Calcutta High Court (Appellete Side)
The State Of West Bengal And Ors vs Md. Khalid on 13 May, 2024
Author: Hiranmay Bhattacharyya
Bench: Hiranmay Bhattacharyya
13.05.2024
Item No.3
gd/ssd
MAT/861/2024
IA NO: CAN/1/2024
The State Of West Bengal and Ors.
VS
Md. Khalid
Mr. Kishore Datta, ld. Advocate General,
Md. T.M. Siddiqui,
Ms. Amrita Panja Moulick
..for the Appellants.
Ms. Somali Mukhopadhyay
..for the Respondent.
1. This appeal by the State is directed against the order dated 9th April, 2024 in WPA 2337 of 2024.
2. The respondent/writ petitioner is a convict prisoner involved in the bomb blast case in which 69 people died and several buildings were damaged. He along with other accused have been convicted for life and the decision of the TADA Court has been affirmed in appeal.
3. The legal question which is involved in this appeal is whether the writ petitioner has a vested right for seeking premature release. This, of course, has been answered in certain decisions holding that there is no fundamental or vested right in a convict prisoner to seek for premature release.
4. Thus, we are required to consider the matter largely based on four Enactments, namely, The Code of Criminal Procedure and particularly under 2 Section 433, The Prisoners Act, a Central Enactment, The West Bengal Correctional Services Act, 1992 and The West Bengal Jail Code with particular reference to Rule 591. The State Sentence Review Board in its meeting held on 9th October, 2023 considered the report submitted by the Superintendent, Midnapore Central Correctional Home as well as the Chief Probation-cum-After Care Officer who had recommended premature release took note of the other attendant circumstances and observed that there is still apprehension about the potentiality of the life convict (writ petitioner) and considering his antecedents and associations and after all the nature of crime all members of the Board unanimously agreed not to recommend premature release of the respondent/writ petitioner.
5. The Government of West Bengal has by Memorandum dated 13th September, 1999 has framed guidelines to be followed for considering the case of premature release of life convicts. Among other things the Guidelines states that the Judicial Department will review the report given by the concerned D.M./S.P./Superintendent of Jails and submit notes to the Minister in-Charge of Judicial Department after considering the following two aspects: 3
a) Whether the convict has lost his potentiality in committing crime or there is any chance of recurrence in committing crime.
b) Whether there will be adverse impact on the society at large if the lifer is released prematurely.
6. In addition to the above noted points, the other factors which are to be considered while considering a prayer for premature release are the age, social and economic status, link with anti social and criminals, relation with the neighbours etc. of the convict.
7. With regard to Section 61 of the West Bengal Correctional Services Act, 1992 more particularly sub-section (2) clause (iii) states that when the Superintendent recommends to the State Government the early release of such reformed prisoner on completion of a part of the period of imprisonment as shall not cause any danger to the community.
8. Thus, the combined effect of all these Enactments have to be examined in this case.
9. The learned Single Bench had referred to the decision of the Hon'ble Supreme Court in Joseph v. State of Kerala and Others reported in 2023 SCC Online 1211. In the said case the crime committed by the convict prisoner was under Sections 302 and 392 of the Indian Penal Code and the prisoner had moved the 4 Hon'ble Supreme Court under Article 32 of the Constitution.
10. The court considered various issues and ultimately held that the convict prisoner is entitled for premature release. In the said decision the prayer for premature release of a convict prisoner convicted for offence under TADA was not the subject matter.
11. Therefore, we are required to consider as to the effect of the decision of the Hon'ble Supreme Court in the case of Joseph.
12. The learned advocate appearing for the respondent/writ petitioner placed reliance on the decision of the High Court of Bombay in Arun Gulab Gawli v. State of Maharashtra reported in 2024 SCC Online Bombay 1052. In the said case the petitioner was convicted under the provisions of the Maharashtra Control of Organized Crime Act, 1999 (the MCOC Act).
13. The court examined the Policy framed by the Maharashtra Government in terms of Section 59 of the Prisons Act, 1894 and the question which fell for consideration was whether a person convicted under MCOC Act could be excluded for being considered for premature release under the Policy framed by the Maharashtra Government. In Para 20 of the judgment the Hon'ble Division Bench notes that in Clause 3(b) of the Notification issued by the Government of 5 Maharashtra excludes its applicability to convicts of MPDA, TADA, NDPS.
14. Therefore, the court has to consider as to the effect of the judgment in the case of Arun Gulab Gawli to the case on hand.
15. Thus, since five questions of law are required to be considered and any decision will have precedential value more particularly since there are four other convicts who were convicted along with the respondent who are still in the Correctional Home.
16. Therefore, the appeal is admitted for hearing and there will be an order of stay of the operation of all further proceedings of the order passed by the learned Single Bench.
17. Further, the court will also have to consider as to the effect that Memorandum dated 13th September, 1999 which speaks of cases where a convict seeks for premature release three months ahead of the completion of actual 14 years of imprisonment.
18. The learned advocate appearing for the respondent/writ petitioner is directed to file a compilation containing the judgment of this court confirming the conviction and the learned advocate shall also confirm as to whether any appeal has been preferred against the judgment of the High Court of Bombay in the case of Arun Gulab Gawli. 6
19. The compilation shall also contain copies of the earlier orders of rejection by the SSRB as well as the orders passed in the writ petitions which were filed by the respondent/writ petitioner.
20. List this matter under the caption "For Directions" on 24th June, 2024.
(T. S. SIVAGNANAM) CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)