IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.842 of 2009 RAJWATI DEVI, W/o Late Chunilal Sao, Resident of Mohalla- Munnachak, Kankarbagh, P.S. Kadamkuan Patna, District- Patna. . . . . . Petitioner. Versus 1. THE STATE OF BIHAR through the Secretary Home Department, Govt. of Bihar, Patna. 2. The Chairman “The Bihar State Sentence Council”, Govt. of Bihar, Patna. 3. The I.G. Prison, Bihar, Patna. 4. The Superintendent of Jail, Mahila Mandal Jail, Bhagalpur, Dist.- Bhagalpur. 5. The Karapal, Mahila Mandal Kara, Bhagalpur. 6. The Jail Superintendent, Phulwari Sarif, Patna. . . . . . . Respondents. For the Petitioner : Mr. Arun Kumar no.1, Advocate For the State : Mr. Mani Kant Mishra, G.P. 21 ----------- 2/ 14.07.2010 Heard learned counsel for the petitioner and the State. The petitioner, who has been sentenced to life imprisonment under Section 302/34 of the Indian Penal Code in Kadamkuan P.S. case no. 53(1) of 1984, has prayed for remittance and commutation of sentence under Sections 432 and 433 of Cr.P.C. for premature release on the ground of severe ailment, heart blockage. The prosecution case in short is as follows: The petitioner was convicted and sentenced to life imprisonment under Section 302/34 of the I.P.C. along with other three accused. The allegation was that she gave Chhura to her son, namely Ramji Sao and Shyamji Sao, who assaulted one Shambhu on his neck, consequent to which he subsequently died. The conviction of the petitioner remained unaltered up to the Hon’ble Supreme Court. The petitioner submits that she is 64 years of age and has undergone 11 years, eight months of imprisonment. The petitioner states that it would appear from the Medical reports of the Jail Doctor - 2 - that she is suffering from heart blockage and other serious ailments, and as such has prayed for her release under Section 432, 433(b) of Cr.P.C. and Section 55 of the I.P.C. It is further her contention that the petitioner being a woman ought to have got due consideration of aforesaid provisions. She has also filed a representation before the Bihar State Sentence Remission Board for her release. The petitioner submits that in case of Hava Singh Vs. The State of Haryana & Anr. reported in (1987) 4 SCC 207, the Hon’ble Supreme Court had directed for release of a live convict, who had undergone only seven years of actual detention. The petitioner in support of his submission for pre-mature release also relied upon a decision in case of Shri Niwas & Ors Vs. Delhi Administration & Ors reported in AIR 1982 SC 1391 Mr. Mani Kanti Mishra, learned counsel appearing for the State submits that remissions and commutations under Sections 432, 433(b) of Cr.P.C. and Section 55 of the I.P.C. is subject to Section 433-A of Cr.P.C. He states that where a person is convicted for an offence, for which death is also one of the punishment, such persons shall not be released from prison unless he has served at least 14 years of actual imprisonment. He further submits that vide notification dated 28th December, 2002 the State Government has made amendments in Bihar Jail Manual and substituted new Rule 529 in place of old Rule 529. He further submits that the substituted Rule 529 (1) has provided for composition of State Sentence Remission Board, which would consider cases of remission of sentence awarded to prisoner and - 3 - recommend for pre-mature release in appropriate cases to the Government Rule 529(ii) relates to period of meeting. The eligibility conditions for pre-mature release of the prisoners have been provided in substituted Rule 529(iii), which is quoted hereinbelow: “Rule 529(iii) (a) Every convicted prisoner whether male or female, undergoing sentence of life imprisonment and covered by the provisions of Section 433 A of Cr.P.C shall be eligible to considered for premature release immediately after serving the sentence of 14 years of actual imprisonment without the remission. (b) All other convicted male prisoners 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 and after completion of 10 years actual imprisonment without remissions. (c) All other convicted female prisoners undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remission and after completion of 7 years of actual imprisonment without remissions. (d) Convicted prisoner undergoing the sentence of life imprisonment on attaining the age of 65 years provided he or she has served at least 7 years of imprisonment including the remissions. (e) The convicted prisoners undergoing the sentence or imprisonment for life and who are suffering from terminal diseases like cancer, aids, irreversible kidney failure, cardio respiratory disease, deadly and any other infectious disease as certified by a Board of Doctors, on completion of 5 years of actual sentence or 7 years of sentence including remissions”. - 4 - In nut shell, the crux of his submission is, that a person undergoing life imprisonment, for which death is also one of the punishment, cannot be released from imprisonment, unless he has undergone actual imprisonment of 14 years. In support of his submissions, learned counsel for the State has relied upon Constitution Bench decision in case of Gopal Vinayak Godse Vs. State of Maharashtra & Ors, reported in AIR 1961 SC 600, Mohd. Munna Vs. Union of India, reported in (2005) 7 SCC 417, Ram Raj Vs. State of Chhattisgarh, reported in (2010) 1 SCC 573 equivalent to 2010 AIR SCW 23, and case of State of Haryana vs Jagidsh, reported in (2010) 4 SCC 216. Heard counsel for the petitioner as well as learned counsel for the State. The case of the petitioner is that she is an old woman, aged about 64 years and has already served more than 12 years of imprisonment. She states that she is suffering from Anemia, low blood pressure, heart problem and sugar problem, as such she would be entitled for remission of her sentence and pre-mature release. She states that though her conviction under Section 302/34 of the I.P.C. has remained unaltered up to the Hon’ble Apex Court, the charge against her was of bringing two knives and handing it over to her sons Ramji and Shyamji, who inflicted injuries on victim, leading to his death. She states that she is not the assailant nor has even touched the deceased. Section 302 of the I.P.C. provides death punishments, or life - 5 - imprisonment and fine as well. Chapter XXXII (E) provides for suspension, remission and commutation of sentence. Section 432 Cr.P.C. empowers the appropriate Government to suspend or remit the whole or any part of the punishment to which one has been sentenced. Section 433 Cr.P.C. confers power on appropriate government to commute the sentence. Section 433 of Cr.P.C. is quoted hereinblwo: 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. Then comes all important provision, contained in Sections 433-A, which has been inserted by Act 45 of 1978. It provides for restriction and powers of remission and commutation in certain cases. It starts with a non-obstante clause and states that a person, who has been convicted for an offence for which death could not be also one of the punishments, could be released from prison unless he has served at least 14 years of imprisonment. - 6 - Section 433-A of Cr.P.C. is quoted hereinbelow for ready reference: “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.” The Substituted Rule 529 (iii) (a) of the Bihar Jail Manual has also been engrafted in similar terms and in consonance with the provisions of Section 433-A of the Cr.P.C. It states that a convict prisoner, whether male or female, undergo sentence of life imprisonment and covered by the provisions of Section 433-A shall be eligible for pre-mature release only after serving sentence of 14 years of actual imprisonment without remission. Thus, a male or female, who have been sentenced for life imprisonment for an offence, for which death could also be a punishment, would not be entitled to pre-mature release under Section 432 or 433 of Cr.P.C. on account of over riding effect of Section 433(A) of Cr.P.C. over them. Section 433 (A) Cr.P.C. states that notwithstanding anything contend in Section 432 or 433 Cr.P.C. a person cannot be released from prison unless he has served at least 14 years of - 7 - imprisonment. The petitioner has relied upon a decision in case of Hava Singh (Supra) reported in AIR (1987) 4 SCC 207 and in case of Shri Niwas Singh & Ors (Supra), reported in A.I.R. 1982 SC 1391 to contend that a convict can be release even without completing 14 years of actual imprisonment. In my view none of the two cases would of any help to the petitioner. In case of Hava Singh (Supra), the petitioner, who was adolescent below 21 years of age, on the date of occurrence, was convicted and sentenced to life imprisonment under Section 302/34 of the I.P.C. and sent to Borstal Institution for serving the balance sentence. The Hon’ble Apex Court held that the maximum period prescribed under Section 5 of the Punjab Borstal Act, in cases of conviction by the Sessions Judge is seven years, in respect of accused covered under the Act. The Hon’ble Apex Court further observed that the sentence of detention in Borstal Institution is passed in lieu of sentence of imprisonment which may have been passed. The Hon’ble Apex Court noted that the petitioner being Adolescent being below 21 years of age, on the date of occurrence, was entitled to be released from detention and imprisonment, as he had already undergone actual imprisonment for seven years, which is the maximum period prescribed under Section 5 of the Pubjab Borstal Act. The Hon’ble Supreme Court observed that the detention order under Section 5 is not imprisonment and Borstal School where the adolescent offender is - 8 - detained, is not a prison. While relying upon an identical case in case of State of Andhra Pradesh Vs. Vallabhapuram Ravi reported in (1984) 4 SCC 410, the Hon’ble Supreme Court observed that Punjab Borstal Act dealt with a special class of offenders, like adolescent below 21 years of age, and was thus not subject to Section 433-A of Cr.P.C. In case of State of Andhra Pradesh (Supra), the Hon’ble Apex Court held that Section 10-A of A.P. Borstal Act, 1925 carried a maximum period of detention of 5 years for adolescent irrespective of any kind of punishment. The Hon’ble Apex Court observed that the Act provide for detention of young offenders in Borstal School for purposes of information and rehabilitation and they cannot be sent to imprisonment. Section 10-A of the A.P. Borstal School Act, 1925 provides that an adolescent, who has served full term of five years or has completed 23 years of age, has to be released. The Hon’ble Apex Court held that Section 433-A of Cr.P.C. would not operate where a person is detained by an order under Section 10-A of the Act. Section 433-A of the Code was introduced not to set at naught provisions like Section 10-A of the Act, which dealt with a particular class of offenders like adolescent offenders. The reliance of petitioner in case of Shri Niwas & Ors (Supra) is equally misplaced. In the aforesaid case, one of the prisoners had already undergone 19 years, 3 months and 16 days of imprisonment. In such circumstances, the Hon’ble Apex Court directed for - 9 - release of the petitioner, who was not being released for non-receipt of report of probation officer. In respect of other prisoners, who had undergone 14 years of imprisonment, the Hon’ble Apex Court directed for consideration of cases of their release. Similarly, Section 15 of the Juvenile Justice (Care and Protection of Children) Act, 2000 provides for a maximum period of three years of detention for a Juvenile, and that too in special home and not in general prison. However, the petitioner on the date of occurrence was neither an adolescent nor a child under the Juvenile Justice (Care and Protection of Children) Act, 2000 and as such, her case would be guided by provisions of Cr.P.C., namely Section 433-A of the Cr.P.C. and Bihar Jail Manual and meaning of life imprisonment, as interpreted by Hon’ble Apex Court. In case of Mohd. Munna Vs. Union of India, reported in (2005) 7 SCC 417, the Hon’ble Apex Court observed that life imprisonment means imprisonment for the whole of the remaining period of convicted person in natural life. There is no provision either in the I.P.C. or Cr.P.C., where the life imprisonment could be treated as 14 years or 20 years, without their being a formal remission by the appropriate Government. Section 57 of the I.P.C. provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years is applicable for the purpose of remission. - 10 - The Hon’ble Apex Court in case of Ram Raj Vs. State of Chhattisgarh (Supra), held that in no case with possible exception in case of exercise of power vested in President and Governor under Articles 72 and 161, even with remission earned one cannot be released before he completes 14 years of actual imprisonment. The Hon’ble Apex Court reiterated the decision rendered in Gopal Vinayak Godse case, reported in AIR 1961 SC 600 where the Constitution Bench interpreted imprisonment for life imprisonment for natural life of a term of convict, though the actual period of imprisonment may stand reduced on account of remission earned. Paragraph 22 and 23 of the judgment in case of Ram Raj Vs. State of Chattisgarh (Supra) is quoted hereinbelow: “22. On a conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections 432, 433 and 433 A, Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433 A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and from 18th December, 1978. By virtue of the non-obstante clause used in Section 433 A, the minimum term of imprisonment in respect of an offence where death is one of the punishments provided by laws or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. 23. In the various decisions rendered after the decision - 11 - in Godse’s case (supra), “imprisonment for life” has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remissions earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the power vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is therefore left to the discretion of the concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence. Section 433 A, Cr.P.C., which is relevant for the purpose of this case, reads as follows:” Again in case of State of Haryana and ors Vs. Jagdish (Supra), the Hon’ble Apex Court held that right of convict for premature release can be considered only according to remission rule / short sentencing schemes. A life convict cannot claim premature release as a matter of right. However, the Hon’ble Supreme Court observed that clemency power of the President and the Governor under Article 72 and 161 of the Constitution is overriding and the same cannot be restricted by Sections 432, 433 and 433-A of Cr.P.C. The Hon’ble Apex Court nonetheless observed that such power should be exercised cautiously and in appropriate cases. Thus, a person, who is not covered by any special legislation or rules, cannot claim premature release without serving actual imprisonment of 14 years. It is only the President of India or the Governor of the State, - 12 - who in appropriate cases can grant clemency and direct for release even though accused / convict may not have completed 14 years of actual imprisonment. The petitioner, who has admittedly not yet completed 65 years of age, cannot be considered even under substituted rule of 529(iii) of Bihar Jail Manual. Rule 529(iii)(d) provides that convicted prisoner undergoing the sentence of life imprisonment on attaining the age of 65 years provided he or she has served at least 7 years of imprisonment including the remissions can be recommended by the State Sentence Remission Board to the State Government for premature release. Rule 529(iii) (e) also provides for premature release of convicted prisoners undergoing the sentence or imprisonment for life and who are suffering from terminal diseases like cancer, aids, irreversible kidney failure, cardio respiratory disease, deadly and any other infectious disease as certified by a Board of Doctors, on completion of 5 years of actual sentence or 7 years of sentence including remissions. The petitioner is not qualified for premature release under Rule 529(iii) (e) as she has not brought any material on record to show that she is suffering from terminal disease like cancer, aids, irreversible kidney failure, cardio respiratory etc. as mentioned thereof. Now it is to be seen whether the petitioner would qualify for premature release under 529(iii)(d) of Bihar Jail Manual. As stated - 13 - above, 529(iii)(d) of Bihar Jail Manual provides for premature release of a convict undergoing life imprisonment, only if he / she has attained the age of 65 years and also had at least served 7 years of imprisonment including remissions. Though the petitioner complies the 2nd part of condition of having served imprisonment much more than seven years, she on her own showing does not conform to 1st part of condition, which mandates that the convict must have attained 65 years of age. The petitioner in view of her own statements would be about 64 years of age and as such would not be entitled for consideration of release from imprisonment as of now, under 529(iii)(d) of Bihar Jail Manual. However, if on attaining 65 years of age, the petitioner files a representation before the State Sentence Remission Board for premature release under 529(iii)(d) of Bihar Jail Manual on the ground that she has put in much more than 7 years of imprisonment, her case would be considered within the parameters laid down under Rule 529(iii)(d) of the Bihar Jail Manual and ineligibility conditions laid down in 529(iv) thereof, if applicable at all. Nothing in this order should be construed, as this Court having expressed any opinion regarding the age of the petitioner. With the aforesaid observation, this application is disposed of. A.F.R. Uday/ (Samarendra Pratap Singh, J.) - 14 -