As per case facts, four life convicts filed a Writ Petition under Article 32, challenging the State Government's rejection of their premature release prayer. They had served over 18 years ...
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CASE NO.:
Writ Petition (crl.) 274-277 of 2000
PETITIONER:
ZAHID HUSSEIN & ORS.
Vs.
RESPONDENT:
STATE OF WEST BENGAL AND ANR.
DATE OF JUDGMENT: 15/03/2001
BENCH:
S. Rajendra Babu & S.N. Phukan
JUDGMENT:
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Phukan, J.
Four life convicts have filed the present Petitions
under Article 32 of the Constitution challenging the orders
of the State Government rejecting their prayer for premature
release.
Four petitioners were convicted under Section 302/34 IPC@@
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and sentenced to suffer rigorous imprisonment for life.@@
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They are in Central Correctional Home, Alipore, Kolkota and@@
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have served actual imprisonment of more than 18 years and
the total period of imprisonment including remission being
more than 24 years. They had approached this court earlier
as their prayer for premature release was rejected by the
State Government. This court set aside the orders of the
Government and directed reconsideration. As their prayers
have again been rejected; the petitioners are again before
us.
Mr. Malik, learned senior counsel for the petitioners
has urged that in view of sub-rules (4) and (29) of Rule 591@@
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of the West Bengal Rules for the Superintendence and@@
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Management of Jails (for short the Rules) relating to
premature release of the life convict and Explanation to
Section 61 of the West Bengal Correctional Services Act,
1992 (herein after referred to as the Act) all the
petitioners are entitled to be released as of right as their
total period of imprisonment is more than 20 years. Mr.
Mukul Rohtagi, learned Additional Solicitor General has
contended that there is no right of premature release in
view of the law laid down by this court, as sentence for
imprisonment for life means imprisonment for the entire life
of the prisoner, unless the appropriate Government decides
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to exercise its discretion to remit either whole or part of
the sentence of a life convict. According to learned
Additional Solicitor General in view of facts and
circumstances of cases of the petitioners and the police
report, the State Government rightly rejected the prayers of
the petitioners.
This court after examining the provisions of Article 161@@
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of the Constitution, Cr.P.C. and I.P.C. has consistently@@
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held that a sentence of imprisonment for life does not@@
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automatically expire at the end of 20 years of imprisonment
including remission, as a sentence of imprisonment for life
means a sentence for the entire life of the prisoner unless
the appropriate government chooses to exercise its
discretion to remit either the whole or part of the
sentence. [See Gopal Vinayak Godse versus The State of
Maharashtra and others 1961 (3) SCR 440; State of Madhya
Pradesh versus Ratan Singh and Others 1976 (3) SCC 470;
Sohan Lal versus Asha Ram and Others 1981 (1) SCC 106 and;
Bhagirath versus Delhi Administration 1985 (2) SCC 580]
We extract below sub-rules (4) and (29) of Rule 591 of the
Rules:
(4) In considering the cases of prisoners submitted to
it under sub-rules (1) and (2), the State Government shall
take into consideration (i) the circumstances in each
case, (ii) the character of the convicts crime, (iii) his
conduct in prison, and (iv) the probability of his reverting
to criminal habits or instigating others to commit crime.
If the State Government is satisfied that the prisoner can
be released without any danger to the society or to the
public it may take steps for issue of orders for his release
under Section 401 of the Code of Criminal Procedures, 1898.
(29) Every case in which a convict, who has not received
the benefit of any of the foregoing rules, is about to
complete a period of 20 years of continued detention
including remission earned, if any, shall be submitted three
months before such completion by the Superintendent of the
Jail in which the convict is for the time being detained,
through the Inspector General, for orders of the State
Government. If the convicts jail records during the last
three years of his detentions are found to be satisfactory
the State Government may remit the remainder of his
sentence.
These sub-rules do not provide for automatic release of
a life convict after he has completed 20 years of the
detention including remission. Under these sub-rules only
right which a life convict can be said to have acquired is a
right to have his case put up by the prison authorities in
time to the State Government for consideration for premature
release and in doing so the government would follow the
guidelines mentioned in sub-rule (4).
The explanation to Section 61 of the Act is as follows:
Explanation For the purpose of calculation of the
total period of imprisonment under this section, the period
of imprisonment for life shall be taken to be equivalent to
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the period of imprisonment for 20 years.
This Explanation came for consideration by this court in@@
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Laxman Naskar (Life Convict) vs. State of W.B. and Anr.@@
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2000 (7) SCC 626 and this Court held that the said@@
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Explanation is only for the purpose of calculation of the
total period of imprisonment of a life convict under Section
61, which shall be taken to be equivalent to the period of
imprisonment for 20 years and a life convict would not be
entitled to automatic release under this provision of law.
We, therefore, find no substance in the submission made by
Mr. Malik, the learned senior counsel.
Learned Additional Solicitor General has rightly pointed@@
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out that in view of the law laid down by this court a@@
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positive order of release has to be passed by the Government
after due consideration. Now we have to consider whether
the impugned orders are sustainable.
From the counter filed on behalf of the Government, we@@
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find that the State Government constituted a Review Board to@@
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consider the cases of premature release of the petitioners.
The said Review Board consists of the following:
(1) Home Secretary Chairman
(2) Judicial Secretary Convenor@@
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(3) I.G. of prison, West Bengal Member
(4) Secretary Home (Jails) Member Department
(5) Director General & I.G. of Police, Member West
Bengal
(6) Commissioner of Police, Calcutta Member
(7) Chief Probation Officer Member
Following guidelines were famed by the Government for@@
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the premature release of life convicts, namely:@@
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(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 there is any fruitful purpose of confining
of these convicts any more;
(iv) Whether the convicts have lost potentiality in
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committing crime;
(v) Socio economic condition of the convicts families.
The Review Board refused to grant premature release of
the petitioners on the following grounds: (1) Police report
is adverse; (2) the convicts are not over aged person and
as such have not lost the potentiality in committing crime;
(3) since other co-convicts were trying to come out from
jail, there was a possibility of re-grouping for anti-social
activities; (4) the offence was not an individual act of
crime but was affecting society as a large; (5) convicts
were anti-social and; (6) the witnesses who had deposed at
the trial as well as local people were apprehensive of
retaliation in the event of premature release.
In case of one of the petitioners, namely, Md. Talib,
Review Board also noted one of the co-convicts was granted
premature release who was murdered in an encounter after the
release.
We may state here that jail authority recommended
premature release of the Writ Petitioners. In our opinion,
the conduct of the petitioners while in jail is an important
factor to be considered as to whether they have lost their
potentiality in committing crime due to long period of
detention. The views of the witnesses, who were examined
during trial and the people of the locality cannot determine
whether petitioners would be a danger to the locality, if
released prematurely. This has to be considered keeping in
view the conduct of the Petitioners during the period they
were undergoing sentence. Age alone cannot be a factor
while considering whether the petitioners have still
potentiality of committing crime or not as it will depend on
changes in mental attitude during incarceration.
While coming to the conclusion for possibility of re-
grouping for anti-social activities, the Review Board did
not take into account that the life convicts are in jail for
more than 18 years. The Board also did not consider whether
there would be any fruitful purpose of confining the
convicts any more and also the socio-economic condition of
their families. Regarding petitioner Md. Talib, the
Review Board also noted that one co- convict was released
prematurely and was murdered in the encounter with other
criminals after his release. The learned Additional
Solicitor General informed us that the said co-accused was
released in the year 1991 and was murdered in the year 1998
and therefore in our opinion this fact has no nexus for
consideration of premature release of the petitioner, Md.
Talib.
We are, therefore, of the view that the reasons given by
the Review Board for rejecting the prayers for premature
release of the petitioners are irrelevant and the devoid of
any substance. Accordingly, we quash the impugned orders of
the government and remit the matter again for deciding it
afresh within the period of 3 months from today.
In the result the Writ Petitions are allowed. After
issuance of the Rule, the same is made absolute.
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