Karnataka High Court
Sri.Rama @ Ramegowda vs The Principal Secretary (Pcas) on 19 July, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 13593 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 13593 OF 2022 (GM-RES)
BETWEEN:
SRI RAMA @ RAMEGOWDA
S/O SHIVANNEGOWDA
AGED ABOUT 52 YEARS
RESIDENT OF SHARADANAHALLI VILLAGE
PANDAVAPURA TALUK
MANDYA DISTRICT 571 434.
...PETITIONER
(BY SRI G.M.SRINIVASAREDDY., ADVOCATE)
AND:
1. THE PRINCIPAL SECRETARY (PCAS)
CHAIRMAN
LIFE CONVICTS RELEASE COMMITTEE
DEPT. OF HOME
Digitally signed VIDHANA SOUDHA
by PADMAVATHI
BK BENGALURU - 560 001.
Location: HIGH
COURT OF
KARNATAKA 2. THE DIRECTOR GENERAL
PRISONS AND CORRECTIONAL SERVICES
SESHADRI ROAD
BENGALURU - 560 001.
3. THE ADDITIONAL DIRECTOR GENERAL
SOUTH DIVISION
PRISONS AND CORRECTIONAL SERVICES
SESHADRI ROAD
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WP No. 13593 of 2022
BENGALURU - 560 001.
4. THE CHIEF SUPERINTENDENT
CENTRAL PRISON
MYSURU - 570 007.
5. THE UNDER SECRETARY TO GOVT.,
DEPT. OF HOME (PRISONS AND CINEMA)
VIDHANA SOUDHA
BENGALURU 560 001.
...RESPONDENTS
(BY SRI K.S.ABHIJITH, HCGP)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA READ WITH
SECTION 482 OF CR.P.C., PRAYING TO QUASH THE
ENDORSEMENT BEARING NO. KEKAMY / J1 / 407 / 2021 - 22
DTD 28.01.2022 ISSUED BY R-4 VIDE ANNX-E; DIRECT THE
RESPONDENTS TO CONSIDER THE REQUEST OF THE
PETITIONER FOR HIS PREMATURE RELEASE CONSIDERING HIS
CONDUCT, BEHAVIOUR AND PERFORMANCE WHILE IN PRISION
VIDE ANNEXURE-'D'.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court seeking quashment of an endorsement dated 28.01.2022 which rejects the prayer of the petitioner of his premature release from the prison and seeks a consequential direction to consider his request on -3- WP No. 13593 of 2022 account of his conduct, behaviour and performance while in prison.
2. Heard Sri.G.M.Srinivasareddy, learned counsel for petitioner and Sri.K.S.Abhijith, learned High Court Government Pleader appearing for respondents.
3. Facts in brief are as follows:
The petitioner is convicted for the offence punishable under Section 302 of the IPC and Sections 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('SC/ST Act' for short) by the learned Additional Sessions and Special Judge, Mandya in Spl. Case No.63/2002 by order dated 22-01-2005 to undergo life imprisonment. Further appeals filed were dismissed by this Court and the same was affirmed by the Apex Court as well.
Therefore, since 22-01-2005 the petitioner has been in prison.
4. A representation was submitted by the petitioner on 28-01-2022 seeking his premature release owing to his behavior, conduct and performance in the prison. This is -4- WP No. 13593 of 2022 rejected by the respondent No.4 on 28-01-2022 which leads the petitioner to this Court in the subject petition.
5. The learned counsel appearing for the petitioner would contend that in terms of Section 433(b) of the Cr.P.C. the State Government is to consider the circumstances in which the convict can be released from prison prior to completion of the sentence and would place reliance upon several judgments of the Apex Court.
6. On the other hand, the learned High Court Government Pleader appearing for the respondents would contend that there is no warrant for such reconsideration, as it has already been considered and rejected in the light of the offence being under Section 302 of the IPC r/w Section 3(2)(v) of the SC/ST Act.
7. I have given my anxious consideration to the submissions made by the learned counsel for the parties and perused the material on record.
8. The afore-narrated facts are not in dispute. The petitioner is in custody for the last 17 years and 9 months is -5- WP No. 13593 of 2022 also not in dispute. Section 433(b) of the Cr.P.C. reads as follows:
"433. Power to commute sentence.-The appropriate Government may, without the consent of the person sentenced, commute-
(a) ... ... ...
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
Premature release of convicts depending on their behavior is also accepted preposition which is considered by the Co-ordinate Benches of this Court. The Co-ordinate Bench of this Court in W.P.201567/2021 disposed on 12.11.2021 has held as follows:
"2. This petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of Cr.P.C., praying this Court to issue a writ of mandamus directing the respondents to consider the case of premature release of life convict as per G.O.No.HD.119 PRA 2018 dated 21.04.2020 vide Annexure-C and release the petitioner, who is currently in Belagavi Prison as CTP No.3929.
3. The petitioner is the convict. The learned counsel for the petitioner brought to the notice of this Court that an application was given on 12.01.2021 and the same is acknowledged by the Jailer on 12.01.2021, but till date, they have not taken any decision on the application considering his request in terms of proceedings of the Government of Karnataka, which is produced as Annexure-C to the writ petition.-6- WP No. 13593 of 2022
4. The learned High Court Government Pleader appearing for the respondent-State has filed objections contending that the file of the said prisoner is not eligible to be placed before the Standing Advisory Board Committee for premature release as per the direction of the Government of Karnataka vide Annexure-C.
5. Heard the learned counsel appearing for the petitioner and the learned High Court Government Pleader appearing for the respondent-State and perused the contents of the petition and the statement of objections filed by the respondents. When an application was filed on 12.01.2021, the respondents ought to have taken a decision on the said application. Till date, admittedly, no decision is taken. No doubt, the statement of objections is filed before this Court, but when the application is filed, the respondents have to take a decision on the application.
Hence, the respondents are directed to consider the application, which is produced as Annexure-B to the petition within two months from the date of receipt of copy of this order.
6. With the above observation, the petition is disposed of."
Yet another Co-ordinate Bench in W.P.No.205715/2019 disposed on 06.11.2020 has held as follows:
"5. Learned counsel for the petitioner submitted that the petitioner who is arrayed as accused No.2 is in prison serving sentence since 16 years and he is entitled for remission as provided under Section 432 of Cr.P.C. He further submitted that accused Nos.1, 3 and 4 who are also convicted with life sentence are already released from the prison, by granting remission by the State Government. Annexure - K was issued by the Chief Superintendent of Central Prison, Kalaburagi to the petitioner informing that he is not entitled for remission in view of the letter dated 07.06.2017, issued by the -7- WP No. 13593 of 2022 under Secretary to the Government of Karnataka, Bengaluru, which is produced at Annexure -M and the letter dated 24.06.2019 issued by the Additional Director General of Police and Inspector General of Prisons, Bengaluru to the Chief Superintendent Central Prison, Kalaburagi which is produced at Annexure -L, informing that the petitioner is not entitled for remission.
6. Learned counsel for the petitioner submitted that the other accused who are similarly placed were considered for remission, but the prayer of the present petitioner was rejected only on the ground that he had once escaped from the custody during 2010, while he was being shifted from the central prison, Kalaburagi to the Central Prison at Ballary. It is stated that on 06.07.2010, the petitioner had escaped from the lawful custody, but he was apprehended on 09.07.2010. In this regard, FIR was registered and the petitioner was tried for the same and he was convicted and sentenced to undergo simple imprisonment for six months. Learned counsel further submitted that the petitioner has already underwent such period, but in spite of that, the respondents are not considering the prayer of the petitioner for remission.
7. It is submitted that the petitioner is entitled for remission when he is convicted to undergo life imprisonment. It is ridiculous to say that the petitioner even though entitled for remission as a life convict, his prayer is rejected only on the ground that he has committed the offence, for which he has served sentence for six months and for the said reason, he has to be in prison till the end of his life. He submits that it is not the intention of the legislature while enacting Section 432 of Cr.P.C.
8. Learned counsel drew my attention to Annexure
- C, proceedings of the Government of Karnataka, wherein specific guidelines are issued for extending the remission and premature release of life convicts which is dated 21.07.2016. Specific guidelines are issued for extending remission and it contains exceptions, where such remission should not be extended. Learned counsel also drew my attention to the recommendation issued by the State and Central Government, where the conduct of the petitioner in prison is certified as satisfactory. Therefore, it is his contention that detention of the petitioner in prison, without granting remission amounts to illegal detention and it is in violation of Articles 14 and 21 of the Constitution of India. The petitioner has already undergone 16 years of sentence and now he is aged 50 years. All other accused who were similarly placed are released from -8- WP No. 13593 of 2022 prison on remission. Therefore, he prays for allowing the petition by issuing necessary direction in the interest of justice. Learned counsel for the petitioner contended that there must be fair play in administration of all citizens placed alike or to be treated alike. Hence, he prays for allowing the petition.
9. Per contra, learned High Court Government Pleader opposing the petition submitted that the proposed guidelines as per Annexure - M is issued by the Secretary to the Government and in view of the same, the petitioner is not entitled for remission. He submits that the conduct of the petitioner in escaping from the lawful custody and serving sentence once again, disentitles him from seeking remission. Hence, he prays for dismissal of the petition.
10. Perused the materials on record in the light of the rival submissions. Admittedly, the petitioner was convicted in SC Nos.213/2004 and 49/2006 by the learned Principal Sessions Judge, Kalaburagi vide judgment of conviction and order of sentence dated 07.2.2006, and sentenced him to undergo life imprisonment. Similar conviction and sentence is also imposed on accused Nos.1, 3 and 4 who were already released from prison on remission. The guidelines issued by the Government of Karnataka for remission and premature release of life convicts is as per Annexure - C, which also contains exceptions to the guidelines. There are as many as 8 categories of prisoners to whom the said guidelines is not applicable. The respondents are relying on Annexure - M which is the letter addressed by the under Secretary to the Government of Karnataka to the Inspector General of Prisons, informing that a proposal is forwarded to the Government to exclude the prisoners who escaped from the custody should not be released on parole bail during preceding five years. As rightly contended by the learned counsel for the petitioner, Annexure - M discloses that it is only a proposal to include these two exceptions in the general guidelines issued which is as per Annexure - C. Admittedly, these two additional grounds are not yet been part of the guidelines approved and issued by the Government of Karnataka.
11. It is not in dispute that the present petitioner had escaped from custody while he was being shifted from Central Prison, Kalaburagi to Ballary. It is also not in dispute that the petitioner was convicted and sentenced to undergo six months imprisonment for the said offence. Admittedly, the petitioner is in prison, since 16 years and he is serving sentence and is aged about 50 years. When the co-accused have been released on remission, there is absolutely, no reason to refuse such benefit to the petitioner. Therefore, I -9- WP No. 13593 of 2022 am of the opinion that it is a fit case to allow the petition by directing the State Government to consider the request made by the petitioner sympathetically in the light of the direction for extending remission which is as per Annexure- C. With this observation."
9. The learned counsel for the petitioner has further placed reliance upon the judgment in the case of SATPAL VS.
STATE OF HARYANA1 wherein the Apex Court considering the case of identically placed convict who had been convicted for life and considering the purport of Section 433(b) of Cr.P.C. has held as follows:
"2. The petitioner was arrested on March 27, 1978 in a case registered under Section 302 Penal Code, 1860. He was convicted on August 16, 1978 and was sentenced to undergo imprisonment for life. According to the petitioner he has undergone about 13 years and six months' actual imprisonment and total period of imprisonment including remissions comes to more than 17 years. Admittedly his sentence has not been remitted fully nor commuted for imprisonment for a term not exceeding 14 years either under Section 55 Penal Code, 1860 or under Section 433(b) Code of Criminal Procedure, 1973 by the appropriate government. However, the petitioner's case is that he has undergone more than 14 years' sentence including remissions and since the said sentence was got executed in jail custody in the form of rigorous imprisonment, the government must be deemed to have commuted his sentence to 14 years either under Section 55 Penal Code, 1860 or Section 433(b) Code of Criminal Procedure, 1973 notwithstanding that no formal order in that behalf was made by the State Government and as such his continued detention in jail is illegal and he is entitled to be released forthwith. The argument has been advanced by Mr Balwant Singh Malik, the learned counsel for the petitioner on the following grounds:1
(1992)4 SCC 172
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(I) 'Imprisonment for life' as one of the punishments was substituted for 'transportation for life' in Section 53 of the Penal Code, 1860 by Amending Act 26 of 1955. No corresponding amendment has been made in the Code of Criminal Procedure, 1973 and there is no provision under the Code for the execution of the sentence of 'imprisonment for life'. In the absence of any provision for executing the sentence of 'imprisonment for life' in the Code of Civil Procedure the detention of life convicts in prison is unlawful and illegal and as such the government, in order to legalise detention, has necessarily to commute life sentence under Section 55 Penal Code, 1860 or Section 433(b) Code of Criminal Procedure, 1973 to one of rigorous imprisonment, which under the said provisions cannot legally exceed a term of 14 years. The petitioner having completed 14 years, he is entitled to be released.
(II) The sentence of 'life imprisonment' has not been defined either under the Penal Code, 1860 or under any other law. It is no where provided that a life convict has to undergo rigorous imprisonment. The Government by causing the life convicts to be dealt with as a prisoner sentenced to rigorous imprisonment must be deemed to have commuted sentence of imprisonment for life to a sentence of rigorous imprisonment under Section 55 Penal Code, 1860 or Section 433(b) Code of Criminal Procedure, 1973 for a term not exceeding 14 years.
3. The arguments advanced by the learned counsel stand concluded against him by the judgment of this Court in Naib Singh v. State of Punjab [(1983) 2 SCC 454 : 1983 SCC (Cri) 536] . In the said case Naib Singh challenged his continued detention in jail on the following grounds: (SCC Headnote) "(1) In regard to the sentence of life imprisonment the place where it has to be executed or carried out has to be appointed under Section 32 of the Prisoners Act, 1900, and since the sentence of 'imprisonment for life' like the sentence of 'transportation of (sic for) life' could be executed only by way of banishment or exile by the convict being 'removed to the place or places' required to be appointed by the State Government under Section 32 of the Prisoners Act, the executing authorities were obliged to 'execute' or 'carry out' the said sentence in jail indirectly by way of commuting it for imprisonment of either description for a term not exceeding 14 years under Section 55, IPC or Section 433(b), CrPC, 1973. In other words in the absence of any proper authority of law warranting the detention and execution of the sentence of such life convict in jail, his detention in such
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WP No. 13593 of 2022jail custody will have to be regarded as illegal and unlawful.
(2) Nature of sentence of life imprisonment is undefined and it is not necessarily rigorous; but because the petitioner was made to undergo his sentence of life imprisonment in jail and that too in rigorous manner for more than 14 years (inclusive of remissions) his sentence should be deemed to have been commuted by the State Government either under Section 55, IPC or under Section 433(b), CrPC, 1973 without a formal order in that behalf and he be released forthwith."
This Court rejected both the contentions and dismissed the petition. V.D. Tulzapurkar, J. speaking for the Court held as under: (SCC Headnote) "Under Section 32 of the Prisoners Act a sentence of transportation either for a term or for life could be and a sentence of life imprisonment can be made executable in local jails by constituting such jails as the 'places' within the meaning of Section 32 under orders of the State Governments. Apart from Section 32 of the Prisoners Act, Section 383 of CrPC, 1898 and Section 418 of CrPC, 1973 also contain the necessary legal authority and power under which a criminal court can by issuing a warrant direct the execution or carrying out of a sentence of life imprisonment in local jails. Ever since the sentence of transportation either for a term or for life became executable in jails within the country and the same position must obtain in regard to persons sentenced to imprisonment for life on and after January 1, 1956 in view of Section 53-A, IPC inserted by the Amending Act 26 of 1955.
The nature of punishment required to be suffered under a sentence of 'imprisonment for life' awardable on and after January 1, 1956 is rigorous imprisonment. Earlier the sentence of transportation either for life or for a term meant rigorous imprisonment in the sense of exaction of hard labour from the convict. Since under Section 53-A(2) transportation for a term has been equated to rigorous imprisonment for the same term, by necessary implication the sentence of 'transportation for life', now substituted by 'imprisonment for life' by Section 53-A(1), which is awardable for more serious, or more grave or more heinous crimes must mean rigorous imprisonment for life, that is to say it cannot be anything but rigorous.
It is not necessary that while passing the sentence of imprisonment for life a criminal court should keep in view the
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WP No. 13593 of 2022provisions of Section 60, IPC and choose one or the other form so as to clarify the exact nature of punishment intended to be inflicted on the accused. A distinction between 'imprisonment for life' and 'imprisonment for a term' has been maintained in the Penal Code in several of its provisions. Moreover, whenever an offender is punishable with 'imprisonment for life' he is not punishable with 'imprisonment which may be of either description' within the meaning of Section 60 and therefore, that section would be inapplicable."
4. It is not disputed by the learned counsel for the petitioner that the judgment in Naib Singh case [(1983) 2 SCC 454 : 1983 SCC (Cri) 536] is a complete answer to his arguments but he has vehemently argued that the said judgment needs reconsideration by a larger Bench. The learned counsel also made an attempt to challenge the correctness of the Privy Council judgment in Kishori Lal v. Emperor [AIR 1945 PC 64 : 46 Cri LJ 626 : 72 IA 1] and of this Court in Gopal Vinayak Godse v. State of Maharashtra [(1961) 3 SCR 440 :
AIR 1961 SC 600 : (1961) 1 Cri LJ 736] . Both these judgments have been relied upon by this Court in Naib Singh case.
5. We have carefully read the judgment of this Court in Naib Singh case and have given our thoughtful consideration to the points dealt with and decided therein. We respectfully agree with the reasoning and the conclusions reached by this Court in the said judgment. We see no justification whatsoever to refer the points decided in Naib Singh Case to a larger Bench. We, therefore, dismiss the writ petition"
In the light of the orders passed by the Apex Court and that of Co-ordinate Benches of this Court, the respondents-authorities will have to take into consideration the conduct, behavior and performance of the petitioner while in prison for the last 17 years and 9 months. The endorsement dated 28-01-2022 impugned herein relies on a circular dated 21-04-2020 which depicts certain offenders would not become entitled to premature release.
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10. In the teeth of the judgment rendered by the Apex Court and that of this Court, as also, the purport of Section 433(b) of the Cr.P.C., the matter requires to be reconsidered at the hands of the respondents. For the aforesaid reasons, the following:
ORDER
(i) Writ Petition is allowed in part.
(ii) The impugned endorsement bearing
No.KekaMy/J1/407/2021-22 dated 28-01-2022 issued by respondent No.4 is hereby quashed.
(iii) Respondent No.1 is directed to consider afresh the request made by the petitioner to extend remission and to release him from prison, bearing in mind the guidelines issued by the Government bearing No.HD 119 PRA 2018 dated 21-04-2020 and the order passed by this Court , within reasonable time, in any event within four months from the date of receipt of a copy of this order.
Sd/-
JUDGE bkp