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Judgment
M.R. Sharma, J.—The petitioner is undergoing sentence of life imprisonment in the District Jail at Sangrur. On April 5, 1971, he made an application to the State Government for being released on parole u/s 3 of the Punjab Good Conduct Prisoners (Temporary Release) Act, 1962 (hereinafter called the Act). The ground urged for seeking release was that the petitioner wanted to carry on agricultural activities and this ground is covered by section (c) of section 3 of the Act. In the meantime, a petition was made in the High Court praying that the sentence awarded to the petitioner be enhanced and notice of this application was issued to the petitioner on November 18, 1970 It is not disputed that at the time when the Superintendent of Jail recommended the application of the petitioner he was aware of the fact that the sentence awarded to the petitioner could be enhanced to a sentence of death. The Inspector General of Prisons forwarded the application of the petitioner to the State Government but in his forwarding note he did not pointedly mention that in the event of the acceptance of the revision petition filed against the petitioner the sentence of death could possibly be awarded to him. On June 21, 1972, the State Government ordered that the petitioner be released on parole for a period of six weeks. In response to this order the petitioner furnished the statutory bond to the District Magistrate. Sangrur, on July 6, 1972. It is now revealed that the Superintendent of Jail who had earlier recommended the release of the petitioner on parole went on leave and the Deputy Superintendent of Jail who officiated in his place made a report to the Government that the petitioner had received a notice to show cause why the sentence awarded to him be not enhanced to that of death sentence and recommended that under these circumstances the earlier order of the Government granting parole to the petitioner be reviewed. Upon this, the State Government passed an order on September 14, 1972, and cancelled its earlier order by which the petitioner was to be released on parole. The petitioner has challenged this order dated September 14, 1972, passed by the State Government, inter alia, on the ground that once an order of release had been passed in his favour and he had complied with the terms of that order by submitting the statutory bond before the District Magistrate, he becomes vested with a right to be released and that this release order could only be reviewed either, if any of the conditions mentioned in section 6 of the Act is satisfied or, when the petitioner is held guilty of commission of an offence after his release as laid down in rule 5 of the Rule framed under the Act It was also submitted on behalf of the petitioner that the State Government while passing the order of review acted u/s 401 of the Code of Criminal Procedure and that such action could be taken u/s 401(3) of the said Code only if any condition on which the sentence had been suspended or remitted had been violated by the petitioner.
On behalf of the State, it has been urged that had the Government been pointedly informed of the fact that the sentence of the petitioner was likely to be enhanced to one of sentence of death then the Government would not have passed its earlier order dated June 21, 1972, and that the Government was fully competent to review its earlier order in the circumstances of this case u/s 19 of the Punjab General Clauses Act.
In order to appreciate the rival contentions, it becomes necessary to notice the statutory provisions which are given below :--
Section 3 of the Act:
Temporary release of prisoners on certain grounds :--
(1) The State Government may, in consultation with the District Magistrate and subject to such conditions and in such manner as may be prescribed release temporarily for a period specified in sub-section (2) any prisoner if the State Government is satisfied that--
(a) * *
(b) * *
(c) the temporary release of the prisoner is necessary for ploughing, sowing or harvesting or carrying on any other, agricultural operation on his land and no friend of the prisoner or a member of the prisoner''s family is prepared to help him in this behalf in his absence;
* * *.
Section 6 of the Act:
6 Prisoners not entitled to be released in certain cases--Notwithstanding anything contained in sections 3 and 4, no prisoner shall be entitled to be released tinder this Act if, on the report of the District Magistrate, the State Government or an Officer authorised by it in this behalf is satisfied that his release is likely to endanger the security of the State or the maintenance of public order.
Rule 5 of the Punjab Good Conduct (Temporary Release) Rules, 1963, runs as under--
Section 10 (1): Warrant to be cancelled where prisoner commits an offence. If any major jail offence is committed by the prisoner between the date of application for release and the receipt of the warrant for such release the prisoner shall not be released by the Superintendent without the previous approval of the Inspector-General In case the approval is not given the Superintendent of Jail shall return the release warrant to Releasing Authority through the Inspector-General for cancellation indicating the details of the offence committed by the prisoner. The Releasing Authority, may, on receipt of such report, cancel the release warrant.
It is needless to point out that this Act was brought on the statute book with the object of affording some facilities to the prisoners undergoing sentences of imprisonment in Government jails. The old notion that a person who is guilty of an offence must be kept in custody as a measure of punishment has given way to the idea of treating even the prisoners in a more human manner. The prisoners are nOW treated more kindly and also allowed to leave the prison so that after their release they are able to live a proper life as ordinary members of the society. The epmphasis appears to be more on the reformative character of punishment than on its deterrent nature. At the came time, the statute gives a very wide discretion to the State Government and it is not disputed before me that no prisoner could compel the State Government to pass an order of release in his favour. In short, an order of release could not be claimed as a matter of right. This was a mere concession which the Government could grant after taking into consideration the facts and circumstances of each case. The question which arises in the instant case is firstly, whether the State Government having rightly or wrongly passed an order, is competent to review the same or not, and secondly, whether an order which in purported to have been passed u/s 401, Criminal Procedure Code, can be justified on some other ground or not On behalf of the petitioner, reliance has been placed on a Full Bench decision of the Nagpur High Court reported in AIR 1938 513 (Nagpur) in which it was observed as follows:--
It is not however necessary to decide whether Government has any and if so what power to cancel such an order, because whether that could or could not be done in a proper case it would have to be done in every different way, at a very different time and in very different circumstances from the way, time and circumstances present here. Ah order of this kind which has been acted upon to the extent of altering the history ticket, to the extent of informing the Legislature of the mission, cannot be amended or cancelled or suspended by the Assistant Legal Remembrancer writing to the Superintendent of the Central Jail a memorandum telling the Superintendent to keep a prisoner in custody until he is told to let him go. That is not the way that orders are amended and it is not the way that this order was amended because the amending order is dated the 28th May whereas the above memorandum is dated 14th April. The trouble about the amending order, even assuming a power in Government to resciad such an order, is that it was passed eight days after this application had been launched and one month and 12 days after the prisoner was entitled to be released under the order of 24th February, 1938. Any possible locus paenitentia was clearly at an end when the amending order was passed. In the circumstances we have no doubt at all that the application must succeed.
This judgment was also relied upon for the purpose that an order passed u/s 401, Criminal Procedure Code, was not open to review.
I have given my anxious consideration to the arguments advanced by the learned counsel on both sides and am of the view that the facts and circumstances of the instant case are entirely different. As mentioned earlier, the Government had passed an order granting parole to the petitioner when it was not pointedly brought to its notice that the sentence of imprisonment awarded to the petitioner could be enhanced to a sentence of death. In a case in which an order is passed under a purely discretionary exercise of power, the order passed can always be amended or rescinded if it comes to the notice of the authority that some circumstances which were relevant to the case had not been brought to its notice earlier. Such a variation of the original order does not tantamount to taking action either u/s 6 of the Act or under rule 5 of the Rules framed under the Act. Suffice it to say that the circumstances brought to the notice of the State Government which resulted in its passing the order of cancellation was not extraneous to the matter in question. It is well known that a convict who has reasonable apprehension of being awarded a death sentence may like to jump bail or create some other problems for those who are concerned with the maintenance of law and order. In Venkatosh Yathwant Deshpande''s case (supra), the order was sought to be amended after the petitioner in that case had filed an application u/s 491 of the Code of Criminal Procedure and no new circumstances had been brought to the notice of the authority concerned which entitled it to amend or alter the earlier order. Even otherwise, the Full Bench had no occasioned consider that on receipt of additional information the Government had the jurisdiction to cancel its earlier order or not.
The other ground urged by the learned counsel for the petitioner is that the order dated September 14, 1972, passed by the State Government u/s 401 (3) of the Code of Criminal Procedure, should be regarded as without jurisdiction because the'' conditions mentioned in that sub-section were missing in the instant case. It is well settled that when an authority passes an order which is within its competence it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule and that the validity of an order should be judged on a consideration of its substance and not its form. This very principle was laid down in P. Balakotaiah Vs. The Union of India (UOI) and Others, . An authority which has the jurisdiction to pass an order has the inherent right to amend the same if it is satisfied that the earlier order was procured by fraud or that it had itself exercised that power under a mistake. Such a power can be exercised even apart from the provisions of section 19 of the General Clauses Act. The latter section only gives a statutory recognition to the inherent powers vesting in the administrative authorities.
In view of what has been stated above, this petition fails and is dismissed.