Research › Search › Judgment

Himachal Pradesh High Court · body

2003 DIGILAW 332 (HP)

KASHMIR SINGH v. STATE OF H. P.

2003-11-13

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.:- This is a jail petition by the petitioner for declaring the order passed by the respondent No.1 rejecting the case of the convict for premature release and for the directions to respondents to reconsider his case for premature release. 2. At the time of hearing, a preliminary question arose in the matter as to which authority is competent to finally dispose of a case for premature release of a convict. 3. I have heard learned the learned Deputy Advocate General on the said question at length. 4. It is not disputed by the respondents that case of the convict for premature release was examined under the policy dated 2.8.1983 for premature release of prisoners. In the reply it was averred for the respondents that the case was rejected by the competent authority which can accept or reject the premature release cases of the convicts. It was however, not spelt out in the reply as to who is the competent authority to reject/accept the case of a convict for premature release. The order of rejection of such a case will be opened to challenge if it is disposed of by an authority other than the competent authority. Even under the policy applicable to the case, it has been provided that the cases of the convicts for premature release will be considered by the Sentence Review Board and recommendations of the Sentence Review Board, shall be placed before the competent authority, which may either accept or reject the recommendations of the Sentence Review Board for the reasons to be stated or may ask the Sentence Review Board to reconsider the case. Since the reply does not disclose "as to who is the competent authority under the policy and who has in fact rejected the case of the convict for his competent authority. Therefore to clarify the situation a photocopy of note submitted to the Chief Minister was placed on record by the respondents which discloses that the State Sentence Review Board considered the case of the petitioner but did not recommend his competent authority. The recommendations were placed before the Chief Minister for approval of the recommendations of the State Sentence Review Board and finally the Chief Minister accepted the recommendations and rejected the case of the petitioner. The recommendations were placed before the Chief Minister for approval of the recommendations of the State Sentence Review Board and finally the Chief Minister accepted the recommendations and rejected the case of the petitioner. The policy does not "define the competent authority therefore even placing this material on record did not answer the question as to who is the competent authority for the purpose of the policy in question". Finally the rules of business of Government of H.P. were produced in the Court by the learned Deputy Advocate General to show that as per the said rules, Chief Minister was the competent authority to dispose of the cases of premature release of the convicts. As per Rule 8 of the Rules, the Minister Incharge of a department is primarily responsible for the disposal of the business pertaining to that department. To the same effect are the provisions of Rule 26 of the Rules ibid. The matters regarding premature release concerns the Home Department and at the relevant time Chief Minister was also the Home Minister, therefore, the matter as per the aforesaid rules was to be placed before the Minister holding the Home Portfolio, which happened to be the Chief Minister. 5. Rule 55 of the Rules provides that proposal for grant of pardon or commutation of a sentence under Article 161 of the constitution are required to be submitted by the Chief Minister to the Governor. However, the powers of the Governor under Article 161 of the Constitution are not the same, which are the powers given to the appropriate Government under Sections 432 and 433 of the Code of Criminal Procedure (hereinafter referred to as the Code). Therefore, to exercise these two different sets of powers there, need not be the same procedure under the Rules of Business. 6. In Maru Ram and others v. Union of India and others, AIR 1980 Supreme Court 2147, the Apex Court held as under :- "59. It is apparent that superficially viewed, the two powers, one constitutional and the other statutory, are co-extensive. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. But two things may be similar but not the same. That is precisely the difference. We cannot agree that the power which is the creature of the Code can be equated with a high prerogative vested by the Constitution in the highest functionaries of the Union and the States. The source is different, the substance is different, the strength is different, although the stream may be flowing along the same bed. We see the two powers as far from being identical, and, obviously, the constitutional power is untouchable1 and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433A cannot be invalidated as indirectly violative of Arts. 72 and 161. What the Code gives, it can take, and so, an embargo on Sections 432 and 433(a) is within the legislative power of Parliament." 7. In State of Punjab and others v. Joginder Singh and others, 1990(2) Supreme Court Cases 661, the Apex Court again reiterated the ratio of Maru Ram as case supra and held as under :- "8. In Maru Ram v. Union of India this Court repelled the challenge to Section 433-A both on the question of competence of Parliament to enact the provision and its constitutional valioity. While interpreting Sections 432, 433 and 433-A of the Code, this Court pointed out that wide powers of remission and commutation of sentences were conferred on the appropriate government but an exception was carved out for the extreme category of convicts who were sentenced to death but whose sentence had been commuted under Section 433 into one of imprisonment for life. Such prisoner is not to be released unless he has served at least 14 years of imprisonment. The Court refused to read down Section 433-A to give overriding effect to the Remission Rules of the State. It categorically ruled that Remission Rules and like provisions stand excluded so far as "lifers punished for capital offences are concerned. Remissions by way of reward or otherwise cannot cut down the sentence awarded by the Court except under Section 432 of the Code or in exercise of constitutional power under Articles 72/161 of the Constitution. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433-A, or where the clemency power under the Constitution is invoked. Remission cannot detract from the quantum and quality of the judicial sentence except to the extent permitted by Section 432 of the Code, subject of course to Section 433-A, or where the clemency power under the Constitution is invoked. But while exercising the constitutional power under Article 72/161, the President or the Governor, as the case may be, must act on the advice of the Council of Ministers. The power under Articles 72 and 161 of the Constitution is absolute and cannot be fettered by any statutory provision such as Sections 432, 433 and 433-A of the Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules. 8. It is thus evident from the above case law that power of the Governor under Article 161 is absolute and cannot be fettered by any statutory provisions such as Sections 432, 433 and 433(A) of the Code. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions including statutory rules and is to be exercised by the Governor on the advice of the Council of Minister whereas it is not so in case of the powers under Sections 432 and 433 of the Code. Thus being two separate powers, the appropriate Government can have its own policy/rules to provide the manner in which powers under Sections 432 and 433 of the Code are to be exercised. In view of the Rules of Business of the Government of H.P., the cases of rejection of premature release of convicts are to be finally disposed of by the competent authority, which for the purpose of the present cases was the Chief Minister. Thus, the impugned rejection cannot be said to be illegal on the ground that the recommendations of the Sentence Review Board were not placed before the competent authority. 9. Once the State has formulated a policy or has framed rules to exercise the powers under Sections 432 and 433 of the Code, it is bound to consider the cases of the convicts for premature release in accordance with such policy or Rules as the case may be. However, the obligation is only to consider such a case within the frame work of the policy/Rules and the State is not bound to invariably accept the case. However, the obligation is only to consider such a case within the frame work of the policy/Rules and the State is not bound to invariably accept the case. In the case in hand, the Sentence Review Board after due consideration recommended the rejection of the case of the petitioner for premature release vide annexure R-1 and the competent authority agreed with the recommendations of the Board and in the process, the Board and/or the competent authority does not appear to have committed any illegality on the basis of which this Court may interfere with the decision. Therefore, there is no merit and substance in this petition. 10. As a result, this petition is dismissed. It may, however, be observed that the case of the petitioner for premature release stood rejected by the State Government more than a year before. Therefore, if so advised, the petitioner may make fresh representation to the State Government for his premature release. 11. A copy of this order be sent to the petitioner through the concerned Jail Superintendent. -