HASAMBHAI MOTIBHAI v. STATE — 1983 DIGILAW 137 (GUJ)

A. M. AHMADI, J. ( 1 ) THE desire to breathe free and fresh air outside the prison walls has motivated those life convicts who are serving time since before 18/12/1916 the date on which sec. 433-A was inserted in the Code of Criminal Procedure (hereinafter called the Code) to address applications to the learned Chief Justice which have been registered and numbered as Writ Petitions under Article 226 of the constitution for their early release on the ground that life convicts who have completed 14 years of incarceration inclusive of remissions are under the existing State Government rules entitled to be set free. Some of the life convicts who have not completed even 14 years inclusive of remissions claim to be released citing examples of premature release of some of their colleagues either by the State Government or under Court orders invoking Article 14 of the Constitution. The stand of the State Government on the other hand is that a life convict has no right to early release but ordinarily as per the rules framed by the State Government such prisoners are released on their completing 17 years of incarceration inclusive of remissions unless there are exceptional circumstances to depart from the said rule. ( 2 ) THE chorus cry for early release to freedom must be examined in the context of sec. 432 433 and 433-A of the Code. Before we do so we must state that according to the decision of the Supreme Court in GOPAL VINAYAK GODSE V. STATE OF MAHARASHTRA A. I. R. 1961 S. C. 600 a sentence of imprisonment for life must prima facie be treated as imprisonment for the whole of the remaining period of the convicted persons natural life. Again in MARU RAM V. UNION OF INDIA A. I. R. 1980 S. C. 2147 following the decision in Godses case (supra) Krishna Iyer J. speaking for the majority observed in paragraph 72 of the judgment that imprisonment for life lasts until the last breath and whatever the length of remissions earned the prisoner can claim release only if the remaining sentence is remitted by the Government. It is obvious from the aforesaid two decisions of the Supreme Court that life convicts are not entitled automatically to early release on their completion of 14 years incarceration inclusive of remissions or even a longer period unless the State Government in exercise of power conferred upon it by sec. 432 of the Code grants remission for the rest of the period. ( 3 ) SEC. 432 of the Code provides that when any person has been sentenced to punishment for an offence the appropriate Government may at any time without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Sec. 433 next provides that the appropriate Government may without the consent of the person sentenced commute: (A) a sentence of death for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment for simple Imprisonment for any term to which that person might have been sentenced or for fine; (d) a sentence of simple imprisonment for fine. SEC. 433-A which was inserted by the Amendment Act 1978 provides that notwithstanding anything contained in sec. 432 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 law or where a sentence of death imposed on a person has been commuted under sec. 433 into one of imprisonment for life such person shall not be released from prison unless he had served at least fourteen years of imprisonment In Maru Rams case (supra) the Supreme Court came to the conclusion that sec. 433-A was prospective and applied to only those who were convicted on and after 18/12/1978 In other words every person convicted before that date could avail of the benefit accruing to him from the remission scheme or short sentencing projects in vogue in the State. It was also clarified that when a person is convicted in appeal his conviction will have retroactive effect and will be treated as having been made from the date of judgment of the trial Court. It was also clarified that when a person is convicted in appeal his conviction will have retroactive effect and will be treated as having been made from the date of judgment of the trial Court. In the present group of cases all the prisoners were convicted before 18/12/1978 and therefore their cases will not be governed by sec. 433-A of the Code. It may also at this stage be stated that the State Government has not passed any order either under sec. 432 or under sec. 433 of the Code granting remission or commutation of the sentence passed against the present prisoners. ( 4 ) WE may also clarify that the prisoners who have been convicted and sentenced to suffer imprisonment for life will not be entitled to the benefit of set-off contemplated by sec. 428 of the Code in view of the decision of the Supreme Court in KARTAR SINGH V. STATE OF HARYANA A. I. R. 1982 S. C. 1439 which reversed the view taken by this Court in KALIDAS VANMALIBHAI V. STATE (1980) 21 G. L. R. 7. Therefore in computing the period of incarceration of life convicts who have preferred the present writ petitions the period of their detention in jail as undertrials will not be set off under sec. 428 of the Code. ( 5 ) SEC 59 of the Prisons Act 1894 empowers the State Government to make rules consistent with the Act inter alia for the award of marks and shortening of sentences and release of prisoners. In exercise of power conferred by the said provision the Bombay Jail Manual 1955 came to be framed. Chapter XL entitled The Remission System lays down the manner in which remissions should be granted to prisoners. Chapter XLI of the said Manual deals with Review of Sentences. Rule 1446 provides that the cases of all prisoners sentenced to more than 14 years imprisonment or to transportation and imprisonment for terms exceeding in the aggregate 14 years shall be reported to the Inspector General of Prisons after the prisoner has undergone a term of imprisonment of nine years together with remissions. It provides that while making the report the documents enumerated in the said rule shall be forwarded to the Inspector General of Prisons. It also lays down what information shall be furnished in the forwarding letter to be addressed to the Inspector General of Prisons. It provides that while making the report the documents enumerated in the said rule shall be forwarded to the Inspector General of Prisons. It also lays down what information shall be furnished in the forwarding letter to be addressed to the Inspector General of Prisons. Rule 1447 is not relevant for our purpose. Rule 1448 contemplates the setting up of an Advisory Committee in the head quarters of every district in which long term prisoners are imprisoned to assess the actual severity of the sentence and to judge how far it has a salutary and reformative influence on the prisoner with reference to his record; such record consisting of (i) character and antecedents of the prisoner; (ii) copies of judgments; (iii) the statement showing the particulars of the cases to be reviewed by the Committee; and (iv) opinions of the District Magistrate and District Superintendent of Police concerned. The constitution of the Committee would be that of the District Magistrate Sessions Judge District Superintendent of Police and two nominated local members subject to the proviso that when either the Deputy Inspector General of Police of the range or the Deputy Inspector General of Police C. I. D. can arrange to attend the meeting he shall be a member of the Committee instead of the District Superintendent of Police. The President of the Committee will be the District Magistrate and its Secretary the Superintendent of Prisons. Rule 1450 provides that the Committee will meet every six months to review the sentences of all convicts sentenced to terms of imprisonment of five years and upwards. It will be the function of the Advisory Committee to make a recommendation for premature release. It is therefore clear from these rules that in cases of prisoners sentenced to more than fourteen years imprisonment or to imprisonment for term exceeding in the aggregate fourteen years the Advisory Committee constituted under rule 1448 has to review the cases of prisoners who have served nine years inclusive of remissions. If the Advisory committee is of the opinion that having regard to the antecedents of the prisoner etc. he should be prematurely released it may make a recommendation in that behalf. If the Advisory committee is of the opinion that having regard to the antecedents of the prisoner etc. he should be prematurely released it may make a recommendation in that behalf. To implement the policy outlined in Rules 1448 and 1449 of the Bombay Jail Manual 1955 the State Government in the Home Department passed a resolution dated 28/02/1975 whereunder it was laid down that persons sentenced to long term imprisonment should ordinarily be released on their completing incarceration of 17 years inclusive of remissions unless there are special reasons to refuse early release. In view of the above resolution a prisoner is entitled to be released on completion of 17 years of imprisonment inclusive of remissions unless there are special reasons to refuse release. In other words releasing a life convict on his completing 17 years of incarceration inclusive of remissions is the rule while his detention beyond that period is an exception. This Resolution came to be interpreted by this Court in LAXMIBEN BHUPATBHAI V. STATE (1983) (1) 24 G. L. R. 570. The Division Bench after quoting the resolution which is in Gujarati language observed as under:"it will be seen that on a true interpretation of this resolution in the light of the provisions contained in clause 4 releasing a prisoner on completion of seventeen years is the rule and continuing a prisoner in detention thereafter is an exception. The criteria provided by the Resolution for continuing a prisoner in detention beyond seventeen years is that during the period of his detention or when the prisoner is on parole or furlough his conduct must be such as could be described as extremely bad or there are some special reasons for continuing him in detention. "under this Resolution the concerned authority has to pass appropriate order in conformity with the rules contained in the Jail Manual as the policy outlined in the said resolution. It is therefore obvious that life convicts who have not completed seventeen years of confinement inclusive of remissions are not entitled to early release. In the group of petitions with which we are concerned it is an admitted act that none of the convicts has completed 17 years of confinement inclusive of remissions. They are therefore not entitled to be released under the rules and the existing policy of the State Government. In the group of petitions with which we are concerned it is an admitted act that none of the convicts has completed 17 years of confinement inclusive of remissions. They are therefore not entitled to be released under the rules and the existing policy of the State Government. ( 6 ) IT was however contended on behalf of the prisoners that the State Government had in the past released life convicts even before they completed seventeen years of imprisonment inclusive of remissions. Some of the life convicts who have not completed fourteen years of imprisonment inclusive of remissions have staked their claim for premature release on the ground that some of their colleagues had in the past been set free even before they had completed fourteen years of imprisonment inclusive of remissions. In this behalf reference was made to the affidavit of Mr. N. K. Macwan Under Secretary in the Home Department filed in Special Criminal Application No. 234 of 1983 wherein it is admitted that some prisoners were released under State Government orders before they had completed fourteen years of imprisonment inclusive of remissions and some under Court orders. An order passed in Writ Petitions Nos. 3312-27 of 1981 dated 2/05/1983 by a Division Bench of the Supreme Court is produced which reads as under:"the petitioner 2 5 and 7 (Rambhai Mansukhrai Prabhatpuri Mohanpuri and Amrabhai Nankubhai who have already done more than 14 years according to the report of the jailor will be released forthwith the case of other prisoners will be considered according to law. The writ petitions are disposed of accordingly. "it is not in dispute that the three prisoners named in the said order were released even though they had not completed 17 years of confinement inclusive of remissions. Since the order relied on does not state the reasons for the early release of the aforesaid three prisoners it is difficult to locate the principle or ground on which the said three prisoners were ordered to be prematurely released. So far as the prisoners released under State Government orders are concerned it must be presumed that the State Government must have exercised power for their early release under sec. 432 of the Code. So far as the prisoners released under State Government orders are concerned it must be presumed that the State Government must have exercised power for their early release under sec. 432 of the Code. A copy of one such order passed by the State Government on 6/06/1983 in the case of Amrubhai Vaghabhai and others petitioners of Writ Petition (Criminal) No. 8318-27 of 1981 pending in the Supreme Court concerning the prisoner Rama Mansur (21618) passed under sec. 432 of the Code is produced on record. ( 7 ) IT was however vehemently argued by Mr. V. M. Trivedi appearing for convicts of Petitions Nos. 727 and 728 of 1983 that the State Government orders under sec. 432 of the Code in respect of prisoners released before completion of seventeen years inclusive of remissions have not been produced and therefore we should infer that they were prematurely released at the sweet will of the State Government. He therefore submitted that other life convicts similarly situated must also receive the same treatment in view of the equality clause contained in Article 14 of the Constitution. We are not impressed by this submission for the obvious reason that if the State Government has released convicts at its sweet will and not in exercise of power conferred upon it by sec. 432 of the Code such release would be contrary to law rules and the Government policy enunciated earlier. It can hardly lie in the mouth of other convicts that the Court should direct their release merely because the State Government had arbitrarily released some of their colleagues even though they had not completed the requisite period in prison. An arbitrary action on the part of the State Government if at all cannot be invoked on the authority of Article 14 of the Constitution because to do so would be to ask the Court to arbitrarily direct their release also. We are therefore of the opinion that the contention based on Article 14 is clearly misconceived. ( 8 ) BEFORE we part we must thank Mr. D. C. Trivedi for graciously accepting our request to appear amicus curiae on behalf of several life convicts who were not represented by any advocate. We thank Mr. Trivedi for placing before us all the relevant rules resolutions and decisions of Courts having a bearing on the question under consideration. ( 8 ) BEFORE we part we must thank Mr. D. C. Trivedi for graciously accepting our request to appear amicus curiae on behalf of several life convicts who were not represented by any advocate. We thank Mr. Trivedi for placing before us all the relevant rules resolutions and decisions of Courts having a bearing on the question under consideration. ( 9 ) IN the view that we take we dismiss all the petitions since it is an admitted fact that none of the life convicts has completed seventeen years inclusive of remissions. We direct the State Government to consider their requests for early release in accordance with the policy laid down in the Government Resolution dated 28/02/1975 referred to earlier. In doing so the period of imprisonment as under trials will not be computed in calculating the total period of seventeen years inclusive of remissions. In petitions in which rule is issued the rule shall stand discharged. .