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2011 DIGILAW 1771 (PAT)

Kanti Devi v. State of Bihar

2011-08-23

ASHWANI KUMAR SINGH, NAVANITI PRASAD SINGH

body2011
Order This is a writ petition seeking writ in the nature of habeas corpus. 2. The petitioner having been sentenced to life imprisonment seeks premature release on the ground that he has completed more than fourteen years of physical imprisonment and twenty years if remission is granted. He challenges the correctness of the decision of the State Sentence Remission Board as contained in resolution dated 21.12.2010 (Annexure2) wherein the petitioner who is already sixty one years' old has been refused to be granted premature release only on the ground that he had been sentenced to death which has been commuted to life imprisonment in appeal by a Division Bench of the High Court but as he was held guilty of murdering a public servant, he was not entitled to premature release. The correctness of this view is under challenge. 3. We directed the State to file a comprehensive counter affidavit to bring on record all circulars, executive instructions and any provision which deals with premature release of sentenced accused. 4. A counter affidavit has been filed. Stand of the State in the counter affidavit is that in view of decision of the State Government, dated 10th December, 2002, the petitioner's case fell under Rule 529 (iv) (d) of the Rules of Bihar Jail Manual. The petitioner contends that he was convicted by the District and Sessions Judge, Nalanda at Biharsharif in S.T. No. 65/ 1980 by judgment dated 14.2.1997 and to death sentence upon finding inter alia that he had killed a village Chowkidar who is a public servant. This judgment of conviction was not interfered with by this court in appeal but the death reference was discharged and the death penalty was, converted to life imprisonment, which judgment was not interfered by the Apex Court. He submits that the petitioner having been convicted on 14.2.1997, the provision for remission/premature release which was available on that day, would apply and not what has been subsequently changed or introduced as these circulars/notifications are prospective in application. Reliance was placed on the decision of the Apex Court in the case of State of Haryana and Others vs. Jagdish since reported in (2010)4 SCC 216 . 5. We have heard the parties and in our view the legal issue as raised by the petitioner deserves to succeed. 6. Reliance was placed on the decision of the Apex Court in the case of State of Haryana and Others vs. Jagdish since reported in (2010)4 SCC 216 . 5. We have heard the parties and in our view the legal issue as raised by the petitioner deserves to succeed. 6. First we would like to point out that Chapter XXXII(E) of the Code of Criminal Procedure provides for Sections 432 to 435 which deal with suspension, remission and commutation of sentence. Section 432 empowers the appropriate Government to suspend or remit the sentence in circumstances stated therein. Section 433 empowers the State Government to commute sentence and Section 433A imposes certain restrictions on the power of remission or commutation in certain cases. This Section 433A was introduced with effect from 18.12.1978. Sections 434 and 435 deal with appropriate cases where the appropriate Government would be the Central Government and consequence thereof. 7. So far as apparent from the counter affidavit as filed by the State the policy with regard to convicts serving life sentences is, dated 21.1.1984 (Annexure-A). Clause 1 of the said policy decision as communicated inter alia provides that provision for set-off as contemplated under Section 428 of the Code of Criminal Procedure for the period of detention suffered during investigation, enquiry or trial would not be available in case of life convicts. They would not be entitled to premature release unless they have completed twenty years. It may be noticed here that by insertion of proviso to Section 428 with effect from 2005 this has become redundant as even in case covered by Section 433A this set-off has to be given. Clause 2 clearly states that in view of Section 433 of the Code of Criminal Procedure all persons who have been sentenced to life imprisonment or whose death sentence is commuted to life imprisonment after 18.12.1978, would be entitled •to premature release if (a) they have completed fourteen years of physical imprisonment after conviction, and (b) taking into account the remission earned, their total detention would be twenty years. 8. Next we have the policy of the State as published in the official gazette being policy, dated 10.12.2002 which inter alia amended Rule 529 of the Bihar Jail Manual. The relevant part thereof is quoted hereunder:- " (iii) Eligibility for premature release. 8. Next we have the policy of the State as published in the official gazette being policy, dated 10.12.2002 which inter alia amended Rule 529 of the Bihar Jail Manual. The relevant part thereof is quoted hereunder:- " (iii) Eligibility for premature release. Prisoners of the following categories shall be eligible for consideration for premature release by the State Sentence Remission Board:- (a) Every convicted prisoner whether male or female, undergoing sentence of life imprisonment and covered by the provisions of Section 433A of the Cr.P.C. shall be eligible to considered for premature release immediately after serving the sentence of 14 years of actual imprisonment without the remission. (b) All other convicted male prisoners undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission and after completion of 10 years actual imprisonment without remissions. (c) All other convicted female prisoners undergoing. the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remission and after completion of 7 years of actual imprisonment without remission. (d) Convicted prisoners undergoing the sentence of life imprisonment on attaining the age of 65 years provided he or she has served at least 7 years of imprisonment including the remissions. (e) The convicted prisoners undergoing the sentence or imprisonment for life and who are suffering from terminal disease like cancer, aids, irreversible kidney failure, cardio respiratory disease, deadly and any other infectious disease as certified by a Board of Doctors, on completion of 5 years of actual sentence or 7 years of sentence including remissions. (iv) Ineligibility for premature release. The following category of convicted prisoners undergoing life sentence may not be considered eligible for premature release:- (a) Prisoners convicted of the heinous offence3 such as rape, dacoity, terrorist crimes etc. (b) Prisoners who have been convicted for organized murdered in a premeditated manner and in an organized manner. (c) Professional murderers who have been found guilty of murder by hiring. (d) Convicted prisoners, who commit murder while involving in smuggling operations or who are guilty of murderer of public servants on duty." 9. (b) Prisoners who have been convicted for organized murdered in a premeditated manner and in an organized manner. (c) Professional murderers who have been found guilty of murder by hiring. (d) Convicted prisoners, who commit murder while involving in smuggling operations or who are guilty of murderer of public servants on duty." 9. It may be noted that remission is to be granted by the State Sentence Remission Board and it is with reference to Clause (iv) (d) of Rule 529 that the State has rejected the petitioner's claim. 10. We then find the next circular, dated 29.6.2007 which only says that decision for premature release of life convicts or those convicts whose death sentence has been commuted to life imprisonment and are entitled for consideration under policy decision, dated 21.1.1984, the decision would be taken by the State Government or the State Sentence Remission Board as constituted by the State. 11. Thus, it would be seen that due to the policy decision of the State Government. of the year 1984 as, noticed above, ,a person whose death has been commuted to life imprisonment or who has been convicted and sentenced to life imprisonment, he would be entitled to remission and premature release upon completion of fourteen years of physical imprisonment which together with remission available are making total imprisonment of twenty years. This was changed subsequently in the year 2002 wherein this remission was qualified and curtailed in certain situations. 12. The question is that whether the petitioner who was convicted and sentenced to death in 1997 and whose death sentence was commuted to life imprisonment by this court in 1998, would he be entitled to the benefit of the policy as of obtaining on the day his conviction, that is, 1984 policy or the said policy as stood and amended by the amendment in 2002. 13. In our view the direct answer to this is to be found in the judgment of the Apex Court in the case of State of Haryana and others vs. Jagdish, (2010)4 SCC 216 where the question before the Apex Court was whether what would be applicable policy for considering premature release of prisoners. One contention was that it would be the policy on the day when the release was being considered. One contention was that it would be the policy on the day when the release was being considered. The Apex Court in unambiguous term negativing it held that the policy as in forced on the day the sentence was pas3ed, would be the policy that would apply not withstanding subsequent amendment to it or subsequent changes in it. That decision is a decision clearly on the issue. If that be so, then, in our view, the policy as was obtaining on the day the petitioner's conviction in the year 1997 which was the 1984 policy and that should apply. The amended policy or policy of 2002 would have no application to the petitioner as such change in policy has been held by the Apex Court to be only prospective in application. 14. Thus we have to ignore the notification of 2002 and the provisions in relation thereto. We have merely to look to the provision of 1984 policy which clearly stipulates that no set-off would be available to a life convict in terms of Section 428 of the Code of Criminal Procedure but as noted earlier by virtue of now added proviso to Section 428 this is irrelevant. In terms of Section 433A, a life convict or convict whose death sentence has been commuted to life imprisonment can only be released after he completes fourteen years of physical imprisonment and is entitled to remission which together with fourteen years of physical imprisonment would make his total imprisonment of twenty years. Curtailment or conditions restricting this, as introduced in the year 2002, would not apply. Therefore, the ground taken in the counter affidavit as well as by the State Sentence Remission Board is not correct. The matter would have to be reconsidered by the said Board in view of circular of 1984 as it was obtaining on the day the petitioner was convicted. The subsequent amendments have to be ignored. 15. We, therefore, remit the matter to the State Sentence Remission Board for reconsideration which should be done not only in the case of the petitioner but in case of all other similarly situated persons within a period of three months from today. The learned counsel for the State may bring the order of this court to the notice of the State authorities in that regard. 16. With this observation and direction, this writ petition is disposed of.