IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1090 of 2009 ANITA DEVI WIFE OF KRISHNA NANDAN SHARMA, RESIDENT OF VILLAGE PARASIBIGHA, P.S. PARASBIGHA, DISTRICT JEHANABAD Versus STATE OF BIHAR & ORS with CR. WJC No.476 of 2010 RAMANUJ SHARMA SON OF BASUDEO SHARMA, RESIDENT OF VILLAGE DOHIA, P.S. DOHIA (JEHANABAD) DISTRICT JEHANABAD Versus STATE OF BIHAR & ORS ----------- For the Petitioners : Mr. Rajiv Kumar Verma, Sr. Advocate Mr.Shivendra Prasad,Advocate, Mr. Anil Kumar Singh, Advocate For the State : SC 19 O R D E R 7 12.10.2010 Both these writ applications are taken up together as issues involved are similar. 2. In Cr.W.J.C.No.1090 of 2009, the petitioner prays for release of her husband Krishna Nandan Sharma who has put in about 21 years of imprisonment including 14 years of actual imprisonment after conviction and more than five years of remissions earned. 3. In Cr.W.J.C.No.476 of 2010, the petitioner Ramanuj Sharma has prayed for his release from imprisonment as he has already under gone more than 21 years of total imprisonment including 15 years 2 months of actual imprisonment and remissions earned to the tune of 5 years 8 months. 4. The petitioners’ case is that their plea for release ought to have been considered as per the short sentencing policy of the Government dated 21.1.1984 made under sections 432 and 433 Cr.P.C. which was in existence on the date of their conviction by trial court on 31.5.1984. The 1984 policy has been annexed both in Cr.W.J.C.No.1090 of 2009 as well as Cr.W.J.C.No.476 of 2010 as Annexures- 1 & 4 respectively. 2 According to the 1984 policy, a convict who is undergoing imprisonment for life for an offence, in which death is also one of the punishments, would be released after completing 20 years of total imprisonment with remissions including 14 years of actual imprisonment. 5. The State Government, however, considered the case of premature release of these convicts on basis of subsequent policy of the government contained in memo no.2139 dated 29.6.2007 of the Law Department, Government of Bihar addressed to the I.G. Prison, Bihar contained in Annexure-D to the Counter affidavit in Cr.W.J.C.No.476 of 2010, as it was of the view that policy prevalent on date of consideration of premature release would be applicable. The Home Prison, Government of Bihar also circulated the aforesaid scheme to all the District Magistrates and the Jail Superintendent vide memo no.4125 dated 2.7.2007 contained in Annexure-E to counter affidavit in Cr.W.J.C.No.476 of 2010. 6. According to new policy of the year 2007, the decision of premature release of life convict would now be considered either by the State Government or by the State Remission Board constituted by it. The new policy superseded and repealed Clause 2 of the earlier short sentencing policy dated 21.1.1984 (Annexure-4 of Cr.W.J.C.No.476/10) which provided for release of a convict, under going life imprisonment for an offence for which death is one of the imprisonments on completion of 20 years of imprisonment with remissions earned including 14 years of actual imprisonment. Clause 2 of 1984 policy was also applicable to a convict whose sentence has been reduced from death to life imprisonment. 3 7. The State Government has laid new guide lines for release of the prisoner by making an amendment in Rule 529 of the Bihar Jail Manual in exercise of power conferred under section 59 of the Prisons Act, 1894 notified in Bihar Gazette on 10.12.2002. A copy of the Gazette notification, amending Rule 529 of the Bihar Jail Manual has been annexed as Annexure-A to the counter affidavit. According to substituted Rule 529 of Bihar Jail Manual, a life convict involved in organized or heinous crime may not be entitled to pre-mature release after completion of 20 years of actual imprisonment in a given case, subject to certain exceptions. It would be quite relevant to state that the aforesaid condition did not form part of 1984 policy. 8. The issue in short is whether the Government policy of 1984 purportedly issued under sections 432 and 433 Cr.P.C. for premature release of life convict prevalent on the date of conviction would govern premature release of petitioners or whether the subsequent policy which has been introduced in the year 2007. In Cr.W.J.C.No.1090 of 2009, the petitioner Anita Devi prays for release of her husband Krishna Nandan Sharma. In Cr.W.J.C.No.476 of 2010, the convict Ramanuj Sharma is petitioner himself. Both Krishna Nandan Sharma and Ramanuj Sharma have been convicted in common case namely Jehanabad P.S. Case No.92 of 1980 under sections 302/34 bearing S.T.No.134 of 1980. In both the cases, prayer has been made for premature release of Krishna Nandan Sharma and Ramanuj Sharma as they have put in more than 20 years of total imprisonment with remissions earned including 14 years of actual imprisonment in terms of remission/short sentencing policy of 21.1.1984 of Government, which was in vogue on date of their conviction on 4 31.5.1984. 9. Before I deal with the issue in question, it would be relevant to notice the relevant facts of the two cases in some brief. 10. The petitioner in Cr.W.J.C.No.1090 of 2009 is the wife of the life convict Krishna Nandan Sharma, who is under going incarceration in Jehanabad P.S. Case No.92 of 1980 having been convicted for life imprisonment in S.T. No.34 of 1980 under section 302/34 of the Penal Code, which sentence remained unaltered in appeal. The custody period of Krishna Nandan Sharma is as follows: 31.5.1984 till 1.9.1988, on which date he was released on bail during the pendency of the appeal. After dismissal of appeal, he was again taken into custody on 1.6.1998 and since then he is in custody. Thus he remained in actual imprisonment for more than 16 years apart from more than 5 ½ years of remissions earned. 11. The State Government in paragraph 7 of the counter affidavit admits that Krishna Nandan Sharma has completed 14 years 13 days of actual imprisonment on 15.1.2008 itself. The aforesaid fact would appear from Annexure-B, which is a letter issued by the Superintendent, Adarsh Central Jail, Beaur. The State also admits that by 18.1.2008, Krishna Nandan Sharma had also earned remissions of 3 years 4 months 17 days. As per the State version itself, Krishna Nandan Sharma has undergone 17 years 5 months of total imprisonment on 18.1.2008 including 14 years and 13 days of actual imprisonment as well as 3 years 4 months 17days of remissions earned. Thus, as per State calculations itself Krishna Nandan Sharma by now e.g. October, 2010 would be completing more than 16 years 9 months of actual imprisonment besides probable 5 remissions of 4 years and odd totaling about 21 years. The facts relating to imprisonment is not in dispute. The State cannot dispute that Krishna Nandan Sharma had already undergone more than total imprisonment of 20 years, including 14 years of actual imprisonment as visualized under short sentencing scheme of 1984. 12. The petitioner Ramanuj Sharma in Cr.W.J.C.No.476 of 2010 like Krishna Nandan Sharma is also an accused in Jehanabad P.S. Case No.92 of 1980. He was convicted by the 2nd Additional Sessions Judge, Gaya vide judgment and order dated 31.5.1984 and awarded 10 years of sentence under sections 302/149 of the Penal Code. As per prosecution case, about 250-300 miscreants, all armed with guns, rifles and deadly weapons attacked village Parasbigha in the midnight and resorted to indiscriminate firing thereby killing 13 persons and injuring 6 persons. In the process many huts and cattles were burnt. The main dispute related to putting a ridge on the Gair Mazura land in the village. 13. The petitioner Ramanuj Sharma preferred an appeal against order of conviction before this court vide Cr.Appeal No.484. By order dated 3.7.1986, the period of sentence was enhanced to life imprisonment and the appeal was dismissed. 14. The petitioner submits that it would appear from the report of the Superintendent, Central Jail, Gaya that he has put in almost 21 years of total imprisonment. He submits that he had also undergone 11 months 14 days of imprisonment as under trial prisoner, which has not been counted. After conviction on 31.5.1984, he has put in 13 years 7 months 13 days, by 18.12.2009 itself. Thus the total actual imprisonment comes to 11 months 4 days plus 13 years 7 months 13 days = 14 years 6 months 6 27 days adding pre trial imprisonment of 11 months 14 days. Thus, the petitioner had put in more than 14 years 6 months 27 days of actual imprisonment till 18.12.2009. As on date (October, 2010) the petitioner Ramanuj Sharma has undergone 15 years 4 months of actual imprisonment apart from remissions earned of about 6 years. The State does not controvert that the petitioner by this time has put more than 20 years of total imprisonment including 14 years and odd of actual imprisonment, besides remission earned of 6 years and odd. It would appear from the counter affidavit filed on behalf of the State that the State Sentence Remission Board had rejected the proposal of pre-mature release of Krishna Nandan Sharma, the husband of the petitioner Anita Devi in Cr.W.J.C.No.1090 of 2009. The rejection order was communicated to Krishna Nandan Sharma by letter no.3573 dated 15.9.2009. Similarly the plea of the petitioner Ramanuj Sharma was too rejected by the Bihar State Remission Board in its proceeding dated 9.4.2010. The State has rejected the plea of their release in view of subsequent policy of short sentencing of premature release contained in memo no.2139 dated 29.6.2007 of the Law Department (Annexure- D to counter affidavit) which repealed Clause 2 of 1984 policy. The State counsel submits that as per new policy, which has come into effect in July, 2007, it is only the Government or the State Remission Board which would be competent to consider the pre-mature release of life convict which was earlier done by Jail Superintendent. The pre-mature release of life convict as such would no more be guided by Short Sentencing Policy of the Government dated 21.1.1984 (Anexure-4 in Cr.W.J.C. No. 476 of 2010). 7 14. The State counsel further submitted that as per substituted Rule 529 of the Bihar Jail Manual, in cases of heinous or organized crime, the State Government or the State Remission Board may not release the life convict in which death is also punishment, on the ground that one has completed 20 years of imprisonment including 14 years of actual imprisonment. 15. Learned State counsel contends that life imprisonment would mean imprisonment for the whole life subject to the power of the government to remit or commute the sentence under sections 432 or 433 Cr.P.C. In support of his submissions, he refers to decisions of the Hon’ble Apex Court in the case of Gopal Vinayak Godse Vs The State of Maharashtra & Ors, reported in A.I.R. 1961 SC 600; State of Madhya Pradesh Vs Ratan Singh, A.I.R. 1976 SC 1552 and Swamy Shraddananda Vs. State of Karnataka, reported in (2008)13 SCC 767. Earlier in accordance with the policy dated 21.1.1984, the Jail Superintendent himself used to release the life convicts after completion of 20 years with 14 years of actual confinement. This system prevailed till June 2007, when it was subsequently changed by new policy. The State submits that it would appear from proceedings of State Sentence Remission Board dated 9.4.2010 contained in Annexure-B para-1( ) of counter affidavit filed in Cr.W.J.C.No476 of 2010 that two co-life convicts of the case were released prior to coming of new policy dated 29.7.2007 (Annexure-D). 16. Mr. Rajiv Kumar Verma, learned Senior counsel who made the leading arguments on behalf of petitioners submits that it is the policy existing on the date of conviction of the accused, which would govern 8 pre-mature of release of the convict and not the policy existing on the date of consideration of his case by appropriate authority. He submits that 1984 policy, which was in existence on the date of conviction would override 2007 policy contained in Annexures D & E of counter affidavit appended to Cr.W.J.C.No.476/2010.He submits that while considering the case of pre-mature release of prisoners, the policy which would lean in favour of the convict should be applied. In support of his submissions, the petitioners has relied upon the decision of the Apex Court in the case of State Haryana & Ors Vs Jagdish, reported in (2010)4 SCC 216 and State of U.P. & another Vs Barati, reported in 2002(2) PCCR 125 (SC). In State of U.P.(supra) the State authorities challenged the order passed by the Division Bench of the High Court whereby State Government was directed to release the respondent Barati from jail “forthwith after necessary formalities in accordance with law unless wanted in other case”. The respondent Barati was convicted under section 302 of the Indian Penal Code and sentenced to life imprisonment on 21.2.1981. He applied for premature release as he has served more than 14 years in terms of section 433A Cr.P.C. The release was recommended by the Advisory Board as well as the Probation Officer. However, as the State Government did not release him, he moved the High Court by way of a writ petition. The High Court, as stated above, directed for his release. It appears that pursuant to the aforesaid order of the High Court Barati was released. The aforesaid order of the High Court was not interfered with by the Hon’ble Apex Court. 17. The State does not dispute that one Nagendra Sharma and Moiddin Mian who too were convicted in the instant case has already been 9 released after completing 20 years of imprisonment including 14 years of actual imprisonment. 18. In order to appreciate the issue involved in this case it would be necessary to notice sections 432, 433 and 433A of Cr.P.C. Section 432 Cr.P.C. confers power on an appropriate government to suspend the execution of a sentence or remit the whole or any part of the punishment to which one has been sentenced. 19. Section 433 Cr.P.C. confers power on the appropriate government to commute sentence namely a sentence of death, for any other punishment provided by the Indian Penal Code, a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine, a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or for fine, a sentence of simple imprisonment, for fine. 20. Section 433A Cr.P.C. was inserted by the Code of Criminal Procedure (Amendment)Act, 1978 (45 of 1978) restricting the power conferred upon the competent authority under sections 431 and 432 Cr.P.C. which reads as follows: “433(A) – 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 sentence of death imposed on a person by law or where 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”. 21. The State Government in conformity with section 433A Cr.P.C. 10 issued notification inherently under sections 432 and 433 Cr.P.C. through the Law Department contained in letter no.03/81-550 dated 21.1.1984 introducing a scheme for short sentencing the term of life imprisonment laying down as follows: (i) the period spent in jail during inquiry, investigation and trial would not be set off against the sentence of life imprisonment awarded to a convict; (ii) the life convicts convicted of an offence for which one of the sentences is death or the life convicts serving the life sentence after commutation of death sentence, shall be set free from the jail only (a) If he completes 14 years of actual physical incarceration (b) total period of his actual incarceration and remission earned is 20 years. 22. It is relevant to point out that first clause of notification dated 21.1.1984 not allowing setting off the period spent in jail under section 428 Cr.P.C. as under trial prisoner (before conviction) was withdrawn by the government vide notification no.3/81-3115 dated 25.5.1985 (Annexure-4A) in view of the Constitution Bench judgment of the Hon’ble Apex Court dated 16.4.1985 in case of Bhagirath Vs Delhi Administration bearing Criminal Appeal No.754 of 1983 and Rakesh Kaushik Vs Delhi Administration in Criminal Appeal No.1266 of 1982. 23. It appears that by letter no.2989 dated 29.6.2007 of the Law Department, Government of Bihar, a new policy of short sentencing the period of life imprisonment of a convict was introduced repealing paragraph/clause no.2 of the earlier policy dated 21.1.1984 issued by the Law Department, wherein, hence onwards the cases for premature release of life convicts would be considered by the State or State 11 Sentence Remission Board. 24. The Scheme contained in letter no.2939 dated 29.6.2007 issued by the Law Department is prospective in its effect and application. The scheme cannot be applied retrospectively as there is no implied intent of retrospectivity in its implementation. It is well settled that a new Rule/Policy/Scheme/Circular would apply prospectively unless contrary intention appears from the provision or the policy itself. The deletion of Clause 2 of old policy on 21.1.1984 lifts the mandatory obligation to release the life convict after 20 years of imprisonment inclusive of 14 years of actual imprisonment, in heinous or organized cases, in which death is also one of the punishment by virtue of 2007 policy. 25. As stated above, as per Clause 2 of 1984 policy, a life convict convicted of an offence for which one of the sentences is also death or a life convict serving the life sentence after commutation of death sentence would be set free from the jail after completion of 20 years of total imprisonment with remissions earned including 14 years of actual imprisonment only. 26. The new short sentencing policy of Government of the year 2007 repeals Clause 2 of 1984 policy which earlier favoured release of life convict of an offence in which death is also one of the possible sentence after completion of 20 years of total imprisonment including 14 years of actual imprisonment. 27. It is within the jurisdiction of the appropriate Government to frame short sentencing or remission policies under sections 432 or 433 Cr.P.C. The State Government was within its right to frame 2007 repealing Clause 2 of the 1984 policy. However, the very wordings and 12 intent of the policy would show that the same has not been given retrospective effect and thus it would apply prospectively. 28. The issue is whether the 21.1.1984 short sentencing policy which was existing on the date of conviction on 31.5.1984 would be applicable in case of petitioners for their premature release or the 2007 policy which is in existence on the date of consideration of such release. The State Government has rejected their representations for pre-mature release applying 2007 policy. According to State Government, the policy which is in existence on the date of consideration of pre-mature release and the not the one which was prevalent on the date of conviction would apply. 29. A similar issue came up for consideration before a larger Bench in the case of State of Haryana Vs Jagdish, reported in (2010)4 SCC 216 upon reference made by learned two Judges Bench noticing divergent views expressed in case of State of Haryana Vs Balwant, reported in (1997) 7 SCC 355 on the one hand, and in the State of Haryana Vs Mohender Singh, reported in (2007) 13 SCC 606 and State of Haryana Vs Bhup Singh, reported in (2009) 2 SCC 268. The main issue involved in the case was, whether the policy which was in existence on the date of conviction would be applicable while considering the case of pre-mature release or the policy, which is in existence on the date of consideration of the case of pre-mature release. The Apex Court formulated the issue as follows in para-4 of the judgment, which reads as under: “4. The question that has been posed before us is as to whether the policy which makes a provision for remission of sentence should be that which was existing on the date of the conviction of the accused or should it be the policy that exists on the date 13 of consideration of his case for premature release by the appropriate authority”? 30. In the said case (State of Haryana Vs Jagdish) the Apex Court noticed that Punjab and Haryana High Court directed the State Government to grant clemency as per policy prevailing on the date of conviction to the convict. The respondent was convicted and sentenced to life imprisonment vide judgment and order dated 20.5.1999 under sections 302, 148 and 149 of the Penal Code of trial court and the policy which was in existence at that point of time was dated 4.2.1993. The respondent Jagdish who had served more than ten years imprisonment, moved the High Court as in spite of having under gone the sentence as per the aforesaid policy, his case for pre-mature release was not being considered in view of new policy of short sentencing introduced on 13.8.2008 under sub-section (1) of section 432 read with section 433 Cr.P.C. which in superseded of all earlier policies. 31. The Apex Court after considering several decisions including that of Gopal Vinayak Godse Vs State of Maharashtra, reported in 1961 SC 600, Swamy Shraddananda Vs State of Karnataka, reported in (2008) 13 SCC 767, Ramraj Vs State of Chhattisgarh, reported in (2010) 1 SCC 573 and Maru Ram Vs Union of India, reported in (1981) 1 SCC 107 held that sentence of life imprisonment is subject to commutation or remission of sentence by competent authority under sections 432 and 433 Cr.P.C. etc., as well as policy of grant of clemency/pardon under Articles 161 and 162 by Governor of State and President of India. The Apex Court in paragraph 18 of the judgment observed that in the case of Swamy Shraddananda, the Apex Court had passed the order that the 14 appellant would not be released from prison till the rest of his life, as such punishment was considered necessary because the Apex Court substituted the death sentence with imprisonment for life in the facts of the case. 32. In paragraph 50 of the judgment the Apex Court held that rules framed under 1894 Prison Act and Punjab Jail Manual are statutory rules and not merely executive instructions. Therefore, a lifer has a right to get his case considered within the parameters laid down therein. 33. The Apex Court further observed that a convict at least has a human element of expectation that he would have remission as per the guide lines on the date of his conviction for consideration of his pre- mature release. The Apex Court held that High Court was absolutely justified in arriving at the conclusion that the case of the respondent convict was to be considered on the strength of policy existing on the date of his conviction. The Apex Court further observed that a policy which would lean in favour of a lifer should be adopted. It would be relevant to quote paragraph 54 of the judgment which 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 to 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 15 which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration