Himachal Pradesh High Court
______________________________________________________ vs State Of Himachal Pradesh And Others on 3 March, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CWP No. : 8015/2014 Reserved on: 9.1.2015 .
Decided on: 3.3.2015 ______________________________________________________ Kashmir Singh. ...Petitioner.
Versus State of Himachal Pradesh and others. ...Respondents. ______________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes For the petitioner : Mr. Bimal Gupta, Advocate.
For the Respondents : Mr. Ramesh Thakur, Asstt. A.G. ____________________________________________________________ Justice Rajiv Sharma, Judge (oral).
Petitioner was convicted by the learned Sessions Judge, Una on 30.11.1994 under section 302 of the Indian Penal Code for the commission of murder of Tilak Raj and sentenced to life imprisonment and to pay fine of Rs. 3,000/- and on failure to deposit the fine amount, he was further directed to undergo rigorous imprisonment for one year. Petitioner preferred an appeal against the judgment dated 30.11.1994 rendered by the Sessions Judge before this Court by way of Criminal Appeal No. 218/1994.
It was dismissed by this Court on 30.11.1995.1
Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 2
2. Petitioner's case for premature release was rejected vide letter dated 13.7.2013. Petitioner feeling aggrieved by the order dated 13.7.2013, approached this Court by way of CWP .
No.8025 of 2013. Learned Single Judge disposed of the petition on 6.6.2014 and directed the competent authority to reconsider the claim of the petitioner by passing a speaking order. In sequel to judgment dated 6.6.2014, case of the petitioner was recommended by the State Sentence Review Board in its meeting held on 29.11.2014. The recommendations made by the State Sentence Review Board, qua the petitioner, read as under:
"Life convict Kashmir Singh son of Sh. Udham Singh aged 66 years R/O Village Nangal Jariala, P.S. Gagret, Tehsil and District Una, H.P. was convicted by the Ld. Sessions Judge, Una (H.P.) on 30.11.1994. On 15.4.1977 at about 8.00 P.M. while Smt. Harmesh Devi and her brother-in-law Tilak Raj were coming home after milking the cattle. On their reaching the village pond, the convict and his co-accused Raj Kumar were already standing there and started misbehaving with Harmesh Devi with an intention to molest her, when Tilak Raj intervened, the convict gave a knife blow in his abdomen, which resulted in instant death of Tilak Raj. The co-
accused Raj Kumar inflicted injuries to Harmesh Devi. On raising alarm both convicts ran away from the spot. the matter was reported to the police. The police apprehended Raj Kumar but the convict Kashmir Singh evaded arrest and was declared proclaimed offender. On the conclusion of the trial, accused Raj Kumar was convicted and sentenced for an offence under section 324 IPC. However, the convict Kashmir Singh was arrested later on by the police and on completion of investigation was found guilty of murder and was sentenced to life imprisonment by the Ld. Sessions Judge, Una (H.P.) vide judgment dated 30.11.1994.
The board, while considering the premature release case of the convict perused the copy of the judgment, the observations of the District authorities etc. The board, after considering the facts, ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 3 as per record, observed that the convict has undergone 16 years, 02 months and 25 days of actual sentence as on 8.8.2014 and has also earned more than I years of remission. The District authorities, i.e. the District Magistrate and Superintendent of Police, Una (H.P.) .
concerned Gram Pachayat and the Addl. Director-cum-Chief Probation Officer, S.C., O.B.C. & Minority Affairs, Himachal Pradesh have favoured his premature release. Moreover, the conduct of the convict inside the jail is very good. Keeping in view all these circumstances, the Board, therefore, decided to recommend his case for premature release."
However, fact of the matter is that despite the petitioner's case favourably recommended by the State Sentence Review Board for premature release, his case was rejected by the Cabinet in its meeting held on 24.7.2014 and the petitioner was conveyed the decision on 6.8.2014.
3. Petitioner has undergone 25 years 4 months and 27 days with remissions as on 28.9.2014. Case of the petitioner was also covered under the Jail Manual for the Superintendence and Management of the Jails in Himachal Pradesh. According to the Jail Manaul, the case of premature release is to be considered provided the convict has maintained good conduct in jail and for this purpose good conduct means that he has not committed any jail offence for a period of five years prior to the date of his eligibility for consideration for release as per para 1.1 and the case for premature release is required to be considered if the Government is satisfied that in the event of release of the convict there is no likelihood of the convict committing a crime of breach ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 4 of peace in any way connected with the circumstances of the crime for which he was originally convicted.
4. Respondent-State had constituted State Sentence .
Review Board vide letter dated 12.8.1983 and the letter dated 12.8.1983 was superseded vide letter dated 28.2.2001 Annexure P-2. Para 3 of the letter dated 28.2.2001 has been substituted vide letter dated 15.2.2003 Annexure P-3. The State Sentence Review Board has discretion to release a convict at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant facts like:
a) Whether the convict has lost his potential for committing crime considering his overall conduct.
b) The possibility of reclaiming the convict as a useful member of the society; and
c) Socio-economic condition for the convict's family.
The life convict covered under section 433-A of the Code of Criminal Procedure is required to undergo 14 years of actual imprisonment before release. The total period of incarceration, including remissions in such cases, should ordinarily not exceed 20 years. The magnitude, brutality and gravity of offence for which the convict was sentenced to life imprisonment have also to be taken into consideration. In certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years, including remission. The period of ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 5 incarceration, including remission even in such cases should not exceed 25 years. The detailed procedure for processing of the case for the State Sentence Review Board has been provided in letter .
dated 28.2.2001 Annexure P-2. The criteria and guidelines for the State Sentence Review Board have also been provided in letter dated 28.2.2001.
5. It is evident from the contents of the proceedings of the State Sentence Review Board dated 29.11.2014 that case of the petitioner has been recommended favourably for premature release taking into consideration his conduct inside the jail and all circumstances. Case of the petitioner has been rejected vide order dated 6.6.2014. The gist of order dated 6.6.2014 reads as under:
"The case of life convict Kashmir Singh was re-considered. It was observed that he is a life convict u/s 302 of the IPC, who had committed the heinous crime when he was stopped by the victim from molesting a woman. His premature release would send a wrong signal in the society. Therefore, his premature release was not approved in view of the gravity of the offence and circumstances in which the said offence had been committed."
6. We have gone through the reasons assigned for not releasing the petitioner. Premature release case of the petitioner does not fall under heinous crime as per Jail Manual for the Superintendence and Management of the Jails in Himachal Pradesh. Petitioner's case has been rejected merely on the ground that he has committed heinous crime when he was stopped by the victim from molesting a woman. The heinous crime is one as ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 6 described in the Jail Manual. The recommendations made by the State Sentence Review Board should be taken into consideration since a detailed procedure has been laid down the manner in .
which recommendations are to be made by the Board. The State Sentence Review Board before recommending the case has to take into consideration the recommendations made by the District Magistrate/Superintendent of Police after holding due inquiry.
The Superintendent Jail is also required to make a reference to the Chief Probation Officer of the State. The Chief Probation Officer is required either to hold or cause to hold an inquiry through a Probation Officer in regard to the desirability of premature release of the prisoner having regard to his family members and the society prospects of the prisoner for rehabilitation and leading a meaningful life as a good citizen. After the receipt of the report/ recommendations of the District Magistrate/Superintendent of Police and Chief Probation Officer, the Superintendent of Jail is required to put up the case to the Director General/Addl. Director General/Inspector General of Prisons, as the case may be, at least one month in advance of the proposed meeting of the State Sentence Review Board. The State Sentence Review Board, thus, is required to take into consideration the recommendations of the District Magistrate/ Superintendent of Police and Chief Probation Officer. The Board is required to take into consideration general principles of amnesty/remission of the sentences as laid down by ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 7 the State Government or by Courts as also the earlier precedents in the matter. The paramount consideration before the State Sentence Review Board is the welfare of the prisoner and the .
society at large. The Board ordinarily should not decline premature release of prisoner merely on the ground that the police has not recommended his release on certain farfetched and hypothetical premises. Though the Board is required to take into account the circumstances in which the offence was committed by the prisoner and whether he has the probability and is likely to commit similar or other offence again.
7. Their Lordships of the Hon'ble Supreme Court in Laxman Naskar vs. Union of India and others, AIR 2000 SC 986 have held that rejecting prayer for premature release on extraneous consideration, i.e. on ground of objections by police is improper. Their Lordships have held as under:
"3. 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 ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 8 consistently with the legal position and the Government policy/instructions prevalent at that time.
5. All the "life convicts" before us have completed continued detention of 20 years including remission earned.
.
From the counter filed by the State, we find that the Government has also framed guidelines for this purpose. To consider the prayer for premature release of the "life convicts" , police report was called for on the following points :-
(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.
6. Though the police report did not cover all the above points, the prayer of "life convicts" for premature release was rejected mainly on the ground of objections by police. The police had only reported about the chances of the petitioners committing crime again. It becomes apparent from the record that the Government did not consider the prayer for premature release as per the rules. The Government did not pay sufficient attention to the conduct-record of the petitioners while in jail nor did it consider whether they had lost their potentiality in committing crime. The relevant aspect, namely, that there is no fruitful purpose in confining them any more was also not considered nor the socio economic conditions of the convict's family were taken into account. Thus the orders of the Government suffer from infirmities and are liable to be quashed."
8. In the instant case, as noticed hereinabove, petitioner was entitled to premature release taking into consideration the recommendations made by the State Sentence Review Board.
Petitioner has already undergone his mandatory minimum ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 9 sentence required under the provisions of the Code of Criminal Procedure as well as Jail Manual framed by the State.
9. The decision taken by the competent authority must .
be supported by reasons.
10. Their Lordships of the Hon'ble Supreme Court in Oil and Natural Gas Corporation Limited vs. Western Geco International Limited, (2014) 9 SCC 263 have held that so long as the court, tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Their Lordships have further held that application of mind is best demonstrated by disclosure of the mind and disclosure of mind is best done by recording reasons in support of the decision which the court or authority is taking.
Their Lordships have further held that perversity or irrationality of decisions is to be tested on the touchstone of the Wednesbury principle of reasonableness. Their Lordships have held as under:
"25. It is true that none of the grounds enumerated under Section 34(2)(a) were set up before the High Court to assail the arbitral award. What was all the same urged before the High Court and so also before us was that the award made by the arbitrators was in conflict with the "public policy of India" a ground recognised under Section 34(2)(b)(ii) . The expression "Public Policy of India" fell for interpretation before this Court in ONGC Ltd. v. Saw Pipes Ltd., 2003 5 SCC 705 and was, after a comprehensive review of the case law on the subject, explained in para 31 of the decision in the following words:::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 10
"31. Therefore, in our view, the phrase "public policy of India" used in Section 34 in context is required to be given a wider meaning. It can be stated that the concept of public policy connotes some matter which concerns public good and the public interest.
.
What is for public good or in public interest or what would be injurious or harmful to the public good or public interest has varied from time to time. However, the award which is, on the face of it, patently in violation of statutory provisions cannot be said to be in public interest. Such award/judgment/decision is likely to adversely affect the administration of justice. Hence, in our view in addition to narrower meaning given to the term "public policy" in Renusagar case10 it is required to be held that the award could be set aside if it is patently illegal. The result would be award could be set aside if it is contrary to:
(a) fundamental policy of Indian law; or
(b) the interest of India; or r(c) justice or morality, or [pic](d) in addition, if it is patently illegal.
Illegality must go to the root of the matter and if the illegality is of trivial nature it cannot be held that award is against the public policy. Award could also be set aside if it is so unfair and unreasonable that it shocks the conscience of the court. Such award is opposed to public policy and is required to be adjudged void."
35. What then would constitute the 'Fundamental policy of Indian Law' is the question. The decision in Saw Pipes Ltd. does not elaborate that aspect. Even so, the expression must, in our opinion, include all such fundamental principles as providing a basis for administration of justice and enforcement of law in this country.
Without meaning to exhaustively enumerate the purport of the expression "Fundamental Policy of Indian Law", we may refer to three distinct and fundamental juristic principles that must necessarily be understood as a part and parcel of the Fundamental Policy of Indian law. The first and foremost is the principle that in every determination whether by a Court or other authority that affects the rights of a citizen or leads to any civil consequences, the Court or authority concerned is bound to adopt what is in legal parlance called a 'judicial approach' in the matter. The duty to adopt a judicial approach arises from the very nature of the power ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 11 exercised by the Court or the authority does not have to be separately or additionally enjoined upon the fora concerned. What must be remembered is that the importance of Judicial approach in judicial and quasi judicial determination lies in the fact so long as .
the Court, Tribunal or the authority exercising powers that affect the rights or obligations of the parties before them shows fidelity to judicial approach, they cannot act in an arbitrary, capricious or whimsical manner. Judicial approach ensures that the authority acts bonafide and deals with the subject in a fair, reasonable and objective manner and that its decision is not actuated by any extraneous consideration. Judicial approach in that sense acts as a check against flaws and faults that can render the decision of a Court, Tribunal or Authority vulnerable to challenge."
11. We are also of the opinion that the State Sentence Review Board before taking a final decision should afford oral/ personal hearing to the convict. It is his legitimate right to bring all the relevant facts to the notice of the State Sentence Review Board. The decision to grant remission or not to grant remission affects the freedom of convict. The decision making process would have more effective if the oral hearing is provided. The convict can usefully contribute in the decision making process.
12. Recently, in Osborn V Parole Board, 2014 (1) The All England Law Reports 369, the U.K. Supreme Court has held that in order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for transfer to open conditions, whenever fairness to the prisoner required such a hearing in the light of the facts of the case and the importance of what was at ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 12 stake for the purpose of release on licence. Their Lordships have held as under:
"In order to comply with common law standards of procedural .
fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfill its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. The circumstances in which an oral hearing will be necessary, but such circumstances will often include a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a "paper" decision made by a single member panel of the board to become final without allowing an oral hearing. In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it was to be managed and addressed, could benefit from the closer examination which an oral hearing could provide. The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. The question whether fairness requires a prisoner to be given an oral hearing was different from the question whether he had a particular likelihood of being released or transferred to open ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 13 conditions, and cannot be answered by assessing that likelihood. When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner had been deprived of his conditional (freedom); when dealing with cases concerning post-
.
tariff indeterminate sentence prisoners, the longer the time the prisoner had spent in prison following the expiry of his tariff, the more anxiously the Board should scrutinise whether the level of risk was unacceptable. The board had to be be, and appear to be, independent and impartial; it should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense; "Paper" decisions made by single member panels of the board were provisional. The right of the prisoner to request an oral hearing was not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing the prisoner does not had to persuade the board that an oral hearing was appropriate, he did not have to demonstrate that the paper decision was or might have been wrong. It would be prudent for the board, in applying the instant guidance, to allow an oral hearing if it was in doubt that whether to do so or not. As it applied in the instant context, the common law duty to act fairly, was influenced by the requirement of art. 5 (2) that everyone who was arrested was to be informed promptly of the reasons for his arrest and of any charge against him, as interpreted by the court of Human Right; compliance with the common law duty should also result in compliance with the requirement of art. 5 (4) in relation to procedural fairness. A bench of those requirements would not normally result in an award of damage under the 1998 Act unless the prisoner had suffered a consequent deprivation of liberty. In the circumstances of the instant cases, the Board had breached its duty of procedural fairness at common law and was accordingly in breach of art. 5 (4) of the Convention. The appeals would therefore be allowed."
13. Hence in all the matters, the State Sentence Review Board would afford oral hearing to the convict or his advocate to facilitate effective decision making process. Guidelines in this regard be prepared by the State Government within three months.
::: Downloaded on - 15/04/2017 17:42:25 :::HCHP 1414. Accordingly, in view of analysis and discussion made hereinabove, the writ petition is allowed. Annexure P-9 dated 6.8.2014 is quashed and set aside. In normal circumstances, we .
would have asked the State Government to reconsider the decision, but taking into consideration all the facts and circumstances, as enumerated hereinabove, we order the release of the petitioner forthwith on production of certified copy of this judgment before the concerned authorities. Pending application(s), if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge.
(Justice Sureshwar Thakur), Judge.
3.3.2015 *awasthi* ::: Downloaded on - 15/04/2017 17:42:25 :::HCHP