STATE OF GUJARAT & ANR.versusLAL SINGH @ MANJIT SINGH & ORS.

                            [2016] 4 S.C.R. 816


A                     STATE OF GUJARAT & ANR.
                                     v.
                 LAL SINGH @ MANJIT SINGH & ORS.
                     (Criminal Appeal No. 171 of2016)
B                              JUNE29,2016
           [DIPAK MISRA AND SHIVA KffiTI SINGH, JJ.]
         Code of Criminal Procedure, 1973 - ss. 432 and 433 - Remis-
    sion under - Respondent was convicted under the provisions of
    TADA by .the Designated Court in the State of Gujarat and sen-
c   tenced to life imprisonment - Conviction was confirmed by Supreme
    Court - On the request of the respondent-convict, he was trans-
    ferred 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
D   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 ap-
    propriate consideration of necessary facts or in violation of prin-
    ciples of equality - Therefore, the direction of the High Court to the
    State to reconsider the case of remission, is not correct - However,
E
    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 con-
    vict to submit application for premature release before the compe-
F   tent authority of the Central Government.
         Parole - Direction by High Court (in exercise of its jurisdic-
    tion u/Art. 226) to release life convict on parole - Held: Constitu-
    tional court before directing the temporary release, should form an
    opinion that request has been unjustifiably refused or where inter-
G   est 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
H
                                     816
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH                     817
                      & ORS.

to act in consonance with the legal principles - He has to remain      A
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 consid-        B
eration of necessary facts or there has been violation of prin-
ciples 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, crimi-
nal conspiracy, smuggling of arms, ammunitions and explosives           c
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 Secu-
rity. 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        D
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       E
release where the request is made to be released on parole for a
specified reason and for a specified period should form an opin-
ion that request has been unjustifiably refused or where the in-
terest 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         F
should leave it to the administrative or jail authorities to pre-
scribe 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         G
months. It is well settled that a Judge is expected to act in con-
sonance 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
                                                                        H
818           SUPREME COURT REPORTS                    [2016] 4 S.C.R.



A     Judge functions. He has to remain embedded to constitution
      and the laws. [Para 341 [838-B-CJ
           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 Govern-
B     ment 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
c     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 be-
      cause it has been guided by the principle that the first respon-
D     dent 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
E          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.
 F          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
 G          (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
H
STATE OF GUJARAT & ANR. v. LAL SINGH@ MANJIT SINGH           819
                      &ORS.

    417 : 2005 (3) Suppl. SCR 233; Maru Ram v. Union         A
    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
                                                              B
    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        c
    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
                                                              D
    to.
                     Case Law Reference
   2001 (1) SCR 111            referred to    Para3
   2007 (11) SCR 932           referred to    Paras           E
   ]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        F

   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
                                                              G
   ]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
                                                              H
820           SUPREME COURT REPORTS                      [2016) 4 S.C.R.



A        (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

c        2Q08 (11) SCR 93             referred to           Para28
          (~014) 4sec 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
           CRIMIN AL APPELLATE JURISDICTION: Criminal Appeal No.
 E    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
      Writ Petition No. 1620of2011 whereby the High Court entertaining the
H
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          A
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/
                                                                                8
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           c
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/        D
- 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,        E
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            F
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.                     G
      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                                                            H
822             SUPREME COURT REPORTS                           [2016] 4 S.C.R.


A     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
B
      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
c     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
D     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
E     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
 F    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
 G    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
H
                                      ..
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH                           823
              & ORS. [DIPAK MISRA, J.]

      7. Remaining indefatigable the first respondent preferred Writ          A
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 433-
A 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
                                                                               B
Government. On 20.04.20 I0, 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         c
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
                                                                               D
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           E
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          F
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         G
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           H
824            SUPREME COURT REPORTS                           [2016] 4 S.C.R.


A     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
B     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,
c     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.
D     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
 E          by a High Court operates as bar and estoppels to the filing of
            subsequent petitions?
            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
 F          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?"
 G          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
 H    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   A
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
                                                                              B
Singh v. Union of lndia 7, 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
                                                                               c
        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, b
        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 E
        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 F
        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."
                                                                              G
       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                                                               H
826             SUPREME COURT REPORTS                          [2016] 4 S.C.R.



A     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/ others 1" 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
B
      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.
c     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
D
      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
 E           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
 F           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
 G    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            A
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         B
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             c
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       D
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/
otliers 13 the Court was dealing with a writ petition preferred under            E
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                  F
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       G
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                                                                H
828             SUPREME COURT REPORTS                              [2016] 4 S.C.R.



A     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
B     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
c     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
D            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
E            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
      Review Committee consisting of certain members, and enumerated the
G     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
H
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 829
              & ORS. [DIPAK MISRA, J.]

      affecting the society at large.                                        A
      (ii) Whether there is any chance of future recurrence of
      committing crime.
      (iii) Whether the convict has lost his potentiality in committing
      crime.
                                                                             B
      (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             c
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        D
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
                                                                             E
decisions in the field including K.M. Nanavali v. State ofMalmras/1/ra 14
and Kislwri Lal v. Emperor 1" 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
                                                                             F
      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         G
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                                                             H
830             SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A     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
B
      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
c     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
D
      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
E
             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.
F              "
            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
G     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
H
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    A
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       B
      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            c
      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     D
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            E
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           F
       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         G
       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       H
832               SUPREME COURT REPORTS                         [2016] 4 S.C.R.


A              had no occasion to know earlier."
            25. In Bikas Chatterjee v. Union of India and otlters 16 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
B     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:-
c              "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
D              is based on some extraneous consideration; or (v) mala tides. It is
               on these grounds that the Court may exercise its power ofjudicial
               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."
 E         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
 F    Epurtt Sudliakar mu/ another v. Govt. ofA.P. and otflers 18 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
 G
      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
 H    1
       '   (2006) s sec 161
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        A
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:-                                                        8
      "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        c
      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.           D
      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:-                                                              E

      " ... The Rule of Law is the basis for evaluation of all decisions.
      The supreme quality of the Rule of Law is fairness and legal
      certainty. The principle of legality occupies a central plan in the
      Rule of Law. Every prerogative has to be subject to the Rule of
      Law. That rule cannot be compromised on the grounds of political         F
      expediency. To go by such considerations would be·subversive of
      the fundamental principles of the Rule of Law and it would amount
      to setting a dangerous precedent. The Rule of Law principle
      comprises a requirement of"Government according to law". The
      ethos of"Government according to law" requires the prerogative           G
      to be exercised in a manner which is consistent with the basic
      principle of fairness and certainty. Therefore, the power of
      executive clemency is not only for the benefit of the convict, but
      while exercising such a power the President or the Governor, as
      the case may be, has to keep in mind the effect of his decision on
      the family of the victims, the society as a whole and the precedent      H
834                SUPREME COURT REPORTS                            [2016] 4 S.C.R.



A               it sets for the future."
           We respectfully concur with the aforesaid expression pertaining to
      the constitutional norm and the concept of rule of law.
           28. In this context, reference to Union of India v. V. Srilutrm1@
      Murugan & Ors 19 is quite seemly. The majority in the Constitution
B     Bench referred to the authority in Maru Ram (supra) and opined that
      constitutional power of remission provided under Articles 72 and 161 of
      the Constitution will always remain untouched, inasmuch as, though the
      statutory power of remission, etc., as compared to constitutional power
      under Articles 72 and 161 looks similar, yet they are not the same. Be it
c     stated, the Court was dealing with imposition of sentence oflife by fixing
      a period of25 or 30 years without remission. The Court after analyzing
      various aspects held that it is permissible and the law laid down in Swamy
      Sliraddananda (2) alias Murali Manolutr Mishra v. State of
      Karnataka 211 deserved acceptance. The Com1 referred to the decision
      in V. Srilutran alias Murugan v. Union of India mu/ others21 wherein
D     commuting the sentence of death into one of life clearly laid down that
      such commutation was independent of the power ofremission under the
      Constitution as well as the statute. Elaborating the proposition the Court
      while dealing with the power ofremission in the context of Article 21 of
      the Constitution, the majority said:-
 E              " ... It may also arise while considering wrongful exercise or
                perverted exercise of power of remission by the Statutory or
                Constitutional authority. Certainly there would have been no scope
                for this Court to consider a case of claim for remission to be
                ordered under Article 32 of the Constitution. In other words, it
 F              has been consistently held by this Court that when it comes to the
                question of reviewing order of remission passed which is patently
                illegal or fraught with stark illegality on Constitutional violation or
                rejection of a claim for remission, without any justification or
                colourful exercise of power, in either case by the Executive
                Authority of the State, there may be scope for reviewing such
 G              orders passed by adducing adequate reasons. Barring such
                exceptional circumstances, this Com1 has noted in numerous

      19
            2015 (13) SCALE 165
      211
         (2oosi 13 sec 767
 H    ' (2014) 4 sec 242
       1
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 835
              & ORS. [DIPAK MISRA, J.]

         occasions, the power of remission always vests with the State            A
         Executive and this Court at best can only give a direction to consider
         any claim for remission and cannot grant any remission and provide
         for premature release. It was time and again reiterated that the
         power of commutation exclusively rest with the Appropriate
         Government. ... "
                                                                                  B
     29. After so stating the Court referred to series of judgments,
analysed the scope of constitutional provisions and the statutory provisions
and opined thus:-
         "Therefore, it must be held that there is every scope and ambit
         for the Appropriate Government to consider and grant remission           c
         under Sections 432 and 433 of the Code of Criminal Procedure
         even if such consideration was earlier made and exercised under
         Article 72 by the President and under Article 161 by the Governor.
         As far as the implication of Article 32 of the Constitution by this
         Court is concerned, we have already held that the power under
         Sections 432 and 433 is to be exercised by the Appropriate               D
         Government statutorily, it is not for this Court to exercise the said
         power and it is always left to be decided by the Appropriate
         Government, even if someone approaches this Com1 under At1icle
         32 of the Constitution .... "
      30. In the said case, the question arose with regard to appropriate         E
Government in the context of Section 432(7) CrPC. The majority referred
to the authorities in Ratan Singh (supra), State of Madhya Pradesh v.
Ajit Singh mu[ otlwrs 22 , llll111111w11t Dass v. Vinay Kumllr mul
otllersc3 , Govt. ofA.P. and others v. M. T. Khanu and G V. Ra11u11wiali
v. The Superintendent of Central Jail, Rajahmumlry and ot/1ers 25                 F
and eventually held thus:-
         "The status of Appropriate Government whether Union
         Government or the State Government will depend upon the order
         of sentence passed by the Criminal Court as has been stipulated
         in Section 432(6) and in the event of specific Executive Power           G

22
     (1976) 3 sec 616
" l 1982) 2 sec 111
"(2004) 1 sec 616
"AIR 1974SC31 :(1974)3SCC531                                                      H
836            SUPREME COURT REPORTS                            [2016] 4 S.C.R.



A           conferred on the Centre under a law made by the Parliament or
            under the Constitution itself then in the event of the conviction
            and sentence covered by the said law of the Parliament or the
            provisions of the Constitution even ifthe Legislature of the State
            is also empowered to make a law on the same subject and
            coextensive, the Appropriate Government will be the Union
B
            Government having regard to the prescription contained in the
            proviso to Article 73(1 )(a) of the Constitution. The principle stated
            in the decision in G.V. Ramanaiah (supra) should be applied. In
            other words, cases which fal I within the four corners of Section
            432(7)(a) by virtue of specific Executive Power conferred on the
c           Centre, the same will clothe the Union Government the primacy
            with the status of Appropriate Government. Barring cases falling
            under Section 432(7)(a), in all other cases where the offender is
            sentenced or the sentence order is passed within the territorial
            jurisdiction of the concerned State, the State Government would
            be the Appropriate Government."
D
            3 I. Be it stated, the aforesaid part forms a part of the conclusion.
      In course of analysis, the Court has opined that when it comes to the
      question of primacy to the Executive Powerofthe Union to the exclusion
      of the Executive Power of the State, where the power is co-extensive,
      in the first instance, it wi II have to be seen again whether, the sentence
E     ordered by the Criminal Court is found under any law relating to which
      the Executive Power of the Union extends. In that context, the Court
      stated thus:-
            " ... In that respect, in our considered view, the first test should be
            whether the offence for which the sentence was imposed was
 F          under a law with respect to which the Executive Power of the
            Union extends. For instance, ifthe 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
G           question of considering the application of the Executive Power of
            the State."
           32. ln the instant case, 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
H     the State of Gujarat. As we find from the discussion, there has been no
STATE OF GUJARAT & ANR. v. LAL SINGH @ MANJIT SINGH 837
              & ORS. [DIPAK MISRA, J.]

reference to the authority in G V. Ranumaia/1 (supra). That apart, the        A
issue was not raised before the High Court. The most important thing is
that the High Court has referred to, as has been indicated earlier, many
aspects of human rights and individual liberty and, if we allow ourselves
to say so, the whole discussion is in the realm of abstractions. The
Court has not found that the order passed by the State of Gujarat was
                                                                              B
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       c
mentioned that the prisoner under disguise of com.mon name used to
purchase vehicles for transportation and his conduct showed that he 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
                                                                              D
the case on the basis of the observations made by it in the judgment is
not correct.
     33. So far as direction for grant of parole is concerned, we find that
the learned Judge has directed parole to be granted for three months
forthwith. In Sunil F11/c/1a11d Shall v. U11io11 of India and otllers26
the Constitution Bench while dealing with the grant of temporary release      E
or parole under Section 12( 1) and Section 12( 1-A) of the Conversation
of Foreign Exchange and Prevention ofSmugglingActivities Act, 1974
(COFEPOSA Act) had observed that the exercise of the said power is
administrative in character but it does not affect the power of the High
Court under Article 226 oftlie Constitution. However, the constitutional      F
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. The Court further ruled that jurisdiction has to be
sparingly exercised by the Court and even when it is exercised, it is         G
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 of by the detenu.

" (2000J 3 sec 409                                                            H
838             SUPREME COURT REPORTS                           [2016] 4 S.C.R.



A           34. We have referred to the aforesaid authority only to highlight
      the view expressed by the Constitution Bench with regard to grant of
      parole. The impugned order, as we notice, is gloriously silent and, in
      fact, an abrupt direction has been issued to release the first respondent
      on parole for a period of three months. It is well settled in law that a
      Judge is expected to act in consonance and accord with the legal
B
      principles. He cannot assume the power on the basis of his individual
      perception or notion. He may consider himself as a candle of hope but
      application of the said principle in all circumstances is not correct because
      if may have the effect potentiality to affect the society. While using the
      power he has to bear in mind that "discipline" and "restriction" are the
c     two basic golden virtues within which a Judge functions. He may be
      one who would like to sing the song of liberty and glorify the same
      abandoning passivity, but his solemn pledge has to remain embedded to
      constitution and the laws. There can be deviation.
           35. Consequently, the appeal is allowed and the impugned judgment
D     and order of the High Court is set aside and liberty is granted to the first
      respondent to submit a representation/application before the competent
      authority of the Union of India within a period of eight weeks and the
      authority shall consider the same as expeditiously as possible in
      accordance with law and the guidelines framed for premature release .
 E    Kalpana K. Tripathy
                                                         ..         Appeal allm1 ed.