Calcutta High Court (Appellete Side)
Anirudha Halder & Anr vs The State Of West Bengal on 29 March, 2023
Author: Bibek Chaudhuri
Bench: Bibek Chaudhuri
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
The Hon'ble JUSTICE BIBEK CHAUDHURI
C.R.R 4151 of 2022
Anirudha Halder & Anr.
Vs.
The State of West Bengal
For the Petitioners: Mr. Sudipto Moitra, Sr. Adv.,
Mr. Kartik Kumar Ray, Adv.
For the State: Mr. Ranabir Roy Chowdhury, Adv.
Mr. Sandip Chakrabarty, Adv.
Heard on: 11 January, 2023.
Judgment on: 29 March, 2023.
BIBEK CHAUDHURI, J. : -
1. This is an application under Section 482 of the Code of Criminal
Procedure read with Article 227 of the Constitution of India filed by two of
the life convicts for their premature release under Section 432 read with
Section 433 of the Code of Criminal Procedure.
2. In connection with Kultali P.S Case No.4(1) of 1985 37 persons were
placed on trial for committing offence punishable under Sections
147/148/324/302 of the IPC. The said case was finally registered as
Session Trial No.3(5) of 1993. On conclusion of trial, the learned
Additional Sessions Judge, Alipore by his judgment acquitted 58 persons
under Section 232 of the Code of Criminal Procedure and remaining 39
persons including the petitioners were placed on trial. The learned
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Sessions Judge found six persons including the present petitioners guilty
for committing offence punishable under Sections 302/149/323/148/149
of the IPC and acquitted remaining 33 accused persons. The said six
convicts preferred an appeal being CRA No.4 of 1998 before this Court.
State of West Bengal also preferred an appeal against the judgment and
order of acquittal being Govt. Appeal No.17 of 1999 both the appeals were
heard together and disposed by a common judgment dated 28th July,
2005. This Court found five persons guilty of offence including the
petitioners and other persons were acquitted and appeal against them
stood dismissed. It is contended on behalf of the petitioners that they are
in custody since 2005 at present the petitioner No.1 is aged about 74
years and the petitioner No.2 is aged about 84 years. The said two
persons have no criminal antecedents excepting the present case. They
were implicated in the case as they were the active supporters of a
particular political party. It is also stated on behalf of the petitioners that
due to the old age the petitioner No.1 is suffering from various aliments
like Asthama, COPD etc. He was a member of the Panchyat Samity at
Kultali at the relevant point of time. Petitioner No.2 was the headmaster of
a local High School and obtained Post Graduate Degree in History from
the Calcutta University. While in custody, the petitioner No.2 carried on
his academic activities from the correctional home and obtained Master
Degree in English from the Calcutta University. He was also entrusted to
teach other convicts in the correctional home. It is further stated by the
petitioners that out of 11 convicts, the authorities concerned, already
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released eight of them by invoking the jurisdiction under Section 432 read
with Section 433 of the Code of Criminal Procedure and the corresponding
provisions under the West Bengal Jail Court. Only the petitioners are
languishing in jail for about 18 years.
3. The petitioners made representations before the authorities for
premature release on 8th September, 2022. Previously their prayer was
favourably considered by the concerned Board, but they could not be
released by the appropriate government as the government did not receive
the opinion of the Presiding Judge of the court before or by which the
conviction was had or confirmed.
4. It is submitted by Mr. Moitra, learned Senior Counsel on behalf of
the petitioners that the petitioners are life convicts and they are in jail
custody for more than 17 years.
5. In Dharam Pal & Ors vs. State of U.P & Ors reported in (2013) 9
SCC 798, the Supreme Court directed the life convict to be released since
he had completed 14 years of imprisonment. The superintendent of the
concern jail was directed to release the person forthwith.
6. Section 432(2) of the Code of Criminal Procedure provides that
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 held 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
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the record of the trial or of such record thereof as exists. Thus, a judicial
scrutiny is contemplated in the provisions contained in Section 432(2) of
the Code and sufficient reasons are required to be provided so that the
appropriate government may not take any arbitrary decision with regard
to suspension or remission of sentence. I have already recorded that the
prayer of the petitioners have premature release was previously
considered favourably by the State Sentence Review Board of the
Government of West Bengal but they should not be released by the
appropriate government as the government did not receive the opinion of
the Presiding Judge of the court before or by which the conviction was
held or confirmed. It is urged by Mr. Moitra, learned Senior Counsel on
behalf of the petitioners that recently this Court considered the issue in
WPA 17248 of 2021. In the aforesaid case State Sentence Review Board
refused a prayer for remission of sentence and premature release of a
person who was suffering sentence for about 17 years. A Coordinate
Bench of this Court was pleased to hold:-
"36. In the present case, it is also to be noted, the SSRB was
not composed of the exact officers contemplated in the
guidelines of the NHRC, which is cited by the State itself.
Whereas a District and Session Judge nominated by the High
Court is absent, no reference was even made to a court within
the contemplation of Section 432(2) of the Cr.P.C., although the
Division Bench, while remanding the matter, specifically
directed Section 432 to be considered in its entirety and not
sans sub-section (2) thereof."
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7. Thus, the constitutional court held that there are overwhelming
materials on record unerringly indicating towards remission of the
petitioner, there is no justifiable cause to violate the petitioner's right of
equality as enshrined in Article 14 of the Constitution of India in
discriminating against the petitioner to refuse such remission. Since the
respondents, including the SSRB (which was not validly constituted as
per the NHRC guidelines), shirked their responsibility to adhere to the law and relevant criteria, further remand would unnecessarily rob the petitioner of his personal liberty for a further inordinate period, for which this Court cannot be pardoned by its own judicial conscience.
8. In the instant case SSRB recommended premature release of the petitioners. Further they could not be released in view of the fact that SSRB did not have the opinion of sentencing or confirming court under Section 432(2) of the Code. It is already observed that Section 342(2) prescribes for opinion of the Presiding Judge of the court before or by which the conviction was held or confirmed. In the instant case the opinion of the Presiding Judge is not available. Sentence of the petitioners was confirmed by the High Court at Calcutta.
9. This Court has carefully gone through the judgment passed by this Court in CRA 4 of 1998 with Government Appeal No.17 of 1999 disposed of by a common judgment of 28th July, 2005.
10. On perusal of the judgment passed by this Court in appeal it is found that the entire case was based on circumstantial evidence. The petitioners are presently aged about 73 years and 84 years respectively. 6 There is no reason in favour of petitioners' prayer for refusal of premature release. At the fag end of life they will get mental peace if they are allowed to lead last few years of their life with their family members.
11. In view of such circumstances, the instant revision is allowed.
12. A copy of this order be sent immediately to the Principal Secretary Department of Home Affairs, Government of West Bengal.
13. The Principal Secretary, Home Affairs is requested to convene a meeting of SSRB within a fortnight from the date of communication of this order and pass formal order of release of the present petitioners.
14. The instant revision is, thus, disposed of.
(Bibek Chaudhuri, J.)