UNION TERRITORY OF CHANDIGARHversusCHARANJIT KAUR

--                  UNION TERRITORY OF CHANDIGARH                                       A
                                            v.
                                 CHARANJIT KAUR

                                FEBRUARY 15, 1996

                [K. RAMASWAMY AND G.B. PATTANAIK, JJ.]                                  B

           Constitution of India, 1950/Code of Oiminal Procedure, 1973:

            A1t. 226/Sections 433, 482-Person convicted for charge of murder and
     sentenced to undergo implisonment for life-Application filed for premature         C
     release-High Court directing release of the convict on the ground that State
     had not filed counter affidavit even after the case was adjourned on more
     than three occasions-Held : High Cowt had committed grave en-or of law
     in directing release of the convict on the lapse of the State in filing counter-
     affidavit.
                                                                                        D
           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
     253 of 1996.

           From the Judgment and order dated 1.6.95 of the Punjab & Haryana
     High Court in Crl. Misc. No. 5317/94 in Crl. Misc. No. 13555- B/93/in Crl.         E
     Misc. No. 13022-M of 1991.

           Ms. Kamini J aiswal for the Appellants.

           Vishal Malik and M.S. Dhiya for the Respondent.

           The following order of the Court was delivered :                             F

           Leave granted.

           This appeal by special leave arises from the order of the High Court
     of Punjab and Haryana made on January 1, 1995 in C.M. No. 6872/95. The
     admitted facts are that the respondent was convicted for an offence of             G
     murder and sentenced to undergo imprisonment for life. Admittedly, she
     was convicted on June 2, 1984 for an offence committed on September 24,
     1983. She has been in custody from September 19, 1983. An application
     has been filed in the High Court for her premature release. In the im-
     pugned order, the High Court has directed the release of the respondent            H
                                         735
    736                   SUPREME COURT REPORTS                  [1996) 2 S.C.R.

A   on the ground that the State had not filed the counter-affidavit, in spite of
    that fact that the case was adjourned on more than three occasions. The
    question is : whether the High Court has jurisdiction under Article 226 or
    under Section 482 of the Code of Criminal Procedure, 1973 (for short, the
    "Code") to release the prisoner.

B       Section 433 of the Code empowers the Government, in an ap-
  propriate case, without the consent of the person sentenced, to commute
  the sentence and to prematurely release the convict. Clause (b) thereof
  provides for a sentence of imprisonment for life, for imprisonment for a
  term not exceeding 14 years or fine. Indisputably, she did not even com-
C plete 14 years which is a minimum mandatory sentence required to be
  served under the Code. At best the Court, in an appropriate case, where
  the prisoner has served the mandatory minimum sentence, may only direct
  the appropriate Government to consider the commutation of the sentence
  and prematurely release a particular convict. They can do no further. The
  Government would consider such direction based upon the conduct of the
D prisoner and other relevant circumstances and act upon it.
          Thus conside1ed, we are of the view that the High Court had
    committed grave error of law in directing release of the convict on the lapse
    on the part of the appellant-State in filing the counter-affidavit.

E          The appeal is accordingly allowed.

    G.N.                                                        Appeal allowed.

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