# STATE OF GUJARAT & ANR v. LAL SINGH @ MANJIT SINGH & ORS

- **Citation:** [2016] 4 S.C.R. 816
- **Court:** Supreme Court of India
- **Decided:** 2016
- **Case number:** Criminal Appeal No. 171 of2016
- **Bench:** Dipak Misra, SHIVA KffiTI SINGH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-gujarat-anr-v-lal-singh-manjit-singh-ors-31235
- **Pages:** 23

## Headnote

Code of Criminal Procedure, 1973 - ss. 432 and 433 - Remission under - Respondent was convicted under the provisions of
TADA by .the Designated Court in the State of Gujarat and sentenced to life imprisonment - Conviction was confirmed by Supreme
Court - On the request of the respondent-convict, he was transferred from the jail in Gujarat to the jail in Punjab -Application by
the convict for remission of sentence - Rejected by the State of
Gujarat - Writ petition challenging the order of refusal - High Court
directed the State of Gujarat to reconsider the representation of the
convict to release him premature - On appeal, held: The High Court
has not found that the order passed by the State was bereft of appropriate consideration of necessary facts or in violation of principles of equality - Therefore, the direction of the High Court to the
State to reconsider the case of remission, is not correct - However,
the appropriate Government for exercising power u/ss. 432 and
433 would not be State of Gujarat, but the Central Government as
the sentence was imposed under a law with respect to which the
Executive Power of the Union extends - Liberty granted to the convict to submit application for premature release before the competent authority of the Central Government.
Parole - Direction by High Court (in exercise of its jurisdiction u/Art. 226) to release life convict on parole - Held: Constitutional court before directing the temporary release, should form an
opinion that request has been unjustifiably refused or where interest of justice so warrants - However, such jurisdiction should be
sparingly exercised - In the present case, an abrupt direction has
been issued to release the convict on parole without resorting to
legal principles.
Judicial Discipline - Judicial restraint - A Judge is expected
816
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH 817
& ORS.
to act in consonance with the legal principles - He has to remain
embedded to constitution and laws - He cannot assume the power
on the basjs of the individual perception or notion.
Allowing the appeal, the Court
HELD: 1. The High Court has not found that the order
passed by the State of Gujarat was bereft of appropriate consideration of necessary facts or there has been violation of principles of equality. The High Court has not noticed that the order
is bereft of reason. It has been clearly stated in the impugned
order that the convict was involved in disruptive activities, criminal conspiracy, smuggling of arms, ammunitions and explosives
and further he had also been involved in various other activities.
It has also been mentioned that the prisoner had wide-spread
network to cause harm and create disturbance to National Security. Because of the aforesaid reasons remission was declined.
In such a fact situation, the view expressed by the High Court to
consider the case on the basis of the observations made by it in
the judgment is not correct. [Para 32] [837-B-D]
Laxman Naskar v. State of West Bengal (2000) 7 SCC
626 : 2000 (3) Suppl. SCR 62 - relied on.
2.1 The constitutional court, before directing the temporary
release where the request is made to be released on parole for a
specified reason and for a specified period should form an opinion that request has been unjustifiably refused or where the interest of justice warranted for issue of such order of temporary
release. Jurisdiction has to be sparingly exercised by the Court
and even when it is exercised, it is appropriate that the Court
should leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed.
[Para 33] [837-F-G]
2.2 In the present case, an abrupt direction has been issued
to release the first respondent on parole for a period of three
months. It is well settled that a Judge is expected to act in consonance and accord with the legal principles. He cannot assume
the power on the basis of his individual perception or notion.
While using the powe

## Text

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[2016] 4 S.C.R. 816
STATE OF GUJARAT & ANR.
v.
LAL SINGH @ MANJIT SINGH & ORS.
(Criminal Appeal No. 171 of2016)
JUNE29,2016
[DIPAK MISRA AND SHIVA KffiTI SINGH, JJ.]
Code of Criminal Procedure, 1973 - ss. 432 and 433 - Remission under - Respondent was convicted under the provisions of
TADA by .the Designated Court in the State of Gujarat and sentenced to life imprisonment - Conviction was confirmed by Supreme
Court - On the request of the respondent-convict, he was transferred from the jail in Gujarat to the jail in Punjab -Application by
the convict for remission of sentence - Rejected by the State of
Gujarat - Writ petition challenging the order of refusal - High Court
directed the State of Gujarat to reconsider the representation of the
convict to release him premature - On appeal, held: The High Court
has not found that the order passed by the State was bereft of appropriate consideration of necessary facts or in violation of principles of equality - Therefore, the direction of the High Court to the
State to reconsider the case of remission, is not correct - However,
the appropriate Government for exercising power u/ss. 432 and
433 would not be State of Gujarat, but the Central Government as
the sentence was imposed under a law with respect to which the
Executive Power of the Union extends - Liberty granted to the convict to submit application for premature release before the competent authority of the Central Government.
Parole - Direction by High Court (in exercise of its jurisdiction u/Art. 226) to release life convict on parole - Held: Constitutional court before directing the temporary release, should form an
opinion that request has been unjustifiably refused or where interest of justice so warrants - However, such jurisdiction should be
sparingly exercised - In the present case, an abrupt direction has
been issued to release the convict on parole without resorting to
legal principles.
Judicial Discipline - Judicial restraint - A Judge is expected
816
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH 817
& ORS.
to act in consonance with the legal principles - He has to remain
embedded to constitution and laws - He cannot assume the power
on the basjs of the individual perception or notion.
Allowing the appeal, the Court
HELD: 1. The High Court has not found that the order
passed by the State of Gujarat was bereft of appropriate consideration of necessary facts or there has been violation of principles of equality. The High Court has not noticed that the order
is bereft of reason. It has been clearly stated in the impugned
order that the convict was involved in disruptive activities, criminal conspiracy, smuggling of arms, ammunitions and explosives
and further he had also been involved in various other activities.
It has also been mentioned that the prisoner had wide-spread
network to cause harm and create disturbance to National Security. Because of the aforesaid reasons remission was declined.
In such a fact situation, the view expressed by the High Court to
consider the case on the basis of the observations made by it in
the judgment is not correct. [Para 32] [837-B-D]
Laxman Naskar v. State of West Bengal (2000) 7 SCC
626 : 2000 (3) Suppl. SCR 62 - relied on.
2.1 The constitutional court, before directing the temporary
release where the request is made to be released on parole for a
specified reason and for a specified period should form an opinion that request has been unjustifiably refused or where the interest of justice warranted for issue of such order of temporary
release. Jurisdiction has to be sparingly exercised by the Court
and even when it is exercised, it is appropriate that the Court
should leave it to the administrative or jail authorities to prescribe the conditions and terms on which parole is to be availed.
[Para 33] [837-F-G]
2.2 In the present case, an abrupt direction has been issued
to release the first respondent on parole for a period of three
months. It is well settled that a Judge is expected to act in consonance and accord with the legal principles. He cannot assume
the power on the basis of his individual perception or notion.
While using the power he has to bear in mind that "discipline"
and "restriction" are the two basic golden virtues within which a
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818
SUPREME COURT REPORTS
[2016] 4 S.C.R.
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Judge functions. He has to remain embedded to constitution
and the laws. [Para 341 [838-B-CJ
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Sunil Fu!chand Shah v. Union of India and Ors. (2000)
3 SCC 409: 2000 (1) SCR 945 - followed.
3. While deciding as to which will be appropriate Government for exercising power u/ss. 432 and 433 Cr.P.C., the first
test should be whether the offence for which the sentence was
imposed was under a law with respect to which the Executive
Power of the Union extends. For instance, if the sentence was
imposed under TADA Act, as the said law pertains to the Union
Government, the Executive Power of the Union alone will apply
to the exclusion of the State Executive Power, in which case,
there will be no question of considering the application of the
Executive Power of the State." The High Court has opined that
the State of Gujarat is the appropriate Government. It is because it has been guided by the principle that the first respondent was convicted and sentenced in the State of Gujarat. [Paras
29, 31 and 32) [835-D; 836-F-HJ
Union of India v. V. Sriharan @ Murugan & Ors 2015
(13) SCALE 165; State of Madhya Pradesh v. Ajit Singh
& Ors. (1976) 3 SCC 616; Hamm/ant Dass v. Vinay
Kumar & Ors. (1982) 2 SCC 177 : 1982 (3) SCR 595;
Govt. of A.P. and Ors. v.MT. Khan (2004) 1 SCC 616
: 2003 (6) Suppl. SCR 490; G. V. Ramanaiah v. The
Superintendent of Central Jail, Rajahmundry and Ors.
(1974) 3 SCC 531: 1974 (1) SCR 852 - relied on.
Lal Singh v. State of Gujarat and Anr. (2001) 3 SCC
221 : 2001 (1) SCR 111; State of Haryana v. Mahender
Singh (2007) 13 sec 606:2007 (11) SCR 932; u. T.
Chandigarh v. Charanjit Kaur 1996 (7) SCC 492 : 1996
(2) SCR 735; Laxman Naskar v. State qf West Bengal
(2000) 7 SCC 626 : 2000 (3) Suppl. SCR 62; Santa
Singh v. State of Punjab (1976) 4 SCC 190 : 1977 (1)
SCR 229; Kuljeet Singh v. Lt. Governor of Delhi 1982
(1) SCC 417 : 1982 (3) SCR 58; Kehar Singh v. Union
of India 1989 (1) SCC 204 : 1988 (3) Suppl. SCR 1102;
Mohd Munna v. Union of India and Ors. (2005) 7 SCC
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH 819
&ORS.
417 : 2005 (3) Suppl. SCR 233; Maru Ram v. Union
of India and Ors. 1981 (1) SCC 107; Swaran Singh v.
State of UP. and Ors. 1998 (4) SCC 75 : 1998 (2) SCR
206; State of Madhya Pradesh v. Ratan Singh and Ors.
(1976) 3 sec 470 : 1976 (0) Suppl. SCR 552; Gopal
Vinayak Godse v. State of Maharashtra (1961) 3 SCR
440; Naib Singh s/o Makhan Singh v. State of Punjab
and Ors. (1983) 2 SCC 454; K.M Nanavati v. State of
Maharashtra 1962 Supp (1) SCR 567; Kishori Lal v.
Emperor AIR 1945 PC 64; Bikas Chatterjee v. Union
of India and Ors. (2004) 7 SCC 634; Satpal v. State of
Haryana (2000) 5 SCC 170 : 2000 (3) SCR 858; Epuru
Sudhakar and Anr. v. Govt. of A.P. and Ors. (2006) 8
SCC 161; Swamy Shraddananda (2) alias Murali
Manohar Mishra v. State of Karnataka (2008) 13 SCC
767 : 2008 (11) SCR 93; V. Sriharan alias Murugan v.
Union of India and Ors. (2014) 4 SCC 242 - referred
to.
Case Law Reference
2001 (1) SCR 111
referred to
Para3
2007 (11) SCR 932
referred to
Paras
]996 (2) SCR 735
referred to
Para6
2000 (3) Suppl. SCR 62
relied on
Para6
]977 (1) SCR 229
referred to
Para 11
1982 (3) SCR 58
referred to
Para 11
1988 (3) Suppl. SCR 1102 referred to
Para 11
2005 (3) Suppl. SCR 233
referred to
Para 11
]981 (1) sec 101
referred to
Para 12
]998 (2) SCR 206
referred to
Para 12
1976 (0) Suppl. SCR 552
referred to
Para 16
(1961) 3 SCR 440
referred to
Para 16
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(1983) 2 sec 454
referred to
Para 17
1962 Supp (1) SCR 567
referred to
Para 21
AIR 1945 PC 64
referred to
Para 21
(2004) 7 sec 634
referred to
Para 25
B
20QO (3) SCR 858
referred to
Para 25
0006) 8 sec 161
referred to
Para26
2015 (13) SCALE 165
relied on
Para28
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2Q08 (11) SCR 93
referred to
Para28
(~014) 4 sec 242
referred to
Para28
0976) 3 sec 616
referred to
Para30
l~f!2 (3) SCR 595
referred to
Para30
D
2003 (6) Suppl. SCR 490 referred to
Para 30
1~~4 (1) SCR 852
referred to
Para30
2QOO (1) SCR 945
followed
Para 33
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CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
171 of2006.
From the Judgment and Order dated 23.08.2012 in Crl. W. P. No.
1620 of 2011 passed by the High Co mi of Punjab & Haryana at
Chandigarh
F
WITH
W. P. (Cr!.) No. 181 of2012.
V. Madhukar, AAG, D. N. Ray, Ms. Hemantika Wahi, Ms. Jesal
Wahi, Ms. Sunita Sharma, Ms. Anvita Cowshish, Kuldip Singh, Ms.
Naresh Bakshi, Advs. for the appearing parties.
G
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. The present appeal, by special leave, is
directed against the judgment and order dated August 23, 2012 passed
by the High Court of Punjab and Haryana at Chandigarh in Criminal
H
Writ Petition No. 1620of2011 whereby the High Court entertaining the
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 821
& ORS. [DIPAK MISRA, J.]
Writ Petition had opined that the order dated 26.07.2011 passed by the
Government of Gujarat declining to grant the benefit of premature release
to the first respondent herein is illegal and further directed the State
Government to reconsider his case and take a fresh decision in the light
of the discussions made in the impugned order and further to release
him on parole for a period of three months on furnishing personal bond/
security bond for a sum of Rs. 50,000/-· to the satisfaction of the concerned
Jail Superintendent.
2. The facts which are essential to be stated are that the first
respondent along with 20 other accused was tried in TADA Cases Nos.
2, 7 of I 993 and 2of1994. The Designated Judge, Ahmedabad (Rural)
at Mirzapur, Ahmedabad convicted the first respondent and some others
for the offences punishable under Section 3(3) of the Terrorist and
Disruptive Activities (Prevention)Act, I 987 (for short, "the TADA Act")
and sentenced to suffer life imprisonment and to pay a fine of Rs. I 0,000/
- each and in default to suffer RI for 6 months; under Section I 20-8( 1)
IPC sentenced to suffer RI for I 0 years and to pay a fine of Rs. 5,000/
- each, in default to suffer RI for 3 months; under Section 5 of the
TADA Act sentenced to suffer life imprisonment and to pay a fine of
Rs. I 0,000/- and in default to suffer RI for 6 months; under Section 5 of
the Explosive Substances Act to pay a fine of Rs. 5,000/- and in default
to undergo RI for 3 months; under Section 25( I-A) of the Arms Act
sentenced to suffer RI for 7 years and to pay a fine of Rs. 5,000/- and,
in default, to suffer RI for 3 months. Be it stated, he was also convicted
for the offence punishable under Section 3(3) of the TADA Act read
with Section 120-8 !PC but no separate sentence was awarded. All the
sentences were directed to run concurrently.
3. The first respondent preferred Criminal Appeal No. 2I9of1997
and the said appeal was heard along with the appeals preferred by other
convicts. This Court in Lal Singh v. State of Gujarat anti another'
scrutinized the evidence in detail and ultimately dismissed the appeal
preferred by the first respondent and confirmed the conviction and the
sentence as imposed by the learned Judge, Designated Court.
4. During the pendency of the criminal appeal before this Court,
the first respondent sought transfer from the Central Prison, Ahmedabad
to the Central Prison, Jalandharon the ground that his family is based in
1(2001) 3 sec 221
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Punjab; his old parents were suffering from number of ailments; and
further the financial condition of the family was precarious. Considering
the reasons ascribed in the representation, the State Government vide
order dated 11.11.1998 consented to transfer the first respondent from
Central Prison, Ahmedabad to the Central Prison, Jalandhar. A condition
was stipulated by the State of Gujarat that tight security and proper
police escort arrangement was to be ensured.
5. The first respondent on 19.0l.2004 sought premature release
under Section 432 of the Code of Criminal Procedure, 1973 (CrPC) on
the ground that he would complete 14 years of actual sentence in jail.
His prayer for premature release was considered by the competent
authority of the State of Gujarat which vi de order dated 26.10.2006
considering the over all aspects of the matter rejected the said application.
The said order was assailed in Criminal Writ Petition No. 505 of 2007
before the High Court of Punjab and Haryana which vide order dated
25.08.2008 disposed of the Writ Petition with the direction to the State
of Gujarat to reconsider the case of the first respondent for premature
release considering the applicability of Section 433 CrPC, Section 3 of
the Transfer of Prisoner Act and the decision in State of Harymw v.
Maliender Singli 2•
6. Keeping in view the order passed by the High Court, the State
Government considered the prayer of the first respondent for premature
release on 06.03.2009 and considered all aspects that have to be taken
note of as per the direction of the High Court along with all other factors
and the decisions in U. T. Clwndigarlt v. C/ummjit Kaur3 and Laxnwn
Naskar v. State of West Bengat• and eventually rejected the application.
The grievance of rejection compelled the first respondent to prefer a
Misc. Criminal Application No. 6515 of 2009 before the Punjab and
Haryana High Court which was eventually withdrawn vide order dated
16.03.2009 wherein it was observed that it was open to the said respondent
to approach the concerned authority. The order dated 06.03.2009 was
again challenged in Special Criminal Application No. 1274. of2009 under
Article 226 of the Constitution oflndia which was dismissed by the High
Court.
2 2007 (4) RCR (Criminal) 909: (2007) 13 SCC 606
'n 1996 (3) sc 30: 1996 (7) sec 492
4 AIR 2000 SC 2762 : (2000) 7 sec 626
..
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 823
& ORS. [DIPAK MISRA, J.]
7. Remaining indefatigable the first respondent preferred Writ
Petition No. 677 of 20 I 0 praying for a writ of habeas corpus on the
ground that he had already suffered requisite period of sentence and
hence, he was entitled to be released as per Sections 432, 433 and 433A CrPC and para 431 of the New Punjab Jail Manual. A grievance was
put forth that his representation had not been considered by the State
Government. On 20.04.20 I 0, the High Court disposed of the matter
directing the State Government to pass a speaking order within a period
of two months. Be it stated, when the High Court passed the said order,
it had not issued notice to the State of Gujarat. However, regard being
had to the direction issued by the High Court, the competent authority
took up the matter for reconsideration and after obtaining the opinion
from the appropriate quarters as required under the manual, the State
Government declined to grant premature release to the first respondent
vide order dated 30.12.20 I 0. The said order was assailed before the
High Court in Writ Petition No. 158 of 20I1 and the High Court vi de
judgment and order dated 25.05.2011 directed the State to reconsider
the premature release taking note of the actual sentence of 14 years and
three months and more than 21 years including remission. The High
Court had directed the first respondent to be released on parole subject
to certain conditions. Pursuant to the order passed by the High Court,
the State Government took up the case for reconsideration and keeping
in view the statutory provisions ofCrPC, Rule No. 1448 of the Bombay
Jail Manual which governs the State of Gujarat, the opinion of the advisory
board and keeping in view the number of cases the first respondent was
really involved, the gravity and nature of the crime and its impact on the
society, it rejected the proposal for release vi de order dated 26.07.2011.
8. Being aggrieved by the aforesaid order, the first respondent
invoked the jurisdiction of the High Court under Article 226 of the
Constitution of India. It was contended on behalf of respondent No. I
before the High Court that provisions of Punjab Jail Manual, 1996 are
applicable to him since he had been transferred to the State of Punjab as
per the Transfer of Prisoners Act, 1950 and as there had been a
recommendation by the competent authority under the Punjab Jail Manual
that he was entitled to the benefit of the premature release but the same
has been declined by the State of Gujarat and hence, the whole action
was arbitrary and illegal. It was also urged that as per the Bombay Jail
Manual which is applicable in State of Gujarat, he was also entitled to
premature release as he had already undergone more than I 4 years of
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sentence. It was also argued that refusal to entertain the prayer for
premature release was contrary to the concept of Article 21 of the
Constitution and, therefore, the order passed by the State Government
was 11011 est in law.
9. The stand of the first respondent was controverted by the State
of Gujarat contending, inter alia, that the recommendations of the
competent authority under the Punjab Jail Manual are not binding on it
which is the sole authority to decide the matter relating to premature
release; that the High Court of Punjab and Haryana had no jurisdiction
to issue a writ of habeas corpus; that the factual background as depicted
by the State do not make out a case for premature release and, therefore,
the Court should not exercise its extra ordinary jurisdiction on the said
score. It was also contended that the first respondent having acceded
to the earlier orders of rejection by the High Court, was debarred from
approaching the Court in subsequent petitions.
I 0. The learned single Judge posed five questions for consideration.
They read as under:-
"i) Which is the appropriate Government empowered to consider
the case of premature release of the petitioner?
ii) Whether earlier dismissal of the petition for premature release
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by a High Court operates as bar and estoppels to the filing of
subsequent petitions?
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iii) Whether the High Court where prisoner is transferred has
jurisdiction to entertain the criminal writ petition?
iv) Whether non-release of a convict is worse sanction than the
death sentence, resultant encroachment upon the life and personal
liberty by the executive?
v) Whether order dated 26.07.2011 is subject to judicial review
and is arbitrary, whimsical and against the provisions of Article 21
of the Constitution oflndia?"
11. Answering the first question, the High Court held that it is the
Government of Gujarat which is the appropriate Government for passing
the order with regard to premature release to the first respondent.
Answering the question No. 2, the High Court opined that dismissal of
the earlier petitions did not operate as a bar to file fresh petition nor do
they operate as estoppel when fresh cause of action arises. Dealing
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 825
& ORS. [DIPAK MISRA, J.]
with the third facet, the High Court opined that it had the jurisdiction to
entertain the Writ Petition keeping in view the ambit and scope under
Article 226 of the Constitution. While dealing with question No. 4, the
High Court referred to Universal Declaration of Human Rights, Article
21 of the Constitution, the view expressed by this Court in Santa Singlt
v. State of Punjab;, Kuljeet Singlt v. Lt. Governor of Dellti6, Ke/tar
Singh v. Union of lndia7, Ma/tender Singlt (supra), Moltd. Munna v.
Union of India and others• and certain other authorities and came to
holdthus:-
"In the light of the above discussions, facts and circumstances of
the cases in hand, the arguments of the counsel for the Government
of Gujarat that life imprisonment means natural life of the prisoner
is against the provisions of the Constitution and the International
Human Rights Documents and will amount to arbitrary exercise
of power rejecting the premature release of petitioners. I have no
doubt that indeterminate life imprisonment and non-release of a
convict - prisoner is worse sanction than the death sentence,
resultant encroachment upon the life and personal liberty by the
executive. A barbaric crime does not have to be met with a
barbaric penalty which may upset the mental balance of a person
who may realize that he will never be out of prison. The reasonable
determination period of imprisonment with regard to offences
where life imprisonment is provided is a necessity and call for
appropriate amendment for prescribing determinate punishment
keeping in view the gravity of the offence. This Court feels that
it is the primary obligation of the Legislature to carry out necessary
amendments in the cases where imprisonment for life is provided ·
to make aware the convict/prisoner how much period he has to
undergo in prison. Otherwise, the approach of reformative,
rehabilitative and corrective system will be only a futile exercise.
Otherwise also, to keep a prisoner behind bars is a financial burden
on the State exchequer and for that reason it is imperative to fix
some determinate punishment by making amendments."
12. While adverting to the fifth issue, the High Court referred to
'AIR 1976 SC 2386: (1976) 4 sec 190
'' 1982 (I) sec 417
1 1989 (I) sec 204
'{2005) 1sec417
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the decisions in Kelutr Singft (supra), the Constitution Bench decision
in Maru Ram v. Union of India and otfters• and Swartm Singft "·
State of U.P. am/ others1" and came to hold that the power of judicial
review of the order passed hy the President or the Governor under Article
72 or Article 161 is available on limited grounds. Thereafter the High
Court opined that the State of Gujarat while considering the representation
of the first respondent seeking premature release had not taken into
consideration the reports of the District Magistrate and the Senior
Superintendent of Pol ice, Kapmthala as well as the Superintendent
Maximum Security Jail, Nabha where the first respondent was undergoing
the sentence and no reason for discarding such repo1ts had been ascribed.
The High Court further opined that it is not recorded in the order how
the Advisory Committee of Gujarat has come to a conclusion for not
recommending the case of premature release of the first respondent.
That apart, it has been observed that no evidence or material had been
placed before the Court to reject the recommendations of the transferee
State, that is, the Government of Punjab. Thereafter, the learned single
Judge proceeded to state thus:-
" ... The petitioner more than 20 years had never been in the
jurisdiction of District Magistrate and District Superintendent of
Police of the concerned District of Gujarat, how their reports can
outweigh the reports of the transferee State. The absence of
obligation to convey reason to the petitioner for rejecting the
recommendations of the State of Punjab where the petitioner
permanently resides does not mean that there should not be
legitimate and relevant reasons for passing order of rejection.
Furthennore, no such material has been placed on the paper book
nor any record has been shown to the Cou11 which had formed
the basis for rejecting the claim of the petitioner. The obligation
to supply reasons is entirely different to apprise the Court about
the reason for the action when the same is challenged in Court. .. ''
13. Eventually, the High Court directed to .-econsider the first
respondent's representation in the light of the discussion made in that
order and further to release him forthwith on parok for a period of three
months. The sa;d ord~r ;s !he subject matter of assail in this appeal by
special leave.
• 1981 (I) sec 101
H
•·• 1998 (4) sec 75
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH 827
& ORS. [DIPAK MISRA, J.]
14. We have heard Mr. D.N. Ray and Ms. Hemantika Wahi, learned
counsel forthe State of Gujarat, Ms. Sunita Sharma, learned counsel for
the first respondent and Mr. V. Madhukar, learned Additional Advocate
General for the State of Punjab.
15. To appreciate the controversy specially in the backdrop of the
judgment delivered by the High Court, it is necessary to restate the law
pertaining to sentence of imprisonment for life and the concept of
remission as envisaged under CrPC.
16. In State of Madhya Pradesh v. Rata11 Singh and others" a
two-Judge Bench speaking through Fazal Ali, J., after adverting to the
decision in Gopa/ Vinayak Godse v. State of Malwrashtra 12 and other
decisions and the provisions ofCrPC, has opined that that a sentence of
imprisonment for life does not automatically expire at the end of 20
years including the remissions, because the administrative rules framed
under the various Jail Manuals or under the Prisons Act cannot supersede
the statutory provisions of the Indian Penal Code. A sentence of
imprisonment for life means a sentence for the entire life of the prisoner
unless the appropriate Government chooses to exercise its discretion to
remit either the whole or a part of the sentence under Section 401 of the
Code of Criminal Procedure.
I 7. In Naib Singh s/o Mak/um Singh v. State of Punjab am/
otliers13 the Court was dealing with a writ petition preferred under
Article 32 of the Constitution challenging the continued detention of the
convict petitioner in jail and seeking an order in the nature of habeas
corpus claiming that he had served more than the maximum sentence of
imprisonment prescribed under law and therefore he should be released.
The petitioner therein was c.onvicted under Section 302 IPC and
sentenced to death but on a mercy petition preferred by him, his death
sentence was commuted by the Governor of Punjab to imprisonment
for life. After serving rigorous imprisonment of more than 22 years, a
petition was filed seeking the release. The Com1 referred to Sections
53 and 55 !PC and Section 433 CrPC., various decisions of the High
Court and then concept of transportation for life and eventually held that
it is well settled position in law that the sentence of imprisonment for life
11 \1976) 3 sec 470
" ( 1961) 3 SCR 440 : AIR 1961 SC 600
"\1983) 2 sec 454
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has to be equated to rigorous imprisonment for life and ultimately the
claim of the petitioner to immediate release was declined in the absence
of any order of commutation being passed either under Section 55 IPC
or Section 433(b) CrPC.
18. In this regard, we may fruitfully refer to a two-Judge Bench
decision in Laxman Naskar (supra). In the said case, after referring to
the earlier decisions, the Court opined that though under the relevant
Rules a sentence for imprisonment for life is equated with the definite
period of 20 years, that is no indefeasible right of such prisoner to be
unconditionally released on the expiry of such a particular terms, including
remissions and that is only forthe purpose of working out the remissions
that the said sentence is equated with definite period and not for any
other purpose. The Court proceeded to state thus:-
" ... In view of this legal position explained by this Court it may
not help the petitioner even on the construction placed by the
learned counsel for the petitioner on Section 61 (I) of the West
Bengal Correctional Services Act 32 of 1992 with reference to
explanation thereto that for the purpose of calculation of the total
period of imprisonment under this section the period of
imprisonment for life shall be taken to be equivalent to the period
of imprisonment for 20 years. Therefore, solely on the basis of
completion ofa term in jail serving imprisonment and remissions
earned under the relevant Rules or law will not entitle an automatic
release, but the appropriate Government must pass a separate
order remitting the unexpired portion of the sentence."
19. It is essential to state here that while so stating the Court adverted
F
to the issue whether there had been due consideration of the case of the
petitioner by the Government. The Court took note of the fact that earlier
on the Court had directed the Government to reconsider the cases for
premature release of all life convicts who had approached the Court.
The Court took note of the fact that the Government had constituted a
G
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Review Committee consisting of certain members, and enumerated the
guidelines issued earlier to form the basis on which a convict can be
released prematurely. The said guidelines read as under:-
"This Court also issued certain guidelines as to the basis on which
a convict can be released prematurely and they are as under:
"(i) Whether the offence is .an individual act of crime without
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 829
& ORS. [DIPAK MISRA, J.]
affecting the society at large.
(ii) Whether there is any chance of future recurrence of
committing crime.
(iii) Whether the convict has lost his potentiality in committing
crime.
(iv) Whether there is any fruitful purpose of confining this convict
any more.
(v) Socio-economic condition of the convict's family."
20. The Court analysed the reasons given by the Review Committee
and opined that the reasons given by the Government are palpably
irrelevant or devoid of substance and accordingly remitted the matter to
the Government again for examination in the light of what has been
stated by the Court.
21. In Moltd. Munna (supra) a two-Judge Bench was dealing with
a Writ Petition wherein the prayer was made for issuance of a writ of
habeas corpus to set the petitioner at liberty on the ground that he had
remained in detention for more than 21 years. It was contended that the
length of the duration of imprisonment for life is equivalent to 20 years'
imprisonment and that too subject to further remission admissible under
law. The two-Judge Bench referred to various provisions ofIPC, earlier
decisions in the field including K.M. Nanavali v. State of Malmras/1/ra 14
and Kislwri Lal v. Emperor1" and the law laid down in Gopa/ Vinayak
Godse (supra) and held that:-
"The Prisons Rules are made under the Prisons Act and the
Prisons Act by itself does not confer any authority or power to
commute or remit sentence. It only provides for the regulation of
the prisons and for the terms of the prisoners confined therein.
"
The Court further observed that the petitioner was not entitled to
be released on any of the grounds urged in the writ petition so long as
there was no order of remission passed by the appropriate Government
in his favour.
22. In Maru Ram (supra) the constitutional validity of Section 433-A
" 1962 Supp (I) SCR 567 : AIR 1962 SC 605
"AIR I 945 PC 64
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CrPC which had been brought in the statute book in the year 1978 was
called in question. Section 433-A CrPC imposed restrictions on powers
of remission or commutation in certain cases. It stipulates that where a
sentence of imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishments provided by
laws, or where a sentence of death imposed on a person has been
commuted under Section 433 into one of imprisonment for life, such
person shall not be released from prison unless he has served at least
fourteen years of imprisonment. The majority in Maru Ram (supra)
upheld the constitutional validity of the provision. The Court distinguished
the statutory exercise of power of remission and exercise of power by
the constitutional authorities under the Constitution, that is, Articles 72
and 161. In that context, the Court observed that the power which is the
creature of the Code cannot be equated with a high prerogative vested
by the Constitution in the highest functionaries of the Union and the
States, for the source is different and the substance is different. The
Court observed that Section 433-A CrPC cannot be invalidated as
indirectly violative of Articles 72 and 161 of the Constitution. Elaborating
further, the majority spoke to the following effect:-
" ... Wide as the power of pardon, commutation and release
(A11icles 72 and 161) is, it cannot run riot; for no legal power can
run unruly like John Gilpin on the horse but must keep sensibly to
a steady course. Here, we come upon the second constitutional
fundamental which underlies the submissions of counsel. It is that
all public power, including constitutional power, shall never be
exercisable arbitrarily or mala fide and, ordinarily, guidelines for
fair and equal execution are guarantors of the valid play of power.
"
23. In Kellar Singh (supra) the Constitution Bench opined that the
power to pardon is a part of the constitutional scheme and it should be so
treated in the Indian Republic. The Court further observed that it is a
constitutional responsibility of great significance, to be exercised when
occasion arises in accordance with the discretion contemplated by the
context. It has also been held that the power to pardon rests on the
advice tendered by the Executive to the President who, subject to the
provisions of Article 74( I), must act in accordance with the advice.
Dealing with the justiciability of exercise of power under At1icle 72, the
Court after due deliberation ruled that the question as to the area of the
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 831
& ORS. [DJPAK MISRA, J.]
President's power under Article 72 falls squarely within the judicial domain
and can be examined by the court by way of judicial review. In this
context, the larger Bench ruled thus:-
" ... The ma:111er of consideration of the petition lies within the
discretion of the President, and it is for him to decide how best he
can acquaint himself with all the information that is necessary for
its proper and effective disposal. The President may consider
sufficient the information furnished before him in the first instance
or he may send for further material relevant to the issues which
he considers pertinent, and he may, if he considers it will assist
him in treating with the petition, give an oral hearing to the parties.
The matter lies entirely within his discretion. As regards the
considerations to be applied by the President to the petition, we
need say nothing more as the law in this behalf has already been
laid down by this Court in Maru Ram (supra)."
24. In Swara11 Singh (supra) a three-Judge Bench was called
upon to deal with the non-justiciability ofan order passed by the President
oflndia under Article 72 of the Constitution or by the Governor of the
State under Article 161 thereof. The Court referred to the Constitution
Bench decision in Kelwr Singh (supra) where the principles stated in
Maru Ram (supra) were followed and culled out the principles that in
Kehar Singh (supra) a point has been stressed to the effect that the
power being of the greatest moment, cannot be a law unto itself but it
must be informed by the finer canons of constitutional ism. The Court
adverted to the facts of the case and held thus:-
"In the present case, when the Governor was not posted with
material facts such as those indicated above, the Governor was
apparently deprived of the opportunity to exercise the powers in a
fair and just manner. Conversely, the order now impugned fringes
on arbitrariness. What the Governor would have ordered if he
were apprised of the above facts and materials is not for us to
consider now because the Court cannot then go into the merits of
the grounds which persuaded the Governor in taking a decision in
exercise of the said power. Thus, when the order of the Governor
impugned in these proceedings is subject to judicial review within
the strict parameters laid down in Maru Ram case and reiterated
in Kehar Singh case we feel that the Governor shall reconsider
the petition ofDoodh Nath in the light of those materials which he
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had no occasion to know earlier."
25. In Bikas Chatterjee v. Union of India and otlters16 the
Constitution Bench while dealing with the power of judicial review in
respect of order passed under Article 72 of the Constitution held that the
powers are very very limited. Relying on Maru Ram (supra), the Court
observed that it is only a case of no consideration or consideration based
on wholly irrelevant grounds or an irrational, discriminatory or mala fide
decision of the President which can provide ground for judicial review.
Dealing with the powers of the Governor, the Court referred to the
authority in Satpal v. State of Haryana 17 and opined that:-
"In a Division Bench decision of this Court in Satpal v. State of
Haryana (supra) these very grounds have been restated as: (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 consideration; or (v) mala tides. It is
on these grounds that the Court may exercise its power of judicial
review in relation to an order of the Governor under Article 161,
or an order of the President under Article 72 of the Constitution,
as the case may be."
Be it stated, the Court dee! ined to entertain the writ petition on the
ground that there was no justification to assume that the President of
India had not applied his mind to all the relevant facts and accordingly
rejected the petition.
26. At this juncture, reference to a two-Judge Bench decision in
Epurtt Sudliakar mu/ another v. Govt. of A.P. and otflers18 would be
apposite. In the said case, the convict was granted remission of the
unexpired period of sentence under Article 161 of the Constitution. The
convict was granted remission of unexpired period of about seven years
imprisonment. The same was challenged by the son of the deceased.
The question ofinterference by the Court arose for consideration. Arij it
Pasayat, J. placed reliance on the authority in Swtmm Singlt (supra)
wherein Maru Ram (supra) and Ke/Utr Singlt (supra) were referred to
1' (2004 l 7 sec 634
1' (2000J ~ sec 110
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STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH '833
& ORS. [DIPAK MISRA, J.]
and dealt with and reiterated the view that ifthe power is exercised in
an arbitrary or malafide manner or in absolute disregard of finer canons
ofconstitutionalism, the order can be scrutinized in exercise of powerof
judicial review and the judicial hands can be stretched to it.
27. In the concurring opinion, S.H. Kapadia, J. (as His Lordship
then was) opined thus:-
"Exercise of executive clemency is a matter of discretion and yet
subject to certain standards. It is not a matter of privilege. It is a
matter of performance of official duty. It is vested in the President
or the Governor, as the case may be, not for the benefit of the
convict only, but for the welfare of the people who may insist on
the performance of the duty. This discretion, therefore, has to be
exercised on public considerations alone. The President and the
Governor are the sole judges of the sufficiency of facts and of the
appropriateness of granting the pardons and reprieves. However,
this power is an enumerated power in the Constitution and its
limitations, if any, must be found in the Constitution itself.
Therefore, the principle of exclusive cognizance would not apply
when and ifthe decision impugned is in derogation of a constitutional
provision. This is the basic working test to be applied while granting
pardons, reprieves, remissions and commutations."
And, again:-
" ...