Gauhati High Court
Studio Nilima Collaborative Network ... vs The State Of Assam And 3 Ors on 7 December, 2020
Author: Manish Choudhury
Bench: Manish Choudhury
Page No.# 1/7
GAHC010092932020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2805/2020
STUDIO NILIMA COLLABORATIVE NETWORK FOR RESEARCH AND
CAPACITY BUILDING
C1, DAMAYANTI MANSION, SATYA BORA LANE, DIGHALIPUKHURI EAST
GUWAHATI-781001, DIST. KAMRUP (M), REP. BY ITS CO-FOUNDER AND
DIRECTOR MS. ABANTEE DUTTA R/O. 1A, DAMAYANTI MANSION, SATYA
BORA LANE, DIGHALIPUKHURI EAST, GUWAHATI-781001, ASSAM.
VERSUS
THE STATE OF ASSAM AND 3 ORS.
REP. BY THE CHIEF SECRETARY TO THE GOVT. OF ASSAM, HOME AND
POLITICAL DEPTT., DISPUR, GUWAHATI-06.
2:THE INSPECTOR GENERAL OF PRISONS
ASSAM
ASSAM PRISON HEADQUARTERS
KHANAPARA
GUWAHATI-781022
ASSAM.
3:SUPDT. OF JAIL
MORIGAON DISTRICT JAIL
MORIGAON-782104.
4:ASSAM STATE LEGAL SERVICE AUTHORITY
REP. BY ITS MEMBER SECRETARY
ADJACENT TO GAUHATI HIGH COURT NEW BLOCK
GUWAHATI-781001
Page No.# 2/7
Advocate for the Petitioner : MRS. R S CHOWDHURY
Advocate for the Respondent : GA, ASSAM
BEFORE
HONOURABLE MR. JUSTICE MANISH CHOUDHURY
ORDER
Date : 07-12-2020 Heard Ms. R.S. Choudhury, learned counsel for the petitioner and Ms. M. Bhattacharjee, learned Additional Senior Government Advocate for all the respondents.
2. This writ petition under Article 226 of the Constitution of India has been filed by the writ petitioner, a registered society espousing the cause of a life convict viz. Md. Abdul Jabbar @ Md. Abdul Zabbar (hereinafter referred to as 'the inmate', for the sake of convenience), who is presently serving his sentences in Morigaon District Jail pursuant to his conviction.
3. The facts averred in the writ petition, in brief, are, inter alia, to the effect that the inmate was initially charged for offences punishable under Sections 302/34, 364A/34 and Sections 201/34 of the Indian Penal Code. After being charge sheeted, he was sent up for trial and accordingly, Sessions Case no. 56/2006 was registered. By judgment and order dated 21.07.2008, the learned Sessions Judge, Morigaon convicted him for offences under Sections 302/34, IPC; Sections 364A/34, IPC; and Sections 201/34, IPC. The inmate was sentenced (i) to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo imprisonment for further 6 (six) months under Sections 302/34, IPC; (ii) to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, in default of payment of fine, to undergo further imprisonment for 6 (six) months under Sections 364A/34, IPC; and (iii) to undergo rigorous imprisonment for 3 (three) years and to pay a fine of Rs. 500/-, in default to payment of fine, to undergo imprisonment for further 15 (fifteen) days under Sections 201/34, IPC. Against the said judgment and order dated 21.07.2008, the inmate preferred an appeal from jail before this Court which was registered as Criminal Appeal no. 182/2008 and the same was dismissed by judgment and Page No.# 3/7 order dated 21.02.2014. Thereafter, the inmate preferred an appeal before the Hon'ble Supreme Court of India and the same was registered as SLP (Crl.) Dairy No. 22294/2017. But the Hon'ble Supreme Court of India also, by order dated 03.11.2017, had dismissed the Special Leave Petition.
4. From the affidavit-in-opposition of the respondent no. 2, it has further emerged that the inmate has also been convicted in another Sessions triable case being Sessions Case no. 107/2006, by a judgment and order dated 30.09.2011 along with 3 (three) other accused persons and the inmate was sentenced (i) to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/- under Section 364A, IPC; (ii) to undergo rigorous imprisonment for five years under Section 120B, IPC; (iii) to undergo rigorous imprisonment for five years under Section 121A, IPC and to pay a fine of Rs. 2,000/-; (iv) to undergo rigorous imprisonment for three years and to pay a fine of Rs. 2,000/- under Section 25(i)(a) of the Arms Act; (V) to undergo rigorous imprisonment for five years under Section 4 of the Explosive Substances Act; and (vi) to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/- under Section 5 of the Explosive Substances Act, with default stipulations. The parties have not brought to the notice of the Court as regards pendency of any appeal against the said judgment and order of conviction and sentence dated 30.09.2011.
5. Pursuant to such conviction, the inmate is undergoing, as per the Certificate of Imprisonment dated 10.03.2019 (Annexure-H1) issued by the Superintendent, District Jail, Morigaon, his sentences in Morigaon District jail since 26.02.2007 when he was initially arrested in connection with one of the aforesaid cases.
6. In this petition, the petitioner has pleaded that the inmate has undergone sentence for more than about 13 years till date. By referring to a medical certificate dated 23.08.2012 issued by the Gauhati Medical College and Hospital, annexed to the petition as Annexure-B, it has been submitted that the inmate has been diagnosed with Fascio Scapula Humeral Muscular Dystrophy (FSHD, for short) which is recognized as an instance of benchmark disability. According to the petitioner, FSHD is a generic muscular disorder characterized by muscle weakness in which the muscles of face, shoulder blades and upper arms are among Page No.# 4/7 the most affected. As a result of such medical condition, the inmate, according to the petitioner, has to be given proper medical treatment.
7. In support of such contention, the petitioner has also referred to the identity card issued by the District Social Welfare Officer, Morigaon in respect of persons with disabilities and in the identity card so issued in respect of the inmate (Annexure-D), it is mentioned that the inmate's disability is to the extent of 80%. As per Section 2(r) of the Rights of Persons with Disabilities Act, 2016 ("the Act", for short), "person with benchmark disability" means a person with not less than 40% of a specified disability where specified disability has not been defined in measurable terms and includes a person with disability where specified disability has been defined in measurable terms, as certified by the certifying authority. As per Section 2(zc) of the Act, "specified disability" means the disabilities as specified in the Schedule.
"Muscular dystrophy" from which the inmate is stated to be suffering, according to the petitioner, finds place at Clause 1A(d) in the Schedule. Section 38 of the said Act has provided for special provisions for persons with disabilities with high support needs. According to the petitioner, the inmate is in need of high support needs. It is the case of the petitioner that in view of such medical health condition of the inmate, the petitioner espousing the cause of the inmate, had submitted an application before the respondent authorities on 09.03.2020 with the prayer to cause an enquiry into the matter of the disabled inmate and based on the report of the inquiry, to grant compassionate release of the inmate in exercise of the powers under Article 161 of the Constitution of India. When no response has been received in respect of the said representation, the petitioner has approached this Court.
8. Pursuant to the issuance of notice, the respondent no. 2 has filed an affidavit-in- opposition on 12.10.2020 wherein it has been averred that no such application dated 09.03.2020 has been received at the end of the respondents. It has, however, been averred that the inmate, in view of his medical condition, is under constant supervision of the Medical and Health Officer of the District Jail, Morigaon and the inmate is being provided with the proper treatment as and when required. It has also been stated that the inmate has also been given treatment at Gauhati Medical College and Hospital on several occasions. The respondent no. 2 in its affidavit has also stated that the Medical and Health Officer, District Page No.# 5/7 Jail, Morigaon has reported that the degree of disability of the inmate is to the extent of 80%.
9. The said projection regarding providing medical treatment to the inmate has been disputed by the petitioner in the absence of any documentary evidence provided by the respondent authorities in support of such contention.
10. By that as it may, under Article 161 of the Constitution of India, the Governor of the State has the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. Part E of Chapter XXXII of the Code of Criminal Procedure, 1973 has also provided for suspension, remission and commutation of sentences.
11. Section 65 of the Assam Prisons Act, 2013 has provided for power of remission and the same reads as under :
65. (1) The State Government may, by rules made under this Act, provide for the grant of the following kinds of remission to an inmate under a sentence of imprisonment:
(a) ordinary remission as incentive for good conduct and work in prison; and
(b) special remission as reward for any special service rendered in prison :
Provided that the remission granted under the provisions of this sub-section shall be subject to withdrawal, forfeiture or revocation in accordance with rules made under this Act.
(2) The appropriate Government may, by general or special orders, grant state remission to the convicted inmates or any category of the convicted inmates on occasions of public importance or public rejoicings.
(3) Any convicted inmate sentenced to imprisonment for a term shall be entitled to be released from prison on his actual period of imprisonment undergone together with remission granted under sub-sections (1) and (2) being equal to such term, but such remission shall not entitle an inmate sentenced to imprisonment for life to be released without specific orders from the appropriate Government remitting his sentence of Page No.# 6/7 imprisonment for life.
12. As has been held in Laxman Naskar vs. Union of India and others, reported in (2000) 2 SCC 595, it is settled position of law that life sentence is nothing less than lifelong imprisonment and by earning remissions a life convict does not acquire a right to be released prematurely; but if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution and if according to the Government policy/instructions in force at the relevant time the life convict has already undergone the sentence for the period mentioned in the policy/instructions, then the only right which a life convict can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. When an authority is called upon to exercise its powers under Article 161 of the Constitution that will have to be done consistently with the legal position and the Government policy/instructions prevalent at that time.
13. Regarding such exercise of power of remission and the parameters required to be considered have been highlighted by the Hon'ble Supreme Court in Laxman Naskar (Life Convict) vs. State of West Bengal and another, reported in (2000) 7 SCC 626 in the context of the West Bengal Rules relating to premature release, as under :
"6. This Court also issued certain guidelines as to the basis on which a convict can be released prematurely and they are as under : (SCC p. 598, para 6)
(i) Whether the offence is an individual act of crime without affecting the society at large.
(ii) Whether there is any chance of future recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in committing crime.
(iv) Whether there is any fruitful purpose of confining this convict any more.
(v) Socio-economic condition of the convict's family."
Though the above observations were made in the context of the West Bengal Rules relating to premature release, the same are also relevant in the context of the case in hand Page No.# 7/7 and can also be considered as some of the guiding factors apart from what have been provided in rules of the State of Assam.
14. In the light of the aforesaid provisions of law and the guidelines regarding remission of sentence and notwithstanding the controversy regarding receipt or non-receipt of the representation dated 09.03.2020, since the petitioner has contended that the inmate has a right to prefer an application for remission of his sentence and it has also been agreed by the learned counsel for the parties, this Court considers it appropriate that the petitioner may file an application afresh in respect of the cause of the inmate along with all the supporting documents before the respondent no. 2 within a period of 1 (one) week from today along with a certified copy of this order and on receipt of such application, the respondent no. 2 shall forward the same to the Government along with the necessary reports within a period of 2 (two) weeks therefrom. The Government upon receipt of such application along with such report, shall consider the application in accordance with law keeping also in mind about the health condition of the inmate and after giving due consideration to the same, the competent authority in the Government shall pass a speaking order as expeditiously as possible, preferably within a period of 4 (four) weeks.
15. With the aforesaid observations and directions, the writ petition stands disposed of. It is, however, made clear that this Court has not recorded any observation on the merits of the case projected by the petitioner. The competent authority is to decide the application in accordance with its own merits. The order so passed shall also be communicated to the petitioner at its stated address.
JUDGE Comparing Assistant