STATE OF HARYANA v. MAHENDER SINGH AND ORS

Citation: [2007] 11 S.C.R. 932

Court: Supreme Court of India

Bench: S.B. SINHA, H.S. BEDI

Case summary

STATE OF HARYANA v. MAHENDER SINGH AND ORS.pdf

Judgment text

-{ ·f STATEOFHARYANA v. MAHENDER SINGH AND ORS. NOVEMBER2, 2007 [S. B. SINHA AND HARJIT SINGH BEDI, JJ. ] t -\ Sentence/Sentencing-Remission ofsentence-State classifYing category of life convicts for pre-mature release by executive instruction-Life convicts, convicted prior to the date ofinstruction, challenging the classification-High Court holding the classification as uncot:zstitutional-On appeal, held: No convict has fundamental right ofremission-Valid classification by general instruction is permissible-However, the classification will have prospective operation and would not apply to the convicts in question-The -4 instructions being advisory in nature, would not have force ofa l statute-Code ofCriminal Procedure; 1973-s. 433A-Punjab Prison Rules-Rules 2, 20 and 21-Constitution ofIndia, 1950-Articles 14, 20and 21. The State ofHaryana by an executive order, in the year 2002 laid down criteria for pre-mature release oflife convicts.

The same was challenged in Writ Petition by the respondents, who were convicts sentenced to life imprisonment in 1988. They, at the time oftheir conviction, were covered by instructions issued by the State ofHaryana in the year 1984 amending Punjab Prison Rules. High _J.. Court allowed the Writ Petition declaring the criteria laid down to be unconstitutional on the premise that no discrimination could be made inter-se amongst the life convicts and thus the purported classification was arbitrary and discriminatory. Hence the present appeals. '';r- Dismissing the appeals, the Court HELD: 1. It is true that no convict has a fundamental right of STATE v. MAHENDER SINGH 933 remission or shortening of sentences. It is also true that the State in exercise ofits executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.

A classification validly made would not offend Article 14 ofthe Constitution oflndia. , 1 [Paras 25 and 36) [944-H; 945-A; 950-E)1 t 2. 1. However, the new policy decision adopted by the State of Haryana will have a prospective operation. At the pointoftime when, the respondents were convicted, viz. , in the year 1988, for, consideration oftheir cases for remission, the conditions which were required to be fulfilled, were that they should have undergone at' least. 8 Yz years ofthe substantive or actual sentence and they should' have also undergone 14 years of sentence including the period of remission earned. Indisputably, however, the same was subject to Section 433A Cr. P. C. [Paras 26 and 27] [945-A-C) Maru Ram v. Union ofIndia and Ors. , [1981) 1 SCC 107, followed. State ofPunjab and Ors. v. Joginder Singh and Ors. , [1990) 2 SCC 661, relied on. Mohd A1unnav. UnionoflndiaandOrs. , [2005) 7SCC 417 and Epuru Sudhakar andAnr. v. Govt. ofA. P. andOrs.

, [2006] 8 SCC 161, distinguished Sadhu Singh andOrs. v. State ofPunjab, [1984) 2 SCC 310; State . ofHaryana and Anr. v. Ram Diya, [1990) 2 SCC 701 and Rajender and Ors. v. State ofHaryana, [1995) 5 SCC 187, referred to. 2. 2. Whenever a policy decision is made, persons must be treated equally in terms thereof. A' fortiori the policy decision applicable in such cases would be which was prevailing at the time . -'. ofhis conviction. [Para 33) [948-H] Commissioner ofMunicipal Corporation, Shim/av. Prem Lata Sood and Ors. , (2007) 7 SCALE 737, referred to. \ 2. 3. A right to be considered for remission, keeping in view the constitutional safeguards ofa convict under Articles 20 and 21 of the Constitution oflndia, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder.

Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of_t~e policy decision itself must be held to have a right to be t consider:ed therefor. Whether by reason of a statutory rule or otherwise ifa policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. (Para 32] (948-D-E] State ofMysore andAnr. v. H Srinivasmurthy, (1976] 1SC --- CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 30of2005. . 1 }- r From the Judgment and final Order dated 24. 7. 2003 ofthe High Court ofPunjab and Haryana at Chandigarh in Criminal Misc. No. 30109- M of2002. WITH Crl. A. No. 31 of 2005. i I P. N. Misra, Vijay Hansaria and B. Malik, Rajeev Gaur 'Naseem', Rajesh Ranjan, T. V. George, Dr. Rajeev B. Masodkar, Sneha Kalita, Anil K. Jha, Naveen Kumar Singh, Bharat Singh and S. Janani for the appearing parties. The Judgment ofthe Court was delivered by S. B. SINHA, J. 1.

A circular letter issued by the State ofHaryana laying down criteria for pre-mature release ofthe prisoners has been declared to be unconstitutional by a Division Bench ofthe Punjab and Haryana High Court by reason ofthe impugned judgment. ~ 2. Respondents herein are life convicts: They were chargesheeted for commission ofan offence ofmurder ofRan Singh, Rattan Singh and Satbir Singh. They have been found guilty thereof by a judgment of conviction and sentence dated 25. 01. 1988. Indisputably, their appeals before the High Court as also this Court [since reported in [1995] 5 SCC 187] had been dismissed. 3. The State ofPunjab in exercise of its power conferred upon it under the Prisons Act, 1894 made rules. They have statutory force.

Subrules (a)~ (b), (c), (d) and (f) ofRule 2 read as under: "(a) "prisoner" includes a person committed to prison in default offurnishing security to keep the peace or be ofgood behaviour; (b) "class I prisoner" means a thug, a robber by administration of poisonous drugs or a professional, hereditary or specially dangerous -- contained in Section 432, no convict shall be released from prison unless he has served at least 14 years of imprisonment where a sentence of imprisonment for life has been imposed'. t-- ---i STATE v. MAHENDERSINGH [SINHA,J. ] 945 ~ 24. We may also notice Sections 54 and 55 ofthe Indian Penal Code A, which read as under: "54 - Commutation ofsentence ofdeath : In every case in which sentence of death shall have been passed, the appropriate Government may, without the consent ofthe offender, commute the punishment for any other punishment provided by this Code.

·j 55 - Commutation ofsentence ofimprisonment for life : In every case in which sentence ofimprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment ofeither description for a term not exceeding fourteen years. " 25. It is true that no convict has a fundamental right ofremission or shortening of sentences. It is also true that the State in exercise of its executive power ofremission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law. . __ D' 26. The question, however, which would inter alia arise for ~consideration is as to whether new policy decision adopted by the State ofHaryana will have a prospective operation. 27. At the point oftime when the respondents were convicted, viz.

, in the year 1988, for consideration of their cases for remission, the following conditions were required to be fulfilled: (i) They should have undergone at least 8112 years of the substantive or actual sentence (ii) They should have also undergone 14 years of sentence including the period ofremission earned. Indisputably, however, the same was subject to Section 433A of the Code ofCriminal Procedure. 28. Validity or otherwise of Section 433A ofthe Code ofCriminal G, Procedure came up for consideration before a Constitution Bench ofthis Court in Maru Ram V. Union ofIndia and Ors. , [1981] 1 sec 107 ~wherein this Court inter alia held: "54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome ) -~ .. ,__. > t in the prisoners' freedom from behind bars. The first turns on the "prospectivity" (loosely so called) or otherwise of Section 433-A.

We have already held that Article 20(1) is not violated but the present point is whether, on a correct construction, those who have been convicted prior to the coming into force ofSection 433are bound by the mandatory limit. Ifsuch convicts are out ofits coils their cases must be considered under the remission schemes and "short-sentencing" laws. The second plea, revolves round "pardon jurisprudence", if we may coarsely call it that way, enshrined impregnably in Articles 72 and 161 and the effect of Section 433-A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise ofthis plenary power cannot be left to the fancy, frolic or frown ofGovernment, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must.

On this basis, we will have to scrutinise and screen the survival value of the ~ various remission schemes and short-sentencing projects, not to (' . test their supremacy over Section 433-A, but to train the wide and beneficent power to remit life sentences without the hardship of fourteen fettered years. " 29. In regard to the first point, it was held that a person convicted before coming into force of Section 433A of the Cod~ of Criminal Procedure goes out ofthe pale thereof and will enjoy the benefits as had accrued to him. In regard to the second point, it was held that Articles 72 and 161 ofthe Constitution oflndia must yield to Section 433A ofthe Code of . :), Criminal Procedure. The Constitution Bench was ofthe opinion that remission schemes offer healthy motivation for better behaviour, inner improvement and development of social fibre.

It was observed that remission and short sentencing scheme provides for good guidelines for exercise ofpardon tpower, a jurisdiction meant to be used as often and as systematically as )L_ . rpossible and not to be abused, much as the temptation so to do may press upon the men ofpower. It was also opined: ~ ... ( . _ "(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433-A, they will override Section 433-A ifthe Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking a desirable step, in our view the i I ' present remission and release schemes may usefully be talcen as guidelines under Articles 72/161 and orders for release passed.

We cannot fault the Government, if in some intractably savage delinquents, Section 433-A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme. " 30. However, in Sadhu Singh and Ors. v. State ofPunjab, [1984] 2 SCC 310, although this Court noticed the aforementioned binding .. ~\ precedent in Maru Ram (supra) wiJiout dwelling upon the question in depth, while interpreting the provisions ofparagraph 516-B ofthe Jail Manual, opined that the same does not have the force of a statutory rule and, thus, it would be open to the State Government to alter or amend or even withdraw such executive instruction stating: "6.......

In other words any existing executive instructions could be substituted by issuing fresh executive instructions for pr~ssing,the cases of lifers for premature release but once issued these must be uniformly and invariably applied to all cases oflifers so as to avoid the charge ofdiscrimination under Article 14. " >-· The contention that those convicts who had been sentenced to death but whose sentence on mercy petitions has been commuted to life imprisonment will be governed by the 1976 instructions was negatived. ~ This Court, however, upheld the right oftwo convicts whose cases were entitled to be considered for pre-mature release immediately in view c ,~· of 1976 instructions. Unfortunately, the attention ofthis court was nqt drawn to the relevant paragraphs ofthe decision in Maru Ram (supra). 31. We may notice that the question has been considered by thi~ Court in State ofPunjab and Ors. v. Joginder Singh and Ors. , [(1990) 2 SCC 661] wherein it was held: "9....

Even in such cases Section 433-A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder ofhis life in prison but merely insists that he shall have served time for at least 14 years. In the case ofother 'lifers' the insistence under the 1971 amendment is that he should have a period ofat least 8 112 years ofincarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433-A ofthe Code. Since Section 433-A is prospective, ·so also would be the I 97I and I 976 amendments. *** *** *** 11. We, therefore, find it difficult to uphold the view taken by the High Court in this behalf. We may make it clear that paragraph 516-B insofar as it stands amended or modified by the 1971 and 1976 executive orders is prospective in character" [Emphasis supplied] [See also State ofHaryana and Anr. v. Ram Diya, [1990] 2 SCC 701 and Rajender and Ors. v. State ofHaryana, [1995] 5 SCC 187]. 32.

A right to be considered for remission, keeping in view the constitutional safeguards ofa convict under Articles 20 and 21 ofthe Constitution oflndia, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view ofthe policy decision itself must be held to have a right to be considered therefor. Whether by reason ofa statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof • ~ ~are entitled to be treated equally. [State ofMysore and Anr. v. H Srinivasmurthy, [1976] 1 SCC 817] It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules. [See Maharao Sahib Shri Bhim Singhji v.

Union ofIndia and Ors. , [1981] 1 SCC 166, JR. Raghupathy and Ors. v. State ofA. P. ( j . ~· and Ors. , [1988] 4 sec 364 and Narendra Kumar Maheshwari V. -{ Union ofIndia, [1990] (Supp) SCC 440] 33. Whenever, thus, a policy decision is made, persons must be treated equally in terms thereof A' fortiori the policy decision applicable. in such cases would be which was prevailing at the time ofhis conviction. , [See Commissioner ofMunicipal Corporation, Shim/a v. Prem Lata . 1 Sood and Ors. , (2007) 7 SCALE 737] 34. Furthermore, ifthe Punjab Rules are applicable in the State of I-iaryana in view ofthe State Re. organisation Act, no executive instruction , would prevail over the Statutory Rules. The Rules having defined 'convicts' in terms whereofa 'life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason ofan 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 ~ considered at all. Right to be considered emanates from the State's own ~ exeeutive instructions as also the Statutory Rules. _, Strong reliance, however, has been placed by Mr. Misra on Mohd Munna v. Union ofIndia and Ors. , [2005] 7 SCC 417. In that case, writ petition was filed under Article 32 ofthe Constitution oflndia by the appellant therein stating that as he had undergone 21 years ofimprisonment he should be set at liberty forthwith having regard to the provisions of Clause 751(c) ofthe West Bengal Jail Code and Section 6 ofthe West Bengal Correctional Services Act, 1992. Claim for damages was also advanced. It was in that factual backdrop, this Court held: "14. The Prisons Rules are made under the Prisons Act and the >- Prisons Act by itself does not confer any authority or power to commute or remit sentence.

It only provides for the regulation of the prisons and for the terms of the prisoners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal Jail Code do not confer any special right on the petitioner herein. " - --"'( . In the said decision, unfortunately, againMaru Ram (supra) was not considered. In any event, the respondents had inter alia prayed for payment ofdan1ages. 35. Reliance was also placed by Mr. Misra on Epuru Sudhakar ·-1_· and Anr. v. Govt. ofA. P. and Ors. , [2006] 8 SCC 161. Therein, a ' Division Bench opined: "65. Exercise ofexecutive clemency is a matter ofdiscretion and yet subject to certain standards. It is not a matter ofprivilege. It is a matter ofperformance ofofficial duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare ofthe people who may insist on ( the performance ofthe duty.

This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges ofthe sufficiency offacts and ofthe appropriateness ofgranting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, ifany, must be found in the Constitution itself. Therefore, the principle ofexdusive cognizance would not apply when and if the decision impugned is in derogation ofa constitutional provision This is the basic working test to be applied while granting pardons, · ~ t reprieves, remissions and commutations. " ~ 1~ Then:: may not be any dispute with regard to the said proposition of law. But herein we are concerned with the right ofthe respondents to be \ considered for remission and not what should be the criteria when the matter is taken up for grant thereof. 36.

We are, therefore, ofthe 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 ofthe Constitution of India. We, thus, although do not agree with all the reasonings ofthe High Court, sustain the judgment for the reasons stated hereinbefore. -( It appears that during pendency ofthe Special Leave, Respondent Nos. 6 and 11 have already been directed to be r~leased. No order, therefor, is required to be passed in their case. So far as the cases of other respondents are concerned, the same may be considered by the appropriate authority in the light ofthe observations made hereinabove. ·j-- 37. The appeals are dismissed with the aforementionedobservations. In viewofthe :findingsaforementioned, it is not necessary to pass any order in the contempt matter. The contempt application is dismissed. No costs. K. K. T. Appeals dismissed.