Karnataka High Court
Saleem Gudusab Naik vs State Of Karnataka Through Belgaum ... on 12 April, 2007
Equivalent citations: ILR2007KAR2695, 2007(5)KARLJ137, 2007 (4) AIR KAR R 488
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah, Jawad Rahim
ORDER N.S. Veerabhadraiah, J.
1. The appellant-accused has filed a memo for withdrawal of the appeal which reads as follows:
The undersigned herewith submits that the above appeal is filed through Jail against the Judgment and Order of conviction passed by the FTC-I, Belgaum in SC No. 19/2000. The appellant is undergoing imprisonment in Central Jail, Belgaum. Through the letter dated 18.09.2006, the appellant has requested the High Court Legal Service Authorities to provide legal aid to withdraw the appeal. On the letter written by the appellant, the High Court Legal Services Committee has written a fetter dated 17.11.2006 in H.C.L.S.C.440/2005, requesting me to withdraw the above appeal and forwarded the letter written by the appellant to the High Court Legal Services Committee. In view of the same, I am filing this memo to permit the appellant to withdraw the appeal, to meet the ends of justice.
The original letter dated 18.09.2006 written by the appellant and the original letter dated 17.11.2006 written by the High Court Legal Services authority are furnished herewith for kind perusal of this Hon'ble Court.
The memo was posted before us on 05.01.2007 for orders.
2. In support of the memo, the learned Counsel for the appellant referred to the letter dated 18.9.2006 addressed by the appellant-accused to the Member Secretary, Legal Services Authority seeking free legal aid to enable him to withdraw this appeal pending in the High Court. He would also refer to the letter of Member Secretary, Legal Services Authority dated 17.11.2006 addressed to the learned Advocate V.B. Siddaramalah, requesting him to place the representation of the appellant-accused before this Court to enable him to withdraw the appeal. We have read both these communications.
3. It is seen from the letter dated 18.9.2006 appended to the memo addressed by the appellant to the Secretary, KLSA, he has sought permission to withdraw the appeal in the hope he may get remission of sentence. In this regard he has mentioned that on the eve of National Celebrations, Government of Karnataka is considering premature release of convicts subject to condition that there should be no appeal pending consideration in courts. As the instant appeal of the appellant is pending, the jail authorities have declined to receive/forward his application for remission unless he withdraws his appeal. This is the only reason for the appellant to seek withdrawal of the appeal. The Legal Services Authority has forwarded his representation to his counsel to be placed before us for consideration. We had questioned the learned Addl. SPP as to whether withdrawal of appeal is a condition precedent for receiving and considering the application of the convicts and if so whether it is supported by any Rules, guidelines or instructions issued by the Government.
4. Sri. V.S. Raju, the Chief Superintendent, Central Prison, Bangalore was present in court (on 05.01.2007) and on questioning, he informed the court that the Head of Department (Home Department) has issued circular instructions to the jail authorities, whereby withdrawal of appeal by the convicts was made a condition precedent to forward the applications seeking remission. Therefore we directed the Addl. SPP to produce such circular instructions, if any. But on 17.01.2007, the learned Addl. SPP reported to the court that no such circular instructions have been issued by the Home Department requiring withdrawal of the appeals for considering the applications but the jail authorities are insisting for withdrawal of the appeal by the applicant following the provisions of Rule 820 of the Karnataka Prison Manual, 1978. He has made available the said Rules. The provision of Rule 820 reads thus:
820. (I) For his purpose copy of judgment in respect of prisoners sentenced to 5 years and above, may be called for as soon as the period for preferring appeal is over or after the receipt of decision of the appeal and on receipt the same may be attached to the respective conviction warrant of the Prisoners.
(II) On receipt of all the information a statement of all the prisoners due for review shall be prepared with full particulars of each Prisoner and a copy thereof may be sent to each member of the Board before the meeting.
A reading of the above Rule does not indicate that withdrawal of the appeal by the convict is a condition precedent to consider his representation for grant of remission of sentence.
5. The power of the State to suspend or remit sentence imposed upon the convicts is conferred by the provision of Sections 432 and 433 of Cr.P.C. in the circumstances enumerated therein. The provision of Section 432 reads thus:
432. Power to suspend or remit sentences:
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petition should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in Jail, and -
(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in Jail.
(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in Section 433, the expression "appropriate Government" means, -
(a) In cases where the sentence is for an offence against, or the order referred to in Sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) In other cases, the Government of the State within which the offender is sentenced or the said order is passed.
6. It is therefore, seen that for regulating proper exercise of power by the Government and the procedure to receive and deal with the representations of the convicts, Sub-Section (5) of Section 432 requires the appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with. In the instant case, we had ascertained from the State Prosecutor as also the Home Secretary as to whether the State Government has framed any general rules or issued any special orders in this regard. The Home Secretary, Sri. S. Ramakrishna, has filed affidavit before this Court and in para 4 of the said affidavit, he states thus:
I submit that the Government has not issued any Circular or Order directing that the prisoners, whose appeals are pending in any of the Court, shall not be recommended for release. The jail Authorities will follow the rules contemplated under the Jail Manual and recommend the names of the prisoners to the Government. The Government based on the report of the Jail Authorities will take appropriate decision.
7. In the meanwhile, we have directed the learned Advocate General to take notice to have his say in the matter. Sri Uday Holla, learned Advocate General appeared and submitted that there are no Rules as such framed by the Government of Karnataka for the premature release of the convicts. It is further submitted that he will instruct the Government to frame Rules as provided in accordance with Section 432(5) of Code of Criminal Procedure, 1973.
8. We have heard the learned Counsel for the appellant who submitted that as per the objection statement itself, that in case of convicts who have undergone sentence for more than eight years have been released in pursuance of the order No. HD 140 PRA 2006, Bangalore dated 14.8.2006. Therefore the case of the accused also to be considered on the same footings and accordingly prays for issue of direction to the Government to order release of the accused as the appellant has undergone sentence for more than eight years.
9. The learned prosecutor submitted that it is only a special case where the Government has ordered for release of about 309 convicts coming under different heads as noted in the Government order. The said benefit cannot be extended to this accused. Therefore prays to reject the memo.
10. We have also heard the learned Advocate General in the matter. In view of the categorical statement made by the learned Advocate General that the Government has not framed any rule as required under Section 432(5) of the Cr.P.C, the Government could exercise power to suspend or remit the sentence either under Section 432 or under Section 433 of the Cr.P.C. Section 433 reads thus:
433. Power to commute sentence:- The appropriate Government may, without the consent of the person sentenced, commute -
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for 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.
11. It is seen that the power to commute sentence conferred by Section 433 is subject to the restrictions imposed by virtue of Section 433A of the Cr.P.C. It reads thus:
433A. 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 law 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 for fourteen years of imprisonment.
12. As noted above, in order to remit sentence the only enabling provisions available to the Government are Sections 432 and 433 of the Cr.P.C. Rule 820 of the Karnataka Prison Manual, 1978, deals with mode of collection of records for Advisory Board. Under that Rule, no condition is imposed that convict should withdraw his appeal to approach the Government for suspension of remission of sentence. In fact, provision of Section 433 makes it clear that the appropriate Government may, without the consent of the person sentenced, can commute the sentence imposed upon him. It is only in cases if the Advisory Board feels that convict is required to be released prematurely. It can recommend to the Government. On such opinion, the Government can remit the sentence. It is regretted that the Government has so far not framed any rules or issued any special orders to regulate this process, as required under Section 432(5) of the Cr.P.C. Though there are no rules framed, the Government has commuted/remitted sentence imposed upon more than 309 prisoners as seen from the Government Order referred to above ignoring the mandatory provision of Section 433A. However, in the light of the submission made by the learned Advocate General that the Government has prepared draft rules and it is yet to be notified prescribing the procedure for prematurely release of convicts, we think it suffices if we observe that it is open to the appellant to approach the Government seeking remission or suspension of sentence.
13. In this view of the matter, we are of the opinion that the memo filed by the appellant cannot be permitted as there is no guarantee that he may get remission of the sentence and also because this Court cannot issue any direction for his premature release. Besides, if he is permitted to withdraw the appeal only on this Count, his rights will be adversely affected. In the circumstances, while rejecting the memo filed by the appellant for withdrawal of the appeal, we place the submission made by the learned Advocate General and direct that the Government shall notify the rules as early as possible not later than within a period of two months. Accordingly, the memo filed by the appellant is ordered to be rejected.
14. Post the case before the regular Bench.
15. A copy of this order be communicated to the Government for compliance.