Patna High Court - Orders
Sudisht Rai @ Sudist Ray vs The State Of Bihar Through The Chief ... on 9 April, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.938 of 2023
Arising Out of PS. Case No.-36 Year-1985 Thana- SAHEBGANJ District- Muzaffarpur
======================================================
Sudisht Rai @ Sudist Ray Son of Rupan Ray Resident of village - Madhopur
Hazari, P.S.- Sahebganj, District - Muzaffarpur.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
Bihar
2. The State Sentence Remission Board through the Principal Secretary, Home
Department, Govt. of Bihar Patna, Bihar.
3. The Joint Secretary-cum-Director (Administration), Home Department
(Prison), Bihar, Patna. Bihar
4. The Secretary, Law Department, Government of Bihar, Patna. Bihar
5. The Additional Director General of Police, Criminal Investigation
Department, Bihar, Patna. Bihar
6. The Inspector General, Jail and Reforms Services, Bihar, Patna. Bihar
7. The Assistant Inspector General, Jail and Reforms Services, Bihar, Patna.
Bihar
8. The Jail Superintendent, Khudi Ram Bose Central Jail, Muzaffarpur. Bihar
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Vijay Kumar Singh, Advocate
Mr. Abhinav Shandilya, Advocate
Mr. Santosh Kumar, Advocate
For the Respondent-State: Mr. Suman Kumar Jha, AC to AAG-3
Mr. P.N.Sharma, AC to A.G.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
8 09-04-2025The present petition has been listed before us pursuant to the administrative order passed by Hon'ble the Acting Chief Justice. The learned Single Judge framed three issues while not agreeing with the view taken by another learned Single Judge and thereafter observed that the records be placed Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 2/37 before Hon'ble the Acting Chief Justice for appropriate orders.
2. The learned Single Judge has referred the present matter to a Division Bench for answering the following issues: -
"(i) Whether the sub-clause (gha) of clause (iii) of the Notification dated 10.12.2002 issued by the Home (Special) Department, Government of Bihar by which Rule 529 of the then Bihar Jail Manual was substituted would cover the case of life convict who is serving sentence for committing an offence in which death is one of the punishments.
(ii) Whether a life convict whose case is covered under Section 433A Cr.P.C.
may be granted pre-mature release on any ground whatsoever provided by way of a rule made by the State Government in form of a subordinate piece of legislation.
(iii) Whether the petitioner may be allowed to raise his claim for pre-mature release on the basis of the judgment of the learned coordinate Bench of this Court in the case of Ram Khelawan Yadav considering the date of his conviction, even as his case is found covered under Section 433A Cr.P.C."
FACTUAL MATRIX: -
3. The petitioner was made an accused in Sahebganj Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 3/37 P.S. Case No. 36 of 1985 registered for committing an offence under Section 302 of the Indian Penal Code (IPC). It is the case of the petitioner that he was released on bail during the pendency of the trial. However, thereafter the learned Sessions Judge, Muzaffarpur, passed the judgment and order dated 24.08.1990 in Sessions Trial No. 51 of 1989, by which the petitioner has been convicted for committing the offence punishable under Section 302 of the IPC and he has been sentenced to undergo life imprisonment.
3.1. The petitioner challenged the said order by preferring an appeal being Criminal Appeal (D.B.) No. 370 of 1990. It is the case of the petitioner that during the pendency of the appeal also, he was on bail and the sentence imposed by the trial court was suspended. However, this Court vide judgment and order dated 04.09.2012 dismissed the appeal preferred by the petitioner and thereby affirmed the judgment and order passed by the trial court.
3.2. The petitioner thereafter challenged the orders passed by the trial court as well as this Court by preferring Special Leave Petition before the Hon'ble Supreme Court. Ultimately, S.L.P. (Criminal) Diary No. 9621 of 2019 preferred by the petitioner was dismissed on 13.09.2019. Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 4/37 3.3. It is the case of the petitioner that as an under- trial prisoner as well as after dismissal of the appeal of the petitioner, he has served more than 07 years of actual imprisonment. It is further case of the petitioner that he has completed 68 years of age and, therefore, in terms of the policy framed by the State Government, as contained in Notification No. 3106 dated 10.12.2002, he, having completed more than 65 years of age and 07 years in incarceration, would be entitled to be considered for premature release. It is also the case of the petitioner that on the request of the Jail Superintendent of Khudi Ram Bose Central Jail, Muzaffarpur, contained in Memo No. 4887 dated 30.05.2022 and letter dated 31.05.2022, the Medical Board assessed the age of the petitioner and found his age between 65-70 years.
3.4. The petitioner has, therefore, placed reliance upon Clause(iii)(d) of the Policy dated 10.12.2002 framed by the State Government for premature release by contending that, as per the said clause, a life convict is required to be released prematurely on completion of 65 years of age, if he has completed custody of 07 years with remission.
3.5. The petitioner has, therefore, preferred the present petition in which the petitioner has prayed for the following Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 5/37 reliefs: -
"(I) For issuance of an
appropriate writ in the nature of
MANDAMUS, commanding and directing
the Respondent Authorities to consider the case of the petitioner for grant of pre-mature release and release him in view of the provisions contained under clause (iii) (d) of Notification contained in Memo No. 3106 dated 10.12.2002 in connection with Sessions Trial No. 51 of 1989 arising out of Sahebganj P.S. Case No. 36 of 1985 wherein vide judgment and order dated 24.08.1990 the petitioner was convicted for life on the ground that now the petitioner had already attained the age of 68 years as also the petitioner had completed more than seven years of his physical incarceration.
(II) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be entitled under the facts and circumstances of the case."
3.6. Learned counsel for the petitioner as well as learned counsel for the respondent State have argued the matter before the learned Single Judge. Learned counsel for the petitioner has placed reliance upon various decisions rendered by the Hon'ble Supreme Court as well as the order dated Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 6/37 15.12.2021 passed by the learned Single Judge of this Court in the case of Khelawan Yadav versus the State of Bihar and Others (Cr.WJC No. 62 of 2021 decided on 15.12.2021). It was contended before the learned Single Judge in the present matter that in the case of Khelawan Yadav (supra), another learned Single Judge, relying upon the very same Clause and on similar fact, directed the Bihar State Sentence Remission Board (hereinafter referred to as the 'Remission Board') to take a decision with respect to the petitioner in terms of Rule 529 and it is the case of the present petitioner that direction issued in the case of Khelawan Yadav (supra) has been complied with by the respondents.
3.7. However, in the present case, learned Single Judge was not agreeable with the view taken by the learned Single Judge in the case of Khelawan Yadav (supra). Learned Single Judge in the present matter, after referring various provisions of Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), Rule 529 of Bihar Jail Manual, Rule 481 of Bihar Jail Manual, 2012 as well as other decisions rendered by the Hon'ble Supreme Court as well as this Court observed that the order passed by the learned Single Judge in the case of Khelawan Yadav (supra) is per incuriam and referred the Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 7/37 present petition to Division Bench for answering the aforesaid three issues.
4. We have heard Mr. Vijay Kumar Singh, learned counsel for the petitioner assisted by Mr. Abhinav Shandilya and Mr. Santosh Kumar, learned Advocates and Mr. Suman Kumar Jha, learned A.C. to AAG-3 and Mr. P.N. Sharma, learned A.C. to A.G. for the respondent-State.
SUBMISSIONS ON BEHALF OF THE
PETITIONER: -
5. Learned counsel for the petitioner would contend that the petitioner has remained in custody for 07 years and he is aged about 68 years and, therefore, as per Clause (iii)(d) of Memo No.3106 dated 10.12.2002, issued by the Department of Home (Special), Government of Bihar, in exercise of Powers conferred by Section 529 of the Prison Act, 1894, his claim for premature release is required to be placed before the Remission Board by concerned jail authorities and thereafter, the Remission Board is required to consider the case of the petitioner for premature release in terms of the aforesaid policy framed by the State Government. Learned counsel referred the aforesaid Clause and thereafter contended that it not necessary for the petitioner to make any application before the jail Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 8/37 authorities for placing his case before the Remission Board for premature release.
5.1. Learned counsel for the petitioner submits that as per the provisions contained in Article 161 of the Constitution of India, the Hon'ble Governor is also empowered to pass an order granting remission to the petitioner. However, in the present case, the State Government has not placed the case of the petitioner before the Hon'ble Governor for premature release of the petitioner. At this stage, learned counsel has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Union of India v. V. Sriharan (2016) 7 SCC 1 and more particularly paragraph 260 of the said judgment. Learned counsel has also placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana v. Raj Kumar, reported in (2021) 9 SCC 292.
5.2. Learned counsel for the petitioner would further submit that the policy framed by the Government in the year 2002 would be applicable to the case of the present petitioner and not the amended policy which has now been framed in the year 2012. It is further contended that, as per the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana v. Jagdish, reported in (2010) 4 SCC 216, the more Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 9/37 beneficial policy at the time of the passing of the order of conviction or at the time of consideration of the case for premature release is required to be considered. It is submitted that 2002 policy is more beneficial to the petitioner and, therefore, the said policy of 2002 would be applicable to the case of the petitioner.
5.3. Learned counsel also submitted that the Government of India, Ministry of Home Affairs, issued directions vide communication dated 10.06.2022 to the Principal Secretary(Home) of all the States and Union Territories as well as the D.G./I.G. (Prisons) of all the States for grant of special remission to the prisoners as part of the celebrations of Azadi Ka Amrit Mahotsav. Learned counsel submits that the benefit of the said policy is also required to be given to the present petitioner.
5.4. Learned counsel lastly contended that now the Model Prison Manual, 2016 has been issued by the Government of India, Ministry of Home Affairs, wherein also eligibility criteria for premature release have been prescribed. It is, therefore, urged that the benefit of the said Model Prison Manual be given to the petitioner.
SUBMISSIONS ON BEHALF OF THE Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 10/37 RESPONDENTS: -
6. Learned counsel for the respondent-State would mainly contend that the case of the petitioner would be covered under Sub-clause (a) of Clause (iii) of the Notification dated 10.12.2002. Learned counsel placed reliance upon the provisions contained in Section 433A of the Cr.P.C. and contended that as the petitioner has been convicted for committing offence punishable under Section 302 of the IPC, his case is covered under Section 433A of the Cr.P.C. and, therefore, the present petition itself is misconceived. He would further contend that learned counsel for the petitioner has not at all referred the powers of the Governor under Article 161 of the Constitution of India in the memo of petition nor the said point has been argued by him before the learned Single Judge. Even otherwise, as the petitioner has not completed 14 years of actual period of custody, his case cannot be placed before the Remission Board for premature release. Further, the case of the petitioner cannot be referred, at this stage, by the State Government before the Hon'ble Governor for consideration of the case of the petitioner under Article 161 of the Constitution of India.
6.1. Learned counsel for the respondents further Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 11/37 submitted that even the direction issued by the Home Affairs Department, Government of India, in communication dated 10.06.2022 for grant of special remission as a part of celebrations of Azadi Ka Amrit Mahotsav would also not be applicable to the case of the petitioner. Similarly, the case of the petitioner is also not covered under the Model Prison Manual, 2016.
6.2. Learned counsel for the respondents lastly contended that in the case of Khelawan Yadav (supra), the respondents' counsel could not place the relevant policy of the Government and there is no reference with regard to the submission of the respondent with respect to Section 433A of the Cr.P.C. Hence, correct law was not placed before the learned Single Judge in the case of Khelawan Yadav (supra) and, therefore, in the said case direction was issued to consider the case of the said petitioner.
6.3. Learned counsel for the respondents, therefore, urged that the present petition itself is misconceived.
DISCUSSION: -
7. We have considered the submissions canvassed by the learned Advocates appearing for the parties. We have gone through the materials placed on record, the order under Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 12/37 reference, relevant provisions of the Government Policies as well as the relevant provisions of law and the decisions rendered by the Hon'ble Supreme Court as well as by this Court.
7.1. The petitioner has filed the present petition with a prayer that respondents be directed to consider his case for premature release. Petitioner has been convicted for committing offence punishable under Section 302 of the IPC and he is in custody for 07 years. Petitioner is aged about 68 years. Petitioner has, therefore, claimed that his case falls under Clause
(iii)(d) of the Notification dated 10.12.2002. Petitioner has also placed reliance upon the order dated 15.12.2021 passed by another learned Single Judge in the case of Khelawan Yadav (supra), wherein in similar type of case, this Court directed the respondent authorities to consider the case of the said petitioner. However, learned Single Judge in the present case was not agreeable with the view taken by the learned Single Judge in the case of Khelawan Yadav (supra) and, therefore, the matter has been referred to the Division Bench for answering three issues.
7.2. At this stage, we would like to refer the relevant extract of the Notification dated 10.12.2002, which is reproduced hereinbelow: -
"Home (Special) Department Notification Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 13/37 The 10th December, 2002 No.K/Kara-Bibidh-63/2001- 3106-In exercise of powers conferred by Section 59 of the Prisons Act, 1894, the State Government makes the following amendments in the Bihar Jail Manual with immediate effect.-
Amendment Rule 529 of the Bihar Jail Manual shall be substituted by the following :-
"529 (i) Composition of the State Sentence Remission Board.
There shall be a Board known as "Bihar State Sentence Remission Board which shall consider cases of remission of the sentence awarded to a prisoner and recommend his premature release in appropriate cases. This Board shall be a permanent body and be constituted consisting of the following members :-
(1) Home Secretary
Chairman
(2) Law Secretary
Member
(3) Director and Session Judge
nominated by Patna High
Court.
(4) Director, Probation Services
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 14/37 Member (5) I.G Police, nominated by D.G.P. Member (6) I.G Prisons, Member Secretary.
The recommendation of this Board shall be invalid merely by reason of any vacancy in the Board or the inability of any Member to attend the meeting of the Board. The meeting of the Board shall not, however, be held if the quorum is not present. The quorum of the Board shall be with four members including the Chairman.
(iii) ELIGIBILITY FOR
PREMATURE RELEASE
Prisoners of the following
categories shall be eligible for
consideration for premature release by the State Remission Board:-
(a) Every convicted prisoner whether male or female, undergoing sentence of life imprisonment and covered by the provisions of Section 433 A of CrPC shall be eligible to considered for premature release immediately after serving the sentence of 14 years of actual imprisonment without the remission.
(b) All other convicted male prisoners undergoing the sentence of life Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 15/37 imprisonment shall be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission and after completion of 10 years actual imprisonment without remissions.
(c) All other convicted female prisoners undergoing the sentence of life imprisonment shall be considered for premature release after they have served atleast 10 years of imprisonment inclusive of remission and after completion of 7 years of actual imprisonment without remissions.
(d) Convicted prisoner
undergoing the sentence of life
imprisonment on attaining the age of 65 years provided he or she has served atleast 7 years of imprisonment including the remissions.
(e) The convicted prisoners undergoing the sentence or imprisonment for life and who are suffering from terminal diseases like cancer, aids, irreversible kidney failure, cardio respiratory disease, deadly and any other infectious disease as certified by a Board of Doctors, on completion of 5 years of actual sentence or 7 years of sentence including remissions.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 16/37
(iv) Ineligibility for premature release.
The following category of
convicted prisoners undergoing life
sentence may not be considered eligible premature release-
(a) Prisoners convicted of the heinous offences such as rape, dacoity, terrorist crimes etc.
(b) Prisoners who have been convicted for organized murdered in a premeditated manner and in an organized manner.
(c) Professional murderers who have been found guilty of murder by hiring.
(d) Convicted prisoners, who commit murder while involving in smuggling operations or who are guilty of murderer of public servants on duty."
7.3. At this stage, it is pertinent to note that in exercise of power conferred by Section 59 of the Prisons Act, 1894, the Government of Bihar has framed the Manual of 2012 in supersession of the fist Jail Manual. Chapter 15 of 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 for the purposes of premature release. This part Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 17/37 provide for constitution of Remission Board, the meetings of the Board, the provisions for dealing with the proposal for premature release, category of prisoners who shall be eligible for release by the Board and the categories of the prisoners covered under Section 433A of the Cr.P.C. in the exception list.
7.4. Categories of convicts covered under Section 433A of the Cr.P.C. have been substituted vide Notification No. 3194 dated 26.05.2016. Rule 481 of the Manual of 2012 provides as under: -
"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:] Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 18/37 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 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 Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 19/37 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.]"
7.5. Thus, from the comparison of the aforesaid policies of the State Government under Notification dated 10.12.2002 and Rule 481 of the Manual of 2012, it would reveal that clause (iii) (d) of Policy of 2002 did not find place in the new Policy of premature release.
7.6. Now, at this stage, we would like to refer the provisions contained in Section 432, 433 and 433A of the Cr.P.C., which provides as under: -
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 20/37 "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 Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 21/37 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.
(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 Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 22/37 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 sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
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, for fine.
1[433A. Restriction on powers of remission or commutation in certain cases.
--Notwithstanding anything contained in Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 23/37 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 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.]"
7.7. From the aforesaid provisions contained in Cr.P.C., it would reveal that Section 432 of the Cr.P.C. deals with the power to suspend or to remit the sentence, whereas Section 433 of the Cr.P.C. provides the power of appropriate Government to commute the sentence of a prisoner. However, Section 433A of the Cr.P.C. imposes restriction on powers of remission or commutation in certain cases. A bare reading of Section 433A of the Cr.P.C. would suggest that it starts with a non obstante clause. It specifically provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison, unless he had served at least fourteen years of Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 24/37 imprisonment.
7.8. In the present case, it is not in dispute that the petitioner has been convicted for committing offence punishable under Section 302 of the IPC. The trial court has imposed the sentence of life upon the petitioner. However, under Section 302 of the IPC, one of the punishments provided is death sentence.
Thus, we are of the view that the case of the present petitioner falls under Section 433A of the Cr.P.C.
7.9. Now, we would like to deal with the submissions canvassed by learned counsel for the petitioner that as the petitioner has attained the age of 65 years and he has actually served the sentence of 07 years, his case would fall under clause
(iii)(d) of Notification dated 10.12.2002 issued by the Government of Bihar.
7.10. We have already reproduced the relevant extract of the policy dated 10.12.2002 of the State Government with regard to the premature release of the convicts. Clause (iii) (a) talks about every convict person, whether male or female, who is undergoing sentence of life imprisonment covered by the provisions of Section 433A of the Cr.P.C., for which convict, his case for premature release can be considered after serving sentence of 14 years of actual imprisonment without remission. Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 25/37 We are of the view that Clause (iii)(a) is in consonance with Section 433A of the Cr.P.C.
7.11. So far as Clause (iii)(b) is concerned, the same would be applicable to all other convict male prisoners that is not covered under Section 433A of the Cr.P.C., who are undergoing sentence of life imprisonment. Cases of such convict male prisoners for premature release can be considered after completion of 10 years of actual imprisonment. We are of the view that the words 'sentence of life imprisonment' used in sub- clause (b) of Clause (iii) covers such cases where death sentence is not one of the punishments prescribed for such offences, e.g., if a male is convicted for committing an offence punishable under Sections 194 or 222 or 238 or 304 or 304B or 326 or 412 or 467 etc. of the IPC, where the punishment prescribed is life imprisonment, such type of convict male prisoners can be released prematurely after completion of 10 years' actual imprisonment. At this stage, it is also relevant to observe that there is no age criteria mentioned in sub-clause (b) with regard to such prisoners.
7.12. So far as Clause (iii)(c) of the aforesaid policy is concerned, it would cover the cases of convicted female prisoners, who are not covered under Clause (iii)(a) of the Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 26/37 Policy. Such female prisoners undergoing sentence of life imprisonment shall be considered for premature release after completion of 07 years of actual imprisonment without remission, e.g., female convict, who is undergoing sentence of life imprisonment for committing offences punishable under Sections 194 or 222 or 238 or 304 or 304B or 326 or 412 or 467 etc. of the IPC. Thus, so far as such female prisoners are concerned, their case can be considered after completion of 07 years of actual imprisonment. Here also, there is no age criteria mentioned in sub-clause (c).
7.13. Now, we are concerned with Clause (iii)(d) of the aforesaid policy and upon which reliance has been placed by the petitioner. We are of the view that sub-clause (d) covers such cases where convicted prisoner, either male or female, is undergoing sentence of life imprisonment for committing offences punishable such as under Sections 194 or 222 or 238 or 304 or 304B or 326 or 412 or 467 etc. of the IPC. Such convict, if he/she has attained the age of 65 years and he/she has served at least 07 years of imprisonment including remission, benefit of premature release can be provided to such convicts. Thus, we are of the view that sub-clause (d) would be applicable to the cases where the prisoner is convicted for committing the offence Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 27/37 where death sentence is not one of the punishments prescribed and where the punishment prescribed for committing such offence is life imprisonment, then on attaining the age of 65 years any male or female convict, who has served 07 years of imprisonment including remission can be considered for premature release.
7.14. If the interpretation put forward by the petitioner with regard to Clause (iii)(d) of the Notification dated 10.12.2002 is accepted, then Clause (iii)(a) of the said Notification would become redundant. It is also required to be observed at this stage that Bihar Prison Manual is a piece of subordinate legislation and the State Government has issued the Notification dated 10.12.2002 while exercising powers under the said Manual, however, the same cannot override the provisions contained in Section 433A of the Cr.P.C.
7.15. Now, the State Government has introduced a new policy under Rule 481 of the Manual of 2012. We have already reproduced the aforesaid provision. If we carefully go through the new policy contained in Rule 481 of the Manual of 2012, it transpires that there is no similar provision like Clause
(iii)(d) of Notification dated 10.12.2002. In other words, Rule 529, which was substituted by Notification dated 10.12.2002 Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 28/37 being a part of earlier Jail Manual, which stood superseded on coming into force of the Manual of 2012, is no longer an eligibility criteria for seeking premature release.
7.16. At this stage, we would like to refer the decision rendered by the Hon'ble Supreme Court in the case of State of Haryana v. Jagdish (supra), wherein the Hon'ble Supreme Court has observed in paragraph 54 as under: -
"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 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."
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 29/37 7.17. In the case of Rajo @ Rajwa @ Rajendra Mandal Vs. the State of Bihar and others reported in 2023 INSC 771 (Writ Petition (Criminal) No(s). 252/2023), the Hon'ble Supreme Court has taken note of the views expressed in the case of State of Haryana v. Jagdish (supra), wherein it has been observed that if a liberal policy prevails on the date of consideration of the case of a "lifer" for premature release, he should be given benefit thereof. Paragraph 27 of the said judgment reads as under:-
"27. 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 conviction, would be applicable. However, in Jagdish (supra) it was also recognized that if a more liberal policy exists on the date of consideration, the benefit should be provided........"
7.18. From the aforesaid two decisions rendered by Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 30/37 the Hon'ble Supreme Court, it can be said that if a more liberal policy exists on the date of consideration of the case of a 'lifer' for premature release, he should be given benefit thereof. In the present case, according to the petitioner, Policy of 2002 for premature release would be more liberal and beneficial to the petitioner and, therefore, he has placed reliance upon the said Policy.
7.19. We have gone through the order dated 15.12.2021 passed by a learned Single Judge of this Court in the case of Khelawan Yadav (supra), we are of the view that in the said order, the learned Single Judge has mainly considered the amended Rule 529 of Bihar Jail Manual. There is no reference with regard to consideration of Clause (iii)(a) of the aforesaid Notification dated 10.12.2002 nor there is any reference with regard to the provisions contained in Section 433A of the Cr.P.C. Thus, correct provision of law was not brought to the notice of the learned Single Judge in the case of Khelawan Yadav (supra). We are, therefore, of the view that the said decision can be termed as per incuriam.
7.20. Now, we would like to deal with another submission canvassed by learned counsel for the petitioner, i.e., the powers of the Hon'ble Governor under Article 161 of the Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 31/37 Constitution of India. We have gone through the memo of the present petition and also the order passed by the learned Single Judge by which the matter has been referred to this Bench. It appears from the records that the aforesaid contention has not been taken by learned counsel for the petitioner before the learned Single Judge. We are of the view that three issues have been referred to this Bench. Thus, at this stage it is required to be considered by us whether the new point, which has been argued by the learned counsel for the petitioner in the present reference, can be decided by this Bench or not.
7.21. At this stage, we would like to refer to the decision rendered by the Hon'ble Supreme Court in the case of Kerala State Science & Technology Museum v. Rambal Co. reported in (2006) 6 SCC 258. Hon'ble Supreme Court has observed in paragraph 8 as under: -
"8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 32/37 7.22. In the case of State of Punjab v. Salil Sabhlok reported in (2013) 5 SCC 1, the Hon'ble Supreme Court has observed in paragraphs 137 to 140 as under: -
"137. The learned counsel supporting the appointment of Mr Dhanda submitted that the Full Bench could not expand the scope of the reference made to it by the Division Bench, nor could it frame additional questions.
138. Generally speaking, they are right in their contention, but it also depends on the reference made.
139. The law on the subject has crystallized through a long line of decisions and it need not be reiterated again and again:
139.1. The decisions include Kesho Nath Khurana v. Union of India [1981 Supp SCC 38 : 1981 SCC (Cri) 674] : (SCC p. 39, para 1) "1. ... The Division Bench ought to have sent the appeal back to the Single Judge with the answer rendered by them to the question referred by the Single Judge and left it to the Single Judge to dispose of the second appeal according to law."
139.2.Kerala State Science & Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 33/37 Technology Museum v. Rambal Co. [(2006) 6 SCC 258] : (SCC p. 262, para 8) "8. It is fairly well settled that when reference is made on a specific issue either by a learned Single Judge or Division Bench to a larger Bench i.e. Division Bench or Full Bench or Constitution Bench, as the case may be, the larger Bench cannot adjudicate upon an issue which is not the question referred to."
139.3.T.A.Hameed v. M.Viswanath an [(2008) 3 SCC 243] : (SCC p. 245, para
12) "12. ... Since, only reference was made to the Full Bench, the Full Bench should have answered the question referred to it and remitted the matter to the Division Bench for deciding the revision petition on merits."
139.4. And more recently, Saquib Abdul Hameed Nachan v. State of Maharashtra [(2010) 9 SCC 93 : (2010) 3 SCC (Cri) 1146] : (SCC p. 102, para 15) "15. ... Normally, after answering the reference by the larger Bench, it is for the Reference Court to decide the issue on merits on the basis of the Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 34/37 answers given by the larger Bench."
140. There is no bar shown whereby a Bench is precluded from referring the entire case for decision by a larger Bench--it depends entirely on the reference made. In any event, that issue does not arise in this appeal and so nothing more need be said on the subject."
7.23. Thus, from the aforesaid decisions rendered by the Hon'ble Supreme Court, it can be said that when reference is made on specific issue either by learned Single Judge or by the Division Bench to a Larger Bench, the Larger Bench cannot adjudicate upon an issue which is not the question referred to. Further, after answering the reference by the Larger Bench, it was the reference Bench to decide the merits on the answers given by the Larger Bench. Accordingly, we are of the view that when learned counsel for the petitioner has not argued the point with regard to power of the Hon'ble Governor under Article 161 of the Constitution of India before the learned Single Judge and the learned Single Judge has not referred the said issue to the Larger Bench, it is not open for us to discuss on the said issue and give a finding on the same. Thus, in the present reference, we would like to deal with the issues, which are referred to this Bench.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 35/37 7.24. Learned counsel for the petitioner has also placed reliance upon the instructions issued by the Government of India, Ministry of Home Affairs vide communication dated 10.06.2022, wherein there is reference of grant of special remission to the prisoners as a part of celebrations of Azadi Ka Amrit Mahotsav. However, Clause 5 of the said policy/communication also provides that special remission is not to be granted to certain categories of convicts and Clause 5(i) specifically provides that the persons convicted with death sentence or where death sentence has been commuted to life imprisonment or persons convicted for an offence for which punishment of death has been specified as one of the punishments. We are also of the view that this factual aspect was not argued by the learned counsel for the petitioner before the learned Single Judge. Thus, it is not open for us in the present reference to consider the said issue, when the same is not referred to us.
7.25. Similarly, learned counsel for the petitioner has also placed reliance upon the Model Prison Manual, 2016. However, since the said issue was not argued before the learned Single Judge, we are of the view that it is not open for us in the present reference to consider the said issue as the same has not Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 36/37 been referred to the Larger Bench.
ANSWER TO THE ISSUES REFERRED: -
8. In view of the aforesaid discussion, our answer to the issue referred are as under: -
(i) Sub-clause (gha) of Clause (iii) [sub-clause (d) of Clause (iii)] of the Notification dated 10.12.2002 issued by the Home (Special) Department, Government of Bihar, by which Rule 529 of the then Bihar Jail Manual was substituted would not cover the case of the life convict who is serving sentence for committing an offence in which death is one of the punishments.
(ii) Rule framed by the State Government in the form of subordinate piece of legislation granting benefit of premature release cannot override the provisions contained in Section 433A of the Cr.P.C. Thus, a life convict, whose case is covered under Section 433A of the Cr.P.C., cannot be granted premature release on any ground whatsoever provided by way of a rule made by the State Government in the form of a subordinate piece of legislation.
(iii) The claim of the petitioner for his premature release on the basis of the judgment delivered by a learned Single Judge in the case of Khelawan Yadav (supra) cannot be allowed as the said decision can be terms as per incuriam.
9. The reference stands answered accordingly and the Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025 37/37 matter is remitted back to the learned Single Judge for deciding the matter on its own merits.
(Vipul M. Pancholi, J) Alok Kumar Pandey, J: I agree.
(Alok Kumar Pandey, J) Pawan/-
U