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2024 DIGILAW 949 (PAT)

Sudisht Rai @ Sudist Ray v. State of Bihar

2024-10-05

RAJEEV RANJAN PRASAD

body2024
Rajeev Ranjan Prasad, J. – This writ application has been preferred for the following reliefs: – “(I) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to consider the case of the petitioner for grant of pre-mature release and release him in view of the provisions contained under clause (iii) (d) of Notification contained in Memo No. 3106 dated 10.12.2002 in connection with Sessions Trial No. 51 of 1989 arising out of Sahebganj P.S. Case No. 36 of 1985 wherein vide judgment and order dated 24.08.1990 the petitioner was convicted for life on the ground that now the petitioner had already attained the age of 68 years as also the petitioner had completed more than seven years of his physical incarceration. (II) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be entitled under the facts and circumstances of the case. ” Case of the Petitioner 2. Petitioner is a citizen of India who was made an accused in Sahebganj P.S. Case No. 36 of 1985 registered for the offence punishable under Section 302 of the Indian Penal Code (hereinafter in short ‘IPC’). The allegation against him was that he had committed murder of one Chandrika Rai on 01.05.1985. In the trial of the said case, the petitioner was held guilty, he was convicted under Section 302 IPC and was ordered to undergo life imprisonment vide judgment and order dated 24.08.1990 by the learned Sessions Judge, Muzaffarpur in Sessions Trial No. 51 of 1989. A copy of the judgment of the learned trial court is on the record as Annexure ‘P-1’. 3. It appears on perusal of the judgment that the case was registered on the basis of the fardbeyan of one Meghu Rai, brother of deceased Chandrika Rai, who alleged that one Ram Pravesh Rai, son of accused Sudisht Rai had plugged tikola (small size of mangoes) on 01.05.1985 at about 07:30 am from his tree situated in the same plot in which his house stands. His mother asked said Ram Pravesh Rai not to plug tikolas and went to register protest with accused Sudhist Rai and his wife. On this, the wife of Sudisht Rai abused his mother and while she was abusing, accused Sudisht Rai also started to abuse his mother. His mother asked said Ram Pravesh Rai not to plug tikolas and went to register protest with accused Sudhist Rai and his wife. On this, the wife of Sudisht Rai abused his mother and while she was abusing, accused Sudisht Rai also started to abuse his mother. It was alleged that when the deceased brother of the informant asked them not to abuse, wife of Sudish Rai came with a lathi and aimed lathi at Chandrika Rai who caught hold of the lathi. In the meantime Sudisht Rai brought bhala and inflicted bhala blow on the chest of Chandrika Rai. Chandrika Rai came running in the injured condition and while preparations were being made to take him to Sahebganj Hospital for treatment, he succumbed to his injuries in about 5 or 10 minutes of the assault. 4. The judgment of the learned trial court was sought to be challenged in Cr. Appeal (DB) No. 370 of 1990 before this Court. The said Cr. Appeal was dismissed vide judgment dated 04.09.2012. During pendency of the appeal, the appellant-petitioner was on bail. 5. The judgment of the Hon’ble Division Bench of this Court in Cr. Appeal (DB) No. 370 of 1990 was subject to a Special Leave Petition (Criminal), Diary No. 9621 of 2019 which stood dismissed on 13.09.2019. In this manner, the judgment of conviction and order of sentence attained finality. 6. The petitioner remained in jail for a little more than two years during the trial and the pendency of appeal. He is in jail since 29.05.2018 i.e. for about 6 years 4 months. When the writ application was filed, he was in jail for about 5 years since 29.05.2018. 7. The petitioner claimed consideration of his case for grant of premature release. According to him, his age mentioned in the judgment of the learned trial court is 35 years. The Aadhar Card of the petitioner shows his date of birth as 01.01.1955 and as per the assessment of Medical Board which was constituted on the request of the Jail Superintendent, Khudi Ram Bose Central Jail, Muzaffarpur, the petitioner has been found aged in between 65 to 70 years. A copy of the Aadhar Card and the age assessment report of the petitioner and some other prisoners have been brought on the record as Annexure ‘P/2’ and ‘P/3’ respectively. 8. A copy of the Aadhar Card and the age assessment report of the petitioner and some other prisoners have been brought on the record as Annexure ‘P/2’ and ‘P/3’ respectively. 8. The sheet-anchor of the claim of the petitioner for his premature release is clause (iii) (d) of Memo No. 3106 dated 10.12.2002 issued by the Department of Home (Special) in exercise of power conferred by Section 59 of the Prison Act, 1894. By this Notification, Rule 529 of the Bihar Jail Manual as existed at the relevant time stood substituted. 9. Learned counsel for the petitioner has submitted before this Court that by virtue of the substituted Rule 529 of the Bihar Prison Manual, a convicted prisoner who is undergoing sentence of life imprisonment shall be entitled for consideration for his premature release if he has completed 65 years of age and 7 years of sentence with remission. 10. Learned counsel relies upon a learned Co-ordinate Bench Order of this Court in the case of Khelawan Yadav vs. the State of Bihar and Others vide Cr.WJC No. 62 of 2021 decided on 15.12.2021. It is submitted that the learned Co-ordinate Bench of this Court has upheld a similar contention and issued direction to the Bihar State Sentence Remission Board (hereinafter referred to as the ‘Remission Board’) to take a decision with respect to the petitioner in terms of Rule 529. This Court has also been informed that the direction of the learned Co-ordinate Bench in case of Khelawan Yadav has been complied with by the respondents. Stand of the State-respondents. 11. A counter affidavit has been filed on behalf of the State-respondents. The statement of the petitioner with regard to his actual period spent in jail has been disputed to the extent that according to the respondents, the petitioner had completed only 6 years 4 months and 20 days of actual custody and during this period, he had earned a remission of 1 year 11 months and 15 days as on 21.08.2023. The contention on behalf of the respondents is that the petitioner has not served the mandatory 14 years of actual custody and 20 years custody with remission so his proposal cannot be sent to the Remission Board for consideration. 12. The contention on behalf of the respondents is that the petitioner has not served the mandatory 14 years of actual custody and 20 years custody with remission so his proposal cannot be sent to the Remission Board for consideration. 12. A specific statement has been made in paragraph ‘12’ of the counter affidavit that as soon as the petitioner completes his actual custody of 14 years and 20 years with remission, the proposal of the petitioner will be sent to the Remission Board for consideration. 13. While responding to the counter affidavit of the State-Respondents, the petitioner has filed a rejoinder wherein the submissions noted hereinabove on his behalf have been reiterated. A copy of the order of the learned Co-ordinate Bench of this Court passed in Cr.WJC No. 62 of 2021 has been annexed as Annexure ‘P/6’ to the rejoinder. 14. In course of hearing of the writ application, this Court has heard Mr. Vijay Kumar Singh, learned counsel for the petitioner, Mr. Suman Kumar Jha, learned AC to AAG-3 and granted leave to Mr. Prabhu Narayan Sharma, learned AC to AG to make submissions in order to assist this Court in arriving at a just and proper conclusion. The submissions made on behalf of the petitioner as well as the State are duly recorded in this Court’s order dated 12.08.2024. This Court has recorded the submissions of learned counsel for the petitioner hereinabove. The submissions of Mr. Prabhu Narayan Sharma, learned AC to AG recorded in paragraphs ‘7’ to ‘9’ of the order dated 12.08.2024 are being reproduced hereunder for a ready reference: – “7. At this stage, Mr. Prabhu Narayan Sharma, learned AC to AG has intervened and sought leave of this Court to address. Having been granted the leave to address the Court, Mr. Prabhu Narayan Sharma, learned AC to AG submits that on a bare perusal of Section 433A of the Code of Criminal Procedure (in short ‘Cr.PC’), it would appear that this provision applies notwithstanding anything contained in Section 432 Cr.PC. Having been granted the leave to address the Court, Mr. Prabhu Narayan Sharma, learned AC to AG submits that on a bare perusal of Section 433A of the Code of Criminal Procedure (in short ‘Cr.PC’), it would appear that this provision applies notwithstanding anything contained in Section 432 Cr.PC. According to Section 433A Cr.PC, 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 upon a person has been commuted under Section 433 Cr.PC into one of imprisonment for life, such person shall not be released from prison unless he has served at least 14 years of imprisonment. 8. Learned AC to AG submits that clause (iii) (gha) of the Notification No. 3106 dated 10 th December, 2002 cannot be interpreted in a manner so as to render Section 433A Cr.PC redundant in the eye of law. Learned counsel submits that the effect of construing sub-clause (gha) of clause (iii) of the Notification dated 10.12.2002 in the manner suggested by learned counsel for the petitioner would have a drastic effect inasmuch as a life convict who is guilty of commission of murder under Section 302 IPC or any other provision of the IPC (now ‘Bhartiya Nyaya Sanhita (BNS)’) would claim his release by virtue of his having become 65 years old and spent 7 years in incarceration. 9. Learned AC to AG submits that perhaps in the case of Khelawan Yadav, when the learned co-ordinate Bench was considering the said case, the State could not place before the Court Section 433A Cr.PC and in absence of any submission with regard to the said provision, the learned co-ordinate Bench was persuaded to direct the Remission Board to pass an order considering sub-clause (gha) of clause (iii) of the Notification dated 10.12.2002.” 15. In the subsequent hearing of the matter which took place on 23.08.2024, learned AC to AG has placed before this Court it’s judgment in the case of Ajit Kumar Mishra vs. the State of Bihar and others (Cr.WJC No. 1195 of 2021) reported in 2023 (4) PLJR 782 . It is submitted that in the said case, this Court has traced the history of making of the Jail Manual. Paragraphs ‘21’, ‘22’, ‘23’ and ‘24’ have been placed before this Court. 16. It is submitted that in the said case, this Court has traced the history of making of the Jail Manual. Paragraphs ‘21’, ‘22’, ‘23’ and ‘24’ have been placed before this Court. 16. It is submitted that in the case of Ram Khelawan Yadav, neither learned counsel for the petitioner nor learned counsel for the State placed before learned Co-ordinate Bench, the fact that Rule 529 in the earlier Jail Manual was no longer in existence. The learned Co-ordinate Bench proceeded taking the submissions of learned counsel for the petitioner sacrosanct because there was no opposition of the same by the State. The fact as existed on the date of judgment in the case of Ram Khelawan Yadav may be found from the discussions made by this Court in it’s judgment in the case of Ajit Kumar Mishra (supra). It is his submission that sub-clause (gha) of clause (iii) of the Notification dated 10th December, 2002 did not cover the case of the life convicts who were covered under Section 433-A of the Code of Criminal Procedure (in short CrPC) and any other interpretation would render Section 433-A CrPC as well as sub-clause (ka) of clause (iii) of the Notification dated 10.12.2002 redundant. In any case, according to him, when the Bihar Jail Manual, 2012 came into force, the Bihar Jail Manual 1925 stood superseded, therefore, Rule 529 of the Bihar Jail Manual, 1925 was wrongly relied upon by learned counsel for the petitioner in the case of Ram Khelawan Yadav. It is submitted that this writ application is premature and has been filed on a wrong notion of law. 17. Learned counsel further submits that the judgment of the learned Co-ordinate Bench in the case of Ram Khelawan Yadav may be taken as per incurium as the relevant statutory rule was not placed before the learned Co-ordinate Bench. Consideration 18. Having heard learned counsel for the petitioner and learned AC to learned Advocate General as well as learned AC to learned AAG-3 for the State of Bihar, this Court finds much substance in the submissions of learned counsel for the State. 19. To this Court, it appears that this writ application has been framed on the premise of sub-clause (gha) of clause (iii) of the Notification dated 10th December, 2002 by which the State Government substituted Rule 529 of the Bihar Jail Manual. 19. To this Court, it appears that this writ application has been framed on the premise of sub-clause (gha) of clause (iii) of the Notification dated 10th December, 2002 by which the State Government substituted Rule 529 of the Bihar Jail Manual. The Bihar Jail Manual, Rule 529 prior to its substitution reads as under: – “529. The Sentences of long-term prisoners including those sentenced to transportation for life, or for a definite term, can also be revised by Government at the recommendation of the Board of Visitors and the following orders have been issued by the Government on the subject: – (i) Long term prisoners are confined in the central jails at Buxar, Bhagalpur, Gaya and Hazaribagh and the Boards of Visitors of those jails only are empowered to make recommendation for the revision of sentences of prisoners. (ii) The Board of Visitors shall consider only such cases as are placed before it by the Superintendent of the jail, and the case of no prisoner shall be sent up by the Superintendent unless he has served half the period of his sentence in the case of a non-habitual prisoner and two-thirds of it in the case of a habitual prisoner. This period will include the remissions which the prisoner has earned, including the remissions granted in celebration of public events. But the cases of prisoners sentenced to transportation for life shall be placed by the Superintendent before the Board after they have served 11 years including remission earned-provided their crime was not of a calculated and deliberate nature and was not carried out with great brutality and their conduct in jail has been almost uniformly good. (iii) The Board shall meet once a year for the purpose of considering any case or cases that may be put before it by the Superintendent. Not less than three members of whom the District Officer and the Sessions Judge shall be two, must be present to form a quorum. (iv) Whenever the Superintendent is of opinion from the prisoner's behavior in jail that it is a case which should be considered by him, he shall not, less than six months before the meeting of the Board, write to the District Magistrate of the district in which the prisoner was convicted, for copies of judgments both of the original and appellate courts. He shall also write (in B.J. Form no. He shall also write (in B.J. Form no. 29) to the District Magistrate of the district in which the prisoner's home is situated for information regarding his antecedents and ask for his opinion whether there is any objection to the conditional release of the prisoner. On the receipt of the above information the Superintendent shall decide whether the case is one that should be placed before the Board of Visitors. It is not intended that a certain number of cases must necessarily come up for consideration at each meeting, if such cases do not on their merits exist. But when one or more cases are submitted for the consideration of the Board, the Superintendent shall, besides, the papers mentioned above, place before the Board his own opinion of the prisoner's conduct and fitness for release and that of the Medical Officer as to his physical and mental condition. (v) The Board is at liberty to ask the Superintendent or the Medical Officer any questions they may desire to put on any point and to interview the prisoner. In deciding each case, the Board shall bear in mind that the criterion of elemency is only indirectly involved. It is in no sense the intention that they should review the propriety of the original sentence as such. The grounds of action should be personal to the convict such as, his antecedents, his conduct in jail, and the probabilities of reformation if he is released. (vi) It is open to the Board either to send up the case for the consideration of Government or to refuse to do so, or to direct that the case shall be put up again at its next annual meeting. If they recommend that the prisoner should be released, they should give their reasons for that recommendation and state what condition or conditions should in their opinion, be attached to the release. All the papers connected with the case shall at the same time be forwarded by the Superintendent to Government through the Inspector- General. (vii) It is entirely within the discretion of the Government to accept or not the recommendation of the Board. Note. – (i) This rule also applies to prisoners sentenced by courts-martial. Note. All the papers connected with the case shall at the same time be forwarded by the Superintendent to Government through the Inspector- General. (vii) It is entirely within the discretion of the Government to accept or not the recommendation of the Board. Note. – (i) This rule also applies to prisoners sentenced by courts-martial. Note. – (ii) Long term prisoners are ordinarily confined in the central jails, but occasionally there may be prisoners in district jails as well, viz, convict officers, old men and men detained for reasons of health. Should any of them fulfil the conditions laid down in this rule and should the Superintendent, consider, in view of the prisoners antecedents; and conduct in jail, that there are possibilities of his reformation, he should transfer him to the central jail in consultation with the Superintendent of that jail at least six months before the date of meeting of the Board. Note. – (iii) In cases of conditional release of prisoners Bihar Jail form no. 106 shall be used. The form should be printed in triplicate-one copy to be given to the released convict, one copy with a copy of the judgment of the case to be sent to the District Magistrate concerned and the third to be retained in the jail from which the prisoner is released.” 20. By virtue of Notification dated 10.12.2002, Rule 529 of the Bihar Jail Manual stood substituted, therefore, it would be appropriate to extract the complete Notification hereunder for a ready reference” – “Home (Special) Department NOTIFICATION The 10th December, 2002 No.K/Kara-Bibidh-63/2001-3106-In exercise of powers conferred by Section 59 of the Prisons Act, 1894, the State Government makes the following amendments in the Bihar Jail Manual with immediate effect. – Amendment Rule 529 of the Bihar Jail Manual shall be substituted by the following: – “529 (i) Composition of the State Sentence Remission Board. – There shall be a Board known as “Bihar State Sentence Remission Board which shall consider cases of remission of the sentence awarded to a prisoner and recommend his premature release in appropriate cases. This Board shall be a permanent body and be constituted consisting of the following members: – (1) Home Secretary Chairman (2) Law Secretary Member (3) Director and Session Judge nominated by Patna High Court. (4) Director, Probation Services Member (5) I.G Police, nominated by D.G.P. Member (6) I.G Prisons, Member Secretary. This Board shall be a permanent body and be constituted consisting of the following members: – (1) Home Secretary Chairman (2) Law Secretary Member (3) Director and Session Judge nominated by Patna High Court. (4) Director, Probation Services Member (5) I.G Police, nominated by D.G.P. Member (6) I.G Prisons, Member Secretary. The recommendation of this Board shall be invalid merely by reason of any vacancy in the Board or the inability of any Member to attend the meeting of the Board. The meeting of the Board shall not, however, be held if the quorum is not present. The quorum of the Board shall be with four members including the Chairman. …............... (iv) Ineligibility for premature release. The following category of convicted prisoners undergoing life sentence may not be considered eligible premature release- (a) Prisoners convicted of the heinous offences such as rape, dacoity, terrorist crimes etc. (b) Prisoners who have been convicted for organised murdered in a premeditated manner and in an organised 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.” 21. The petitioner was convicted vide judgment dated 24.08.1990. In the case of State of Haryana and Others vs. Jagdish reported in (2010) 4 SCC 216 , Hon’ble Supreme Court held that the Government’s policy of pre-mature release as applicable on the date of conviction and sentencing shall govern the case of the prisoner. Paragraph ‘54’ of the judgment in the case of Jagdish (supra) reads as under: – “54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.” 22. In the case of Rajo @ Rajwa @ Rajendra Mandal vs. the State of Bihar and others reported as 2023 INSC 771 (Writ Petition (Criminal) No(s). 252/2023), the Hon’ble Supreme Court has taken note of the views expressed in the case of Jagdish wherein it has been observed that if a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof. The relevant paragraph of the said judgment reads as under: – “27. This court, on earlier occasion, had grappled with the situation of different remission policies/rules prevailing at different points of the convict's sentence- i.e., when the policy on the date of conviction, and on the date of consideration for premature release, are different. It has been held that the policy prevailing on the date of the conviction, would be applicable. However, in Jagdish (supra) it was also recognised that if a more liberal policy exists on the date of consideration, the benefit should be provided……..” 23. As regards the aforementioned Notification dated 10.12.2002, this Court finds that in the substituted Rule 529, under clause (iii), the eligibility for premature release have been laid down. Sub-clause (ka) thereunder specifically covers those cases which are affected by Section 433-A CrPC and it has been mentioned that every convict, male or female, who is facing life imprisonment and who are covered under Section 433-A shall be eligible for consideration for premature release on completion of actual period of 14 years without remission. Thus, it may be found that the cases covered under Section 433- A CrPC have been put in one category. So far as sub-clause (kha), (ga) and (gha) are concerned, those pertain to other category of prisoners who are serving sentence of life imprisonment. Thus, it may be found that the cases covered under Section 433- A CrPC have been put in one category. So far as sub-clause (kha), (ga) and (gha) are concerned, those pertain to other category of prisoners who are serving sentence of life imprisonment. Sub-clause (gha) talks of the convicts who are serving life sentence and have completed 65 years of age and have served sentence of 7 years with remission. Keeping in view the principles governing the interpretation of statute, this sub-clause (gha) cannot be interpreted in a manner so as to render sub-clause (ka) redundant. 24. At this stage, it would be important to take note of the relevant provisions of CrPC which are dealing with suspension, remission and commutation of sentences in Part E of Chapter XXXII CrPC. Section 432 CrPC deals with the power to suspend or to remit the sentence, Section 433 CrPC provides the power of the appropriate Government to commute the sentence of a person without consent of the said person and Section 433-A CrPC imposes restriction of powers of remission or commutation in certain cases. This Court would reproduce Sections 432, 433 and 433-A CrPC 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. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. (3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence. (4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will. (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with: Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and – (a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or (b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail. (6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property. (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. 433. Power to commute sentence. 433. Power to commute sentence. – The appropriate Government may, without the consent of the person sentenced, commute – (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. 1[433A. Restriction on 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 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.]” 25. A bare reading of Section 433-A would show that it starts with a non-obstante clause. This provisions makes it crystal clear that 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 served at least 14 years of sentence. In the present case, this Court is concerned with the first part of Section 433-A. This is not a case where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life. In the present case, the learned trial court imposed a sentence of imprisonment for life upon the petitioner for an offence committed under Section 302 IPC. Since Section 302 IPC is punishable with life imprisonment or death, the case is covered under Section 433-A first Part. To this Court, it appears that sub-clause (ka) of clause (iii) of the Notification dated 10.12.2002 is in consonance with Section 433-A CrPC. Since Section 302 IPC is punishable with life imprisonment or death, the case is covered under Section 433-A first Part. To this Court, it appears that sub-clause (ka) of clause (iii) of the Notification dated 10.12.2002 is in consonance with Section 433-A CrPC. This Court has, therefore, reasons to take a view that even sub-clause (gha) of clause (iii) of the Notification would not come to the rescue of a person who has been serving a life sentence for an offence of which death is one of the punishments, if he would be governed by the notification dated 10.12.2002. In no case, sub-clause (gha) of clause (iii) of the said Notification may be construed in a manner which would put it in the teeth of Section 433-A CrPC and will have an effect of rendering sub-clause (ka) of clause (iii) of the Notification dated 10.12.2002 redundant in the eye of law. The Bihar Prison Manual is a piece of Subordinate legislation. 26. This Court agrees with the submission of learned AC to AG for the State that in the case of Ram Khelawan Yadav, the State could not place before the learned Co-ordinate Bench, Section 433-A CrPC and in absence of any submission with regard to the said provision, the learned Co-ordinate Bench was persuaded to accept the contention of learned counsel for the petitioner with regard to sub-clause (gha) of clause (iii) of the Notification dated 10.12.2002. 27. There is yet another aspect of this matter which was not placed before the learned Co-ordinate Bench. While tracing the history of the framing of the Bihar Prison Manual and its substitution by the Manual of 2012, this Court had occasion to observe in the case of Ajit Kumar Mishra (supra) in paragraphs ‘21’ to ‘24’ as under: – “21. Having heard learned counsel for the petitioner and learned counsel for the State as also on perusal of the records, this Court finds that so far as the Remission Notification dated 10.12.2002 is concerned, it was issued in exercise of power under Section 59 of the Act of 1894 and by this notification, Rule 529 as existing at the relevant time in the Jail Manual came to be amended. At this stage, this Court finds that earlier “Rules for the Superintendence and Management of Jail in Bihar and Orissa” were published for the first time in the year 1927 (hereinafter referred to as ‘Jail Manual’ or ‘first Jail Manual’). The Introductory Chapter-I thereof mentions the Acts and Regulations which were governing the Establishment and Management of Jails. The Prisons Act, IX of 1894 as amended by Act XVII of 1925 is one of the Act mentioned under Rule-I. It appears that the Act of 1894 was enacted to amend the law relating to prisons in British India and to provide Rules for the regulation of such prisoners. It was passed by the Governor-General of India in Council and received the assent to the Governor -General on the 22nd March, 1894. Section 59 of the Act of 1894 conferred power upon the Governor- General in Council to make Rules consistent with the Act of 1894 for any part of British India and each Local Government was also authorized under Section 59 to make Rules with previous sanction of the Governor- General in Council. The Superintendent, Government Printing Bihar & Orissa, Gulzarbagh published the Jail Manual for the first time in the year 1927 as prescribed by the Governor of Bihar & Orissa. Volume I & II, First Edition of the First Jail Manual were published by the Superintendent, Government Printing, Bihar & Orissa. 22. Section 59 of the Act of 1894 was amended vide AO 1937, for the words “the Governor-Generalin- Council may for any part of British India, and such Local Government with the previous sanction of the Governor-General-in-Council may for the territories under its administration”, the words “the State Government may” were substituted. Volume II of the Bihar and Orissa Jail Manual contains a page saying “the Acts and Rules included in this Volume are printed as modified up to First April, 1926. This Court is recording this brief history of the Jail Manuals only to understand as to in which year actually the Bihar Jail Maunal /Jail Manual/ first Jail Manual was framed and published. Some incongruity has arisen with respect to year in which the Manual came into force because in the year 2012, in exercise of power under Section 59 of the Act of 1894 the State has framed a Jail Manual where a reference has been made to the Bihar Jail Manual 1925. Some incongruity has arisen with respect to year in which the Manual came into force because in the year 2012, in exercise of power under Section 59 of the Act of 1894 the State has framed a Jail Manual where a reference has been made to the Bihar Jail Manual 1925. The incongruity with respect to year may only be resolved with reference to the brief history which has been recorded hereinabove. 23. Before dealing with the amendments brought into the relevant rule governing the case of premature release, this Court would briefly take note of the settled law that grant of remission, commutation, pardon, reprieves or suspension of sentence is purely an executive function (see Gopal Vinayak Godse vs. State of Maharashtra [1961] 3 SCR 440; Maru Ram vs. Union of India [1981] 1 SCR 1196). It has been held by the Hon’ble Supreme Court that the executive power is traceable to Article 72 and 161 of the Constitution of India which is exercised by the President of India and Governor of the State respectively to grant pardons and to suspend or remit or commute sentence in certain cases. Section 433 Cr.P.C. confers a statutory power upon the appropriate Government to commute (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. 24. Section 433-A imposes a restriction on powers of remission or commutation in certain cases. This provision has been inserted by Act 45 of 1978 w.e.f. 18.12.1978. Since, in this judgment, this Court is going to deal with the categories of the convict prisoners who have been brought under the purview of Section 433-A CrPC, it is worth quoting the provision hereunder for a read reference: – “1[433-A. Restriction on powers of remission or commutation in certain cases. Since, in this judgment, this Court is going to deal with the categories of the convict prisoners who have been brought under the purview of Section 433-A CrPC, it is worth quoting the provision hereunder for a read reference: – “1[433-A. Restriction on 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 punishment 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 served at least fourteen years of imprisonment.]” 28. In the case of Ajit Kumar Mishra (supra), the issue which had cropped up before this Court was with respect to the applicability of the substituted Rule 529 of the then Bihar Prison Manual in case of the said petitioner. He was convicted in connection with Bharampura P.S. Case No. 20 of 2003, Sessions Trial No. 183 of 2003. Since his conviction was of a date after the Notification dated 10.12.2002, one of the contentions which this Court had occasion to deal with was with regard to the applicability of the Notification. Referring to it’s earlier decisions in the case of Surendra Mahto vs. State of Bihar reported in 2021 (4) PLJR 393 , this Court reiterated that the Notification dated 10.12.2002 was not implemented prior to 25.09.2007 and in all cases prior to the said date, the life convicts were released by the Jail Superintendents themselves after calculating 14 years of actual custody and 20 years with remission. 29. In the case of Ajit Kumar Mishra (supra), this Court found that the categories of convicts covered under Section 433-A CrPC have been substituted vide Memo No. 3194 dated 26.05.2016. 30. This Court has taken note of the Rule 481 of the 2012 Manual (as amended up-to-date). Paragraph ‘31’ of the judgment in the case of Ajit Kumar Mishra (supra) is quoted hereunder for a ready reference: – “31. Categories of convicts covered under Section 433-A CrPC have been substituted vide Amendment Notification No.3194 dated 26.05.2016. 30. This Court has taken note of the Rule 481 of the 2012 Manual (as amended up-to-date). Paragraph ‘31’ of the judgment in the case of Ajit Kumar Mishra (supra) is quoted hereunder for a ready reference: – “31. Categories of convicts covered under Section 433-A CrPC have been substituted vide Amendment Notification No.3194 dated 26.05.2016. For the purpose of this case, in order to appreciate the changes brought about by the Notification dated 26.05.2016 in the exception list, this Court deems it just and proper to reproduce Rule 481 of the Manual of 2012 hereunder: – “481. The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the Board: i. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A CrPC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions. 2[The following categories of convicted prisoner covered under Section 433A Cr.P.C. undergoing life sentence would not be entitled to be considered for premature release even after undergoing imprisonment for 20 years including remission:] 1[(a) Such convicts who have been imprisoned for life for rape, rape with murder, dacoity with murder, murder involving offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in terrorist incident, murder in smuggling operation, 2[xxx]] (b) Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity. (c) Convicts whose death sentence has been commuted to life imprisonment. ii. All other convicted male prisoners not covered by section 433A Cr.PC 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 but only after completion of 10 years actual imprisonment i.e. without remissions. iii. ii. All other convicted male prisoners not covered by section 433A Cr.PC 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 but only after completion of 10 years actual imprisonment i.e. without remissions. iii. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions. 3[(iv) In such cases in which life sentence has been awarded by specifying that the convict shall undergo life sentence till the end of his life without remission or commutation, benefit of remission or commutation shall not be given to convict.] 3[(v) In such cases in which life sentence has been awarded by specifying that the convict shall not be released by granting remission or commutation till he completes a fixed term of 20 years or 25 years or like, remission or commutation shall not be granted to a convict until he completes the fixed term as prescribed in the sentence.]” 31. It may be noticed at this stage that under Rule 481 of the Manual of 2012, there is no similar provision like sub-clause (gha) of clause (iii) of the Notification dated 10.12.2002. In other words, Rule 529 which was substituted by Notification dated 10.12.2002 being a part of the earlier Jail Manual which stood superseded on coming into force of the Manual of 2012, was no longer an eligibility criteria for seeking premature release. 32. The ambiguity,if any, in the said sub-clause(gha) of clause (iii) of the notification dated 10.12.2002 is not therein Rule 481 of the Manual of 2012. 33. The petitioner has sought relief on the ground that a learned coordinate Bench of this Court has taken a view that the case of Ram Khelawan Yadav was covered under sub-clause (gha) of clause (iii) of the notification dated 10.12.2002 by which Rule 529 of the then Bihar Jail Manual was substituted, therefore, a similar view be taken by this Court and consequent upon that a direction be issued to the Board to consider the case of the present petitioner for pre-mature release. 34. 34. To this Court, it appears that the submission of learned counsel for the petitioner cannot be accepted for the following reasons: – (i) If the petitioner was convicted by the learned trial court on 24.08.1990 then in view of the judgments of the Hon’ble Supreme Court his case for pre-mature release may be considered either in terms of the policy existing on the date of conviction or on the date of consideration, whichever is beneficial to him. In this view of the matter the policy which came into existence by virtue of the substitution of Rule 529 of the Bihar Prison Manual on 10.12.2002 shall not govern the case of the petitioner. (ii) In the case of Ram Khelawan Yadav, although the conviction was on 24.03.1990 and the erstwhile Bihar Jail Manual had been already superseded by Bihar Jail Manual, 2012 in which there was no provision like sub-clause (gha) of Clause (iii) of Rule 4 of the Amendment Notification dated 10.12.2002 (substituting Rule 529 of the erstwhile Jail Manual), the learned co-ordinate Bench was not informed of this development. A reading of the order of learned co-ordinate Bench in Ram Khelawan Yadav would show that there was neither any submission on the policy existing on the date of conviction nor about the policy as on the date of consideration and which one was beneficial for the prisoner. There was no submission that the policy under which direction was being sought had already been superseded way back in the year 2012. (iii) Assuming for argument sake that the policy which came into existence by notification dated 10.12.2002 would be applicable in case of the petitioner, by no stretch of imagination it may be contended that in a case covered by Section 433A Cr.PC a prisoner may get pre-mature release if has completed 65 years of age and has remained in incarceration for seven years with remission. Any attempt to interpret sub-clause (gha) of Clause (iii) under Rule 4 of the notification dated 10.12.2002 will have an effect of nullifying the mandate of Section 433A Cr.PC. It would also render sub-clause (‘ka’) of Clause (iii) under Rule 4 of the said notification otiose. 35. For the reasons discussed hereinabove, I regret my inability to agree with the views expressed by the learned coordinate Bench of this Court. It would also render sub-clause (‘ka’) of Clause (iii) under Rule 4 of the said notification otiose. 35. For the reasons discussed hereinabove, I regret my inability to agree with the views expressed by the learned coordinate Bench of this Court. It has, though been contended before this Court that the judgment in the case of Ram Khelawan Yadav would be per incurium because Section 433A Cr.P.C. and the subsequent supersession of the erstwhile Bihar Jail Manual by the Manual of 2012 were not brought to the notice of the learned coordinate Bench of this Court, this Court is of the view that instead of going into that issue of declaring the learned coordinate Bench judgment per incurium, it would be well within the judicial discipline and spirit of justice that the matter be referred to a Division Bench of this Hon’ble Court for answering the following issues: – (i) Whether the sub-clause (gha) of clause (iii) of the notification dated 10.12.2002 issued by the Home (Special) Department, Government of Bihar by which Rule 529 of the then Bihar Jail Manual was substituted would cover the case of life convict who is serving sentence for committing an offence in which death is one of the punishments. (ii) Whether a life convict whose case is covered under Section 433A Cr.P.C. may be granted pre-mature release on any ground whatsoever provided by way of a rule made by the State Government in form of a subordinate piece of legislation. (iii) Whether the petitioner may be allowed to raise his claim for pre-mature release on the basis of the judgment of the learned coordinate Bench of this Court in the case of Ram Khelawan Yadav considering the date of his conviction, even as his case is found covered under Section 433A Cr.P.C. 36. Let the records be placed before the Hon’ble Chief Justice for appropriate order.