WP(C) 3229/2007 BEFORE HON’BLE MR. JUSTICE RANJAN GOGOI, CHIEF JUSTICE (ACTING) HON’BLE MR. JUSTICE B.K. SHARMA B. K. Sharma, J Both the matters were taken up on the basis of the representations dated 5.6.2007 and 6.11.2008 received to the following affect. 2. WP(C) No. 3229/2007 (taken up) A convict, by name, Pawan Garh, who was found guilty of offence under Se ction 302/34 IPC by the learned Additional Sessions Judge, Dibrugarh and serving sentence in Central Jail, Dibrugarh, was enlarged on parole on 17.8.2005. In te rms of the release order, he was required to report back to the prison on 17.9.2 005. However, he did not return after availing the period of parole. Be it state d here that the said convict is still not traceable. In the representation dated 5.6.2007 received from one Shri Saibal Ganguly, Director, Harishpur Tea Compan y Pvt. Ltd., Dibrugarh, it has been stated that the said convict has been threat ening the family members of the victim in the case in question, namely, Sessions case No. 49/1995. It was stated in the representation that the matter was broug ht to the notice of the Inspector General of Prison, Assam, vide communication d ated 12.5.2006, but to no effect. It was further stated in the representation th at the matter was brought to the notice of the learned Addl. Sessions Judge, Dib rugarh, vide petition dated 27.11.2006, who in turn called for a report from the Superintendent of Central Jail, Dibrugarh. The report furnished by the Superint endent confirmed that the convict, who was released on 17.8.05 for one month, di d not return to the Prison. Unfortunately, the Superintendent instead of taking concrete and firm action in the matter imposed the burden on the representationi st to approach the Officer-in-Charge, Namrup Police Station for the arrest of th e convict. 3. WP(C) 4761/2008 (taken up) Three street roughs, namely, Babla, Bidhan and Sumon were found guilty o f killing one TUTUN on the night of 14.11.1988. They were convicted under Sectio n 302/34 IPC and sentenced to undergo rigorous imprisonment for life by the lear ned Sessions Judge, Silchar in Sessions case No. 67/92. The judgement of convict ion of sentence was delivered on 20.3.1996 and the same was affirmed by this cou rt vide judgement dated 19.8.1999 passed in criminal appeal No. 62/1996. Accordi ng to the representation, the three criminals have been made the judiciary and J ail administration, a mockery, with their money power. It is alleged that since 20.3.1996 and till the date of filling the representation (13 years), they were enjoying the well-furnished hospital beds and all amenities of luxury like TV, V ideo etc. and above all English drinks two times a day. It was further alleged t hat not for a single hour since 20.3.1996, the said convicts were put in jail ba rrack, where they should have been leaving aside the stipulation of rigorous imp risonment. According to the representation, the convicts come out at 8’O clock i n the morning and move around freely threatening others who do not show respect to them and return to jail at 5’O clock in the evening. The representationist qu estioned as to why such privileges are not extended to other convicts. As per th e allegation made in the representation, each one of the convict pays Rs. 5000/- per week to the Jail authorities for extending such benefits to them. According ly, a request was made in the representation to make an enquiry into the matter. Orders so far passed in the two writ petitions registered on the basis o f the aforesaid two representations :- WP (C) 3229/2007 (taken up) 4. The representation was entertained by order dated 27.6.2007 by way of is suance of notice asking the respondents to file affidavit. In the order passed t hereafter on 10.9.2007, the fact stated in the representation was taken note of. Referring to the affidavit dated 27.8.2007 filed by the Deputy Inspector Genera l of Prisons, Shri Ramani Kanta Nath, it was observed that the most unfortunate part of the story is that as per the report furnished by the Superintendent of C entral Jail, Dibrugarh, the convict was residing at Doomdoma with one Smt. Mamon i Soren. Thereafter the office of the Superintendent, Central Jail, Dibrugarh, s ent a message to Doomdoma Police Station to apprehend the convict but the police took no initiative to re-arrest the convict. It was observed that if the allega tions were established, the only inference that the court could draw is that the re is complete breakdown in discharge of the constitutional obligations by the S tate. 5. As recorded in the order dated 26.9.2007, an affidavit was filed by the Deputy Secretary to the Govt. of Assam, Home (B) Department, stating that the Ho me Department had taken up with utmost seriousness and earnestness the matter of re-capturing of the absconding convict Shri Pawan Garh of Dibrugarh Central Jai l. It was also recorded that as per the affidavit, Shri P. Buragohain, the then Officer-in-Charge of Doomdoma Police Station, serving as SI in the State SB(Hq) Assam, Guwahati and Shri M.S. Sinha, ASI, the then ASI, Doomdoma PS, serving as ASI at Lekhapani Police Station under Tinsukia District were kept under suspensi on. By the said order, the Superintendent of Police, Tinsukia was directed to be present in the court on 4.10.2007. 6. On 4.10.2007, the said Superintendent of Police was present in the court and submitted status report relating to the case. As per the report, the messag e received from the Prison authority by the Officer-in-Charge, Doomdoma PS dated 19.10.2005 was not brought to the notice of any superior officer and therefore, no concrete action could be taken for apprehending the convict who violated the conditions of the order relating to parole. 7. In the order passed on 18.3.2008, direction was issued to complete the d epartmental proceeding against the erring officials as expeditiously as possible , preferably within a period of 8(eight) weeks from the date of the order. Direc tion was also issued to take all necessary steps for apprehending the convict. 8. In the order passed on 2.6.2008, the punishment imposed on the erring of ficials was noted. It was also noted that the convict who jumped the parole was not yet apprehended. On 20.3.2009, recording the issue involved as one of substa ntial public importance, a direction was issued to the Inspector General of Pris ons and the Superintendent of Police, Tinsukia to report personally as to whethe r the release on parole of the life convict had the approval / sanction of the S anctioning Authority i.e. the Inspector General of Prisons. On 25.3.2009, the I. G. of Prisons and the SP, Tinsukia were personally present in the court. The S.P . through his affidavit appraised the court that the application submitted by th e life convict for release on parole / leave and the orders of the Inspector Gen eral of Prisons on the said application under the provisions of Assam Prisons (L eave and Emergency Release) Rules, 1968. Such release was for a period of 30(th irty) days upto 16.9.2005. Accordingly, it was noted that the release of the con vict on parole was in accordance with the perceptions of the concerned authority , with regard to the purport of the rules in question. It was also noted in the said order that as per the affidavit filed, Smt. Mamoni Soren, with whom the lif e convict was allegedly living, is the wife of one Md. Imam Hussain and that the re was no relationship between the life convict and said Smt. Soren. On contact, said Smt. Soren also could not give any clue with regard to the whereabouts of the escaped life convict. The order further recorded the information furnished b y the S.P. that with regard to the whereabouts of the life convict, a case i.e. Namrup PS Case No. 71/2007 under Section 384/506 IPC had been registered and the same was still under investigation. 9. However, in the order dated 8.4.2009, on perusal of the affidavit dated 1.4.2009 filed by the Superintendent of Police, Dibrugarh, the court expressed i ts shock and surprise to note that though the life convict Pawan Garh had jumped the parole as far back in 2005, no case in respect of the said event had been r egistered by the jurisdictional Police Station, though the fact in question was informed to all concerned. It was only recently that a police case i.e. Namrup P S case No. 20/2009 under Section 224 IPC had been registered against the abscond ing convict. Directions were issued to make all out effort to apprehend the conv ict. The matter was taken up on 8.5.2009 and on perusal of the further affidavit filed by the SP, Dibrugarh, it was recorded that the steps taken to apprehend t he absconding convict had been undertaken in the right earnest. The SP, Dibrugar h was directed to supervise the investigation. 10. WP(C) 4761/2008 (taken up) The representation was admitted on 17.11.2008 with the direction to the learned District and Sessions Judge, Silchar to furnish a report relating to the incident. The report was submitted on 7.1.2009. Thereafter, the matter was take n up on 21.1.2009. It was recorded that the case is a classic demonstration of the pathetic state of affairs in enforcement of criminal law. Recording the subs tance of the facts narrated in the representation, the report furnished by the l earned District and Sessions Jduge, Silchar was also referred to. From the repor t, it was revealed that most of the times, the three convicts had been either in the jail hospital or in the Silchar Medical College and Hospital (for short SMC H). They were also liberally granted leave from the prisons on various occasions . Referring to the case of Partha Pratim Nath, it was recorded that he was grant ed leave on 8(eight) occasions in a period of 8(eight) years, commencing from 14 .4.2001 ; on 7(seven) occasions leave of 30 (thirty) days each and on one occasi on 60(sixty) days leave. The relevant portion of the report as quoted in the ord er is reproduced below :- He was allowed emergency leave for a period of 60 days with effect from 14.4.01 to 14.6.01 as per the order of the Inspector General of Prisons vide or der No. PRI 3/2001/24 dated 12.4.01. He was again granted leave for 30 days with effect from 1.2.02 to 14.3.02 by order of the Inspector General of Prisons, Ass am vide No. PRI 10/2002/8 dated 30.1.02. He was granted emergency leave for 30 d ays with effect from 11.10.02 to 10.11.02 vide order No. PRI 10/2002/111 dated 1 3.6.02 of the Inspector General of Prisons, Assam. He was granted leave again fo r 30 days with effect from 11.6.03 to 12.7.03 by the Inspector General of Prison s, Assam vide order No. PRI 10/2002/pt/359 dated 7.6.03. He was again granted em ergency leave with effect from 19.1.04 for 30 days vide order of the Inspector G eneral of Prisons, Assam vide No. PRI 10/2002/pt/280 dated 11.12.03. He was gran ted emergency leave with effect from 20.1.04 to 20.11.04 for 30 days by the Insp ector General of Prisons, Assam vide order No. PRI 4/2003/100 dated 8.9.04. He w as again granted leave for 30 days by the Inspector General of Prisons, Assam wi th effect from 23.1.06 to 24.2.06 vide order No. PRI4/2004/pt/469 dated 5.1.06. He was lastly granted leave with effect from 1.7.07 to 31.7.07 for 30 days by th e Inspector General of Prisons, Assam vide order No. PRI 20/2006/pt/98 dated 22 .3.07. He was released from Central Jail, Silchar on 28.2.08 . 11. It was found that same was the state of affairs in respect of other two convicts. It was also found that by a judicial order passed by the then Sessions Judge, Silchar in Misc. Case No. 119/2001 filed by the convicts, directed that the three convicts be treated as B Division Prisoners. The relevant portion of the order quoted in the order of this court dated 21.1.2009 is reproduced below :- I have gone through the relevant provisions and Rule of Jail Manual. Co nsidering their social status, education, habits of life and the report of Supdt . of District Jail and the documentary evidence, regarding their educational car eer and Govt. Service etc, on a perusal thereof, I think they may be classified into B Division prisoners. Accordingly, Supdt. of District Jail is directed to categorise the petitioners as B Division prisoners, subject to confirmation, if any by the Govt. concern . 12. In the order, it was recorded that the classification of the convicts as prisoners belonging to B Division was apparently made as per the provisions o f the Assam Jail Manual, which recognises a convict to be classified as such on the basis of his social status, education or habits of life etc. It was found t hat two of the three convicts had been released ostensibly in exercise of the po wer under Section 2 of the Good Conduct Prisoners’ Probational Release Act, 1938 of the State of Assam. Another convict, although was not yet released but was s till continuing in the jail hospital. Regarding the preferential treatment recei ved by each one of the three convicts at all levels, it was observed that the ma tter required a further probe. Prima facie, it was found that the release of the first two of the three convicts on LICENSE invoking the power under Section 2 o f the Act of 1938 was unsustainable. The registry was directed to put the three convicts on notice on the pendency of the present proceeding, more particularly , (1) calling for an explanation as to why the LICENSE referred to above in t he case of the first two of the three convicts should not be quashed, (2) as to why the classification of B Division prisoners granted in their favour earlier should not be recalled and (3) whether their continuous stay in the hospital as indicated in the report of the learned Sessions Judge, Silchar is justified, if not what further action under the law is required to be taken against them and whether the period of their stay in the hospital be treated as period of impriso nment undergone. 13. By the said order, direction was also issued to put the Medical Officers attached to the Central Jail, Silchar who had certified that the three convicts be permitted to stay in the hospital from time to time, to show cause as to why appropriate action against them should not be initiated. Direction was also iss ued to forthwith apprehend the two convicts and lodge them in the Central Jail, Silchar. 14. The matter was taken up on 29.1.2009 and it was informed that the two co nvicts who had been released on LICENSE had again been arrested and lodged in Ce ntral Jail, Silchar. The further information furnished by the Superintendent, Ce ntral Jail, Silchar was to the effect that one Dr. Amaresh Das, Medical & Health Officer-1 attached to the Jail had been working there from 1983 uninterruptedly . It was found that it was the said Doctor on whose opinion, the convicts had al ways been lodged in the jail hospital, notwithstanding the fact that they were c onvicted for the offence under Section 302 IPC and were directed to undergo Rigo rous Imprisonment for life. Accordingly, direction was issued that the said Doct or (Dr. Amaresh Das) be made party respondent to the writ petition and he was pu t on notice of the pendency of the present proceeding. 15. By orders dated 27.2.2009 and 25.3.2009, time was granted to the convict s to file their affidavits. While hearing the matter on 8.4.2009, it was felt ne cessary to have the records showing the decision making process leading to the r elease of the life convicts Shri Partha Pratim Nath @ Babla, Parijat Kusum Nath @ Bidhan and Shri Sumon Nath, on paroles as per the provisions of Assam Prisons (Leave and Emergency Release ) Rules, 196. Accordingly, direction was issued. Di rection was also issued to the Health Department to appraise the Court as to un der what circumstances, the respondent No.8 Dr. Amaresh Das had been allowed to work in the hospital attached to the Silchar Central Jail continuously and unint erruptedly from the year 1983. 16. On 9.4.2009, the records produced by the learned State Counsel with rega rd to the grant of leave to the convicts had been perused. The records were allo wed to be inspected by the learned counsel for the convicts. The said records re vealed that the convicts were brought to the jail to serve the life sentence imp osed on them and on numerous occasions, they had been lodged either in the jail hospital or had been referred to the SMCH. The records also revealed that the tw o life convicts, namely, Partha and Parijat had spent long periods as indoor p atients either in the jail hospital of the Central Jail, Silchar or in the SMCH. 17. On perusal of the records produced by the learned Standing Counsel, Heal th, the court noticed that there was no cogent explanation whatsoever for the co ntinuous retention of the respondent No.8 in the jail hospital for a period of 2 6 years. Accordingly, direction was issued for immediate transfer of the respond ent No.8 out of the jail hospital. 18. By order dated 3.6.2009, having regard to the importance of the matter, Mr. N. Dutta, learned Senior Counsel, was requested to act as Amicus Curiae and he readily agreed to render assistance to the Court. Mr. Dutta was requested to address the court with regard to the provisions of the Assam Prisons (Leave and Emergency Release) Rules, 1968 (as amended in 1986) and to Good Conduct Prisoner s’ Probational Release Act, 1938 as well as the procedure adopted in the present two cases for release of prisoners under the provisions of 1968 Rules and for g rant of LICENSE under the provisions of 1938 Act 19. After the aforesaid orders passed in the proceeding, both the matters we re heard at length on 30.10.2009 and the learned State Counsel as well as learne d Standing Counsel, Health were directed to furnish the following informations : - 20. State Counsel i) Particulars of convicts covered by offences mentioned in Section 433 (A) Cr.P.C., who have been released on LICENSE granted under the Provisions of the 1938 Act for the period commencing from 01.01.2001. ii) The number of persons released under the 1968 Rules who have not report ed to Jail after completion of the period of leave granted. The figures to be pr ovided was for the period commencing from 1.1.2001. iii) The reasons showing the decision making process leading to grant of lea ve to the convicts under 1968 rules (as amended in 1986) and the file showing t he decision making process leading to grant of LICENSE for release of convict P artha Pratim Nath. 21. Standing Counsel, Health i) The file showing the reasons why the transfer of Dr. Amaresh Das from th e jail hospital, District Central Jail, Silchar to North Cachar Hills, had been modified. Be it stated here that although Dr. Das was initially transferred to N orth Cachar Hills pursuant to the order passed by this court but latter on, the same was modified. ii) The circumstances in which Dr. Das was permitted to work in the jail hos pital, District Jail, Silchar uninterruptedly from the year 1983. The file relat ing to proposal for transfer of Dr. Das, if any, made during the period from 198 3 to 2008 was also directed to be produced. iii) The circumstances in which the third person involved in the proceeding i .e. Shri Sumon Nath has been allowed to work as Attender in the Jail hospital, D istrict Jail, Silchar continuously from 1989 and the reasons for not posting qua lified Attender in the jail Hospital. 22. Be it stated here that while two of the three convicts had been allowed to go on LICENSE / LEAVE etc. and also were allowed to remain in jail hospital a nd SMCH, the 3rd convict was engaged as Attender in the jail hospital and thus h e could remain out of the jail without undergoing the Rigorous Imprisonment for life in its true sense. 23. The respondents State by its applications dated 7.11.2009 (MC 2872/2009 and MC 2873/2009) prayed for some more time (two weeks) to produce / furnish re cords in terms of the aforesaid order passed on 30.10.2009. It was only thereaft er the State produced the records on 20.11.2009. 24. We have heard Mr. N. Dutta, learned Senior Counsel appearing as Amicus C uriae as well as Mr. A.K. Phukan, learned Advocate General, Assam. We have also heard Mr. A.K. Bhattacherjee, learned Senior Counsel assisted by Mr. D. Mazumdar , representing the convicts. The respondent No.8 was represented by Mr. R.P. Kak oti, learned Advocate. 25. Mr. Dutta, learned Amicus Curiae, submitted that the provisions containe d in Rule 3 of the Assam Prisoners’ (Leave and Emergency Release) Rules, 1968 to the effect that Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (now Section 432 of the Code of Criminal Procedure, 1973), the prisoner may be granted leave or emergency release by the sanctioning authority is opposed to Article 254(2) of the Constitution read with the Prov iso thereto. He further submitted that the provisions of Good Conduct Prisoners’ Probational Release Act, 1938 and the Rules framed thereunder contain separate provisions for release of Prisoners sentenced to imprisonment and the benefits t here under are somewhat larger than the benefits conferred by the 1968 rules. Ac cording to him, there are no guidelines as to how identification of the cases to be dealt with under the two separate enactments is to be made. According to Mr. Dutta, this may have the affect of rendering both the enactments constitutional ly invalid being hit by Article 14 of the Constitution. 26. Mr. A.K. Phukan, learned Advocate General, Assam, submitted that the rel ease of prisoners is guided by certain factors, namely, antecedents, good conduc t in prison and likelihood of not repeating the offending acts and also the natu re of the offence etc. According to the learned Advocate General, it cannot be s aid that the power to release is un-guided. He further submitted that the discre tion of the Government cannot be held to be unlimited, inasmuch as, no release c an be made under LICENSE arbitrarily. According to him, the 1938 Act and 1968 Ru les operate in two distinct and separate spheres and as such, there cannot be an y challenge on the ground that the said enactments are violative of the equality clause. He also submitted that the release under the rules framed under 1938 Ac t or under the 1968 Rules does not interfere with the sentence and the said rule s are not contrary to Section 401 Cr.P.C., 1898 or Section 432 of Cr.P.C., 1973. Mr. Phukan, learned Advocate General also argued on the theory of reformation i n the context of prison reform. 27. Mr. A.K. Bhattacharyya, learned Senior Counsel appearing for the life co nvicts generally adopting the arguments advanced by the learned Advocate General submitted that irrespective of the results of the instant proceeding, the benef it already granted in favour of the convicts may not be withdrawn. He further su bmitted that the convicts may not be transferred from the Central Jail, Silchar as their children are at Silchar. 28. We have given our anxious consideration to the submissions made by the l earned counsel for the