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2016 DIGILAW 1683 (PAT)

Nagina Rai v. State of Bihar

2016-12-22

NAVANITI PRASAD SINGH, SANJAY PRIYA

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JUDGMENT : Navaniti Prasad Singh, J. 1. A common question of law has arisen in both these cases. 2. We have heard learned counsels for the writ petitioners, learned counsels for the State and learned Additional Solicitor General for Union of India who was added as a party pursuant to order of this Court in view of the nature of controversy involved. 3. Chapter XXXII of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.) deals with execution, suspension, remission and commutation of sentences, Part E thereof deals with suspension, remission and commutation of sentences. Section 432, Cr.P.C. thereof, inter-alia, provides that "appropriate Government" may, at any time, with or without conditions, suspend the execution of sentence or remit the whole or any part of the sentence to which a convict is visited with. 4. Firstly, a question arose as to the meaning and extent of the expression "may" as used therein whether it was the absolute discretion of the State Government to grant the benefit under Section 432 of Cr.P.C. aforesaid or not? In several earlier decisions of this Court in the cases of Ram Naresh Rai vs. State of Bihar and Others (Cr. W.J.C. No. 1053 of 2016), Ramadhar Singh vs. State of Bihar and Others (Cr. W.J.C. No. 1245 of 2016) and Most Sudama Devi vs. State of Bihar and Others (Cr. W.J.C. No. 1180 of 2016), we have held that "may" does not confer any discretion on the State Government. It has to be read as "shall" as it is a duty coupled with responsibility and if conditions are satisfied, the Government would have to release a person. The conditions, which are the guidelines for exercise of power or the so-called discretion under Section 432 of Cr.P.C. are either laid down by executive instructions or by virtue of Jail Manual enacted with reference to Section 59 of the Prisons Act, 1894. In absence of such guideline for exercise of the so-called discretion, it would have been difficult for any person to claim the benefit thereunder. This position having been settled in earlier decisions, mentioned above, the next controversy that had arisen was where Rules under the Jail Manual or executive directions/guidelines are amended, what would be the effect? In absence of such guideline for exercise of the so-called discretion, it would have been difficult for any person to claim the benefit thereunder. This position having been settled in earlier decisions, mentioned above, the next controversy that had arisen was where Rules under the Jail Manual or executive directions/guidelines are amended, what would be the effect? Again, this Court has repeatedly held, after noticing the judgment of the Apex Court, that the position, as emanating on the day when conviction is recorded, would be the reckoning day to reckon the conditions as specified then for the grant of remission or commutation. Subsequent amendments to the detriment of the interests of the convict cannot affect the right of the convict but any relaxation subsequently would inure to his benefit. This position has also now been settled. 5. As noted above, Section 432 of Cr.P.C. talks of the power being exercised by the "appropriate Government." Sub-section (7) of Section 432 of Cr.P.C. defines "appropriate Government." Section 432 (1) and (7) are quoted hereunder: "432. Power to suspend or remit sentences.- (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. ................... (7) In this section and in section 433, the expression "appropriate Government" means:- (a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government. (b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed." 6. It may be noted that sub-section (7) of Section 432 has been in the Statute Book right from its inception that is when the Cr.P.C. was enacted and enforced. There has been no change. Recently, Constitution Bench of the Apex Court in the case of Union of India vs. V. Sriharan @ Murugan and Others, (2016) 7 SCC 1 has, inter-alia, held, reiterating the said provision, that the cases have to be considered by the "appropriate Government" as defined under the Act. There has been no change. Recently, Constitution Bench of the Apex Court in the case of Union of India vs. V. Sriharan @ Murugan and Others, (2016) 7 SCC 1 has, inter-alia, held, reiterating the said provision, that the cases have to be considered by the "appropriate Government" as defined under the Act. There was no change by any introduction in the meaning of the expressions used therein, yet upon pronouncement of the judgment of the Constitution Bench, in this State, suddenly the State Sentence Remission Board (for brevity, the Board) thought that the Apex Court has said something new at variance with either the Statute or the previous position, none of which everyone knew, was correct. They got an excuse that even though they recommended for premature release, they started sending all the matters to the Central Government on the spacious plea that the offences in respect of which conviction was rejected was an offence under the Indian Penal Code which was a Statute under the domain of the Union Government and, thus, the "appropriate Government" would be the Union of India or the Central Government. When this matter was taken up by this Court, counsel for the petitioners submitted at the Bar that even the Central Government had referred the cases to the State Government for decision to the State Government. It was also submitted that the Section being what it is, the judgment of the Apex Court lays down nothing different but the past practise being that only in cases in which the Central Government was the prosecuting agency, the matters were referred to or left to the Central Government to decide. In all other matters, State of Bihar, being the prosecuting agency, they were dealt with by the State of Bihar. We then formulated this question to be decided and adjourned the matter for the stand of the Central Government and the State Government in this regard to resolve this dispute. 7. Today, a supplementary counter affidavit has been filed by the State wherein proceedings of the Board dated 19.12.2016 has been appended as Annexure A. Learned counsel for the State now fairly concedes that indeed Union of India returned the case for consideration of the State and the Board has realized the correct position. 7. Today, a supplementary counter affidavit has been filed by the State wherein proceedings of the Board dated 19.12.2016 has been appended as Annexure A. Learned counsel for the State now fairly concedes that indeed Union of India returned the case for consideration of the State and the Board has realized the correct position. It has also taken note of Section 435 of Cr.P.C. and they re-decided the cases of the petitioners except for three petitioners in so far as the second writ petition is concerned, the rest have already been now recommended for release. The stand of the State now is that in so far as matters that are prosecuted by the State, the State would exclusively consider the matter but where the prosecution is either at the instance of the Central Government or by the Central Government, the Union of India would consider exercising powers under Section 432 of Cr. P.C. In our view, that is the correct procedure in view of the provisions of Section 432 (7) of Cr.P.C. In view of the aforesaid, no further controversy remains except in regard to the three petitioners in the second writ petition being petitioner nos. 10, 11 and 20. 8. While ordering release of the rest of the petitioners, the Board has called for fresh report from the trial Court in view of these three petitioners. So far as petitioner No. 20 is concerned, they have rejected his claim on the ground that he was convicted in a case of multiple murders. 9. We would first take up the case of petitioner No. 20. As apparent from the proceedings of the Board, the only factum which has disqualified petitioner No. 20 from release is that he was found guilty in a case of multiple murders. Reference to the amendment in the Jail Manual, as made on 26th of May, 2016, such a disability was not there earlier much less on the day when conviction was recorded. As we have indicated earlier in this judgment itself, this position has been settled by several judgments, as mentioned above. Subsequent amendment to the Jail Manual to the detriment of the convict will not affect his right. His case had to be considered on basis of the law or the guidelines as prevailing at the time when he was convicted. It is not disputed that such a disability did not figure earlier. Subsequent amendment to the Jail Manual to the detriment of the convict will not affect his right. His case had to be considered on basis of the law or the guidelines as prevailing at the time when he was convicted. It is not disputed that such a disability did not figure earlier. It was introduced for the first time in the year, 2016. This petitioner was convicted more than a decade and a half back when such a disability was not there. Thus, following the earlier judgments, mentioned above, we have no option but to direct the Board to reconsider the matter in the light of what we have observed and pass orders again in accordance with law in respect of petitioner No. 20 Nand Kishore Yadav @ Nand Kishore Rai. Needless to say that the Board would consider the matter expeditiously. 10. So far as petitioner nos. 10 and 11 are concerned, we find the position curious. On the earlier occasion when their cases were considered, they were allowed remission. The opinion of the trial Court was there and has been found satisfactory. The only difficulty was that the State, shirking its responsibility, had decided to refer all those matters for concurrence and/or approval of the Central Government. Now that the State realized its mistake, instead of passing orders for release, as in other cases, the earlier report of the trial Court with which they never found fault earlier, suddenly they find it deficient. The result is they have remitted the matter back to the trial Court for a proper report or a proper report in this matter. We are unable to understand this conduct. It is the same report which they considered on the earlier occasion and found no fault with it. Now, upon reconsideration of the same report, they consider it inadequate for passing orders. In the counter affidavit, apart from saying that the Board did not find the report to be adequate enough, nothing more is said. In absence of any concrete fact being mentioned, we can only call it a whimsical stand of the State which is not expected from such a senior and responsible body. However, as the Statutory Body, the Board has taken a decision to call for a fresh report, we would not direct the release of these two petitioners that is petitioner nos. However, as the Statutory Body, the Board has taken a decision to call for a fresh report, we would not direct the release of these two petitioners that is petitioner nos. 10 and 11, namely, Krishna Mohan Mishra and Ramesh Mishra forthwith but hope that the compliance of sending the report would be without any undue delay and so also its consideration by the Board which consideration has to be objective. 11. With the aforesaid observations and directions, both these writ petitions stand disposed of.