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Madhya Pradesh High Court · body

2012 DIGILAW 314 (MP)

Gaffar Khan v. State of M. P.

2012-03-16

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Gangele, J. -- 1. This appeal has been filed against the order dated 11.11.2011 passed by the learned Single Judge of this Court in Writ Petition No.2135/2011 (Cri.). 2. Respondent No.6, Ahmed Saeed, was tried and convicted vide judgment dated 13.4.2010 delivered in Session Trial No.15 of 2004 and sentenced to life imprisonment. The charge against respondent No.6, Ahmed Saeed, was that he had killed three persons i.e. Abdul Aziz, Fida Mohammad and Rabiya Bi and also injured number of persons, namely, Rubina Bi, Ajra Bi, Khalil, Chhammu Khan, Anwar Khan, Jameel Ahmed, Mohammad Ishad and Jayra Bi. Against his conviction and sentence respondent No.6, Ahmed Saeed filed an appeal before this Court, which is pending adjudication. The complainant also filed another appeal for enhancement of sentence on the ground that the act of respondent No.6, Ahmed Saeed amounts to heinous offence and the case falls within the definition of ‘rarest of rare case’, hence, a death sentence be awarded to respondent No.6, Ahmed Saeed. That appeal is also pending adjudication. 3. The Jail Department, Government of Madhya Pradesh issued a notification dated 22nd January 2011, copy of which was filed as Annexure P-3 before the writ Court, in regard to grant of suspension and remission of sentence to the prisoners in exercise of powers conferred by sub-section (1) of section 432 of the Code of Criminal Procedure, 1973. Condition No.(8) of the aforesaid notification is relevant, which prescribes release of prisoners for a period of one year, who is aged 62 years or more. The relevant condition is as under : “(8) Male prisoners, sentenced to life imprisonment and who have attained the age of 62 years or more and female prisoners, sentenced to life imprisonment and who have attained the age of 60 years or more, as on 25th January, 2011 and have served 4 years of actual sentence including under trial period, their sentences shall be suspended for a period of 1 year i.e. up to 25th January, 2012 on submission of security bond of Rs.50,000/- within a period of 30 days from the date of issue of this order, shall be released after 25th January, 2011.” In accordance with the aforesaid notification respondent No.6, Ahmed Saeed was granted benefit of release for a period of one year and he was released for the aforesaid period. 4. 4. The appellant challenged the order of release of respondent No.6, Ahmed Saeed, before the writ Court on the ground that respondent No.6 did not complete 62 years of age, hence, he was not eligible for the aforesaid benefit. 5. Learned writ Court rejected the writ petition.The period of one year of release of respondent No.6 has already been completed and respondent No.6 has already surrendered before the competent Court and he is now suffering the remaining jail sentence. In this view of the matter, learned counsel for appellant did not press the point on the ground of benefit of suspension of sentence for one year in favour of respondent No.6. However, learned counsel challenged the notification dated 22nd January 2011, Annexure P-3, in regard to grant of benefit to the prisoners aged 62 years or more of suspension of sentence for a period of one year. Learned counsel submitted that the aforesaid condition is arbitrary and illegal because in the aforesaid condition no differentiation has been made in regard to nature and gravity of offence. In support of his contentions learned counsel relied on the following judgments : (1) State of Haryana v. Mahender Singh, (2007)13 SCC 606 ; (2) Swamy Shraddananda Alias Murali Manohar Mishra v. State of Karnataka, (2008)13 SCC 767 ; (3) State of Haryana v. Bhup Singh, (2009)2 SCC 268 ; (4) State of Rajasthan v. Jagdish Prasad, (2009)12 SCC 646 ; (5) Mohammed Ishaq v. S. Kazam Pasha, (2009)12 SCC 748 ; (6) State of Haryana v. Jagdish, (2010)4 SCC 216 ; (7) State of Haryana v. Harpal, (2010)11 SCC 748 and (8) D. Ethiraj v. Secretary to Government, (2011)10 SCC 398 . 6. As per condition No.(8) of the aforesaid notification a male prisoner sentenced to life imprisonment and who has attained the age of 62 years or more as on 25th January 2011 and has served 4 years of actual sentence including under trial period, shall be entitled suspension of sentence for a period of one year upto 25th January 2012. In the aforesaid condition, there is no mention to the effect that whether the act of the convicted prisoner is heinous or whether there were number of cases pending against him. In the present case, the trial Court has found that respondent No.6, Ahmed Saeed, killed three persons and he also injured number of persons. In the aforesaid condition, there is no mention to the effect that whether the act of the convicted prisoner is heinous or whether there were number of cases pending against him. In the present case, the trial Court has found that respondent No.6, Ahmed Saeed, killed three persons and he also injured number of persons. He fired indiscriminately as per the findings of the trial Court. 7. Section 432(1) of the Code of Criminal Procedure gives power to appropriate Government for suspension or execution of sentence or remit the whole or part of the punishment to which the person has been sentenced. The relevant provision is as under : “432. Power to suspend or remit sentence. -- (1) 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.” 8. Hon’ble the Supreme Court in State of Haryana v. Mahender Singh [ (2007)13 SCC 606 ], has held, as under, in regard to exercise of power by the appropriate Government under section 432 of the Code of Criminal Procedure : “23. The State indisputably is entitled to take a prison policy as contradistinguished from a sentencing policy. The Prison Act, 1894 was enacted to amend the law relating to prisons. Sub-section (5) of section 59 thereof empowers the State Government to make rules for the award of marks and shortening of sentences.The State of Punjab, pursuant to the said power, framed rules. 24. The Rules put the convicts into three categories. It also defines the term “life convicts”. Whereas a classification had been made from amongst the convicts having regard to the gravity of the offences committed by them, indisputably no classification has been made on the basis of the number of deaths which might have taken place at the hands of the persons. The State apart from making the statutory rules, as noticed hereinbefore, had been issuing executive instructions. 25. Section 432 of the Code of Criminal Procedure provides for power to suspend or remit sentences. Section 433 provides for power to commute sentences. The State apart from making the statutory rules, as noticed hereinbefore, had been issuing executive instructions. 25. Section 432 of the Code of Criminal Procedure provides for power to suspend or remit sentences. Section 433 provides for power to commute sentences. Section 433A, which was inserted in the Code of Criminal Procedure by Act 45 of 1978 and which came into force with effect from 18.12.1978, provides that “notwithstanding anything contained in section 432, no convict shall be released from prison unless he has served at least 14 years of imprisonment where a sentence of imprisonment for life has been imposed. 26. We may also notice sections 54 and 55 of the Penal Code which read as under : “54. Commutation of sentence of death. -- In every case in which sentence of death shall have been passed the appropriate Government may, without the consent of the offender, commute the punishment or any other punishment provided by this Code. 55. Commutation of sentence of imprisonment for life. -- In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years.” 27. It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.” 9. Hon’ble the Supreme Court further in Swamy Shraddananda alias Murali Manohar Mishra v. State of Karnataka [ (2008)13 SCC 767 ], has held as under in regard to the power of the Court in awarding and execution of sentences and also power of the appropriate Government under section 432 of the Code of Criminal Procedure : “78. Section 432 of the Code of Criminal Procedure deals with the power to suspend or remit sentences and section 433 with the power to commute sentences. Section 433A, that was inserted in the Code by an amendment made in 1978, imposes restriction on powers of remission of commutation in certain cases. It reads as follows : “433A. Restriction of powers of remission or commutation in certain cases. Section 433A, that was inserted in the Code by an amendment made in 1978, imposes restriction on powers of remission of commutation in certain cases. It reads as follows : “433A. Restriction of powers of remission or commutation 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 laws 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 at least fourteen years of imprisonment.” 79. Section 434 gives concurrent power to the Central Government in case of death sentence and section 435 provides that in certain cases the State Government must act only after consultation with the Central Government. 80. From the Prisons Act and the Rules it appears that for good conduct and for doing certain duties etc. inside the jail the prisoners are given some days’ remission on a monthly, quarterly or annual basis.The days of remission so earned by a prisoner are added to the period of his actual imprisonment (including the period undergone as an under trial) to make up the term of sentence awarded by the Court. This being the position, the first question that arises in mind is how remission can be applied to imprisonment for life.The way in which remission is allowed, it can only apply to a fixed term and life imprisonment, being for the rest of life, is by nature indeterminate. 81. Mr. U.U. Lalit, learned counsel appearing for the informant, suggested that for applying remission to a sentence of imprisonment for life it would be necessary to first commute the sentence to a fixed term, say for a term of 20 years and then to apply the remissions’ earned by the prisoner to the commuted period and that would work out to 14 years of actual incarceration. 82. To throw light on the question Mr. Hedge submitted a note on remission of sentences of imprisonment as followed in the State of Karnataka, with specific reference to the facts of this case.The note also encloses the relevant extracts from the Karnataka Prison Rules, 1974 and the Karnataka Prison Manual, 1978. 82. To throw light on the question Mr. Hedge submitted a note on remission of sentences of imprisonment as followed in the State of Karnataka, with specific reference to the facts of this case.The note also encloses the relevant extracts from the Karnataka Prison Rules, 1974 and the Karnataka Prison Manual, 1978. Chapter XII of the Karnataka Prison Manual deals with the remission system; rule 215 defines remission of sentence and provides for three kinds of remissions, namely, ordinary remission, special remission and remission by the State Government. But what is significant for our purpose is the stipulation made in rule 214(c) which reads as follows: “The sentence of all prisoners sentenced to imprisonment for life or to more than 20 years’ imprisonment in the aggregate to imprisonment for life and imprisonment for exceeding in the aggregate 20 years, shall for the purpose of these Rules be deemed to be sentence of imprisonment for 20 years.” (Emphasis added) 83. In the note submitted by the counsel it is explained that the cases of life convicts are first considered for remission by an Advisory Board constituted under rule 814. The proposals for premature release of life convicts, convicted after 18 December, 1978 (the date of introduction of section 433A in the Code) are placed before the Advisory Board, as provided under Government Order No. HD 92 PRR 88, dated 17th July, 1989 on completion of 13 years and 8months of imprisonment including the under trial period. The recommendations of the Board go to the Inspector General of Prisons together with all the records and are finally placed before the Government for considering the premature release of the prisoners on completing 14 years of imprisonment. The State Government considers for recommendations of the Advisory Board and gives directions either for the forthwith release of the prisoner or that the prisoner would be released in the ordinary course on the expiry of the sentence, less the period of remission earned. In case of a life convict if no order of premature release is passed there can be no release by the mere lapse of time since a life sentence is for the rest of life. 84. In case of a life convict if no order of premature release is passed there can be no release by the mere lapse of time since a life sentence is for the rest of life. 84. To the question whether any specific orders are passed by the Government to commute the sentence of life imprisonment to imprisonment for 20 years or less, the answer is given in the note, as follows : “In addition to what is stated in para 3.1, it may be added that cases of life imprisonment pass through the Advisory Board and their recommendations are examined by the Head of the Department viz., Additional Director General of Police and Inspector General of Prisons who later forwards them to the Government for passing final orders.That is how the sentence of life imprisonment is commuted for a term of 20 years or less as per provisions of sections 54 and 55 of the IPC and section 433A, CrPC.” It is further stated in the note as follows : “Experience shows that in respect of life convicts an assumption can be made that the total sentence is 20 years and if the convict earns all categories of remissions in the normal course it may come to 6 years which is less than one-third of 20 years.This is also in consonance with Order 214(c) of the Prisons Manual which for the purposes of the rules deems a sentence of imprisonment for life to be a sentence of imprisonment for twenty years.” (Emphasis added) 85. In the note, it is further stated that in the event the appellant’s sentence is modified to life imprisonment, his case for premature release would come up before the Advisory Board in January 2009. The Board shall then make its recommendation in light of the instructions contained in Chapter XLIV of the Karnataka Prisons Manual. The recommendation of the Board will be examined by the Head of the Department and thereafter the State Government will pass appropriate orders regarding commutation of his sentence. 86. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. 86. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. In Bihar too the order for early release of a convicted prisoner is passed by the State Government in the Department of Law (Justice) on the basis of recommendations made by the Bihar State Sentence Remission Board. But there also significant thing is the conversion of life imprisonment into imprisonment for a fixed term. In this regard the Government Letter No.A/PM-03/81-550, dated 21st January, 1984 was brought to our notice.The letter begins by stating the Government decision that for grant of remission to a life convict and for his release from prison, imprisonment for life will be deemed to be imprisonment for a term of 20 years. Then in paragraph 1 in the letter, in its original form it was stated that a life convict would not be entitled to the benefit of set-off under section 428 of the Code of Criminal Procedure, 1973 for the period of incarceration as an under trial. Paragraph 1 of the letter was, however, deleted by letter No.3115, dated 23rd May, 1985 following the decision of this Court in Bhagirath v.Delhi Administration (supra). 87. Paragraph 2 of the letter as it originally stood stipulated that an accused who is given the punishment of imprisonment for life in a capital offence or whose death sentence is commuted to life imprisonment under section 433 of the Code as well as an accused who was awarded life sentence after 18 December, 1978 would be released from prison (a) only on completion of 14 years of actual imprisonment; and (b) when the total period of their imprisonment and the days of remission add up to 20 years. Paragraph 2 of this letter too was later deleted by Government Letter No.2939, dated 29th June, 2007 that provided that the decision to release a convict undergoing life imprisonment for a capital offence or whose death sentence is commuted to life imprisonment would be taken by the State Government or by the State Sentence Remission Board constituted by the Government. 88. 88. It is thus tobe seen that both in Karnataka and Bihar remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years.The deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen years’ term without any sound legal basis. One can safely assume that the position would be no better in the other States.This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases. 89. Here, it may be noted that this has been the position for a very long time. As far back as in 1973, in Jagmohan Singh (supra), a Constitution Bench of this Court made the following observation : “In the context of our criminal law which punishes murderer, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty.” (Emphasis added) Five years after Jagmohan, section 433A was inserted in the Code of Criminal Procedure, 1973 imposing a restriction on the power of remission or commutation in certain cases. After the introduction of section 433A another Constitution Bench of this Court in Bachan Singh (supra), made the following observation : “156. It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. After the introduction of section 433A another Constitution Bench of this Court in Bachan Singh (supra), made the following observation : “156. It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, section 433A restricts the power of remission and commutation conferred on the appropriate Government under sections 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a minimum of 14 years.” Thus, all that is changed by section 433A is that before its insertion an imprisonment for life in most cases worked out to a dozen years of imprisonment and after its introduction it works out to fourteen years’ imprisonment. But the observation in Jagmohan that this cannot be accepted as an adequate substitute for the death penalty still holds true. 90. Earlier in this judgment it was noted that the decision in Shri Bhagwan (supra), there is a useful discussion on the legality of remission in the case of life convicts.The judgment in Shri Bhagwan, in paragraph 22, refers to and quotes from the earlier decision in State of M.P. v. Ratan Singh (supra), which in turn quotes a passage from the Constitution Bench decision in Gopal Vinayak Godse (supra). It will be profitable to reproduce here the extract from Ratan Singh : “4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no longer res integra and stands concluded by a decision of this Court in Gopal Vinayak Godse v. State of Maharashtra [ (1961)3 SCR 440 ], where the Court, following a decision of the Privy Council in Pandit Kishori Lal v. King Emperor [AIR 1954 PC 64], observed as follows : “4. .... Under that section a person transported for life or any other terms before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said term. 5. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without anyformal remission by appropriate Government, can be automatically treated as one for a definite period. 5. If so the next question is whether there is any provision of law whereunder a sentence for life imprisonment, without anyformal remission by appropriate Government, can be automatically treated as one for a definite period. Nosuch provision is found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act. .... A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person’s natural life.” The Court further observed thus : 7. .... But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of persons confined therein. Section 59 of the Prisons Act confers a power on the State Government to make Rules, inter alia, for rewards for good conduct. Therefore, the Rules made under the Act should be construed within the scope of the ambit of the Act .... Under the said Rules the order of an appropriate Government under section 401, Criminal Procedure Code, are a pre-requisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The Rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. 8. ... The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. 8. ... The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release.” It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the Rules.This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under section 401 of the Code of Criminal Procedure and neither section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence of life imprisonment given by the Court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period of the prisoner’s death and remissions given under the Rules could not be regarded as a substitute for a sentence of transportation for life.” Further, in paragraph 23, the judgment in Shri Bhagwan observed as follows : “23. In Maru Ram v. Union of India [ (1981)1 SCC 107 ], a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. In Maru Ram v. Union of India [ (1981)1 SCC 107 ], a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (life convict) v. State of West Bengal [ (2000)7 SCC 626 ], after referring to the decision of the case of Gopal Vinayak Godse v. State of Maharashtra [ (1961)3 SCR 440 ], the Court reiterated that sentence for “imprisonment for life” ordinarily means imprisonment for the whole of the remaining period of the convicted person’s natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose.” (Emphasis supplied) 91. The legal position as enunciated in Pandit Kishori Lal,Gopal Vinayak Godse, Mau Ram, Ratan Singh and Shri Bhagwan, and the unsound way in which remission is actually allowed in cases of life imprisonment make out a very strong case to make a special category for the very few cases where the death penalty might be substituted by the punishment of imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond the application of remission.” 10. Hon’ble the Supreme Court in the afore-quoted judgments has observed that “This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of early release of a particular convict on the society.The grant of remission is the rule and remission is denied, one may say, in the rarest of rare cases”. The observation of the Hon’ble Supreme Court is important. The Hon’ble Supreme Court has emphasized the need to consider the effect of early release of a particular convict on the society. It is also in consonance with the object of award of sentence because the award of sentence has an object of reforming a convict and also it has an object of deterrent effect on the society and the concept of some restrain and deterrent on account of certain criminal activities of a person cannot be ruled out. Hence, in our opinion, it is obligatory on the part of the appropriate Government to consider one aspect of the release of a prisoner on temporary basis that what would be the effect of early release of a particular convict on the society. 11. In the present case, respondent No.6 had committed an heinous crime, he murdered three persons and also injured number of persons by indiscriminate firing. Those persons are innocent persons. They had not offered any resistance. As per the findings of the trial Court the crime was committed on a petty issue and respondent No.6 was granted the benefit of temporary release for a period of one year after serving a jail sentence for four years. This is not a case that health of the convict was deteriorated or he was ill. Only he had been given the benefit because he completed 62 years of age. In our opinion, it is not proper. It is also obligatory on the part of the State to keep in mind the fact that the convicts who have been convicted for heinous offences should not be given the benefit of premature release for a long period leniently. In our opinion, it is not proper. It is also obligatory on the part of the State to keep in mind the fact that the convicts who have been convicted for heinous offences should not be given the benefit of premature release for a long period leniently. In our opinion, it is obligatory on the part of the appropriate Government to consider the facts as of a particular case in which the convict was convicted and the fact that whether there were other cases pending against him or he was tried in other offences or he was awarded a sentence in other offences also. In our opinion, the appropriate Government is duty bound to consider the afore stated aspect in view of the observations of the Hon’ble Supreme Court that the appropriate Government shall consider each and every case in the event of grant of benefit of Condition No.8 of the notification dated 22nd January, 2011. 12. With the above observations, the appeal stands disposed of. Looking to the facts of the case, there shall be no order as to costs. .............