Patna High Court
Ajit Kumar Mishra vs The State Of Bihar Through Its Chief ... on 15 September, 2023
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1195 of 2021
Arising Out of PS. Case No.- Year-0 Thana- District- Muzaffarpur
======================================================
Ajit Kumar Mishra, Son of Amod Mishra, Resident of vill - Lohsari, P.S. -
Bochaha, Distt. - Muzaffarpur. ... ... Petitioner
Versus
1. The State of Bihar through its Chief Secretary, Govt. of Bihar, Old
Secretariat, Patna
2. The Principal Secretary, Department of Home, Government of Bihar, Old
Secretariat, Patna.
3. The State Sentence Remission Board, through, its Secretary i.e. Inspector
General, Prison and Correctional Services, Government of Bihar, Old
Secretariat, Patna.
4. The Law Secretary, Legal Remembrancer, Department of Law, Government
of Bihar, Patna.
5. The Director, Probation Services, Government of Bihar, Patna.
6. The Director General of Police, Bihar, Sardar Patel Bhawan, Bailey Road,
Patna.
7. The Inspector General, Prison and Jail Reforms, Government of Bihar,
Patna, Old Secretariat.
8. The Jail Superintendent, Special Central Jail, Bhagalpur.
... ... Respondents
======================================================
Appearance :
For the Petitioner/s : Mr. Shantanu Kumar, Advocate
For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 15-09-2023
The petitioner in this writ application has completed
more than 20 years with remission and about 17 years of actual
incarceration after having been convicted under Sections 364A/34,
302/34 and 201/34 of the Indian Penal Code in Session Trial No.
183 of 2003 arising out of Brahmpura (Muzaffarpur) P.S. Case No.
20 of 2003. He is aggrieved by and dissatisfied with the decision
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of the Bihar State Sentence Remission Board (hereinafter referred
to as the 'Board' or 'Remission Board') taken in its meeting held
on 23.12.2020 whereby the Board has rejected the proposal for
premature release of the petitioner. The petitioner is praying for
setting aside of the decision of the Board and issuance of a
direction commanding the Board to consider the case of the
petitioner afresh for premature release.
Case of the Petitioner
2. In the writ application filed in the year 2021, it is the
case of the petitioner that after completion of more than 21 years
with remission and about 15 years of actual physical incarceration,
the Jail Superintendent, Central Jail, Bhagalpur being satisfied
with the good conduct and law abiding behaviour of the petitioner
sought opinions from the concerned authorities in the matter of
premature release of the petitioner.
3. It is stated that on the direction of the Jail
Superintendent, Bhagalpur, the Principal Probation Officer,
Muzaffarpur conducted an inquiry and submitted his report to the
respondent no. 8 vide letter no. 289 dated 06.08.2020 whereby and
whereunder he reported that the petitioner may be rehabilitated
and there would be no problem in his rehabilitation after his
release. The Senior Superintendent of Police, Muzaffarpur also
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023
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obtained a report from the Additional Superintendent of Police and
he being satisfied with the opinion of the general people concluded
that there would be no law and order issue as a consequence of
premature release of the petitioner.
4. It is further stated that the learned 6 th Additional
Sessions Judge, Muzaffarpur being the trial court who had
convicted the petitioner also submitted its opinion vide letter no.
258 dated 09.09.2020 (Annexure '3'). In his opinion, the learned
Presiding Judge referred the judgment of the Hon'ble Supreme
Court in the case of Union of India versus V. Sriharan @
Murugan and Others reported in (2016) 7 SCC 1 and concluded
that the Court would have no objection if the petitioner is released
in accordance with the Jail Manual.
5. It is stated that the Board has been constituted vide
notification dated 09.04.2018 issued by the Inspectorate of
Prisons and Correctional Services, Government of Bihar
(Annexure '4' to the writ application) and it was given validity
with retrospective effect from 10.12.2002. According to Annexure
'4', the Board shall recommend the premature release of the life
convict prisoners under the provisions of the Home Department
State Notification No. ds/fofo/k 63 /2001-3106 dated 10.12.2002
(hereinafter referred to as the 'notification' or 'Remission
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Notification'). As stated above, the Board considered the case of
the petitioner but rejected the same on the ground that his case
would be covered under the exception clause (iv) (d) of the
Remission Notification. Thus, the petitioner has been held not
eligible for premature release.
6. Referring to the impugned decision of the Board,
learned counsel for the petitioner submits that clause (iv)(d) of the
Remission Notification would not take within its ambit the case of
the petitioner and at the same time, the Board has no authority of
law to extend the scope of clause (iv) (d) on its own without there
being any statutory nature of classification of the offences and a
guideline to that effect having statutory flavour.
7. It is submitted that a case of conviction under Section
364A/34, 302/34 and 201/34 has not been specifically mentioned
in the clause (iv) (d) of the Remission Notification.
8. Learned counsel points out that by notification dated
10.12.2002, earlier in exercise of power under Section 59 of the Prison Act, 1894 (hereinafter referred to as the 'Act of 1894'), Rule 529 of Bihar Jail Manual was substituted. It was earlier known as Bihar & Orissa Jail Manual which came to be published for the first time in the year 1927. The Jail Manual was superseded when in exercise of power under Section 59 of the Act Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 5/33 of 1894, Bihar Prison Manual 2012 (hereinafter referred to as the 'Manual of 2012') was framed for administration of prison in the State of Bihar. Chapter '15' Part 'B' of the Manual of 2012 deals with the matter relating to premature release. Sections 474 to 487 of the Manual of 2012 have been referred to.
9. It is submitted that Rule 481 of the Manual of 2012 which provides for categories of Prisoners who shall be eligible to be considered for review of sentences and premature release, the categories of prisoners who will be covered under Section 433A Cr.P.C. are also mentioned under Rule 481.
10. Learned counsel submits that the categories of convicts covered under Section 433A has been substituted vide Amendment notification dated 26.05.2016. A bare reading of the substituted provision would show that the case of the petitioner would not be covered under either Clause (a), (b) or (c).
11. It is submitted that in the case of State of Haryana and Others Vs. Jagdish reported in (2010) 4 SCC 216 the Hon'ble Apex Court has held that when the policy on the date of conviction and on the date of consideration for premature release are different, the policy prevailing on the date of conviction would be applicable but in the same judgment it was also held that in case of a liberal policy prevailing on the date of consideration of the case of a "lifer" for premature release, he should be given benefit thereof. Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 6/33
12. The petitioner has brought on record a recent amendment by way of notification dated 10.04.2023 brought by the State Government to amend Rule 481(i)(d). By virtue of the amendment introduced, now the words "murder of a government servant on duty" has been deleted from the list of exceptions. It is submitted that following the notification dated 10.04.2023 under the amended provision, the benefit has been given to 27 prisoners who have been ordered to be released vide order dated 24.04.2023 i.e. within a period of two weeks from the date of the amendment. It is further stated that out of 27 persons, 6 persons have been released in compliance of the judgment of this Court in the case of Cr.W.J.C. No. 861 of 2021 (Md. Alauddin Ansari, Md. Haleem Ansari and Md. Akhtar Ansari ), Cr.W.J.C. No. 1310 of 2022 (Md. Khudbuddin), Cr.W.J.C. No. 2128 of 2018 (Sikander Mahto) and one Awadhesh Mandal whose case number has not been provided in the release order have been set free. The submission is that initially, the State respondents did not challenge the judgments of this Court in the aforementioned cases and complied with the same, therefore, at this stage, they cannot be allowed to take any stand against the finding and ratio of the judgments in those cases, moreover as per the provisions of the Manual of 2012, the Board Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 7/33 should follow the judgments of the Courts and precedence. (Refer Rules 478 and 481).
13. Learned counsel for the petitioner has placed before this Court a copy of supplementary counter affidavit filed on behalf of Respondent No. 2 in one Cr.W.J.C. No. 2530 of 2017 (Naresh Sahani Vs the State of Bihar and Ors.). In the said case, it is submitted that the then Principal Secretary, Department of Home, Government of Bihar had personally sworn the affidavit. In his affidavit, the Principal Secretary had made a statement on the basis of a departmental report that the release of life convicts from 28.12.2002 to 24.09.2007 (the date before the recommendation for release was made first time by the Remission Board) and the various recommendations made by the Remission Board from 25.09.2007 to 03.05.2018 were scrutinized. The report revealed that in between 28.12.2002 and 24.09.2007 recommendations were made by the Jail Superintendent after calculating 14 years of actual custody and 20 years custody with remission in 510 cases and no life convicts who were covered under Clause (iv) (a) to (d) were released from the jail. Having said so, it is further stated in the affidavit that from 25.09.2007 to 03.05.2018, total number of proposals of life convicts put up before the Board for consideration was 2,576 out of which 1,424 life convicts were recommended for Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 8/33 release by the Remission Board and 668 proposals of life convicts were rejected on various grounds, whereas 484 proposals were adjourned for clear report of the Presiding Officer, Probation Officers and Superintendent of Police. In the said affidavit, it has been categorically stated that out of 1,424 recommended proposals of life convicts for release, 17 proposals of life convicts were covered under Clause (iv)(a) to (d) of the Remission Notification, they were released after recommendation of the Board. In paragraph '15' of the affidavit, the Principal Secretary has admitted that out of 17 proposals of life convicts 2 proposals of life convicts, namely, Riyasat Mian (Sessions Trial No. 408/98 date of sentence 30.01.2003) and Nagendra Singh (Sessions Trial No. 399/98 date of sentence 16.01.2014) were convicts under Sections 376, 302, and 201 of the Indian Penal Code, they were recommended for release by the Board in its meeting dated 19.05.2014 and 15 proposals were either of 302/34 IPC or 302/148 IPC, 302/149 IPC who were recommended in different meeting of the Board.
14. This Court called for the records of Cr.W.J.C. No. 2530 of 2017 to ascertain whether the copy of the supplementary counter affidavit of the Principal Secretary, Department of Home which has been placed before this Court is part of the records or Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 9/33 not. On going through the records of Cr.W.J.C. No. 2530 of 2017, this Court finds that the supplementary counter affidavit sworn by the then Principal Secretary, Department of Home in Cr.W.J.C. No. 2530 of 2017 very much forms part of the record.
15. Learned counsel for the petitioner has also placed before this Court a copy of the order contained in Letter No. A/PM-05/2017 bearing seal dated 06.06.2018 to submit that this office order would show that in its meeting held on 03.05.2018, the Remission Board considered several proposals for premature release and granted the proposals in the case of Rajdev Yadav (Sessions Trial No. 202 of 1993) who was a convict under Section 396 IPC in the light of the order dated 07.03.2018 passed by this Court in Cr.W.J.C. No. 735 of 2018. One Ram Babu Singh, who was a convict under Section 302 IPC for killing six persons including a child, was also granted release. Similarly, Surendra Sharma who was a convict under Section 302 for killing 16 persons was granted release and Om Prakash Singh who was a convict under Section 364A IPC in Sessions Trial No. 169 of 1996, Divisional Jail, Chapra was also allowed the remission. It is submitted that from these instances, it is crystal clear that conviction under Section 364A IPC had never been brought within the purview of the clause (iv) (d) of the notification/amendment of Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 10/33 10.12.2002 and in fact the Principal Secretary, Department of Home is on record in saying that the Remission Board had in past granted release to the convicts of the offences under Sections 376, 302 and 201 IPC. Thus, the Remission Board cannot be allowed to adopt two different standards at two different points of time. The past decision of the Board is required to be considered in absence of any specific provision covering the case of the petitioner under Section 433A Cr.P.C.
16. Learned counsel has relied upon a judgment of this Court in the case of Pradeep Kumar Srivastava @ Pradip Kumar Srivastava versus The State of Bihar through its Chief Secretary, Home and Others reported in 2022 (1) PLJR 217. It is submitted that the said case was also a case of convict under Section 364-A and 379/34 IPC. The Remission Board had rejected the request of the petitioner for premature release in terms of the policy decision of the Government in the Remission Notification. This Court having considered the entire materials on the record and the Remission Notification particularly clause (iv) (d) held that an offence committed under Section 364-A of the IPC is not specifically provided in clause (iv) (ka). The word 'vkfn' at the end of sub-clause (d) has to be read 'Ejusdem Generis' and by applying that rules of interpretation, it may only be taken to mean Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 11/33 and understand the offences of the similar category such as rape, dacoity and terrorist acts. This Court held that sub-clause ([k) has to be read together with sub-clause (d) and only then the Remission Board may arrive at a proper conclusion as to in which kind of cases the benefit of premature release may not be granted in terms of the said policy. This Court noticed the specific statement in paragraph '14' of the writ application that one Motilal Yadav and Prem Prakash Yadav who were convicted and sentenced for life imprisonment under Section 364-A IPC were released from prison after departmental decision vide letter no. 3874 dated 01.06.2018. One Vijay Yadav who was convicted under Section 364-A/34 IPC was also released.
17. These statements were not at all denied by the State Respondents which this Court has taken note of in the case of Pradeep Kumar Srivastava (supra).
Stand of the State
18. A counter affidavit as well as supplementary counter affidavit has been filed on behalf of the State. In the counter affidavit, the only plea which has been taken is that the Board has rejected the case of the petitioner taking the offence of kidnapping for ransom as a serious offence and this has got serious impact on the victim and his family as well as the society. There is no denial Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 12/33 of the fact that the clause (iv) (d) of the Remission Notification does not take within its compass a case of convict under Section 364-A IPC. There is also no denial of the fact that in past, the Remission Board has considered several cases for premature release of the convicts under Section 364A IPC and granted them benefit of premature release.
19. By filing a supplementary counter affidavit, the State respondents have made statement that in between 2002 to 2007, the Remission Board held its meeting in 2005, 2006 and 2007 and rejected the request for remission of five convicts.
20. In course of hearing, Mr. Prabhu Narayan Sharma, learned AC to AG for the State informed this Court that as regards the applicability of the remission notification, the judgments rendered by this Court in the case of Md. Alauddin Ansari, Md. Haleem Ansari and Md. Akhtar Ansari versus the State of Bihar and Others reported in 2023 (1) PLJR 385) and Sikander Mahto have been recently challenged by filing a special leave petition in the Hon'ble Supreme Court, however, those judgments have already been complied with. It is submitted that in terms of the judgment in the case of Jagdish (Supra), the remission policy which was in force on the date of conviction would be applicable. Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 13/33 Consideration
21. Having heard learned counsel for the petitioner and learned counsel for the State as also on perusal of the records, this Court finds that so far as the Remission Notification dated 10.12.2002 is concerned, it was issued in exercise of power under Section 59 of the Act of 1894 and by this notification, Rule 529 as existing at the relevant time in the Jail Manual came to be amended. At this stage, this Court finds that earlier "Rules for the Superintendence and Management of Jail in Bihar and Orissa"
were published for the first time in the year 1927 (hereinafter referred to as 'Jail Manual' or 'first Jail Manual'). The Introductory Chapter-I thereof mentions the Acts and Regulations which were governing the Establishment and Management of Jails.
The Prisons Act, IX of 1894 as amended by Act XVII of 1925 is one of the Act mentioned under Rule-I. It appears that the Act of 1894 was enacted to amend the law relating to prisons in British India and to provide Rules for the regulation of such prisoners. It was passed by the Governor-General of India in Council and received the assent to the Governor -General on the 22nd March, 1894. Section 59 of the Act of 1894 conferred power upon the Governor- General in Council to make Rules consistent with the Act of 1894 for any part of British India and each Local Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 14/33 Government was also authorized under Section 59 to make Rules with previous sanction of the Governor- General in Council. The Superintendent, Government Printing Bihar & Orissa, Gulzarbagh published the Jail Manual for the first time in the year 1927 as prescribed by the Governor of Bihar & Orissa. Volume I & II, First Edition of the First Jail Manual were published by the Superintendent, Government Printing, Bihar & Orissa.
22. Section 59 of the Act of 1894 was amended vide AO 1937, for the words "the Governor-General-in-Council may for any part of British India, and such Local Government with the previous sanction of the Governor-General-in-Council may for the territories under its administration", the words "the State Government may" were substituted. Volume II of the Bihar and Orissa Jail Manual contains a page saying "the Acts and Rules included in this Volume are printed as modified up to First April, 1926. This Court is recording this brief history of the Jail Manuals only to understand as to in which year actually the Bihar Jail Maunal /Jail Manual/ first Jail Manual was framed and published.
Some incongruity has arisen with respect to year in which the Manual came into force because in the year 2012, in exercise of power under Section 59 of the Act of 1894 the State has framed a Jail Manual where a reference has been made to the Bihar Jail Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 15/33 Manual 1925. The incongruity with respect to year may only be resolved with reference to the brief history which has been recorded hereinabove.
23. Before dealing with the amendments brought into the relevant rule governing the case of premature release, this Court would briefly take note of the settled law that grant of remission, commutation, pardon, reprieves or suspension of sentence is purely an executive function (see Gopal Vinayak Godse v. State of Maharashtra [1961] 3 SCR 440; Maru Ram v. Union of India [1981] 1 SCR 1196). It has been held by the Hon'ble Supreme Court that the executive power is traceable to Article 72 and 161 of the Constitution of India which is exercised by the President of India and Governor of the State respectively to grant pardons and to suspend or remit or commute sentence in certain cases. Section 433 Cr.P.C. confers a statutory power upon the appropriate Government to commute (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (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, for fine.
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 16/33
24. Section 433-A imposes a restriction on powers of remission or commutation in certain cases. This provision has been inserted by Act 45 of 1978 w.e.f. 18.12.1978. Since, in this judgment, this Court is going to deal with the categories of the convict prisoners who have been brought under the purview of Section 433-A CrPC, it is worth quoting the provision hereunder for a read reference:-
"1[433-A. 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.]
25. In the case of Jagdish (supra), the Hon'ble Supreme Court has very eloquently explained the framework of all executive power and how to exercise the same. Paragraph '28' of the judgment is being quoted hereunder for a ready reference:-
"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 that some public purpose may require fulfilment by grant of remission in appropriate cases. This
1. Inserted by Act 45 of 1978, S. 32 (w.e.f. 18-12-1978 Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 17/33 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."
26. In the aforementioned background, when the Rule 529 of the first Jail Manual came to be substituted w.e.f. 28.12.2002 which is the date of publication of the notification, the amended provision provided for certain exceptional categories of convict prisoners who would be debarred from getting a premature release. The relevant part of the notification/Remission Notification dated 10.12.2002 are quoted hereunder:-
"¼vi½ Lke;& iwoZ fjgkbZ ds fy, v;ksX;rk fuEufyf[kr Js.kh ds fl)nks'k canh] tks vkthou dkjkokl dk naM Hkqxr jgs gks] le;&iwoZ fjgkbZ ds fy, fopkj& ;ksX; ughs gks ldsaxs &A ¼d½ cykRdkj] MdSrh] vkradoknh vijk/kksa] vkfn tSls vijk/kksa ds fl)nks'k canhA ¼[k½ oSls canh] tks iwoZ fparu fd;s x;s fo'k;ksa ,oa lqfu;ksftr <ax ls gR;k,a vk;ksftr djus ds fy, fl)nks'k gksA Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 18/33 ¼x½ oSls is"ksoj gR;kjs] ftUgs HkkMs+ ij gR;k djkus dk nks'kh ik;k x;k gksA ¼?k½ oSls fl)nks'k canh tks rLdjh dk;Z esa varfyZIr jgsrs gq, gR;k djrk gks vFkok drZO; ij jgus okys yksd lsodksa dh gR;k dk nks'kh gksA"
27. Earlier, there had been a controversy as to the date on which the amended Remission Notification amending Rule 529 of the Jail Manual actually came to be implemented. On the basis of the pleadings on the record, this Court considered this issue in the case of Surendra Mahto Vs. The State of Bihar & Ors. reported in 2021 (4) PLJR 393 and after going through the earlier Hon'ble Division Judgment of this Court, it has been held that the notification dated 10.12.2002 was not implemented prior to 25.09.2007, in fact the affidavit of the then Principal Secretary, Department of Home, Government of Bihar filed in Cr.WJC No. 2530 of 2017 (Naresh Sahani versus the State of Bihar and Others) which has been placed before this Court and forms part of the records of the said case admits this position and refers the period between 28.12.2002 and 24.09.2007 as the period during which life convicts were released by the Jail Superintendents themselves after calculating 14 years of actual custody and 20 years with remission. It is specific stand in the said affidavit that from 25.09.2007 and onwards the life convicts were released by the State after recommendation of the Board.
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28. This issue with regard to the implementation of the Remission Notification dated 10.12.2002 once again came to be considered in case of Md. Alauddin Ansari (supra) and in the case of Sikander Mahto (supra), this Court after detail discussion has concluded that once the State has given the benefit of 1984 Policy to the convicts of the period after publication of Remission Notification and prior to 25.09.2007, the same benefit may be granted to the similarly situated persons. Even as the State complied with the judgments of this Court, at a much belated stage, the State was advised to file special leave petitions in the Hon'ble Supreme Court to challenge the judgments of this Court in the case of Md. Alauddin Ansari (supra) and Sikander Mahto (supra) but those special leave petitions have been dismissed on the ground of delay leaving the question of law open.
29. In the case of Pradeep Kumar Srivastava (supra), an identical case of the convict under Section 364A and 379/34 IPC came to be considered, this Court took note of the several instances where the Board had considered the proposals for premature release of the convicts under Section 364-A IPC. The submissions of the learned counsel for the petitioner as noted above with regard to the statements made in paragraph '14' of the said writ application citing the names of Motilal Yadav, Prem Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 20/33 Prakash Yadav and Vijay Yadav who were granted release by the Remission Board are correct. In this regard, the relevant paragraphs '10', '11' and '12' are quoted hereunder for a ready reference:-
"10. It is evident from a reading of Annexure 'A' that the category of cases as enumerated under sub-clause (kha) are those cases in which the policy with regard to the premature release does not permit any consideration. An offence committed under Section 364A of the IPC is not specifically provided under paragraph (iv)(ka). The word 'vkfn' at the end of sub-clause (ka) has to be read 'Ejusdem generis' i.e. the birds of the same feather flock together and by applying that rule of principle of interpretation the word 'vkfn' may only be taken to mean and understand the offences of the similar category such as rape, dacoity and terrorist acts. Perhaps it is for this reason that the cases of Vijay Yadav and others as mentioned in paragraph '14' of the writ application would have been considered. It appears to this Court that the Remission Board while considering the case of the petitioner has not acted with objectivity and has simply rejected his prayer for premature release by referring to the Notification dated 10th December, 2002 and paragraph
(iv) (ka)."
"11. It is pertinent to mention here that the sub-clause (kha) has to be read together with sub-clause (ka) and only then the Remission Board may arrive on a proper conclusion as to in which cases the benefit of premature release may be granted in terms of the policy. In fact having sensed this position that the State has not denied the specific statements made in paragraph '14' of the writ application, at one stage learned AC to AAG-3 also Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 21/33 submitted that the case may be remanded to the State Remission Board for fresh consideration."
"12. In the light of the discussions hereinabove the decision dated 03.04.2020 taken by State Remission Board as contained Annexure '6' to the writ application with respect to this petitioner is hereby quashed. The State Remission Board shall now consider the case of the petitioner afresh within a period of two months from the date of receipt/communication of this order keeping in view the discussions made in the judgment hereinabove. Such decision shall be reasoned one considering all aspects of the matter and will be communicated to the petitioner forthwith after the decision is rendered within the time frame."
This judgment has also attained finality.
30. Apart from the aforementioned precedents available for consideration in the present case, there is one more issue which is required to be taken note of, discussed and then the conclusion is required to be drawn with regard to the application of the substituted Manual of 2012 which have come into force. The significance of the post 10.12.2002 notification and effect of coming into force of Manual of 2012 by which the first Jail Manual was superseded would be significant. In exercise of powers conferred by Section 59 of the Act of 1894 (as amended), the Government of Bihar has framed the Manual of 2012 in supersession of the first Jail Manual. Chapter 15 in the Manual of 2012 is in two parts. While Part 'A' deals with general provisions for release, Part 'B' contains Rule 474 to 487 which are relevant Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 22/33 for the purpose of premature release. This Part provides for constitution of Remission Board, the meetings of the Board, procedure for dealing with the proposals for premature release, category of prisoners who shall be eligible for release by the Board and the categories of prisoners covered under Section 433-A CrPC in the exception list.
31. Categories of convicts covered under Section 433-A CrPC have been substituted vide Amendment Notification No. 3194 dated 26.05.2016. For the purpose of this case, in order to appreciate the changes brought about by the Notification dated 26.05.2016 in the exception list, this Court deems it just and proper to reproduce Rule 481 of the Manual of 2012 hereunder:-
"481. The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the Board:
i. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A CrPC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions. 2[The following categories of convicted prisoner covered under Section 433A Cr.P.C. undergoing life sentence would not be entitled to be considered for premature release even after undergoing imprisonment for 20 years including remission:] 1 [(a) Such convicts who have been imprisoned for life for rape, rape with murder, dacoity with murder, murder involving offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14
1. Ins. by Amdt. Notifn. No. 3194, dated 26.5.2016.
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 23/33 .
years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in terrorist incident, murder in smuggling operation, 2[xxx]]
(b) Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity.
c) Convicts whose death sentence has been commuted to life imprisonment.
ii. All other convicted male prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions. iii. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions.
3[(iv) In such cases in which life sentence has been awarded by specifying that the convict shall undergo life sentence till the end of his life without remission or commutation, benefit of remission or commutation shall not be given to convict.] 3 [(v) In such cases in which life sentence has been awarded by specifying that the convict shall not be released by granting remission or commutation till he completes a fixed term of 20 years or 25 years or like, remission or commutation shall not be granted to a convict until he completes the fixed term as prescribed in the sentence.]"
32. To understand the mandate of Manual of 2012 to the Remission Board in the matter of consideration of the cases of premature release, Rule 478 is relevant and it guides the Board
2. Subs. by ibid
3. Ins. by Amdt. Notifn. No. 3194, dated 26.5.2016. Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 24/33 with regard to the considerations required to be given to the proposals coming before the Board for grant of premature release.
Rules 478 of Manual of 2012 reads as under:-
"478. While considering the case of premature release of a particular prisoner the Board shall keep in view the general principles of remission of sentences, as laid down by the State Government or by the courts, as also the earlier precedents in the matter. The paramount consideration before the Board being the welfare of the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his/her release. The Board shall take into account the circumstances in which the offence was committed by the prisoner; whether he/she has the propensity to commit similar or other offences again; socio-economic condition of the convict's family and possibility of further violence or offence on his/her release, progress in victim reconciliation programmes and chances of reclaiming the convict as a useful member of the society."
33. From the aforementioned two provisions, it would appear that in the substituted Manual of 2012, under Rule 481(i)
(a) there is nothing like 'etc.' or 'vkfn' which was present in clause (iv)(d) of the Remission Notification dated 10.12.2002. It is this 'etc.' under the said clause which is the bone of contention. Even as it is not the case of the State that on earlier occasion, the cases of convicts under Section 364A IPC have not been considered for premature release and the release were not granted to them, in the present case, the Remission Board is looking to take shelter under clause (iv) (d) of the Notification Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 25/33 dated 10.12.2002 to bring the case of the petitioner under exception clause. The fact remains that in the impugned decision of the Board, there is no discussion in this regard and the only word which is stated in the decision is that the case of the petitioner has been rejected under clause (iv) (d) of the Notification dated 10.12.2002. The minute of the meeting dated 23.12.2020 rejecting the proposal of the petitioner is as under:-
"fnukad&23-12-2020 dks vij eq[; lfpo] x`g foHkkx dh v/;{krk esa vk;ksftr ÞjkT; n.Mkns"k ifjgkj i"kZnß dh cSBd dh dk;Zokgh%& 1- Jh lqfuy nRr feJk] ftyk ,oa l= U;k;k/kh"k] iVukA 2- Jh ih0lh0 pkS/kjh] lfpo&lg&fof/k ijke"khZ fof/k foHkkx] fcgkj] iVukA 3- Jh ,0ds0 tSu] iqfyl egkfujh{kd ¼vk/kqfudhdj.k½] fcgkj] iVukA 4-Jh fefFkys"k feJ] egkfufj{kd] dkjk ,oa lq/kkj lsok, ¡ fujh{k.kky; fcgkj] iVukA 5- Jh fy;ksukMZ frdhZ] funs"kd] ifjoh{kk lsok,¡] dkjk ,oa lq/kkj lsok,¡ fujh{k.kky;] fcgkj] iVukA dk;Zokgh%& vkthou dkjkokl ds ltkizkIr cafn;ksa ds vle; dkjkeqfDr gsrq jkT; n.Mkns"k ifjgkj i'kZn~ dh cSBd vij eq[; lfpo] x`g foHkkx&lg&v/;{k jkT; n.Mkns"k ifjgkj i'kZn dh v/;{krk esa vk;ksftr dh xbZ] ftlesa ekuuh; mPp U;k;ky;] iVuk esa nk;j oknksa esa ikfjr U;k;kns"k ls vkPNkfnr&10 izLrko ,oa vU;&56 izLrkoksa lfgr dqy&68 le;iw.kZ fjgkbZ ds izLrkoksa dks izLrqr fd;k x;kA ekuuh; mPp U;k;ky;] iVuk ds }kjk ikfjr U;k;kns"k ls vkPNkfnr ekeyk fuEuor~ gS%&
(i) Cr.W.J.C. No-3602/2020 iapw cgjnkj cuke fcgkj jkT; ,oa vU;
(ii) Cr.W.J.C. No-92/2020 mes"k yksgkj mQZ mes"k feL=h cuke~ fcgkj jkT; ,oa vU;
(iii) Cr.W.J.C. No-2757/2017 yyu >k cuke~ fcgkj jkT;
,oa vU;
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 26/33
(iv)Cr.W.J.C. No-1755/2018 mek"kadj frokjh ,oa vU; cuke~ fcgkj jkT; ,oa vU;
(v)Cr.W.J.C. No-42/2018 cqVu ikloku cuke~ fcgkj jkT; ,oa vU;
(vi)Cr.W.J.C. No-198/2020 xtefr nsoh cuke~ fcgkj jkT; ,oa vU;
(vii)Cr.W.J.C. No-113/2020 jkenso izlkn ;kno cuke~ fcgkj jkT; ,oa vU;
2- cSBd esa loZizFke vkthou dkjkokl ds ltkizkIr canh dh eqfDr ds fof/k foHkkx ds i=kad&550 fnukad&21-01-1984 }kjk fuxZr vuqns"k rFkk foHkkxh; vf/klwpuk la[;k&31 fnukad&10-12-2002 esa fu/kkZfjr ekin.Mksa dh leh{kk dh xbZA lkFk gh] Cr.W.J.C. No-1053/2016 jkeujs"k jk; cuke~ fcgkj jkT; ,oa vU; esa ekuuh; mPp U;k;ky;] iVuk ds } kjk fnukad&+ 21-11-2015 dks ikfjr U;k;kns"k ds vkyksd esa fopkj.k ;ksX; ltkizkIr cafn;ksa dh nks'k flf) dh frfFk ds vk/kkj ij fopkj fd;k x;kA blds vfrfjDr Cr.W.J.C. No- 1288/20 jkepUnz flag cuke~ fcgkj jkT; ,oa vU;] Cr.W.J.C. No- 1245/2016 jkek/kkj flag cuke~ fcgkj jkT; ,oa vU;] Cr.W.J.C. No- 272/2017 jfoizrki feJ cuke~ fcgkj jkT; ,oa vU; Cr.W.J.C. No- 953/2016 uxhuk jk; cuke~ fcgkj jkT; ,oa vU; rFkk Cr.W.J.C. No- 1149/2017 "ks[k gk:.k cuke~ fcgkj jkT; ,oa vU; esa ekuuh; mPp U;k;ky; }kjk ikfjr U;k;kns"k@vuqns"k dk vuqikyu fd;k x;kA rn~vkyksd esa foHkkxh; lfefr }kjk fuxZr vuqns"kksa ds vkyksd esa gh dkjkeqfDr gsrq fopkj fd;k tkuk gS foHkkxh; vf/klwpuk la[;k&3194 fnukad&26-05-2018 }kjk fu/kkZfjr uhfr izLrqr ekeyksa esa ykxw ughs gksxhA 3- pw¡fd mijksDr ekeys ls lacaf/kr vfHk;qDr dh ltk W.P. (Crl) No- 48/2014 ;wfu;u vkWQ bafM;k cuke~ oh0 Jhgj.k mQZ eq:xu esa ekuuh; loksZPp U;k;ky; }kjk ikfjr U;k;kns"k ds vkyksd esa l`ftr foHkkxh; vf/klwpuk la[;k&3194 fnukad&26-05-2018 ds iwoZ gqbZ gS] rn~uqlkj fof/k foHkkx ds i=kad&550 fnukad&21-01-1984 }kjk fuxZr vuqns"k rFkk ¼fo"ks'k½ foHkkx ds vf/klwpuk la[;k&3106 fnukad&10-12- 2002 ds vkyksd esa izLrqr lHkh 66 ekeyksa ij fopkj fd;k x;k] vkSj lE;d~ leh{kksijkar loZlEefr ls fy;k x;k fu.kZ; ,oa vuq-+ -- fuEuor~ lkj.khc) gS%&"
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 27/33 1- lHkh izfrosnu vuqdwy A 2- x`g ¼fo"ks'k½ foHkkx] fcgkj dh vf/klwpuk la[;k 3106 fnukad 06-08-2020 10-12-2002 dh 912 11-08-2020 canh ds 09.10.202 dafMdk&¼iv½ ¼d½ esa iquZokl ,oa izko/kkfur gS fd oSls vthr dqekj lgk;d iqfyl 258 0 lkFkZd feJk v/kh{kd] iwohZ] 09-09-2020 canh tks cykRdkj] 3947 thou O;rhr fQjkSrh ds 09-10-2020 120B/34 is0& veksn STR- eqtQ¶jiqj ds mDr canh dks tsy 22-08-2020 , 57 feJk 183/03 43 26-10-2020 vuq"kalk ls djus dh eSuqvy ds fu;ekuqlkj fy, 14 o'kZ 02 20 o'kZ 00 22-10-2020 MdSrh] vkradoknh 15.06. dkjkeqfDr gsrq izoy vigj.k ekg 13 364A/34 08-07-2020 vijk/kksa] vkfn tSls fo"ks'k lger gksrs gq, le;iwoZ fjgkbZ esa bl ekg 00 fnu 2007 vuq"kaflr laHkkouk gSA ,oa gR;k fnu , 302/34, dsUnzh; dkjk] canh ds le; ls vr% le;iwoZ U;k;ky; dks dksbZ 201/34, vijk/kksa ds fl)nks'k Hkkxyiqj iwoZ fjgkbZ gsrq vkifRr ugha gSA canh gks] ,sls canh fjgkbZ mfpr IPC vuq"kalk dh tkrh gSA izrhr gksrk le; iwoZ fjgkbZ ds gSA fy, fopkj ;ksX; ugha gks ldsaxsA 4- rn~vkyksd esa vle; dkjk eqfDr dk izLrko vLohd`r fd;k tkrk gSA
34. At this stage, it is worth mentioning that recently once again Rule 481(i) (a) of the Manual of 2012 has been amended vide Notification No. 2894 dated 10.04.2023 published on 11.04.2023. By this amendment, the words "or murder of a public servant on duty" present in sub-clause (a) of clause (i) of Rule 481 has been omitted. Immediately, after omitting the said part, the benefit of liberal provision has been given to 27 life convicts and they have been released. This clearly establishes the fact that the Remission Board has given the benefit of the amended provision of Rule 481 to the life convicts who were otherwise covered under the exceptional category of the Remission Notification and the Remission Policy of the Government on the date of conviction and sentence. So far as this aspect is concerned, the judgment of the Hon'ble Supreme Court in the case of Jagdish Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 28/33 (supra) has held that the policy prevailing on the date of conviction would be applicable but at the same time, it was also recognised that if a more liberal policy exists on the date of consideration, the benefit should be provided. Recently in the case of Rajo @ Rajwa @ Rajendra Mandal Vs. The State of Bihar and others reported as 2023 INSC 771 (Writ Petition (Criminal) No(s). 252/2023), the Hon'ble Supreme Court has held in paragraph '23' of its judgment as under:-
"23. This court, on earlier occasion, had grappled with the situation of different remission policies/rules prevailing at different points of the convict's sentence - i.e., when the policy on the date of conviction, and on the date of consideration for premature release, are different. It has been held that the policy prevailing on the date of the conviction20, would be applicable. However, in Jagdish (supra) it was also recognised that if a more liberal policy exists on the date of consideration, the benefit should be provided: "43. [...] 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 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."
20 See State of Haryana v. Raj Kumar, (2021) 9 SCC 292 [para 16]. Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 29/33
35. This Court finds that on the date of consideration of the case of the petitioner on 23.12.2020, Rule 481 (i) (a) of the Manual of 2012 had already removed the difficulty, if any, in interpretation of the word 'etc.' or 'vkfn' which was occurring under clause (iv) (d) of the Remission Notification dated 10.12.2002. There was no scope for the Board to read a conviction under 364A IPC in the exception list either in clause (iv) (d) of the Remission Notification dated 10.12.2002 or under the substituted Manual of 2012. There were precedents also available before the Board showing that in other cases of convicts under Section 364A IPC, the Board had granted premature release. It is not the case of the Board that the conviction of this petitioner was for the offence under Section 364A IPC with pre-meditation of mind. The case of the petitioner has been rejected under clause (iv) (d) of the Remission Notification dated 10.12.2002 without appreciating that the ambiguity and vagueness in the word 'etc.' present in the said clause had already been removed in the Manual of 2012.
36. This Court, therefore, finds that the Remission Board has not only rejected the proposal for premature release of the petitioner without providing any cogent reason, the decision is also in the teeth of the judgments of the Hon'ble Supreme Court and this Court which were to be looked into as precedents. Rule 478 of Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 30/33 the Manual of 2012 clearly casts a duty upon the Board to keep in view the general principles of remission of sentences as laid down by the State Government or by the Courts, as also the earlier precedents in the matter and the paramount consideration before the Board being the welfare of the society at large, the Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police had not recommended his/her release. In this case even that ground was not available because all the authorities who had submitted their respective reports had recommended for premature release of the petitioner.
37. The impugned decision as contained in the minutes dated 23.12.2020 is, therefore, not sustainable. It is accordingly quashed and the matter is remitted to the Board for a fresh consideration of the proposal of the petitioner for premature release keeping in view the reports which have been taken note of hereinabove and the discussions made by this Court in this judgment citing precedents.
38. Let the entire exercise be completed within a period of two months from the date of receipt/communication of a copy of this order.
Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 31/33
39. For this purpose, it will be incumbent upon the Board to convene a meeting as early as possible and place this matter.
40. Before this Court would part with this judgment, this Court must express it's anguish/concern on the manner in which the Remission Board is rejecting the proposals for premature release. The Board is giving least attention to not only the provisions of the Manual of 2012 but also the judgment of the Courts. In one or two lines, the proposals are being rejected which do not indicate a proper judicious application of mind by the Board. The decision-making process of the Board must have potential to generate faith in the public at large. It is a high- powered body headed by the Home Secretary of the State, in absence of the Home Secretary, it is the Law Secretary-cum-Legal Remembrancer who will chair the meeting, Inspector General, Prisons and Correctional Services is the Member Secretary. The District and Sessions Judge nominated by the High Court, Inspector General of Police nominated by the Director General of Police and the Director Probation Services are the other members. They are learned people who are occupying the highest position in their respective services and that is why they have been conferred with huge responsibility to consider the cases of premature release. Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 32/33 The Law Secretary and the District and Sessions Judge are from the Superior Judicial services and they have been trained to examine the decisions taken by the executives as well as by its own court of law in the hierarchy of courts, therefore, their duty to ensure that the decision of the Board be well informed by reasons and in accordance with the statutory provisions as also the law laid down by the Hon'ble Supreme Court and the High Court is at greater echelon. This Court would expect that while all the members of the Board shall play significant role in the decision- making process, the Law Secretary and the District Sessions Judge must take upon themselves to ensure that the decisions to which they are parties are well-reasoned, supported by law and precedents. With these words and with due respect to each and every one in the Board, this Court would request them to rise to the occasion and take care of the spirit of our Constitution's vision in the light of which these provisions for grant of premature release are to be looked into.
41. This Court finds that the Hon'ble Supreme Court while parting with its' judgment in the case of Rajo @ Rajwa @ Rajendra Mandal (supra) has directed to mark a copy of this judgment by the Registry of this Court to the Home Secretary, Government of Bihar who is the Chairperson of the Remission Patna High Court CR. WJC No.1195 of 2021 dt.15-09-2023 33/33 Board as well as the concerned Presiding Judge through the Registrar, High Court of Judicature at Patna.
42. Let a copy of this judgment be sent to the Law Secretary-cum-Legal Remembrancer, Government of Bihar who will circulate it among all the Members of the Remission Board.
43. This writ application stands allowed.
(Rajeev Ranjan Prasad, J)
lekhi/avin/sushma
AFR/NAFR AFR
CAV DATE 01.09.2023
Uploading Date 15.09.2023
Transmission Date