IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.716 of 2009 Sri Pujan Pandey @ Rampujan Pandey, son of late Triveni Pandey, resident of village- Sonhar, P.S. Sheosagar, District Rohtas. ..... Petitioner. Versus 1. The State of Bihar. 2. Principal Secretary, Home Department, Govt. of Bihar. 3. Law Secretary, Government of Bihar. 4. Inspector General in prison, Home Department, Bihar, Patna. 5. Assistant Inspector General, Prison, Incharge Director Probation Services, Government of Bihar, Patna. 6. Inspector General of Police, Crime Investigation Department, Bihar, Patna. 7. Jail Superintendent, Special Central Jail, Bhagalpur. 8. Jail Superintendent, Central Jail, Buxar. 9. Jail Superintendent Mandal Kara, Sasaram. 10. Superintendent of Police, Rohtas. 11. Additional Superintendent of Police, Rohtas. 12. D.S.P. Rohtas, Sasaram. 13. Officer-in-Charge, Sheosagar, Police Station, Rohtas. ..... Respondents. ----------- 05- 06.11.2009 Heard Mr. Dinesh Kumar Singh for the petitioner, and Mr. Santosh Kumar Singh, learned Standing Counsel No.22. This writ petition is directed against the order dated 6.3.2009, passed by the Remission Board, Government of Bihar (hereinafter referred to as the „Board‟), whereby the petitioner has not been released because “mez de jgus ds dkj.k“. It is further directed against the order dated 2.9.2009, passed by the Board on review whereby the petitioner has not been released, being 52 2 years of age on the date of the order, and also because of repetition of the offence of murder. 2. A brief statement of facts essential for the disposal of the writ petition may be indicated. The petitioner along with his two brothers were convicted for an offence under section 302 of the IPC, and other provisions of law, and were sentenced to undergo rigorous imprisonment for life as well as for payment of fine, by judgment and order dated 7.4.1984, passed by the learned 4th Additional Sessions Judge, Rohtas at Sasaram, in Sessions Trial No.460 of 1982 (State of Bihar Vs. Shrikant Pandey and others). During the pendency of his appeal before the High Court, the petitioner was released on bail. His appeal in this Court as well as in the Supreme Court was dismissed. During the period the petitioner was on bail, he committed another offence of similar nature in 1989 which led to his conviction along with his brothers under section 302 of the IPC and other provisions of law wherein also he was sentenced to undergo rigorous imprisonment for life, by judgment dated 29.1.1994, passed in Sessions Trial No.152 of 1992 (State Vs.Sri Kant Pandey and others), passed by the learned 6th Additional 3 Sessions Judge, Rohtas at Sasaram, and were maintained up to the Supreme Court. 3. The petitioner continues to be in custody. He preferred Cr.W.J.C. No.435 of 2004 (Shree Kant Pandey and others Vs. The State of Bihar and others), seeking direction to the respondent authorities to consider his case for remission of sentence. The same was disposed of by order dated 31.1.2005 (Annexure-1), whereby the jail authorities were directed to consider the petitioner‟s case in the light of the observations made in the order. Consequently, the authorities considered the petitioner‟s case for remission on 6.3.2009, whereby the Board did not recommend his release on the ground of “mez de jgus ds dkj.k“, being 52 years of age. The petitioner‟s case was reconsidered and was rejected on the ground of repetition of the offence under section 302 of the IPC and other provisions of law. The Board‟s recommendation dated 2.9.2009 is reproduced hereinbelow: canh dk uke ----------------------- canh dk mez ------- dkjk dk uke ------------------ vH;qfDr ----------------------------------- 1.jke iwtu ik.Ms; mQZ f’koiwtu ik.Ms;, is0& 65 fo”s"k dsUnzh; dkjk, Hkkxyiqj canh ds le; iwoZ fjgkbZ ds izLrko dks fnukad 02&03-09 dks vk;ksftr jkT; n.Mkns’k ifjgkj i"kZn dh cSBd esa 4 f=os.kh ik.Ms;a fopkjkFkZ izLrqr fd;k x;k Fkk vkSj l= okn la[;k& 460@82 esa ekujh; U;k;ky; ds U;k; fu.kZ; dh izfr esa vafdr mez ds vk/kkj ij canh dk mez 52 o"kZ ek= ik;k x;k vkSj de mez ds vk/kkj ij izLrko dks vLohd`r djus dh vuq”alk dh xbZ@ ijUrq fcgkj ekuokf/kdkj vk;ksx n~okjk dh xbZ vuq”alk, ftlesa l= okn la[;k 152@92 esa vafdr mez dks vk/kj ekuus dh vuq”alk dh xbZ gS ds vkyksd esa izLrko dks iqufoZpkj gsrq IzLrqr fd;k x;k, ijUrq gR;k ds ,d ekeys esa vizhy 1984 esa vkthou dkjkokl dh ltk lquk;s tkus ds i’pkr~ 1989 esa iqu% gR;k dh ?kVuk esa layXu ik;s tkus ds dkj.k canh dks vknru vijk/kh ekurs gq, izLrko ij iwoZ esa dh xbZ vLohd`fr laca/kh vuq”alk dks ;Fkkor j[kus dk fu.kZ; fy;k x;k@ 4. While assailing the validity of the impugned order, learned counsel for the petitioner submits that the petitioner‟s elder brother, as well as younger brother, convicted for the same offence in the aforesaid cases have been given the benefit of remission and have been finally released prematurely. He next submits that the yardstick of age-bar is not to be found in any law or instructions, and is also discriminatory in nature. He also submits that the order of the State Government based on the Board‟s recommendation of 2.9.2009, set out 5 hereinabove, is not only discriminatory but is also unjust and unreasonable and in the teeth of the provisions of the Government notification dated 10.12.2002 (Annexure-3 series). Relying on the judgment of the Supreme Court reported in (1984)3 SCC 14 = A.I.R. 1984 S.C. 133 (Vijay Narain Singh Vs. State of Bihar and others), he submits that „habitually‟ means continuous repetition. One repetition is not relevant or adequate in the present context. 5. The learned Standing Counsel has supported the impugned order and has relied on the following reported judgments: (i) (2005)7 SCC 417 (Mohd. Munna Vs. Union of India and others); (ii) 2008(4) PLJR 122(SC) (Swamy Shraddananda @ Murali Manohar Mishra vs. State of Karnataka) (iii) A.I.R. 1976 SC 1552 (State of Madhya Pradesh Vs. Ratan Singh and others); (iv) 1988 CRI.L.J. 680 (Ajaib Singh Vs. State of Punjab and another). He has also relied on various provisions of the Indian Penal Code, Code of Criminal Procedure, Prisons Act, 1894, the Bihar Jail Manual etc. 6 6. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the petitioner was convicted and sentenced to undergo life imprisonment by the earlier judgment of 7.4.1984, which was maintained up to the Supreme Court. During the pendency of the appeal in the High Court, he was released on bail and utilised the time and the opportunity to commit another offence under section 302 of the IPC and other provisions of law, leading to conviction and sentence of life imprisonment by the later judgment which was also maintained up to the Supreme Court. Law is well settled ever since the judgment of the Privy Council in Pandit Kishori Lal v. King Emperor (A.I.R. 1954 PC 64), the latest being the judgment of the Supreme Court in Swamy Shraddananda v. State of Karnataka (supra), that life imprisonment means imprisonment in jail so long the convict is alive, subject of course to remission of sentence by the State Government. 7. Remission of sentence is governed by Chapter-E of the Code of Criminal Procedure, particularly Sections 432 and 433A thereunder. The State Government has issued executive/ statutory instructions from time to time 7 governing the issue relating to remission of sentence to the extent the same have been placed before us. We have not been able to notice any criterion of age on the ground of which remission of sentence can be denied to the convict. Although the petitioner‟s two brothers have already been granted the benefit of remission who were convicted and sentenced by the same judgments though the orders of remission in their favour have not been placed before us. To that extent the earlier order dated 6.3.2009 does not seem to be on sound footing. 8. The State Government, however, seems to have realised the mistake and referred the matter again to the Board for reconsideration soon thereafter, the recommendation of the Board is dated 2.9.2009, and is reproduced hereinabove leading to refusal to release the petitioner prematurely. In view of the admitted facts we agree with the recommendation of the Board that the petitioner ought not to be given the benefit of remission. This is covered by the two provisions of the Government notification dated 10.12.2002 (Annexure-3 series), paragraphs (iv)([k) as well as (vi) (x) whereof are reproduced hereinbelow: 8 (iv) le;&iwoZ fjgkbZ ds fy, v;ksX;rk fuEukfdr Js.kh ds fln~/knks"k canh tks vkthou dkjkokl dk naM Hkqxr jgs gks, le;&ioZ fjgkbZ ds fy, fopkj&;ksX; ugh gks ldaxs%& xxx xxx xxx xxx ([k) oSls canh, tks iwoZ fparu fd;s x;s fo"k;ks ,oa lqfu;ksftr <ax ls gR;k,Wa vk;ksftr djus ds fy, fln~/knks"k gksa@ (vi) ifjgkj i"kZn ds fy, izfdz;k ,oa fn”k funsZ”% xxx xxx xxx xxx xxx xxx xxx xxx (x)”...i"kZn mu lHkh ifjfLFkfr;ksa dks fopkj {ks= esa j[ksxk ftlesa canh n~okjk vijk/k fd;k x;k gks, rFkk canh n~okjk bl rjg ds ;k vU; fdLe ds vijk/k djus dk #>ku gS ;k ugh, ;k bl rjg dk vijk/k og iqu% dj ldrk gS ;k ugh@” We are convinced that the petitioner‟s case is really covered by both the clauses. The Board‟s recommendation dated 2.9.2009 not only superseded its earlier recommendation dated 6.3.2009, but is also covered by the aforesaid notification of the State Government. The petitioner‟s crime on the second occasion appears to have been committed in a pre- meditated and organised manner, and was committed while he was on bail. The impugned order cannot, therefore, be faulted. The 9 petitioner is not entitled to the benefit of remission. 9.. We must also notice the contention advanced on behalf of the petitioner that similarly circumstanced persons, indeed his full-brothers who are co-convicts in the same trials, have been given the benefit of remission. Law is well settled that an erroneous order or benefit in favour of person(s) cannot be a ground to grant same and similar relief to a similarly circumstanced person in discretionary, prerogative writ jurisdiction, who really on merits is not entitled to the same. The learned Standing Counsel has relied on the following portion of paragraphs 3 and 4 of the judgment of the learned Single Judge of the Panjab and Hariyana High Court in Ajaib Singh Vs. State of Punjab (supra): “3. In the context of the first ground a Full Bench judgment of this Court in Hukam Singh v. State of Punjab, AIR 1975 Punj and Har 148: (1975 Cri LJ 902) may be noticed. It was held that an order in a premature release case being an executive order, the law does enjoin upon the State Government to give reasons which lead to the passing of the order. Hence the impugned order cannot be set aside on the plea that the State Government has not given reasons for rejecting the petitioner‟s prayer for premature release.” “4. Adverting to the second ground, with regard to the plea of 10 discrimination, it is held by the Full Bench in Hukam Singh‟s case (supra) that if a pleading is considered sufficient where it is merely stated that there has been arbitrary discrimination, it is impossible for the other side to meet it adequately unless he knows in what manner the discrimination is said to have been made. In the absence of complete particulars all that the opposite side could do, would be simply to deny that there had been discrimination. In the present case although the petitioner has named certain convicts who have been prematurely released, but it is not explained as to how they and the petitioner are similarly situated. Simply because premature release orders have been passed by the State Government in the case of other convicts, no inference can be drawn that the Government have acted discriminately vis-à-vis the petitioner. I am, therefore, unable to set aside the impugned order on the ground of discrimination.” It is relevant to state that the learned Single Judge has placed reliance on a Full Bench judgment of the same High Court in the case of Hukam Singh v. State of Punjab, AIR 1975 Punj. And Har. 148: (1975 Cri.L.J. 902). 10. The Supreme Court has observed as follows in State of Madhya Pradesh Vs. Ratan Singh (Supra): “9(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.” 11 11. In the result, we do not find fault with the impugned order. The writ petition is accordingly dismissed. 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 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 12 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. This Court would be pleased to be informed of the steps taken in this connection. 13. Let a copy of this order be handed over to Mr. Santosh Kumar Singh, Standing Counsel No.22. (S K Katriar, J.) (Kishore K. Mandal, J.) S.K.Pathak/