Jharkhand High Court
Anil Sharma vs The State Of Jharkhand on 19 October, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.). No. 412 of 2018
Anil Sharma, son of Shri Nandesh Pd. Sharma, resident of Sharma Lane, Opp.
G.E.L. Church Complex, Main Road, P.O. and P.S. Hindpiri, District-Ranchi
(Jharkhand) ...... Petitioner
Versus
1.The State of Jharkhand
2. The Secretary, Department of Home, Govt. of Jharkhand, Ranchi
3. The Inspector General of Prisons, T.A. Division, Govt. of Jharkhand, Ranchi
4. The Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi
5. The Superintendent Central Jail, Dumka ...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mr. Ravi Kerketta, S.C.-VI
Ms. Deepika Jojowar, A.C. to S.C.-VI
.......
16/Dated: 19/10/2022
This petition has been filed for quashing of the decision of the State Sentence Review Board, dated 29.09.2018 issued vide Memo contained in Annexure-8 whereby premature release of the petitioner has been rejected on the ground that the offence committed by the petitioner is heinous crime.
Further prayer has been made for release of the petitioner.
Mr. R.S. Mazumdar, learned senior counsel for the petitioner submits that the petitioner was convicted for the offence under section 302 of the I.P.C. and other sections of I.P.C. and was awarded death sentenced vide judgment dated 01.04.2002 passed by the learned Additional Judicial Commissioner-cum-Special Judge-IV in S.T. No. 443/1999 and against the conviction the petitioner preferred Criminal Appeal (D.B.) No. 166/2002 which was ultimately heard and dismissed by order dated 29.11.2002 by the Division Bench with modification that the death sentence is commuted into life. He submits that now the petitioner has remained in jail custody for more than 25 years as per calculation chart contained in Annexure-2 to this petition. He submits that policy with regard to the remission of sentence has been issued by the State of Jharkhand on 18.04.2007 which has been brought on record by Annexure-3 to this petition. According to him the petitioner was convicted on 2 17.05.2002 and at that time the case of the petitioner was covered with the policy decision of then State of Bihar issued in the year, 1984 vide Memo No. 1647 dated 14.02.1984 in which it was decided that the convict is entitled for premature release after he completes 14 years from the date of conviction and the petitioner has completed 25 years including remission which was also modified by the Hon'ble Supreme Court in the case of "Bhagirath V. Delhi Administration in Criminal Appeal No. 754/1983 and other cases which was further notified by the Government in Memo No. 3489 dated 27.05.1985.
He submits that conduct of the petitioner has been found good when he remained in jail custody. He submits that regarding premature release of the petitioner the matter was placed before the State Sentence Review Board which was rejected on 29.09.2018 on the ground that petitioner is accused in heinous crime and once he escaped from the jail custody. He submits that the case of the petitioner is fully covered with in the light of judgment passed by the Co-ordinate Bench as well as this Court in W.P.(Cr.) No. 14 of 2021 along with analogous cases in which it was decided that if the conviction is prior to 2007 policy, the policy of 1984 will apply in the case of such conviction. The argument of learned counsel for the petitioners as well as respondents was recorded in that writ petition which is reproduced here-in-below:-
"The common thread which runs through the arguments advanced by the learned counsels for the petitioners in all the cases is that the 1984 policy with respect to premature release of a convict issued by the State of Bihar shall be applicable in the cases of the petitioners and the State Sentence Review Board should have considered the 1984 policy and other policy which have come into effect after the creation of the State of Jharkhand. Learned counsels for the petitioners submit that in terms of 1984 policy the petitioners have completed 14 years in actual custody and 20 years with remission and therefore since the 1984 policy continued to hold the field till a new policy came into being in 2007 the petitioners are guided by the earlier policy which ruled the roost even after creation of the State of Jharkhand in terms of Section 85 of the Bihar Reorganisation Act and therefore the respondents be directed to release the petitioners as they have completed their respective terms and eligible for being prematurely released in view of the policy of 1984.
Per contra Mr. P.A.S. Pati, learned counsel for the State submits that the resolution of the State of Bihar dated 24.02.1984 is not a policy in the strict sense of the term and the same does not have any statutory force of law which can be extended to the convicts. He further submits that basically the memo dated 24.02.1984 is merely a letter and is not a law 3 in terms of Section 2 (f) and therefore does not have a binding effect on the successor State of Jharkhand in terms of Section 85 of the Bihar Reorganisation Act. He also submits that in terms of the judgment passed by the Hon'ble Supreme Court in the case of Laxman Naskar versus Union of India and Others reported in AIR (2000) SC 986, consideration for premature release of a convict can only be arrived at after various factors enumerated in the said judgment has to be considered and which formed the basis for issuance of resolution in the year 2007 by the State of Jharkhand. Submission has been advanced that the petitioners cannot claim as a matter of right to be released in terms of the 1984 policy after completing 14 years in custody without remission and 20 years in custody with remission as the 1984 policy did not have a binding effect on the State of Jharkhand and moreover the various factors enumerated by the Hon'ble Supreme Court in the case of Laxman Naskar (supra) has also to be considered which ultimately led to the subsequent resolution of 2007 of the State of Jharkhand and by no stretch of imagination the benefit of premature release to the petitioners can be extended in terms of the 1984 policy and therefore all these applications are liable to be dismissed. Mr. P.A.S. Pati, learned counsel for the State by way of referring the judgment rendered by the Hon'ble Supreme Court in the case of State of Haryana and Others v. Jagdish, reported in (2010) 4 SCC 216, submits that the Hon'ble Supreme Court has also observed in that paragraph while deciding the remission that the concerned authority is required to consider the factors for remission. According to him, following factors are required to be considered in the case of remission:
(a) whether the offence was an individual act of crime without affecting the society at large;
(b) whether there was any chance of future recurrence of committing a crime;
(c) whether the convict had lost his potentiality in committing the crime;
(d) whether there was any fruitful purpose of confining the convict any more;
(e) the socio-economic condition of the convict's family; (
f) any other similar circumstances;
(g) provisions contained in Jail Manual Rules 527 to 529 (particularly) Rule 529; & analogous matters
(h) opinion of the learned trial court.
The main foundation upon which the arguments of the learned counsels for the petitioners have been built is the 1984 policy of the State of Bihar. In order to ascertain as to whether such argument can lead to construction of an edifice it would be beneficial to refer to the 1984 policy and briefly translated in English the conditions enumerated in the policy dated 24.02.1984 reads as follows:-
(i) In terms of Section 428 of the Cr.P.C. the benefit of set off shall not be given to the convicts which would mean that the period of custody undergone by a convict during investigation and trial would not be set off from 20 years of custody.
(ii) After an accused has been convicted and sentenced to life imprisonment in which one of the sentence includes a sentence of death and where the death sentence has been reduced to life imprisonment and where such sentence has been imposed on or after 18.12.1978 such convict shall be released provided that; (
a) He has completed 14 years in custody after his conviction.
(b) The total period completed in custody is 20 years including remission.
The gist of the resolution noted above would therefore mean that a convict is entitled for premature release provided he remains in custody for 14 years after his conviction and 20 years including remission. A subsequent resolution bearing resolution no. 3115 dated 25.05.1985 was issued by the State of Bihar on consideration of the judgment rendered by the Hon'ble Supreme Court in the case of Bhagirath v. Administration of Delhi, wherein the benefit of set off and the period the convict has remained in custody during investigation and trial shall be adjusted/set off from the period of life imprisonment. Thus it would ultimately mean that a convict who has completed 14 years of actual 4 custody and 20 years of custody with remission shall be entitled to premature release in terms of the policy dated 24.02.1984. Resolution was taken by the State of Jharkhand dated 18.04.2007 pursuant to the judgment rendered by the Hon'ble Supreme Court in the case of Laxman Naskar (supra) in which the constitution of the State Sentence Review Board was formulated and the factors which would entail consideration of premature release of a convict was also enumerated. This consideration was made applicable only to those convicts whose case falls u/s 433 (a) of the Cr.P.C. and who has completed 14 years of actual physical custody and 20 years of custody with remission. Subsequently a resolution dated 10.09.2009 was also issued with respect to a modification in Clause 3 (i) of the earlier resolution dated 18.04.2007. Section 85 of the Bihar Reorganisation Act, 2000 reads as follows:-
85. Power to adapt laws.- For the purpose of facilitating the application in relation to the State of Bihar or Jharkhand of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority.
Explanation.- In this section, the expression "appropriate Govern-ment"
means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.
Section 85 thus does not abrogate or seize the enforceability of any law as was prevailing in the State of Bihar prior to creation of the Successor State of Jharkhand. Section 2 (f) of the Bihar Reorganisation Act defines law which reads as under:-
Section 2 (f) "law" includes any enactment, ordinance, regulation, order, by-law, rule, scheme, notification or other instrument having, immediately before the appointed day, the force of law in the whole or in any part of the existing State of Bihar.
The resolution dated 24.02.1984 cannot be said to be merely a letter as the same was the basis for releasing convicts prematurely on the convict having fulfilled the criteria of remaining in custody for the period denoted in the same. Thus what was made operative by the State of Bihar w.e.f. 24.02.1984 was a resolution which continued to hold the field till a resolution was taken by the State of Jharkhand on 18.04.2007. The conviction of the petitioners was after the 1984 policy came into being and prior to the policy of the State of Jharkhand dated 18.04.2007 and as such the case of the petitioners are clearly to be guided by the 1984 policy.
In the case of State of Haryana and Others versus Jagdish reported in (2010) 4 SCC 216, since there was conflicting judgments the same was referred to a three Judges Bench which held as follows:-
38. In view of the above, it is evident that the clemency power of the executive is absolute and remains unfettered for the reason that the provisions contained under Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A CrPC though the authority has to meet the requirements referred to hereinabove while exercising the clemency power. To say that clemency power under Articles 72/161 of the Constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short-sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered.
44. Liberty is one of the most precious and cherished possessions of a human being and he would resist forcefully any attempt to diminish it.
Similarly, rehabilitation and social reconstruction of a life convict, as objective of punishment become of paramount importance in a welfare State. "Society without crime is a utopian theory." The State has to achieve the goal of protecting the society from the convict and also to rehabilitate the offender. There is a very real risk of revenge attack upon the convict from others. Punishment enables the convict to expiate his 5 crime and assist his rehabilitation. The remission policy manifests a process of reshaping a person who, under certain circumstances, has indulged in criminal activity and is required to be rehabilitated. Objectives of the punishment are wholly or predominantly reformative and preventive.
49. This Court in Mahender Singh has taken note of the provisions of the 1894 Act and the Rules framed thereunder as well as the relevant paragraphs of the Punjab Jail Manual. Section 59(5) of the 1894 Act, enables the Government to frame rules for "award of marks and the shortening of sentences". The Rules define prisoner as including a person committed to prison in default of furnishing security to keep peace or be of good behaviour. The Rules further provide for classification of prisoners according to the intensity and gravity of the offence. According to the classification of prisoners, Class 1 prisoners are those who had committed heinous organised crimes or specially dangerous criminals. Class 2 prisoners include dacoits or persons who commit heinous organised crimes. Class 3 prisoners are those who do not fall within Class 1 or Class 2. Rule 20 thereof provides that life convict being a Class 1 prisoner if earned such remission as entitles him to release, the Superintendent shall report accordingly to the local Government with a view to the passing of orders under Section 401 CrPC. Rule 21 provides that save as provided by Rule 20, when a prisoner has earned such remission as entitles him to release, the Superintendent shall release him. The instant case falls in Class 3, not being a case of organised crime or by professionals or hereditary or specially dangerous criminals.
50. Undoubtedly, the aforesaid Rules are applicable in Haryana in view of the States Reorganisation Act. These are statutory rules, not merely executive instructions.
Therefore, a "lifer" has a right to get his case considered within the parameters laid down therein.
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 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 shortsentencing 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. Thus in the case of Jagdish (supra) it was categorically laid down that the policy which was prevailing on the date of consideration for premature release of a life convict the benefit of the same should be given to the convict.
In the case of Union of India versus V. Sriharan alias Murgan and Others reported in 2016 (1) JLJR 121 (SC) the Constitution Bench held as follows:-
236. The power under Sections 432/433 CrPC and the one exercisable under Articles 72 and 161 of the Constitution, as laid down in Maru Ram (supra) are streams flowing in the same bed. Both seek to achieve salutary purpose. As observed in Kehar Singh (supra) in clemency jurisdiction it is permissible to examine whether the case deserves the grant of relief and cut short the sentence in exercise of Executive Power which abridges the enforcement of a judgment. Clemency jurisdiction would normally be exercised in the exigencies of the case and fact 6 situation as obtaining when the occasion to exercise the power arises.
Any order putting matters the punishment beyond remission will prohibit, exercise of statutory power designed to achieve same purpose under Sections 432/433 CrPC. In our view, Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel.
238. The law on the point of life imprisonment as laid down in Godse's case (supra) is clear that life imprisonment means till the end of one's life and that by very nature the sentence is indeterminable. Any fixed term sentence characterised as minimum which must be undergone before any remission could be considered, cannot affect the character of life imprisonment but such direction goes and restricts the exercise of power of remission before the expiry of such stipulated period. In essence, any such direction would increase or expand the statutory period prescribed under Section 433-A of Cr.P.C. Any such stipulation of mandatory minimum period inconsistent with the one in Section 433-A, in our view, would not be within the powers of the Court. Our answer to Sub Question (b) of Question in para 52.1 is:
Question b: Whether as per the principles enunciated in paragraphs 91 to 93 of Swamy Shraddananda (2), a special category of sentence may be made for the very few cases where the death penalty might be substituted by the punishment for imprisonment for life or imprisonment for a term in excess of fourteen years and to put that category beyond application of remission?
Answer. In our view, it would not be open to the Court to make any special category of sentence in substitution of death penalty and put that category beyond application of remission, nor would it be permissible to stipulate any mandatory period of actual imprisonment inconsistent with the one prescribed under Section 433-A of Cr.P.C. It was held that the Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. The 1984 policy was under consideration by this Court in W.P.(Cr.) No. 40 of 2011 in which it was held that the policy decision of 1984 remained operative till the new policy was framed in the year 2007 by the State of Jharkhand and thereafter a direction was given to the State Sentence Review Board to consider the case of the said convict for his premature release in light of the policy decision of 1984. The said order was affirmed up to the Hon'ble Supreme Court.
In batch of cases being W.P. (Cr.) No. 262 of 2014 and analogous cases, a coordinate Bench of this Court held that the petitioners of those cases shall be guided by the 1984 policy and no other and therefore all those writ petitions were disposed of with a direction to the respondents to consider the case of those petitioners for premature release strictly on the basis of 1984 policy dated 28.02.1984.
Identical matter numbered as W.P. (Cr.) No. 32 of 2011 travelled up to the Hon'ble Supreme Court, which has been affirmed by the Hon'ble Supreme Court in S.L.P. (Cr.) No.5696 of 2012.
In view of these facts, there is no doubt that the case of the petitioners are required to be considered for premature release strictly on the basis of 1984 policy dated 28.02.1984. The coordinate Bench of this Court has not discussed paragraph 46 of the judgment rendered by the Hon'ble Supreme Court in the case of Jagdish (supra). Paragraph 46 of the said judgment is quoted herein below:
46. 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.
In view of the above facts, these matters are remitted back to the 7 Jharkhand State Sentence Review Board to consider in light of the judgment passed by the coordinate Bench and in the case of Jagdish (supra) and pass a fresh order. This exercise shall be completed within a period of three months from the date of receipt/production of a copy of this order. Accordingly, these writ applications stand disposed of."
In the light of above judgment and considering that in that case it has been held that sentence is prior to policy which is required to be considered in the light of earlier policy that was held in the light of judgment of Co-ordinate Bench as well of the Hon'ble Supreme Court in the case of "State of Haryana and Others V. Jagdish" reported in (2010 4 SCC 216.
In view of the above facts, the matter is remitted back to the State Sentence Review Board to consider the case of the petitioner in the light of judgment passed in W.P.(Cr.). No. 14 of 2021 along with analogous cases as well as judgment of the Co-ordinate Bench and in the case of "Jagdish"
(supra) and pass a fresh order.
This exercise shall be completed within a period of four months from the date of receipt/production of a copy of this order.
This petition stands disposed of. Pending I.A, if any stands disposed of.
( Sanjay Kumar Dwivedi, J.) Satyarthi/