Hari Singh S/O Anoop Singh vs The State & Ors.
2000 Latest Caselaw 123 Del

ORDER

Mukul Mudgal, J.

1. In this writ petition the petitioner has challenged the legality and validity of the period of surety for good behaviour for life sought by the respondents who are the Delhi Administration and its functionaries as one of the conditions imposed under Section 432 of the Criminal Procedure Code for remitting the life sentence of the petitioner. It is not in dispute that the petitioner had completed 14 years of imprisonment in accordance with Section 433-A of the Criminal Procedure Code and the Sentence Revising Board has found his case to be fit to be recommended for premature release and he was accordingly released and has now sought to challenge the duration of the surety given on his behalf.

2. The petitioner was a life convict and his sentence was remitted by an order dated 25.1.93 subject to his executing a personal bond in the sum of Rs. 10,000/- with two sureties in the like amount for maintaining peace and keeping good behaviour during the unexpired portion of his sentence. The relevant portion of the order of respondent No. 1 reads as under :-

"In exercise of the power conferred by Section 432 of the Code of Criminal Procedure, 1973 (No. 2 of 1974), read with the Government of India, Ministry of Home Affairs, New Delhi notification No. U-11011/2/74-UTL(i) dated the 20th March, 1974, the Lt. Governor of the National Capital Territory of Delhi is pleased to remit the unexpired portion of the sentence of the following five (5) life convicts on the recommendations of the Sentence Revising Board subject to the condition that they shall execute personal bond in the sum of Rs. 10,000/- (Rupees ten thousand) only with two (2) sureties in the like amount each to the satisfaction of the District Magistrate, Delhi for keeping good behaviour and maintaining peace during the unexpired portion of their sentence."

3. According to the petitioner the cases of life convicts after completion of minimum period of 14 years imprisonment are considered for release before the Sentence Revising Board which individually reviews cases of the convicts and based upon the recommendations of the Board, orders are issued emitting the remaining portion of the sentence of the convicts recommended for release. Pursuant to the above order dated 25.1.93 the petitioner furnished the required sureties to the satisfaction of the respondent No. 2. The surety of Diwan Singh, son of Govind Singh was accepted by respondent No. 2 on the basis of his ownership of a DDA flat and an endorsement to this effect was made on the allotment letter of the said flat. The second surety of Kalyan Singh son of Balwant Singh was accepted on the basis of a Fixed Deposit Receipt in the sum of Rs. 10,000/- and a similar endorsement was also made on the Fixed Deposit Receipt of the said Kalyan Singh.

4. The grievance of the petitioner arises from the fact that inspite of the lapse of 5 years since his release the sureties of the petitioner have not been discharged as the order releasing him did not stipulate the period for which the sureties were to be in force. The petitioner contends that significantly the above two sureties given by the friends of the petitioner are still bound down for Rs. 10,000/- each and would continue to be bound down for the rest of the life of the petitioner in view of the stand taken by the respondent.

5. The para 7 of the writ petition reads as under:-

"That all the release orders issued by the respondent No. 1 for the release of life convicts contain the same language incorporating the same conditions as mentioned above. It is submitted that the said conditions imposed by the said respondent while releasing the life convicts are arbitrary and violative of Article 14 of the Constitution of India."

6. Significantly in the reply of para 7 there is no reply to the averments of para 7 except the following omnibus reply in respect of paras 5 to

9.

"That in reply to paras No. 5 to 9 of the writ petition, it is submitted that life imprisonment means Life imprisonment and in Ground No. 5 of the writ petition, it is admitted case of the petitioner that the remaining portion of sentence virtually means till the rest of his life. In the instant writ petition, the petitioner has challenged the Constitutional vires of Surety bond for an indeterminate period in violative of Articles 14, 19 and 21 of the Constitution of India. No such violation of the Fundamental Rights should be inferred from the law laid down in Meru Ram's case by the Constitution Bench of the Hon'ble Supreme Court of India."

7. Thus there is no denial of the averments in para 7 of the writ petition that all the release orders have imposed the same condition.

8. The submission of Mr. Batra, learned counsel for the petitioner is that such an indeterminate period of security co-terminus with the life of the petitioner cannot be sought as it will violate Article 14 as being unreasonable and unfair and all actions of State must satisfy the test of Article 14. He further submits that this would amount to deprivation of liberty contrary to the mandate of Articles 19 and 21 of the Constitution of India. He further submitted that even in Section 107 of the Criminal Procedure Code the period provided for a bond for good behaviour in three years.

9. Section 107 of Crl. P.C. reads as under:

"107. Security for keeping the peace in other cases:- (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility and is of opinion that there is sufficient ground for proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceedings under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquility or to do any wrongful act as aforesaid beyond such jurisdiction."

10. He further submitted that the period of three years is also provided in Section 110(g) of the Criminal Procedure Code for a bond to be given even by a person who is found to be a danger to the community. The relevant portion of Section 110 and sub-clause (g) reads as under :-

"110. Security for good behaviour from habitual offenders - When [an Executive Magistrate] receives information that there is within his local jurisdiction a person who -

(g) is so desperate and dangerous as to render his being at large without security hazardous to the community,

such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit."

11. He, therefore, submitted that an action seeking a bond for life as a condition for his release is violative of Article 14, 19 and 21 of the Constitution of India and should be struck down by this Court. He further submitted that the Punjab Government instructions dated 30th January, 1976 clearly provided that in case a person is released after serving 14 years but before serving 20 years he is required to give a bond. The relevant extract of the conditions imposed by Punjab Government are as follows :-

"Subject :- Premature release of life convicts under Section 432, Cr. P.C. read with para 516-B of the Punjab Jail Manual.

Reference your memo No. 3220. GI/G-2/T-19-A-I (Part IV), dated the 5th September, 1975, on the subject cited above.

2. You may be aware of the recent shift re-awarding of death sentence in murder cases whereby life imprisonment is the normal sentence in such cases and the extreme penalty of death is given only in cases of premeditated murders of brutal and heinous nature. According to the existing policy of the State Government, cases of all life convicts, including those whose death sentence was commuted to life imprisonment on mercy petitions, are considered for premature release when they complete 8 1/2 years substantive imprisonment and 14 years imprisonment including remission. In view of the above judicial trend which has been legally formalised by Section 354(3) of the Criminal Procedure Code, it is considered that prisoners whose death sentence is commuted to life imprisonment on mercy petitions should at least undergo the full term of 'life imprisonment' as per Section 57 of the I.P.C.

viz. 20 years substantive imprisonment (excluding remission).

3. After careful consideration of the matter the State Government have taken the following decisions, in this behalf :

(a) Life convicts whose death sentence is commuted on mercy petition should, ordinarily, serve at least 20 years substantive imprisonment, excluding remission.

(b) The cases of such life convicts may, however, be considered for premature release when they complete 14 years actual imprisonment and 20 years (including remission) provided their conduct in the Jail remains 'good' throughout; and

(c) In cases where the State Government decided to order premature release of such life convicts before completion of 20 years actual sentence, the convict would be put under bond for the remaining period, falling short to 20 years."

12. Such a bond is thus not required to be for a period which together with the term served exceeds 20 years. Thus he submitted that at the highest a bond/security could only be asked for a period of 6 years from the completion of 14 years and subsistence of a bond beyond such a total period of 20 years is in any case invalid and unconstitutional.

13. Mr. Mittal appearing on behalf of the Delhi Administration submitted that the convict's release having been secured upon the imposed conditions he cannot turn around and question the validity of such conditions. He further submitted that the Sentence Revising Board applies its mind to each convict's case and depending upon the facts of the case conditions are imposed. Mr. Mittal was asked as to whether conditions are imposed automatically for life in each case or there are cases where conditions are imposed for a shorter period of time. Mr. Mittal was unable to answer this plea and accordingly sought a week's time to file this information alongwith his written submissions. However, neither were written submissions filed within a week of 3rd December nor even upto date, nor was the information sought from him supplied and accordingly the judgment has proceeded without the respondent's submissions or the information about any different period of surety for other prisoners. Mr. Mittal further submitted that life is life and the imposition of any condition for the rest of the duration of convict's life is not unconstitutional particularly in view of Section 432(3) of the Code which provides that on the conditions prescribed therein the convict can be asked to serve out the remaining period of his sentence with or without conditions.

14. The petitioner has further submitted that the orders passed by the Sentence Revising Board are cyclostyled and the other four prisoners who are dealt alongwith the petitioner's case were given a similar cyclostyled copy and nothing on the face of the order or even otherwise shows that whether there was an application of mind to the circumstances of each individual case before fixing inter alia the term for which the bond would be in force. It is also significant to consider the fact that Section 432(1) of the Cr. P.C. which reads as follows :-

"(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced."

15. Thus the above Section provides that conditions may or may not be imposed. Thus it is very clear that even the Section 432 postulates a situation where conditions may and not must, be required to be imposed. If this be the statutory position, any automatic imposition of identical conditions clearly indicates non-application of mind to individual cases. It is thus clear that there is a policy to release all lifers only on a bond for an indeterminate period of time for the rest of their lives without taking into account the individual facts and circumstances. The intent of the legislature in enacting Section 432 and in particular Section 432(1) is clear from the said sub-Section (1) which does contemplate a situation where a release could be even without imposition of any condition. Secondly a perusal of Section 110(d) & (g) clearly shows that even for habitual offenders committing kidnaping, abduction, extortion, cheating etc. or where a person is so desperate and dangerous as to render his being at large without security, hazardous to the community, a Magistrate could impose a bond for a period not exceeding 3 years. The learned counsel for the petitioner is right in submitting that some of the offences set out in Sub-Section (d) of Section 110 are punishable by life imprisonment i.e. the same sentence which was imposed on the petitioner and even such delinquents cannot be bound in law for more than 3 years. It is also necessary to consider the fact that the conditions imposed by Punjab Government for premature release under Section 532 read with Section 516(b) of the Punjab Jail Manual which was previously applicable to the State of Delhi postulates a maximum period of 20 years, for which period inclusive of the sentence served, a person could be asked to execute a bond. The stand taken by the Punjab Government correctly incorporates the intent of Section 432 of the Cr. P.C. and it is also very clear that Section 110 also indicates that bonds cannot be for an indeterminate period. It is well settled that the State action should be reasonable just and fair as held by the Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India in the following terms :

"We must reiterate here what was pointed out by the majority in E.P. Royappa Vs. State of Tamil Nadu namely, that `from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14.' Article 14 strikes at arbitrariness in State action and ensure fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be "right and just and fair" and not arbitrary, fanciful and oppressive; otherwise it would not be procedure at all and the requirement of Article 21 would not be satisfied."

16. It is also relevant to consider the observations of the Constitution Bench of Hon'ble Supreme Court in Bhagirath & Others Vs. Delhi Administration . While interpreting the provisions of Section 428 of the Cr. P.C. relating to the period of under trial detention available even to a life convict the Constitution Bench of the Hon'ble Supreme Court further held in the afore said judgment as follows :-

"We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet. They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law's benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the "mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life." As we have indicated earlier, graver the crime, longer the sentence and, longer the sentence, greater the need for set-offs and remissions. Punishment are no longer retributory. They are reformative."

17. The view taken by the Constitution Bench of the Hon'ble Supreme Court clearly covers the present situation and the issue before us must receive an equitable consideration which clearly support the view propounded by the petitioner. We must also take into account the position of law laid down by the Hon'ble Supreme Court to the effect that longer the sentence, the greater the need for set offs and remissions. Significantly the State has not given any instances where a shorter duration of bond/sureties were imposed. Over emphasis on a surety and security in any event may not in facts of a given case be reasonable. There may be a destitute prisoner whose behaviour inside the prison has been exemplary and the Sentence Revising Board decides to grant him premature release. Even such a prisoner, who is a model prisoner, may not be able to secure his release if he belongs a strata of society where it is not possible to secure financial sureties/security. Significantly life convicts are often shunned in society and it may not be easy for a life-convict to arrange a surety in any case.

The difficulties for a poorer prisoner would be enhanced. In such a situation there may be a perfectly deserving case of a prisoner who cannot secure his release if he is not able to furnish sureties owing to his social standing and/or financial status. In such a situation the denial of premature release to such a prisoner may become questionable as being unreasonable. If such be the situation, in so far as a poor prisoner unable to furnish security/surety is concerned, surely the position of a prisoner, who furnishes surety but only seeks that surety may not be for an indeterminate period of time, cannot be any worse. Significantly a life convict recommended for premature release has already served out 14 years with good behavior and it would be unreasonable for such a prisoner to be found down for a period exceeding three years. We are, therefore, of the view that the condition for an indeterminate period of surety imposed by the respondent on the petitioner is not only violative of the Articles 14, 19 & 21 of the Constitution also discloses a non-application of mind in so far as exercise of power under Section 432 is concerned. Similarly there could be no estoppel in so far as the personal liberty is concerned and even if a prisoner has accepted the conditions at the time of release he cannot be denied the right to question the conditions imposed for his release. The very fact that all prisoners slated for premature release have been treated exactly alike is eloquent testimony to the thread of arbitrariness and non-application of mind running through these orders.

18. In this view of the matter we are satisfied that the seeking of a surety for an indeterminate period commensurate with the life of the released prisoner cannot stand the test laid down by the Hon'ble Supreme Court in Maneka Gandhi and Bhagirath's cases(supra) and is thus neither reasonable nor fair.

19. Consequently it is clear that at best the State can seek sureties from the petitioner for a maximum period of three years in consonance with the period stipulated by Sections 107 & 110 of the Criminal Procedure and any surety beyond that period would violate Articles 14, 19 & 21 and consequently the two sureties issued to secure the release of the petitioner will stand discharged upon completion of a period of three years. The consequential action pursuant to the judgment of cancelling the endorsement on the two sureties furnished by the petitioner be carried out within six weeks from today.

20. The writ petition is allowed accordingly.