Kerala High Court
Suo Motu Proceedings Under Section 482 ... vs State Of Kerala on 4 June, 2002
Author: J.B. Koshy
Bench: J.B. Koshy, K. Padmanabhan Nair
ORDER J.B. Koshy, J.
1. This is suo motu proceedings taken by this Court under Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') for giving effect to the orders under the Code and to prevent abuse of the process of the Court and alleged violation of Section 433-A of the Code to secure ends of justice. We have appointed Shri K.B. Suresh, Advocate as Amicus Curiae. Director General of Public Prosecutions and State Prosecutor Shri P.V. Madhavan Nambiar appeared and produced all the relevant files and rules. At the outset, we appreciate the assistance given to the Court by Sri. P.V. Madhavan Nambiar, State Prosecutor and Shri. K.B. Suresh, Advocate (Amicus Curiae).
2. When criminal appeals were posted before the Division Bench, this Court noticed that several of the convicts were on parole and those who are sentenced for life on conviction for an offence for which death is one of the punishment provided under law are released within six or seven years of imprisonment. Paroles and remissions were granted indiscriminately. Since cold-blooded murders, whether political or otherwise, were on the increase, this Court decided to look into the matter. The then Director General of Public Prosecutions submitted before us that the Government have got absolute powers under Article 161 of the Constitution of India to give remissions and large number of convicts were released in a single stroke especially in 1998, 1999 and 2000. It was submitted that orders were passed after considering the recommendations of the State Prison Review Committee. Therefore, we have called for the files containing the reports of the Committee also. We were also informed that certain convicts who have done heinous crimes are given paroles indiscriminately covering up most of their sentences and then they were given premature release. They were actually undergoing imprisonment for one or two years only even though they were sentenced to undergo imprisonment for life. There were also reports to the effect that persons who were on parole are again committing crimes and some of them are reported to have absconded and failed to return to the jail after the parole period. But, the convicts who are not having political or financial influence are not given parole and several complaints from the convicts were received in this aspect.
3. We have called for the rules for granting parole etc. Only in rarest of rare cases, capital punishment is now being imposed and, therefore, even though offences are heinous, only lesser punishment of life imprisonments are given. Life imprisonment means sentence upto the end of life. But, almost majority of the convicts are released after six or seven years of imprisonment and this is an encouragement given by the State to commit more.crimes. Therefore, we have looked into the files relating to the premature release and grant of paroles and we are of the opinion that some guidelines are necessary in such cases.
4. Under Section 432 of the Code, the appropriate Government has got power to remit sentence. Section 432 of the Code is as follows:
"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 or 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 petitions 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."
Under Section 433 of the Code, sentence of imprisonment for life can be commuted as imprisonment for a term not exceeding fourteen years or for fine. But, Section 433-A of the Code imposes restriction on special powers of remission. Section 433 and 433-A of the Code are quoted below:
"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 fora terra 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.
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 punishments 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 fourteen years of imprisonment."
5. In Life Convict Laxman Naskar v. State of West Bengal and Anr., (2000 AIR SCW 3060), the Supreme Court held that sentence for imprisonment for life ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life. A convict undergoing such sentence may earn remissions of his part of sentence, but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence etc. does not entitle the convict to be released automatically before the full life term is served. Even the provisions in the Jail Manual or in the Rules equating with a period of 20 years does not confer any indefeasible right on a person to be unconditionally released on the expiry of such particular term and such rules also will not benefit a life convict. Even before the introduction of Section 433-A, this question was considered by the Supreme Court following the decision of the Privy Council in Pandit Kishori Lal v. King Emperor (AIR 1945 PC 64) where it was held by the Privy Council as follows:
"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..... But, the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Actconfersapoweron the State Government to make rules, inter alia, for rewards for good conduct, Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act..... Under the said rules She orders of an appropriate Government under Section 401, Criminal Procedure Code, are a pre-requisite for are lease. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life."
Therefore, order has to be passed by the Government taking into account the facts of the case.
6. In Gopal Vinayak Godse v. State of Maharashtra, (AIR 1961 SC 600), it was held by the Supreme Court as follows:
"....... 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 Court further observed thus:
"..... But, the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisoners Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act..... Under the said rules the orders of an appropriate Government under Section 401, Criminal Procedure Code, are prerequisite for a release. No other rule has been brought to our notice which confers an indefeasible right on a prisoner sentenced to transportation for life to an unconditional release on the expiry of a particular term including remission. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life."
In State of Madhya Pradesh v. Ratan Singh (AIR 1976 SC 1552) it was held as follows:
"9. From a review of the authorities and the statutory provisions of the Code of Criminal Procedure 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 rules framed under the various Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian 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 Code of Criminal Procedure;
(2) that the appropriate Government has the undoubted discretion to remit or refuse to remit, the sentence and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner;
(3) that the appropriate Government which is empowered to grant remission under Section 401 of the Code of Criminal Procedure is the Government of the State where the prisoner has been. convicted and sentenced....."
Until the enactment of Section 433-A, Government had absolute discretion to give remissions. But, Section 433-A obligates actual detention in prison for minimum of 14 years of convicts who could have been also punished with death; but were sentenced to life imprisonment.
7. In Maru Ram and Ors. v. Union of India, (AIR 1980 SC 2147), a Constitution Bench of the Supreme Court held that Section 433-A of the Code is constitutionally valid and remissions and short sentence schemes and rules framed are not saved by virtue of Section 5 and they will not override Section 433-A. It is contended by the Director General of Public Prosecutions that pardons and remissions are made not under Section 433-A of the Code; but under Article 161 of the Constitution of India. The Supreme Court in Maru Ram's case (supra) considered the question of deterrent nature of punishment and question of reforming the prisoner the likelihood of life convict who otherwise should have been punished for death repeating the crimes etc. with various authorities and held that there are wide powers under Arts. 72 and 161 of the Constitution of India to give pardon. The power should be exercised courteously and they should not overlook such object, spirit and philosophy of Section 433-A so as to create a conflict between the legislative intent and executive power and constitutional powers should not be used arbitrarily without application of mind. It was held by the Supreme Court that even though power under Article 161 of the Constitution of India is very wide, no restrictions are placed in the Constitution. It was held that "an issue of deeper import demands our consideration at this stage of discussion. Wide as the power of pardon, commutation and release (Article 171 and 161) is, it cannot run riot; for no legal power can run unruly like John Gilpin on the horse but must keep sensibly to a steady course." It further held that the power under Article 161 can never be used for an extraneous purpose, mala fide or arbitrarily. It must be in conformity with some principle which meets the test of reason and relevance. Again, at paragraph 63, it was held as follows:
"..... It is the pride of our constitutional order that all power, whatsoever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle, even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of Presidential power."
Finally, the Supreme Court held as follows:
"98. For these reasons, I am clearly of the opinion that in cases where Section 433A applies, no question of reduction of sentence arises at all unless the President of India or the Governor choose to exercise their wide powers under Article 72 or Article 161 of the Constitution which also have to be exercised according to sound legal principles as adumbrated, by Brother Krishna Iyer,J. I, therefore, think that any reduction or modification in the deterrent punishment would far from reforming the criminal be counter-productive.
99. Thus, on a consideration of the circumstances mentioned above, the conclusion is inescapable that Parliament by enacting Section 433A has rejected the reformative character of punishment, in respect of offences contemplated by it, for the time being in view of the prevailing conditions in our country. It is well settled that the Legislature understands the needs and requirements of its people much better than the courts because the Parliament consists of the elected representatives of the people and if the Parliament decides to enact a legislation for the benefit of the people, such a legislation must be meaningfully construed and given effect to so as subserve the purpose for which it is meant.
100. Doubtless, the President of India under Article 72.and the State Government under Article 161 have absolute and unfettered powers to grant pardon, reprieves, remissions, etc. This power can neither be altered, modified or interfered with by any statutory provision. But, the fact remains that higher the power, the more cautious would be its exercise. This is particularly so because the present enactment has been passed by the Parliament on being sponsored by the Central Government itself. It is, therefore, manifest that while exercising the powers under the aforesaid Articles of the Constitution neither the President, who acts on the advice of the Council of Ministers, nor the State Government is likely to overlook the object, spirit and philosophy of Section 433A so as to create conflict between the legislative intent and the executive power. It cannot be doubted as a proposition of law that where a power is vested in a very high authority, it must be presumed that the said authority would act properly and carefully after an objective consideration of all the aspects of the matter" (Underlining by us to show emphasis) The principles laid down by the Constitution Bench in Maru Ram's case (supra) were followed by the Supreme Court in subsequent cases also. In State of Haryana and Ors., v. Balwan ((1999) 7 SCC 355), the Supreme Court considered a case where the State of Haryana inconsistent-with the correct legal position after the enactment of Section 433-A and after the decision in Maru Ram's case (supra) modified the policy decision. Paragraph 3 of the above judgment states as follows:
"3. The State of Haryana was earlier considering premature release of life convicts in accordance with the rules framed and instructions issued by it in that behalf. To be consistent with the correct legal position emerging after the enactment of Section 433-A and the decision of this Court in Maru Ram's case the State of Haryana modified its policy decision and instructions and declared that though the cases of life convicts for their premature release will still be governed by the instructions issued by it, in respect of those convicts who fall within the purview of Section 433-A their cases will be considered on an individual basis and such cases will be put up to the Governor through the Minister of Jails and Chief Minister, with the full background of the prisoners and recommendations of the Stale-level committee, alongwith the copy of the judgment etc. for order under Article 161 of the Constitution of India."
There, the Supreme Court held that even though such guidelines are prescribed, life convicts cannot have an automatic right of release unless Government consider their case separately. State of Kerala is also bound to make the guidelines for pardon under Article 161 of the Constitution of India taking imp account the enactment of Section 433-A of the Code by the Parliament and decision of the Supreme Court in Maru Ram's case (supra). The Supreme Court held that even though guidelines are prepared, there cannot be an automatic release under Article 161 of the Constitution of India after 14 years of imprisonment. At paragraph 4 it is observed as follows:
"4. As held by this Court in Gopal Vinayak Godse v. State of Maharashtra and in Maru Ram by earning remissions a life convict does not acquire a right to release, but release would follow only upon an order made under the Criminal Procedure Code by appropriate Government or on a clemency order in exercise of power under Article 72 or Article 161 of the Constitution. This Court observed in Maru Ram as under:
"Even if the remissions earned have totalled upto 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..... Nor is any vested right to remission cancelled by compulsory 14 year jail life once we realise the truism that a lift sentence is a sentence for a whole life....."
Thus, this Court in clear terms has laid down that by earning remission a life convict does not acquire aright to be released prematurely. But if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution."
In State of Haryana v. Nauratta Singh and Ors. ((2000) 3 SCC), the Supreme Court clearly held that 14 years mentioned in the new provision is the actual period of imprisonment undergone without including any period of remission. Paragraph 5 of the judgment says as follows:
"5. We may point out that Section 433-A1 of the Code was introduced in the Statute-book on 8.12.1978 by which the power of a State Government to release a person (who has been convicted and sentenced to life imprisonment of any offence punishable with death or imprisonment for life) has been curtailed by introducing the rider that such convicted person should have served at least 14 years of imprisonment. A Constitution Bench of this Court has held in Maru Rant v. Union of India that the period of 14 years envisaged in the new provision is the actual period of imprisonment undergone by the prisoner without including any period of remission."
Therefore, it is very clear that in view of Section 433-A, no life convict can be released before he has actually undergone imprisonment for a period of 14 years by way of the powers given to the Government under Sections 432 and 433-A of the Code. Of course, Section 433-A does not debar in giving parole in appropriate circumstances and parole period also will be counted as imprisonment. But, the power of the Government under Article 161 of the Constitution of India is unfettered by the above provision in the Code. But, Government should not simply overcome the principles in Section 433-A and while passing order under Article 161, of the Constitution, each case shall be considered objectively. Therefore, it is clear that Article 72/161 of the Constitution of India is an exceptional power to be exercised in the appropriate circumstances considering the facts of the case.
8. We may also look into the Kerala Prison Rules. Proviso to Rule 545(a) of the Kerala Prison Rules very clearly states as follows:
"Provided that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted into one of imprisonment for life under Section 433 of the Code of Criminal Procedure, 1973, such person should have served at least fourteen years of imprisonment"
As already stated, constitutional powers cannot be exercised on irrelevant or irrational consideration mala fide as held by the Supreme Court in Maru Ram's case (supra) and it should be governed by some principles or rules. If the provisions in the Code or the Prison Rules are taken as a guideline, no life convict sentenced under Section 302 of the Indian Penal Code can be released before he undergoes imprisonment for 14 years.
9. Now, we may also consider whether Government has applied its mind while exercising the constitutional powers. It appears that Government ordered the State Prison Review committee to consider the cases for remission if one had undergone eight years imprisonment including parole period. This is clearly against the principles underlying Section 433-A of the Code and also the guidelines prescribed by the Supreme Court in Maru Ram's case (supra) regarding exercise of the powers under Articles 72 and 161 of the Constitution of India.
10. The Director General of Public Prosecutions filed a statement showing the details in respect of 377 convicts and also submitted that Prison Committee was constituted to consider the matters and guidelines were prescribed by G.O. (Ms.) No. 164/96/Home dated 23.9.1996. The Committee was entrusted to recommend premature release of life convicts who have completed eight years of actual imprisonment and ten years with remission considering the nature of the offence committed by the prisoners, their conduct in the prison and in whose cases the Committee feels that premature release would help in their social reformation and rehabilitation. The guidelines further canvassed that the Committee shall not consider cases coming under the following categories:
1. Professional/hired murderers.
2. Persons who committed murder for religious, communal or caste reasons and those sentenced to life imprisonment for offence against the security of the State.
3. Persons who committed murder while involved in smuggling operations or murder of prison staff or prison visitors or Government functionaries on duty.
4. Those who have intentionally violated the conditions and leave.
5. Those who were involved in murder of women and children.
6. Persons convicted under the NDPS Act.
G.O. (Ms.) No. 354/98/Home dated 12.11.1998 was issued reconstituting the same Prison Review Committee with slightly modified conditions by adding another category of those who were involved in sexual assault in any form against women and children resulting in death and pre-meditated murder of women and children for material gains.
11. We have gone through the records. The State Prison Review Committee also did not apply their mind. Minutes of the State Prison Review Committee held on 6th and 7th March, 1998 at the Prison Headquarters, Thiruvananthapuram shows that by sitting from 2.00 p.m. to 5.30 p.m. on 6th March, 1998 and from 9.00 a.m. to 12.30 p.m. on 7th March, 1998, the Committee considered the case of 168 persons with the remarks some 'recommended' and some 'not recommended' and what was forwarded to the Government, as admitted in the affidavit filed on behalf of the State is only the minutes. The Government while passing the final order did not apply its mind at all and did not consider any of the matters and wherever recommended is written earlier releases were granted violating the principles stated by the Supreme Court in Mam Ram's case. Similar is the case with other releases also. Government while granting premature release to more than hundreds of convicts in a single order did not consider objectively any of the conditions. File also shows that with regard to some convicts whom the Prison Committee did not recommend also ordered to be released. Government also did not check whether the Prison Committee has followed the norms laid down by the Government. The list produced by the Government shows that 164 persons who were released cannot be considered for remission at all as many of them have not completed eight years of imprisonment as per the directions of the Government even including the paroles granted. How Government issued such an order ignoring the provisions in Section 433-A and Prison Rules is not explained. Certain persons in the above said list were on parole for more than two years. It shows that there is mockery of justice and people are released without any guidelines. It is also submitted by the Director General of Prosecutions that apart from the Committee's report 'recommending' or 'not recommending' the matter, there is no material before the Government while granting premature release of prisoners by exercising the constitutional powers under Article 161 of the Constitution of India. Minutes of the Committee only shows 'recommended' or 'not recommended'. Therefore, there were no materials at all before the Government to consider whether there was any necessity to grant premature release. When a constitutional function is exercised, it should be done with due care and only after objectively considering the materials and Authority should be satisfied that there is sufficient ground to pass such orders. Here, even though there were absolutely no materials available, release of life convicts were ordered within five or six years of their imprisonment. No Committee has got power to recommend the release of a prisoner before 14 years of imprisonment in view of the strict provisions under the Code as well as under the provisions in the Prison Rules.
12. Annexure A1 Government Order dated 23.9.1996 reads as follows:
"The Committee will recommend premature release of life convicts who have completed 8 years of actual imprisonment and 10 years with remission considering the nature of offence committed by the prisoners, their conduct in the prison and in whose cases the Committee feels that premature release would help in their social reformation and rehabilitation."
Even the guideline was not followed in recommending release of the convicts. Minutes of the State Prison Review Committee held on 28.8.1998 shows that the Prison Committee met from 10.00 a.m. to 1.30 P.M. on 28.8.1998 had considered the case of 59 persons. Within a short span of 3 1/2 hours, the Committee recommended release of most of the persons except 15 persons. (See: Annexure A8 to the report dated 2.4.2001 filed by the Public Prosecutor.) Their names were forwarded by letter dated 29.8.1998. The Committee reviewed the case of 58 persons and recommended premature release of 43 persons and minutes were forwarded to the Government by the Deputy Inspector General of Prisons and Principal Secretary to the State Prisons Review Committee. On the basis of the above, Ext. A9 release order was passed releasing 43 persons without any application of mind. Ext. A10 shows that on 19.3.1999, the State Prisons Review Committee considered the case of 208 persons from 10.00 a.m. to 6.30 p.m. There was no time to make any objective consideration of any of the matters, offences involved, nature of crime etc. On that day names of 173 prisoners were recommended to be released without application of mind. On 27th October, 1999, the State Prisons Review Committee considered the cases of 93 persons from 10.00 a.m. to 2. p.m. and recommended premature release of 53 persons. That list was forwarded to the Government and Government passed constitutional orders releasing them. This shows that there were no application of mind at all and, admittedly, Government did not consider anything. It is very difficult to understand how in the guise of exercising constitutional function large number of life convicts who were accused of crimes of murder under Section 302 were released without any application of mind at all. Documents produced by the Prosecution regarding releaseof 377 convicts indicates that 142 out of 377 convicts have not suffered actual eight and ten years imsprisonment even as per the Government guidelines. Government did not verify whether the Committee has recommended as per the guidelines and whether the Committee has recommended any release of convicts under the seven prohibited categories. While passing orders of release Government has no document except this report saying 'recommended' or 'nor recommended' and not saying anything else.
13. It is stated that Government has issued order of remission after considering the recommendation of the State Prison Review Committee and ordered premature release of prisoners who had undergone 8 years of imprisonment including parole period and remissions declared by the Government. In the affidavit dated 1.11.2001 filed by the Additional Director General of Police, it is stated that the Prison Review Committee called for reports from the Superintendent of Prisons concerned regarding the behaviour of the prisoners insider the prison. Paragraph 10 of the affidavit is as follows:
"The reports of the Superintendents of Prisons concerned regarding the behaviour of the prisoners inside the prison were only called for by the Prison Review Committee before recommendations were made. Besides this, no views of the Prison Department were called for when premature release of prisoners were recommended."
On going through the records, we have considered specific cases. Since most of the convicts were released under Article 161 of the Constitution of India and relatives of victims have not approached us, we are not going to reopen the cases further. But, we make it clear that in view of Ss. 433 and 433-A and in view of the Prison Rules mentioned, Government cannot act arbitrarily violating the law laid down by the Supreme Court in Maru Ram's case without objectively considering the facts of the case. Each of the cases of the prisoners should be considered while granting premature release under Article 161 of the Constitution. There should be application of mind. At present, it is stated that there are no guidelines. Until guidelines are made, Section 433-A of the Code alone can be the guideline coupled with good behaviour in the prison. The nature of the crime committed and all the circumstances relevant should be considered while ordering premature release under Article 161 of the Constitution of India. Therefore, no convicts who were sentenced for life for offences which are punishable with death penalty can be released by using the constitutional power unless they have undergone 14 years of imprisonment including the period of parole; but, excluding the period of bail except for very valid reasons. Even though no restrictions are placed under Article 161 of the Constitution,Government cannot act arbitrarily. Periodical remissions have no effect on a life convict unless their imprisonment is commuted under Section 433 subject to Section 433-A of the Code. There are no guidelines now and while exercising the powers under Article 161 of the Constitution, Government should consider the cases objectively.
14. The State Prison Review Committee, while recommending premature release, should abide by the provisions in the Code of Criminal Procedure as well as the Prison Rules and the Committee should consider every case before them after considering the criminal court judgment, nature of the crime committed, period of imprisonment the convict has undergone, their conduct, effect of premature release on the society and relatives of the victims etc. Government should provide time for enabling them to reach just and fair decision. Social requirement of Article 161 of the Constitution mandates that Section 433-A of the Code shall not be forgotten by the State especially when hired and political killings are on the increase in the State. We have already noted that Prison Committee considered the case of life convicts who have not even completed 8 years of imprisonment continuously and did not consider the matters required by the Government while recommending premature release. Government while passing order, no material other than report of the Prison Committee (not speaking) stating 'recommended' or 'not recommended' alone was considered by the Government. That should not happen in future. If possible, the Committee should get the views of the relatives of the victims also while recommending premature release.
15. Now, we may consider the allegations regarding indiscriminate grant of paroles. During the course of hearing, we were told that those who were prematurely released in an arbitrary fashion were also favoured recipients of parole grant. Some of the convicts who were having total imprisonment including parole were only six to seven years and during most of the tenure they were either on parole or under medical advice in hospital. So, the convicts who were accused of very serious and heinous crimes were let off with actual imprisonment of one or two years making the provisions of the Indian Penal Code, Code of Criminal Procedure and the Statutes a mockery. Executive and the State are also bound by Article 14 of the Constitution of India which is a sufficient safeguard against arbitrary and discriminate actions of the State and its officers. We were also told that there are many instances that after granting undue parole, some of them have committed very grievous crimes during the tenure of parole. We have asked the State to furnish list of persons who were granted more than 400 days of parole from 1.1.1996. A statement was filed by the Deputy Inspector General of Police on 25.1.2002. Convict No. 8538 P.C. Markose @ Thankachan who was taken into the prison on 16.11.1995 was granted 780 days parole after 1.1.1996. Convict No. 7640 Shaukath who was taken into prison on 18.4.1995 was given 747 days parole. Convict No. 2084 Soman S/o. Narayanan who was admitted to the prison on 20.2.1998 was granted parole for 405 days by 2001 and when he was released on 22.8.2001 on 30 days of ordinary leave, he overstayed and he did not report back so far. Convict No. 9610 Babu, S/o. Baby who was admitted to the prison on 29.7.1996 was granted parole for 515 days and he was released on the basis of constitutional powers on 17.7.2001 as per G.O. (Ms.) No. 2319/2001/Home(B) dated 11.7.2001. Including parole he had undergone only less than five years of imprisonment. Even according to the Government Orders, Prison Committee can consider only persons with eight years of imprisonment. Here, this prisoner was released prematurely even though he was convicted for imprisonment for life under Section 302, 324, 506(ii) read with Section 34 of the Indian Penal Code and inclusive of parole, he has undergone less than five years of imprisonment and he was granted 515 days of parole. After taking into account the parole days and sentence and earning of various holidays remissions, virtually, he has not suffered any imprisonment at all. We direct the Home Secretary to conduct an enquiry in the matter under what circumstances he was released and who were responsible for his release and whether there was political influence for his parole.
16. Now, we may come to the persons released on parole from Central Prison, Kannur. One Rafeeque, Convict No. 7707, was admitted to the jail on 29.6.1994 and he was granted 460 days of the parole and he got release on 1.6.1998 after suffering four years imprisonment in prison. The list furnished shows that one Saseendran, Convict No. 2806, was admitted to the prison on 5.8.1994. He was convicted for offences under Sections 302, 148, 324, 342 of the Indian Penal Code. He was released on 15.3.2001 and he was on parole for 755 days. Dinesan, Convict No. 2513, was admitted to the prison on 9.3.1994. He was sentenced for offences under Section 302, 323, 341 read with Section 34 of the Indian Penal Code. He was also given parole for 778 days and he was released on 15.3.2001. Convict No. 2900, Gangadharan was admitted to the prison on 19.9.1994. He was on parole for 772 days and he was released on 15.3.2001. Convict No. 2897, Bhaskaran was admitted to the prison on 19.9.1994 and he was on parole for 718 days. He was also released on 15.3.2001, Convict No. 8784 was admitted to the prison on 26.2.1990 and he was released on 26.1.1997. He suffered less than seven years imprisonment including parole of 664 days. There are large number of people who were given more than 1000 days parole. Convict No. 2899, Vijayan was admitted to the prison on 19.9.1994 and he was released on 24.1.2001. He was granted parole for 649 days. It shows that including parole he has suffered less than seven years imprisonment. We have received many letters from Jail also saying that paroles are not granted for genuine reasons for those convicts who were unable to making any political or financial influence over the authorities. Rules regarding grant of parole should be made available to the public and prisoners and it should be published. It cannot be used discriminately for the convenience of the certain officers. There are several Government orders on this aspect and officers used it according to their convenience. Therefore, the rules regarding grant of paroles, should be consolidated and published within three months from today and State is directed to produce a copy of the same before this Court. The present rules which are amended by several Government orders are not codified. It shall be codified and published.
17. Rule 452 B of the Kerala Prison Rules is as follows:
"452B. Eligibility for leave:- Well behaved prisoners sentenced to imprisonment for one year and above and who have served out actually half the sentence in the case of those sentenced to one and above upto and including five years, or three years whichever is less in the case of those sentenced to above five years are eligible for ordinary leave. Any well behaved convicted prisoner is eligible for emergency leave. A prisoner once released on leave of any kind will not be eligible for a subsequent release on leave until the completion of six months of actual imprisonment to be counted from the date of his last return from leave provided that this will not apply to the grant of leave to a prisoner in an emergency due to the death or serious illness of any never relative specified in Rule 455."
We are told that even this is not followed in all the cases. We came to know from the Newspapers that a person known as 'Killer Jaimy' has committed again heinous crimes while on parole. We have asked for the details and the State Prosecutor filed an affidavit on 4th March, 2002. It is stated that "C. No. 5853 Stephen, S/o. Mathew, Nedungoor Veedu, Cheranelloor, Vaduthala was convicted and sentenced to undergo R.I. for 10 years under Section 304 II IPC in S.C. No. 58/95 before the Vth Additional Sessions Judge, Ernakulam and committed to this prison as per Warrant dated 12.11.1998. This conviction and sentence was confirmed by the High Court of Kerala in Crl. Appeal Nos. 16 and 542/96." The statement of the Superintendent of Prisons, Kannur shows how arbitrarily and adamantly they are making statements. But, the question is even Rules 455, 456 and 457 of the Kerala Prison Rules were not looked into in granting parole to him. For granting leave, report of the Sub Inspector of Police or the Superintendent of Police and the specific report of the Jail, Superintendent is necessary. He has granted 10 days emergency leave from 17.2.2001, to 27.2.2001, 18 days leave from 3.5.2001 to 11.5.2001 and 20 days emergency leave from 20.8.2001 to 9.9.2001. Thereafter, emergency leave was extended from 20.10.2001 to 10.11.2001. But, he did not report and he was accused in other cases. According to him, his mother was ailing with cancer. The medical certificate issued is to the effect that she was suffering from eschemic disease. The medical certificate was issued by the Taluk Surgeon, Irinjalakuda whereas the certificate shows that she was a resident of Vaduthala. The certificate issued by Kumbalam Grama Panchayat President was also seen in the file. It is stated that his wife was the resident of Kumbalam Panchayat. It is true that under Section 452 BB Clause (iii), Government has power to grant extension of leave. It is the stand of the State Prosecutor as well as the Superintendent of Central prison that when emergency leave is granted, verification may not be enough. But, extension of leave was granted from the office of the Chief Minister. The doctor who gave the certificate also stated that a lady came there and he issued the certificate on humanitarian ground. If leave is granted for emergency reasons for which there is no need for verification, enquiry should have been conducted at least before extending the period. A person who was accused in more than four crimes and sentenced for ten years under Section 304 Part II of the Indian Penal Code was given repeated parole and finally when parole was extended, even according to the affidavit filed, no verification was done. Even though no specific guidelines are mentioned in Rule 452 BB Clause (iii) for extension of parole period by the Government, it cannot be done without any guidelines and application of mind. At least, while extending the parole, it should have been verified by the Government whether his application was correct, medical certificate was genuine and should have obtained a report from the police authorities. The opinion of the Court which convicted the person should also have been obtained before extending the parole indiscriminately. It is for the Chief Minister to enquire and consider whether any foul play was done in his office in extending the paroles indiscriminately especially in this case and take appropriate action against the officers responsible for the same. A report should be submitted by the State before this Court within three months from today. The State should also file a statement stating what are the criteria fixed for extending the parole. If no criteria is fixed, there will be arbitrary exercise of power by the officers.
With the above observations and directions, the Crl. M.C. is disposed of holding that Government is bound to consider the cases objectively taking into account the principles laid down by the Supreme Court in Maru Ram's case (supra) while passing orders under Article 161 of the Constitution. There shall also be transparency in action and application of mind while passing orders under Article 161 of the Constitution of India. There should not be any discrimination in the matter of granting parole and rules framed should be strictly followed while granting parole.