Patna High Court
Ganesh Sah vs The State Of Bihar Through The Chief ... on 10 November, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1239 of 2022
Arising Out of PS. Case No.-53 Year-1999 Thana- KHANPURA District- Samastipur
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1. Ganesh Sah Son of Late Ram Awtar Sah @ Rameshwar Sah Resident of
village - Bawanghat, P.S.- Khanpur, District - Samastipur.
2. Dana Devi Wife of Ganesh Sah Resident of village - Bawanghat, P.S.-
Khanpur, District - Samastipur
... ... Petitioners
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, Khudi Ram Bose Central Jail, Muzaffarpur. Bihar
... ... Respondents
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Appearance :
For the Petitioner/s : Mr.Vijay Kumar Singh, Advocate
For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date :10-11-2023
The two petitioners in the present writ application are
questioning the decision of the State Sentence Remission Board
(hereinafter referred to as the 'Board') taken on 19.05.2021 in the
matter of premature release of the petitioner no. 1 on completion
of their 14 years of physical incarceration and 20 years with
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023
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remission. Further, they are seeking a 'Mandamus' to the 'Board'
to consider their premature release.
Case of the Petitioner
2. The petitioners were charged for the offence under
Sections 302 and 120B of the Indian Penal Code (in short 'IPC') in
Sessions Trial No. 390 of 2000 / 634 of 2006 arising out of
Khanpur P.S. Case No. 53 of 1999 in the court of learned
Additional Sessions Judge, F.T.C. No. 5, Samastipur. The
petitioner no. 1 namely, Ganesh Sah was convicted and sentenced
to death and rigorous imprisonment for seven years respectively.
His wife (petitioner no. 2) was also convicted for the same
offences and was awarded life imprisonment for the offence under
Section 302 IPC and rigorous imprisonment for 7 years for the
offence under Section 120B of the Indian Penal Code. The
petitioner no. 2 has been further ordered to pay a fine of Rs.
50,000/- out of which Rs. 40,000/- is payable to the wife of the
deceased Suresh Sah and in default the petitioner no. 2 shall
undergo R.I. for a further period of two years. Her sentences are to
run concurrently.
3. On reference under Section 366 of the Code of
Criminal Procedure (in short 'Cr.P.C.') made by the learned
Presiding Officer of the trial court, Death Reference No. 2 of 2007
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023
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(The State of Bihar Vs. Ganesh Sah) was registered and the same
was heard along with Cr. Appeal (DB) No. 649 of 2007 ( Ganesh
Sah versus State of Bihar) and Cr. Appeal (DB) No. 625 of 2007
(Dana Devi Vs. The State of Bihar). The Hon'ble High Court
maintained the conviction of both the appellants, however, on the
award of death sentence of appellant no. 1 Ganesh Sah the Hon'ble
Court found that the appellant had indulged in the murders because
of his mental perception of partiality of his father in not giving him
proper share of land. The sentence for the offence under Section
302 IPC was commuted to sentence of life imprisonment and also
fine of Rs. 50,000/- and in case of default he will undergo further
rigorous imprisonment for two years. If the fine is realized then
Rs. 40,000/- out of the same shall go to the wife of the deceased.
The date of conviction of the petitioners is 23.03.2007/29.03.2007.
4. While assailing the impugned order of the Board as
contained in Annexure 'P-5' to the writ application, learned
counsel for the petitioners submits that both the petitioners have
completed more than 18 years of actual physical incarceration and
20 years with remission.
5. It is submitted that the State Government has come
out with a notification in exercise of its power conferred under
Section 59 of the Prison Act 1894 (hereinafter referred to as the
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023
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'Act of 1894') contained in Memo No. 3106 dated 10.12.2002
whereby and whereunder Rule 529 of the Bihar Jail Maunal has
been amended by substituting a new Rule. According to Clause
(iii) (?k) of the Notification Dated 10.12.20002 a convict who is
undergoing sentence of life imprisonment shall on completion of
65 years of age, if he has completed 7 years of sentence with
remission, such convict shall be eligible to be considered for
premature release. It is submitted that the petitioners are more than
70 years of age, therefore, the aforesaid provisions shall apply in
their case.
6. Learned counsel for the petitioners submits that the
Jail Superintendent, Khudi Ram Bose Jail, Muzaffarpur, the
Superintendent of Police, Muzaffarpur and the Probation officer
recommended the case of the petitioners for premature release but
the Presiding Officer of the court did not recommend for
premature release of the petitioner no. 1.
7. It is submitted that the proposal of the petitioner no. 1
for his premature release was placed in the meeting of the Board
on 19.05.2021 but the same was rejected on the ground contained
in Clause (iv) ([k) of the Notification dated 10.12.2002 as also on
the ground of unfavourable report of the learned Presiding Officer.
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8. It is further submitted that on the date of conviction of
the petitioners i.e. on 29.03.2007 the old Policy of 1984 were in
existence and the same was being followed and the notification
dated 10.12.2002 though published on 28.12.2002 but came to be
actually implemented only with effect from 02.07.2007, therefore,
the rejection of the proposal for premature release of the petitioner
no. '1' invoking the clause (iv) ([k) of the Notification dated
10.12.2002is wholly illegal and the same is in violation of the judicial pronouncements of this Court.
9. In order to strengthen his submissions, learned counsel relied upon the Hon'ble Division Bench judgment of this Court rendered on 20.06.2017 in Cr.W.J.C. No. 748 of 2017 (Chandra Kant Kumar Vs. The State of Bihar & Ors.) which has been followed by this Court in Surendra Mahto Vs. The State of Bihar & Ors. reported in 2021 (4) PLJR 393, the judgment dated 22.12.2022 of this Court passed in Cr.W.J.C. No. 861 of 2021 (Md. Allauddin Ansari & Ors. Vs. The State of Bihar & Ors. reported in 2023 (1) PLJR 385) and a recent judgment rendered on 15.09.2023 in the case of Ajit Kumar Mishra Vs. The State of Bihar & Ors. reported in 2023 (5) BLJ 783. It is submitted that to his knowledge the respondents have complied with the aforementioned judgments of the Hon'ble Division Bench in case Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 6/38 of Chandra Kant Kumar Vs. The State of Bihar & ors. (Cr.W.J.C. No. 748 of 2017) and the judgment of this Court in Surendra Mahto and Md. Allauddin Ansari. In those judgments it has been categorically held that the State Government has given benefit of 1984 Policy to the convicts of the period after publication of Notification dated 10.12.2002 and prior to 25.09.2007, therefore, the same benefit must be granted to the similarly situated persons.
Stand of the State
10. A counter affidavit has been filed on behalf of the State and its authorities which has been sworn by the Superintendent, Central Jail, Muzaffarpur. The respondents do not dispute that these petitioners have already completed 14 years of actual physical incarceration and 20 years with remission. The counter affidavit support the decision of the Board on the ground that the petitioners in this case have been convicted for organized murder in a premeditated manner. It is submitted that the petitioners who have been convicted for organized murder are not considered eligible for premature release. Reliance has been placed on the Notification dated 10.12.2002.
11. Learned counsel for the State further submits that in this case the petitioner no. 1 was awarded death sentence by the Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 7/38 learned trial court which was commuted to life imprisonment by the Hon'ble appellate court. In such case, in view of the judgment of the Hon'ble Supreme Court in the case of Swamy Shraddananda (2) @ Murali Manohar Mishra Vs. State of Karnatka reported in (2008) 13 SCC 767 and Union of India Vs. V. Sriharan @ Murugan and Ors. reported in (2016) 7 SCC 1, the petitioner no. 1 shall not be eligible to be considered for premature release.
12. In the counter affidavit the State has tried to explain the reasons for passing of the judgment by the Hon'ble Division Bench of this Court in Cr.W.J.C. No. 748 of 2017 (Chandra Kant Kumar Vs. The State of Bihar & Ors.). It is stated that in the said case a submission was made on behalf of the petitioner that one Ajay Kumar Chaudhary a convict under Section 376 IPC was recommended for premature release in the meeting of the Board held on07.04.2017 but father of the petitioner of Cr.W.J.C. no. 748 of 2017 (Chandra Kant Kumar Vs. The State of Bihar & Ors.) was not recommended. It is submitted that in fact the date of conviction of Ajay Kumar Chaudhary was 23.09.1997 and in the proceeding of the Board there were two dates mentioned. 08.04.2003 was the date on which the lower court had issued the conviction warrant after disposal of Criminal Appeal. Distinction Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 8/38 has been sought to be made between the case of Ajay Kumar Chaudhary and Tribhuwan Sharma who was father of the petitioner in Cr.W.J.C. no. 748 of 2017. It is not denied that the State respondents considered the case of the father of the petitioner in Cr.W.J.C. No. 748 of 2017 and released him. It is also not denied that in the said case the Hon'ble Division Bench found that the Remission Board was constituted for the first time in the year 2007, there was no denial of this fact on behalf of the State.
13. Learned counsel for the State has referred a learned co-ordinate Bench judgment rendered on 19.07.2022 in Cr.W.J.C. No. 201 of 2020 (Munilal Sharma vs. The State of Bihar & Ors.) wherein it has been held that Notification No. 3106 dated 10.12.2002 came into effect from the date of publication in the Bihar Gazette on 10.12.2002.
Reply of the petitioner
14. Learned counsel for the petitioner has submitted a rejoinder to the submission of learned counsel for the State. It is submitted that so far as the implementation of the Rules contained in Notification dated 10.12.2002 is concerned, the learned co- ordinate Bench has, in fact, agreed in the case of Munilal Sharma (supra) that the constitution of Bihar State Sentence Remission Board was notified on 09.04.2018. It is submitted that the views Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 9/38 expressed by the Hon'ble Division Bench in the case of Chandra Kant Kumar (supra) this Court in Cr. W.J.C. No. 236 of 2021 decided on 25.10.2021 Surendra Mahto Vs. The State of Bihar & Ors. (supra) are equally applicable and an identical direction be issued to the Board to consider the case of the petitioners under 1984 Policy, Any other view would only be discriminatory and prejudicial to the petitioners.
15. Learned counsel further submits that in Cr.W.J.C. No. 861 of 2021 decided on 22.12.2022 (Md. Allauddin Ansari) and another analogous case, this Court has followed the judgment of the Hon'ble Division Bench in the case of Chandra kant Kumar (Cr.WJC No. 748 of 2017) and its judgment in the case of Surendra Mahto.
16. Learned counsel for the petitioner further submits that recently 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) the Hon'ble Supreme Court has once again reiterated that the proposal of premature release cannot be rejected on the basis of the report of the Presiding Officer of the trial court alone. Learned counsel further contests the submission of learned AC to AG for the State that the petitioner no. 1 who was earlier awarded a sentence of death but Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 10/38 the same was commuted to one of life imprisonment by the Hon'ble Appellate Court cannot be considered eligible for premature release.
Consideration
17. In the given facts of the present case, this Court once again finds that a controversy centers around the date of actual implementation of the notification dated 10.12.2002 by the Board. In other words, it is required to be examined as to whether even after publication of the notification dated 10.12.2002 on 28.12.2002, the prisoners who were convicted and sentenced on and after 28.12.2002 continued to get benefit of 1984 Policy and they were granted premature release by the Government.
18. The notification dated 10.12.2002 was issued in exercise of power under Section 59 of the Act of 1894. By this notification Rule 529 as existing at the relevant time in the Jail Manual came to be amended. It is worth mentioning that in exercise of power conferred by Section 59 of the Act of 1894 (as amended) the Government of Bihar has framed the Bihar Jail Manual, 2012 (hereinafter referred to as the 'Manual of 2012') in supersession of the first Jail Manual. Chapter '15' of the Manual of 2012 is in two parts. Part 'A' provides the general provisions for release. Part 'B' contains Rule 474 to 487 for the purpose of Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 11/38 premature release. This part provides for constitution of Remission Board, the meetings of the Board, the procedure for dealing with the proposals for premature release, categories of prisoners who shall be eligible for release by the Board and the categories of prisoners covered under Section 433A of the Cr.P.C. in the exception list.
19. The categories of convicts who were covered under Section 433A has been substituted vide Amendment Notification No. 3194 dated 26.05.2016. In order to fully appreciate the changes brought about the notification dated 26.05.2016 in the exception list, this Court would reproduce Rule 481 of the Manual of 2012 hereunder:-
"481. The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the Board:
i. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A CrPC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions. 2 [The following categories of convicted prisoner covered under Section 433A Cr.P.C. undergoing life sentence would not be entitled to be considered for premature release even after undergoing imprisonment for 20 years including remission:] 1 [(a) Such convicts who have been imprisoned for life for rape, rape with murder, dacoity with murder, murder involving offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in terrorist incident, murder in smuggling operation, 2 [xxx]]
(b) Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity.
1. Ins. by Amdt. Notifn. No. 3194, dated 25.06.2016.
2. Subs. By ibid Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 12/38
c) Convicts whose death sentence has been commuted to life imprisonment.
ii. All other convicted male prisoners not covered by section 433A Cr.PC 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 but only after completion of 10 years actual imprisonment i.e. without remissions.
iii. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions. 3 [(iv) In such cases in which life sentence has been awarded by specifying that the convict shall undergo life sentence till the end of his life without remission or commutation, benefit of remission or commutation shall not be given to convict.] 3 [(v) In such cases in which life sentence has been awarded by specifying that the convict shall not be released by granting remission or commutation till he completes a fixed term of 20 years or 25 years or like, remission or commutation shall not be granted to a convict until he completes the fixed term as prescribed in the sentence.]"
20. Further Rule 478 of the Manual of 2012 guides the Board in the matter of consideration of the proposals for premature release. Rule 478 of the Manual of 2012 Rules is 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"
(underline is mine)
3. Ins. by Amdt. Notifn. No. 3194 dated 26.5.2016 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 13/38
21. Therefore, precedents in the matter are to be kept in mind while considering a proposal for pre-mature release. Section 433 Cr.P.C. confers a statutory power upon the appropriate government to commute
(a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment of 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.
22. Section 433-A imposes a restriction of powers of remission or commutation in certain cases. Section 433-A Cr.P.C. reads as under:-
"1[433-A. 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 punishment 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"
23. From a bare reading of Section 433-A Cr.P.C., it is crystal clear that in case of a person whose sentence of death has been commuted under Section 433 CrPC into one of imprisonment for life, such person has to compulsorily serve at least 14 years of imprisonment. In the case of State of Haryana and Others Vs. Jagdish reported in (2010) 4 SCC 216, the Hon'ble Supreme Court has
1. Inserted by Act 45 of 1978, S. 32 (w.e.f. 18-12-1978) Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 14/38 in a very erudite manner explained the framework of all executive power and how to exercise the same. Paragraph '28' of the judgment in the case of Jagdish (supra) is reproduced hereunder:-
"28. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433- A CrPC may have a different flavour in the statutory provisions, as short-sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself."
24. At this stage, this Court would also reproduce the relevant part of the notification/remission notification dated 10.12.2022 which is the bone of contention in the present case:-
"¼vi½ Lke;& iwoZ fjgkbZ ds fy, v;ksX;rk fuEufyf[kr Js.kh ds fl)nks'k canh] tks vkthou dkjkokl dk naM Hkqxr jgs gks] le;&iwoZ fjgkbZ ds fy, fopkj& ;ksX; ughs gks ldsaxs &A ¼d½ cykRdkj] MdSrh] vkradoknh vijk/kksa] vkfn tSls vijk/kksa ds fl)nks'k canhA ¼[k½ oSls canh] tks iwoZ fparu fd;s x;s fo'k;ksa ,oa lqfu;ksftr <ax ls gR;k,a vk;ksftr djus ds fy, fl)nks'k gksA ¼x½ oSls is"ksoj gR;kjs] ftUgs HkkMs+ ij gR;k djkus dk nks'kh ik;k x;k gksA ¼?k½ oSls fl)nks'k canh tks rLdjh dk;Z esa varfyZIr jgsrs gq, gR;k djrk gks vFkokdrZO; ij jgus okys yksd lsodksa dh gR;k dk nks'kh gksA"
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 15/38
25. As regards the controversy to the date on which the amended remission Notification dated 10.12.2002 came to be implemented, this Court had occasion to consider the same in the case of Surendra Mahto. After going through the Hon'ble Division Bench in Cr.W.J.C. No. 748 of 2017, this Court has held that the notification dated 10.12.2002 was not implemented prior to 25.09.2007. This finding of the Court in Surendra Mahto case further finds support from the affidavit of the then Principal Secretary, Home, Government of Bihar filed in Cr.W.J.C. No. 2530 of 2017 (Naresh Sahani versus the State of Bihar and Others) which was placed before this Court in course of hearing of Cr.W.J.C. No. 1195 of 2021 (Ajit Kumar Mishra) decided on 15.09.2023. This Court has noticed from the affidavit of the then Principal Secretary that between 28.12.2002 and 24.09.2007 the life convicts who had completed fourteen years of actual custody and twenty years with remission were released by the Jail Superintendent themselves. There is a specific stand in the said affidavit that 25.09.2007 and onwards the life convicts were released by the State after recommendation of the Board.
26. In the case of Md. Allauddin Ansari and in the case of Sikander Mahto Vs. The State of Bihar & Ors. (Cr.W.J.C. No. 2128 of 2018), this Court has, after detail discussion, concluded that once the State has given the benefit of 1984 Policy to the convicts of the period after publication of remission Notification and prior to 25.09.2007, the same benefit may be granted to the similarly situated persons. In fact Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 16/38 State complied with the judgment of this Court but at a much belated stage the State filed special leave petitions in the Hon'ble Supreme Court to challenge the judgments of this Court in the case of Md. Allaudin Ansari and Sikander Mahto but those were dismissed on the ground of delay leaving the question of law open.
27. In the case of Pradeep Kumar Srivastava @ Pradip Kumar Srivastava versus The State of Bihar through its Chief Secretary, Home and Others reported in 2022 (1) PLJR 217, this Court was considering the case of a convict under Section 364-A and 379/34 IPC. Several instances where the Board has considered the proposals of premature release of the convicts under Section 364-A IPC were noticed by this Court. This Court found that the convict like Motilal Yadav, Prem Prakash Yadav and Vijay Yadav were released by the Board. Thus, this Court set-aside the decision of the Board rejecting the proposals for premature release of Pradeep Kumar Srivastava @ Pradip Kumar Srivastava and directed the Remission Board to consider the case of the petitioner afresh within a period of two months from the date of receipt/communication of this order.
28. In course of hearing of Ajit Kumar Mishra case, this Court has also noticed the judgment of Hon'ble Supreme Court in the case of Rajo @ Rajwa @ Rajendra Mandal in paragraph '23' of the said judgment the Hon'ble Supreme Court has taken note of it that in case of Jagdish it was also recognised that if a more liberal policy exists on the date of consideration the benefit should be provided. As Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 17/38 regards the role of a learned Presiding Officer of the convicting court, referred V. Sriharan on the role of the report submitted by the Presiding Officer and further took note of a recent judgment of hon'ble Apex Court in the case of Ram Chander Vs. State of Chhattisgarh reported in (2022) 4 SCR 1103. In Ram Chander it has been observed as under:-
"21. However, this is not to say that the appropriate Government should mechanically follow the opinion of the Presiding Judge. If the opinion of the Presiding Judge does not comply with the requirements of Section 432(2) or if the Judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India [Laxman Naskar v. Union of India, (2000) 2 SCC 595 : 2000 SCC (Cri) 509], the Government may request the Presiding Judge to consider the matter afresh.
"22. In the present case, there is nothing to indicate that the Presiding Judge took into account the factors which have been laid down in Laxman Naskar v. Union of India [Laxman Naskar v. Union of India, (2000) 2 SCC 595 : 2000 SCC (Cri) 509]. These factors include assessing:
(i) whether the offence affects the society at large;
(ii) the probability of the crime being repeated;
(iii) the potential of the convict to commit crimes in future;
(iv) if any fruitful purpose is being served by keeping the convict in prison; and
(v) the socio-economic condition of the convict's family.
In Laxman Naskar v. State of W.B. [Laxman Naskar v. State of W.B., (2000) 7 SCC 626 : 2000 SCC (Cri) 1431] and State of Haryana v. Jagdish [State of Haryana v. Jagdish, (2010) 4 SCC 216 : (2010) 2 SCC (Cri) 806], this Court has reiterated that these factors will be considered while deciding the application of a convict for premature release."
29. Prior to the notification dated 10.12.2002, the State had its policy as regards remission contained in Memo No. 550 dated 21.01.1984. The same is being reproduced hereunder for a ready reference:-
"la[;k & ,0@ih0,e&03@91&550 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 18/38 fcgkj ljdkj fof/k foHkkxA izs'kd] Jh Jh nso feJ] ljdkj ds lfpo] fcgkjA lsok esa] dkjk egkfujh{kd] fcgkj] iVukA iVuk] fnukad] 21 tuojh] 1984 bZ0A fo'k; & vkthou dkjkokl dh ltk okys cafn;ksa dh eqfDrA egk"k;] funsZ"kkuqlkj eq>s dguk gS fd jkT; ljdkj us fu.kZ; fy;k gS fd ftl vfHk;qDr dks vkthou dkjkokl dk n.M fn;k x;k gks] mls ifjgkj nsus ds gsrq ,oa rn~ksijkUr dkjk ls eqfDr gsrq **vkthou dkjkokl** dh 20 o'kksZ dk dkjkokl ekuk tk; rFkk vthou dkjkokl dh ltk okys cafn;ksa dks eqDr djus ds ekeys esa fuEufyf[kr izfØ;k viukbZ tk;& 1- n.M izfØ;k lafgrk] 1973 vf/kfu;ke la[;k 2] 1974A dh /kkjk 429 vUrxZr vuqekU; izfrosnu ¼vLi'V½ dk ykHk vkthou dkjkokl ikus okys canh dks ugha feysxk vFkkZr ftl okn esa mls vthou dkjkokl dk n.M fn;k x;k gS] ml okn ds vuqla/kku] tk¡p ,oa oukj.k dh vof/k esa rFkk nks'k fl} dh frfFk ds iwoZ dkjk esa fcrkbZ xbZ vof/k 20 o'kZ ds dkjkokl esa ls ?kVkbZ tk ldsxhA 2- nks'k fl} gks tkus ij ;fn fdlh dks ,sls vijk/k ds fy, vthou dkjkokl dk n.M fn;k x;k gks ftlds fy;s fn;s tkus okys n.Mks esa ls ,d e`R;q n.M gks vFkok ;fn naM izfØ;k lafgrk 1973 dh /kkjk 433 ds vUrxZr e`R;q n.M dks vthou dkjkokl ls :ikUrfjr dj fn;k x;k gks] rFkk bl izdkj vthou dkjkokl dk naM fnukad & 18-12-1978 dks vFkok blds ckn fn;k x;k gks] rk ,sls canh dks rHkh dkjk ls eqDr fd;k tk ldsxk] tc& d- mlus nks'k fl} gksus dh frfFk ls 14 o'kksZ dh vof/k dkjk esa O;rhr dj yh gks [k- ifjgkj rFkk dkjkokl dh vof/k dk ;ksxQy 20 o'kZ gks x;k gks 3- vthou dkjkokl ds naM okys vU; cafn;ksa dks ifjgkj lesr dkjkokl dh vof/k 20 o'kZ gks tkus ij eqDr fd;k tk ldsxkA bl] vkns"k ls lHkh dkjk/kh{kdksa dks lwpuk ,oa vko";d dk;Z gsrq voxr djk fn;k tk;A vkidk fo"okl Hkktu] g0@&Jhnso feJ] ljdkj ds lfpo] fof/k foHkkxA"
30. The Memo No. 550 dated 21.01.1984 was replaced vide letter no. 2939 dated 29th June, 2007 and the said letter was also clarified vide letter no. 4125 dated 2nd July, 2007. This Court has noticed both the memos as well as the letters in the case of Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 19/38 Surendra Mahto (supra). Those are being reproduced hereunder;-
"lafpdk la0&,0ih0,e0&03@81*va"k* 2939 ts0 fcgkj ljdkj fof/k foHkkx izs'kd] ;ksxsUnz izlkn] lfpo&lg&fof/k ijke"khZ fof/k foHkkx] fcgkj] iVukA lsok esa] dkjk egkfujh{kd] fcgkj] iVukA iVuk] fnukad 29 twu] 2007 bZ0A fo'k; %& vkthou dkjkokl dh ltk okys cafn;ksa dh eqfDrA egksn;] funs"kkuqlkj eq>s vuqjks/k djuk gS fd fof/k foHkkxh; i=kad&,0@ih0,e0 03@81&550 fnuakd 21 tuojh] 1984 ds izlax esa jkT; ldkj }kjk mDr i= dh dafMdk &2 dks iw.kZr% foyksfir djrs gq, fuEufyf[kr }kjk izfr LFkkfir djus dk fu.kZ; fy;k x;k gSA %& "2- nks'kfl) gks tkus ij ;fn fdlh ,sls vijk/k ds fy, vkthou dkjkokl dk naM fn;k x;k gks] ftlds fy, fn;s tkus okys n.Mksa esa ls ,d e`R;qnaM gks vFkok e`R;qnaM dks vkthou dkjkokl esa :ikUrfjr dj fn;k x;k gks] dks eqDr djus dk fu.kZ;] jkT; ljdkj vFkok jkT; ljdkj }kjk xfBr *jkT; naMkns"k ifjgkj i'kZn~ * ds }kjk fy;k tk;sxkA fo"oklHkktu g0@& ¼;ksxsUnz izlkn½ ljdkj ds lfpo] fcgkj] iVukA i=kad 4125 fcgkj ljdkj dkjk fujh{k.kky;
x`g ¼dkjk½ foHkkx izs'kd %& lanhi ikS.Mjhd dkjk egkfujh{kd fcgkj] iVukA lsok esa] lHkh ftyk inkf/kdkjhA lHkh dkjk/kh{kdA iVuk] fnukad 2 tqykbZ 2007A fo'k; %& vkthou dkjkokl dh ltk okys cafn;ksa dh eqfDrA Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 20/38 egk"k;] ljdkj ds lfpo] fof/k foHkkx ds i=kad 2939 ts- fnukad & 29-06-07 }kjk lfpo] fof/k ¼U;k;½ foHkkx] fcgkj ljdkj ds i=kad ,- @ih-,e-&03@81&550 fnukad 21-01-84 dh dafMdk 2 dks foyksfir djrs gq, fuEu izdkj izfrLFkkfir fd;k x;k gS%& **fl)nks'k gks tkus ij ;fn fdlh dks ,sls vijk/k ds fy, vkthou dkjkokl dk naM fn;k x;k gks] ftlds fy, fn;s tkus okys naMksa esa ls ,d e`R;qnaM gks vFkok e`R;qnaM dks vkthou dkjkokl esa :ikarfjr dj fn;k x;k gks] dks eqDr djus dk fu.kZ; jkT; ljdkj vFkok jkT; ljdkj }kjk xfBr jkT; naMkns"k ifjgkj i'kZn ds }kjk fy;k tk,xkA lqYkHk lanHkZ ds fy, mijksDr nksuksa i=ksa dh izfr layXu dh tk jgh gSA mijksDr ls ;g Li'V gS fd vkthou dkjkokl dh naM izkIr O;fDr;ksa ds ekeys esa foeqDr djus dk fu.kZ; jkT; ljdkj ,oa jkT; ljdkj }kjk xfBr jkT; naMkns"k ifjgkj i'kZn }kjk fy;k tkuk pkfg, rFkk tsy v/kh{kdksa }kjk vius Lrj ls vkthou dkjkokl dh ltk izkIr O;fDr dks eqDr ugha fd;k tkuk pkfg,A vr% vkidks funsZ"k fn;k tkrk gS fd mijksDr i= ds vkyksd esa vkthou dkjkokl dh ltk izkIr fdlh Hkh O;fDr dks vius Lrj ls eqDr ugha djsa rFkk ,sls ekeyksa esa bl dk;kZy; dh i=kkad 1621 fnukad 01-03-07 }kjk fn;s x;s funsZ"k ds vuqlkj jkT; naMkns"k ifjgkj i'kZn ds le{k ekeys ij fu.kZ; gsrq iw.kZ izLrko canh dh ifjgkj jfgr 14 o'kZ rFkk ifjgkj lfgr 20 o'kZ gksus dh frfFk ds 6 ekg ds iwoZ Hkstuk lqfuf"pr djsaA fo"oklHkktu g0@& dkjk egkfujh{kd] fcgkj] iVukA"
From the aforementioned letters of 29th June, 2007 and 2nd July, 2007 it is evident that the 1984 policy was continuing even after 10.12.2002 notification and the Jail Superintendents were granting pre- mature release to life convicts by following 1984 Policy This 1984 Policy was scrapped/superseded practically after 02.07.2007.
31. In the case of Rajo @ Rajwa @ Rajendra Mandal the Hon'ble Supreme Court having noticed both the old policy as well as the 2002 policy, observed in paragraph '24' inter alia as under:-
"...... It is pertinent to point out that in the old pre-2002 policy, there is no mention of any ineligibility criteria, much less one that is analogous to Rule 529(iv)(b) of the 2002 policy, which was cited by the Remission Board in its rejection of the petitioner's application on 20.04.2023..........."
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 21/38 The Hon'ble Supreme Court directed the Board to reconsider the petitioner's application in the said case, afresh considering the reports of 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 was 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 v. Union of India reported in (2000) 2 SCC 595. The Board was clearly directed that the 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. It is worth mentioning that Rajo @ Rajwa @ Rajendra Mandal was an accused of killing of three persons and two of which were police personnel (dafadars) and the third being a chowkidar. He was convicted by the learned Sessions Court, Madhepura in Sessions Case No. 123 of 2000 and he was accused of killing the three persons in a premediated and planned manner. The trial court sentenced the petitioner to undergo rigorous imprisonment for life.
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 22/38 In this background the Hon'ble Supreme Court directed the Remission Board to reconsider the case of Rajo @ Rajwa @ Rajendra Mandal.
32. This Court has also noticed that for the first time the notification constituting State Remission Board was issued on 9 th April, 2018. Having noticed the notification dated 9 th April, 2018 (Annexure 'P-9') in the case of Surendra Mahto, this Court has observed in paragraph '38' to '41' of the judgment as under:-
"38. A bare perusal of the Annexure 'P-9' would show that it talks of the applicability of the notification with retrospective effect i.e. 10.12.2002. The opening line of the notification dated 09.04.2018 (Annexure P-9) refers the notification no.3106 dated 10.12.2002 and it talks of constitution of State Remission Board in the light of the said notification. Thus, in the opinion of this Court, the petitioner has been able to substantiate his specific statement in paragraph '18' of the writ application by enclosing Annexure 'P-9'. This Court would extract hereinbelow Annexure 'P-9' for a ready reference:-
"Government of Bihar Inspectorate of Prisons & Correctional Services Home Department (Prison) NOTIFICATION Patna, dated the 9 April, 2018 No. Bandi/Yachika-05-100/2017 2214. In light of Home Deptt. (Spl.) Notification no. K/kara-vividh-63/2001-3106 dated. 10.12.2002 Bihar State Sentence Remission Board is hereby constituted consisting of the following members :-
(i) Principal Secretary/Secretary, Home Deptt. -Chairman
(ii) Secretary, Law Deptt. -Member
(iii)District and Sessions Judge,
Nominated by Patna high Court -Member
(iv) Director, Probation Services -Member
(v) I.G. Police, nominated by D.G.P -Member
(vi)I.G. Prisons & Correctional Services -Member-Secretary
2. The above mentioned Board shall recommend the premature release of life convict prisoners under the the provisions of Home Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 23/38 Deptt. (Spl. ) Notification No. K/Kara-vividh-63/2001-3106 dated.
10.12.2002 and other relevant provisions.
3. This notification shall be retrospectively effective w.e.f. 10.12.2002.
By order of the Governor of Bihar sd/-
(Amir Subhani) Principal Secretary to the Government"
39. If all the aforesaid memos and notifications are read together keeping in mind the judgment of the Hon'ble Division Bench of this Court rendered in Cr.WJC No.748 of 2017 disposed of on 20.06.2017, the submission advanced on behalf of the petitioner get further strengthened. Annexure 'P-9' is categorically showing that the State government constituted Remission Board for the first time in the light of the notification dated 10.12.2002 vide Annexure 'P-9'. Prior to Annexure 'P-9' the notification dated 10.12.2002 (Annexure P-7) was not workable. It is also evident from Annexure 'P-8' and 'P- 8/1' wherein power of remission is said to have been vested with the State Government as well as the State Remission Board.
40. The letter no.4125 as contained in memo no.2945 dated 06.07.2007 (Annexure P-8/1) further shows that in absence of constitution of the State Remission Board the Jail Superintendents were taking decision on their level to release the life convicts and they were asked not to do so because such decision were to be taken by the State Government or the State Remission Board. The fact remains that the State Remission Board itself was constituted on 09.04.2018. Before the Hon'ble Division Bench of this Court as back as in the year 2017 when this question was raised in course of hearing of Cr.WJC No.748 of 2017 the Hon'ble Division Bench very categorically noted the fact that the State authority had not brought any document to show that notification of the year 2002 was made operational immediately.
41. The Hon'ble Division Bench also noted the discriminatory conduct of the Remission Board in releasing some of the convicts who were convicted for rape and murder while rejecting the case of the father of the petitioner in the said case. The Hon'ble Division Bench further noted that even at that time the 2002 notification Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 24/38 was before the Board, still in some of the cases the premature release was allowed. Two issues were discussed, first one was with regard to the discrimination in the matter of consideration of the applications for grant of premature release after issuance of the notification dated 2002 and the second issue was with regard to the actual date of implementation of the notification of 2002. The Hon'ble Division bench held that the action of the Remission Board was discriminatory in rejecting the case of the father of the petitioner in the said case, hence the impugned decision of the Board was set aside and the Remission Board was asked to reconsider the matter afresh. While sending the matter for fresh consideration the Hon'ble Division Bench observed as regards the second issue in the following terms:-
"While dealing with the issue, it would be open for the Board to consider the second issue in accordance with law which has been left open by this Court for the present."
33. A complete reading of the judgment of the Hon'ble Division Bench in Cr.W.J.C. No. 748 of 2017 (Chandra Kant Kumar Vs. The State of Bihar & Ors.) and in the case of Surendra Mahto (supra) would show that this Court has taken up the issue of discrimination on the part of the State in considering the proposals for pre-mature release and having found the precedents in the matter, directed the State to follow the same in the cases of similarly situated life convicts. The submission of the State with reference to the date of conviction of Ajay Kumar Chaudhary being 23.09.1997 would not clinch the issue in favour of the State. The Hon'ble Division Bench has, while considering Chandra Kant Kumar inter-alia observed as under:-
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 25/38 "....That apart, learned counsel for the petitioner also points out that a convict who was sentenced with capital punishment vide judgment dated 05.06.2003 in Sessions Trial No. 25 of 2002/206 of 1989 in the case of heinous crime of murder but later on in appeal the sentence was converted to life imprisonment in Cr. App. No. 289 of 2003 and analogous matters, was prematurely released vide the decision taken in the meeting dated 11.09.2012 of the Remission Board (Annexure -14 series to the supplementary affidavit). In such a situation, in our opinion, the order passed by the Remission Board with respect to the father of the petitioner is not at all sustainable on the ground of unreasonableness and being discriminatory...."
This is the distinguishable feature of these line of cases from that of Munilal Sharma (supra).
Swamy Sharddananda (2) and V. Shriharan @ Murugan Judgments - Discussed
34. Now coming to the submission of learned AC to learned AG for the State that because the petitioner in this case was awarded death sentence by the learned trial court which has been commuted to one of the life imprisonment by the Hon'ble High Court in appeal, in view of the judgment of the Hon'ble Supreme Court in the case of Swamy Shraddananda (2) @ Murali Manohar Mishra , he would not be entitled/eligible to be considered for premature release, this Court finds that the argument advanced on behalf of the State, as framed is not fit to be accepted.
35. In the case of Swamy Shraddananda (2), the Hon'ble Supreme Court agreed with the view taken by Hon'ble Mr. Justice S.B. Sinha (as his Lordship then was) in Swamy Shraddananda (1) versus State of Karnataka reported in (2007) 12 SCC 288. Hon'ble Justice Sinha, in fact, followed the Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 26/38 observations of the Hon'ble Supreme Court in the case of Dalbir Singh versus State of Punjab reported in (1979) 3 SCC 745. In the case of Dalbir Singh, the Hon'ble Supreme Court observed in paragraph '14' as under:-
"14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case8.Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the man's life, but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder."
Following the aforesaid observations in the case of Dalbir Singh, Hon'ble Justice Sinha in Swamy Shraddananda (1) proceeded to issue the following directions:-
"98. However, while saying so, we (sic) direct that in a case of this nature 'life sentence' must be meant to be 'life sentence'. Such a direction can be given, as would appear from some precedents."
36. In Swamy Shraddananda (2) (supra), the Hon'ble Supreme Court took note of the five judgments which were mentioned in Swamy Shraddananda (1) (supra). Those are: (i) Subhash Chander versus Krishna Lal and Others reported in (2001) 4 SCC 458, (ii) Shri Bhagwan versus State of Rajasthan reported in (2001) 6 SCC 296, (iii) Prakash Dhawal Khairnar
8. (1979) 3 SCC 646 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 27/38 (Patil) versus State of Maharashtra reported in (2002) 2 SCC 35, (iv) Ram Anup Singh versus State of Bihar reported in (2002) 6 SCC 686 and (v) Mohd. Munna versus Union of India reported in (1957) SCC 417. In the case of Ram Anup Singh (supra) there were a father and his two sons before the Hon'ble Supreme Court. They had killed the father's brother, the brother's wife, his daughter and his son-in-law. On conviction for the murders, the father was sentenced to life imprisonment but the two sons were given death penalty. The Hon'ble Supreme Court interfered with the death penalty, set aside the death sentence awarded by the trial court and confirmed by the Hon'ble High Court to the two sons instead sentenced them to suffer rigorous imprisonment for life with the condition that they would not be released before completing an actual term of 20 years including the period of imprisonment already undergone by them.
37. In Swamy Shraddananda (2), the Hon'ble Supreme Court while taking note of these five cases further took note of two more judgments which are (i) Jayawant Dattatraya Suryarao versus State of Maharashtra reported in (2001) 10 SCC 109 and (ii) Nazir Khan versus State of Delhi reported in (2003) 8 SCC 461. In both the cases, the Hon'ble Supreme Court commuted the death sentence of the appellants to imprisonment for life. In the case of Jayawant Dattatraya Suryarao, the Hon'ble Supreme Court while modifying Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 28/38 the sentence from death penalty to imprisonment for life specifically said - 'till rest of life'. However, in the case of Nazir Khan, the Hon'ble Apex Court having regard to the gravity of sentence and dastardly nature of the acts of the appellants directed for their incarceration for a period of 20 years with a further direction that the accused-appellants would not be entitled to any remission from the term of 20 years. In paragraph '67', the Hon'ble Supreme Court observed as under:-
"67. On a perusal of the seven decisions discussed above and the decisions referred to therein it would appear that this Court modified the death sentence to imprisonment for life or in some cases imprisonment for a term of twenty years with the further direction that the convict must not be released from prison for the rest of his life or before actually serving out the term of twenty years, as the case may be, mainly on two premises; one, an imprisonment for life, in terms of Section 53 read with Section 45 of the Penal Code meant imprisonment for the rest of life of the prisoner and two, a convict undergoing life imprisonment has no right to claim remission. In support of the second premise reliance is placed on the line of decisions beginning from Gopal Vinayak Godse v. State of Maharashtra23 and coming down to Mohd. Munna v. Union of India18."
38. To this Court, it appears that the cases which were referred by the Hon'ble Supreme Court while commuting death sentence to imprisonment for life, the Hon'ble Supreme Court directed that the convict must not be released from prison for the rest of his life or before actually serving the term of 20 years.
23. [AIR 1961 SC 600 : (1961) 3 SCR 440]
18.[(2005) 7 SCC 417 : 2005 SCC (Cri) 1688] Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 29/38
39. In the case of State (Govt. of NCT of Delhi) versus Prem Raj reported in (2003) 7 SCC 121, the Hon'ble Supreme Court held that the question of remission lay within the domain of the appropriate Government and it was not open to the High Court to give a direction that on deposit of the enhanced amount of fine, the State Government being the appropriate Government would formalise the matter by passing an appropriate order under Section 433(c) of the Code of Criminal Procedure. The Hon'ble Supreme Court referred the judgments in the cases of Delhi Administration versus Manohar Lal reported in (2002) 7 SCC 222 and State of Punjab versus Kesar Singh reported in (1996) 5 SCC 495 in which a question regarding exercise of power under Section 433 CrPC was considered and the Hon'ble Court was of the view that the exercise of power under Section 433 CrPC was an executive discretion.
40. A submission was made in Swamy Shraddananda (2) that the Court can not direct the appropriate Government for granting remission to a convicted prisoner and it was not open to the Court to direct the appropriate Government not to consider the case of a convict for grant of remission in sentence. It was contended that giving punishment for an offence indeed is a Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 30/38 judicial function but once the judgment was pronounced and punishment was awarded, the matter no longer remained in the hands of the Court. This submission was held wholly misconceived and untenable and the Hon'ble Apex Court held that the decision in the case of Prem Raj had no application to the issue under consideration.
41. In the case of Swamy Shraddananda (2) the Hon'ble Supreme Court traced the pattern of premature release of a life convict in the State of Bihar. Paragraph '86' to '89' from Swamy Shraddananda (2) are being reproduced hereunder for ready reference:-
"86. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. In Bihar too the order for early release of a convicted prisoner is passed by the State Government in the Department of Law (Justice) on the basis of recommendations made by the Bihar State Sentence Remission Board. But there also the significant thing is the conversion of life imprisonment into imprisonment for a fixed term. In this regard Government Letter No. A/PM- 03/81-550 dated 21-1-1984 was brought to our notice. The letter begins by stating the Government's decision that for grant of remission to a life convict and for his release from prison, imprisonment for life will be deemed to be imprisonment for a term of 20 years. Then in Para 1 in the letter, in its original form it was stated that a life convict would not be entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973 for the period of incarceration as an undertrial. Para 1 of the letter was, however, deleted by Letter No. 3115 dated 23-5-1985 following the decision of this Court in Bhagirath v. Delhi Admn.13 13 (1985 ) 2 SCC 580 : 1985 SCC (Cri) 280 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 31/38
87. Para 2 of the letter as it originally stood stipulated that an accused who is given the punishment of imprisonment for life in a capital offence or whose death sentence is commuted to life imprisonment under Section 433 of the Code as well as an accused who was awarded life sentence after 18-12-1978 would be released from prison (a) only on completion of 14 years of actual imprisonment; and (b) when the total period of their imprisonment and the days of remission add up to 20 years. Para 2 of this letter too was later deleted by Government Letter No. 2939, dated 29-6-2007 that provided that the decision to release a convict undergoing life imprisonment for a capital offence or whose death sentence is commuted to life imprisonment would be taken by the State Government or by the State Sentence Remission Board constituted by the Government.
88. 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-year 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 rare cases.
89. Here, it may be noted that this has been the position for a very long time. As far back as in 1973, in Jagmohan Singh3 a Constitution Bench of this Court made the following observation: (SCC p. 28, para 14) "14. ... In the context of our criminal law which punishes murder, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty."
(emphasis added) Five years after Jagmohan3, Section 433-A was inserted in the Code of Criminal Procedure, 1973 imposing a restriction on the power of remission or commutation in certain cases. After the introduction of Section 433-A another Constitution Bench of this Court in Bachan Singh2 made the following observation: (SCC pp. 735-36, para 156) 3 Jagmohan Singh V. State of U. P., (1973) 1 SCC 20 : 1973 SCC (Cri) 169 2 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 32/38 "156. It may be recalled that in Jagmohan3 this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433-A restricts the power of remission and commutation conferred on the appropriate Government under Sections 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a minimum of 14 years."
Thus all that is changed by Section 433-A is that before its insertion an imprisonment for life in most cases worked out to a dozen years of imprisonment and after its introduction it works out to fourteen years' imprisonment. But the observation in Jagmohan3 that this cannot be accepted as an adequate substitute for the death penalty still holds true."
42. The ultimate out come of the judgment of the Hon'ble Supreme Court in the case of Swami Sraddananda (2) may be found in paragraph '93' and '94' of the judgment which are as under:-
"93. Further, the formalisation of a special category of sentence, though for an extremely few number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh12 besides being in accord with the modern trends in penology. "94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
43. In the case of V. Sriharan @ Murugan (supra) the Hon'ble Supreme Court considered (a) meaning of 3 Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : 1980 SCC (Cri) 580 12 [(1980) 2 SCC 684 : 1980 SCC (Cri) 580 : AIR 1980 SC 898] Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 33/38 life imprisonment and (b) validity of non-remittable special special category sentence in substitution of death sentence, as laid down in Swamy Shraddananda (2). One of the questions framed was as to whether the imprisonment for life means till the end of convict's life with or without any scope for remission ?
The Hon'ble Supreme Court while referring to V. Sriharan (2014) 11 SCC 1, Gopal Vinayak Godse (supra) and Maru Ram V. Union of India reported in (1981)1 SCC 107 held that this Court has "affirmed the legal position that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Criminal Procedure Code by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz. the President or the Governor of the State, respectively". In paragraph '61' and '62' the Hon'ble Supreme Court (majority view) held as under:-
"61. Having noted the above referred to two Constitution Bench decisions in Godse8 and Maru Ram9 which were consistently followed in the subsequent decisions in Sambha Ji Krishan Ji10, Ratan Singh11, Ranjit Singh12, Ashok Kumar13 and Subash Chander15. The first part of the first question can be conveniently answered to the effect that imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State and also as provided under Section 432 of the Criminal Procedure Code."
8 Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 : (1961), 3 SCR 440 9 Maru Ram v. Union of India, (1981) 1 SCC 107: 1981 SCC (Cri) 112 : (1981) 1 SCR 1196 10 Sambha Ji Krishan Ji v. State of Maharashtra, (1974) 1 SCC 196 : 1974 SCC (Cri) 102 : AIR 1974 SC 147 12 Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC 31 : 1984 SCC (Cri) 27 13 Ashok Kumar v. Union of India, (1991) 3 SCC 498 : 1991 SCC (Cri) 845 15 Subhash Chander V. Krishan Lal, (2001) 4 SCC 458 : 2001 SCC (Cri) 735 Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 34/38 ".62. As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid down in Swamy Shraddananda (2)4." In the aforesaid manner, the first question framed by the Hon'ble Supreme Court has been answered.
44. Having said so, the Hon'ble Supreme Court considered the second question as to whether a special category of sentence instead of death for a term exceeding 14 years can be made by putting that category beyond grant of remission?
45. In order to consider the second question framed, the Hon'ble Supreme Court noted the special features analysed by the Hon'ble Apex Court in the case of Swamy Shraddananda (2) (supra) and held that the said decision was a well thought one. The Hon'ble Apex Court took note of the facts of the said case and found that the appellant therein had comprehended a scheme with a view to 4 [Swamy Shraddananda (2) v. State of Karnataka, (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 35/38 grab the wealth of the victim who was a married woman, she was seduced by the appellant solely with a view to make unholy accumulation of wealth at the cost of the victim, who went all out to get separated from her first husband by getting a divorce, married the appellant whole-heartedly reposing very high amount of faith, trust and confidence and went to the extent of executing a power of attorney in favour of the appellant for dealing with all her valuable properties. At one point of time, the victim realised the evil designs of the appellant and found total mistrust in him, the appellant set the clock for her elimination. The graphic description of the 'witchcrafted' scheme formulated and executed with all perfection by the appellant were noticed in paragraphs '28', '29' and '30' of the Swamy Shraddananda (2) (supra).
46. It is in the aforementioned background that the Hon'ble Supreme Court noticed the earlier view expressed in the case of Bachan Singh versus the State of Punjab reported in (1980) 2 SCC 684 and Machhi Singh and Others versus the State of Punjab reported in (1983) 3 SCC 470 and held that formalisation of a special category of sentence instead of death for a term exceeding 14 years and putting that category beyond application of remission is well within the scope of Section 433-A of the Code of Criminal Procedure.
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 36/38
47. This Court finds that in the present case, death reference of petitioner no. 1 was made by learned Additional Sessions Judge, Fast Track Court No. 5, Samastipur vide letter no. 196 dated 29.03.2007. The date of his conviction is 23.03.2007/29.03.2007. The Hon'ble Division Bench in its judgment dated 12th August, 2008 concluded in paragraph '24' as under:-
"So far as award of death sentence to appellant Ganesh Sah is concerned, I find that he has participated in such a ghastly offence on account of his mental perception of partiality on the part of his father deceased Ram Avatar Sah in not giving him proper share of land. Land dispute leading to murders is not very unusual or rare in our society especially in rural areas. Hence, in my opinion, this case cannot be treated as rarest of rare cases so as to warrant death sentence against appellant Ganesh Sah. Hence, the Death Reference in respect of his sentence is answered in negative and sentence of death awarded to him for offence under section 302 IPC is commuted to sentence of life imprisonment and also a fine of Rs.50,000-/ (Fifty thousand) and in default, he will undergo further rigorous imprisonment for two years. If the fine is realized then Rs.40,000/- (Forty thousand) out of the same must be paid to Usha Devi w/o deceased Suresh Sah. His punishment of RI for seven years for the offence under section 120B of the IPC requires nointerference. His sentences shall also run concurrently. We find no good reason to interfere with the sentence awarded to appellant Dana Devi."
48. It is evident from a bare reading of paragraph '24' of the judgment of the Hon'ble Division Bench that it was not put in a category of rarest of rare case so as to warrant death sentence against petitioner no. 1. The Hon'ble Division Bench did not impose any special category of sentence and there is nothing in the judgment of the Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 37/38 Hon'ble Division Bench to indicate that the case of the petitioner was put beyond the scope of remission and pre-mature release under the provisions of Cr.P.C.
This Court has already referred in paragraph '33' of this judgment the decision of the Board granting premature release to life convict whose capital punishment was commuted to a sentence of life imprisonment.
49. There is a recent instance of the respondents/State releasing some of the life convicts including one politician who had been convicted under Sections 302/149, 147, 307/149, 427, 302/109 & 302/114 of the IPC leading to infliction of death penalty by the learned trial court but commuted to one of life imprisonment by the Hon'ble Division Bench of this Court vide judgment dated 10.12.2008 passed in Death Reference No. 12 of 2007. The State cannot be allowed to act arbitrarily and inconsistently in it's decision making and thereby discriminate the similarly situated life convicts. It is, thus, not just and proper on the part of the State to discriminate in the matter of consideration of proposal of premature release of the petitioner no. 1.
50. In the opinion of this Court, the Board is obliged to consider the case of the petitioners for premature release granting similar benefits for consideration to the petitioners as have been granted to other convicts who were convicted and sentenced after 10.12.2002, by applying 1984 Policy.
Patna High Court CR. WJC No.1239 of 2022 dt.10-11-2023 38/38
51. The impugned order dated 19.05.2021 as regards petitioner no. 1 is hereby set aside. The Remission Board shall pass an appropriate order in the light of the discussions made hereinabove within a period of two months from the date of receipt/communication of a copy of this order.
(Rajeev Ranjan Prasad, J) avin/-
AFR/NAFR AFR CAV DATE 12.10.2023 Uploading Date 11.11.2023 Transmission Date 11.11.2023