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2023 DIGILAW 733 (BOM)

Shankar Tiwari v. Inspectorate General

2023-03-15

M.S.SONAK, VALMIKI SA MENEZES

body2023
JUDGMENT/ORDER M.S.SONAK, J. - Heard Mr T. George John for the Petitioner and Mr S.G. Bhobe, learned Public Prosecutor for the respondents. Mr Deepak Gaonkar appears for the intervenor. 2. Criminal Misc. Application seeking intervention is not opposed by Mr T. George, learned Counsel for the Petitioner. Accordingly, the same is allowed. Necessary amendment to be carried out to the cause title forthwith. 3. Rule. The rule is made returnable immediately at the request of and with the consent of the learned Counsel for the parties. 4. The Petitioner is a convict sentenced to life imprisonment for offences punishable under Ss. 302 and 365 of the Indian Penal Code. Therefore, there is no dispute that the provisions of Sec. 433-A of CrPC apply to the Petitioner's case. 5. The Petitioner had earlier instituted Writ Petition No.477/2021(F) for his premature release. In the said petition, the Petitioner had contended that the parole period must be construed as a period of actual imprisonment undergone by the Petitioner in the context of the provisions of Sec. 433-A of CrPC. However, the above contention was rejected by the Division Bench of this Court vide judgment and order dtd. 3/8/2022. 6. Against the said decision, Special Leave Petition (CRL) Nos.12574-12577 of 2022 (@ Diary No.29535 of 2022) was preferred. However, by a detailed speaking order, the Hon'ble Supreme Court dismissed the Special Leave Petitions, expressing complete agreement with the view taken by the Division Bench of this Court. 7. The Petitioner, perhaps taking advantage of certain observations in the judgment and order dtd. 3/8/2022, to the effect that the Division Bench was not examining the issue as to whether the furlough period is to be excluded in determining actual imprisonment, has instituted the present petition urging that the furlough period should be construed as "actual imprisonment" in the context of the provisions of Sec. 433-A of CrPC. 8. The Petitioner has made the following prayers in this petition: I. Issue a writ in the nature of mandamus or any other writ, order or directions as may be deemed fit by this Hon'ble Court directing respondents to add furlough leave as actual imprisonment. II. To direct the concerned respondents to satisfy this Court as to why they do not count furlough as either remission or in-period despite the prevailing law. III. II. To direct the concerned respondents to satisfy this Court as to why they do not count furlough as either remission or in-period despite the prevailing law. III. Pass any other order as this Hon'ble Court may deem fit and proper in the circumstances of this case in the larger interest of justice. 9. Mr T. George John, the learned Counsel for the Petitioner, firstly referred to Rule 1188 of the Goa Prisons Rules, 2021, to submit that the period spent by the prisoner outside the prison on furlough must be counted towards his sentence. Secondly, he relied on the State of Haryana & Ors. V/s. Mohinder Singh, (2000) 3 SCC 394 . and Atbir V/s. State of NCT of Delhi, 2022 SCC OnLine SC 527. to submit that the furlough period is regarded as part of the sentence. Thirdly, he relied on the State of Haryana & Ors. V/s. Jagdish, (2010) 4 SCC 216 . submits that an interpretation favouring the prisoner must be preferred in matters of liberty. Based on all this, Mr T. George submitted that the prayers in this petition may be granted. 10. Mr Bhobe, the learned Public Prosecutor, submitted that the issue raised in this petition stands answered against the Petitioner in Rohan Dhungat Etc. V/s. The State of Goa & Ors. Etc. (Special Leave Petition (CRL) Nos.12574-12577 of 2022 (@ Diary No.29535 of 2022)). He submitted that the Hon'ble Supreme Court relying upon Rule 335 of the 2006 Rules has held that furlough and parole period shall be counted as remission of sentence. He relied on the State of Haryana & Ors. V/s. Raj Kumar alias Bittu, (2021) 9 SCC 292 . to submit that a prisoner has to undergo a minimum period of imprisonment of 14 years without remission where the provisions of Sec. 433-A of CrPC are attracted. He also relied on Maru Ram V/s. Union Of India, 1981 (1) SCC 107 . to submit that the objective of Sec. 433-A CrPC would be frustrated if the interpretation now suggested by the Petitioner is to be accepted. For all these reasons, Mr Bhobe submitted that this petition may be dismissed. 11. The rival contentions now fall for our determination. 12. The main question in this petition is whether the furlough period is counted as a period of imprisonment for purposes of Sec. 433-A CrPC. 13. For all these reasons, Mr Bhobe submitted that this petition may be dismissed. 11. The rival contentions now fall for our determination. 12. The main question in this petition is whether the furlough period is counted as a period of imprisonment for purposes of Sec. 433-A CrPC. 13. Sec. 433-A of CrPC reads as follows: 433-A. Restriction on powers of remission or commutation in certain cases - 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 punishment 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. 14. On a plain reading of Sec. 433-A of CrPC, it is evident that the Legislature has distinguished between service of sentence of imprisonment for life and service of at least 14 years of imprisonment. Therefore, the service of at least 14 years of imprisonment is accepted as the actual 14 years of imprisonment in the previous Criminal Writ Petition No.472/2021(F) instituted by the Petitioner and others. This is evident from the discussion in the judgment and order dtd. 3/8/2022 disposing of Criminal Writ Petition No.472/2021(F) and the connected matters. Accordingly, the Hon'ble Supreme Court dismissed the Special Leave Petition against the above judgment and order dtd. 3/8/2021 with a detailed speaking order. 15. The discussion in para 7.1, 8, 8.1, 9 and 10 of the Hon'ble Supreme Court's judgment and order dismissing the Special Leave Petitions is relevant and transcribed below for the convenience of reference: "7.1. The High Court while passing the impugned judgment and order and taking the view that the period of parole is to be excluded from the period of sentence while considering 14 years of actual imprisonment has heavily relied upon or considered Rule 335 of the Rules, 2006 which provides that the period of release on Furlough and Parole "shall be counted as remission of sentence ....". Once the period of parole is to be counted as remission of sentence, as rightly observed and held by the High Court, the period of parole is also required to be excluded from the period of sentence while considering 14 years of actual imprisonment. 8. Once the period of parole is to be counted as remission of sentence, as rightly observed and held by the High Court, the period of parole is also required to be excluded from the period of sentence while considering 14 years of actual imprisonment. 8. Now, so far as the reliance placed upon the decision of this Court in the case of Sunil Fulchand Shah V/s. Union of India, (2000) 3 SCC 409 . relied upon by learned senior Counsel for the respective petitioners - convicts / prisoners is concerned, the said decision shall not be applicable to the facts of the case on hand. It was a case of detenue under the provisions of the COFEPOSA Act. Even in the said decision, it is observed and held that the period of detention would not stand automatically extended by any period of parole granted to the detenu unless the order of parole or rules or instructions specifically indicates as a term and condition of parole, to the contrary. In the present case the term 'imprisonment' is not included in the computation of term of parole. Rule 335 specifically provides that parole is to be counted as remission of sentence. Therefore, the said decision would not be applicable to the facts of the case on hand. 8.1. Similarly, the decision of this case in the case of Avtar Singh V/s. State of Haryana, (2002) 3 SCC 409 also shall not be applicable to the facts of the case on hand while considering the issue viz. whether the period of parole is to be excluded from the period of sentence under the Rules, 2006 while considering 14 years of actual imprisonment. 9. Now, so far as the submission on behalf of the petitioners relying upon Sec. 55 of the Prisons Act, 1894 that even on parole the prisoners shall be deemed to be in custody and therefore, the said period is to be included for the purpose of actual imprisonment is concerned, the aforesaid has no substance. Sec. 55 of the Prisons Act, 1894 shall not be applicable with respect to release on parole. Sec. 55 of the Prisons Act, 1894 shall be applicable in a case where a prisoner is taken out from any prison, he shall deem to have been in prison. However, the same shall not be applicable with respect to release on parole. 10. Sec. 55 of the Prisons Act, 1894 shall be applicable in a case where a prisoner is taken out from any prison, he shall deem to have been in prison. However, the same shall not be applicable with respect to release on parole. 10. If the submission on behalf of the prisoners that the period of parole is to be included while considering 14 years of actual imprisonment is accepted, in that case, any prisoner who may be influential may get the parole for number of times as there is no restrictions and it can be granted number of times and if the submission on behalf of the prisoners is accepted, it may defeat the very object and purpose of actual imprisonment. We are of the firm view that for the purpose of considering actual imprisonment, the period of parole is to be excluded. We are in complete agreement with the view taken by the High Court holding so." 16. As noted earlier, Sec. 335 of the Goa Prisons Rules, 2006 clearly provides that the furlough and parole period shall be counted as "remission of the sentence". In Raj Kumar alias Bittu (supra), the Hon'ble Supreme Court has emphasized that the prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offence, the conviction of which carries a death sentence, to take benefit of the policy of remission framed by an appropriate Government under Sec. 432 of the Code given the overriding provision of Sec. 433-A of the Code. 17. In Raj Kumar alias Bittu (supra), the Hon'ble Supreme Court made the following relevant observations in paragraph 19. "19. Sec. 433-A of the Code starts with a nonobstante clause restricting the right of the appropriate Government, to suspend the sentence of imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. Therefore, the power of the appropriate Government to release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. Therefore, the power of the appropriate Government to release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Sec. 433-A of the Constitution. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government." (Emphasis supplied) 18. In Raj Kumar alias Bittu (supra), the Hon'ble Supreme Court also emphasized that the prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offense, the conviction of which carries the death sentence, to take benefit of the policy of remission framed by an appropriate Government under Sec. 432 of the Code given the overriding provision of Sec. 433-A of the Code. 19. In the above decision, the Hon'ble Supreme Court also took note of its decisions in the State of Haryana V/s. Nauratta Singh & Ors., (2000) 3 SCC 514 . and Maru Ram (supra). These rulings are authorities for the proposition that the policy of the State Government, as reflected in the rules, is a valid consideration for computing the period of actual imprisonment. In the Prisons Rules 2006, Rule 398(1)(iv) speaks of "actual imprisonment". Even Raj Kumar alias Bittu (Supra) speaks about 'actual imprisonment' in the precise context of Sec. 433A of Cr.9PC. 20. Therefore, the Petitioner's contention about including the furlough period for determining 14 years of actual imprisonment as contemplated by Sec. 433-A of CrPC cannot be accepted. Such a construction would be contrary to the statutory scheme of 433-A of CrPC and the decision of the Hon'ble Supreme Court in Rohan Dhungat Etc. 20. Therefore, the Petitioner's contention about including the furlough period for determining 14 years of actual imprisonment as contemplated by Sec. 433-A of CrPC cannot be accepted. Such a construction would be contrary to the statutory scheme of 433-A of CrPC and the decision of the Hon'ble Supreme Court in Rohan Dhungat Etc. (supra) where the Hon'ble Supreme Court has interpreted Sec. 335 of the Goa Prisons Rules 2006. 21. The classification between prisoners covered under the ambit of Sec. 433-A and those left out was a reasonable classification having nexus with the objection for which the Legislature made such classification. Sec. 433-A was enacted to apply to a very small sphere and includes within its ambit only certain specified offences of the Indian Penal Code, that is to say, only those offences where death or life imprisonment are the penalties but instead of death or life imprisonment is given or where a sentence of death is commuted to that of life imprisonment. 22. Accordingly, Sec. 433-A of CrPC will have an overriding effect even assuming that there is any conflict between the provisions of Sec. 433-A and the remission rules made by any State Government. The Hon'ble Supreme Court, in the case of Maru Ram (supra), has held that to read out Sec. 433-A to give overriding effect to the remission rules of the State would render purposeful enactment of Sec. 433-A futility. The Court held that the remission rules might be a special law, but Sec. 433-A, a specific provision to the contrary, would prevail over such special law. 23. The argument based upon Mohinder Singh (supra) was considered and rejected by the Division Bench in the previous petition instituted by the Petitioner. The observations in paragraph 18 of Mohinder Singh (supra) about the parole period not counting towards the total period of the sentence but the furlough period, so counting, has to be understood in the context of the legislation referred to in paragraph 17 of the said decision. In any case, parole or furlough period counting towards the sentence is quite different from those counting towards actual imprisonment for Sec. 433-A of CrPC. 24. Even the observations in paragraph 34 of Atbir (supra) must be understood in the context of the discussion preceding the paragraph. In any case, parole or furlough period counting towards the sentence is quite different from those counting towards actual imprisonment for Sec. 433-A of CrPC. 24. Even the observations in paragraph 34 of Atbir (supra) must be understood in the context of the discussion preceding the paragraph. Besides, as noted earlier, there is a distinction between counting the furlough period for purposes of the sentence and counting the same for purposes of actual imprisonment as contemplated by Sec. 433- A of CrPC. 25. Jagdish (supra) was in the context of the applicability of new and old rules in matters. The Hon'ble Supreme Court held that the principles of liberal construction would require the application of the most beneficial rules when dealing with the liberty of the prisoner. Such a principle is not attracted in the present case. Besides, Mr T. George John was unclear whether he relies on the 2006 or 2021 Rules. In any case, reliance on either Rule makes no difference because the Petitioner's case is clearly covered by the provisions of Sec. 433-A of CrPC, which distinguishes between service of a sentence and serving imprisonment. 26. For all the above reasons, we are unable to accept Mr T. George John's contention that the furlough period must be construed as actual imprisonment for Sec. 433-A of CrPC. Such an interpretation finds no support in the rules or decisions relied on by him. Besides, such an interpretation would be contrary to the law the Hon'ble Supreme Court laid down in the Petitioner's case of Rohan Dhungat Etc.(supra). 27. Accordingly, we dismiss this petition but without any order for costs. 28. The rule is discharged.