Patna High Court
Surendra Mahto vs The State Of Bihar Through The Chief ... on 25 October, 2021
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.236 of 2021
Arising Out of PS. Case No.- Year-0 Thana- District-
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SURENDRA MAHTO, Son of Late Gonai Mahto, Resident of Village-
Pawra, P.S.- Manjhaul, District- Begusarai.
... ... Petitioner/s
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
Deptt, Govt. of BiharPatna Bihar
3. The Joint Secretary- Cum- Director (Administration), Home Department
(Prison), Bihar, Patna. Bihar
4. The Secretary, Law Department, Government of Bihar, Patna. Bihar
5. The Additional Director General of Police, Criminal Investigation
Department, Bihar, Patna Bihar
6. The Inspector General, Jail and Reforms Services, Bihar, Patna. Bihar
7. The Assistant Inspector General, Jail and Reforms Services, Bihar, Patna.
Bihar
8. The Jail Superintendent Special Central Jail, Bhagalpur. Bihar
... ... Respondent/s
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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 : 25-10-2021
At the time of filing of the writ application, petitioner
prayed for the following reliefs:-
"(I) For issuance of an appropriate writ in the
nature of CERTIORARI for quashing the
decision of the State Remission Board dated
21.06.2019so far it relates to the petitioner, whereby and where under the State Remission Board has been pleased to reject the proposal of the petitioner for his pre-mature release Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 2/42 interalia on the ground that under clause (iv) (ka) of Notification No.3106 dated 10.12.2002, the petitioner is not eligible for grant of pre-mature release as also there is unfavourable opinion of the Presiding Judge. (II) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to consider the case of the petitioner for pre- mature release and grant him on the ground that now the petitioner has already completed more than 21 years of sentence with remission and more than 18 years of 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 is the convict of 2006 and almost all the prescribed Authorities recommended for his pre-mature release except Presiding Judge. (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."
Brief facts of the case
2. The writ petitioner faced charges for the offence under Section 376 and 302/34 of the Indian Penal Code. As per the prosecution story this petitioner being the husband of the deceased forced himself upon the informant (since deceased), had sexual intercourse with her in a banana field and after sexually assaulting her with the help of the co-accused, he pressed her hands and mouth and the co-accused also assaulted her sexually. Thereafter the co-accused tied her hand with a fine Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 3/42 plastic rope and closed her mouth with his hands, the petitioner took out a knife and gave three blows on her neck with an intention to kill her. As a result the neck started to bleed profusely, wherefter both the accused threw her into the river. The informant somehow managed to come of the river and in injured condition she went running to the railway crossing where she explained the entire story to the lady owner of the toddy shop. She was taken to the local doctor, the local chowkidar informed the police station. The informant disclosed the reason behind the occurrence being that her husband was in love affair with a girl at Delhi to which she had objected.
3. The learned trial court convicted the petitioner under Section 302 and Section 376/34 of the Indian Penal Code. The learned trial court awarded death sentence for the offence under Section 302 I.P.C. and a sentence of transportation of life with rigorous imprisonment for the offence under Section 376/34 of I.P.C. The death sentence was, however, subject to confirmation by the Hon'ble High Court in accordance with Section 366 Cr.P.C.
4. The Death Reference No.5 of 2006 together with Criminal Appeal No.851 of 2006 were heard by a Hon'ble Division of this Court and vide judgment dated 8th of January, Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 4/42 2008 the Hon'ble Division Bench refused to interfere with the punishment of death sentence granted to the appellant.
5. The matter went to the Hon'ble Supreme Court. In Criminal Appeal No.211 of 2009 the Hon'ble Supreme Court did not find any fault with the conviction of the appellant. As regards the death sentence awarded to the petitioner, the Hon'ble Supreme Court noticed that the appellant was a young man of 30 years at the time of the incident and there was a possibility that he may at some stage of his life have a reformation in his character. The Hon'ble Supreme Court was informed that the petitioner who was appellant before the Court had a younger daughter from his deceased wife and she was being looked after by her maternal grandmother. Taking both the grounds together, the Hon'ble Supreme Court was of the view that some extenuation in the sentence is called for. In concluding paragraph the Hon'ble Apex Court held that the death sentence should be commuted to life but the sentence of imprisonment for life would extend to the full life of the appellant subject to the statutory and constitutional powers of the State Government and the Governor insofar as remission and commutation etc. are concerned.
6. In the aforementioned background, the petitioner Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 5/42 submits that now he has completed more than 21 years of sentence with remission and more than 18 years of physical incarceration. According to him his case should be covered under 1984 Policy prevailing at the time of his conviction in the year 2006. His further case is that almost all the authorities have favourably recommended his case for premature release.
Submission on the applicability of 1984 Policy
7. It is the contention of the petitioner that policy decision of the government as contained in memo no.550 dated 21.01.1984 (Annexure P- 6) will be applicable in his case. This Court will dealt with the same at a later stage. It is his further submission that Clause (2) of 1984 Notification (Annexure P-6) was replaced vide letter no.2939 dated 29.06.2007, letter no.4125 dated 02.07.2007 further clarified the issue by directing the Jail Superintendents not to allow premature release to any of the life convicts from their own level.
The Policy as contained in Notification No.3106 dated 10.12.2002.
8. It is submitted that in this case the request of the petitioner for grant of premature release in accordance with the policy decision of the government was taken up for consideration and the Superintendent of Police, Begusarai vide his letter no.2249 dated 10.04.2009 (Annexure P-2) informed Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 6/42 the Superintendent of Central Jail, Bhagalpur that in his inquiry he met the local persons who were of the view that the premature release of the petitioner is not likely to cause any adverse effect on the society. In this regard the inquiry report containing the statement of the Umesh Sah, Ramanarayan Thakur and Ram Ratan Sah, etc. were sent to the Superintendent of Central Jail (Annexure-2). Further the Principal Probation Officer, Begusarai also submitted a report vide Annexure P-3 dated 12.02.2019 in which she recorded her views based on the instruction of the family member of the petitioner and the people residing in the mohalla. They had no objection to the premature release of the petitioner.
9. After the aforesaid two reports, the opinion of the learned 2nd Additional District and Sessions Judge, Samastipur has been obtained vide Annexure 'P-4' contained in letter no.66 dated 08.04.2019. The learned Presiding Judge has recorded that the conviction of the petitioner is under Section 302/34 and Section 376 I.P.C. which is serious in nature. The learned Presiding Judge further recorded that the Hon'ble Supreme Court has awarded sentence of full life imprisonment and as such considering the seriousness of the offences his application for premature release is not fit to be granted. Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 7/42 Meeting of the Board-decision on 21.06.2019
10. The State Remission Board (hereinafter referred to as 'the Board') held a meeting on 21.06.2019. In the said meeting the case of the petitioner was also considered but keeping in view the policy decision of the government as contained in Notification No.3106 dated 10.12.2002 (Annexure P-9) the case of the petitioner was rejected on the ground that under Clause (iv) (ka) of the Notification No.3106 dated 10.12.2002, the petitioner is not eligible to be considered for grant of premature release and also on the ground that there is no favourable report of the Presiding Judge.
Meeting of the Board-decision on 23.12.2020
11. It appears that during pendency of the writ application the case of the petitioner was again considered by the Board in its meeting held on 23.12.2020. The Board was considering some of the applications for premature release in the light of the orders passed by the Hon'ble Supreme Court and the Hon'ble High Court on the basis of which the Departmental Committee had unanimously decided that the request for premature release of the life convicts would be considered in the light of the policy decision existing on the very first day of the conviction and they will be released prematurely only on the Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 8/42 basis of the said policy decision and the direction of the courts. In paragraph '3' of the minute of the meeting dated 23.12.2020 the Board has further recorded that because in the cases mentioned above the conviction had taken place prior to the issuance of the Departmental Notification No.3194 dated 26.05.2016 (in the light of the judgment of the Hon'ble Supreme Court in the case of Union of India Vs. V. Sriharan @ Murugan reported in (2016) 7 SCC 1, therefore, the guidelines contained in the letter no.550 dated 21.01.1984 issued by the Law Department and the instructions/guidelines contained in Notification No.3106 dated 10.12.2002 would be taken into consideration.
Decision with regard to the petitioner
12. As respect the petitioner, the Board noticed that earlier his case was rejected in the meeting held on 21.06.2019. The petitioner had completed 21 years 6 months 28 days of sentence with remission and he had completed 18 years 10 months 16 days of actual custody. The reasons for rejection are three fold. The first reason is that there is an adverse report of the Presiding Judge of the court, the second reason is that the Hon'ble Supreme Court has awarded full life imprisonment and the third reason is that in terms of para (iv) (ka) of the Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 9/42 Notification No.3106 dated 10.12.2002 such prisoners who have been convicted for the offences like rape, dacoity, terrorism, etc. they would not be eligible to the considered for premature release.
Amendment of writ-challenge to the decision taken on 23.12.2020
13. The petitioner has challenged the decision as contained in the minute of the meeting dated 23.12.2020, by filing an interlocutory application (I.A. No.1 of 2021) seeking amendment of the writ petition. Annexure 'P-15' is the extract of the decision of the Board taken in its meeting held on 23.12.2020 in which the case of the petitioner was considered but rejected.
14. The I.A. was heard and allowed vide order dated 24.07.2021 whereafter the State was given an opportunity to file additional counter affidavit.
15. The State has filed a supplementary counter affidavit in which reliefs prayed by the petitioner have been contested.
Submission
16. The main contention of learned counsel for the petitioner is that the notification no.3106 dated 10.12.2002 was for the first time given effect to with retrospective effect vide Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 10/42 memo no.2214 dated 09.04.2018. It is his specific case that 1984 policy (Annexure P-6) would be applicable in case of the petitioner. Learned counsel has relied upon a judgment of the Hon'ble Supreme Court in the case of State of Haryana Vs. Jagdish reported in (2010) 4 SCC 216 to submit that the policy as existing on the day when a person is convicted would only be applicable. It is his submission that since on the date of conviction of the petitioner on 24.07.2006 the 1984 policy was only applicable and the 2002 notification was not given effect to on the said date, the rejection of the case of the petitioner by bringing it under para (iv)(ka) of the notification no.3106 dated 10.12.2002 is only illegal, arbitrary and bad in law.
17. Learned counsel has placed before this Court some of the judgment of the Hon'ble Division bench of this Court passed in Cr.WJC No.1053 of 2016 (Ram Naresh Rai Vs. the State of Bihar), Cr.WJC No.1245 of 2016 (Ramadhar Singh Vs. the State of Bihar), Cr.WJC No.272 of 2017 (Ravi Pratap Mishra Vs. the State of Bihar), Cr.WJC No.1027 of 2019 and Cr.W.J.C. No. 748 of 2017 (Chandra Kant Kumar Vs. The State of Bihar & Ors.).
18. It is pointed out that in Cr.WJC No.748 of 2017 the writ petitioner had been convicted on 04.08.2003 and it was Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 11/42 contended that his conviction was after publication of the notification dated 10.12.2002 but the said notification remained inoperative and was implemented in the year 2007 only. The Hon'ble Division Bench observed that the State authority had not brought any document to show that such notification was made operational immediately, therefore a question was framed as to whether the policy which was made in the year 2002 but was never implemented till the year 2007 can be considered for the case of the convict who was convicted in the year 2003. The Hon'ble Division Bench also noticed that in the said case while Remission Board in its meeting considered the 2002 notification for purpose of rejection of the case of the father of petitioner but had allowed the case of convict for rape and murder at serial no.24 of Annexure-4.
19. The Hon'ble Division Bench further noticed that another 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 an appeal the sentence was converted to life imprisonment, was granted premature release vide decision taken by the Remission Board in its meeting held on 11.09.2012. The Hon'ble Division Bench, therefore, set aside Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 12/42 the order rejecting the request for premature release of the father of the petitioner in the said case and directed the Remission Board to reconsider the matter afresh in accordance with law in the next meeting.
20. The Hon'ble Division Bench further observed that it would be open for the Board to consider second issue in accordance with law and the same has been left open by the Court for the present.
Response of the Respondent No.2, 3, 6, 7 and 8
21. In the counter affidavit filed on behalf of the respondent nos.2, 3, 6, 7 and 8 a statement has been made in paragraph '9' that as per the provision contained in rule (iv)(a) of the Notification No.3106 dated 10.12.2002 of Home (Special) Department, Government of Bihar the convicted prisoners undergoing life sentence who have been convicted of the heinous offences such as rape, dacoity, terrorist crimes may not be considered eligible for premature release in Cr.W.J.C. No.748 of 2017, but subsequently in paragraph '16', '17' and '18' of the counter affidavit while dealing with the order of Hon'ble Division Bench in Cr.W.J.C. No.748 of 2017, it is stated that the father of the petitioner namely Tribhuwan Sharma was recommended for release in the light of the order of Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 13/42 contempt passed in Cr.WJC No.1027 of 2019 with MJC No.1828 of 2019 (arising out of Cr.WJC No.53 of 2019).
22. In paragraph '16' and '17' of the counter affidavit while dealing with the said judgment the deponent of the counter affidavit has drawn the attention of this court towards the last paragraph of the judgment of the Hon'ble Division Bench to submit that the second issue as to the applicability of 2002 notification has been left open by the court and subsequently says that the direction of the Hon'ble Court is under process and the Remission Board will take a decision very shortly in the light of the above. Immediately thereafter in paragraph '18' it is stated that father of the petitioner has been recommended for release.
23. This Court finds that the judgment of the Hon'ble Division Bench in Cr.WJC No.748 of 2017 (disposed of on 20.06.2017) to consider the case of the father of the petitioner in the said case has been ultimately complied with after two years when the contempt proceeding was initiated and he has been ordered to be released to avoid the plea of discrimination.
24. On this second issue, learned counsel for the petitioner has submitted that arbitrariness writs large on the part of the Remission Board in sitting over the matter for two years Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 14/42 after the decision of the Hon'ble Division bench and even at this stage after a lapse of another two years in the year 2021 the deponent of the counter affidavit has come with a vague statement that the direction of the Hon'ble Court is under process and the Remission Board will take decision very shortly in the light of the above. It is his submission that the State is required to take bonafide pleas and not just any untenable plea with an intention to defeat the petitioner. It is submitted that such inaction on the part of the State smacks malafide.
25. As regards the judgment of the Hon'ble Supreme Court in the present case it is the submission of learned counsel for the petitioner that while disposing of the appeal of this petitioner the Hon'ble Supreme Court categorically held that the death sentence should be commuted to life but the sentence of imprisonment for life would extend to the full life of the appellant subject to the statutory and constitutional powers of the State Government and the Governor insofar as remission and commutation etc. are concerned. Thus his submission is that the life imprisonment always means full life imprisonment and in this case also the Hon'ble Supreme Court has observed the same but then the same is subject to the statutory and constitutional powers of the State Government and the Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 15/42 Governor.
26. It is submitted, thus, that the petitioner is entitled to be considered for remission in accordance with law and his request for premature release has been rejected only by misconstruing the judgment of the Hon'ble Apex Court without taking care to read the specific mention therein that it is subject to statutory and constitutional powers of the State Government and the Governor respectively.
27. At this stage, this Court would notice that one of the contentions of the State is based on an interim order of the Hon'ble Supreme Court passed on 23.07.2015 in W.P. (Crl.) No.48 of 2014 (Union of India Vs. V. Sriharan @ Murugan). It has been contended that by virtue of the order of the Hon'ble Apex Court the convict who has been awarded life sentence for the rape cannot be granted the remission.
28. In response, learned counsel for the petitioner has contended before this Court that the interim order dated 23.07.2015 passed by the Hon'ble Supreme Court was subject to the final orders that may be passed while answering the reference and Hon'ble Supreme Court has in the final judgment reported in (2016) 7 SCC 1 held that there are two types of remission. One of the types of the remission is what is earned by Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 16/42 a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour, the another kind of remission is the grant of it by the appropriate government in exercise of its power under Section 432 Cr.P.C. As per the majority view, when a remission of the substantive sentence is granted under Section 432 Cr.P.C. then and only then giving credit to the earned remission can take place.
29. It is his submission that the convict undergoing life imprisonment can always apply to the constitutional authority concerned for obtaining remission either under Article 72 or 161 of the constitution, or under Section 432 Cr.P.C. before the statutory authority and such authority would be obliged to consider the same. The Hon'ble Supreme Court has held that the convict can claim as a matter of right that his case be considered in accordance with law. It is submitted that the authorities have been left with the discretion as to whether remissions be granted or not but such discretion ought to be exercised judiciously and in a manner known to law.
30. In course of argument, Mr. Vijay Kumar Singh, learned counsel for the petitioner and Mr. Prabhu Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 17/42 Narayan Sharma, learned AC to AG have placed the aforementioned submissions with reference to their respective pleadings available on the record.
Consideration
31. This Court has heard the rival submissions at length. Initially the writ application was filed challenging the decision of the Board taken in its meeting held on 26.01.2019 but during pendency of the writ application the Board once again took up the request of the petitioner for premature release in its meeting held on 23.12.2020. The petitioner came to know about this decision only after filing of the counter affidavit, therefore the application seeking amendment of the writ application was filed and the same has been allowed.
32. Thus, in this writ application now the Court is looking into the challenge thrown to the decision taken by the Board in its meeting held on 23.12.2020. The three grounds on which the request of the petitioner for premature release has been rejected are as follows:- (i) favourable recommendation by the Probation Officer/Superintendent of Police but adverse opinion of the Presiding Judge, (ii) the Hon'ble Supreme Court has awarded full life imprisonment to the accused and (iii) in accordance with Home (Special) Department, Bihar Notification Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 18/42 No.3106 dated 10.12.2002, para (iv) (ka) those prisoners who have been convicted for the offences like rape, dacoity, terrorism, etc. they would not be eligible to be considered for premature release.
33. This Court will first discuss the ground no.(iii) because both the learned counsel for the respective parties have strenuously argued on this issue. While it is the contention of the State respondents that this petitioner having been convicted by the learned trial court on 24.07.2006, in his case the policy as contained in the notification dated 10.12.2002 would be applicable, learned counsel for the petitioner has contended that the 2002 notification was not acted upon in want of constitution of the Remission Board for several years. It is not in dispute that 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 extracted hereunder:-
"la[;k & ,0@ih0,e&03@91&550 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 Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 19/42 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 izf Ø;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"
34. Thereafter Notification No.3106 dated 10.12.2002 came. For purpose of ready reference the said notification is being reproduced hereinbelow:-
" fcgkj ljdkj
x`g ¼fo"ks'k½ foHkkx
vf/klwpuk
iVuk] fnukad 10 fnlEcj]
la[;k& ds@dkjk&fofo/k&63@2001&3106@dkjk vf/kfu;e] 1894 dh /kkjk 59 }kjk iznRr "kfDr;s iz;ksx djrs gq, Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 20/42 jkT; ljdkj fcgkj dkjk gLrd esa rqjar ds izHkko ls fuEufyf[kr la"kks/ku djrh %& la"kks/ku fcgkj dkjk gLrd dk fu;e 529 fuEufyf[kr }kjk izfrLFkkfir fd;k tk,xk] ;Fkk] ¼i½ jkT; naMkns"k ifjgkj i'kZn dk xBu fcgkj jkT; naMkns"k ifjgkj i'kZn~ uked ,d i'kZn~ gksxh tk canh dks fn, x, naMkns"k ifjgkj ds laca/k esa fopkj djsxh vkSj leqfpr ekeyksa esa mldh le; iwoZ fjgkbZ dh vuq"kalk djsxh ;g i'kZn~ ,d LFkk;h fudk; ¼body½ gksxh RkFkk fuEufyf[kr lnL;ksa dks feykdj xfBr dh tk;sxh %& 1- x`g lfpo & v/;{k 2- fof/k lfpo & lnL;
3- mPp U;k;ky; }kjk uke funsZf"kr
ftyk ,oa l= U;k;k/kh"k & lnL;
4- funs"kd] ifjOkh{kk lsok,W & lnL;
5- vkj{kh egkfuns"kd }kjk uke funsZf"kr
vkj{kh egkfujh{kd & lnL;
6- dkjk egkfujh{kd & lnL;&lfpo
bl i'kZ~n dh vuq"kalk;sa i'kZn~ esa fdlh fjfDr ;k blds fdlh lnL; dh i'kZn~ dh cSBd esa Hkkx ysus esa vleFkZrk ds dkj.k ek= ls vof/k vekU; ugha gksaxhA ijUrq cSBd gsrq x.kiwfRrZ iwfrZ ugha gkus ij] i'kZn dh cSBd ugha gksxhA i'kZn~ dh x.kiwfRrZ v/;{k dh lfEefyr djrs gq, pkj lnL; ls gksxhA ¼ii½ i'kZn~ dh cSBd dh vof/k jkT; naMkns"k ifjgkj i'kZn~ ,d frekgh esa de&ls&de ,d ckj] jkT; eq[;ky; esa] iwjh dk;Z lwph ds lkFk de&ls&de 10 fnu iwoZ lnL;ksa dks vf/klwfpr frfFk dks cSBd djsxhA rFkkfir i'kZn~ ds v/;{k] ;fn vko";d le>s] rks i'kZn~ dh ,d ls vf/kd cSBdsa ,d frekgh esa cqyk ldsaxsA ¼iii½ le;&iwoZ fjgkbZ ds fy, vgZrk jkT; naMkns"k ifjgkj i'kZn }kjk le;&iwoZ fjgkbZ ds fy, fopkj gsrq fuEufyf[kr dksfV ds canh ik= gksaxs %& ¼d½ izR;sd fl}nks'k canh] iq:'k vFkok efgyk] tks vkthou dkjkokl dk naM Hkqxr jgk@jgh gks rFkk tks naM izfØ;k lafgrk dh /kjk 433 ¼,½ ds izko/kkuksa ls vkPNkfnr gks] fcuk ifjgkj ds de&ls&de 14] o'kksZ dh okLrfod ltk Hkqxrus ds rqjr ckn le;&iwoZ fjgkbZ ds fy, fopkj djus gsrq ik= gksaxsA ¼[k½ lHkh vU; vkthou dkjkokl dh ltk izkIr iq:'k fl)nks'k canh ifjgkj lfgr 14 o'kksZ dh U;wure ltk Hkqxrus vkSj fcuk ifjgkj ds 10 o'kksZ dh okLrfod ltk iwjh djus ds mijkUr le; iwoZ fjgkbZ ds fy, fopkj djus ds ik= gksaxsA ¼x½ lHkh vU;] vkthou dkjkokl dh ltk Hkksx jgh Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 21/42 efgyk fl)nks'k cunh] ifjgkj lfgr 10 o'kksZ dh U;wure ltk Hkqxrus vkSj fcuk ifjgkj ds 7 o'kksZ dh okLrfod ltk vof/k iwjh djus ds mijkUr le; iwoZ fjgkbZ ds fy, fopkj djus dh ik= gksxhA ¼?k½ fl)nks'k canh tks vkthou dkjkokl dh ltk dkV jgs gksa] 65 o'kZ dh vk;q iwjh djus ij] ;fn ifjgkj lfgr mUgksaus 7 o'kksZ ds llkeu dh ltk dkV yh gksA ¼Pk½ vkthou dkjkokl dk naM Hkqxr jgs oSls fl)nks'k canh tks dSlj] ,M~l] Bhd uk gksus okyh fdMuh dh chekjh] ân; ,oa "okl ls twM+s vlk/; jksx ,oa vUl ,slh NwvkNwr okyh chekjh ls xzLr gksa] tSlk fd fpfdRldksa ds ,d cksMZ }kjk izekf.kr gks] ;fn mUgksaus 5 o'kksZa ds okLrfod vFkok ifjgkj lfgr 7 o'kksZ dk naM Hkqxr fy;k gksA ¼iv½ le;&iwoZ fjgkbZ ds fy, v;ksX;rk fuEukafdr Js.kh ds fl)nks'k canh] tks vkthou dkjkokl dk naM Hkqxr jgs gks] le; iwoZ fjgkbZ ds fy, fopkj&;ksX; ugha gks ldsaxs %& 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,¡ vk;ksftr djus ds fy, fl)nks'k gksA ¼x½ oSls is"ksoj gR;kjs] ftUgsa HkkM+s 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 jgrs gq, gR;k djrk gks vFkok dRrZO; ij jgus okys yksd lsodksa dh gR;k dk nks'kh gksA ¼v½ ifjgkj i'kZn ds fopkj ds fy, ekeyksa ds izLrqrhdj.k dh izfØ;k ¼d½ dsUnzh;@ftyk dkjk ds izR;sd v/kh{kd] ftuds ikl vkthou dkjkokl dh ltk Hkqxr jgs canh gks] le;&iwoZ fjgkbZ ds fy, fofgr vgZrkvksa ds vuqlkj fopkj&{ks= esa vkus ds fy, fdlh canh ds vgZrk jkT; ljdkj }kjk bl fufer vf/kdfFkr ekunaM ds vuqlkj fopkj.k ds ;ksX; cafn;ksa ds gksus dh frfFk ls 3 ekg igys ls muds ekeyksa dh izfØ;k izkjEHk djsxkA ¼[k½ dkjk v/kh{kd ,sls izR;sd ekeysa esa ,d foLr`r fVIi.kh canh dh ikfjokfjd ,oa lekftd i`'BHkwfe nsrs gq, rS;kj djsxkA mudh fVIi.kh eas ;g Hkh mfYyf[kr jgsxk fd fdl vijk/k ds fy, mls fl)nks'k ik;k x;k vkSj nh x;h ltk ,oa ifjfLFkfr;k ftlds v/khu vijk/k fd;k x;kA canh ds dkjkokl ds nkSjku mlds vkpj.k ,oa vkpkj] ijoh{kk vodk"k ds mls NksM+s tkus dh vof/k esa mldk vkpj.k ,oa vkpkj] mlds vkpj.k "kSyh esa dksbZ ifjoZru gqvk gks vFkok dkjk vijk/k ;fn mlds }kjk fd;k x;k gks vkSj mlds fy, ltk nh x;h gks] ds ckjs esa os iw.kZ :i ls izdk"k MkysxsaA mlds "kkjhfjd] ekufld LokLFk ;k dksbZ xaHkhj fcekjh gS] ftlls canh ihfM+r gS dh mls le;&iwoZ fjgkbZ ds fy, fo"ks'k fopkj.k ds fy, gdnkj cukrh gks] ds ckjs esa ,d izfrosnu Hkh rS;kj fd;k tk,xkA bl fVIi.kh esa dkjk/kh{kd dh Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 22/42 viuh vuq"kalk esa vUrZfoZ'V gksxh fd canh dh le;&iwoZ fjgkbZ ds i{k esa gS ;k ugha vkSj izR;sd n"kk esa og Ik;kZIr dkj.kksa }kjk lefFkZr gksxhA ¼x½ dkjk/kh{kd ml ftys ds vkj{kh v/kh{kd dks funsZf"kr djsaxs fd canh vijk/k djus ds le;] ftlds fy, mls fl)nks'k fd;k x;k gS] dgk¡ lkekU;r;k fuokl djrk Fkk vFkok dkjkeqDr gksus ds ckn og iqu% dgk clus okyk gSA fQj Hkh] canh tgka vijk/k djus ds le; lkekU;r;k fuokl djrk Fkk mlds fHkUu LFkku] tgk¡ mlus vijk/k fd;k] fd n"kk esa Hkh ml ftys ds vkj{kh v/kh{kd dks ,d funsZ"k fn;k tk,xk] ftlesa vijk/k fd;k x;k FkkA nksuksa gh fLFkfr;ksa esa] og vius }kjk rS;kj dh x;h fVIi.kh dh izfr canh dh le;&iwoZ fjgkbZ dh okaNuh;rk ds laca/k esa viuk fopkj O;Dr djus gsrq vkj{kh v/kh{kd dks leFkZ djus gsrq izsf'kr djsxkA ¼?k½ lacaf/kr vkj{kh v/kh{kd funsZ"k izkIr gksus ij ekeys esa tks leqfpr dksfV ds ojh; vkj{kh inkf/kdkjh gks] }kjk tkap djk,xas ,oa Lofoosdkuqlkj viuh vuq"kalk djsxasA vuq"kalk djrs le; vkj{kh v/kh{kd ;a=or~ dk;Z ,oa canh dh le;&iwoZ fjgkbZ dk fojks/k ifjdfYir vk"kadkvksa ,oa vekU; vk/kkjksa ij ugha djsaxsA vxj vkj{kh v/kh{kd canh dh le;&iwoZ fjgkbZ ds i{k esa uk gks rks os rdZiw.kZ dkj.kksa ,oa rF;ksa ls mls U;k;ksfpr Bgjk,sxasA os funsZf"kr izkfIr ds 30 fnuksa ds fHkrj lacaf/kr dkjk vf/k{kd dks viuh jk; ds lkFk funsZ"k okil dj nsaxsA ¼Pk½ dkjk?kh{kd canh dY;k.k inkf/kdkjh@funs"kd jkT; dh ijoh{kk lsok dks Hkh bl laca/k esa funsZ"k djsxas ,oa mUgsa viuh fVIi.kh dh ,d izfr Hkh vxzlkfjr dj nsaxsA funsZ"k dh izkfIr ij] canh dY;k.k inkf/kdkjh funs"kd] ijoh{kk lsok Loa; djsaxs] vFkok fdlh ijoh{kk inkf/kdkjh ds ek/;e ls canh ikfjokfjd ,oa lekfpt i`'VHkwfe] mlds ifjokj ds lnL;ksa }kjk mldh Lohdk;Zrk] rFkk canh ds iquokZl ,oa ,d vPNs ukxfjd ds :i esa lkFkZd thou O;rhr djus gsrq lkekftd laHkkoukvksa dk /;ku j[krs gq, canh dh le; iwoZ fjgkbZ dh okaNuh; tkap djsaxs vFkok djk,xsaA os ;a=or~ dk;Z ugha djsaxs ,oa izR;sdekeys dks le;&iwoZ fjgkbZ ds fy, vuq"kaflr ugha djsaxsA nksuksa esa ls gjsd ekeys esa rF;ksa ds :i esa vfHkfyf[kr dkj.kks@viuh vuq"kalk dks U;k;ksfpr Bgjk,xsA canh dY;k.k inkf/kdkjh@funs"kd ijoh{kk lsok viuk izfrosnu@ vuq"kalk funsZ"k dh izkfIr ls 30 fnuksa ds Hkhrj dkjk/kh{kd dks lqiwnZ dj nsaxsA ¼N½ vkj{kh v/kh{kd rFkk canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok ds izfrosnu & vuq"kalk izkIr gksus ij] dkjk/kh{kd jkT; naMkns"k ifjgkj i'kZn~ dh izLrkfor cSBd ls de&ls&de ,d ekg iwoZ ekeyksa dks dkjk egkfujh{kd ds lkeus miLFkkifr djsaxsA dkjk egkfujh{kd ekeys dh tkap dkjk/kh{kd] vkj{kh v/kh{kd ,oa canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok ds izfrosnuksa @vuq"kalkvksa dks /;ku esa j[krs gq, djsaxsa A vkj{kh vf/k{kd rFkk canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok,a canh dh le;&iwoZ fjgkbZ vFkok jkT; naMkns"k ifjgkj i'kZn~ ds ljdkj }kjk vf/kdkfFkr lkekU; ;k fo"ks'k fn"kk funsZ"k dks /;ku esa j[krs gq, canh dh fjgkbZ ds laca/k esa viuh Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 23/42 vuq"kalk,a djsaxsA le;&iwoZ fjgkbZ ds fo'k; esa ekuuh; loksZPp U;k;ky; ,oa foHkUu ekuuh; mPp U;k;y;ksa }kjk fn, x;s fofHkUu lfUu;eksa ,oa fn"kk funsZ"kks dks Hkh /;ku esa j[kk tk,xkA ifjgkj i'kZn ds fy, izfØ;k ,oa fn"kk funsZ"k ¼d½ dkjk egkfujh{kd jkT; eq[;ky; esa jkT; naMkns"k ifjgkj i'kZn~ dh cSBd fdlh fnu rFkk le; vkgqr djsaxs ftldh iwoZ lwpuk cSBd dh fu/kkZfjr frfFk ls de&ls&de nl fnu iwoZ i'kZn~ ds v/;{k ,oa lnL;ksa dks lwpuk nh tk,xh ,oa mlds lkFk lEiw.kZ dk;Zlwph ds dkxtkr layXu jgsaxs] ;Fkk & dkjk/kh{kd dh fVIi.kh] vkj{kh v/kh{kd] canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok;s rFkk dkjkegkfujh{kd dh vuq"kalk,a] nLrkostksa dh izfr lfgr ;fn dksbZ gksA ¼[k½ cSBd lkekU;rk v/;{k dh v/;{krk esa gksxh vkSj ;fn dqN dkj.kksa ls cSBd esa mifLFkr gksus esa vleFkZ gks rks ;g U;kf;d lfpo&lg&fof/k ijke"khZ dh v/;{rk esa gksxh A & lnL;&lfpo ¼dkjk egkfujh{kd½ jkT; naMkns"k ifjgkj i'kZn~ ds le{k fopkj.k gsrq izR;sd canh ds ekeys dks izLrqr djsaxsA i'kZn~ ekeys ij fopkj djsxh ,oa viuk fopkj xfBr djsxhA tgka rd O;ogk;Z gks] naMkns"k ifjgkj i'kZn~ loZlEefr ls vuq"kalk djus dk iz;kl djsxhA fQj Hkh folEefr dh n"kk esa cgqer vfHkHkkoh gksxk vkSj og i'kZn~ dk fu.kZ; ekuk tk,xkA ¼x½ fdlh fof"k'V canh dh le;&iwoZ fjgkbZ ds ekeys ij fopkj djrs le; i'kZn~ {keknku] naMkns"k ds ifjgkj vkfn dks jkT; ljdkj }kjk U;k;ky;ksa }kjk] ml fo'k; esa iwoZ ds mnkgj.k ds :i esa vf/kdfFkr lkekU;% fl)karksa dks fopkj esa j[ksxkA naMkns"k ifjgkj i'kZn~ ds le{k canh dY;k.k ,oa lekt dY;k.k dk loksZifj /;ku gksxkA i'kZn~ lkekU;r;k fdlh canh dh le;&iwoZ fjgkbZ dks ek= bl vk/kkj ij vLohdkj ugha djsxh fd iqfyl }kjk mlds fjgkbZ dfri; vrkfdZd ,oa dkYifud vo/kkj.kkvksa ds dkj.k vuqlaflr ugh gSa i'kZn~ mu lHkh ifjfLFkkfr;ksa dks fopkj {ks= esa j[skxk ftlesa canh }kjk vijk/k fd;k x;k gks] rFkk canh }kjk bl rjg ds ;k vU; fdLe ds vijk/k djus dk :>ku gS ;k ugh] ;k bl rjg dk vijk/k og iqu% dj ldrk gS ;k ughaaA ¼?k½ jkT; naMkns"k ifjgkj i'kZn~ }kjk fdlh canh dh le; iwoZ fjgkbZ dh ,d ;k ,d ls vf/kd voljksa ij vLohd`r mlds ekeysa ds iqufoZpkj esa ck/kd ugha gksxhA fQj Hkh] fdlh fl)nks"k canh ds vLohd`r ekeys ij iqufoZpkj mlds ekeys esa iwoZ esa fd;s x;s fopkj dh frfFk ls ,d lky dh vof/k chr tkus ij gh fd;k tk;sxkA ¼p½ jkT; naMkns'k ifjgkj i'kZn dh vuq"kalk,a vfoyEc l{ke inkf/kdkjh ds le{k fopkjkFkZ izLrqr dh tk;sxhA l{ke inkf/kdkjh jkT; naMkns"k ifjgkj i'kZn~ dh vuq"kalkvksa dks ;k rks Lohdkj djsxk ;k mls vfHkfyf[kr dkj.kksa ds vk/kkj ij vLohd`r djsxk ;k fdlh fof"k'V ekeys ij iqufoZpkj djus ds fy, jkT; naMkns"k ifjgkj i'kZn dks dgsxkA l{ke izkf/kdkjh dk fu.kZ; lacaf/kr canh dks lalwfpr fd;k tk;sxk vkSj ;fn l{ke izkf/kdkjh us ifjgkj iznku fd;k gks vkSj mlds le; iwoZ fjgkbZ dk vkns"k fn;k tk pqdk gks] rks canh rqjar l"krZ vFkok fcuk Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 24/42 "kRrZ dkjk ls eqDr dj fn;k t;sxkA bl fu;e dk vfHkHkkoh izHkko bl fu;e dk vfHkHkkoh izHkko fcgkj dkjk gLrd ds fu;e&548 ,oa fu;e&552 ij ml gksxk] tgk¡ rd vkthou dkjkokl dh ltk Hkqxr jgs cafn;ksa dks le;&iwoZ fjgkbZ ls laca/k gks fcgkj jkT;iky ds vkns"k ls] g0 ¼vkj- ts- ,e- fiYyS½ x`g vk;qDr ,oa lfpo"
35. 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 2 nd July 2007, therefore, both the letters are being reproduced hereinbelow:-
"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] Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 25/42 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 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"
36. The bone of contention is the actual acting upon in Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 26/42 accordance with the Notification No.3106 dated 10.12.2002.
37. The petitioner has placed on record the memo no.2214 dated 09.04.2018 (Annexure P-9) and a specific statement has been made that for the first time the notification was issued by the State Government for constitution of State Remission Board and before that it was not in force. The specific statement of the petitioner in paragraph '18' of the writ application has not at all been denied specifically either in the counter affidavit or in the supplementary counter affidavit filed on behalf of the State.
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 Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 27/42 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 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' Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 28/42 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 was before the Board, still in some of Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 29/42 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."
42. The most unfortunate part of this case is that the Remission Board admits its inaction in not deciding the said issue till date but at the same time they are taking the same plea which was taken in the year 2017 before the Hon'ble Division bench that 2002 notification would be applicable. On the one hand the specific statement in the writ petition supported by Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 30/42 notification (Annexure P-9) enclosed by the petitioner have not been denied but at the same time completely vague and misleading statements have been made in the counter affidavit saying that in terms of 2002 notification case of the petitioner would not be covered for consideration.
43. It is in fact an admission of the respondents that after keeping the matter pending for about two years since the decision of the Hon'ble Division Bench in Cr.WJC No.748 of 2017, ultimately on the ground of discrimination the father of the said petitioner was released but in order to defeat this petitioner on the issue of the applicability of the Notification dated 10.12.2002 once again the respondents say after more than four years of the said judgment that the respondents would take a decision very shortly. The fact remains that even on 21.10.2021 when this matter was listed under heading "To Be Mentioned" for taking on record the judgment of learned trial court, this Court has not been informed of any decision of the respondents on this issue.
44. This Court is tempted to quote the statements of the respondents made in paragraph '17' of the counter affidavit hereinbelow:-
"That the above direction of the Hon'ble Court is under process and the Remission Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 31/42 Board will take decision very shortly in the light of the above."
45. Despite the opportunity given by the Hon'ble Division Bench to deal with this issue in the case of Tribhuwan Sharma, if more than four years the State respondents have not dealt with the same and they do not feel shy on reiterating the same stand, this Court is of the considered opinion that it is a case of inaction on the part of the State respondents. Such conduct of the Remission Board is liable to be deprecated. While exercising of its power under Article 226 of the Constitution of India the High Court refrains itself from interfering in the executive domains normally and that is the self made rule of discipline in exercising its extra-ordinary writ jurisdiction but despite such indulgence being given to the executive and the authorities through whom the State is acting if the issues are not resolved and the Court is kept engaged with same and one plea repeatedly, in order to put at rest the dispute, this Court being the guardian responsible to protect the fundamental rights and legal rights of the citizen is bound to intervene through the adjudicatory process.
46. This Court comes to a considered opinion that given the kind of materials available on the record this issue must be put at rest by way of an adjudication in this case. Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 32/42 Undisputed pleadings of the petitioner duly supported by the notifications which have been extracted hereinabove and complete inaction on the part of the respondents in not only sitting over the matter on this issue for four and half years but by not producing any cogent material on the record of this case to take any other view, this Court unhesitatingly comes to a conclusion that the notification bearing no.3106 dated 10.12.2002 was not acted upon immediately as it was not workable and the petitioner is correct in saying that for the first time the Remission Board was constituted vide Annexure 'P-9'. The case of the petitioner would thus not be covered under para
(iv)(ka) of the notification dated 10.12.2002.
47. The respondents have admitted the premature release of several life convicts during the period noticed by the Hon'ble Division Bench of this Court in Cr.WJC No.748 of 2017 based on which the case of Tribhuwan Sharma was also considered and he has been released treating him in equal manner with those who were convicted in the year 2003. The case of the petitioner is, therefore, liable to be considered in similar manner as has been done in those cases which are discussed in the Hon'ble Division Bench Judgment.
48. The second ground on which the case of the Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 33/42 petitioner has been rejected is said to be the judgment of the Hon'ble Apex Court awarding full life imprisonment. In the opinion of this Court the Remission Board has completely erred in construing the judgment of the Hon'ble Supreme Court in Criminal Appeal No.211 of 2009 disposed of on July 26, 2011. The relevant parts of which are being extracted hereinabove:-
"....We are also told that the appellant has a young daughter from his late wife and that the child is presently being looked after by her maternal grand mother. We are cognizant of the fact that each of these factors taken up individually would not perhaps be sufficient to call for a commutation of the sentence awarded but, if cumulatively taken, some extenuation in the sentence is called for. At the same time, keeping in view the gravity of the offence we think that the award of a life sentence simplicitor would not meet the ends of justice. We, accordingly, feel that the death sentence should be commuted to life but the sentence of imprisonment for life would extend to the full life of the appellant subject to the statutory and constitutional powers of the State Government and the Governor insofar as remission and commutation etc. are concerned. We make an order in the above terms."
49. The aforesaid view discussed by the Hon'ble Apex Court in the case of this petitioner is to be read with the judgment of the Hon'ble Supreme Court in the case of Union of Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 34/42 India vs V. Sriharan @ Murugan reported in (2016) 7 SCC 1 wherein the Hon'ble Supreme Court has discussed in detail the scope of exercise of power of remission under Section 432(1) Cr.P.C. One of the questions which fell for consideration before the Hon'ble Supreme Court in Sriharan's case 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 Judges referred Section 45 and 53 of the Indian Penal Code and reiterated the views expressed by the Hon'ble Supreme Court in the two earlier Constitution Bench decisions in the case of Gopal Vinayak Godse vs State of Maharashtra, AIR 1961 SC 600 and another Constitution Bench judgment in the case of Maru Ram vs Union of India, (1981) 1 SCC 107. Paragraph 51 to 58 of the judgment in the case of V. Sriharan @ Murugan (supra) are quoted hereunder for a ready reference:-
"51. This question contains two parts. The first part poses a question as to whether life imprisonment as a punishment provided for under Section 53 of the Penal Code and as defined under Section 45 of the said Code means imprisonment for the rest of one's life or a convict has a right to claim remission. The second part is based on the ruling of Swamy Shraddananda (2) v. State of Karnataka (2008) 13 SCC 767 : (2009) 3 SCC (Cri) 113] .
52. Before answering the first part of this question, it will be worthwhile to refer to at least two earlier Constitution Bench decisions which cover this very Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 35/42 question. The first one is reported as Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600 :
(1961) 1 Cri LJ 736 : (1961) 3 SCR 440] . The first question that was considered in that decision was:
(AIR pp. 601-02, para 4) "4. ... whether, under the relevant statutory provisions, an accused who was sentenced to transportation for life could legally be imprisoned in one of the jails in India; and if so, what was the term for which he could be so imprisoned?"
(emphasis supplied) We are concerned with the second part of the said question, namely, as to what was the term for which a life convict could be imprisoned. This Court answered the said question in the following words:
(AIR p. 603, para 5) "5. ... A sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life."
The learned Judges also took note of the various punishments provided for in Section 53 of the Penal Code before rendering the said answer. However, we do not find any reference to Section 45 of the Penal Code which defines "life" to denote the life of a human being unless the contrary appears from the context.
53. Having noted the ratio of the abovesaid decision in this question, we can also profitably refer to a subsequent Constitution Bench decision reported as Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 : (1981) 1 SCR 1196] . At SCR pp. 1222-23, this Court while endorsing the earlier ratio laid down in Godse [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 :
Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 36/42 (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] held as under: (Maru Ram case [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 : (1981) 1 SCR 1196] , SCC p. 132, para 30) "30. A possible confusion creeps into this discussion by equating life imprisonment with 20 years' imprisonment. Reliance is placed for this purpose on Section 55 IPC and on definitions in various Remission Schemes. All that we need to say, as clearly pointed out in Godse [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] , is that these equivalents are meant for the limited objective of computation to help the State exercise its wide powers of total remissions. Even if the remissions earned have totalled up to 20 years, still the State Government may or may not release the prisoner and until such a release order remitting the remaining part of the life sentence is passed, the prisoner cannot claim his liberty. The reason is that life sentence is nothing less than lifelong imprisonment. Moreover, the penalty then and now is the same -- life term.
And remission vests no right to release when the sentence is life imprisonment. No greater punishment is inflicted by Section 433-A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14-year jail life once we realise the truism that a life sentence is a sentence for a whole life. (See Sambha Ji Krishan Ji v. State of Maharashtra, (1974) 1 SCC 196 : 1974 SCC (Cri) 102 : AIR 1974 SC 147] and State of M.P. v.
Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri) 428] .)"
(emphasis supplied) Again at SCR p. 1248 it is held as under: (SCC Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 37/42 p. 154, para 72) "72. (4) We follow Godse case [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by the Government."
54. In an earlier decision of this Court in Sambha Ji Krishan Ji v. State of Maharashtra, (1974) 1 SCC 196 : 1974 SCC (Cri) 102 : AIR 1974 SC 147] , in para 4 it is held as under:
(SCC p. 197) "4. ... As regards the third contention, the legal position is that a person sentenced to transportation for life may be detained in prison for life. Accordingly, this Court cannot interfere on the mere ground that if the period of remission claimed by him is taken into account, he is entitled to be released. It is for the Government to decide whether he should be given any remissions and whether he should be released earlier."
55. Again in another judgment, State of M.P. v. Ratan Singh, (1976) 3 SCC 470 : 1976 SCC (Cri) 428], it was held as under in para 9: (SCC p. 477) "9. From a review of the authorities and the statutory provisions of the Criminal Procedure Code the following propositions emerge:
(1) that a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 38/42 rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Criminal Procedure Code;"
(emphasis supplied) It will have to be stated that Section 401 of the Criminal Procedure Code, 1898 referred to therein is the corresponding present Section 432 of the Criminal Procedure Code, 1973.
56. We also wish to make reference to the statement of law made by the Constitution Bench in Maru Ram [Maru Ram v. Union of India, (1981) 1 SCC 107 : 1981 SCC (Cri) 112 : (1981) 1 SCR 1196] at SCR pp. 1221 and 1222. At SCR p. 1221, it was held: (SCC pp. 130-31, para 26) "26. ... Here, again, if the sentence is to run until life lasts, remissions, quantified in time cannot reach a point of zero. This is the ratio of Godse [Gopal Vinayak Godse v. State of Maharashtra, AIR 1961 SC 600 : (1961) 1 Cri LJ 736 : (1961) 3 SCR 440] ."
57. In the decision in Ranjit Singh v. UT of Chandigarh, (1984) 1 SCC 31 : 1984 SCC (Cri) 27] while commuting the death to life imprisonment, it was held that: (SCC p.
32, para 2) Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 39/42 the two life sentences should run consecutively, to ensure that even if any remission is granted for the first life sentence, the second one can commence thereafter.
58. It is quite apparent that this Court by stating as above 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."
50. It is thus crystal clear that the imprisonment for life lasts until the last breath and a court of law cannot interfere on the ground that if period of remission claimed by a convict is taken into account, he is entitled to be released. It is always for the government to decided whether he should be given any remission and whether he should be released.
51. In the present case since this Court has come to a conclusion that 2002 notification cannot be applied against the petitioner and his case is liable to be considered on the same pedestal on which the cases of other life convicts who were awarded life conviction in the year 2003 as have been discussed by the Hon'ble Division Bench in Cr.WJC No.748 of 2017 have been considered, this Court is of the view that the case of the Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 40/42 petitioner cannot be rejected on the ground that the Hon'ble Apex Court has awarded full life imprisonment. The essence of the matter is that if under the policy decision of the government the petitioner is entitled to be considered for remission then he must be considered. The constitutional power under Article 72 and 161 of the Constitution of India and the statutory power under Section 432 Cr.P.C. still remains. Thus the second ground taken by the Remission Board for rejection of the case of the petitioner also fails.
52. Now the only remaining ground is that the report of the Presiding Judge is adverse. In this case the Probation Officer and the Superintendent of Police both have submitted favourable recommendation based on their inquiry from the villagers and the family members who have categorically stated that they have no threat from the petitioner and no adverse consequence is likely to fall if the petitioner is released prematurely. The Probation Officer has reported that the family members of the petitioner are ready to accept him and there is a very good possibility of his rehabilitation and integration with the family.
53. At this stage, this Court would again notice the observations of the Hon'ble Supreme Court while commuting Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 41/42 the sentence of this petitioner to one of the life imprisonment. The two reasons which were advanced for commutation of sentence were that the petitioner was aged about 30 years at the relevant time when the incident took place and there is a possibility that he may at some stage of his life have a reformation in his character and secondly he had a young daughter from his late wife. These two reasons taken together led to the decision of the Hon'ble Supreme Court to commute his death sentence to one of life imprisonment.
54. In the nature of the materials referred above when this Court goes through the opinion of the learned Presiding Judge who is 2nd Additional District and Sessions Judge, Samastipur, it appears that the learned Presiding Judge has completely failed to understand the decision of the Hon'ble Supreme Court and seems to have got obsessed with the cluster of words "full life of imprisonment". He has recorded his opinion without appreciating that the Hon'ble Supreme Court has categorically said about the sentence of imprisonment for life extending to full life of the appellant subject to the statutory and constitutional powers of the State Government and the Governor insofar as remission and commutation etc. are concerned.
Patna High Court CR. WJC No.236 of 2021 dt.25-10-2021 42/42
55. The judgment of the Hon'ble Supreme Court cannot be construed so as to say that the case of the petitioner cannot be considered for remission in exercise of statutory and constitutional power of the State government and the Governor respectively. This Court, therefore, finds that the Remission Board is not correct in rejecting the case of the petitioner on the basis of the report of the learned Presiding Judge.
56. In ultimate analysis, the impugned decision as regards the petitioner contained in the minute of the meeting held on 23.12.2020 (Annexure P-15) is hereby set aside. The State Remission Board shall take a fresh decision in respect of the petitioner within a period of one month from the date of communication of this order in the light of the observations made hereinabove.
57. This writ application is allowed.
(Rajeev Ranjan Prasad, J) arvind/-
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