Bombay High Court
Santosh @ Sonu Balram Jadhav vs State Of Maharashtra on 28 November, 2013
Bench: S.C. Dharmadhikari, G.S. Patel
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criwp571-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.571 OF 2013
Santosh @ Sonu Balram Jadhav .. Petitioner
Versus
State of Maharashtra, .. Respondent
Mr.D.G. Khamkar appointed Advocate for petitioner
Mrs.A.S.Pai, APP for State.
CORAM : S.C.DHARMADHIKARI &
G.S.PATEL, JJ
RESERVED ON : 20th October 2013
PRONOUNCED ON : 28th November, 2013.
ORAL ORDER (PER DHARMADHIKARI, J):
1] Rule. Respondents waive service. Since this matter comes from prison, the Registry was requested to appoint an Advocate and Mr.Daulat Khamkar, Advocate was appointed for the petitioner - prisoner.
::: Downloaded on - 23/12/2013 20:30:17 :::{2} criwp571-13.doc 2] The learned APP appears on behalf of respondent state.
3] The petitioner invokes jurisdiction of this Court under Article 226 of the Constitution of India to obtain premature release on the footing that he has completed 14 years of imprisonment. In terms of the order dated 30 th October 2012, the petitioner cannot be released until he completes 26 years of imprisonment. The petitioner challenges this order by urging that at best, he can be kept in custody for 22 years, including remission but the impugned order determines the period of 26 years and that is contrary to law.
The petitioner has given instance and illustration of one convict No.7092 Prakash Vitthal Kharat. According to the petitioner - prisoner, even this prisoner was meted out with similar treatment but later on when he approached this Court by filing a criminal writ petition, the State released him on completion of 22 years imprisonment, inclusive of ::: Downloaded on - 23/12/2013 20:30:17 ::: {3} criwp571-13.doc remission. The petitioner prisoner places his case on par with the said Prakash Kharat.
4] The few facts in relation to the petitioner's conviction and sentence are that the petitioner was arrested on 6 th September 1998 by Mulund Police Station in connection with a crime registered and punishable under section 302 of Indian Penal Code (IPC). The petitioner was put up for trial in Sessions Case No.1323 of 1998. On conclusion of his trial by a judgement of conviction and sentence rendered on 21st July 2000, the petitioner was held guilty of the offences punishable under section 302 of IPC and sentenced to suffer life imprisonment. The petitioner's case was put up for premature release but the Government of Maharashtra passed an order on 30th October 2012 holding that in the light of the Government policy and particularly contained in the Government Resolution dated 15th March 2010, a copy of which is at page 54 of the paperbook, the petitioner's ::: Downloaded on - 23/12/2013 20:30:17 ::: {4} criwp571-13.doc case falls under category (2)(c) and, therefore, he cannot be released unless he completes 26 years' actual imprisonment including remission.
5] The reason assigned by the State is that this was a crime committed with exceptional violence and/or with brutality and against a woman. The petitioner was put up for trial because the charge against him was that on 5 th September 1998 at about 10.15 p.m. He caused death of the deceased Rekha Rajiv Rathod by pouring kerosene on her and then lit her with match stick. This was with intent to cause her burn injuries and which, the petitioner was aware, would cause her death.
6] Therefore, the petitioner came to be convicted and sentenced as such and the State has categorised the crime as one being brutal and committed against a helpless woman. Therefore, the request for premature release has ::: Downloaded on - 23/12/2013 20:30:17 ::: {5} criwp571-13.doc been considered and disposed of in the above manner.
Mr.Khamkar, learned Advocate for petitioner submitted before us that the categorisation of the case of the petitioner is patently arbitrary. This is not a case where the crime was committed in a premeditated and brutal manner as alleged.
The crime was committed in the heat of the moment. The petitioner went to the house of deceased Rekha and demanded food.
igThe petitioner was hungry and when Rekha refused to supply him food that he got agitated and annoyed and in a fit of anger committed the said crime.
Therefore, this was not a case of the crime being committed with exceptional violence and/or with brutality. Mr.Khamkar has taken us through all the guidelines which have been issued for premature release and has submitted that the categorisation is bad in law and arbitrary so also discriminatory. He has cited the illustration of the convict Prakash Kharat and submitted that the petitioner's case is on par with the said convict.
::: Downloaded on - 23/12/2013 20:30:17 :::{6} criwp571-13.doc 7] In support of his submissions, Mr.Khamkar places reliance upon the judgement of the Supreme Court in the case of State of Haryana Vs. Jagdish reported in A.I.R. 2010 S.C. 1690.
8] On the other hand, Mrs.Pai, learned APP appearing for the State has supported the impugned order. She has submitted that remission is not a matter of right and, therefore, there is no substance in the contentions of Mr.Khamkar. A convict like the petitioner who commits a heinous crime of murder can hardly be heard to say that a sympathetic view should be taken as he has served a sentence of imprisonment by spending nearly 15 years in custody. Therefore, the petition be dismissed.
9] With the assistance of the learned Advocates appearing for the parties, we have perused the petition and ::: Downloaded on - 23/12/2013 20:30:17 ::: {7} criwp571-13.doc all annexures thereto. We have also perused the copy of the judgement in Sessions Case No.1323 of 1998 arising out of C.R.No.347 of 1998 registered by the State through Mulund Police station against the petitioner. The judgement was delivered on 21st July 2000.
10] The learned Judge while recording the conviction and sentence has held that the deceased Rekha was put on fire by the petitioner. The Court has observed that from the deposition of all witnesses examined on behalf of the State, it is apparent that the deceased was done away with in a brutal manner. She was burnt alive by pouring kerocene on her. This was with an intention to teach her a lesson. The petitioner accused had neither tried to rescue her nor any attempt was made by him to extinguish the fire. All these denotes the manner in which the crime was committed.
11] Now coming to the guidelines for premature release, ::: Downloaded on - 23/12/2013 20:30:18 ::: {8} criwp571-13.doc what has been stated in the latest Resolution placed on record namely Government of Maharashtra Home Department, Government Resolution dated 15th march 2010 is as under:-
"Government had revised guidelines for premature release of prisoners undergoing life sentences from time to time. These guidelines are applicable to the prisoners committing crimes mentioned in the Indian Penal Code. However, said guidelines does not cover grave offences such as life imprisonment under stringent laws like TADA, MCOCA, POTA etc. Therefore, in exercise of power vested in it under section 432 of the Criminal Procedure Code, 1973, the State Government has decided to modify the existing guidelines of even number dated 11th April 2008 and dated 13th June 2008 and pleased to sanction revised guidelines. These revised guidelines are enclosed herewith as a Annexure I and Annexure II. These guidelines will be applicable to the prisoners who are convicted on or after the date of issue of this Government Resolution.
"2. In cases of life convicts covered under these guidelines, the process of review shall commence after completion of 12 years of actual imprisonment for review under "14 Year Rule" to which provision of section 433-A of the Code of Criminal Procedure are applicable and after completion of eight years to which provisions of section 433-A of the Code is not applicable. Prisoners convicted for offences against State or ::: Downloaded on - 23/12/2013 20:30:18 ::: {9} criwp571-13.doc in terrorist activities or organised crime or similar nature activities will not be selected for open prison.
"3. If there is a difference of opinion between the Prison Advisory Board and Inspector General of Prisons, Maharashtra State, Pune, Inspector General of Prisons shall record the specific reasons in support of his recommendations.
"4. The State Government reserves its rights to remit any sentence to to release the prisoners only after undergoing imprisonment in excess for which there is no specific guidelines as mentioned in the annexures enclosed with this Government Resolution."
12] Annexure I to this G.R. is the categorisation of crime, category number, sub-category and the period of imprisonment to be undergone including remission, subject to minimum 14 years of actual imprisonment, including set off period.
13] In this behalf a useful reference can be made to section 432 of the Code of Criminal Procedure, 1973 (Cr.P.C.). That confers powers to suspend or remit the ::: Downloaded on - 23/12/2013 20:30:18 ::: {10} criwp571-13.doc sentences and reads as under:-
"432. Power to suspend or remit sentences:- (1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may, cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.::: Downloaded on - 23/12/2013 20:30:18 :::
{11} criwp571-13.doc (5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and -
(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law, which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in Section 433, the expression "appropriate Government" means,--
(a) in cases where the sentence is for an offence against, or the order referred to in subsection (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;::: Downloaded on - 23/12/2013 20:30:18 :::
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(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
14] Then comes section 433 which confers power on the appropriate Government without consent of the person concerned to commute the sentence and that section and the further section 433A read as under:-
"
433. Power to commute sentence:- The appropriate Government may, without the consent of the person sentenced, commute -
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, or fine."
"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 ::: Downloaded on - 23/12/2013 20:30:18 ::: {13} criwp571-13.doc punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment."
15] In Criminal Writ Petition No.4187 of 2012 (Subhash Bhosale Vs. State of Maharashtra) decided on 4 th September 2013, in the context of a distinction between parole and furlough, the Division Bench of this Court to which one of us (S.C.Dharmadhikari, J.) was a party had an occasion to refer to the decision of the Supreme Court in the case of State of Haryana Vs. Jaisingh, reported in A.I.R. 2003 S.C. 1696. In paras 31 and 32 of this Court's judgement, this is what is observed:-
31] In that regard, a decision of the Supreme Court in the case of State of Haryana Vs. Jaising reported in A.I.R. 2003 S.C. 1696 is relevant. In that case, what the Supreme Court was considering was a case of remission. However, a ::: Downloaded on - 23/12/2013 20:30:18 ::: {14} criwp571-13.doc notification giving the benefit of remission made certain prisoners and convicts ineligible for the same. The classification was that the convicts who have been convicted for rape, dowry death and abduction and murder of children below 14 years unnaturally, offences of robbery, prisoners sentenced under NDPS Act, TADA and Foreigners Act and those detained under detention laws and found guilty of violation of Jail Manual shall not be given such remission. That provision came to be challenged before the Punjab and Haryana High Court. The High Court held that it is not open to the State Government while granting general remission to carve out special exception to cases which according to it, could be termed as heinous offences and deny benefit of remission to such class of convicts.
Therefore, the petition of Jai Singh was allowed.::: Downloaded on - 23/12/2013 20:30:18 :::
{15} criwp571-13.doc 32] The State of Punjab and Haryana appealed to the Supreme Court and the Supreme Court held as under:-
"8. The answer to the said question, in our opinion, should be in the negative. This Court in a catena of decisions has recognised that the gravity of an offence and the quantum of sentence prescribed in the Code could be a reasonable basis for a classification. This Court in State of Haryana & Ors. v. Mohinder Singh etc. (2000 (3) SCC 394) held : "Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise power of remission in that case."
(emphasis supplied) "9. In Maru Ram etc. etc. v. Union of India & Anr. (1981 (1) SCR 1196), this Court while repelling an argument of discrimination in regard to the sentence to be imposed in murder cases, held :
"The logic is lucid although its wisdom, in the light ::: Downloaded on - 23/12/2013 20:30:18 ::: {16} criwp571-13.doc of penological thought, is open to doubt. We have earlier stated the parameters of judicial restraint and, as at present advised, we are not satisfied that the classification is based on an irrational differentia unrelated to the punitive end of social defence. Suffice it to say here, the classification, if due respect to Parliament's choice is given, cannot be castigated as a capricious enough to attract the lethal consequence of Art. 13 read with Art. 14."
"10. In Sunil Batra v. Delhi Administration & Ors. (AIR 1978 SC 1675), this Court upheld the validity of a classification based on the gravity of the offence."
"11. From the above observations of this Court, it is clear that the gravity of the offence can form the basis of a valid classification if the object of such classification is to grant or not to grant remission."
"12. Having come to the conclusion that the gravity of the offence can be the basis for a valid classification, we will now consider whether the offences excluded from the impugned notification can be said to be such offences which have been wrongly excluded from the benefit of remission. We notice that the convicts who have been excluded from the benefit of said notification, are those convicts who have been sentenced for offences of rape, dowry death, abduction and murder of a child below 14 years, offences ::: Downloaded on - 23/12/2013 20:30:18 ::: {17} criwp571-13.doc coming under Sections 121 to 130 IPC, dacoity, robbery, etc. These are the offences for which the Code has prescribed the sentence of rigorous imprisonment extending up to life, therefore, from the very nature of the sentence which the offence entails, the said offences can be categorised as grave offences, therefore, they can be aptly classified as grave offences, which classification will be a valid classification for the purpose of deciding whether the persons who have committed such offences should be granted remission or not. On this basis, we are of the opinion that the State Government having decided not to grant remission to these offenders/offences which carry life imprisonment, should not be granted remission, is justified in doing so."
"13. Similarly, the offences under the NDPS and the TADA Acts, apart from carrying heavy penal sentences are offences which could be termed as offences having serious adverse effect on the society, cognisance of which is required to be taken by the State while granting remission, therefore, they can also be classified as offences which should be kept out of the purview of remission.
"14. The offences enumerated in Sections 121 to 130 IPC are the offences against the State, though some of them may not be punishable with life imprisonment, still taking into consideration the nature of offence which undermines the security of the State, in our opinion, can be classified for exclusion from the ::: Downloaded on - 23/12/2013 20:30:18 ::: {18} criwp571-13.doc benefit of remission."
"15. Again the offences under the Foreigners Act, Passport Act, Official Secrets Act also being offences against the State, they can be classified as offences which will not be entitled to the benefit of remission. The persons who have indulged in the breach of mandate of the Jail Manual can also be classified as the offenders who should not be granted the incentive of remission because of their conduct during the period of their conviction. Therefore, we are of the opinion that the offences excluded from the benefit of remission under the impugned notification have been properly classified which classification, in our opinion, is a valid classification for the purpose of making them ineligible for the grant of remission."
16] In two later decisions of the Supreme Court reported in A.I.R. 2013 S.C. 447 namely Sangeet and Anr. Vs. State of Haryana and Budhsingh Vs. State of Haryana, A.I.R. 2013 S.C. 2386, the Honourable Supreme Court summarised the legal position once again. In Sangeet (supra) the Supreme Court held thus:-
"74. Under the circumstances, it appears to ::: Downloaded on - 23/12/2013 20:30:18 ::: {19} criwp571-13.doc us there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years or twenty years imprisonment.
The prisoner has no such right. 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 Cr.P.C. which in turn is subject to the procedural checks in that Section and the substantive check in Section 433-A of the Cr.P.C.
75. In a sense, therefore, the application of Section 432 of the Cr.P.C. to a convict is limited. A convict serving a definite term of imprisonment is entitled to earn a period of remission or even be awarded a period of remission under a statutory rule framed by the appropriate Government or under the Jail Manual. This period is then offset against the term of punishment given to him. In such an event, if he has undergone the requisite period of incarceration, his release is automatic and Section 432 of the Cr.P.C. will not even come into play. This Section will come into play only if the convict is to be given an "additional" period of remission for his release, that is, a period in addition to what he has earned or has been awarded under the Jail Manual or the statutory rules.
76. In the case of a convict undergoing life imprisonment, he will be in custody for an indeterminate period. Therefore, remissions earned by or awarded to such a life convict are only notional. In his case, to reduce the period ::: Downloaded on - 23/12/2013 20:30:18 ::: {20} criwp571-13.doc of incarceration, a specific order under Section 432 of the Cr.P.C. will have to be passed by the appropriate Government. However, the reduced period cannot be less than 14 years as per Section 433-A of the Cr.P.C.
77. Therefore, Section 432 of the Cr.P.C. has application only in two situations: (1) Where a convict is to be given "additional" remission or remission for a period over and above the period that he is entitled to or he is awarded under a statutory rule framed by the appropriate Government or under the Jail Manual. (2) Where a convict is sentenced to life imprisonment, which is for an indefinite period, subject to procedural and substantive checks.
78. What Section 302 of the IPC provides for is only two punishments - life imprisonment and death penalty. In several cases, this Court has proceeded on the postulate that life imprisonment means fourteen years of incarceration, after remissions. The calculation of fourteen years of incarceration is based on another postulate, articulated in Swamy Shraddananda, namely that a sentence of life imprisonment is first commuted (or deemed converted) to a fixed term of twenty years on the basis of the Karnataka Prison Rules, 1974 and a similar letter issued by the Government of Bihar.
Apparently, rules of this nature exist in other States as well. Thereafter, remissions earned or awarded to a convict are applied to the commuted sentence to work out the period of incarceration to fourteen years.::: Downloaded on - 23/12/2013 20:30:18 :::
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79. This re-engineered calculation can be made only after the appropriate Government artificially determines the period of incarceration. The procedure apparently being followed by the appropriate Government is that life imprisonment is artificially considered to be imprisonment for a period of twenty years. It is this arbitrary reckoning that has been prohibited in Ratan Singh. A failure to implement Ratan Singh has led this Court in some cases to carve out a special category in which sentences of twenty years or more are awarded, even after accounting for remissions. If the law is applied as we understand it, meaning thereby that life imprisonment is imprisonment for the life span of the convict, with procedural and substantive checks laid down in the Cr.P.C. for his early release we would reach a legally satisfactory result on the issue of remissions. This makes an order for incarceration for a minimum period of 20 or 25 or 30 years unnecessary.
Conclusion:
80. 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:
1. ...........
2. ...........
3. ........
4. ........::: Downloaded on - 23/12/2013 20:30:18 :::
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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.
6. Remission can be granted under Section 432 of the Cr.P.C. 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 Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of the Cr.P.C. can certainly be exercised but not on the basis that life imprisonment is an arbitrary or imprisonment.
7. Before actually exercising the power of remission under Section 432 of the Cr.P.C. 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."
17] In Budhsingh (supra) the supreme Court observed as under:-
"7. The matter having reached this Court on the basis of a certificate granted by the High Court, the question that had arisen was ::: Downloaded on - 23/12/2013 20:30:18 ::: {23} criwp571-13.doc formulated in the following terms:-
"The main question therefore that falls for consideration is whether the order of remission has the effect of reducing the sentence in the same way in which an order of an appellate or revisional criminal court has the effect of reducing the sentence passed by the trial court to the extent indicated in the order of the appellate or revisional court."
"8. On a detailed examination and scrutiny of the various dimensions of the question that had arisen, this Court upheld the view taken by the High Court and answered the question formulated by it by holding that "....... the effect of an order of remission is to wipe out that part of the sentence of imprisonment which has not been served out and thus in practice to reduce the sentence to the period already undergone, in law the order of remission merely means that the rest of the sentence need not be undergone, leaving the order of conviction by the court and the sentence passed by it untouched."
"9. In Maru Ram Vs. Union of India and Ors, reported in (1981) 1 SCC 107 : (A.I.R. 1980 S.C. 2147) this Court had observed that Article 20(1) of the Constitution engrafts the rule that there can be no ex post facto infliction of a penalty heavier than what had prevailed at the time of commission of the offence. Section 32A ex facie has nothing to do with the punishment or penalty imposed under the Act. In fact, no ::: Downloaded on - 23/12/2013 20:30:18 ::: {24} criwp571-13.doc change or alteration in the severity of the penalty under the NDPS Act has been brought about by the introduction of section 32A with effect from 29.05.1989. What section 32A has done is to obliterate the benefit of remission(s) that a convict under the NDPS Act would have normally earned. But, if the correct legal position is that the remission(s) do not in any way touch or affect the penalty / sentence imposed by a court, we do not see how the exclusion of benefit of remission can be understood to have the effect of enlarging the period of incarceration of an accused convicted under the NDPS Act or as to how the said provision i.e. section 32A can have the effect of making a convict undergo a longer period of sentence than what the Act had contemplated at the time of commission of the offence."
18] The argument of Mr.Khamkar, however, is that in the above decisions the attention of the Honourable Supreme Court was not invited to the law laid down by the three Judge bench in Jagdish Vs. State of Haryana (supra). In that case, the Supreme Court, according to Mr.Khamkar, held that the power of remission of sentence is absolute and unfettered. He submits that this judgement holds that the right of the convict, though limited, is to the extent that his ::: Downloaded on - 23/12/2013 20:30:18 ::: {25} criwp571-13.doc case be considered in accordance with the relevant rules.
He cannot claim that he should be released prematurely and as of right. Centrainly, he can claim benefit of the policy of remission. That policy ought to be applied uniformly.
19] We are afraid, there is no merit in this contention because even if one follows and applies the judgement in the case of State of Haryana Vs. Jagdish 2010 S.C. 1690, which the Government has referred to in the impugned order, yet the legal position cannot be any different. The Supreme Court even in Jagdish's case (supra) does not hold that there is any absolute right of remission in the prisoner or convict. The matter before the Supreme Court arose because of a difference of opinion in several two Judge bench decisions. It was to resolve that conflict that the Supreme Court framed the question as to whether the policy which makes a provision for remission of sentence should be that which was existing on the date of conviction ::: Downloaded on - 23/12/2013 20:30:18 ::: {26} criwp571-13.doc of the accused or it should be the policy that exists on the consideration of his case for premature release by appropriate authority. The Supreme Court while resolving the conflict held that the right of the prisoner to get his case considered on par with others is, therefore, to be considered on the strength of the policy that was existing on the date of his conviction. However, the Supreme Court held that the said authority is under an obligation to at least exercise its discretion in relation to an honest exception perceived by the convict at the time of his conviction that his case for premature lease would be considered after serving the sentence prescribed in the short sentencing policy existing on that date. Therefore, the argument of Mr.Khamkar is that more liberal policy, if prevailing should be applied, and premature release be ordered on that basis. Mr.Khamkar's argument overlooks the fact that in the very same judgement the Supreme Court has referred to the categorisation of prisoners, even for premature release.
::: Downloaded on - 23/12/2013 20:30:18 :::{27} criwp571-13.doc The Supreme Court has not elevated the guidelines which have been evolved as in our case, to the level of any statutory rules. It has cautioned that premature release must be in accordance with some well defined and avowed policy.
20] In the very Judgement (State of Haryana vs. Jagdish) the Supreme Court has held in para 38 as under:-
"38. At the time of considering the case of premature release of a life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict any more; the socio economic condition of the convict's family and other similar circumstances."
21] In the case at hand, according to the petitioner, what was in force on the date of his conviction are the guidelines of 11th May 1992. According to these guidelines, the ::: Downloaded on - 23/12/2013 20:30:18 ::: {28} criwp571-13.doc categorisation of crimes is to be found as an Annexure to the letter dated 11th May 1992. Therein also if the crime is committed with premeditation and exceptional violence or with perversity, the period of imprisonment to be undergone including remission, subject to minimum of 14 years of actual imprisonment, including the set off period is 28 years.
Even if we take that to be the applicable policy, considering the facts of the present case, it cannot be said that the petitioner's case is covered by a category as claimed, namely, where the crime is committed by a convict / person who has no previous criminal history and the murder is committed in an individual capacity in the moment of anger and without premeditation. In the present case, even if 1992 policy/ guidelines are stated to be applicable, still if the crime is committed with exceptional violence or with perversity and premeditation, 26 or 28 years of actual imprisonment has to be undergone. Even in cases where murders are committed for other reasons, the period is 26 years.
::: Downloaded on - 23/12/2013 20:30:18 :::{29} criwp571-13.doc 22] In the later guidelines of 11th April 2008, the categorisation of crimes and particularly of offences relating to crimes against women and minors is spelt out and thereunder if an offence relating to crime against women and minors is committed with exceptional violence and/or with brutality or death of victim is caused with burn and/or murder or rape, then, the period to be undergone is 28 years. We do not see how the petitioner has any beneficial policy and which could be traced to the guidelines framed by the State and notified from time to time. If 1992, 2008 and 2010 are the only guidelines and in each of them, if the petitioner's case can be categorised as a crime committed with exceptional violence and/or with brutality, then, he has to undergo 26 years of imprisonment. There is, therefore, no inconsistency in the views of the Supreme Court. In fact the later decisions clarify the position in law. The position in law after Jagdish's case (supra) thus clarified, does not ::: Downloaded on - 23/12/2013 20:30:18 ::: {30} criwp571-13.doc result in any conflict or diversion or departure from the earlier views. The consistent view is that life imprisonment is for a term and that is entire life and, therefore, inderminate, has never been deviated from any time.
23] As a result of the above discussion, we do not find any merit in the petition. The impugned order is consistent with the guidelines framed and is also in tune with the law laid down by the Supreme Court from time to time. There is thus no error of law apparent on the face of the record or perversity warranting interference in our writ jurisdiction with the conclusions reached in the impugned order dated 30 th October 2012, Annexure "A". The writ petition, therefore, deserves to be dismissed and is accordingly dismissed.
Rule is discharged. No costs. Registrar (Judicial) and the learned Public Prosecutor to communicate this order to the Jailer and concerned Authorities as expeditiously as possible. In addition, a certified copy be also made ::: Downloaded on - 23/12/2013 20:30:18 ::: {31} criwp571-13.doc available to the prisoner - petitioner concerned free of cost.
(G.S.PATEL, J) (S.C.DHARMADHIKARI, J) ::: Downloaded on - 23/12/2013 20:30:18 :::