Patna High Court
Ajit Kumar @ Ajit Prasad vs The State Of Bihar Through The Chief ... on 15 September, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1126 of 2021
Arising Out of PS. Case No.-118 Year-2001 Thana- BIHAR District- Nalanda
======================================================
Ajit Kumar @ Ajit Prasad, Son of Sri Harishchandra Prasad, Resident
of Village - Meyar, P.S. Chhabilapur, District - Nalanda at Biharsharif.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar,
Patna. Bihar
2. The State Sentence Remission Board through the Principal Secretary,
Home Department, Government of Bihar, Patna.
3. The Joint Secretary- cum- Director (Administration), Home
Department (Prison), Bihar, Patna.
4. The Secretary, Law Department, Government of Bihar, Patna.
5. The Additional Director General of Police, Criminal Investigation
Department, Bihar, Patna.
6. The Inspector General , Jail and Reforms, Services, Bihar, Patna.
7. The Assistant Inspector General, Jail and Reforms Services, Bihar,
Patna.
8. The Jail Superintendent, Model Central Jail, Beur, Patna. Bihar.
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr.Ratnakar Pandey, Advocate
Mr.Lakshmi Kant Sharma,Advocate
Mr.Akshay Ashish, Advocate
For the State : Mr.P.N. Sharma, AC to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
C.A.V. JUDGMENT
Date : 15-09-2023
Heard Mr. Ratnakar Pandey, learned Advocate for the
petitioner and Mr. P.N. Sharma, learned AC to AG for the State.
2. This writ application has been filed for the
following reliefs:-
Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023
2/22
"(I) For issuance of an appropriate writ in the nature
of CERTIORARI for quashing the decision of the
State Remission Board dated 21.06.2019 so far it
relates to the petitioner, whereby and whereunder the
State Remission Board has been pleased to reject the
proposal of the petitioner for his pre-mature release
interalia on the ground that under clause (iv)(kha)
and (Gha) of Notification No. 3106 dated
10.12.2002as also there is no favourable report of Superintendent of Police, the petitioner is not eligible for grant of pre-mature release. (II) for issuance of an appropriate writ in the nature of MANDAMUS to consider the case of the petitioner for pre-mature release and release him in connection Sessions Trial No. 394 of 2002 arising out of Bihar P.S. Case No. 118 of 2001 on the ground that now the petitioner has already completed more than 21 years of sentence with remission and more than 16 years of his physical incarceration, taking into consideration that the case of the petitioner has been covered under 1984 Policy prevailing at the relevant time of his conviction since the petitioner was convicted on 23.04.2007 and the notification no. 3106 dated 10.12.2002 came into force with effect from on 02.07.2007 as held by this Hon'ble Court and all the prescribed Authorities recommended for his pre-mature release except Superintendent of Police.
(III) For issuance of any other appropriate writ/writs, order/orders direction/directions for which the writ petitioner would be entitled under the facts and circumstances of the case."
Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 3/22
3. It is the case of the petitioner that he having been convicted under Section 302 of the I.P.C. and sentenced for life has completed more than 20 years of incarceration with remission and more than 14 years of actual physical incarceration, still the Bihar State Sentence Remission Board (hereafter referred to as the 'Board') has rejected the proposal for premature release of the petitioner on the ground that there is no favourable report of the Superintendent of Police and his case would be covered under clause (iv)(kha) and (iv)(gha) of the Notification No. 3106 dated 10.12.2002.
4. Learned counsel for the petitioner submits that the learned Presiding Officer of the convicting trial court as well as the Probationary Officer have recommended vide letter No. 90/2019 dated 27.02.2019 and letter No. 16 dated 08.02.2019 respectively for premature release of the petitioner. During incarceration, his behaviour has been found satisfactory but the Superintendent of Police, Nalanda at Biharsharif did not recommend the premature release of the petitioner on the basis of the report of the Sub-Divisional Police Officer.
5. Learned counsel for the petitioner submits that during pendency of the writ application the Board once again considered the case of the petitioner for premature release in it's Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 4/22 meeting held on 20.04.2023 and this time the Board rejected his proposal for premature release on the solitary ground that the report of the Superintendent of Police is not favourable. In his report, he has referred the report of the Dy.S.P. saying that when the Dy.S.P. talked with some of the villagers in the village 'Meyar' and 'Barhauna', openly and confidentially, they informed that there is a sense of insecurity among the general people and in case of premature release of the petitioner there may be a law and order problem. The minute of the meeting of the Board dated 20.04.2023 has been challenged by filing I.A. No. 01/2023 which has been allowed by order dated 01.09.2023. Thus, the statements made in the interlocutory application and reliefs prayed therein form part and parcel of the writ application.
6. Learned counsel for the petitioner has placed before this Court several judicial pronouncements to submit that even though the notification No. 3106 dated 10.12.2002 was published in the Bihar Gazette (Extraordinary) on 28.12.2002, the same was not acted upon for a long time and the Jail Superintendents continued to grant remissions to the convicts as per the policy of the Government contained in Memo No. 550 dated 21.01.1984 which was replaced vide letter No. 2939 dated Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 5/22 29.06.2007 by the State Government and later on this letter was also clarified vide letter No. 4125 dated 02.07.2007. A copy of letter No. 2939 dated 29.06.2007 and letter No. 4125 dated 02.07.2007 have been brought on record as Annexure '6' and '6/1' respectively to the writ application.
7. Learned counsel has placed before this Court a copy of the supplementary counter affidavit filed by the Assistant Inspector General (Prison and Correctional services) in an another case i.e. Cr.W.J.C. No. 2530/2017 (Naresh Sahani Vs. the State of Bihar and others) wherein it has been categorically stated that vide notification No. 3106 dated 10.12.2002, the Government made amendments in the Bihar Jail Manual with immediate effect in exercise of the powers conferred by Section 59 of the Prisons Act, 1894, but the notification of the formal constitution of the Board could not be issued. The Government notified the formal constitution of the Board vide Notification No. 2214 dated 09.04.2018 with retrospective effect from 10.12.2002. In this very case a supplementary counter affidavit came to be filed by the then Principal Secretary, Department of Home, Govt. of Bihar, Patna. This affidavit was filed in compliance of the order dated 04.07.2018 passed by the Hon'ble Division Bench of this Court Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 6/22 in course of hearing of Cr.WJC No. 2530/2017. In his affidavit, the Principal Secretary, Home Department has categorically stated that a departmental committee constituted vide Memo No. 5800 dated 13.08.2018 for the scrutiny of releasing order of Jail Superintendents and recommendations made by the Remission Board has reported regarding the release of the life convicts from 28.12.2002 to 14.09.2007 (the date before the recommendation for release was made first time by the Remission Board) and the various recommendations made by the Remission Board from 25.09.2007 to 03.05.2018.
8. According to the affidavit of the Principal Secretary, Department of Home, Govt. of Bihar, the total number of life convicts released from jails between 28.12.2002 to 24.09.2007 (before the first recommendation made by the Remission Board) was 510 and no life convicts who were covered under clause (iv)(a) to (d) were released from the jail. It is however mentioned that between 28.12.2002 to 24.09.2007 the life convicts were released by the Jail Superintendents themselves after calculating 14 years of actual custody and 20 years of custody with remission. From 25.09.2007 and onwards the life convicts were released by the State, after the recommendation of the Board and prior to that they were being Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 7/22 released by the concerned Jail Superintendent.
9. The affidavit of the Principal Secretary, Department of Home in the aforemention writ, further states that from 25.09.2007 to 03.05.2018 total number of proposals of life convicts put up before the Remission Board for consideration was 2576, out of which, 1424 life convicts were recommended for release by the Remission Board and 668 proposals of life convicts were rejected on various grounds. Out of 1424 recommended proposals of life convicts for release, 17 proposals of life convicts were covered under clause (iv) (a) to
(d) of Notification No. 3106 dated 10.12.2002 of Home (Special) Department.
10. It is further stated in the affidavit filed in Cr.WJC No. 2530/2017 that out of the said 17 proposals of life convicts, two proposals of life convicts namely, Riyasat Mian (under Section 396 IPC, Session Trial No. 408/98 and date of sentence dated 30.01.2003) and Nagendra Singh, (Session Trial No. 399/98 under Section 376, 302, 201 IPC and date of sentence dated 16.01.2014) were recommended for release by the Remission Board in it's meeting dated 19.05.2014 and 15 proposals were either of 302/34 IPC or 302/148 IPC who were recommended in different meetings of the Board. Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 8/22
11. This Court has taken note of the aforementioned statements of the Principal Secretary, Department of Home, only for clarity on facts as to the actual date when the Board started functioning and considered the cases of remission. This has remained a bone of contention in a number of writ application as the State has at different stages raised various kinds of submission with regard to the implementation of the remission policy.
12. So far as the present case is concerned, the counter affidavit of respondent nos. 2, 3, 6 and 7 which has been sworn by the Superintendent Model Central Prison, Beur takes a stand that the petitioner is a life convict vide order and judgment dated 16.04.2007/30.04.2007 for the offence under Section 302 IPC for the murder of a public servant (a constable). It is not denied that after completing mandatory period of 14 years of actual custody and 20 years of custody with remission the proposal for premature release of the petitioner was put up before the Board which was rejected for the reasons indicated in the minute of the meeting dated 21.06.2019. The stand of the respondents in this counter affidavit is that the policy existing on the date of conviction of the petitioner would be applicable.
13. During pendency of the writ application, a Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 9/22 supplementary counter affidavit came to be filed with an information that vide Notification No. 2894 dated 10.04.2023 Rule 481(i)(ka) of Bihar Prison Manual, 2012 was amended whereby the part of sentence "or murder of public servant on duty" has been deleted. A copy of notification dated 10.04.2023 has been placed on record with the supplementary counter affidavit.
14. It is submitted that after amendment of Rule 481(i)(ka) of the Prison Manual the proposal for premature release of the petitioner was considered in the meeting dated 20.04.2023, but it has been rejected in view of the opinion of the Superintendent of Police, Nalanda. A copy of the letter of the Superintendent of Police, Nalanda has been brought on record as Annexure 'F' to the supplementary counter affidavit. Enclosure to the said letter is a report as contained in letter No. 3859 dated 15.12.2022 of the Dy.S.P., Rajgir. It is submitted that there is no illegality or infirmity in the impugned order dated 20.04.2023 passed by the Board, hence, no interference is required.
Consideration
15. Having heard learned counsel for the petitioner and learned counsel for the State, this Court finds that in the Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 10/22 present writ application the issue as to applicability of the Notification No. 3106 dated 10.12.2002 has lost it's significance. The only consideration required to be given is to the reason provided by the Board for rejection as disclosed in the supplementary counter affidavit in form of the minute of the meeting of the Board dated 20.04.2023.
16. This Court would first reproduce the letter of the Superintendent of Police and the report of the Dy.S.P., Rajgir which are on the record as Annexure 'F' to the supplementary counter affidavit.
"i=kad 6357 @xks0 fnukad& 21-12-2022
izs'kd]
iqfyl v/kh{kd]
ukyankA
lsok esa]
v/kh{kd] vkn"kZ dsUnzh; dkjk]
csmj] iVukA
fcgkj"kjhQ] fnukad -------- @10@2022
izlax%& vkidk i=kad 15826@dkjk] fnukad&05-12-2022- fo'k;%& fcgkj Fkkuk dkaM la[;k& 118@01] l=okn la[;k& 499@01] 394@02 esa vkthou dkjkokl ds ltkizkIr canh vthr dqekj mQZ vthr izlkn] firk& gfj"kpUnz izlkn lk0& es;kj] Fkkuk& Nfcykiqj] ftyk& ukyUnk ds vle; dkjk eqfDr gsrq v|ru vuq"kalk@earO; Hkstus ds laca/k esaA egk"k;] mijksDr izlaxk/khu fo'k;d i= ds laca/k esa lwfpr djuk gS fcgkj Fkkuk dkaM la[;k&118@01] l=okn la[;k&499@01] 394@02 esa vkthou dkjkokl ds ltkizkIr canh vthr dqekj mQZ vthr izlkn] firk& gfj"kpUnz izlkn lk0& es;kj] Fkkuk& Nfcykiqj] ftyk& ukyUnk ds vle; dkjk eqfDr gsrq tkWp izfrosnu vuqeaMy iqfyl inkf/kdkjh] lnj] fcgkj"kjhQ dk Kkikad& 3859@ vuq0 fnukad& 15-12-2022 ds }kjk lefiZr fd;k x;k gSA tkWp izfrosnu esa mYys[k fd;k x;k gS fd iq0v0fu0 vf[kys"k dqekj] Fkkuk/;{k] Nfcykiqj ds } kjk Fkkuk Kkikad& 1692@22] fnukad& 09-12-2022 ds ek/;e ls Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 11/22 lefiZr v|ru Li'V earO; esa vkthou dkjkokl ds ltk izkIr canh vthr dqekj mQZ vthr izlkn firk& gfj"kpanz izlkn mQZ gfjpj.k egrks lk0& es;kj Fkkuk& Nfcykiqj ftyk& ukyUnk ds vle; dkjk eqfDr gsrq tkWp xzke es;kj ,oa c<kSuk tkdj [kqys ,oa xqIr :i ls fd;k x;k ftlesa xzkeh.kksa ds }kjk mDr canh ds uke ls vke&tuksa esa Hk; dk egkSy vHkh Hkh dk;e gS rFkk buds vle; dkjk ls eqfDr gksus ij fof/k&O;oLFkk dh leL;k mRiUu gks ldrh gSA vr% vuqeaMy iqfyl inkf/kdkjh] lnj] fcgkj"kjhQ dk Kkikad& 3859@vuq0] fnukad& 15-12-2022 ds ek/;e ls lefiZr tkWp@v|ru earO; izfrosnu ewy esa lkFk layXu dj vxzrj dkjZokbZ gsrq Hksth tk jgh gSA d`i;k lwpukFkZA vuqyXud %& ;FkksifjA fo"oklHkktu] iqfyl v/kh{kd ukyankA i=kad 3859 @ mik0 vuqeaMy iqfyl inkf/kdkjh dk dk;kZy;] jktxhj] ukyankA izs'kd vuqeaMy iqfyl inkf/kdkjh] jktxhjA lsok esa fnukad& 15-12-22 iqfyl v/kh{kd] ukyankA izlax%& Hkonh; ds dk;kZy; Kkikad & 5781@xks0] fnukad 13-11-2022] Kkikad&6158@xks0] fnukad& 08-12-2022 ,oa v/kh{kd] dsUnzh; dkjk] csmj] iVuk i=kad& 14570@dkjk fnukad 09-11-2022 fo'k;%& fcgkj Fkkuk dkaM la[;k 118@01 l=okn la[;k& 499@ 01] 394@02] esa vkthou dkjkokl ds ltkizkIr canh vthr dqekj mQZ vthr izlkn] firk gfj"kpUnz izlkn ds vle; dkjk eqfDr gsrq v|ru Li'V vuq"kalk@earO; miyC/k djus ds laca/k esaA mi;ZqDr izlkafxd fo'k;d i= ds ek/;e ls dguk gS fd fcgkj Fkkuk dkaM la[;k 118@ 01 l=okn la[;k& 499@ 01] 394@ 02] esa vkthou dkjkokl ds ltkizkIr canh vthr dqekj mQZ vthr izlkn] firk gfj"kpUnz izlkn ds vle; dkjk eqfDr gsrq v| ru Li'V vuq"kalk @ earO; miyC/k djkus dk funsZ"k izkIr gqvk mDr i= ds vkyksd esa bl dk;kZy; ds Kkikad & 3691@ mik0 fnukad& 25-11-2022 ds ek/;e ls Fkkuk/;{k Nfcykiqj dks v|ru Li'V earO; miyC/k djkus gsrq funsZf"kr fd;k x;kA rnvkyksd esa iq0v0fu0 vf[kys"k dqekj] Fkkuk/;{k Nfcykiqj ds }kjk Fkkuk Kkikad & 1692@22 fnukad& 09-12-2022 ds ek/;e ls v|ru Li'V earO; miyC/k djk;k x;k ftles buds }kjk mYys[k fd;k x;k fd vkthou dkjkokl ds ltk izkIr canh vthr dqekj mQZ vthr izlkn firk gfj"kpanz izlkn gfjpj.k egrks lk0 es;kj Fkkuk Nfcykiqj ftyk ukyank ds vle; dkjk eqfDr gsrq bldh tkWp xzke es;kj ,oa c<kSuk tkdj [kqys ,oa xqIr :i ls yxk;k x;k rks Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 12/22 xzkeh.kksa ds }kjk irk pyk dh mDr canh ds uke ls vke&tuksa esa Hk; dk ekgkSy vHkh Hkh dk;e gS rFkk buds vle; dkjk ls eqDr gksus ij fof/k&O;oLFkk dh leL;k mRiUu gks ldrh gSA vr% Fkkuk/;{k Nfcykiqj ds earO; ls lger gksrq gq, ltk izkIr canh vthr dqekj mQZ vthr izlkn firk gfj"kpUnz izlkn dh vle; dkjk ls eqfDr gsrq vuq"kalk ugha dh tk jgh gSA d`i;k lknj lwpukFkZ iszf'krA vuqeaMy iqfyl inkf/kdkjh] jktxhjA"
17. This Court had earlier occasion to deal with a similar case in Cr.WJC No. 1278/2021 (Tullu Singh @ Ashuthosh Singh @ Ashutosh Prasad Singh Vs. The State of Bihar and others). In the said case also the proposal for premature release of the petitioner was rejected on the solitary ground that the Senior Superintendent of Police, Muzaffarpur had submitted an adverse report against him. This Court went through the report of the Senior Superintendent of Police and found that the said report was based on mere surmises and conjectures.
18. This Court noticed that no ground at all had been shown in the report of the Superintendent of Police, Muzaffarpur so as to take a view that the release of the petitioner may cause a law and order issue and this Court further found that the Board had passed a two lines order without discussing the S.S.P's report and without dealing as to why such report be accepted.
Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 13/22
19. At this stage, this Court has the benefit of the judgment of the Hon'ble Supreme Court in the case of Rajo @ Rajwa @ Rajendra Mandal Vs. The State of Bihar and others reported as 2023 INSC 771 (Writ Petition (Criminal) No(s). 252/2023). In the said case, the petitioner with three other co-accused was convicted for the murder of three persons
- two of which were police personnel (Dafadars) and third being a Chowkidar. The Hon'ble Supreme Court was informed that the proposal for premature release of the petitioner had been rejected by the Remission Board in it's meeting dated 20.04.2023 in the light of adverse/negative opinions received from the Superintendent of Police, Purnea and the Presiding Officer of the convicting court. After analysing Section 432(1) of the Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') which empowers the appropriate government to suspend or remit sentences and for that purpose to seek opinion of the Presiding Judge of the court by which the applicant had been convicted, as also a report of the Superintendent of Police, the Hon'ble Supreme Court observed in paragraph 19, 20, 21 and 22 which reads as under:-
"19. It has been repeatedly emphasized that the aim, and ultimate goal of imprisonment, even in the most serious crime, is reformative, after the offender undergoes a sufficiently long spell of punishment Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 14/22 through imprisonment. Even while upholding Section 433A, in Maru Ram v. Union of India18, this court underlined the relevance of post-conviction conduct, stating whether the convict, "Had his in-prison good behavior been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal parole, cultured by predictable, premature release, the purpose of habilitation would have been served, If law--S. 433-A in this case--rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by the proven criteria of reform."
20. Another aspect of note in this case, is the report submitted by the Superintendent of Police in the second round (which is diametrically different from that which was submitted in the first round), was adverse. Without casting aspersions on the veracity of it, or questioning it on merits, it is appropriate to flag another concern in such a context. In each case, the appropriate government has to be cognizant of the latent (not always) prejudices of the crime, that the police as well as the investigating agency, may be citing - especially in a case such as the present one, where the slain victims were police personnel themselves, i.e., members of the police force. These biases may inform the report, and cannot be given determinative value. Doing so will potentially deflect the appropriate government from the facts relevant for consideration for premature release, and instead, focus almost entirely upon facts which evoke a retributive response.
__________________________________________________________ 18 [1981] 1 SCR 1196 Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 15/22
21. Apart from the other considerations (on the nature of the crime, whether it affected the society at large, the chance of its recurrence, etc.), the appropriate government should while considering the potential of the convict to commit crimes in the future, whether there remains any fruitful purpose of continued incarceration, and the socio-economic conditions, review : the convict's age, state of heath, familial relationships and possibility of reintegration, extent of earned remission, and the post-conviction conduct including, but not limited to - whether the convict has attained any educational qualification whilst in custody, volunteer services offered, job/work done, jail conduct, whether they were engaged in any socially aimed or productive activity, and the overall development as a human being. The Board thus should not entirely rely either on the presiding judge, or the report prepared by the police. In this court's considered view, it would also serve the ends of justice if the appropriate government had the benefit of a report contemporaneously prepared by a qualified psychologist after interacting/interviewing the convict that has applied for premature release. The Bihar Prison Manual, 2012 enables a convict to earn remissions, which are limited to one third of the total sentence imposed. Special remission for good conduct, in addition, is granted by the rules19. If a stereotypical approach in denying the benefit of remission, which ultimately results in premature release, is repeatedly adopted, the entire idea of limiting incarceration for long periods (sometimes spanning a third or more of a convict's lifetime and in __________________________________________________________ 19 See Rule 405 and 413 of the Bihar Prison Manual, 2012. Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 16/22 others, result in an indefinite sentence), would be defeated. This could result in a sense of despair and frustration among inmates, who might consider themselves reformed-but continue to be condemned in prison.
22. The majority view in Sriharan (supra) and the minority view, had underlined the need to balance societal interests with the rights of the convict (that in a given case, the sentence should not be unduly harsh, or excessive). The court acknowledged that it lies within the executive's domain to grant, or refuse premature release; however, such power would be guided, and the discretion informed by reason, stemming from appropriate rules. The minority view (of Lalit and Sapre JJ) had cautioned the court from making sentencing rigid:
"73. [...] Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose Under Section 432/433 Code of Criminal Procedure In our view Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel."
20. Chapter 15 of the Bihar Prison Manual, 2012 (hereinafter referred to as the 'Prison Manual') is in Part 'A' and Part 'B'. Part 'A' deals with general Rules for release whereas Part 'B' contains the provisions governing premature release. Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 17/22 Rule 474 to 487 falling in Part 'B' provides for the constitution of Remission Board, meetings of the Board keeping in view the general principles of remission as laid down by the State Government or by the courts etc. Rule 478 of the Prison Manual reads as under:
"478. While considering the case of premature release of a particular prisoner the Board shall keep in view the general principles of remission of sentences, as laid down by the State Government or by the courts, as also the earlier precedents in the matter. The paramount consideration before the Board being the welfare of the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his/her release. The Board shall take into account the circumstances in which the offence was committed by the prisoner; whether he/she has the propensity to commit similar or other offences again; socio -economic condition of the convict's family and possibility of further violence or offence on his/her release, progress in victim reconciliation programmes and chances of reclaiming the convict as a useful member of the society."
21. It is crystal clear that the Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his/her release.
22. When this Court goes through Annexure 'F' and 'F/1' to the supplementary counter affidavit filed on behalf of the State, this Court is of the considered opinion that in the name of submission of a report, the Dy.S.P. Rajgir has submitted a completely vague and baseless report. According to him, he Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 18/22 enquired from the villagers of village 'Meyar' and 'Barhauna' openly and confidentially and found that there was a fear in the mind of the ordinary people with the name of the petitioner and there are possibilities of law and order issues in case of his release. These are only stereotyped ornamental languages used by the Dy.S.P. without referring to any basis and objectively testing the correctness of such assertions, if at all, made by the people. The Superintendent of Police, Nalanda has not at all done anything from his side. He has simply acted as a post office by forwarding the report of the Dy.S.P. Rajgir to the Superintendent, Adarsh Central Prison, Beur. Both the authorities could not appreciate that the responsibilities which they were required to discharge were in the nature of serious kind of responsibilities having civil consequence on the life and liberty of a convict which would require performance of duties by the persons entrusted with such duties with more circumspection and care.
23. Joan Petersilia in his book titled "WHEN PRISONERS COME HOME" (Parole and Prisoner Re-entry) published by Oxford University Press, based on interviews with dozens of correctional officials, policy makers, scholars and convicts writes:
Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 19/22 "There is emerging evidence that public opinion, and that of a few political elites, is undergoing a significant transformation and that the power of the punitive response is beginning to mellow. Public opinion polls show that, although a third of the public still support tough-on-crime measures, two thirds of the public now believe serious changes are warranted. Most of the public's desired changes are along the lines recommended above and incorporate greater individualization and flexibility. A 2002 public opinion poll conducted by Hart Research Associates concluded: "Support for long prison sentences as the primary tool in the fight against crime is waning, as most people reject a purely punitive approach to criminal justice. Instead, the public now endorses a balanced, multifaceted solution that focuses on prevention and rehabilitation in concert with other remedies" (Hart Research Associates 2002)."
24. This Court is of the view that the police personnel who are involved in preparing the report of a convict seeking premature release are required to be sensitized to strike a balanced view keeping in view a rehabilitative approach. Submission of a routine and mechanical kind of report is likely to cause huge damage to the chances of reintegration of the prisoner. Everybody deserves a second chance.
25. This Court has already noticed that in the same meeting of 20.04.2023, the Board had rejected the case of Rajo Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 20/22 @ Rajwa @ Rajendra Mandal which was the subject matter of challenge before the Hon'ble Supreme Court and the Hon'ble Supreme Court has while setting-aside the decision of the Remission Board put a word of caution that the Board should not entirely rely upon the report of the Presiding Judge or the report prepared by police.
26. The Hon'ble Apex Court has directed the Board to reconsider the application of the petitioner taking into consideration the various factors mentioned in paragraph '25' of the judgment which are being reproduced hereunder:-
"25. In light of these findings and the precedents discussed above, it would be appropriate if the Remission Board reconsidered the petitioner's application for remission afresh, considering the reports of the police and other authorities, the post-prison record of the petitioner, the remissions earned (including that which is earned for good conduct) his age, health condition, family circumstances, and his potential for social engagement, in a positive manner. The concerned presiding judge is hereby directed to provide an opinion on the petitioner's application for premature release, by examining the judicial record, and provide adequate reasoning, taking into account the factors laid down in Laxman Naskar (supra), within one month from the date of this judgment. With the benefit of this new report, the Remission Board may reconsider the application - without entirely or solely relying on it, but treating it as valuable (maybe weighty) advice that is based on the judicial record. Given the long period of incarceration Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 21/22 already suffered by the writ petitioner and his age, the Remission Board should endeavour to consider the application at the earliest and render its decision, preferably within three months from the date of this judgment. A copy of this judgment shall be marked by the Registry of this Court, to the Home Secretary, Government of Bihar, who is the chairperson of the Remission Board, as well as the concerned Presiding Judge, through the Registrar, High Court of Judicature at Patna High Court."
27. This Court is of the considered opinion that the Remission Board has not at all looked into Rule 478 of the Prison Manual as a result thereof the proposal for premature release of the petitioner has been rejected on the solitary ground that the report of the Superintendent of Police, Nalanda is not in favour of release. The decision of the Board is in the teeth of Rule 478 of the Prison Manual and the judgment of the Hon'ble Supreme Court.
28. In result, the impugned decision of the Remission Board as contained in the minute of the meeting dated 20.04.2023 (Annexure '10') insofar as it relates to the petitioner is hereby quashed.
29. The Board is directed to consider the case of the petitioner afresh keeping in view the guidelines provided by the Hon'ble Supreme Court in the case of Rajo @ Rajwa @ Patna High Court CR. WJC No.1126 of 2021 dt.15-09-2023 22/22 Rajendra Mandal (supra) in Writ Petition (Criminal) No(s). 252/2023. Such exercise must be completed at the earliest and a reasoned decision be taken preferably within a period of two months from the date of this judgment.
30. This Writ Application is allowed.
(Rajeev Ranjan Prasad, J.) Rajeev/-
AFR/NAFR AFR CAV DATE 01.09.2023 Uploading Date 15.09.2023 Transmission Date