1999 JTR(SC) 964
1999 4 AICLR 585 ; 1999 AIR(SC) 3333 ; 1999 AIR(SCW) 3327 ; 1999 39 AllCriC 721 ; 1999 AllMR(Cri)(SC) 1799 ; 1999 CriLR 699 ; 1999 3 Crimes(SC) 130 ; 1999 CrLJ 4299 ; 1999 3 CTC 366 ; 1999 3 EastCrC(SC) 307 ; 1999 2 JCC 452 ; 1999 6 JT 461 ; 2000 2 KLJ(NOC) 20 ; 1999 3 KLT(SN) 46 ; 1999 4 RCR(Cri) 65 ; 1999 5 Scale 364 ; 1999 7 SCC 355 ; 1999 SCC(Cri) 1193 ; 1999 Supp2 SCR 211 ; 1999 KHC 751 ; 2000 KHC 216 ; 1999 7 Supreme 555
1999(7) Supreme 555
Supreme Court of India
(From Punjab & Haryana High Court)
G.T. Nanavati & S.N. Phukan, JJ.
State of Haryana & Ors. -Appellants
versus
Balwan etc. -Respondents
Criminal Appeal No. 9 of 1998
With
Criminal Appeal No. 10 of 1998
With
Criminal Appeal Nos. 1001-1009 of 1998
With
Criminal Appeal No. 1010 of 1998
Decided on 2-9-1999
Counsel for the Parties :
For the Appearing Parties : Prem Malhotra, Rishi Malhotra, Jasbir Malik, (P. Parmeswaran, Ms. Kamini Jaiswal, Bhal Singh Malik, Ashok Kumar Singh, Manoj Swarup) Advocates (NP), S. Murlidhar, Ms. Neeru Vaid, K.K. Mohan, Rao Ranjit, Ms. K. Sarada Devi, Advocates.
Important Point
By earning remissions a life convict does not acquire a right to release, but release would follow only upon an order made under the Criminal Procedure Code by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution.
(A) The appeals concern the scope of executive mercy powers under Sections 432, 433, and 433-A of the Code of Criminal Procedure read with Articles 72 and 161 of the Constitution, in the context of premature release of life convicts. Section 433-A, inserted by an amendment that took effect on December 18, 1978, governs consideration of such cases and limits state authority to make discretionary release decisions, requiring that cases be evaluated under the procedure it prescribes. Post-amendment, any policy or instructions issued by the State Government that are inconsistent with the statutory scheme of Section 433-A and the guiding principles laid down by this Court in Maru Ram v. Union of India are invalid for the purpose of determining premature release. The modified instructions of the State of Haryana, framed either in 1982 or by June 27, 1984, which place cases of life convicts within Section 433-A and require individual consideration and reference to the Governor under Article 161, therefore, represent the applicable legal framework for the respondents cases.
(B) Key legal principles include: (i) a life convict does not acquire a vested right to premature release merely by earning remissions; (ii) release in a life sentence follows only upon an order under Section 433 Cr.P.C. or a clemency order under Articles 72 or 161; (iii) where a statute such as Section 433-A governs, earlier policies and instructions are superseded; (iv) the relevant date for determining the procedure is the date the case is required to be placed before the appropriate government or the Governor under Article 161; and (v) the remission scheme operates only as a guideline and does not confer a right to release.
Facts of the case:
The respondents are life convicts who filed writ petitions in the Punjab and Haryana High Court seeking premature release. The High Court held that the Government policy and instructions in force at the time of their conviction governed their entitlement to premature release, and accordingly directed the State Government to reconsider their applications. The State had earlier followed one set of instructions, but after the enactment of Section 433-A and the decision in Maru Rams case, it modified its policy to bring cases under Section 433-A and to process them through a structured reference to the Governor under Article 161. The High Courts directions were challenged in these appeals on the ground that the subsequent instructions should apply.
Findings of Court:
The Supreme Court held that Section 433-A is the governing provision for cases of life convicts whose offences were committed after its inception, and that earlier policies and instructions cannot be relied upon to determine their premature release. The Court clarified that earning remissions does not create a right to be released, and that release can occur only through an order under Section 433 Cr.P.C. or a constitutional clemency power. The High Courts direction to reconsider cases based on the date of conviction was set aside, and the correct approach was held to be to treat the date when the case is required to be placed before the Governor under Article 161 as the relevant date.
Issues:
Whether the State Government is entitled to apply the policy and instructions in force at the time of the convicting courts order to determine premature release of life convicts, or whether the subsequent policy framed under Section 433-A and the principles laid down in Maru Rams case must govern such decisions.
Ratio Decidendi:
The controlling statute for premature release of life convicts is Section 433-A Cr.P.C. for offences committed after its enactment, and earlier Government instructions cannot override it. A life convict does not acquire a right to release by earning remissions; release follows only upon an order under Article 161 or Section 433 Cr.P.C., and the relevant date for determining the procedure is the date the case is placed before the appropriate Government, not the date of conviction.
Result:
The appeals are allowed, the impugned judgments of the High Court are set aside, and the State Government is directed to reconsider the applications of the respondents in accordance with the modified instructions and the legal principles outlined, within a period of 15 days from the receipt of this order.
(A) The appeals concern the scope of executive mercy powers under Sections 432, 433, and 433-A of the Code of Criminal Procedure read with Articles 72 and 161 of the Constitution, in the context of premature release of life convicts. Section 433-A, inserted by an amendment that took effect on December 18, 1978, governs consideration of such cases and limits state authority to make discretionary release decisions, requiring that cases be evaluated under the procedure it prescribes. Post-amendment, any policy or instructions issued by the State Government that are inconsistent with the statutory scheme of Section 433-A and the guiding principles laid down by this Court in Maru Ram v. Union of India are invalid for the purpose of determining premature release. The modified instructions of the State of Haryana, framed either in 1982 or by June 27, 1984, which place cases of life convicts within Section 433-A and require individual consideration and reference to the Governor under Article 161, therefore, represent the applicable legal framework for the respondents cases.
(B) Key legal principles include: (i) a life convict does not acquire a vested right to premature release merely by earning remissions; (ii) release in a life sentence follows only upon an order under Section 433 Cr.P.C. or a clemency order under Articles 72 or 161; (iii) where a statute such as Section 433-A governs, earlier policies and instructions are superseded; (iv) the relevant date for determining the procedure is the date the case is required to be placed before the appropriate government or the Governor under Article 161; and (v) the remission scheme operates only as a guideline and does not confer a right to release.
Facts of the case:
The respondents are life convicts who filed writ petitions in the Punjab and Haryana High Court seeking premature release. The High Court held that the Government policy and instructions in force at the time of their conviction governed their entitlement to premature release, and accordingly directed the State Government to reconsider their applications. The State had earlier followed one set of instructions, but after the enactment of Section 433-A and the decision in Maru Rams case, it modified its policy to bring cases under Section 433-A and to process them through a structured reference to the Governor under Article 161. The High Courts directions were challenged in these appeals on the ground that the subsequent instructions should apply.
Findings of Court:
The Supreme Court held that Section 433-A is the governing provision for cases of life convicts whose offences were committed after its inception, and that earlier policies and instructions cannot be relied upon to determine their premature release. The Court clarified that earning remissions does not create a right to be released, and that release can occur only through an order under Section 433 Cr.P.C. or a constitutional clemency power. The High Courts direction to reconsider cases based on the date of conviction was set aside, and the correct approach was held to be to treat the date when the case is required to be placed before the Governor under Article 161 as the relevant date.
Issues:
Whether the State Government is entitled to apply the policy and instructions in force at the time of the convicting courts order to determine premature release of life convicts, or whether the subsequent policy framed under Section 433-A and the principles laid down in Maru Rams case must govern such decisions.
Ratio Decidendi:
The controlling statute for premature release of life convicts is Section 433-A Cr.P.C. for offences committed after its enactment, and earlier Government instructions cannot override it. A life convict does not acquire a right to release by earning remissions; release follows only upon an order under Article 161 or Section 433 Cr.P.C., and the relevant date for determining the procedure is the date the case is placed before the appropriate Government, not the date of conviction.
Result:
The appeals are allowed, the impugned judgments of the High Court are set aside, and the State Government is directed to reconsider the applications of the respondents in accordance with the modified instructions and the legal principles outlined, within a period of 15 days from the receipt of this order.
Judgment
G.T. Nanavati, J.-These appeals arise out of the judgments of the Punjab and Haryana High Court in writ petitions filed by “life convicts” for their pre-mature release. The High Court held that for deciding their entitlement for pre-mature release what was relevant to consider was the Government policy/instructions in force at the time of their conviction by the trial Court and that the State Government was not right in applying the subsequent policy decisions and instructions that were in force at the time when their cases were taken up for consideration. Taking this view the High Court allowed the writ petitions and directed the State Government to reconsider their applications. The view taken by the High Court is challenged in these appeals. As the point raised in these appeals is the same they were heard together and are disposed of by this common judgment.
2. It is not necessary to refer to the facts of these cases or the Government instructions issued prior to December 18, 1978 when Section 433-A came to be inserted into the Code of Criminal Procedure. As laid down by this Court in Maru Ram v. Union of India1, the power of the State Government under Sections 432 and 433 Cr. P.C. cannot now extend beyond what is provided by Section 433-A. The pre mature release of those convicted before that date had to be considered on the basis of the relevant Government instructions and the dates of their convictions. As regards those persons who have been convicted after Section 433-A came into force and thus fall within the purview of that section their cases will have to be considered consistently with Section 433-A and if life convicts are to be given a larger benefit it can only be done now under Articles 72 and 161 of the Constitution.
3. The State of Haryana was earlier considering pre mature release of life convicts in accordance with the rules framed and instructions issued by it in that behalf. To be consistent with the correct legal position emerging after the enactment of Section 433-A and the decision of this Court in Maru Ram’s case, the State of Haryana modified its policy decision and instructions and declared that though the cases of life convicts for their pre mature release will still be governed by the instructions issued by it, in respect of those convicts who fall within the purview of Section 433-A their cases will be considered on individual basis and such cases will be put up to the Governor through the Minister of Jails and Chief Minister, with full background of the prisoners and recommendations of the State level committee, along with the copy of the judgment etc., for order under Article 161 of the Constitution of India. Neither the record of these cases nor the judgments of the High Court make it clear when the said charge in the instructions was made but it appears that it was made either sometime in 1982 or latest on June 27, 1984. Obviously, the cases of the respondents-convicts, who are all life convicts and fall within the purview of Section 433-A, were required to be considered in accordance with the modified instructions as they could have been released pre maturely only if an order in that behalf was passed by the State Government in exercise of its power under Article 161 of the Constitution.
4. As held by this Court in Gopal Vinayak Godse v. State of Maharashtra2, and in Maru Ram, by earning remissions a life convict does not acquire a right to release, but release would follow only upon an order made under the Criminal Procedure Code by the appropriate Government or on a clemency order in exercise of power under Article 72 or 161 of the Constitution. This Court observed in Maru Ram as under :
“Even if the remissions earned have totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoner cannot claim his liberty. The reason is that life sentence is nothing less than lifelong imprisonment. Moreover, the penalty then and now is the same - life term. And remission vests no right to release when the sentence is life imprisonment........Nor is any vested right to remission cancelled by compulsory 14-year jail life once we realise the truism that a life sentence is a sentence for a whole life.”
Thus, this Court in clear term has laid down that by earning remissions a life convict does not acquire a right to be released pre-maturely. But if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution.
5. If this is the correct legal position then no life convict can validly contend that his case for pre-mature release should be considered according to the Government policy/instructions that were in force on the date on which he came to be convicted as he acquired a right to get remissions as declared and to be released accordingly. If according to the Government policy/instructions in force at the relevant time the life convict has already undergone the sentence for a period mentioned in the policy decision/instructions, then the only right which he can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. Ordinarily, when an authority is called upon to exercise its powers that will have to be done consistently with the legal position and the Government decision/instructions prevalent at that time. However, in order to see that a life convict does not loose any benefit available under the remission scheme which has to be regarded as the guideline, it would be just and proper to direct the State Government to treat the date on which his case is/was required to be put up before the Governor under Article 161 of the Constitution as the relevant date with reference to which their cases are to be considered. The direction given by the High Court is not consistent with the decision of this Court in Maru Ram and the view which we are now taking and, therefore, it has to be set aside.
6. Accordingly, we allow these appeals, set aside the impugned judgments of the High Court and direct the State Government to re-consider the applications of the respondents - life convicts, who fall under the purview of the Section 433-A Cr.P.C., in accordance with the correct legal position pointed out above. The State Government is directed to do so within 15 days from the date of receipt of the order of this Court.
(C.R.) Appeals allowed.
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