Bedi Nayak v. State Of Bihar — 1990 DIGILAW 66 (PAT)

Judgment SATYESHWAR ROY and B.P.SINGH JJ. 1. The petitioner was tried in Sessions Trial No. 250 of 1978 for an offience punishable under Section 302/34 of the Indian Penal Code. He was sentenced to undergo imprisonment for life by judgment and order dated 14th October, 1980. The petitioner claims that he has been in jail for about 17 years including remission. Annexure-2 issued by the Superintendent of the Central Jail, Ranchi, discloses that the sentence was pronounced against the petitioner on 14-10-1980. The sentence has been described in the aforesaid annexure as 20 years. The actual period of imprisonment undergone by the petitioner as on 1-3-1989 is 8 years 4 months and 17 days, the period of remission granted to the petitioner is 4 years 5 months and 20 days and the petitioner was in jail custody pending trial for 2 years 1 month and 20 days, On this basis, it has been calculated in Annexure-2 that the petitioner should be released on 5th of March, 1994. The petitioner claims that he is entitled to be prematurely released in view of the fact that he has undergone over 8 years of imprisonment including remission. 2. With reference to Annexure-3, a letter dated, 17-1-1989 written by the Inspector General of Prisoners, Bihar to all Superintendents of Jails, it was submitted on behalf of the petitioner that this was written in pursuance of the order of the Supreme Court in W. P. (Cri) No 1656/84 that the cases of all prisoners who have undergone a term of imprisonment of more than fourteen years including remission may be submitted to the State Government for consideration of the question of their premature release in accordance with the note of Resolution No. 159-87 (Jails), dated September 6, 1985. The Superintendents of the different Jails in Bihar were ordered to submit the cases of all such prisioners who have undergone imprisonment for more than fourteen years including pemissions for consideration of the State Government for their premature release. 3. It was urged on behalf of the petitioner that in view of the Judgment of the Supreme Court in Shri Nivas V/s. Delhi Administration, AIR 1982 SC 1391 , of the Patna High Court in Badri Mahto and others V/s. Shri N. K. Choudhary, 1989 BLJR 159 : 1989 East Cr C 320 (DB) (RB) and of Ranchi Bench in Original Cr. Misc No. 1 of 1989 (R), the State Government be directed to release the petitioner. 4. In 1978, by an amendment Section 433-A was inserted in the Code of Criminal Procedure (for short the Code) Section 433-A reads as follows : "433-A. Restriction on powers or remission or con mutation in certain cases.Notwithstanding anything contained in Section 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 section 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." The validity, scope and ambit of section came up for consideration before a Bench of the Supreme Court in Maru Ram and others V/s. Union of India and others, AIR 1980 SC 2147 . It was held by the Supreme Court that a person in whose case under Sec. 433-A is attracted must undergo fourteen years of actual imprisonment. It was also held by the Supreme Court that this section shall not apply to such cases which were decided by the Sessions Court before 18-12-1978, i.e. before section 433-A came into force. So far the present case is concerned, that section will apply in view of the fact that the petitioner was sentenced on 14-10-1980. 5. This was followed by a Division Bench of two Judges in G. M.Morey V/s. Government of Andhra Pradesh, AIR 1982 SC 1163 . However, in Morey (supra), Supreme Court directed for release of the petitioner in view of the decision of the State Government, dated, 30th October 1980 by which the State Government decided to prematurely release those prisoners who were not governed by Section 433-A of the Code. 6. We may also notice the decision of the Supreme Court AIR 1982 Supreme Court 1439 Kartar Singh and others V/s. State of Haryana. 6. We may also notice the decision of the Supreme Court AIR 1982 Supreme Court 1439 Kartar Singh and others V/s. State of Haryana. The Supreme Court in that case was concerned with the grant of set off to persons who have been sentenced to imprisonment for life under Section 302 I. P. C. After considering Section 42-B of the Code of Criminal Procedure, the Court observed : "On a plain reading of the aforesaid provision, it will be clear that the cases of the petitioners who have been sentenced to imprisonment for life would not fall within the section, for the section applies to an accused person who has, on conviction, been sentenced to imprisonment for a term and it is only in cases of such persons who have been sentenced to imprisonment for a term that the period of their under trial detention has to be set off against the term of the imprisonment imposed upon them and the liability of such persons to undergo imprisonment has to be restricted to the remainder, if any, imposed upon them." After exhaustively examining the case law on the subject the Court concluded that the benefit of the set off contempleted by the Section 428 of the Code of Criminal Procedure would not be available to life convicts. 7 So far the decision of the Supreme Court in Shri Niwas (supra) is concerned, a Full Bench of this Court in Umesh Prasad Singh V/s. State of Bihar, 1985 BLT (Rep) 45 : 19S5 East Cri C 14 (Pat) (FB) : 1984 PLJR 724 held that the observations of the Supreme Court in that case were not directly related and linked with the statutory provisions of this State and it has relevance to cases covered by the Punjab Jail Manual. In the case of Badri Mahto (supra) this Court directed the release of the petitioner in view of the order passed in Criminal Misc. No. 75 of 1989 (R). No legal proposition has been laid down in that case which may be applied to this case. 8. From the order of the Original Criminal Misc. No. 1 of 1989 (R) it appears that in Cr. W. J. C. No. 75 of 1989 (R), the State Government was directed to pass appropriate order within four weeks as to whether the petitioner should be released prematurely. As no appropriate order was passed. Original Crim. 8. From the order of the Original Criminal Misc. No. 1 of 1989 (R) it appears that in Cr. W. J. C. No. 75 of 1989 (R), the State Government was directed to pass appropriate order within four weeks as to whether the petitioner should be released prematurely. As no appropriate order was passed. Original Crim. Misc. No. 1 of 1989 (R) was filed It was noticed that the State Government had not passed appropriate order within four weeks. Following the law laid down in Shri Niwas (supra), the petitioner was directed to be released prematurely by a Bench of which one of us was a member. It is unfortunate that inspite of the Full Bench decision of this Court in Umesh Prasad Singh (supra), that the observations of the Supreme Court in Shri Niwas (supra) has no relevance in the State of Bihar, that case was relied upon for releasing the petitioner prematurely because of the fact that the case of Umesh Prasad Singh (supra) was not brought to the notice of the Bench. 9. In view of the judgments of the Supreme Court as well as a Full Bench decision of this Court, the law appears to us to be fairly well-settled that where a sentence of life imprisonment is imposed against an accused for an offence for which death is one of the punishments provided by law, or when a sentence of death imposed on a person has been commutted under Section 433 into one of imprisonment for life, the law obligates the actual detention in prison for 14 years as a mandatory minimum. Undoubtedly, the case of a person sentenced to life imprisonment under Section 302 Indian Penal Code after 18-12-1978 is governed by Section 433-A of the Code of Criminal Procedure. Secondly, a person against whom a sentence of life imprisonment has been passed cannot get the benefit of set off under Section 428 of the Code of Criminal Procedure. It appears to us from a perusal of Annexure-2 that the Superintendent, Central Jail, Ranchi, was not aware of the legal position and that is why he has described the sentence of imprisonment as 20 years in Annexure-2 and has calculated the set off as well as the remission in favour of the petitioner. He has calculated that the date of release of the petitioner shall be 5th of March, 1994. He has calculated that the date of release of the petitioner shall be 5th of March, 1994. As we have observed earlier, there is no question of grant of set off to an accused sentenced to life imprisonment, and in the case of life sentence passed after 18-12-1978 in respect of an offence punishable with death, the accused must suffer actual detention in prison for a minimum period of 14 years as provided by Section 433-A before his case can be considered for premature release. 10. Learned counsel appearing on behalf of the petitioner with reference to Annexure-3 and the order of the Supreme Court passed in W. P. (Crim.) No. 1656 of 1984 submitted that the State Government was bound to consider the case of the petitioner for premature release as he has undergone imprisonment of more than fourteen years including remission. In Maru Ram (supra) a Constitution Bench held that Section 433-A applies in preference to any special or local law. If any local law or executive order provides for premature release of a person to whom Section 433-A is attracted but who has not undergone actual imprisonment of at least fourteen years, no mandamus can be issued to the State Government to consider the case of such person. The petitioner having actually undergone a sentence of only 8 years 4 months and 17 days as on 1st of March, 1989, in view of the provision of Section 433-A of the Code of Criminal Procedure, his case for premature release cannot be considered at this stage. 11. We find no merit in this application and the same is dismissed. Let a copy of this judgment be communicated to the Inspector General, Prisons, Government of Bihar, Patna.