IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.1106 of 2010 BINDESHWAR SINGH, SON OF RAM BIHARI SINGH, RESIDENT OF VILLAGE – BARAUNA, P.S. KARJA, DISTRICT – MUZAFFARPUR. …….. PETITIONER. Versus 1. THE STATE OF BIHAR THROUGHT THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 2. THE CHIEF SECRETARY, GOVERNMENT OF BIHAR, PATNA. 3. THE HOME (SPECIAL) SECRETARY, GOVERNMENT OF BIHAR, PATNA. 4. THE LAW SECRETARY, GOVERNMENT OF BIHAR, PATNA. 5. THE INSPECTOR GENERAL (PRISON), BIHAR, PATNA. 6. THE ASSISTANT INSPECTOR GENERAL (PRISON), BIHAR, PATNA. 7. THE SUPERINTENDENT OF JAIL, KHUDI RAM BOSE CENTRAL JAIL, MUZAFFARPUR. ……… RESPONDENTS. FOR THE PETITIONER : - MR. VIJAY KUMAR SINGH, ADVOCATE MR. PANKAJ KUMAR SINGH, ADVOCATE FOR THE STATE : - MR. TEJ BAHADUR SINGH, AAG 7. MR. RAM KISHORE SINGH, ADVOCATE ----------- 09/ 25.01.2011 Heard counsel for the petitioner and the counsel appearing for the State. Counter affidavit has also been filed on behalf of the State in which the stand of the State Remission Board has been discussed, which is in negative in the light of present policy of the State Govt. relating to remission i.e. dated 10.12.2002. Petitioner has prayed in the writ application for quashing of the order dated 04.01.2010 passed by Remission Board contained in letter no. 1839 dated 05.05.2010, whereby the petitioner has been informed by the Assistant Inspector General (Prison), Bihar, Patna that the proposal for pre-mature release of the petitioner has 2 been rejected by the Remission Board. Further prayer of the petitioner is for directing the respondents to consider his case for pre-mature release since he has already completed 20 years of custody with remission and more than 14 years without remission. Petitioner was convicted in Sessions Trial No. 04 of 1984 by 3rd Additional Sessions Judge, Muzaffarpur and by judgment and order dated 26.04.1985 he was convicted for commission of an offence under Section 396 of the IPC. Petitioner’s conviction was affirmed by the High Court as well as by the Supreme Court. He is in custody since the date of his conviction. A recommendation has been made by the Jail Superintendent calculating all remissions applicable in the case of the petitioner for his pre-mature release, but when it was placed before the Remission Board, it was rejected, considering the fact that the petitioner has been convicted under Section 396 of the IPC. Under the new remission policy of the State Govt. contained in notification dated 10.12.2002 there are eligibility criteria as well as the criteria which disqualifies a convict for availing the benefit of remission. In eligibility criteria relates to cases in which an accused is undergoing 3 life imprisonment for his conviction relating to rape, dacoity, terrorist activities etc. Cases in which the accused has been convicted for premeditated professional offence, such persons who are habitual offenders and indulge in commission of murder or such accused persons are professional killers and indulges in such offence for on payment on being hired or convicts, who have killed the government employees on duty. Since the petitioner’s conviction was under Section 396 of the IPC, recommendation made in his favour for pre-mature release was rejected. Counsel for the petitioner submits that the Remission Board while considering the case for remission of the petitioner has overlooked this aspect of the matter that 26.4.1985, i.e. the date on which judgment of conviction passed against the petitioner, was the date relevant for consideration of his pre-mature release. At that time the Remission matters of convicts was being considered by the State Govt. on the basis of State of Bihar (Prison) letter no. 1647/Prison dated 24.02.1984. Under this letter only requirement was that the accused undergoing life imprisonment or whose sentence of 4 death, has been converted into life imprisonment, if in custody, their cases for remission will be considered, only when they have remained in custody for 14 years without remission and 20 years with remission. No other criteria was laid down and there was no eligibility/ineligibility criteria as mentioned in the 2002 remission policy of the State Govt. In case of petitioner remission policy of 1984 of the State Govt. was applicable, but his case has been considered as per the policy of the State Govt. of the year, 2002. Counsel for the petitioner has placed reliance on a decision of the Supreme Court reported in 2010(4) Supreme Court Cases 216 (State of Haryana & Others Vs. Jagdish). In this decision it has been held that policy existing on the date of conviction of accused has to be considered while considering the case of remission of the convict. In case of pre-mature release the convict should be given benefit of the policy decision of the State Govt. in vogue, on the date of his conviction by the trial court. We find that the ‘Remission Board’ of the State is not aware of the latest decision of the Apex Court, which is the law of the land and it must be adhered to by the State Remission Board. The petitioner was convicted in the year, 5 1985, as such in his case the remission policy of the State Govt. as mentioned in letter no. 1647 dated 24.2.1984 has application. He has already remained in custody for more than 20 years with remission, as such he is entitled for his pre-mature release. Accordingly, the order passed by the State Remission Board is quashed. The State Remission Board is directed to pass an order in favour of the petitioner within one month from the date of communication/ production of this order. This application is allowed. DKS/ (Mridula Mishra, J.) (Dharnidhar Jha, J.)