriate Government, may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the “whole or any part of the punishment to which he has been sentenced.
Section 433, Cr. P.C. lays down:–
The appropriate Government may, without the consent of the person sentenced, commute: —
(a) a sentence of death, for any other punishment provided by the IPC;
(b) A sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
4. Section 433-A is most relevant section for determination of the controversy in question, which lays down as follows : —
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 laws, 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 served at least fourteen years of imprisonment.
5. A combined study of the above three provisions would show that Section 433-A states that notwithstanding anything contained in Section 432 of the Code but it does not and it could not override the constitutional provisions which stand on higher pedestal than that of provisions of Section 433-A itself.
6. Article 72 of the Constitution of India gives power to the President of India to exercise those powers to grant pardons, reprieves, respites or remissions of punishment to suspend, remit or commute the sentence of any persons convicted of any offence.
7. Article 161 of the Constitution of India gives power to the Governor of a State to grant such pardons, reprieves, respites or remissions. These provisions of Article 161 have been, incorporated in our Constitution keeping in view to grant parallel powers to the State Govt. when such powers have been granted to the Central Government by Legislation.
8. Now the question arises, what should be the position of above statutory and constitutional provisions. In Maru Ram’s case reported as AIR 1980 SC 2147 : 1980 Cri LJ 1440, the Hon’ble Supreme Court was pleased to hold that there is no quarrel so far as the legality and propriety of the provisions of Section 433-A, Cr. P.C. are concerned. Those provisions hold good in its own field.The Hon’ble Supreme Court was pleased to hold that if he State Govt wanted to exercise the powers for premature release by utilising the provisions of Section 432 only, it must give respect to the provisions of Section 433-A, Cr. P.C. The Hon’ble Supreme Court also held that the Constitutional provisions of Articles. 72 and 161 also hold water and those provisions give independent powers to the Central and State Governments which are competent to frame their own rules and guidelines. If the State Goyt. opts to lay down rigorous conditions that before granting a premature release to a particular person, such person must undergo 14 years actual sentence as per provisions of Section 433-A, Cr. P.C., the Govt. has such powers to exercise but if the Govt. in its wisdom wants to depart from the provisions of Section 433-A and by exercising the powers under Articles. 72 and 161 of the Constitution, that discretion cannot be and should not be doubted straightway unless it is held that those powers have been exercised in an arbitrary manner. The Hon’ble Supreme Court has left to the Government itself to decide in which case it can and it should impose conditions in the light of the prvisions of Section 433-A. If the Government has laid down some guidelines while exercising the powers of the Constitution, those instructions have to be carried out and this is the ceremonious interpretation of both constitutipnal provisions and three statutory provisions quoted above. However, this Court wants to lay emphasis upon the Government that while laying down the guidelines/instructions, due respect to the provisions of Section 433-A must be given and the Government must keep in mind the object behind the provisions of Section 433-A, Cr. P.C., when it was incorporated in the Code of Criminal Procedure. In case the Government has to modify or vary the prevalent instructions, it should not have any hesitation in doing so and the Government should shed its limited object to please an individual or a group of individuals at the altar of the object and intention of the Legislature while introducing the amendment in the Code of Criminal Procedure for the incorporation of Section 433-A.
9. Now the point for determination in this case would be whether the impugned order (Annexure-R1) is sustainable or not? The case of premature release of Chhinna Singh petitioner was considered and rejected on the ground that he had committed more than one murder and as such he is not entitled to the premature release. The Hon’ble Supreme Court in the judgment of Mara Ram’s case (1980 Cri LJ 1440) held that the State Government can decline a case of premature release if it comes to the conclusion that the action on the part of the convict fell in the category of “intractavely savage delinquent”, but in the present case the perusal of the order Annexure-R1 would show that the case of the petitioner has not been rejected under this category. Instructions prevailing at the relevant time Annexure P4 permitted the Government to consider the cases of an individual for premature release even if he has committed a double murder. This matter came for consideration in this High Court in Crl. Misc. No. 16451-M of 1995 (Karnail Singh v. State of Punjab) and his Lordship vide order dated 9-7-1996 passed the following order :
Undisputedly, the petitioner had undergone actual sentence of 9 years 6 months including undertrial period as on 27-2-1995 and had also earned more than 6 years remission and the total of the actual sentence and remission would be more than 14 years. It is also undisputed that the petitioner was not guilty of any jail offence or misconduct during the period under consideration. So far as the list of offences mentioned at page 2 of the instructions dated 6-3-1995 whereunder the benefits mentioned in the instructions are not admissible to the prisoners, the offence Under Section 302 of the IPC has not been mentioned nor it has been mentioned that the prisoner convicted of multiple murder will not be extended the said benefit. Learned counsel for the petitioner referred to the judgment of this Court in Criminal Misc. No. 16886-M of 1995, Darshan Singh v. State of Punjab, decided on 9-2-1996 to contend that in a case of multiple murder this Court held the instructions applicable and directed the respondents to consider the case of premature release of the petitioner under instructions referred to above.
10. In the light of this order, the impugned order cannot be sustained in the eye of law.
11. My attention has also been pointed out to the authorities reported as Gobind Singh v. State of Punjab, 1996 (2) Rec Cri R 153; Ex-Sepoy Mukand Singh v. Union of India, 1996 (2) Rec Cri R 1; Union Territory of Chandigarh v. Charanjit Kaur (1996) 2 Rec Cri R 183 (SC); and Jagdish v. Financial Commr., 1996 (3) All India Criminal Reporter 305 (P & H).
12. In the opinion of this Court the Hon’ble Judges of this Court did not take into notice the effect of the constitutional provisions as contained in Arts. 72 and 161 of the Constitution. The Hon’ble Supreme Court while giving dictum in the judgments quoted above, were only interpreting the provisions of Sections 432, 433 and 433-A of the Code of Criminal Procedure. However, when those two provisions, i.e. Section 432 and 433-A, Cr. P.C., are to be interpreted along with Arts. 72 and 161 of the Constitution of India, the net result would be that the Government is competent to formulate similar guidelines/ instructions under Arts. 72 and 161 of the Constitution and can also incorporate such provisions, which may be in consonance with the provisions of Section 433-A and should not become redundant or a mockery because this salutary section was introduced in the Code with a particular purpose and the expectations of the public and the society are much more from the Government who will always watch the interests of the citizens by laying down the guidelines.
13. The net result is that the present petition succeeds and the impugned order (Annexure-R 1) is hereby quashed and directions are given to the respondents to consider the case of the petitioner for premature release in the light of the observations made by this Court keeping in view the instructions dated 6th March, 1995 (Annexure-P4). The case of the petitioner would now be considered afresh within two months from the date of the receipt of the copy of this order.
14. Copies of this order be sent to the Chief Secretaries of the State of Punjab and Haryana, for necessary action as the appropriate Government may consider proper.