IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.933 of 2010 ANIL KUMAR Versus STATE OF BIHAR & ORS ----------- For the Petitioner : M/s Ashwini Kumar Singh, Sr. Advocate Pankaj Kumar Singh, Awadhesh Kumar, Advocates For the State : Mr. Prabhat Kumar Singh, S.C. XXI --------- 4/ 29.10.2010 Heard learned counsel for the parties. The petitioner was an accused in Khizarsarai P.S. Case no. 76 of 1988 for offence under section 396 of IPC along with nineteen accused persons who were put on trial in S.T. No. 140/1991 / 611/1989. Out of nineteen accused persons, some were acquitted but, so far the petitioner is concerned, he along with nine other persons, was convicted under section 396 of the IPC vide order dated 29.2.1992 passed by the 10th Additional Sessions Judge, Gaya. The appeal preferred by the petitioner before the High Court and the SLP before the Supreme Court were dismissed affirming the order of conviction passed by 10th Additional Sessions Judge, Gaya. This application has been filed by the petitioner for issuing a direction to the respondent 2 authorities of the state to consider his case for premature release giving benefit of remission as he has remained in custody for more than sixteen years and if remission is given, then more than twenty years. Despite this fact, the case of the petitioner is not being considered for release by the respondent authorities when the case of other nine accused persons who were also convicted with him, have already been considered and they have been released giving benefit of remission on different dates in the years 2003, 2004 and 2005. The case which has been made out by the petitioner for his premature release giving benefit of remission, on the ground of discrimination stating that the respondent authorities have adopted a policy of pick and choose for giving similar benefit to the convicts of same Sessions Trial, convicted for the same offences. The petitioner and nine other persons were convicted under section 396 of the IPC in the year 1992. At the relevant time, the State Government used to consider the case of premature release giving benefit of remission to the convicts whose death sentence has been commuted into life sentence or who has been 3 awarded life sentence in the light of its policy decision in 1984, contained in Law Department’s letter no. 550 dated 21.1.1984 (Annexure 6). The 1984 policy of the State Government, at Clause 2 of the letter, simply indicated that whosoever has been convicted for offences for which the sentence is of death or life imprisonment or in case of death sentence being converted into life imprisonment, his premature release will be considered in the light of provision under section 433 of the Code of Criminal Procedure provided that whosoever has been convicted for offence, for which sentence is of death or imprisonment for life and in case the judgment of conviction has been passed on or after 18.12.1978, they will be given benefit of premature release on account of giving remission to them if they have remained in custody from the date of their being found guilty for 14 years in custody or twenty years by giving benefit of remission. Counsel for the petitioner submits that as per 1984 policy decision of the State Government, except actual period of fourteen years and the period giving the benefit of remission of twenty years in custody 4 there was no other conditions imposed for premature release giving them benefit of remission but, so far the petitioner is concerned, it was considered in the light of subsequent policy decision of the State Government contained in notification dated 10th December, 2002 contained in memo no. 3106. Through this notification, the rules were amended and some more conditions were imposed for giving benefit of remission to the convicts, sentenced to death but commuted into life sentence and sentenced for life imprisonment. In such cases, persons who were convicted under section 396 of the IPC, were disqualified for giving this benefit of remission. Age was also made one of the considerations for allowing benefit of remission as well as some other grounds and conditions were also imposed. Since the petitioner was also convicted in the year 1992, his case should have been considered in the light of the policy decision of the State Government of 1984, but instead of doing that, the case of the petitioner being considered as per notification dated 10th December, 2002. The learned counsel for the petitioner submits that it is a clear case of 5 discrimination. In the counter affidavit filed by the State Government, there is no specific reply to this point and simply it is stated that the case of the petitioner for his premature release giving benefit of remission was considered later on in the year 2008 and again in the year 2010. At that time, since the policy decision of the State Government had been annulled, the Law Department was not authorized to consider the matters relating to the premature release, giving benefit of remission to the accused persons. Vide notification dated 29th June, 2007 this jurisdiction has been vested by the State Government to the State Sentence Remission Board. So far the other nine accused persons are concerned, their cases were considered by the Law Department but the case of the petitioner was being considered by the State Sentence Remission Board, as such, the petitioner cannot claim any parity on this count. The case of petitioner was considered as per the amended provision in this regard. We find that the stand taken by the State Government is not at all tenable, considering the fact 6 that the petitioner as well as other convicts were accused of same police case. They faced trial together and convicted by the same impugned judgment, prior to 2002 and subsequent to 1984, as such, same set of law should have been made applicable in the case of the petitioner as it was made in case of other accused persons. Counsel for the petitioner has placed reliance upon the decision of the Supreme Court reported in 2010(4) Supreme Court Cases 216, which completely covers the case of the petitioner. In this decision, it has been held that the relevant date for considering the question of premature release, in case of a convict shall be the date of his conviction and not the date on which case of premature release is being considered by any state authority or any Board. In the case of the petitioner, the relevant date is 29.2.1992, i.e., the date on which he was convicted by the 10th Additional Sessions Judge, Gaya. At the relevant time the policy decision, which was in vogue, was of 1984 and the case of the petitioner should have been considered in accordance with the prevalent policy decision on the 7 date of conviction. We find that petitioner has been discriminated by the state authorities, since his case has not been considered as per the relevant law and the rule of the State Government. Accordingly, this application is being allowed directing the respondent authorities and the State Remission Board to consider the case of the petitioner for his premature release giving him benefit of the provision of 1984 policy, considering which, other nine accused have been directed to be released. The order must be passed within a period of four weeks from the date the petitioner files a fresh representation along with a copy of this order before the appropriate authority. Anil/ (Mridula Mishra, J.) ( Dharnidhar Jha, J.)