Sehaj Ram vs State of Haryana and anr.

A.P. Chowdhri, J.

The petitioner was sentenced to life imprisonment in a case under Section 202 of the Indian Penal Code by learned Sessions Judge, Rohtak, on June 14, 1980. He had undergone a total of 15 years, 9 months and 16 days including remissions. The actual sentence undergone by him was 9 years and 15 days. His application for premature release having been declined, he filed Criminal Writ Petition No. 2709 of 1989 and vide order dated October 24, 1989, it was ordered by this Court that his petition shall be considered according to law and disposed of by a reasoned order. The petitioner was directed to remain on bail till his petition was considered afresh. In compliance with the order, the State Government considered the case again on March 26, 1990 and again rejected the prayer by Annexure `R1'' which was communicated to the Superintendent Jail vide Annexure `R2''. The petitioner has challenged the aforesaid order of rejection, Annexure `R1''.

The contention of learned counsel for the petitioner is two fold, (i) that the order is practically reproduction of the previous order rejecting a similar prayer and is, thus, not a speaking order, and (ii) that gravity of the offence could not be taken into consideration.

The learned counsel for the State has contended that the impugned order Annexure `R1'' was a speaking order passed in compliance with the directions of this Court and it was validly passed in exercise of the powers under Article 161 of the Constitution.

I have heard learned counsel for the parties.

The order passed by the Government on the previous occasion was as under :

"Taking into consideration the facts and circumstances of the case as well as the manner in which the heinous nature of crime was committed, the Government is of the opinion that no case is made out for his premature release at the moment and that his case may be reconsidered after one year."

Para of the present impugned order refers to the direction of this Court in the previous Criminal Writ Petition and proceeds to state that the order was being passed in compliance therewith. It then states that the petitioner had killed Constable Kaptan Singh with his service rifle in order to take revenge because the deceased marked him absent, and proceeds to note as under :

"The Government after taking into consideration the heinous and brutal crime committed by this convict, is of the opinion that no case is made out for his premature release at the moment and that this case may be reconsidered after one year."

It will be seen that though slightly different in form, in substance the two orders are practically in same terms. The determining factor in both the orders was the heinousness of the crime. In other words, no other consideration was taken into account and, therefore, there is substance in the contention of learned counsel for the petitioner that in spite of the direction of this Court, the Government had merely repeated the order which had been set aside in the previous writ petition.

With regard to the second contention of learned counsel for the petitioner, it is settled law that heinousness of the crime cannot determine the fate of a case for premature release. For this view, reference may be made to Dalbir Singh v. State of Haryana and another, 1989(2) RRR 440 (P&H) : 1989(2) All India Criminal L.R. 290; Mithu Singh v. State of Punjab and another, 1989(1) Recent CR 238 ; Dodhu Ram v. State of Haryana and another, 1990(1) Recent Criminal Reports 512 : 1990(1) All India Criminal LR 342 from Harbhajan Singh v. Lt. Governor of Delhi and others, 1988(2) Recent CR 125 (D.B.)

After reviewing the case law, the learned Judges of a Division Bench of the Gauhati High Court in Kesharinandhan Srivastava (1984) 1 Gauhati LR 99 : (1985 Lab IC NOC 19) held that the decisions "lay down the golden rule. that statutory discretionary power enabling formation of subjective opinion carry with it the duty to apply objective tests in such matters". This conclusion was fully agreed to by a Division Bench of Madhya Pradesh High Court in Nainaram and another v. State of Madhya Pradesh and another, 1987 Cri. LJ 1981. One of the decisions relied upon by the Gauhati High Court was an English decision in had field; (1968) 1 All ER 694. In that case a Minister''s "full and unfettered discretion" to act in the matter was saddled judicially, by the requirement that irrelevant matter must be ignored and relevant matters must be considered in so acting so that the object of the statute conferring the power was not frustrated.

From what has been stated above, it follows that the Government could not take into consideration the heinousness of the crime and was bound to take into account only relevant consideration. It may also be stated that the only consideration taken into account in passing the impugned order was heinousness of the crime. The order, thus, stands vitiated. I am, therefore, constrained to set aside the order Annexure `R1'' for the reasons mentioned above. It is directed that the case of the petitioner shall be considered afresh in the light of the relevant instructions issued by the State Government according to law within four months from the date of receipt of the copy of this order and the case shall be disposed of by a reasoned order. The writ petition is disposed of in these terms.