IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA: Cr.MMO. No.146 of 2010. Date of Decision :16.8.2011. _______________________________________________ Rattan Chand. …Petitioner. Versus: State of H.P. and others. …Respondents. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? Yes. For the petitioner. :Mr.M.S.Guleria, Amicus Curaie. For Respondent. : Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud, J (Oral). Pursuant to the detail order passed by this Court, the petitioner has been released from jail. 2. The grievance of the petitioner is that he had not been granted the benefit of pre-mature release despite fulfilling the criteria as prescribed under the policy which has been uniformly applied to all the prisoners. His grievance was that the respondents were indulging in a pick and chose policy and that the case was not considered in terms of the objective standards/norms purportedly followed by the State. Whether reporters of the Local papers are allowed to see the judgment? yes. 2 3. Directions were issued to the respondents from time to time by this Court in this petition. By a detailed order dated 12th May, 2011, additional directions were issued to the respondents directing consideration of the petitioner’s case in accordance with law. 4. So far as the question of release of prisoners on remission of sentence is considered the issue was resolved by the Supreme Court in State of Haryana Vs. Mahender Singh and others, (2007) 13 SCC 606. The Supreme Court in that case considered the policy formulated by the State of Haryana. Considering the provisions of Section 433-A and the rights of the prisoners, the Supreme Court held: 30. Validity or otherwise of Section 433A of the Code of Criminal Procedure came up for consideration before a Constitution Bench of this Court in Maru Ram v. Union of India and Others [(1981) 1 SCC 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 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 of Section 433-A are bound by the mandatory limit. If such convicts are out of its 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 of this 3 plenary power cannot be left to the fancy, frolic or frown of Government, 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 scrutinize 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." 31. In regard to the first point, it was held that a person convicted before coming into force of Section 433A of the Code of Criminal Procedure goes out of the pale thereof and will enjoy the benefits as had accrued to him. 32. In regard to the second point, it was held that Articles 72 and 161 of the Constitution of India must yield to Section 433-A of the Code of Criminal Procedure. 33. The Constitution Bench was of the 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 of pardon power, a jurisdiction meant to be used as often and as systematically as possible and not to be abused, much as the temptation so to do may press upon the men of power. It was also opined: (Maru Ram V. Union of India (1981) 1 SCC 107, SCC p. 154, para 72(10) “72. (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 if the 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 present remission and release schemes may usefully be taken 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 4 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." 34. However, in Sadhu Singh and Others v. State of Punjab [(1984) 2 SCC 310], although this Court noticed the aforementioned binding precedent in Maru Ram (supra) without dwelling upon the question in depth, while interpreting the provisions of paragraph 516-B of the 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: (Sandhu Singh V. State of Punjab, (1984) 2 SCC 310, SCC p.318, para 6). "6………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 Article 14." 35. 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. 36. This Court, however, upheld the right of two convicts whose cases were entitled to be considered for pre-mature release immediately in view of 1976 instructions. Unfortunately, the attention of this court was not drawn to the relevant paragraphs of the decision in Maru Ram(supra). 37. We may notice that the question has been considered by this Court in State of Punjab and Others v. Joginder Singh and Others [(1990) 2 SCC 661] wherein it was held: (SCC pp.667- 68, paras 9 & 11) "9....Even in such cases Section 433-A of the Code or the executive instruction of 1976 does not insist that the 5 convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. In the case of other 'lifers' the insistence under the 1971 amendment is that he should have a period of at least 8 1/2 years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433-A of the Code. Since Section 433-A is prospective, so also would be the 1971 and 1976 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 of Haryana and Another v. Ram Diya [(1990) 2 SCC 701 and Rajender and Others v. State of Haryana [(1995) 5 SCC 187]. 38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, 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 there under. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a 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 of Mysore and Another v. H. Srinivasmurthy (1976) 1 SCC 817] 39. 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 of India and Others (1981) 1 SCC 166, J.R. Raghupathy and Others v. State of A.P. and Others (1988) 4 SCC 364 and Narendra Kumar Maheshwari v. Union of India 1990 (Supp) SCC 440] 6 40. 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 of his conviction. [See Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Ors., 2007 (7) SCALE 737].” (Pp.617,618 & 619). 5. This question again engaged the attention of the Court in State of Haryana and others Vs. Jagdish, (2010) 4 SCC 216, where a detailed order was passed by the Court holding: “14. It may also be pertinent to mention here that all the aforesaid policies made a clear-cut distinction and categorised the offence of murder in two separate categories. Heinous crime means murder, i.e., (i) murder with wrongful confinement, for extortion/robbery; (ii) murder with rape; (iii) murder undergoing life imprisonment; (iv) murder with dacoity .... ; (v) murder of a child under 14 years; and (vi) murder on professional/hired basis etc. Murders not mentioned in either of these above categories have been treated differently for the purpose of grant of pre-mature release. In all the policies issued by the Government except policy dated 13th August, 2008, the provisions of Article 161 of the Constitution have been referred to. All the said policies provided that the cases of life convicts would be put to the Governor through the Minister for Jails and the Chief Minister, Haryana with full background of the prisoners and recommendations of the Committee alongwith the copy of the judgment etc. for orders under Article 161 of the Constitution. 15. This Court in Gopal Vinayak Godse v. State of Maharashtra & Ors. AIR 1961 SC 600 considered the provisions of Section 53-A IPC, Cr.P.C. and also considered the Code of Criminal Procedure Amendment Act, 1955 which provided that a person sentenced to transportation for life before the Amendment Act would be considered as sentenced to rigorous imprisonment for life. The life convict was bound to serve the remainder of sentence imprisoned. Unless the 7 sentence was commuted or remitted by the Competent Authority, such sentence would not be equated with any fixed term. The benefit of remission or any short sentencing policy in accordance with the rules framed under the Act 1894, if any, would be considered towards the end of the term and the said question was within the exclusive domain of the appropriate Government. In the said case, in spite of the fact that certain remissions had been made, the competent authority did not remit the entire sentence. While deciding the said case, this court placed reliance on the judgment of the Privy Council in Pt. Kishorilal v.King Emperor AIR 1945 P.C. 64. 16. In Dalbir Singh & Ors. v. State of Punjab AIR 1979 SC 1384, this court came to the conclusion that `life imprisonment' means imprisonment for the whole of the man's life. But in practice it amounts to incarceration for a period between 10 to 14 years. 17. In State of Haryana v. Nauratta Singh & Ors. AIR 2000 SC 1179, this Court clearly held that 14 years mentioned in Section 433-A Cr. P.C. is the actual period of imprisonment undergone without including any period of remission. 18. In Swamy Shraddananda@Murali Manohar Mishra v. State of Karnataka AIR 2008 SC 3040, this Court had passed the order that the appellant therein would not be released from prison till the rest of his life. Such a punishment was considered necessary because this Court substituted the death sentence given to the appellant by the Trial Court and confirmed by the High Court, with imprisonment for life with a direction that the said appellant would not be released from prison for the rest of his life. Thus, the Court came to the conclusion, on the facts of that case, that in such an eventuality the pre-mature release after a minimum incarceration for a period of 14 years as envisaged under Section 433-A Cr.P.C. would not be acceded to, since the sentence of death had been stepped down to that of life imprisonment which was definitely a lenient punishment. 8 19. In Ramraj @ Nanhoo @ Bihnu v. State of Chhattisgarh AIR 2010 SC 420, this Court held as under: “23. In the various decisions rendered after the decision in Godse case, "imprisonment for life" has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the powers vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is thereafter left to the discretion of the authorities concerned to determine the actual length of imprisonment having regard to the gravity and intensity of the offence." 20. In Mohd. Munna v. Union of India (2005) 7 SCC 417, this Court came to the conclusion that life imprisonment was not equivalent to imprisonment for 14 years or 20 years. Life imprisonment means imprisonment for the whole of the remaining period of the convicted person's natural life. There was no provision either in the IPC or Cr.P.C. whereby life imprisonment could be treated as either 14 years or 20 years incarceration without there being a formal remission by the Appropriate Government. The contention that having regard to the provisions of Section 57 IPC, a prisoner was entitled to be released on completing 20 years of imprisonment under the West Bengal Correctional Services Act, 1992 and the West Bengal Jail Code, was rejected. 21. Before we proceed to consider the exercise of powers with regard to remission, as provided for either under the Constitution, the IPC or the Cr.P.C., it would be worth reiterating what has already been traversed and laid down by this Court right from the case of Maru Ram (supra) to the decision in the case of Ram Raj (supra). 9 22. In Maru Ram (supra), this Court elaborately dealt with the issue of validity of Section 433-A Cr.P.C. and the remission/short sentencing policies and held as under: "54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome 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 of Section 433-A are bound by the mandatory limit. If such convicts are out of its 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 of this plenary power cannot be left to the fancy, frolic or frown of Government, 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 scrutinize 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. xx xx xx 67. All these go to prove that the length of imprisonment is not regenerative of the goodness within and may be proof of the reverse -- a calamity which may be averted by exercise of power under Article 161...... In short, the rules of remission may be effective guidelines of a recommendatory nature, 10 helpful to Government to release the prisoner by remitting the remaining term. xx xx xx 72(7) We declare that Section 433-A, in both its limbs i.e. both types of life imprisonment specified in it), is prospective in effect...... It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433-A was brought into effect. xx xx xx 72(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 if the 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 present remission and release schemes may usefully be taken 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." Thus, the Court held that the amendment would apply prospectively. The life convicts who had been sentenced prior to 18.12.1978 i.e. date of enforcement of amendment would not come within the purview of the provisions of Section 433-A Cr.P.C. and short sentencing policy would also apply prospectively. Remission rules/short sentencing policies could be taken as guidelines for exercise of power under Articles 11 72 or 161 of the Constitution and in such eventuality, remission rules will override Section 433-A Cr.P.C. 23. In State of Punjab v. Joginder Singh AIR 1990 SC 1396 this Court held that remission cannot detract from the quantum and quality of judicial sentence except to the extent permitted by Section 433 Cr.P.C. subject of course, to Section 433-A or where the clemency power under the Constitution is invoked. But while exercising the constitutional power under Articles 72/161 of the Constitution, the President or the Governor, as the case may be, can exercise an absolute power which cannot be fettered by any statutory provision such as Sections 432, 433 and 433-A Cr.P.C. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules. 24. In Sadhu Singh v. State of Punjab AIR 1984 SC 739, this Court examined the nature of the provisions contained in para 516-B of the Punjab Jail Manual which provided for remissions etc. and executive instructions issued by the Punjab Government from time to time and came to the conclusion that the Jail Manual contained merely executive instructions having no statutory force. Thus, it was always open to the State Government to alter, amend or withdraw the executive instructions or supersede the same by issuing fresh instructions. But the Court observed as under: "Any existing executive instruction could be substituted by issuing fresh executive instructions for processing the cases of lifers for pre-mature release but once issued these must be uniformly and invariably apply to all cases of lifers…." A similar view has been re-iterated by this Court in Balwan (supra);and Laxman Naskar v. Union of India & Ors. (2000) 2 SCC 595. 25. In Ashok Kumar @ Golu v. Union of India & Ors. AIR 1991 SC 1792 this Court considered the scope and relevancy of Rajasthan Prisons (Shortening of Sentences) Rules, 1958 qua the provisions of Section 433-A Cr.P.C. The said Rajasthan Rules 1958 provided that a "lifer" who had served actual sentence of about nine years and three months was entitled to 12 be considered for pre-mature release if the total sentence including remissions worked out to 14 years and he was reported to be of good behaviour. The grievance of the petitioner therein had been that his case for pre-mature release had not been considered by the Concerned Authorities in view of the provisions of Section 433-A Cr.P.C. 26. This Court in Ashok Kumar considered the matter elaborately taking into consideration large number of its earlier judgments including Maru Ram (supra), Bhagirath v. Delhi Administration AIR 1985 SC 1050; Kehar Singh & Anr. v. Union of India & Anr. AIR 1989 SC 653, and came to the following conclusions: (i) Section 433-A Cr.P.C. denied pre-mature release before completion of actual 14 years of incarceration to only those limited convicts convicted of a capital offence i.e. exceptionally heinous crime; (ii) Section 433-A Cr.P.C. cannot and does not in any way affect the constitutional power conferred on the President/Governor under Article 72/161 of the Constitution; (iii) Remission Rules have a limited scope and in case of a convict undergoing sentence for life imprisonment, it acquires significance only if the sentence is commuted or remitted subject to Section 433-A Cr.P.C. or in exercise of constitutional power under Article 72/161 of the Constitution; and (iv) Case of a convict can be considered under Articles 72 and 161 of the Constitution treating the 1958 Rules as guidelines. The aforesaid case was disposed of by this Court observing that in case the clemency petition of the petitioner therein was pending despite of the directive of the High Court, it would be open to the said petitioner to approach the High Court for compliance of its order. 27. In Mahender Singh (supra), this Court as referred to hereinabove held that the policy decision applicable in such cases would be which was prevailing at the time of his 13 conviction. This conclusion was arrived on the following ground: "38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, 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 there under." 28. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the Executive through a Constitutional mandate to ensure that some public purpose may require fulfillment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the Executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises