Madhya Pradesh High Court
Bheekam Singh vs The State Of Madhya Pradesh on 21 June, 2021
Equivalent citations: AIRONLINE 2021 MP 730
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(1)
Heard through video conferencing.
Gwalior, dated : 21/06/2021
Shri Upendra Kumar Shrivas, learned counsel for the
petitioner.
Shri N.S. Tomar, learned Government Advocate for the
respondents-State.
This petition under Article 226 of the Constitution of India has
been filed seeking the following reliefs:-
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It is the case of the petitioner that the petitioner was convicted
by judgment and sentence dated 30/06/2003 for offence under
Sections 302, 307, 147, 148 and 149 of the IPC by Sessions Judge,
District Bhind in S.T.No38/85 and at present he is undergoing his jail
sentence. It is the case of the petitioner that he has suffered actual
sentence of more than 18 years without any remission and,
accordingly, he is eligible for release on probation. The petitioner has
filed an application for his release. The application was placed for
consideration before the Probation Board and the Probation Board
after considering the application, recommended for rejection of the
application of the petitioner and, accordingly, the State Government
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(2)
had passed order dated 24.11.2020 (Annexure P/1) and rejected the
application of the petitioner.
Challenging the order passed by the Competent Authority, it is
submitted by counsel for the petitioner that only reason assigned by
the competent authority that dispute took place between the deceased
and accused persons on the ground of sale of tractor therefore this
offence took place and no reasons have been assigned as to how the
guardian offered by the petitioner would not ensure that the
petitioner would not live peaceful life.
Per contra, it is submitted by the counsel for the State that by
circular dated 10.1.2012 it has been provided that if an accused has
been sentenced to life imprisonment for more than one count, then
he can be released only after undergoing actual jail sentence of
twenty years.
It is further submitted that so far as the release of an accused
on remission is concerned, it is subjective satisfaction of the
authority. If the authority has arrived at subjective satisfaction that
the premature release of the petitioner on remission would not be
conducive, then it cannot be said that the said subjective satisfaction
is bad in law.
Heard the learned counsel for the parties.
According to the prosecution case, the petitioner has been
convicted under Section 302, 307, 147, 148 and 149 of IPC and has
been awarded life sentence. Life imprisonment means remaining of
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(3)
the whole period of natural life of the convict. The Supreme Court in
the case of Vikas Yadav vs. State of U.P. & Ors. reported in (2016)
9 SCC 541 has held as under:
19. We shall first see how the Constitution Bench in V.
Sriharan has dealt with this aspect. The three-Judge
Bench in Union of India v. V. Sriharan framed certain
questions for consideration by the Constitution Bench.
The Constitution Bench in V. Sriharan reproduced the
said questions and thereafter formulated the core
questions for answering the same. After adverting to the
same, the Court observed that the issues raised were of
utmost critical concern for the whole country as the
decision on the questions would determine the procedure
for awarding sentence and the criminal justice system.
Thereafter, the Court referred to the authority in Swamy
Shraddananda (2) v. State of Karnataka and
framed the following questions: (V. Sriharan case,
SCC p. 49, para 2)
20.
"2.1. Maintainability of this writ petition under
Article 32 of the Constitution by the Union of
India.
2.2. (i) Whether imprisonment for life means for
the rest of one's life with any right to claim
remission?
(ii) Whether as held in Shraddananda case (2),
a special category of sentence; instead of death;
for a term exceeding 14 years and put that
category beyond application of remission can be
imposed?
2.3. Whether the appropriate Government is
permitted to grant remission under Sections
432/433 of the Criminal Procedure Code, 1973
after the parallel power was exercised under
Article 72 by the President and under Article 161
by the Governor of the State or by the Supreme
Court under its constitutional power(s) under
Article 32?
2.4. Whether the Union or the State has primacy
for the exercise of power under Section 432(7)
over the subject-matter enlisted in List III of the
Seventh Schedule for grant of remission?
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(4)
2.5. Whether there can be two appropriate
Governments under Section 432(7) of the Code?
2.6. Whether the power under Section 432(1) can
be exercised suo motu, if yes, whether the
procedure prescribed under Section 432(2) is
mandatory or not?
2.7. Whether the expression "consultation"
stipulated in Section 435(1) of the Code
implies "concurrence"?"
20. We have reproduced the entire paragraph from V.
Sriharan, for the sake of completeness and
understanding. The issues that have been raised by Mr
Lalit and Mr Naphade fundamentally relate to the issues
in para 2.2. The majority in the Constitution Bench,
after referring to the decisions in Maru Ram v. Union
of India, Gopal Vinayak Godse v. State of
Maharashtra and State of M.P. v.Ratan Singh,
opined that the legal position is quite settled 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. The Court
referred to the decision in Ashok Kumar v. Union of
India, wherein it was specifically ruled that the
decision in Bhagirath v. Delhi Admn. does not run
counter to Godse and Maru Ram.
21. The relevant paragraph from Ashok Kumar is
reproduced below: (SCC p. 516, para 15)
"15. It will thus be seen from the ratio laid down in
the aforesaid two cases that where a person has been
sentenced to imprisonment for life the remissions earned
by him during his internment in prison under the relevant
remission rules have a limited scope and must be confined
to the scope and ambit of the said rules and do not
acquire significance until the sentence is remitted under
Section 432, in which case the remission would be subject
to limitation of Section 433-A of the Code, or
constitutional power has been exercised under Articles
72/161 of the Constitution. In Bhagirath case the
question which the Constitution Bench was required to
consider was whether a person sentenced to imprisonment
for life can claim the benefit of Section 428 of the Code
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(5)
which, inter alia, provides for setting off the period of
detention undergone by the accused as an under-trial
against the sentence of imprisonment ultimately awarded
to him."
22. Referring to Section 57 IPC, the decision in Ashok
Kumar reiterated the legal position as under: (SCC p.
516, para 15)
"15. ... '9. ... The provision contained in Section
57 that imprisonment for life has to be reckoned as
equivalent to imprisonment for 20 years is for the purpose
of calculating fractions of terms of punishment. We
cannot press that provision into service for a wider
purpose.' (Bhagirath case, SCC p. 585, para 9)"
23. It has been held in V. Sriharan that the said
observations are consistent with the ratio laid down in
Godse and Maru Ram.
24. Thereafter, the majority in V. Sriharan quoted a
paragraph from Bhagirath case which pertained to set-
off under Section 428 CrPC which is to the following
effect: (V. Sriharan case, SCC P. 68, para 59)
"59. ... '11. ... The question of setting off the
period of detention undergone by an accused as an
undertrial prisoner against the sentence of life
imprisonment can arise only if an order is passed by the
appropriate authority under Section 432 or Section 433 of
the Code. In the absence of such order, passed generally
or specially, and apart from the provisions, if any, of the
relevant Jail Manual, imprisonment for life would mean,
according to the rule in Gopal Vinayak Godse,
imprisonment for the remainder of life.' (Bhagirath
case, SCC p. 586, para 11)"
25. Thereafter, the Court in V. Sriharan observed:
(SCC pp. 68 & 70, paras 59 & 61)
"59. ... We fail to see any departure from the ratio
of Godse case; on the contrary the aforequoted passage
clearly shows approval of that ratio and this becomes
further clear from the final order passed by the Court
while allowing the appeal/writ petition. The Court
directed that the period of detention undergone by the two
accused as undertrial prisoners would be set off against
the sentence of life imprisonment imposed upon them,
subject to the provisions contained in Section 433-A and,
"provided that orders have been passed by the
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
WP No. 8440/2021
( Bheekam Singh Vs The State of M.P. & others )
(6)
appropriate authority under Section 433 of the Criminal
Procedure Code". These directions make it clear beyond
any manner of doubt that just as in the case of remissions
so also in the case of set-off the period of detention as
undertrial would ensure to the benefit of the convict
provided the appropriate Government has chosen to pass
an order under Sections 432/433 of the Code. The ratio of
Bhagirath case, therefore, does not run counter to the
ratio of this Court in Godse or Maru Ram.
***
61. Having noted the abovereferred to two Constitution Bench decisions in Godse and Maru Ram which were consistently followed in the subsequent decisions in Sambha Ji Krishan Ji, Ratan Singh, Ranjit Singh, Ashok Kumar and Subash Chander. The first part of the first question can be conveniently answered to the effect that imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State and also as provided under Section 432 of the Criminal Procedure Code."
26. After so stating, the majority in V. Sriharan case addressed to the concept of remission. It opined that:
(SCC pp. 70-71, para 62) "62. As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code.
Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid down in Swamy Shraddananda (2)."
HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 8440/2021 ( Bheekam Singh Vs The State of M.P. & others ) (7) Thus where a convict has been sentenced for life imprisonment, then he has to remain entirety of his life subject to right to claim remission as provided under Articles 72 and 161 of the Constitution of India as well as Section 432 of the Cr.P.C. The ompetent Authority after considering the pros and cons of the premature release of the petitioner has decided not to extend the benefit of remission due to on going enmity between the families of the petitioner and the complainant party.
The counsel for the petitioner could not point out as to how subjective satisfaction arrived at by the Competent Authority is bad or perverse. The petitioner has not filed any document to show that the enmity between the family of the petitioner and the complainant party has come to an end. Under these circumstances, this Court is of the considered opinion that in absence of any material to show that subjective satisfaction arrived at by the Competent Authority is perverse or bad, no case is made out warranting interference.
However, it is observed that the rejection of application for grant of remission would not operate in perpetuity and the petitioner shall be free to pray for remission in future and if such a prayer is made, then the authority shall consider the said application in accordance with the situation and law prevailing at the relevant time.
With aforesaid observations, this petition is dismissed.
(S.A.Dharmadhikari) Judge Prachi* PRACHI MISHRA 2021.06.22 08:46:57 +05'30'