CWP No. 5169 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 5169 of 2007 Date of Decision: September , 2008 Harjinder Singh …Petitioner Versus State of Punjab and others …Respondents CORAM: HON’BLE MR. JUSTICE M.M. KUMAR HON’BLE MRS. JUSTICE SABINA Present: Mr. I.K. Mehta, Senior Advocate, with Ms. Ranjit Mehta, Advocate, for the petitioner. Mr. Suvir Sehgal, Addl. AG, Punjab, for respondent Nos. 1 and 2. Mr. V.K. Jindal, Advocate, for respondent Nos. 3 to 6. M.M. KUMAR, J. This petition filed under Article 226 of the Constitution challenges order dated 20.3.2003 (P-5), passed by the Principal Secretary to Government of Punjab, Department of Home Affairs and Justice, Chandigarh-respondent No. 2.As per the impugned order respondent Nos. 3 to 6 and Daya Singh son of Balwant Singh (since deceased) have been released by granting them remission without requiring them to serve the sentence of 10 years rigorous imprisonment as per the orders dated 6.3.1998 (P-1), passed by Hon’ble the Supreme Court in Criminal Appeal No. 589 of 1988, titled as Harjinder Singh v. Karnail Singh and others, and Criminal Appeal No. 784 of 1989, titled as State of Punjab v. Karnail Singh and others now reported in AIR 1998 SC 1648. A further prayer has also been made for commanding respondent Nos. 1 and 2 to comply with orders dated 6.3.1998 (P-1), passed by Hon’ble the Supreme Court, to take respondent Nos. 3 to 6 into custody and confine them to jail to undergo CWP No. 5169 of 2007 2 the remaining period of sentence of ten years rigorous imprisonment. 2. Facts: There is a village called Bhadaur in the Sub Division Barnala ( District Sangrur). Late in the evening of 24.4.1983 a number of persons were killed by a group of accused. A case FIR No. 41, dated 25.4.1983 was registered at Police Station Bhadaur on the statement of Head Constable Chanan Singh, regarding the occurrence. The petitioner and his companions were arrested. It is claimed that the actual accuseds were not named in the FIR. Therefore, on 2.8.1983 the petitioner was compelled to file a private complaint in the Court of Judicial Magistrate Ist Class, Barnala, naming nine other accused persons. The case was committed to the Court of Sessions by the learned Magistrate, vide order dated 30.3.1984. Both the cases arising out of FIR No. 41, dated 25.4.1983 and arising out of private complaint, dated 2.8.1983, filed by the petitioner were clubbed by the learned Additional Sessions Judge, Barnala. It was ordered that the evidence recorded in one case be treated as evidence in the other case. On 29.1.1986, the Trial Court convicted Karnail Singh (respondent No. 3), Gurcharan Singh (respondent No. 4), Mohinder Singh (respondent No. 5), Ghala Singh (respondent No. 6), Daya Singh (since deceased), Bachan Singh (since deceased ) and Gurdial Singh under Section 302 read with Section 149 IPC and sentenced them to undergo imprisonment for life. However, the other accused persons were acquitted. 3. Feeling aggrieved, the accused-convict preferred an appeal to this Court, bearing Criminal Appeal No. 58-DB of 1986, which was allowed vide judgment dated 12.10.1987, setting aside their conviction and sentence. During the pendency of the said appeal accused/convict Bachan Singh son of Shingara Singh died. CWP No. 5169 of 2007 3 4. Thereafter, the petitioner filed Criminal Appeal No. 589 of 1988 (supra) and State of Punjab filed Criminal Appeal No. 784 of 1989 (supra) before Hon’ble the Supreme Court, which were allowed vide order dated 6.3.1998 (P-1) and the accuseds were convicted under Section 304 Part I read with Section 34 IPC. They were sentenced to suffer rigorous imprisonment for a period of 10 years. The concluding paras of the order reads thus:- “ Having considered carefully the evidence of PWs-2 and 7 and the reasons given by the High Court for not believing them and acquitting the respondents we are of the opinion that the High Court not only failed to give due weight to the reasons given by the trial Court but also failed to consider some very relevant aspects while appreciating their evidence. But their evidence does not rule out the possibility of the respondents’ entertaining an apprehension that PW-2 Harjinder Singh and his men had come there to take forcible possession of land and to attack them. However, there can be no doubt that they exceeded the right of private defence when they chased Major Singh and Nachhattar Singh outside the compound and killed them. There was also no necessity for them to fire as many as 30 to 40 rounds at Jit Singh, Dayal Singh and Nazir Singh. Thus, in view of the facts and circumstances of the case, they can be said to have exceeded the right of private defence and committed the offence punishable under Section 304 Part I read with 34 IPC. Therefore, these appeals are allowed, the acquittal CWP No. 5169 of 2007 4 of the respondents is set aside and they are convicted under Section 304 Part I read with 34 IPC and sentenced to suffer rigorous imprisonment for a period of 10 years.” 5. In pursuance to the order dated 6.3.1998 (P-1), learned Additional Sessions Judge, Barnala, issued orders of conviction warrant, dated 23.4.1998, to Karnail Singh, Gurcharan Singh, Mohinder Singh, Ghala Singh and Daya Singh directing them to surrender in jail upto 10.5.1998. Accordingly, Karnail Singh, Gurcharan Singh, Mohinder Singh, Ghala Singh and Daya Singh surrendered on 8.5.1998. On 24.9.1998, learned Additional Sessions Judge, Barnala, passed an order requiring these five convicts to undergo the balance sentence. The aforementioned convicts surrendered within fifteen days. However, they were granted remission in pursuance to Government order issued from time to time between 11.11.1989 to 1999. On 31.10.1998, convict Gurcharan Singh and Mohinder Singh were released from Central Jail, Amritsar, convict Karnail Singh was released on 3.11.1998 from Central Jail, Gurdaspur, whereas convict Ghala Singh and Daya Singh were released on 14.4.1999 from Central Jail, Ludhiana. In this manner, the aforementioned convict were released without serving the full term of sentence awarded by Hon’ble the Supreme Court. It is claimed that convict Karnail Singh, Gurcharan Singh and Mohinder Singh served a sentence of about 4½ years whereas Ghala Singh and Daya Singh have served sentence of over 2 ½ years. 6. The petitioner challenged the action of the respondent State in releasing the aforementioned convicts by granting them remission, by filing C.W.P. No. 11126 of 2000 in this Court. During the pendency of the writ petition, the petitioner filed an application bearing Civil Misc. No. 4971 of CWP No. 5169 of 2007 5 2002, seeking disposal of the writ petition in terms of the judgment rendered by Hon’ble the Supreme Court in the case of Joginder Singh v. State of Punjab, JT 2001 (7) SC 587. On 31.7.2002 (P-2), the aforementioned application and writ petition were disposed of by a learned Single Judge of this Court by passing the following order:- “CM 4971/2002 This application has been filed by the petitioner praying that the writ petition be disposed of in the light of the law laid down by the Supreme Court in Joginder Singh Vs. State of Punjab and others JT 2001(7) SC 587. In view of the above submission, the C.M. is allowed and the writ petition is taken up for hearing. CWP 11126/2000 Counsel for the parties are agreed that the cases of respondent Nos. 2 to 6 for remission have to be examined afresh in the light of the law laid down by the Supreme Court in the case of Joginder Singh (supra). Learned counsel for respondent Nos. 2 to 6 contend that the cases of respondent Nos. 2 to 6 had been considered prior to the judgment of the Supreme Court and, therefore, the ratio of the aforesaid judgement is not applicable to their cases. They shall be at liberty to raise all these objections when the matter is decided afresh. In view of the above, I dispose of the writ petition with a direction to respondent No. 1 to consider and decide the cases of respondent Nos. 2 to 6 for remission afresh in the light of the CWP No. 5169 of 2007 6 law laid down by the Supreme Court in the case of Joginder Singh (Supra). Respondent Nos. 2 to 6 shall be afforded a reasonable opportunity of being heard and shall be at liberty to raise all the objections being raised now in the present proceedings. Their cases shall be decided by passing a speaking order. The necessary exercise shall be completed within two months from today. It is made clear that nothing stated in this order shall be considered as an expression of the opinion of this Court on the merits of the case. Copy of the order be given dasti on payment of usual charges.” 7. It is alleged that the accused-respondents are very influential persons and they have managed their release on account of political consideration. It has been further claimed that accused Ghala Singh, who wielded significant political influence in the area, had bargained with S. Parkash Singh Badal that in lieu of their release they would ensure complete support of voters to whom their word was a command. 8. In terms of order dated 31.7.2002 (P-2), the matter was to be decided within two months by respondent No. 1 but nothing was done. Faced with this situation, the petitioner was compelled to file a contempt petition bearing C.O.C.P. No. 643 of 2003 in this Court. On 2.9.2003, this Court issued notice to the Advocate General, Punjab, to ascertain the facts. When no reply was furnished, this Court took serious view of the matter and on 1.12.2006 (P-3), following order was passed by the Contempt Court:- “ It was on 31.7.2002 that a direction was issued to the CWP No. 5169 of 2007 7 State of Punjab to reconsider the case of the respondents No. 2 to 6 (in the main Writ Petition) for the remission in the light of the judgment rendered by Hon’ble Supreme Court of India in Joginder Singh Vs. State of Punjab JT 2001 (7) SC 587. The non-compliance of the aforesaid direction has led to initiation of these contempt proceedings which are also pending since 2003. Even reply has not been filed from the last more than three years, what to talk of compliance of the time bound directions. The order granting remission to respondents No. 2 to 6 is prima facie in derogation of the principles laid down by the Hon’ble Supreme Court. Mr. Cheema learned State counsel seeks one more opportunity to comply with the orders passed by this Court. In the interest of justice and as last opportunity, adjourned to 19.12.2006. The Principal Secretary (Home), State of Punjab, shall remain present on the adjourned date. Copy of this order be supplied to learned State counsel dasti for information and compliance thereof.” 9. On 18.12.2006, a reply was filed in the contempt petition stating that facts could not be brought to the notice of the Court due to some communication gap as the speaking order with regard to reconsideration of remission to the accused respondents in light of the judgment of Hon’ble the Supreme Court in the case of Joginder Singh (supra) was already passed on 20/25.3.2003 after affording reasonable opportunity of being heard to accused persons (P-4). In this view of the matter, the contempt petition filed by the petitioner was disposed of vide order dated 19.12.2006 (P-6) CWP No. 5169 of 2007 8 with liberty to the petitioner to challenge the order dated 20/25.3.2003. 10. In these circumstances the petitioner has filed the instant petition impugning order dated 20/25.3.2003 (P-5), passed by respondent No. 2. It is apposite to mention that respondent No. 2 has ordered that remission granted to the accused persons/respondent Nos. 3 to 6 has to prevail because they were released prior to the decision of Hon’ble Supreme Court, dated 11.9.2001, in the case of Joginder Singh (supra). Para 7 of the impugned order reads thus:- “7. After examining the facts of the case it has come to the notice that it is not possible to act according to the orders of the Hon’ble Supreme Court dated 11.9.2001 on the persons who were already released before this decision. In view of the above position it has been decided that the earlier release orders of Sarv Shri Karnail Singh S/o Wasakha Singh, Gurcharan Singh S/o Jagir Singh, Mohinder Singh S/o Mehma Singh, Ghala Singh S/o Bhajan Singh and Daya Singh S/o Balwant Singh will prevail.” (emphasis added) 11.In the written statement filed on behalf of respondent Nos. 3 to 6 preliminary objections have been raised that they were released by the jail authorities after granting benefit of various remissions under the Punjab Jail Manual and also the special remissions granted by the State of Punjab under Section 432 Cr.P.C. and Article 161 of the Constitution. Various circulars granting remissions, after conviction of respondent Nos. 3 to 6 have been placed on record as Annexures R-3/1 to R-3/9. Regarding applicability of the judgment of Hon’ble the Supreme Court rendered in CWP No. 5169 of 2007 9 the case of Joginder Singh (supra), it has been asserted that the same is not applicable to them under the doctrine of ‘prospective overruling’. The said judgment was passed on 11.9.2001 whereas respondent Nos. 3 to 6 were released much prior in the year 1999. It has been further asserted that the judgment in Joginder Singh’s case (supra) is applicable only to those cases where the convicts remained on bail and who had not served substantial part of their sentence. It is claimed by respondent Nos. 3 to 6 that they have actually served substantial part of their sentence. The instant petition has been filed only because the petitioner is inimical towards respondent Nos. 3 to 6 and the same is a calculative attempt to harass, torture and victimize them. The allegation of political influence on account of S. Parkash Singh Badal has been specifically denied. 12. In the counter filed on behalf of respondent Nos. 1 and 2 details with regard to remission granted to respondent Nos. 3 to 6 by the Government and their release from various jails have been given and it has been reiterated that the judgment of Hon’ble the Supreme Court in the case of Joginder Singh (supra) is not applicable to the case of respondent Nos. 3 to 6. In other words, the impugned order dated 20/25.3.2003 (P-5) has been sought to be justified. It has been asserted that if the benefit of Government remissions was not granted to respondent Nos. 3 to 6, it would have led to legal complications because remission was granted in similar cases in the State of Punjab as per the instructions of the Government. 13. In the rejoinder to the reply filed by respondent Nos. 1 and 2, the petitioner has taken the stand that while passing the impugned order on 20.3.2003 neither he was heard by respondent No. 2 nor a copy of the CWP No. 5169 of 2007 10 order was conveyed to him despite various inquiries. It was only after filing of contempt petition that a copy of the order was for the first time placed before this Court in December 2006. It is, thus, claimed that the impugned order was stage managed and an attempt to frustrate the proceedings, which the petitioner was pursuing. 14. Mr. I.K. Mehta, learned counsel for the petitioner has argued that respondent nos. 3 to 5 have undergone only 4 ½ years of sentence as against 10 years rigorous imprisonment ordered by the Hon'ble Supreme Court vide its order dated 6.3.1998. According to the learned counsel respondent no. 6 Ghalla Singh has undergone only over 2 ½ years of sentence as against 10 years rigorous imprisonment awarded to him by the Hon'ble Supreme Court. He has emphasised that according to the judgement rendered in the case of Joginder Singh (supra), respondent nos. 3 to 6 have not served substantial part of sentence as per the requirement of the judgement in Joginder Singh's case (supra) and therefore they are not entitled to take advantage of the remissions granted to them in pursuance to circulars R/3/1 to R/3/9. Mr. Mehta has also made reference to the background facts showing that right from the beginning the prosecution and respondent-State has adopted favourable attitude to the accused- respondent nos. 3 to 6 and others in as much as proper prosecution could be launched against respondent nos. 3 to 6 only when a private complaint by the petitioner was filed and that the persons who have been granted the benefit of remission are potential threat to the life and property of the petitioner. 15.Mr. Suvir Sehgal and Mr. V.K.Jindal, learned counsel for the respondents have argued that the power of the State to grant remissions CWP No. 5169 of 2007 11 by issuing circular under Article 161 is well recognised and it cannot be nullified by the mere complaint of the petitioner that respondent nos. 3 to 6 should be asked to undergo complete imprisonment. They have submitted that the judgement rendered in the case of Joginder Singh (supra) in the year 2001 would not apply to the case of respondent nos. 3 to 6 because they were released after serving sentence in accordance with the remissions granted to them on 14.4.1999. The case of the petitioner was considered as per the law prevailing at that time. The legal position at that time was settled as per the judgement of Hon'ble the Supreme Court in the case of Nalamolu Appala Swamy and others v. State of Andhra Pradesh 1989 Supp (2) SCC 192 (Annexure R/3/10). According to the afore-mentioned judgement it has been held that the benefit of remission could not confine to prisoners actually in jail on the date of issuance of government order and even persons on bail on the date of issue of circular were also entitled to the benefit of remission. Therefore it has been maintained that the benefit of remission have been rightly granted to them. 16. Having heard learned counsel at a considerable length and perusal of government circulars Annexures R/3/1 to R/3/9 we are of the view that the only issue which needs determination is : Whether judgement of the Hon'ble Supreme Court in the case of Joginder Singh (supra) is applicable to the case in hand? 17. It is well settled that the State Government under Article 161 and the Union Government under Article 72 of the Constitution are empowered to issue circulars granting remission of sentence. The matter has CWP No. 5169 of 2007 12 been considered by a Constitution Bench of the Supreme Court in the case of Maru Ram v. Union of India (1981) 1 SCC 107. The view taken is that the afore-mentioned provision clothe the President and the Governor respectively to pass order of remission. However, such an order is open to judicial review and the grounds of judicial review are extremely limited. It is only a case of non consideration or considerations based on wholly irrelevant grounds or on irrational, discriminatory or malafide decision of the President or Governor which could provide a ground of judicial review. All subsequent judgements of the Supreme Court draw support from the case of Maru Ram (supra). In Sat Pal v. State of Haryana (2000) 5 SCC 170, the statement of law has been re-stated as under: “ .... (i) the Governor exercising the power under Article 161 himself without being advised by the Government; or (ii) the Governor transgressing his jurisdiction; or (iii) the Governor passing the order without application of mind; or (iv) the Governor's decision is based on some extraneous considerations; or (v) malafide.” 18.The afore-mentioned view has been reiterated in the case of Bikas Chaterjee v. Union of India (2004) 7 SCC 634; E.Puru Sudhakar v. Government of Andhra Pradesh (2006) 8 SCC 161. Therefore, the orders of remission passed by respondent nos. 1 and 2 have to be examined within the para-meters laid down by their Lordships in the afore-mentioned judgements. 19. It has come on record that respondent no. 3 karnail Singh remained undertrial from 3.5.1983 to 28.1.1986. He was convicted on 29.1.1986 and served the sentence on his conviction from 29.1.1986 to CWP No. 5169 of 2007 13 17.10.1987. He was acquitted on 12.10.1987. However, on the ground that he was convicted by the Hon'ble Supreme Court vide order dated 6.3.1998 he surrendered on 8.5.1998 and served the sentence till 3.11.1998. In respect of each of respondent nos. 3 to 6.The whole position could be summed up from the following four tables. Respondent no. 3 Karnail Singh s/o Wasakha Singh, released from Central Jail, Gurdaspur on 3.11.1998 From 3.5.1983 to 28.1.1986 (under trial) Period Years 02 Months 08 Days 27 From 29.1.1986 to 17.10.1987 (conviction) period 1 8 22 From 8.5.1988 to 3.11.1998 (conviction) period - 5 26 Total Period 4 11 15 Remissions given by the Govt. 5 15 Total sentence with remission till 3.11.1998 10 0 0 Respondent no.4 Gurcharan Singh s/o Jagir Singh released from Central Jail, Amritsar on 31.10.1998 From 3.5.1983 to 28.1.1986 (under trial ) Period Years 02 Month 08 Days 27 From 29.1.1986 to 17.10.1987 (conviction) period 1 8 22 From 8.5.1998 to 31.10.1998 (conviction ) Period - 5 23 Total Period 4 11 12 Remissions given by the Govt. 5 - 18 Total sentence with remission till 31.10.1998 10 - - Respondent no.5 Mohinder Singh s/o Mehma Singh released from Central Jail, Amritsar on 3.10.1998 From 3.5.1983 to 28.1.1986 (Under trial) period Years 02 Month 08 Days 27 From 29.1.1986 to 17.10.1987 (conviction) period 1 8 22 From 8.5.1998 to 31.10.1998 (conviction) period - 5 23 Total Period 4 11 12 Remissions given by the Govt. 5 - 18 Total sentence with remission till 31.10.1998 10 - - CWP No. 5169 of 2007 14 Respondent no.6 Ghalla Singh s/o Bhajan Singh released from Central Jail, Amritsar on 14.04.1999 Date of surrender 8.5.1998 Conviction period from 29.1.1986 to 17.10.1987 Years 01 Months 08 Days 20 Less Parole period - 1 12 Less period spent in jail 1 7 8 After surrender conviction from 8.5.1998 to 14.4.1999 - 11 6 Total conviction period 2 6 14 Availed Govt. Remiossions 89 months 16 days. 7 -5 16 Total sentence alongwith State Govt. Remissions 10 - - 20. A close scrutiny of the afore-mentioned tables would show that respondent nos. 3 to 5 have availed 5 years 15 days / 5 years 18 days remissions whereas respondent no. 6 has availed 7 years 5 months 16 days remission. Another feature which is discernible from the afore-mentioned table is that respondent nos. 3 to 5 have served the sentence from 3.5.1983 to 17.10.1987 when they were acquitted vide order dated 12.10.1987 by acceptance of their appeal by a Division Bench of this Court. They did not serve any part of sentence after 12.10.1987. However, they were convicted by the order passed by the Hon'ble Supreme Court on 6.3.1998 and they surrendered on 8.5.1998 and served the sentence till October/ November, 1998. Likewise, respondent no.6 did not spend any period as an undertrial which could be counted for serving sentence. He was convicted by an order of conviction passed on 29.1.1986. He was taken into custody and continued to serve the sentence till 17.10.1987 when the order of acquittal was passed by this Court on 12.10.1987. He also surrendered in pursuance to the order dated 6.3.1998 on 8.5.1998 and was released from the jail on 14.4.1999. 21. It is further appropriate to mention that Government orders CWP No. 5169 of 2007 15 granting remission have been issued starting from 11.11.1989 to 8.4.1999 ( Annexures R/3/1 to R/3/8). The remission orders passed by respondent nos. 1 and 2 have granted benefit of government circulars Annexures R/3/1 to R/3/8. Admittedly, respondent nos. 3 to 6 were not serving any sentence during