Patna High Court - Orders
Most. Sudama Devi vs The State Of Bihar & Ors on 17 July, 2013
Author: Aditya Kumar Trivedi
Bench: Shyam Kishore Sharma, Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ No.388 of 2013
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Most. Sudama Devi W/O Late Moti Lal Yadav And M/O Shiv Gope
Resident Of Mohalla Chatra Sangh Lane, Jakkanpur, P.S. Jakkanpur,
District Patna.
.... .... Petitioner
Versus
1. The State Of Bihar.
2. The Principal Secretary, Department Of Home, Bihar, Patna.
3. The Director General Of Police, Bihar, Patna.
4. The Inspector General, Prison, Bihar, Patna.
5. The Assistant Inspector General, Prison, Bihar, Patna.
6. The State Sentence Remission Board, Through I.G. Prison, Bihar, Patna.
7. The Jail Superintendent, Adarsh Central Jail, Beur, Patna.
.... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Rajiv Kumar Verma, Sr.Advocate.
Meeta Sinha & Mritunjay Kumar, Advocates
For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG.
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CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA
and
HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
(Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI)
4 17-07-2013Heard learned counsel for the petitioner as well as learned counsel for the State.
2. Perused the record.
3. Instant petition of writ by way of Habeas Corpus has been filed by the petitioner to direct the respondents to release the son of the petitioner, namely, Shiv Gope who was undergoing incarceration on account of being convicted vide judgment dated 23.07.1998 for an offence punishable under Section 302/34 of the IPC and sentenced to undergo R.I. for life as well as under Section 27(1) of the Arms Act and directed to undergo R.I. for three years 2 vide order dated 27.07.1998 passed in Sessions Trial No.814 of 1995 arising out of Jakkanpur P.S.Case No.82 of 1995 with a direction to run the sentence concurrently. It has further been submitted that petitioner had suffered actual period of incarceration for more than 14 years without remission and more than 20 years with remission. Therefore, in terms of policy of the State Government, so notified vide letter no.8/pn-03/81-550 dated 21.01.1984, the petitioner's son is found to be entitled for release under short sentencing policy which the respondents illegally, arbitrarily denied on wrong and flimsy ground which were not at all required to be considered in terms of 1984 policy, vide its resolution dated 19.09.2012. The only ground for refusal as resolved happens to be pendency of some cases along with adverse police report which was not at all warranted in terms of 1988 policy. To buttress the aforesaid contention, he relied upon decision reported in 2011(1) PLJR page 224.
4. At the other hand, the learned State counsel opposed the prayer and submitted that remission as provided under short term sentencing policy is not indefeasible right of the convict, therefore petitioner's son has no right for his release in terms thereof. Further, proceeding ahead on the issue, two fold argument has been advanced.
5. Taking into account the principle laid down by the Constitutional Bench of the Hon'ble Apex Court reported in AIR 3 1961 SC 600 Gopal Binayak Godsay vrs. The State of Maharashtra and other, it has been submitted that the petition of Habeas Corpus is not at all maintainable on this score because of the fact that the judiciary cannot command the executive function.
Grant of remission is out and out an executive function wherein the execution has got predominant role without having any scope for judicial interference, hence the petitioner cannot claim as a matter of right to have the privilege on this score.
6. It has further been argued that the right so identified is neither a Constitution right nor a legal right rather it happens to be a kind of state policy to grant remission to the convict on the basis of his conduct, behaviour with other allied consideration while undergoing imprisonment. The aforesaid eventuality has been notified by the State to facilitate the prisoners to behave properly while undergoing imprisonment so that after having their release they should not be menace for the society. Therefore, the conditions though not specifically noted down in the 1984 policy, still is not found to be beyond consideration of the State, accordingly, has to prevail.
7. Because of the fact that it does not happens to be a right of the convict rather it happens to be a kindness or mercy shown at the end of the State, therefore it is the state who will see and identify the real beneficiary. Unscrupulous prisoner certainly are to be excluded from availing such relaxation as sponsored by 4 the State.
8. It has also been submitted that though initially Government issued circular in the year 1984 which got amended in 2002 and now the convicts are being released in terms of amended policy keeping the previous policy under immunement, which should be accepted and confirmed on account of being an executive functions settling the issue of remission to be operative as per amended policy. Therefore, no scope was left by amended policy for consideration of question of remission under old policy.
Moreover, on the date of consideration, the new policy happens to be in operation.
9. In this regard, it has also been submitted that life convict, being a convict who has to remain inside jail till his last days and on account thereof, there appears to be no prospect of application of short sentencing policy. The aforesaid view has been taken up by the Hon'ble Apex Court in Gopal Binayak Godsey case (supra) which happens to be the landmark decision on this score and has been followed up till now by the Hon'ble Apex Court in series of cases whenever such controversial issue remained under adjudication.
10. Thereafter, coming to the facts of the case, it has been submitted that there is no dispute that petitioner's son Shiv Gope happens to be life convict that means to say he is to remain inside jail till he is alive as a result of which petitioner's son 5 happens to be not at all entitled for his release under short sentencing policy.
11. It has further been submitted that in likewise manner, this Court under the writ of Habeas Corpus could not be found legally competent to sterile the sentence and direct release of petitioner's son, namely, Shiv Gope as it goes out of its judicial purview. As such, instant petition happens to be non-maintainable in the eye of law.
12. It is manifest that constitution has shown presence of three independent wings responsible for identity of sovereign State. The Constitution has identified equal status of all the three institutions that means to say the judiciary, the executive, and the legislative but by prescribing check and balance theory, certain powers have exclusively been vested to be exercised by the sovereign authority even having finality on the score of judicial pronouncement. Article 72, Article 161 happens to be, related with the issue in hand whereunder President of India as well as the Governor of the State have been vested with exclusive powers to commute, pardon, remit the sentence. In likewise manner the executive machinery has also been vested with power to issue such administrative circulars under the guise of different enactments. The theme of short sentencing policy happens to be an out come of one of such sincere effort.
13. Now coming to the power of the executive, apart 6 from Section 432, 433 of the Code of Criminal Procedure 1974,(Section 401, 402 under old Code), Rule 527 of the Bihar Jail Manual virtually enlighten over the executive power wherein the State is found to be delegated with power to remit the sentence as per recommendation made by the board, so constituted. That means to say, short sentencing policy is an act of executive implemented under its executive function which is found to be legally acceptable in terms of Section 432, 433 of the Cr.P.C. but with certain limitation as prescribed under Section 433(A) of the Cr.P.C.(so introduced subsequently)
14. There has been conflict of opinion in the background of presence of classification of the sentence prescribed under Section 53 of the Indian Penal Code whereunder the imprisonment for life is found to be incorporated. In terms of Section 57 of the IPC the terms of imprisonment for life has been identified as twenty years even then the subject has been under consideration times without number over its calculation and effectiveness whereupon conflicting judicial pronouncement on this score has been found. In some of the decisions, it has expressly been held that imprisonment for life means till last days of the prisoner while other has identified in terms of 20 years. But, the scope of executive power governing the issue happens to be properly identified without any interruption even in case where life imprisonment has been extended as imprisonment for life unless 7 and until so directed.
15. In a celebrated case, K.M. Nanavati v. State of Bombay reported in AIR 1961 SC 112, the presence of Section 401 of the Cr.P.C. under old Cr.P.C. substituted by section 432 Cr.P.C was perceived and the question of power of executive over grant of remission was explained under para-12:-
―12. Let us now turn to the law on the subject as it obtains in India since the Code of Criminal Procedure was enacted in 1898. Section 401 of the Code gives power to the executive to suspend the execution of the sentence or remit the whole or any part of the punishment without conditions or upon any conditions which the person sentenced accepts. Section 402 gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature. In addition the Governor General had been delegated the power to exercise the prerogative power vesting in His Majesty. Sub-section (5) of S. 401 also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty, or the Governor-General when such right is delegated to him, to grant pardons, reprieves, respites or remissions of punishment. This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Arts. 72 and 161. Article 72 deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 gives similar power to the Governor of a State with respect to offences against any law relating to a matter to which the executive power of the State extends. Sections 401 and 402 of the Code have continued with necessary modifications to bring them into line with Arts. 72 and 161. It will be seen, however, that Arts. 72 and 161 not only deal with pardons and reprieves which were within the royal prerogative but have also included what is provided in Ss. 401 and 402 of the Code. Besides the general power, there is also 8 provision in Ss. 337 and 338 of the Code to tender pardon to an accomplice under certain conditions.‖
16. In Gopal Vinayak Godse Petitioner v. State of Maharashtra and Ors, reported in AIR 1961 SC 600 though explained that life imprisonment means imprisonment for life but the executive power has been properly identified and for better reference para-8 of the judgment is incorporated below:-
―8. Briefly stated the legal position is this: Before Act XXVI of 1955 a sentence of transportation for life could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. After the said Act, such a convict shall be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. Unless the said sentence is commuted or remitted by appropriate authority under the relevant provisions of the Indian Penal Code or the Code of Criminal Procedure, a prisoner sentenced to life imprisonment is bound in law to serve the life term in prison. The rules framed under the Prisons Act enable such a prisoner to earn remissions - ordinary, special and State - and the said remissions will be given credit towards his term of imprisonment. For the purpose of working our the remissions the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that particular purpose and not for any other purpose. As the sentence of transportation for life or its prison equivalent, the life imprisonment, is one of indefinite duration, the remissions so earned do not in practice help such a convict as it is not possible to predicate the time of his death. That is why the rules provide for a procedure to enable the appropriate Government to remit the sentence under S. 401 of the Code of Criminal Procedure on a consideration of the relevant factors, including the period of remissions earned. The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under S. 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner 9 has not yet acquired any right to release‖.
17. In Bhagirath v. Delhi Administration along with Rakesh Kaushik Versus Delhi Administrastion reported in (1985)2 SCC 580 while considering the ambit and scope of 428 of the Cr.P.C. allowing set-of the period undergone as under trial prisoner against the sentence of imprisonment for life, and answering in affirmative, the Constitutional Bench had also occasion to consider the previous Constitution Bench Gopal Binayak Godesasy case(supra) and explained under para 10, 11 and 15 thereof:-
―10. The modalities for working out the provision contained in Section 428 in cases of persons sentenced to imprisonment for life should not present any serious difficulty in practice. In the first place, by reason of Section 433-A of the Code of Criminal Procedure, where a sentence of imprisonment for life is imposed on 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 to one of imprisonment for life, such person cannot be released from prison unless he has served at least fourteen years of imprisonment. The only point to note is that while upholding the constitutional validity of Section 433-A, it was held by the Court in Maru Ram v. Union of India, that the section is prospective in operation, with the result that it cannot apply to cases which were decided by the trial court before December 18, 1978, being the date on which the section came into force.
11. The second aspect of the matter which has to be borne in mind is the one arising out of the judgment of this Court in Gopal Vinayak Godse. It was held by a Constitution Bench in that case that a prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence imposed upon him is commuted or remitted by the apppririate authority. It was further held that since such a sentence could not be equated with any 10 fixed term, the Rules framed under the Prison Act entitled such a person to earn remissions but that, such remissions were to be taken into account only towards the end of the term. Under Section 432 of the Code of Criminal Procedure, the appropriate Government has the power to remit the whole or any part of the punishment to which a person has been sentenced. Under section 433 of the Code, the appropriate Government has the power, inter alias, to commute the sentence of imprisonment for life to imprisonment for a term not exceeding fourteen years or to fine. 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.
15. We have also already answered the last of the reasons given in Kartar Singh that the question is not whether the beneficent provision contained in Section 428 should be extended to life convicts on equitable considerations. We enter a most respectful caveat. Equity sustains law and the twain must meet.
They cannot run in parallel streams. Equitable considerations must have an important place in the construction of beneficent provisions, particularly in the field of criminal law. To exclude such considerations is to denude law's benevolence of its true and lasting content. Lastly, the view expressed by the Joint Committee in its Report does not yield to the inference that the ―mischief sought to be remedied has no relevance where gravity of offence requires the imposition of imprisonment for life‖. As we have indicated earlier, graver the crime, longer the sentence and, longer the sentence, grater the need for set-offs and remissions. Punishments are no longer retributory. They are reformative.‖
18. The grant of remission has also been identified under Rule 527 of the Jail Manual apart from having its presence in code and in terms thereof, the rule is required to be formulated. Not 11 only this, Section 3 Sub-clause 5 of the prisoner's Act also prescribes application of remission system for the purpose of curtailment of sentence of prisoner in jail. That means to say the relevant Act/Rules happens to be ingest with the authority which could command the actual period of sentence which the prisoner was expected to spend under the custody while suffering the sentence.
19. After amendment of Cr.P.C. Section 401 got replaced by Section 432 of the Cr.P.C. which on its plain reading has given unfettered power to executive, so far, remission of sentence is concerned. Finding the unbridled power leading to disastrous result and the legislature in its wisdom found it expedient to have clutch of balance which was enforced by way of amendment introducing Section 433(A) and confined the scope of remission so far, the prisoner, undergoing life imprisonment directing that the same should be made applicable only in case having 14 years of actual sentence suffered along with 20 years with remission. That means to say, the consideration of remission is found ripen as and when convict satisfies the period of stipulated incarceration. The validity of Section 433A of the Code of Criminal Procedure was taken into consideration in Maru Ram v. Union of India and Ors. reported in 1981(1) SCC 107 which has properly been explained and followed in the case of State of Haryana v.
Mahendra Singh & Ors as reported in 2008 Crl.L.J 444 :-
―28. Validity or otherwise of Section 433-A of 12 the Code of Criminal Procedure came up for consideration before a Constitution Bench of this Court in Maru Ram v. Union of India and others [(1981) 1 SCC 107] wherein this Court inter alia held:
"54. The major submissions which deserve high consideration may now be taken up. They are three and important in their outcome in the prisoners' freedom from behind bars. The first turns on the "prospectivity" (loosely so called) or otherwise of Section 433-A. We have already held that Article 20(1) is not violated but the present point is whether, on a correct construction, those who have been convicted prior to the coming into force of Section 433-A are bound by the mandatory limit. If such convicts are out of its coils their cases must be considered under the remission schemes and "short- sentencing" laws. The second plea, revolves round "pardon jurisprudence", if we may coarsely call it that way, enshrined impregnably in Articles 72 and 161 and the effect of Section 433-A thereon. The power to remit is a constitutional power and any legislation must fail which seeks to curtail its scope and emasculate its mechanics. Thirdly, the exercise of this plenary power cannot be left to the fancy, frolic or frown of Government, State or Central, but must embrace reason, relevance and reformation, as all public power in a republic must. On this basis, we will have to scrutinise and screen the survival value of the various remission schemes and short-sentencing projects, not to test their supremacy over Section 433- A, but to train the wide and beneficent power to remit life sentences without the hardship of fourteen fettered years."
20. A circular/letter issued by the State of Harayana laying down criteria for premature release of the prisoner which was declared to be unconstitutional by the Punjab and Harayana High Court was considered by the Hon'ble Apex Court in State of Haryana v. Mahendra Singh & Ors (supra) wherein the said circular has been upheld and while deciding the issue, taken into consideration Article 20 as well as 21 of the Constitution of India 13 whereunder right of the prisoner has also been acknowledged in following way so detailed under Paras-32, 33, 34, 35 and 36 which are quoted below:-
―32. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy-decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy-decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. [State of Mysore and another v. H. Srinivasmurthy AIR 1976 SC 1104].
It is now well-settled that any guidelines which do not have any statutory flavour are merely advisory in nature. They cannot have the force of a statute. They are subservient to the legislative act and the statutory rules. [See Maharao Sahib Shri Bhim Singhji v. Union of India and others (1981) 1 SCC 166; J.R. Raghupathy and others v. State of A.P. and others (1988) 4 SCC 364 and Narendra Kumar Maheshwari v. Union of India, 1990 (Supp) SCC 440].
33. Whenever, thus, a policy-decision is made, persons must be treated equally in terms thereof. A' fortiori the policy-decision applicable in such cases would be which was prevailing at the time of his conviction. [See Commissioner of Municipal Corporation, Shimla v. Prem Lata Sood and Ors., 2007 (7) SCALE 737].
34. Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Reorganisation Act, no executive instruction would prevail over the Statutory Rules. The Rules having defined 'convicts' in terms whereof a 'life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by re-defining the term 'life convict'. It is one thing to say that the 'life convict' has no right to obtain remission but it is another thing to say that 14 they do not have any right to be considered at all.
Right to be considered emanates from the State's own executive instructions as also the Statutory Rules.
Strong reliance, however, has been placed by Mr. Misra on Mohd. Munna v. Union of India and others [(2005) 7 SCC 417]. In that case, a writ petition was filed under Article 32 of the Constitution of India by the appellant therein stating that as he had undergone 21 years of imprisonment he should be set at liberty forthwith having regard to the provisions of Clause 751(c) of the West Bengal Jail Code and Section 6 of the West Bengal Correctional Services Act, 1992. Claim for damages was also advanced. It was in that factual backdrop, this Court held:
2005"14. The Prisons Rules are made under the Prisons Act and the Prisons Act by itself does not confer any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the terms of the prisoners confined therein. Therefore, the West Bengal Correctional Services Act or the West Bengal Jail Code do not confer any special right on the petitioner herein."
In the said decision, unfortunately, again Maru Ram (supra) was not considered. In any event, the respondents had inter alia prayed for payment of damages.
35. Reliance was also placed by Mr. Misra on Epuru Sudhakar and another v. Govt. of A.P. and others [(2006) 8 SCC 161]. Therein, a Division Bench opined :
"65. Exercise of executive clemency is a matter of discretion and yet subject to certain standards. It is not a matter of privilege. It is a matter of performance of official duty. It is vested in the President or the Governor, as the case may be, not for the benefit of the convict only, but for the welfare of the people who may insist on the performance of the duty. This discretion, therefore, has to be exercised on public considerations alone. The President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. However, this power is an enumerated power in the Constitution and its limitations, if any, must be found in the Constitution itself. Therefore, the principle of exclusive cognizance would not apply when and if the decision impugned is in derogation of a constitutional provision. This is the basic working test to be applied 15 while granting pardons, reprieves, remissions and commutations."
There may not be any dispute with regard to the said proposition of law. But herein we are concerned with the right of the respondents to be considered for remission and not what should be the criteria when the matter is taken up for grant thereof.
36. We are, therefore, of the opinion that the High Court might not be correct in holding that the State has no power to make any classification at all. A classification validly made would not offend Article 14 of the Constitution of India. We, thus, although do not agree with all the reasonings of the High Court, sustain the judgment for the reasons stated hereinbefore.
It appears that during pendency of the Special Leave, Respondent Nos. 6 and 11 have already been directed to be released. No order, therefor, is required to be passed in their case. So far as the cases of other respondents are concerned, the same may be considered by the appropriate authority in the light of the observations made hereinabove.‖
21. In a case of State of Harayana Vrs. Bhup Singh & Ors. reported in 2009 Crl.L.J 1134 again the policy of premature release and the power of the court was subject to adjudication and the issue of dispute has been detailed under para-9 and explained under para-10 and 11.
―10. This Court therein did not have any occasion to consider the legality and/or validity of the policy decision of the State vis-a-vis the Prison Rules.
The right to ask for remission of sentence by a life convict would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed. If the executive instructions cannot be given a retrospective effect being not in consonance with the Prisoner's Rules framed under the Prison Act, we fail to understand as to how the said decision constitutes a binding precedent. A decision as is well known is an authority for what it decides and not what can logically be deduced therefrom.
1611. We, therefore, are of the opinion that keeping in view the decision of this Court in Mahender Singh (supra), the impugned judgment should be modified directing the appellant to consider the cases of the respondents. It is, therefore, directed that if the respondents have not already been released, the State shall consider their cases in terms of the judgment of this Court in Mahender Singh's case (supra) having regard to the policy decision as was applicable on the date on which they were convicted and not on the basis of the subsequent policy decision of the year 2002.
22. In Ramraj v. State of Chhatisgarh reported in 2010 Cr.L.J 2062, the issue of remission relating to the prisoner suffering from life imprisonment has been taken into consideration. After referring to and acknowledging all the earlier decisions including Gopal Vinayak Godse v. State of Maharashtra and Ors (Supra), the Hon'ble Apex Court concluded the issue in the manner as observed under paras15, 16 and 17:-
―15.What ultimately emerges from all the aforesaid decisions is that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the aforesaid Code. The decision in Swamy Sharddananda's case(supra) was taken in the special facts of that case where on account of a very brutal murder, the appellant had been sentenced to death by the Trial Court and the reference had been accepted by the High Court. However', while agreeing with the conviction and confirming the same, the Hon'ble Judges were of the view that however heinous the crime may have been, it did not come within the definition of ―rarest of rare cases‖ so as to merit a death sentence Nevertheless, having regard to the nature of the offence, Their Lordships were of the view that in the facts of the case the claim of the petitioner for premature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433-A, Cr.P.C., could not be acceded to, since the sentence of death had been stepped 17 down to that of life imprisonment, which was a lesser punishment.
16. On a conjoint reading of Sections 45 and 47 of the Indian Penal Code and Sections 432, 433 and 433A, Cr.P.C., it is now well established that a convict awarded life sentence has to undergo imprisonment for at least 14 years. While Sections 432 and 433 empowers the appropriate Government to suspend, remit or commute sentences, including a sentence of death and life imprisonment, a fetter has been imposed by the legislature on such powers by the introduction of Section 433A into the Code of Criminal Procedure by the Amending Act of 1978, which came into effect on and from 18th December, 1978. By virtue of the non-obstante clause used in Section 433A, the minimum term of imprisonment in respect of an offence where death is one of the punishment provided by laws or where a death sentence has been commuted to life sentence, has been prescribed as 14 years. In the various decisions rendered after the decision in Godse's case(supra), ―imprisonment for life‖ has been repeatedly held to mean imprisonment for the natural life term of a convict, though the actual period of imprisonment may stand reduced on account of remission earned. But in no case, with the possible exception of the powers vested in the President under Article 72 of the Constitution and the power vested in the Governor under Article 161 of the Constitution, even with remissions earned, can a sentence of imprisonment for life be reduced to below 14 years. It is thereafter left to the discretion of the concerned authorities to determine the actual length of imprisonment having regard to the gravity and intensity of the offence. Section 433A, Cr.P.C., which is relevant for the purpose of this case, reads as follows:-
―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 laws 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.‖
17. In the present case, the facts are such that the petitioner is fortunate to have escaped the death penalty.
We do not think that this is a fit case where the petitioner should be released on completion of 14 years imprisonment. The petitioner's case for premature release may be taken up by the concerned authorities after he 18 completes 20 years imprisonment, including remissions earned.‖
23. The application of Section 432 of the Code of Criminal Procedure has further been identified by the Hon'ble Apex Court in Mohamudul Hassan v. Union of India and Ors reported in 2011 Crl.L.J 165 holding that it is the privilege available before the State and the option lies before the State to exercise the same in appropriate case. The same has been identified in para-4 ―In our opinion, if the petitioner has a grievance against that judgment, he has a right of appeal to the High Court on the judicial side. He can also approach the concerned executive authority under Section 432, Cr.P.C. or to the Governor under Article 161 of the Constitution of India. This is a judicial Court and hence this Court has no power which the executive has under Section 432, Cr.P.C. or which the Governor has under Article 161 of the Constitution.‖
24. In Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka reported in 2008 Crl.L.J 3911 although the appeal was filed against the judgment of conviction and sentence extending capital punishment, the question of remission was also considered in ancillary. While upholding the finding of the guilt, the verdict of death was modified and altered to imprisonment for life with rigor that the appellant/convict shall not be delist for the rest of his life. While scrutinizing the evidence and analyzing the relevant law on the score of death penalty, the question of remission has also been taken into consideration and it has been detailed right from para-54. With regard to the policy 19 adopted and followed within the province of Bihar, the relevant para happens to be 62, 63, 64 and concluded under para 66.
―62. We also got some enquiries made on the issue of premature release of a life convict in the State of Bihar and came to learn that the process follows basically a similar pattern. In Bihar too the order for early release of a convicted prisoner is passed by the State Government in the Department of Law (Justice) on the basis of recommendations made by the Bihar State Sentence Remission Board. But there also the significant thing is the conversion of life imprisonment into imprisonment for a fixed term. In this regard the Government Letter No.A/ PM- 03/81-550, dated 21st January, 1984 was brought to our notice. The letter begins by stating the Government decision that for grant of remission to a life convict and for his release from prison, imprisonment for life will be deemed to be imprisonment for a term of 20 years. Then in paragraph 1 in the letter, in its original form it was stated that a life convict would not be entitled to the benefit of set-off under Section 428 of the Code of Criminal Procedure, 1973 for the period of incarceration as an under-trial. Paragraph 1 of the letter was, however, deleted by letter No. 3115, dated 23rd May, 1985 following the decision of this Court in Bhagirath vs. Delhi Administration (supra). Paragraph 2 of the letter as it originally stood stipulated that an accused who is given the punishment of imprisonment for life in a capital offence or whose death sentence is commuted to life imprisonment under Section 433 Of the Code as well as an accused who was awarded life sentence after 18 December, 1978 would be released from prison (a) only on completion of 14 years of actual imprisonment; and (b) when the total period of their imprisonment and the days of remission add up to 20 years. Paragraph 2 of this letter too was later deleted by Government letter No. 2939, dated 29th June, 2007 that provided that the decision to release a convict undergoing life imprisonment for a capital offence or whose death sentence is commuted to life imprisonment would be taken by the State Government or by the State Sentence Remission Board constituted by the Government.
63. It is thus to be seen that both in Karnataka and Bihar remission is granted to life convicts by 20 deemed conversion of life imprisonment into a fixed term of 20 years. The deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the face of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen years' term without any sound legal basis. One can safely assume that the position would be no better in the other States. This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of the rare cases.
64. Here, it may be noted that this has been the position for a very long time. As far back as in 1973, in Jagmohan Singh (supra) a Constitution Bench of this Court made the following observation :
"In the Context of our criminal law which punishes murderer, one cannot ignore the fact that life imprisonment works out in most cases to a dozen years of imprisonment and it may be seriously questioned whether that sole alternative will be an adequate substitute for the death penalty."
(Emphasis added) Five years after Jagmohan, Section 433-A was inserted in the Code of Criminal Procedure, 1973 imposing a restriction on the power of remission or commutation in certain cases. After the introduction of Section 433-A another Constitution Bench of this Court in Bachan Singh (supra) made the following observation : "It may be recalled that in Jagmohan this Court had observed that, in practice, life imprisonment amounts to 12 years in prison. Now, Section 433-A restricts the power of remission and commutation conferred on the appropriate Government under Sections 432 and 433, so that a person who is sentenced to imprisonment for life or whose death sentence is commuted to imprisonment for life must serve actual imprisonment for a minimum of 14 years."
Thus all that is changed by Section 433-A is 21 that before its insertion an imprisonment for life in most cases worked out to a dozen years of imprisonment and after its introduction it works out to fourteen years' imprisonment. But the observation in Jagmohan that this cannot be accepted as an adequate substitute for the death penalty still holds true.
66. The matter may be looked at from a slightly different angle. The issue of sentencing has two aspects. A sentence may be excessive and unduly harsh or it may be highly disproportionately inadequate. When an appellant comes to this court carrying a death sentence awarded by the trial court and confirmed by the High Court, this Court may find, as in the present appeal, that the case just falls short of the rarest of the rare category and may feel somewhat reluctant in endorsing the death sentence. But at the same time, having regard to the nature of the crime, the Court may strongly feel that a sentence of life imprisonment that subject to remission normally works out to a term of 14 years would be grossly disproportionate and inadequate. What then the Court should do? If the Court's option is limited only to two punishments, one a sentence of imprisonment, for all intents and purposes, of not more than 14 years and the other death, the court may feel tempted and find itself nudged into endorsing the death penalty. Such a course would indeed be disastrous. A far more just, reasonable and proper course would be to expand the options and to take over what, as a matter of fact, lawfully belongs to the court, i.e., the vast hiatus between 14 years' imprisonment and death. It needs to be emphasized that the Court would take recourse to the expanded option primarily because in the facts of the case, the sentence of 14 years' imprisonment would amount to no punishment at all.‖
25. However, this judgment has been considered in Reena Raj v. State of Chhattisgarh reported in 2010 Cr.L.J. 2062, and found it properly explained.
26. In State of U.P. v. Sanjay Kumar reported in (2012) 8 SCC 537 the scope of exercise of power at the ends of State in 22 granting remission has been taken into account and referring several earlier decisions, it has been concluded.
―21. Sentencing Policy is a way to guide judicial discretion in accomplishing particular sentencing. Generally, two criteria, that is, the seriousness of the crime and criminal history of the accused, are used to prescribe punishment. By introducing more uniformity and consistency into the sentencing process, the objective of the policy, is to make it easier to predict sentencing outcomes. Sentencing policies are needed to address concerns in relation to unfettered judicial discretion and lack of uniform and equal treatment of similarly situated convicts. The principle of proportionality, as followed in various judgments of this Court, prescribes that, the punishments should reflect the gravity of the offence and also the criminal background of the convict. Thus the graver the offence and the longer the criminal record, the more severe is the punishment to be awarded. By laying emphasis on individualized justice, and shaping the result of the crime to the circumstances of the offender and the needs of the victim and community, restorative justice eschews uniformity of sentencing. Undue sympathy to impose inadequate sentence would do more harm to the public system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.
22. Ultimately, it becomes the duty of the Courts to award proper sentence, having regard to the nature of the offence and the manner in which it was executed or committed etc. The Courts should impose a punishment befitting the crime so that the Courts are able to accurately reflect public abhorrence of the crime. It is the nature and gravity of the crime, and not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. Imposition of sentence without considering its effect on social order in many cases may be in reality, a futile exercise.
23. The survival of an orderly society demands the extinction of the life of a person who is proved to be a menace to social order and security. Thus, the Courts for the purpose of deciding just and appropriate sentence to be awarded for an offence, have to delicately balance the aggravating and mitigating factors and circumstances in which a crime has been committed, in a dispassionate manner. In the absence of any foolproof formula which may provide a basis for reasonable criteria to correctly assess various circumstances germane for the consideration of gravity of crime, discretionary judgment, in relation to the 23 facts of each case, is the only way in which such judgment may be equitably distinguished. The Court has primarily dissected the principles into two different compartments - one being, the ‗aggravating circumstances' and the other being, the ‗mitigating circumstance'. To balance the two is the primary duty of the Court. The principle of proportionality between the crime and the punishment is the principle of ‗just deserts' that serves as the foundation of every criminal sentence that is justifiable. In other words, the ‗doctrine of proportionality' has valuable application to the sentencing policy under Indian criminal jurisprudence. While determining the quantum of punishment the court always records sufficient reasons. (Vide: Sevaka Perumal etc. v. State of Tamil Nadu AIR 1991 SC 1463; Rajiv v. State of Rajasthan, AIR 1996 SC 787; State of Madhya Pradesh v. Ghanshyam Singh AIR 2003 SC 3191; Dhananjay Chatterjee alias Dhana v. State of W.B. AIR 2004 SC 3454; Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2012 SC 1377; and Brajendra Singh v. State of Madhya Pradesh, AIR 2012 SC 1552).
24. In view of the above, we reach the inescapable conclusion that the submissions advanced by learned counsel for the State are unfounded. The aforesaid judgments make it crystal clear that this Court has merely found out the via media, where considering the facts and circumstances of a particular case, by way of which it has come to the conclusion that it was not the ‗rarest of rare cases', warranting death penalty, but a sentence of 14 years or 20 years, as referred to in the guidelines laid down by the States would be totally inadequate. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years, rather it always meant as the whole natural life. This Court has always clarified that the punishment so awarded would be subject to any order passed in exercise of the clemency powers of the President of India or Governor of State, as the case may be. Pardons, reprieves and remissions are granted in exercise of prerogative power. There is no scope of judicial review of such orders except on very limited grounds for example non-application of mind while passing the order, non-consideration of relevant material; or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly and reasonably. Administration of justice cannot be perverted by executive or political pressure. Of course, adoption of uniform standards may not be possible while exercising the power of pardon. Thus, such orders do not interfere with the sovereign power of the State. More so, not being in contravention of any statutory or constitutional provision, the orders, even if treated to have been passed 24 under Article 142 of the Constitution do not deserve to be labelled as unwarranted. The aforesaid orders have been passed considering the gravity of the offences in those cases that the accused would not be entitled to be considered for premature release under the guidelines issued for that purpose i.e. under Jail Manual etc. or even under Section 433-A Cr.P.C.‖
27. In Sangeet Vrs. State of Harayana reported in (2013) 2 SCC 452 while adjudicating upon the death sentence, issue of remission of sentence has also been taken into consideration dealing with all the earlier decisions, it has been concluded in para-77 ―77.The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude:‖ 77.1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh(1980)2 SCC 684. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.
77.2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.
77.3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become Judge-centric sentencing rather than principled sentencing.
77.4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.
2577.5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432 CrPC in the case of a definite term of sentence. The power under this section is available only for granting ―additional‖ remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Mannual or other statutory rules. If the term of sentence is indefinite(as in life imprisonment), the power under Section 432 CrPC can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
77.7. Before actually exercising the power of remission under Section 432 CrPC the appropriate Government must obtain the opinion(with reasons) of the Presiding Judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner.
28. In Sahid Hussain @ Sahid Jam Vrs. State of Rajasthan vide its judgment dated 18th April,2013 passed in Cr.Appeal No.2083-2084 of 2008 while considering the judgment of conviction and sentence dealt with the question of remission right from para-29 of the aforesaid judgment and again dealing with the earlier decisions differed from the view with regard to the finding in Sangeet and Anr. Vrs. State of Harayana reported in 2013(2) SCC 452(Supra) and further relying upon the law propounded by the Constitutional Bench reported in 1980(2)SCC 884 Bachhan Singh Vrs. State of Punjab held that the power with regard to exercise in terms of Section 433A restricts the power of remission and communication conferred upon the appropriate government and concluded that reasonable 26 and proper course would be to expand the option between 14 years to imprisonment to life.
29. That means to say, the empowerment of the executive in terms of Section 432 of the C.P.C. has properly been recognized and the executive is found competent to act in accordance with Section 432 C.P.C. while taking into account the question of remission, side by side, it has also been concluded that asking for remission is not at all constitutional as well as legal right of the convict. It is also found set at rest, so far applicability of Section 432 C.P.C. towards the life convict is concerned. Hence, no obstacle is found in between while considering the plea of remission against life convict.
30. In State of Harayana and Ors. v. Jagdish reported in 2010(4) SCC 216 again the power of remission has been taken into consideration dealing with all the earlier decisions including three Judges Bench decision relating to Swamy Shraddananda @ Murali Manohar Mishra Case(Supra) and upholding the State policy to be applicable having enforced on the date of conviction of the prisoner, again the indefeasible right of the prisoner asking for remission has been considered. Relevant paras are quoted below:-
"28. Nevertheless, we may point out that the power of the sovereign to grant remission is within its exclusive domain and it is for this reason that our Constitution makers went on to incorporate the provisions of Article 72 and Article 161 of the Constitution of India. This responsibility was cast upon the executive through a constitutional mandate to ensure 27 that some public purpose may require fulfilment by grant of remission in appropriate cases. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of a liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433-A CrPC may have a different flavour in the statutory provisions, as short-sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself.
47. Considerations of public policy and humanitarian impulses--supports the concept of executive power of clemency. If clemency power is exercised and sentence is remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasises that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances e.g. suffering of a convict from an incurable disease at the last stage, may warrant his release even at a much early stage. Vana est illa potentia quae nun quam venit in actum means--vain is that power which never comes into play.
53. The right of the respondent prisoner, therefore, to get his case considered on a par with such of his inmates, who were entitled to the benefit of the said policy, cannot be taken away by the policy dated 13-8-2008. This is evident from a bare perusal of the recitals contained in the policies prior to the year 2008, which are referable to Article 161 of the Constitution. The High Court, therefore, in our opinion, was absolutely justified in arriving at the conclusion that the case of the respondent was to be considered on the strength of the policy that was existing on the date of his conviction.
54. The State authority is under an obligation to at 28 least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a ―lifer‖ for premature release, he should be given benefit thereof.
31. In Mohinder Singh v. State of Punjab reported in 2013 Crl.L.J 1559 while dealing with the criminal appeal against the judgment of conviction and sentence, again the theme of remission has been taken into account as is evident from para 21 & 22 of the said judgment.
―21. Life imprisonment cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather it always means the whole natural life. This Court has always clarified that the punishment of a fixed term of imprisonment so awarded would be subject to any order passed in exercise of clemency powers of the President of India or the Governor of the State, as the case may be. Pardons, reprieves and remissions under Article 72 or Article 161 of the Constitution of India are granted in exercise of prerogative power. As observed in State of Uttar Pradesh v. Sanjay Kumar,(2012) 8 SCC 537 : (2012 AIR SCW 5157), there is no scope of judicial review of such orders except on very limited grounds such as the non-application of mind while passing the order, non-consideration of relevant material, or if the order suffers from arbitrariness. The power to grant pardons and to commute sentences is coupled with a duty to exercise the same fairly, reasonably and in terms of restrictions imposed in several provisions of the Code.
―22. In order to check all arbitrary remissions, the Code itself provides several conditions. Sub- sections(2)to (5) of Sections 432 of the Code lay down basic procedure for making an application to 29 the appropriate Government for suspension or remission of sentence either by the convict or someone on his behalf. We are of the view that exercise of power by the appropriate Government under sub-section(1) of Section 432 of the Code cannot be suo motu for the simple reason that this is only an enabling provision and the same would be possible subject to fulfilment of certain conditions. Those conditions are mentioned either in the Jail Manual or in statutory rules. This Court in various decisions has held that the power of remission cannot be exercised arbitrarily. In other words, the decision to grant remission has to be well informed, reasonable and fair to all concerned. The statutory procedure laid down in Section 432 of the Code itself provides this check on the possible misuse of power by the appropriate Government. As rightly observed by this Court in Sangeet and Anr. v. State of Harayana, 2012(11) Scale 140:(AIR 2013 SC 447), there is misconception that a prisoner serving life sentence has an indefeasible right to release on completion of either 14 years or 20 years imprisonment. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Code which in turn is subject to the procedural checks mentioned in the said provision and further substantive check in Section 433-A of the Code.‖
32. In Harpal Singh v. State of Harayana Writ Petition (Crl) No.38 of 2011 wherein the appellant prayed for release on account of having his custody for more than 20 years being a life convict was adjudicated upon in the background of the remission rules so framed and the prayer of the appellant by way of Habeas Corpus was allowed.
Relevant paras are as follows:-
―The petitioner has produced Jail Custody Certificate dated 20.8.2011 issued by the Superintendent Central Jail, Ambala which indicates that he has undergo imprisonment of 20 years and 11 days. The learned counsel for the State 30 Government does not dispute the correctness of the certificate dated August 20,2011 produced by the petitioner. As the petitioner has undergone imprisonment of more than 20 years with remissions, this Court is of the opinion that the prayer made in the petition deserves to be granted.
Hence, the petition succeeds. The respondents are hereby directed to release the petitioner forthwith from the jail unless his presence in jail is needed with reference to any other case.‖
33. In Life Convict Bangal @ Khoka @ Prasanta Sen v. B.K.Srivastava & Ors. reported in (2013) 3 SCC 425 while dealing with a contempt matter on account of refusal of State Government to grant remission and dealing with the earlier decisions held under para-18 as follows:-
―18. It is clear that neither Section 57 IPC nor the Explanation to Section 61 of the W.B.Act lay down that a life imprisonment prisoner has to be released after completion of 20 years. 20 years mentioned in the Explanation to Section 61 of the W.B.Act is only for the purpose of ordering remission. If the State Government taking into consideration various aspects refused to grant remission of the whole period then the petitioner cannot take advantage of the above. Explanation and even Section 57 IPC and seek for premature release. Further, the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 57 IPC nor any rules or local Acts(in the case on hand, the W.B.Act) can stultify the effect of the sentence of life imprisonment given by the Court under IPC. To put it clear, once a person is sentenced to undergo life imprisonment unless imprisonment for life is commuted by the competent authority, he has to undergo imprisonment for the whole of his life. It is equally well settled that Section 57 IPC does not, in any way, limit the punishment of imprisonment for life to a term of 20 years.‖
34. Thus, after going through the relevant judicial pronouncements dealing with the issue as referred above, it is 31 apparent that the question of sentencing is quite different from the question of remission and both are discerptible, having independent sphere and should not be found over lapping to each other. The question of sentencing happens to be within the exclusive domain of the judicial forum while the question of remission float under executive power guided by the policy decision properly recognized under Code. Policy decision happens to be the executive function of the government with regard to about the particular issue in hand which may change, vary from time to time at per wisdom of the executive.
35. So far applicability of policy is concerned, it has already been conclusively decided by the Hon'ble Apex Court in the case of State of Haryana v. Bhup Singh as well as State of Haryana v. Jagdish (supra), the policy which was prevalent on the date of passing of judgment will be applicable whenever question of remission of that accused arose.
36. Hence, the objection so raised by the learned State counsel that petitioner as a life convict is not at all found to be entitled for remission is not at all found to be based on sound conclusion in light of the aforesaid reasoning.
37. Now coming to the facts of the case, it is apparent that petitioner was convicted and sentenced vide judgment dated 23.05.1998 as well as order dated 27.05.1998 passed in Sessions Trial No.814 of 1995. Then, in that event, the policy which was 32 prevalent on the aforesaid date was to be followed in its full term and spirit. Deviation therefrom would not be allowed to prevail. It is manifest that the 1984 policy was enforceable on the date of judgment of conviction and the sentence therefore the case of the petitioner, as it appears, should have been considered and disposed of in terms thereof, which in the facts and circumstances of the case appears to be ignored. Hence, the consideration of prayer of petitioner's son and rejecting thereof is found to be against the settled mandate of law. Consequent thereupon, the same is set aside and the matter is remitted back to the respondents to consider the same afresh in accordance thereto. However, it is made clear that the convict has got neither constitutional right nor legal right to avail the same.
(Aditya Kumar Trivedi, J) Shyam Kishore Sharma, J I agree (Shyam Kishore Sharma, J) Patna High Court 17th of July, 2013 Brajesh Kumar/AFR