Ajaib Singh vs State of Punjab and Another

Pritpal Singh, J.—The petitioner Ajaib Singh stands convicted to undergo life imprisonment. His case for premature release was rejected by the respondent-State Government vide an order dated Nov. 10, 1986 (Annexure P.2J. The petitioner has challenged the validity of this order and has prayed that he may be prematurely released.

The impugned order has been assailed on three grounds. Firstly that no ''reason has been mentioned in the order for rejecting the petitioner''s case. Secondly, that the impugned order is discriminatory as other prisoners have been prematurely released; and thirdly that previously also the petitioner''s case for premature release was rejected vide an order dated Feb. 4, 1986 (Annexure P.1) but that order was set aside by this Court. The State Government was directed to reconsider the petitioner''s case. However, the impugned order (Annexure P.2) was passed on similar grounds whereon the earlier order (Annexure P. 1) had been passed.

In the context of the first ground a Full Bench judgment of this Court in Hukam Singh Vs. The State of Punjab and Others, may be noticed. It was held that an order in a premature release case being an executive order, the law does not enjoin upon the State Government to give reasons which lead to the passing of the order. Hence the impugned order cannot be set aside on the plea that the State Government has not given reasons for rejecting the petitioner''s prayer for premature release.

Adverting to the second ground, with regard to the plea of discrimination, it is held by the Full Bench in Hukam Singh''s case (supra) that if a pleading is considered sufficient where it is merely stated that there has been arbitrary discrimination, it is impossible for the other side to meet it adequately unless he knows in what manner the discrimination is said to have been made. In the absence of complete particulars all that the opposite side could do, would be simply to deny that there had been discrimination. In the present case although the petitioner has named certain convicts who have been prematurely released, but it is not explained as to how they and the petitioner are similarly situated. Simply because premature release orders have been passed by the State Government in the case of other convicts, no inference can be drawn that the Government have acted discriminatory vis-a-vis the petitioner. I am, therefore, unable to set aside the impugned order on the ground of discrimination.

Coming to the last ground, it is no doubt correct that the earlier order (Annexure P.1) was not approved by this Court and the State Government was ordered to reconsider the petitioner''s case. However, it cannot be said that the rejection of the petitioner''s case vide the impugned order (Annexure P.2) in this background is necessarily mala fide exercise of power. A Division Bench of this Court in Crl. Writ No. 363 of 1986 Harbans Singh Vs. State of Punjab and Others, , held that the power of the appropriate Government to remit sentence of a convict is an executive function performed in the exercise of its executive power. The nature of the power of the appropriate Government even if meant to exercise in a reasonable manner does not mean that it has a quasi judicial element in it and the administrative tint in it justifies the invocation of principles of natural justice and audialteram pattern. It was observed that the power of the appropriate Government is and remains executive in nature and the principles of natural justice and audi alteram partem cannot be grafted thereon by means of judicial innovations and activism, if was, however, made clear that this should not be taken to mean that the order of the Government is not justiciable at all. Relying upon the Full Bench view in Hukam Singh''s case 1975 Cri LJ 902 (supra) it was held that if the order of the Government falls under any of the following three grounds, it can be set aside:

1) That the authority, which purported to have exercised the power, had no jurisdiction to exercise the same.

2) That the impugned order goes beyond the extent of the power conferred by the provisions of law under which it is purported to be exercised.

3) That the order has been obtained on the ground of fraud or that the same having been passed taking into account extraneous considerations, not germane to the exercise of the power conferred or, in other words, that the order is a result of mala fide exercise of power.

The present case does not admittedly fall within the first two categories. It is alleged that the impugned order comes within the ambit of the third category as it was result of mala fide exercise of powers. This contention has no merit.

As held in the case of Hukam Singh (supra) it cannot be presumed that the highest authority, which is vested with this wide and unfettered power, will misuse the said power. The presumption is that any order passed in the official discharge of the duty is bona fide unless it is proved otherwise. The initial onus is on the petitioner to give prima facie evidence to show that the power had been exercised mala fide. There is nothing in the impugned order to show that the respondent - State Government had passed it in mala fide exercise of its powers. This order on the face of it does not show that the power had been exercised arbitrarily or for any extraneous reasons not germane to the purpose for which the said power was conferred. There is thus no material to come to the conclusion that the impugned order is liable to be quashed on the ground of mala fide. Simply because the earlier order (Annexure P. 1) was not approved by the Court, is no ground to hold that the impugned order (Annexure P.2) is mala fide.

The learned petitioner''s counsel relied upon Bhagat Saran v. State of U.P. (1983) 1 Cri CLR 504. In that case the committee appointed to process the premature release cases of the prisoners had recommended the release of the petitioners. However, the State Government declined to release the petitioner prematurely without giving any reason why the recommendation of the committee could not be accepted. In such circumstances the petitioners were ordered to be released forthwith. Evidently, in the circumstances of the case the Supreme Court was of the opinion that the orders of the State Government rejecting the premature release cases of the petitioners were arbitrary and consequently a result of mala fide exercise of power. This judgment is manifestly not applicable to the facts of this case,

For aforesaid reasons, I discern no merit in this petition and dismiss the same.