IN THE HIGH COURT OF JUDICATURE AT PATNA CR. W.J.C. No. 3 of 2010 ***** M.K.Balakrishnan, Advocate, 37, Lawyers” Chambers, Supreme Court of India, New Delhi – 110 001. …. …. Petitioner Versus 1. State of Bihar through The Secretary, Ministry of Home, State Secretariat, Patna, Bihar. 2. The Inspector General of Prisons, Old Secretariat, Home Department, Patna, Bihar-800 001. 3. The Superintendent, Central Prison, Beur, Patna-800 001. 4. The Superintendent, Buxar Central Prison, Buxar, Bihar. 5. The Superintendent, Bhagalpur Central Prison, Bhagalpur-812 001. 6. The Superintendent, Special Central Prison, Bhagalpur-812 001. 7. The Superintendent, Central Prison, Muzaffarpur, Bihar-842 001. 8. The Superintendent, Hazari bagh, Central Prison, Hazari Bagh, Bihar. 9. The Superintendent, Central Prison, Ranchi-834 001. 10. The Superintendent, Gaya Central Prison, Gaya, Bihar-823001. …. …. Respondents ------------ For the Petitioner: Mr. M.K.Balakrishnan (In Person) For the State : Mr. P.K.Shahi, Advocate General Mr. Ahsanuddin Amanullah, S.C.-17 ----------- PRESENT: THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR JUSTICE MIHIR KUMAR JHA O R D E R (21.04.2010) As per Dipak Misra, C.J.- The petitioner, an Advocate and a social activist, as pro bono publico, preferred the present public interest litigation for issuance of a writ of mandamus for release of the life convicts - 2 - languishing in central jails of Bihar as they have completed 14 years of incarceration. 2. It is averred in the petition that the life convicts, who have been convicted to undergo life imprisonment, have been released by the respective State Governments, who have the authority to release them after serving 14 years term on the recommendation of the Jail Advisory Committee under Section 433- A of the Code of Criminal Procedure but the same is being not done as a consequence of which the right to life of the said convicts as engrafted under Article 21 of the Constitution of India is affected. It is urged, the State Government has not fixed any parameters how to proceed to deal with these kinds of convicts after granting remission under Section 433-A, and hence, this Court in exercise of power under Article 226 of the constitution of India can issue a set of guidelines so that the power is exercised in an uniform and non- discriminatory manner. It is asserted that release on expiry of 14 years including the period of remission is a laudable object as the same has a reformative measure but as no exercise being taken in that regard, the object has been frustrated and, therefore, the petitioner has been compelled to move this Court for appropriate direction in exercise of its inherent jurisdiction. - 3 - 3. A counter affidavit has been filed by the State and its functionaries contending, inter alia, that life convicts in Bihar are considered for their premature release as per the provisions stipulated in the notification issued by the Government vide letter no.3106 dated 10.12.2002 of Home (Special) Department. As per the said provision the State Sentence Remission Board (for short „the Board‟) looks into each case separately. The Board consists of Home Secretary, Law Secretary, District & Sessions Judge nominated by the High Court, Director, Probation Service, Inspector General of Police nominated by the Director General of Police and Inspector General of Prisons. The said notification lays down the postulate about the parameters on which the premature release shall be granted. 4. It is asseverated that the concept of premature release and the process of remission as has been laid down by their Lordships of the Apex Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, 2008 (4) PLJR SC 122 have been uniformally followed by the State Sentence Remission Board. It is put forth that prior to notification no.3106 dated 10.12.2002 there were various other notifications which have been amended from time to time and presently the Board considers the matter of release of life convicts forwarded by the Jail - 4 - Superintendents uniformally on the merits of each case and their recommendations. A reference has been to the order passed in Sri Pujan Pandey @ Rampujan Pandey v. The State of Bihar & Ors. (Cr.W.J.C. No.716 of 2009). It is set forth that the cases are being considered periodically and the State Government has made all endeavours to consider the cases by the Board and give effect to the same. 5. We have heard Mr. M.K.Balakrishnan, the petitioner in person and Mr. P.K. Shahi, learned Advocate General along with Mr. Ahsanuddin Amanullah, learned Standing Counsel- 17 for the respondents. 6. The petitioner has submitted that the respondent authorities are bound to release the life convicts after they spent 14 years in custody and, if not, at least their cases are to be considered by the Board in quite promptitude for premature release. It is his further submission that as there is no uniform guidelines this Court should issue guidelines, as it can be done in exercise of inherent powers of this Court under Article 226 of the constitution of India. 7. Mr. P.K.Shahi, learned Advocate General appearing for the respondent State, per contra, contended that a life convict cannot be released as a matter of right on completion of 14 years, as life imprisonment means imprisonment to jail so long the convict is - 5 - alive. It is urged by him that the Remission Board has been considering the cases uniformally and orders of premature release are passed considering the eligibility as per the norms and, therefore, the colossal grievance that has been put forth that there is no exercise in that regard and there is no uniform procedure have to melt into insignificance. 8. From the factual matrix the stand and stance put forth by the petitioner and the plea advanced in oppugnation by the State, two questions emerge for consideration, namely, (i) whether the convict has an absolute right to be released after completion of 14 years and whether the convicts are entitled to remission as a matter of right, and (ii) whether there is periodical exercise by the Board for consideration of premature release. 9. As far as the first aspect is concerned, it is apposite to state that it is well settled in law that conviction for life means the whole span of life. In State of Madhya Pradesh v. Ratan Singh and Others, (1976) 3 SCC 470, it has been held as under: - “9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure the following propositions emerge: (1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed - 6 - under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure; (2) that the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner; (3) that the appropriate government which is empowered to grant remission under section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been convicted and sentenced, that is to say, the transferor State and not the transferee State where the prisoner may have been transferred at his instance under the Transfer of Prisoners Act; and (4) that where the transferee State feels that the accused has completed a period of 20 years it has merely to forward the request of the prisoner to the concerned State Government, that is to say, the Government of the State where the prisoner was convicted and sentenced and even if this request is rejected by the State Government the order of the Government cannot be interfered with by a High Court in its writ jurisdiction.” - 7 - 10. In Shri Bhagwan vs. State of Rajasthan, (2001) 6 SCC 296, it has been held thus: "In Maru Ram vs. Union of India, (1981) 1 SCC 107, a Constitution Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. Further, in Laxman Naskar (Life Convict) vs. State of W.B. & Anr., (2000) 7 SCC 626, after referring to the decision of the case of Gopal Vinayak Godse vs. State of Maharashtra, (1961) 3 SCR 440, the court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitled the convict to be released automatically before the full life term if served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be - 8 - unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose." 11. In Zahid Hussein vs. State of West Bengal, (2001) 3 SCC 750, it has been held that unless sentence of life imprisonment awarded to a convict is commuted by the Government, he has to undergo imprisonment till the end of his life. 12. In State of Haryana V. Mahendra Singh & another, 2008 Cri. L.J., 444 (SC), their Lordships have expressed thus: - “32. A right to be considered for remission, keeping in view the constitutional safe- guards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy- decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy-decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. - 9 - State of Mysore and another vs. H, Srinivasmurthy, (1976) 1 SCC 817. 13. It would be apposite to note here similar view has been expressed in Laxman Naskar (Life Convict) vs. State of W.B., (2000) 7 SCC 626; Kamalanantha vs. State of Tamil Nadu, (2005) 5 SCC 194; Mohd. Munna vs. Union of India, (2005) 7 SCC 416 and C.M. Pious vs. State of Kerala, (2007) 8 SCC 312. 14. In Swamy Shraddananda (supra), a three-Judge Bench of the Apex Court in paragraph 55 has held thus: - “55. It is equally well-settled that Section 57 of the Penal Code does not in any way limit the punishment of imprisonment for life to a term of twenty years. Section 57 is only for calculating fractions of terms of punishment and provides that imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years. (See : Gopal Vinayak Godse (supra) and Ashok Kumar alias Golu (supra). The object and purpose of Section 57 will be clear by simply referring to Sections 65, 116, 119, 129 and 511 of the Penal Code.” 15. In view of the aforesaid enunciation of law the submission that after 14 years of incarceration the convict should be - 10 - released as the jails are overloaded is unacceptable and accordingly, we repel the same. 16. The next aspect that arises for consideration, whether a convict has an indefeasible right to get remission. Section 432 of the Code of Criminal Procedure deals with suspension, remission and commutation of sentence. Section 433 empowers the Government to commute the sentence. The said provision reads as under: - 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, or fine. 17. Section 433A of the Code deals with restriction on powers of remission or commutation in certain cases. The said provision is extracted below: - - 11 - "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 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." 18. The constitutional validity of section 433A of the Code was challenged in Maru Ram V. Union of India, AIR 1980 SC 2147. The Constitution Bench culled out the conclusion in paragraph 72 of the judgment. The conclusions which are relevant for our present purpose are reproduced below: - “(1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-years gestation for reformation. But ours is to construe, not construct, to decode, not to make a code. (2) We affirm the current supremacy of Section 433A over the remission Rules and short- sentencing statutes made by the various States. - 12 - * * * (6) We follow Godse‟s case (AIR 1961 SC 600) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned the prisoner can claim release only if the remaining sentence is remitted by Government. * * * (10) Although the remission rules of short- sentencing provisions proprio vigore may not apply as against Section 433A, they will override section 433A if the Government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking – a desirable step, in our view – the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents. Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.” - 13 - 19. In Swamy Shraddananda (supra) their Lordships have also dealt with the procedure adopted by the Bihar State Sentence Remission Board. In that context, their Lordships have held thus: - “63. It is thus to be seen that both in Karnataka and Bihar remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years. The deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen years term without any sound legal basis. One can safely assume that the position would be no better in the other States. This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases.” - 14 - 20. From the aforesaid discussion it is clear as noon day that a convict cannot claim remission as a matter of right, he may claim only consideration on the relevant Rules or executive instructions, which govern the field. As in evincible from the counter affidavit, the same is considered periodically as per the norms. 21. At this juncture, we may note with profit the observations made in the case of Sri Pujan Pandey @ Rampujan Pandey (supra), wherein a Division Bench of this Court has expressed thus: - “12. Before we part with the records, we wish to invite the attention of the State Government on some of the aspects of the matter which need attention and remedial measures. The Supreme Court has held that in the scheme of the Indian Penal Code and the Code of Criminal Procedure, life sentence means sentence of life imprisonment till he is dead, subject of course to remission of sentence granted by the State Government. So far as the first part is concerned, there are different circulars of the State Government which seem to provide that life imprisonment may mean 20 years or even 14 years. This position seems to be inconsistent with the provisions of law interpreted by the Supreme Court in various judgments, the latest being Swamy Shraddananda Vs. State of - 15 - Karnataka (supra). The second anomaly is that the question of remission of sentence seems to be governed by different circulars which has been noticed by the Supreme Court in Swamy Shraddananda v. State of Karnataka (supra), and has held that administration of criminal justice in the State of Bihar seems to be quite unsatisfactory. We are, therefore, of the view that both the aspects should be examined by the State Government, may be after obtaining the views of the Law Commission of the State of Bihar, and bring about a legislation or under the rule-making powers putting the law in order and on sound basis. Such vital matters can not be permitted to be governed by circulars and administrative instructions which are quite often mutually destructive or contradictory. The Law Secretary-cum-Legal Remembrance shall take initiative in this matter.” We are in agreement with the view expressed therein. 22. Consequently, we conclude and hold that the grievance put forth by the petitioner that the life convicts are entitled to be released from Jail on completion of 14 years is legally unsound. Claim of premature release is not a matter of right but a convict can put forth his claim for such release and the State Government should see to it that the meetings of the - 16 - Bihar State Sentence Remission Board are held regularly so that appropriate action is taken and further the State Government should see the directions issued in the case of Sri Pujan Pandey @ Rampujan Pandey (supra) are carried out in quite promptitude. There shall be not order as to costs. Patna High Court. The 21th April, 2010. NAFR. Pawan/- ( Dipak Misra, C.J. ) ( Mihir Kumar Jha, J. )