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2008 DIGILAW 521 (JK)

Ram Naresh Singh v. State

2008-12-31

VINOD KUMAR GUPTA

body2008
1. The petitioner was serving in the Border Security Force and was posted in State of Jammu and Kashmir in the year 1991. It is alleged that he committed an offence punishable under Section 302 RPC whereupon a trial was conducted by the General Security Force Court and after conclusion of the trial, the petitioner was found guilty by the aforesaid court and sentenced to undergo imprisonment for life. He was also dismissed from service. After conviction he is undergoing the imprisonment at District Jail, Jammu. The petitioner applied for remission of the remaining sentence to Director General, Border Security Force and it was approved for premature release of the petitioner. This approval was conveyed to the Superintendent, District Jail, Jammu-respondent No.2 with a direction to release the petitioner from custody if he is not involved/convicted in any other case. It is alleged that despite of remission of remaining sentence of the petitioner, the respondent No. 2 has not released the petitioner from custody and has detained the petitioner illegally since April 2008 and thereby infringing the right to life of the petitioner by curtailing his liberty in violation of Article 21 of the Constitution of India. The petitioner has now filed this habeas corpus petition commanding the respondents to release the petitioner from illegal detention of respondent No.2 with a writ of mandamus commanding the respondents No. 1 and 2 to grant compensation to the petitioner for keeping him in illegal detention. 2. The respondent No.1 has filed counter affidavit through Sh. Rattan Chand, Under Secretary to Government, Home Department, J&K stating therein that the Review Board for pre-mature release of prisoners constituted for Jammu-Division in its meeting dated 27.12.2007 considered the case of the petitioner-Ram Naresh Singh. The said Board was of the opinion that the case of petitioner was fit for recommendations to Government for remission of sentence and pre-mature release on the `Republic Day of 2008. It is admitted that the Director General, Border Security Force has also approved the premature release of the petitioner. The recommendations of the Review Board were submitted to Home Department and the State Government recommended the case of the petitioner to the Central Government as required under para 54.19 in Jail Manual for the Superintendence and Management of Jails in the State of Jammu and Kashmir. The recommendations of the Review Board were submitted to Home Department and the State Government recommended the case of the petitioner to the Central Government as required under para 54.19 in Jail Manual for the Superintendence and Management of Jails in the State of Jammu and Kashmir. It is stated that army and the para-military are the subject of the centre as such the action is required to be taken by the Central Government. The State Government is awaiting the directions from the Government of India for the release of the petitioner. 3. The respondents No. 3 and 4 did not contest the petition seriously and in their objections they have admitted the case of the petitioner but prayed that the petition be dismissed. 4. I have heard the learned counsel for the parties and have perused the record on the file. 5. The facts in this case are admitted that the Director General of Border Security Force has approved the pre-mature release of the petitioner and Review Board constituted by the State Government for reviewing the cases, has also recommended for premature release of the petitioner. However, the petitioner has not been released from custody on the ground of technicalities. The Director General of Border Security Force gave his approval for premature release of the petitioner on 08.04.2008. Similarly the Review Board recommended the premature release of the petitioner on 27.12.2007. In spite of more than one year has been passed the petitioner convict has not been released on the ground that the petitioner was in para-military force and is a subject of Central Government as such approval of the Central Government is required in terms of para 54.19 of the Jail Manual. This para reads as under:- "54.19. Minutes of the Board meetings shall be recorded and a copy thereof shall be sent to Government for necessary orders. In case of ex-military prisoners relevant portions of the proceedings of the Board meetings shall be forwarded through the State Government to the Government of India for necessary orders." 6. As stated above, in this case the Director General of Border Security Force gave his approval for the premature release of the petitioner who is life convict on 08.04.2008 and he is competent to do so under Section 128 of the Border Security Force Act, 1968. As stated above, in this case the Director General of Border Security Force gave his approval for the premature release of the petitioner who is life convict on 08.04.2008 and he is competent to do so under Section 128 of the Border Security Force Act, 1968. Besides this, the case of the petitioner for premature release was also recommended by the Review Board in its meeting dated 27.12.2007 and these recommendations were forwarded to the Government in time and the State Government approached the Government of India vide communication No.102/2001-J/IV dated 04.02.2008. Besides this, reminder was also sent to the Government of India for issuing necessary directions. The only defence of the respondents is that the directions of the Government of India are awaited. Article 21 of the Constitution of India guaranteed the freedom of person and he cannot be detained except in due course of law. The petitioner has been detained in custody since April, 2008 despite the proper approval of the competent authority under the Act. It shows slagness of the Government of India to enable to take decision for the last more than eight months in this matter. This amounts to curtailment of the freedom and liberty of the petitioner. He has been detained despite remission of sentence and pre-mature release by competent Authority. 7. For the foregoing reasons, I direct the Government of India through Home Department to issue necessary directions in the matter within a period of fifteen days from today and in case no directions are issued it will amount to the approval and the respondent No.2 shall release the petitioner from custody immediately after the lapse of fifteen days. This petition stands disposed of alongwith connected CMP(s), if any.