HON'BLE SRI JUSTICE K. LAKSHMAN
WRIT PETITION Nos.20421, 20425 & 20530 OF 2019,
18838, 19525, 20259, 21397, 21478, 21484, 21948, 21967 & 24490 OF 2020
AND 1463 OF 2021
COMMON ORDER:
Heard Ms. Pushpinder Kaur and Mr. P. Shashi Kiran, learned
counsel appearing for the respective petitioners in this batch of writ
petitions, and the learned Government Pleader for Home appearing on
behalf of the respondents.
1. CHALLENGE:
Kith and Kin / Close relatives of Lifers filed all these present Writ Petitions for grant of remission, comply with the orders passed by this Court in earlier writ petition, a direction to the respondents' authorities to recommend the names of lifers for grant of special remission in terms of remission policy.
2. INTRODUCTION:
i) Lis involved in this batch of writ petitions is almost same, contentions of petitioners and respondents are also common and, therefore, this batch of writ petitions is heard together and disposed of by way of this common order.
ii) The petitioners are kith and kin / close relatives of the Lifers, who are languishing in different jails. Their grievance is that they are entitled for remission in accordance with the Remission Policy and the respondents' authorities are not extending the said KL,J W.P. Nos.20421 of 2019 & batch 2 benefit for the lifers in this batch of writ petition. Therefore, the present writ petitions with different reliefs as sought therein.
3. RELEVANT PROVISIONS / ARTICLES OF THE INDIAN PENAL CODE, 1860 (IPC) THE CODE OF CRIMINAL PROCEDURE, 1973 (Cr.P.C.), AND THE CONSTITUTION OF INDIA:
i) To decide the lis in this batch of writ petitions, the following provisions of the Cr.P.C., IPC and the Constitution of India are relevant which are as under:
INDIAN PENAL CODE:
"45. "Life".--The word "life" denotes the life of a human being, unless the contrary appears from the context."
"55. Commutation of sentence of imprisonment for life.--In every case in which sentence of imprisonment for life shall have been passed, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a term not exceeding fourteen years."
"57. Fractions of terms of punishment.--In calculating fractions of terms of punishment, imprisonment for life shall be reck- oned as equivalent to imprisonment for twenty years."
CODE OF CRIMINAL PROCEDURE:
"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 KL,J W.P. Nos.20421 of 2019 & batch 3 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 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 KL,J W.P. Nos.20421 of 2019 & batch 4
(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 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;
(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. Restriction on powers of remission or Commutation in certain cases."
"433A. Restriction on powers of remission or Commutation in certain cases. Notwithstanding anything contained in 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 KL,J W.P. Nos.20421 of 2019 & batch 5 released from prison unless he had served at least fourteen years of imprisonment."
"435. State Government to act after consultation with Central Government in certain cases.
(1) The powers conferred by sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence-
(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946 ), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government.
(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends."
KL,J W.P. Nos.20421 of 2019 & batch 6 CONSTITUTION OF INDIA:
"Article - 72. Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases--
(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence
(a) in all cases where the punishment or sentence is by a court Martial;
(b) in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death (2) Noting in sub clause (a) of Clause ( 1 ) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor of a State under any law for the time being in force." "Article - 161. Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases--
The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends."
4. HISTORY OF REMISSION / REMISSION POLICY:
i) There is demand to abolish death penalty throughout the World. The said demand is serious in the India. Various Organizations including Organizations dealing with civil liberties have been demanding to abolish death penalty. They have also resorted to several methods of protest including conducting of KL,J W.P. Nos.20421 of 2019 & batch 7 seminars, workshops, rallies, dharnas, giving representations to various Constitutional Authorities and filing of petitions before the Hon'ble Supreme Court of India and various High Courts. The said issue was fell for consideration before the Apex Court in Bachan Singh v. State of Punjab1, and the Apex Court dismissed the said contention holding that there should be death penalty in certain cases.
ii) There is also demand from various organizations for the purpose of 'reformatory criminal justice system', and according to them, convictions including life-convicts shall be given an opportunity to reform themselves by giving certain benefits, such as remission etc. There are International Treaties / Conventions on the said aspect. There is also demand for release of the life-convicts and other convicts, who are in jails years together, on certain considerations including age, health and behavior, antecedents and other factors. Accordingly, various writ petitions were filed before the Hon'ble Supreme Court and various High Courts in the entire Country. In compliance of the directives in the said cases and also by virtue of powers conferred on the respective States under the provisions of Cr.P.C., respective States have issued remission policy and guidelines from time to time. It is also relevant to note that the said remission policies / guidelines are subject to judicial scrutiny and challenge by various persons in various High Courts of India and the Apex Court. The various States including State of Telangana 1 (1980) 2 SCC 684 KL,J W.P. Nos.20421 of 2019 & batch 8 pursuant to the said remission policies / guidelines, considered release of convicts on different occasions, including 15h August and 2nd October.
iii) Referring to the serious discussion among the Intellectuals in the Globe, in one of the Articles, it is mentioned that International norms do not support life sentences without a possibility of release. Life-convicts should be eligible for release into society once they have served sufficient period of time in the prison to mark the seriousness of their offences. Sentences for whole-life without a chance of review amount to crucial and degrading treatment. The said issue was discussed in various International Conventions and Human Rights Conventions in the entire World and also in India. Pursuant to the same, various Countries including developed Countries have agreed for the said demand and they have also formulated remission policy / guidelines for premature release of life-convicts and other convicts.
iv) India does not have a Uniform Policy for premature release of prisoners. The law provides for executive remissions, which is completely based on discretion. The said discretion is based on the basis of guidelines framed at state level. There is no minimum standard that the states have to keep in mind when drafting these schemes. The National Human Rights Commission has asked the Ministry of Law and Justice to frame a policy, but there is no progress in the same so far. The Apex Court has also given directions to both the States and Central Governments to frame uniform policy. There is KL,J W.P. Nos.20421 of 2019 & batch 9 no progress as of now. All the States have formulated their own remission policies / guidelines for premature release. Thus, in India, there is no uniformity with regard to the remission and premature release of convicts.
v) Social and Legal Systems have always responded to crimes with a comparatively higher level of seriousness. Murder of a man by another man is considered as a 'public wrong'. States have been successful in institutionalising criminal justice. The capacity to punish and severity of punishments set out Criminal Courts from other Courts. Criminal Law provides the avenue for the strongest formal condemnation of an individual in a society. The purposes and methods of punishment are debated vehemently in National and International Fora. Punishment has been legitimized on the basis of its ability to provide retributive justice, its power to deter persons who have been found guilty and society in general from committing crimes and the noble vision of reforming and rehabilitating individuals. The methods of punishment have also been subject to critical analyses.
vi) The global trend is towards individualizing and humanizing punishment. The same indicates a mechanism that is customized to meet the needs of each individual who is found guilty of a crime. The punishment should fit the person and not other way around. The recognition of the human element in punishment has paved the way towards abolition of death penalty in International Law. However, by KL,J W.P. Nos.20421 of 2019 & batch 10 virtue of its existence in an additional protocol to ICCPR, abolition still cannot claim the status of a binding norm.
vii) As stated above, in Bachan Singh1, the Apex Court refused to strike down the relevant provision of imposing death penalty to an accused. As an effective alternative to death penalty, imprisonment and specifically life imprisonment has been favoured by Legal Systems. Duration of imprisonment is a very important issue. Usually, statutes prescribe a minimum and a maximum term of imprisonment. It is within the discretionary power of a judge to decide the exact duration depending upon various factors that would weigh the Judge who is deciding a criminal case. Sentence of imprisonment is finalized after considering various factors. Sentencing power is based on judicial application of mind. Though there are no formally expressed sentencing guidelines in India, in 'rarest of rare doctrine' created and developed by the Apex Court of India for application in murder cases is an example of how judicial discretion can be self- regulated.
viii) After sentencing, various executive procedures govern the stay of the prisoner in State Prisons. One of the most important executive powers relating to a prisoner is the power to release a prisoner prior to the completion of the time mentioned in the sentence. In India, a person can be punished with death penalty, life imprisonment, rigorous imprisonment, simple imprisonment, forfeiture of property and imposition of fine.
KL,J W.P. Nos.20421 of 2019 & batch 11
ix) Chapter - III of IPC deals with 'punishments'. Section - 53 of IPC prescribes sentence of punishments including death, imprisonment for life etc. Section - 55 of IPC provides that in every case for which a person is sentenced for life, the appropriate Government may, without the consent of the offender, commute the punishment for imprisonment of either description for a period not exceeding fourteen years. Section - 57 of IPC provides that, for the purposes of calculating fractions, imprisonment for life shall be equivalent to 20 years. However, it has been settled by the Apex Court that life imprisonment means imprisonment for the remaining period of the prisoners' natural life. There is no right of automatic release on the expiry of any period in any law. The State Government is empowered under Section - 432 (5) of IPC to make Rules relating to award of marks and shortening of sentences. The release of a prisoner is subjected to executive discretion. There are three kinds of remissions, constitutional, statutory and remissions earned in accordance with jail manuals.
x) Constitutional Remission is under Article - 72 of the Constitution of India and it empowers the President of India. Similar power is with Governor under Article - 161 of the Constitution of India. Section - 432 of Cr.P.C. empowers the appropriate Government to suspend or remit the sentence of a prisoner. Section - 432 (2) of Cr.P.C. provides that the Government may seek the opinion of the KL,J W.P. Nos.20421 of 2019 & batch 12 judge who convicted the prisoner on whether the application for remission must be accepted or rejected.
xi) Section - 433 of Cr.P.C. provides that life imprisonment may be commuted to imprisonment for a period not exceeding 14 years. But, Section - 433A of Cr.P.C. provides that a prisoner shall not be released before 14 years of undergoing sentence in the case of two kinds of life convicts viz., those life convicts who have been found guilty of an offence punishable with death and those convicts whose death sentences were commuted to life imprisonment under section 433. In various cases, however, Courts have nullified the State Government decisions. It is also settled principle of law that the power of President under Article - 72 of the Constitution of India and power of Governor under Article - 161 of the Constitution of India is subject to judicial review.
xii) The Apex Court and various High Courts gave directives to Union of India and various States for the purpose of framing guidelines for premature release which would be discussed in coming paragraphs.
xiii) There is a serious debate on the comprehensive rehabilitation policy. There is criticism that the premature release from prison is perceived as an escape from the pernicious influence of the prison. Prisons are considered as breeding grounds for criminal minds. The primary focus of prison policy must be rehabilitation. On KL,J W.P. Nos.20421 of 2019 & batch 13 the advice of Law Commission and the Apex Court, various States have adopted the policy of open jails including Telangana State. The idea of the object of opening of such open jails is as part of reformatory policy. The Jail Authorities have also adopted innovative motive as part of reformative policy. The convicts are now provided with pursuing their education and also permitted to appear for examinations of Open Universities. They are also provided with Skill Development. The same are as part of Reformatory Criminal Justice System. Comprehensive policy for rehabilitation should be made and premature release should be made as part of the said policy. The focus of criminal justice system should be to punish those deserving a sentence. After the purpose of sentence has been served, attempt should be made for re-socialization of prisoners. A premature release policy must be backed up with a proper rehabilitation plan. Thus, the society can get the benefit out of release of a prisoner. It is highly idealistic to consider the idea of reformation in Indian Jails, but a system of premature release based on irrational criteria does not help. This can ultimately be linked to the absence of a proper sentencing regime.
5. PRECEDENTS / LEGAL POSITION:
i) A Constitution Bench of the Apex Court in Maru Ram v. Union of India2, had an occasion to deal with the said reformatory system. In the said case, vires of Section - 433A of Cr.P.C. was under 2 . (1981) 1 SCC 107 KL,J W.P. Nos.20421 of 2019 & batch 14 challenge. Justice V.R. Krishna Iyer, wrote majority judgment. Few paragraphs are relevant for the purpose of deciding the lis in the present batch of writ petitions and the same are extracted below:
"A procession of 'life convicts' well over two thousand strong, with more joining the march even as the arguments were on, has vicariously mobbed this court, through the learned counsel, carrying constitutional missiles in hand and demanding liberty beyond the bars. They challenge the vires of Section 433A of the Criminal Procedure Code (Procedure Code, for short) which compels `caging' of two classes of prisoners, at least for fourteen eternal infernal years, regardless of the benign remissions and compassionate concessions sanctioned by prison law and human justice. Their despair is best expressed in the bitter lines of Oscar Wilde. The Ballad of Reading Gaol:
I know not whether Laws be right, or whether Laws be wrong, All that we know who lie in gaol:
Is that the wall is strong;
And that each day is like a year, A year whose days are long. (Emphasis added) But broken hearts cannot break prison walls. Since prisons are built with stones of law, the key to liberation too is in law's custody. So, counsel have piled up long and learned arguments punctuated with evocative rhetoric. But Judges themselves are prisoners of the law and are not free to free a prisoner save through the open sesame of Justice according to law. Even so, there is a strange KL,J W.P. Nos.20421 of 2019 & batch 15 message for judges too in the rebellious words of Gandhiji's quasi-guru David Thoreau. Henry David Thoreau: Slavery in Massachusetts, 1854:
The law will never make men free; it is men who have got to make the law free. They are the lovers of law and order who observe the law when the government breaks it. The case of the petitioners is that Parliament has broken the law of the Constitution by enacting Section 433A."
In the said case, the principal challenge has been based upon an alleged violation of Articles - 72 and 161 of the Constitution of India and enactment of Section - 433A of Cr.P.C.
"49. While the light of this logic is not lost on US and the non-institutional alternatives to prison as the healing hope of humane habilitation are worthy of exploration, we are in the province of constitutionality where the criteria are different.
50. We have no doubt that reform of the prisoner, as a social defence strategy, is high on the agenda of Indian penal policy reform. The question is whether a 14-year term as a mandatory minimum, is so extremist and arbitrary as to become unconstitutional, even assuming the rehabilitatory recipe to be on our penological pharmacopea. We cannot go that far as judges, whatever our personal dispositions may incline us were we legislators."
As stated above, Justice V.R. Krishna Iyer, speaking to the majority judgment, observed as under:
KL,J W.P. Nos.20421 of 2019 & batch 16 "Social scientists must accept Robert Ingersoll's tart remark: "In the history of the world, the man who is ahead has always been called a heretic". They as Judges, have no power to legislate but only to invigilate."
ii) After elaborate discussion, the Apex court held that Section
- 433A of Cr.P.C. cannot be invalidated as indirectly violative of Articles - 72 and 161, and what the Code gives, it can take, and so, an embargo on Sections - 432 and 433A is within the power of Parliament.
"The failure of imprisonment as a crime control tool and the search for non-institutional alternatives in a free milieu, gain poignant pertinence while considering the mechanical exclusion of individualised punishment by Section 433A, conjuring up the cruel magic of 14 years behind bar- where 'each day is like a year, a year whose days are long- as a solvent of the psychic crisis which is crimeogenic factor, blinking at the blunt fact that at least after a spell the penitentiary remedy aggravates the recidivist's malady. In the "Failure of Imprisonment" (a 1979 publication) the authors start off with the statement: "The Failure of Imprisonment" Roman Tomasic and Ian dobinson--An Australian Perspective. Law in Society No.3, George Alien and Unwin p.1.
"The failure of imprisonment has been one of the most noticeable features of the current crisis in criminal justice system in advanced industrial or post- industrial societies such as Australia, Britain, Canada and the United States. One justification after another advanced in favour of the use of imprisonment has been shown to be misconceived. At best, prisons are able to provide a form of crude retribution to those unfortunate to be KL,J W.P. Nos.20421 of 2019 & batch 17 apprehended. At worst, prisons are brutalising, cannot be shown to rehabiliate or deter offenders and are detrimental to the re-entry of offenders into society. Furthermore, the heavy reliance upon prisons, particularly maximum security institutions with their emphasis upon costly security procedures, has led to an inordinate drain upon the overall resources devoted to the criminal justice area."
Likewise, in many current research publications the thesis is the same. Unless a tidal wave of transformation takes place George Ellis will be proved right: Inside Folsom Prison, An ETC Publication, p.24-25.
There are many questions regarding our prison systems and their rehabilitative quality. Observers from inside the walls find prisons to be a melting pot of tension and anxiety. Tension and anxiety are the result of a variety of abnormal conditions. Prisons, including the so-called model prisons, rob a man of his individual identity and dignity.
Contrary to popular opinion, all convicts are not rock-hard individuals lacking sufficient emotional balance. They are people. with fears and aspirations like everyone else. Generally, they don't want to fight with or kill their neighbor any more than the man on the street. They want to live in peace and return to it their loved ones as soon as possible. They are not a different breed of human being or a distinct type of mentality. They are persons who have made mistakes. This point is made not to solicit pity but to bring attention to the fact that any individual could be caught in a similar web and find himself inside a pit such as Folsom Prison."
iii) The Apex Court in the said judgment formulated its findings which are as under:
KL,J W.P. Nos.20421 of 2019 & batch 18 "72. We conclude by formulating our findings.
1. We repulse all the thrusts on the vires of Section 433A. Maybe, penologically the prolonged terms prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe not construct, to decode, not to make a code.
2. We affirm the current supremacy of Section 433A over the Remission Rules and short-
sentencing statutes made by the various States.
3. We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making an order en masse or individually, in that behalf.
4. We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
5. We negate the plea that Section 433A contravenes Article 20 (1) of the Constitution.
6. We follow Godse's case (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
7. We declare that Section 433A, in both its limbs (i.e. 'both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 (directly or retroactively, as explained in the judgment) when Section 433A came into force. All 'lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if KL,J W.P. Nos.20421 of 2019 & batch 19 Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short- sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.
8. The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to. the whole group.
9. Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide.. Only in these rare cases will the court examine the exercise.
10. Although the remission rules or short-
sentencing provisions proprio vigore may not apply as against Section 433A, they will override Section 433A if the Government, Central or State, guides itself by the selfsame rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking- a desirable step, in our view-the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules, should not survive until replaced by a more wholesome scheme.
11. The U. P. Prisoners' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the KL,J W.P. Nos.20421 of 2019 & batch 20 purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy.
12. In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
13. We have declared the law all right, but law-in- action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this court that the last decretal part is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
14. Section 433A does not forbid parole or other release within the 14-year span. So to interpret the Section as to intensify inner tension and taboo intermissions of freedom is to do violence to language and liberty."
iv) In Shri Niwas v. Delhi Administration3, the Apex Court issued a mandamus directing the authorities concerned to consider and dispose of the case of the petitioner for premature release in accordance with remission policy, however, liberty was granted to the petitioner therein to challenge the order, if so advised.
v) In State of Punjab v. Joginder Singh4, the Apex Court relying on the principle laid down by it in Gopal Vinayak Godse v. State of Maharashtra [1961 AIR 600] and Maru Ram2 held that power under Articles - 72 and 161 of the Constitution of India is absolute and cannot be lettered by any statutory provision, such 3 . (1982) 3 SCC 209 4 . (1990) 2 SCC 661 KL,J W.P. Nos.20421 of 2019 & batch 21 as Sections - 432, 433 and 433A of Cr.P.C. This power cannot be altered, modified or interfered with in any manner whatsoever by any statutory provisions or Prison Rules.
vi) In Swami Shraddananda v. State of Karnataka5, the Apex Court held that no convict can claim remission as a matter of right.
vii) In Shatrughan Chauhan v. Union of India6, a Three- Judge Bench of the Apex Court held that power vested under Articles
- 72 and 161 of the Constitution of India is amenable to judicial review, and further held that power of Executive to grant pardon in both the Articles is Constitutional power. Power exercised under both the Articles can be the subject matter of limited judicial review, and the Courts can retain the limited power of judicial review to ensure that the Constitutional Authorities consider all the relevant materials before arriving at a conclusion.
viii) In State of Haryana v. Mahender Singh7, the Apex Court held that although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Thus, the Rules having defined 'convicts' in terms therein a 'life convict' was entitled to have his case considered within the parameters laid down therein, the same cannot be taken 5 . (2008) 13 SCC 767 6 . (2014) 3 SCC 1 7 . (2007) 13 SCC 606 KL,J W.P. Nos.20421 of 2019 & batch 22 away by reason of an executive instruction by redefining the term 'life convict'. A classification validly made would not offend Article - 14 of the Constitution of India.
ix) In State of Haryana v. Jagdish and Harpal8, a Three- Judge Bench of the Apex Court held that the case of the accused can be considered on the strength of the policy that was existing on the date of his conviction, and in case of liberal policy prevails on date of consideration of case of 'lifer' for premature release, he should be given benefit thereof. The right of the accused to get his case considered at par with such of his inmates, who are entitled to the benefit of the said policy, cannot be taken away by a later policy issued by the State Government.
x) In Satpal v. State of Haryana9, the Apex Court held that the power of granting pardon under Article - 161 of the Constitution of India is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said power could be exercised. But the said power being a constitutional power conferred upon the governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article - 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the 8 . (2010) 4 SCC 216 9 . (2000) 5 SCC 170 KL,J W.P. Nos.20421 of 2019 & batch 23 jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration. A similar view was taken by the Apex Court in Epuru Sudhakar v. Govt. of A.P.10
xi) In Sangeet v. State of Haryana11, the Apex Court gave conclusions and findings at paragraph No.80, which are as under:
"80. The broad result of our discussion is that a relook is needed at some conclusions that have been taken for granted and we need to continue the development of the law on the basis of experience gained over the years and views expressed in various decisions of this Court. To be more specific, we conclude:
1. This Court has not endorsed the approach of aggravating and mitigating circumstances in Bachan Singh. However, this approach has been adopted in several decisions. This needs a fresh look. In any event, there is little or no uniformity in the application of this approach.
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to the criminal. A balance sheet cannot be drawn up for comparing the two. The considerations for both are distinct and unrelated. The use of the mantra of aggravating and mitigating circumstances needs a review.10
. (2006) 8 SCC 161 11 . (2013) 2 SCC 452 KL,J W.P. Nos.20421 of 2019 & batch 24
3. In the sentencing process, both the crime and the criminal are equally important. We have, unfortunately, not taken the sentencing process as seriously as it should be with the result that in capital offences, it has become judge-centric sentencing rather than principled sentencing.
4. The Constitution Bench of this Court has not encouraged standardization and categorization of crimes and even otherwise it is not possible to standardize and categorize all crimes.
5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the legislature has built in some procedural and substantive checks in the statute. These need to be faithfully enforced.
6. Remission can be granted under Section 432 of the Cr.P.C. in the case of a definite term of sentence. The power under this Section is available only for granting "additional" remission, that is, for a period over and above the remission granted or awarded to a convict under the Jail Manual or other statutory rules. If the term of sentence is indefinite (as in life imprisonment), the power under Section 432 of Cr.P.C. can certainly be exercised but not on the basis that life imprisonment is an arbitrary or notional figure of twenty years of imprisonment.
7. Before actually exercising the power of remission under Section 432 of the Cr.P.C. the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remissions can, therefore, be given only on a case-by-case basis and not in a wholesale manner."
KL,J W.P. Nos.20421 of 2019 & batch 25
xii) In V. Sriharan v. Union of India12, a Three-Judge Bench of the Apex Court while dealing with a mercy petition and exorbitant delay in deciding the mercy petition, held that it is definitely not a pleasure for this Court to interfere in the constitutional power vested under Article 72/161 of the Constitution of India, and so implore upon Government to render its advise to the President within a reasonable time so that the President is in a position to arrive at a decision at the earliest. It further held that exorbitant delay of 11 years in deciding mercy petition renders the process of execution of death sentence arbitrary, and that commuted the sentence into life imprisonment, means end of one's life.
xiii) In Satish @ Sabbe v. The State of Uttar Pradesh13, a Three-Judge Bench of the Apex Court held in paragraph Nos.13 and 14 which are as under:
"13. Whilst it is undoubtedly true that society has a right to lead a peaceful and fearless life, without free roaming criminals creating havoc in the lives of ordinary peace loving citizens. But equally strong is the foundation of reformative theory which propounds that a civilised society cannot be achieved only through punitive attitudes and vindictiveness; and that instead public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first time offenders ought to be liberally accorded a chance to repent their past and look forward to a bright future.1 12 . (2014) 4 SCC 242 13 . SLP (Crl.) No.7369 of 2019, decided on 30.09.2020 KL,J W.P. Nos.20421 of 2019 & batch 26
14. The Constitution of India through Articles 72 and 161, embody these reformative principles by allowing the President of India and the Governor of a State to suspend, remit or commute sentences of convicts. Further, Section 432 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") streamlines such powers by laying down procedure and pre- conditions for release. The only embargo under Section 433A of Cr.P.C. is against the release of persons sentenced to life imprisonment till they have served at least fourteen years of their actual sentence."
It further held that it is no doubt trite law that no convict can claim remission as a matter of right as held in Swami Sahraddananda5. It further held that there should be due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for executive authorities to surreptitiously subvert its mandate. Where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a Constitutional Court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus. The following three-factors have to be evaluated while considering the premature release of convicts:
(i) Antecedents;
(ii) Conduct during incarceration; and KL,J W.P. Nos.20421 of 2019 & batch 27
(iii) Likelihood to abstain from crime.
Thus, the Apex Court considering the fact that how the petitioners herein have served nearly two decades of incarceration of themselves suffered, however, the consequences of their actions, a balance between individual and societal welfare can be struck by granting the petitioners conditional premature release, subject to their continuing good conduct. The same would ensure that liberty of the petitioners is not curtailed, nor that there is any increased threat to society. Suffice to say that the said order is not irreversible and can always be recalled in the event of any future misconduct or breach by the petitioners.
xiv) In Puli Ramadevi v. State of Andhra Pradesh14, a learned Judge of the High Court of Judicature at Hyderabad for the States of Telangana and Andhra Pradesh while dealing with a batch of writ petitions filed by close relatives of the life-convicts, held at paragraph No.11 which is as under:
"11. Though the power to review the cases forwarded by the internal Scrutiny Committee vests with the Standing Committee constituted under Clause 12 of the GO, but right accrued to the eligible convicts to be considered for premature release cannot be nibbled without objectively examining their case. The policy framed by the Government is in tune with the International conventions on life and liberty of the citizens including prisoners, to which India 14 . 2019 (1) ALT 509 KL,J W.P. Nos.20421 of 2019 & batch 28 is a signatory. At the same time, this Court is not compassionate and considerate of the lift convicts who are enduring nightmare for the gruesome offences committed by them, but it is only on the principle of fair play, legitimate expectation and the guidelines framed by the Government, their cases have to be examined having regard to the conditions stipulated therein. No compelling reasons are discernable for not recommending their cases even on a perusal of the record produced in the matter.
Review power vested in the Standing Committee cannot be construed to lay down fresh conditions/guidelines, and it is to scrutinise and ensure conformation of the eligibility conditions already laid down by the Government in the GO Ms.No.8."
xv) In Ms. Sabera Begum v. Inspector General of Prisons and Director, Correctional Services, Govt. of A.P. Chenchalguda, Hyderabad15, a Division Bench of the erstwhile Andhra Pradesh High Court held that in the absence of any right conferred on prisoner to seek release on completion of 14 years, convict prisoner was not entitled to remission.
xvi) In N. Krishnaiah v. Govt. of A.P.16, a Division Bench of the erstwhile Andhra Pradesh High Court held that powers conferred on Governor under Article - 161 of the Constitution of India are much higher than those conferred on Government under Sections - 432 and 15 . 2011 Crl.L.J. 731 16 . 2001 Crl.L.J. 2972 KL,J W.P. Nos.20421 of 2019 & batch 29 433 of Cr.P.C. and that no such restriction on powers of Governor under Article - 161 of the Constitution of India.
xvii) In Pyare Lal v. State of Haryana17, a Three-Judge Bench of the Apex Court referred the matter to a larger Bench to decide the following issue for consideration:
"Whether in exercise of power under Article 161 of the Constitution a policy can be framed, whereunder certain norms or postulates are laid down, on the satisfaction of which the benefit of remission can thereafter be conferred by the Executive without placing the facts or material with respect to any of the cases before the Governor and whether such exercise can override the requirements under Section 433-A of the Code."
xviii) In RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18, a Three-Judge Bench of the Apex Court while dealing with an issue of current situation of risk of virus spreading in prisons and recommend release of prisoners on interim bail / parole based upon the situation in the concerned State, held as under:
"9. As a first measure, the Apex Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by it in 17 . Criminal Appeal No.1003 of 2017, decided on 17.07.2020 18 . Suo Motu Writ Petition (C) No.1 of 2020, dated 07.05.2021 KL,J W.P. Nos.20421 of 2019 & batch 30 Arnesh Kumar v. State of Bihar [(2014) 8 SCC 273] during pandemic......"
"10. Secondly, the rapid proliferation of the virus amongst the inmates of congested prisons is a matter of serious concern. The High-Powered Committees constituted by the State Governments / Union territories shall consider release of prisoners by adopting the guidelines (such as inter alia, SOP laid down by NALSA) followed by them last year, at the earliest. Such of those States which have not constituted High Powered Committees last year are directed to do so immediately...."
11. Third, due to the immediate concern of the raging pandemic, this court has to address the issue of decongestion. We find merit in the submission of Mr. Colin Gonsalves, learned Senior Counsel appearing on behalf of the applicant, that the High Powered Committee, in addition to considering fresh release, should forthwith release all the inmates who had been released earlier pursuant to our order 23.03.2020, by imposing appropriate conditions. Such an exercise is mandated in order to save valuable time.
12. Fourth, further we direct that, those inmates who were granted parole, pursuant to our earlier orders, should be again granted a parole for a period of 90 days in order to tide over the pandemic.
13. Fifth, the fight against the pandemic is greatly benefitted by transparent administration. In this regard, our attention was drawn to example of Delhi, wherein the prison occupancy is updated in KL,J W.P. Nos.20421 of 2019 & batch 31 websites. Such measures are required to be considered by other States and should be adopted as good practice. Moreover, all the decisions of High Powered Committees need to be published on respective State Legal Service Authorities/State Governments/ High Courts websites in order to enable effective dissemination of information.
14. Overcrowding of prisons is a phenomenon, plaguing several countries including India. Some prisoners might not be willing to be released in view of their social background and the fear of becoming victims of the deadly virus. In such extraordinary cases, the authorities are directed to be considerate to the concerns of the inmates. The authorities are directed to ensure that proper medical facilities are provided to all prisoners who are imprisoned. The spread of Covid19 virus should be controlled in the prisons by regular testing being done of the prisoners but also the jail staff and immediate treatment should be made available to the inmates and the staff. It is necessary to maintain levels of daily hygiene and sanitation required to be improved. Suitable precautions shall be taken to prevent the transmission of the deadly virus amongst the inmates of prisons. Appropriate steps shall be taken for transportation of the released inmates of the prisons, if necessary, in view of the curfews and lockdown in some States."
KL,J W.P. Nos.20421 of 2019 & batch 32
6. CONTENTIONS OF THE PETITIONERS:
(a) The respondents' authorities have not considered the actual period of sentence and the total period of sentence completed by the accused.
(b) The respondents' authorities have considered the premature release of some of the accused despite the fact that the petitioners are on better footing. Thus, the action of the respondents' authorities is discriminatory.
(c) The respondents' authorities failed to consider that murder of the Deputy Secretary, Andhra Pradesh State Wakf Board was at 9.30 P.M. and, therefore, he is not a public servant and that he is not discharging duties as a public servant at that particular point of time. In fact, he is a retired employee and, therefore, the incident is nothing to do with the public functions being discharged by the said Deputy Secretary.
(d) The respondents' authorities failed to appreciate the contention of the petitioners that some of the life-convicts have acquired educational qualifications, more particularly High Educational Qualifications while serving out the imprisonment.
(e) The respondents have not disposed of the representations submitted by some of the petitioners pursuant to the orders passed by this Court taking advantage of the position of life-convicts.
KL,J W.P. Nos.20421 of 2019 & batch 33
(f) The respondents' authorities did not consider the three factors viz., (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime.
(g) The respondents failed to consider that the life-convicts are entitled for benefits of the remission policy existing as on the date of their conviction as held by the Apex Court.
(h) The proceedings issued by the respondents' authorities rejecting the representations of some of the petitioners to consider their remission is without there-being any reasons and without consideration of the principle laid down by the Apex Court and various other High Courts on the remission policy. The G.O.Ms.No.30, dated 26.09.2020 issued by the Government is without consideration of the principle laid down by the Apex Court in catena of decisions and the same was issued mechanically.
7. CONTENTIONS OF THE RESPONDENTS:
(a) The life-convicts in the present batch of writ petitions are not entitled for remission.
(b) They have not completed the sentence to avail the benefit of remission.
(c) Some of them have involved in the offences against women i.e., Section - 304B of IPC.
KL,J W.P. Nos.20421 of 2019 & batch 34
(d) Some of the life-convicts have involved in double murder cases and, therefore, they are not entitled for remission in terms of the policy issued by the Government.
(e) Some of the life-convicts have committed murder of a public servant and, therefore, they are not entitled for remission.
(f) There is no discrimination in considering the premature release of some of the life-convicts as alleged by the petitioners herein.
(g) The respondents have considered the material and all factors while rejecting the request of some of the life-convicts for granting remission.
(h) Thus, there is no discrimination on the part of the respondents' authorities.
(i) Some of the lifers were released on two occasions viz., 15th August and 2nd October basing on the remission policy / guidelines issued by the State. Therefore, the allegation of the petitioners that the respondents' authorities are acting discriminately while considering their request for grant of remission is baseless.
(j) Right of remission is not automatic and they have to complete the sentence and then can seek remission.
(k) The respondents' authorities have considered the triple factors and there is no error in the same.
KL,J W.P. Nos.20421 of 2019 & batch 35
8. ANALYSIS AND FINDINGS CASE-WISE:
W.P. Nos.20421, 20425 AND 20530 OF 2019:
i) The petitioner in this writ petition is wife of A. Datta Bhosle, life-convict No.8861, filed this writ petition seeking a direction to recommend the name of her husband for grant of special remission in terms of G.O.Ms.No.16, dated 17.02.2016. The life-convict in the said writ petition was convicted in S.C. No.282 of 2003 on the file of learned II Addl. Sessions Judge, Karimnagar for the offence under Section 395 of IPC and accordingly he was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/- in default to undergo simple imprisonment for three months. He was also convicted in S.C. No.533 of 2004 on the file of the II Additional Sessions Judge, Karimnagar at Jagtial for the offence under Section - 400 of IPC and accordingly, he was sentenced to undergo rigorous imprisonment for life. The said life-convict has filed Criminal Petition No.12130 of 2010 on the file of this Court, and this Court vide order dated 31.01.2012 held that the said sentences in both the cases shall run concurrently.
ii) According to the petitioner, as on 02.08.2019, her husband - life convict has undergone the actual sentence of 13 years 7 months and 3 days and the total period undergone by him is 21 years 8 months and 22 days including remand period and remission earned. As on today, the life-convict has completed 16 years 8 months of actual KL,J W.P. Nos.20421 of 2019 & batch 36 sentence and 21 years 4 months of total sentence and, therefore, he is entitled for remission in terms of G.O.Ms.No.16. The respondents have granted remission to two persons viz., Rama Chowhan (Accused No.4) and Mohan Rao Chowhan (Accused No.11), and they were released in the year 2011 itself. The life-convict in the present writ petition also stands on the same footing and eligible for remission in terms of G.O.Ms.No.16, and however for the reasons best known to the respondents, they have not considered the case of life-convict in discriminatory manner.
iii) The petitioner herein has submitted representation dated 13.08.2019 reiterating the said facts to respondent No.1 with a request to release her husband by granting remission. Despite receiving and acknowledging the said representation, the respondents' authorities did not consider the same.
iv) It is relevant to note that respondent No.1 has issued guidelines for premature release of life-convicts and non-life convicts vide G.O.Ms.No.16, dated 17.02.2016. It is one time exemption for remitting the unexpired portion of sentence. As per para - 5 (i) (a), life-convicts (male) convicted under Sections 359 to 402 of IPC except 376 of IPC, on completion of 10 years of actual sentence including remand period and 12 years of total sentence including remission provided the convict does not have a past history of conviction under any of those sentences.
KL,J W.P. Nos.20421 of 2019 & batch 37
v) In the counter filed by respondent No.4, it is contended that the case of the life-convict in this writ petition was not considered in view of the fact that he had a past history of conviction under Section 395 of IPC. According to them, the life-convict was convicted for the offences under Sections - 395 and 400 of IPC. Keeping in view the past criminal history, Paragraph No.5 (i) (a) of the G.O.Ms.No.16, dated 17.02.2016, convict prisoner was not included in the list for release as he was not eligible under the guidelines of the said GO.
vi) Vide order dated 31.01.2012 in Crl.P. No.12130 of 2010, this Court directed that both the sentences imposed against the life- convict in the aforesaid two Sessions Cases i.e., S.C. Nos.533 of 2004 and 282 of 2003 shall run concurrently as provided under Section 427 of Cr.P.C. According to the life-convict, he has completed 16 years 8 months of actual sentence and 21 years 9 months of total sentence including remand period and remission.
vii) The petitioner herein is wife of the life-convict and she has submitted a representation on 13.08.2019. Respondent No.1 has received and acknowledged the said representation. Despite receiving and acknowledging, respondent No.1 neither considered the said request, nor rejected. It is relevant to mention that respondent No.1 has issued guidelines vide G.O.Ms.No.19, dated 28.07.2020 in supersession of earlier G.O.Ms.No.16, dated 17.02.2016. It is also relevant to note that in all the G.Os., respondent No.1 has specifically mentioned that the said remission is a one-time measure. As on today, KL,J W.P. Nos.20421 of 2019 & batch 38 the guidelines issued by respondent No.1 with regard to premature release of life-convicts is G.O.Ms.No.30, dated 26.09.2020 are in force. As per paragraph No.4 (b) of the said G.O., all convicted male prisoners sentenced to imprisonment for life including those governed by Section 433A of the Code of Criminal Procedure, 1973, and who have undergone an actual sentence of 10 years including remand period and total sentence of 14 years including remission as on 02.10.2020 shall be released. In the said G.O., in paragraph No.5, it is mentioned that the remission of sentence in para (4) shall apply to prisoners, who have been convicted by Courts situated within the State of Telangana and are undergoing sentence in other States, but shall not apply to certain category of prisoners mentioned therein. Paragraph No.6 of the said G.O. says that the cases of prisoners who are convicted for life, along with offences under certain provisions of law mentioned therein shall not be subjected to the conditions at para - 5 and shall be considered for grant of remission by the Government after undergoing the periods of sentence as on 02.10.2020.
viii) W.P. No.20425 of 2019: father of life-convict i.e., Shanker Chowan filed this writ petition seeking a direction to respondent No.1 to grant remission to his son, lifer, and a direction to respondent No.1 to recommend his sons names for grant of special remission in terms of G.O.Ms.No.16, dated 17.02.2016.
ix) The life-convict, son of the petitioner, was convicted in the said S.C. No.282 of 2003. According to him, the life-convict has KL,J W.P. Nos.20421 of 2019 & batch 39 completed 13 years 7 months and 3 days of actual sentence and the total period undergone by him is 21 years 8 months and 4 days which includes remand period and remission earned. Thus, he is entitled for remission as per G.O.Ms.No.16 dated 17.02.2016. The petitioner has also submitted a representation on 13.08.2019.
x) W.P. No.20530 of 2019: Father of life-convicts i.e., Shailu Bhosle and Ankosh Bhosle filed this writ petition seeking a direction to respondent No.1 to grant remission to his sons, lifers, and to recommend their names for grant of special remission in terms of G.O.Ms.No.16, dated 17.02.2016.
xi) Both the life-convicts, sons of the petitioner, were convicted in the said S.C. No.282 of 2003 for the offence under Section 395 of IPC and accordingly they were sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/- and in default to undergo simple imprisonment for three months. According to them, both of them have completed 13 years 7 months and 3 days of actual sentence and the total period undergone by them is 21 years 6 months and 4 days which includes remand period and remission earned. Thus, they are entitled for remission as per G.O.Ms.No.16 dated 17.02.2016. The petitioner has also submitted a representation on 13.08.2019. Despite receiving and acknowledging the said representation, respondent No.1 did not consider it.
KL,J W.P. Nos.20421 of 2019 & batch 40
xii) As stated above, the Apex Court in Jagdish8 categorically held that the remission policy existing as on the date of conviction of life-convict is applicable. The Apex Court in Laxman Naskar v. Union of India19 and Satish @ Sabbe413 categorically held that the respondents have to consider the triple factors, viz., (i) antecedents;
(ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime. It further held that the respondents' authorities shall not show any discrimination while granting benefit of remission to the lifers.
xiii) As stated above, respective petitioners herein have submitted a representation dated 13.08.2019 to respondent No.1. Respondent No.1 has received and acknowledged the said representations. Despite the same, respondent No.1 did not consider it.
xiv) In view of the above discussion and also considering the fact that the petitioner is seeking a relief of consideration of said representation and grant of special remission in terms of G.O.Ms.No.16, dated 17.02.2016 for release of the aforesaid life- convicts, W.P. Nos.20421, 20425 and 20530 of 2019 are disposed of directing respondent No.1 herein to consider the representation dated 13.08.2019 submitted by the respective petitioners within a period of four (04) weeks from the date of receipt of a copy of this order, by considering the principle laid down by the Apex Court in Jagdish8 19 . (2000) 2 SCC 595 KL,J W.P. Nos.20421 of 2019 & batch 41 wherein it was held that life-convict is entitled for remission in terms of policy existing as on the date of conviction and also the principle laid down in Laxman Naskar19 Satish @ Sabbe413 viz., respondent No.1 has to consider triple factors of (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime. Respondent No.1 shall also consider the contentions of the respective petitioner that this Court passed order dated 31.01.2012 in Crl.P. No.12130 of 2010 directing that sentences in both the aforesaid Sessions Cases shall run concurrently. However, respondent No.1 shall also consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
9. W.P. No.19525 of 2020: The petitioner, son of life- convict No.3893, SK Zakaria, filed this writ petition challenging the rejection Memo No.9439/Ser.III/A2/2019, dated 26.09.2019 and a consequential direction to the respondents to consider the case of his father for premature release as per the policy framed vide G.O.Ms.No.195, dated 30.06.1995.
i) The life-convict was convicted in S.C. No.112 of 1997 on the file of IV Additional Metropolitan Sessions Judge at Hyderabad vide judgment dated 24.012003 and accordingly he was sentenced to undergo life imprisonment for the offence under Section - 302 of IPC KL,J W.P. Nos.20421 of 2019 & batch 42 and also sentenced to undergo rigorous imprisonment for three years for the offence under Section 201 of IPC, however, directed to run both the sentences concurrently. In the said case, the allegation against the life-convict was that he along with other accused murdered one M.A. Khadeer, the then Deputy Secretary of Andhra Pradesh State Wakf Board on 09.11.1992 at 9.30 P.M.
ii) The petitioner herein has filed W.P. No.27105 of 2016 to declare the action of respondents therein in incorporating para 4 (xv) in G.O.Ms.No.16, dated 17.02.2016 as arbitrary and illegal and for consequential direction to the respondents therein to release the life- convict by extending the benefit as per the said G.O. by excluding the exceptions as incorporated in para 4 (xv) of the said G.O. Vide order dated 19.12.2016, this Court has disposed of the said writ petition with a direction to the petitioner herein to submit a representation afresh to respondent No.1 therein by placing reliance on G.O.Ms.No.16, dated 17.02.2016 informing that he is entitled for the benefit of premature release in terms of para 5 (iii) (a) of the said G.O. since he has completed 19 years including remission. On such representation, respondent No.1 was directed to dispose of the same as expeditiously as possible in accordance with law within a period of one month from the date of receipt of a copy of the said order. If the petitioner is aggrieved by the order of respondent No.1, he is at liberty to approach this Court.
KL,J W.P. Nos.20421 of 2019 & batch 43
iii) According to the petitioner herein, his father has submitted representation on 24.12.2016 to respondent No.1 in terms of the said order. Despite receiving and acknowledging the said representation, respondent No.1 did not consider the same within the outer time limit fixed by this Court. However, respondent No.1 has rejected the said request of the petitioner vide Memo No.9439/Ser.III/A2/2009, dated 26.09.2019 on the ground that there is prohibition clause i.e., Clause
(xv) of para (4) and para (5) of the G.O.Ms.No.16, as such, his request for premature release is hereby rejected.
iv) The learned counsel for the petitioner would submit that life-convict in the said case is entitled for remission in terms of G.O.Ms.No.16 since murder of the deceased therein took place at 9.30 P.M. and, therefore, he was not discharging his public functions at the time of incident. He is not a public servant. Even then, respondent No.1 did not consider the said aspects. However, the learned counsel for the petitioner would submit that life-convict is entitled for remission in terms of the remission policy existing as on the date of sentence i.e., 24.01.2003 as held by the Apex Court in Jagdish8. Respondent No.1 has not considered the principle laid down by the Apex Court in Laxman Naskar19 and Satish @ Sabbe413 viz., triple factors of (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime.
v) Respondent No.1 has intentionally and deliberately disobeyed the orders dated 19.12.2016 passed by this Court in W.P.
KL,J W.P. Nos.20421 of 2019 & batch 44 No.27105 of 2016 by not considering the representation submitted by the petitioner in terms of the said order within a period of one month. There is discrimination in considering the case of life-convict as was considered in respect of other life-convicts i.e., G. Mallesh Mohd. Mujib Ahmed, Raghavendra Reddy, Mayank Bohra, Md. Akbruddin and Md. Zakir Hussain whose details are specifically mentioned in the writ affidavit and, therefore, the action of respondent No.1 amounts to violation of Article - 21 of the Constitution of India. Further, the life- convict has acquired higher educational qualifications which are specifically mentioned in the writ affidavit. Thus, the life-convict is entitled for remission in terms of G.O.Ms.No.195, dated 30.06.1995 which were framed in terms of the judgment dated 16.02.1995 in W.P. No.2422 of 1995.
vi) On the other hand, it is contended by the respondents that the life-convict has not completed the minimum sentence in terms of the said G.O. The life-convict falls under paragraph - 6 (iii) (a) of the G.O.Ms.No.30 dated 26.09.2020 and he murdered a public servant. Therefore, respondent No.1 has rightly rejected the request of petitioner and there is no error in it nor discrimination on the part of respondents.
vii) This Court vide order dated 19.12.2016 in W.P. No.27105 of 2016 while considering the submission of life-convict that he has completed 18 years of actual sentence including remand period and 24 years of a total sentence including remission is entitled and eligible KL,J W.P. Nos.20421 of 2019 & batch 45 for premature release and since he has completed 19 years including remission in terms of G.O.Ms.No.16, dated 17.02.2016. Despite receiving and acknowledging the said representation submitted by the petitioner pursuant to the said order, respondent No.1 did not consider the same within one month from the date of receipt of copy of said order.
viii) The ground on which the case of life-convict was not considered is that he has not completed the actual sentence and total sentence and he has committed murder of a public servant and, therefore, he is not entitled for benefit under the said G.O.
ix) It is relevant to note that in the report of premature release dated 30.05.2010, it is specifically mentioned that the convict had no previous criminal record. He had amicable relations in the family, in the neighbours and the community people. He is respected and treated well in the family and neighbours. The convict has realized the importance of the family and his responsibilities. He loves his family and wishes to provide better living for his family and to fulfill his obligations of the Head of the family for getting good groom for his only daughter. The convict has already undergone 10 years 4 months 25 days sentence. He has lot of responsibility of the family and gives normal and honourable life to his children. His release will only benefit the family which is in severe crisis, keeping his conduct in prison and family problems. It is a fit case for release on "MERCY GROUNDS".
KL,J W.P. Nos.20421 of 2019 & batch 46
x) It is also further stated that the policy of the Government is to reform the prisoner to be properly rehabilitated by way of socialization of the individual in the society needs to be encouraged. The individual has concern for his family and wants to take responsibility of the family. Hence, he may be released on mercy grounds duly keeping him under the supervision of the District Probationary Officer, Rangareddy for the remaining unexpired portion of the sentence.
xi) In the proceedings No.PACCh/CRC/249/2016, dated 25.01.2017, submitted by the Superintendent of Jails, Cherlapalli to the Director General of Prisons and Correctional Service, Telangana, it is specifically mentioned that life-convict has completed 12 years 2 months and 5 days including remand period of actual sentence and a total sentence of 18 years, 2 months and 5 days including remission as on 26.01.2016, and the behavior of the life convict is satisfactory during the confinement period in Jail. Therefore, his case may be considered for premature release on humanitarian grounds.
xii) It is also trite to note that in another proceeding, dated 02.02.2017, while forwarding the proposal of the Superintendent, Prisoners Agricultural Colony, Cherlapalli, requested the Director General of Prisons and Correctional Services, Telangana State, Hyderabad to consider the case of life-convict sympathetically and on humanitarian grounds for premature release. But, the said facts were not considered by respondent No.1 in the impugned proceedings. The KL,J W.P. Nos.20421 of 2019 & batch 47 request of the life-convict was rejected by respondent No.1 on the ground that there is prohibition of Clause (xv) in para 4 and para 5 of the G.O.Ms.No.16, dated 17.02.2016. In view of the same, clause
(xv) of para 4 and para 5 of the said G.O.Ms.No.16 dated 17.02.2016 is extracted as under:
"(xv) of para-4: Prisoners convicted of murder of Public Servants while performing duty."
Para-5: The cases of prisoners who are convicted for life, along with offences under the following provisions of Law, shall not be subject to the conditions at para-4 above and shall be considered for grant of remission by the Government after undergoing the periods of sentences as on 26.01.2016 as specified:
(a)......
(b)......"
xiii) In the counter affidavit, it is stated that the incident of murder of the public servant had taken place at 9.30 P.M. and the deceased was a public servant i.e., Deputy Secretary, Andhra Pradesh Wakf Board. It is relevant to note that in the counter, it is stated that Mohd. Mujib Ahamed, at the time of his premature release, there was no specific clause to restrict for release of killing of public servants in G.O.Ms.No.196. With regard to Raghavender Reddy, convict No.8715, Mayank Bohra, Md. Akbruddin and Md. Zakir Hussain, Convict No.209, were released, even they were involved in killing of KL,J W.P. Nos.20421 of 2019 & batch 48 public servants, the relevant public servants were not on duty when the incident took place. Hence, they were considered as they were reached eligibility criteria in respect of premature release G.O.Ms.No.38, dated 28.03.2016 and guidelines issued by the State Government therein.
xiv) As stated above, in the present case also, the deceased was a Deputy Secretary, A.P. State Wakf Board and the incident had taken place at 9.30 P.M. Thus, the deceased was not on duty at the time of incident. The said fact was not considered by respondent NO.1 in the impugned rejection memo.
xv) As discussed supra, the Apex Court in Jagdish8 has held that remission policy as on the date of conviction of a life-convict is applicable. In Laxman Naskar19 and Satish @ Sabbe413 the Apex Court held that three factors should be considered viz., (i) antecedents;
(ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime.
xvi) Admittedly, in the present case, respondent No.1 has not considered the representation dated 24.12.2016 submitted by the life- convict in terms of the order dated 19.12.2016 in W.P.No.27105 of 2016 within one month from the date of receipt of a copy of the said order. There is no explanation, much plausible explanation by respondent No.1 for abnormal delay caused in considering the said representation. In the impugned rejection memo, there is no KL,J W.P. Nos.20421 of 2019 & batch 49 consideration of the principle laid down by the Apex Court in Jagdish8, Laxman Naskar19 and Satish @ Sabbe413. There is no consideration that the incident had taken place at 9.30 P.M. and, therefore, the deceased was not discharging his public duties at the time of incident as was considered in the cases of other life-convicts i.e., Mohd.Mujib Ahamed, Raghavender Reddy, convict No.8715, Mayank Bohra, Md. Akbruddin and Md. Zakir Hussain, Convict No.209. There is no consideration of antecedents and good behavior of the life-convict as recommended by the District Probation Officer, Grade-I, Ranga Reddy District and also the Superintendent of Jails, Cherlapally and the Deputy Inspector General of Prisons, Hyderabad Range in the proceedings dated 25.01.2017 and 02.02.2017 respectively. There is no consideration of educational qualifications acquired by the life-convict during serving out his sentence as held by the Apex Court in The Home Secretary (Prison) v. H. Nilofer Nisha20. Thus, there is discrimination in considering the benefit of remission by respondent No.1 in respect of life-convict.
xvii) It is relevant to mention that in the said judgment, the Apex Court directed the life-convicts to be released in exercise of its power under Article -142 of the Constitution of India, whereas, such power is not conferred on the High Court. In Zahid Hussein v. State of West Bengal21 the Apex Court held that conduct of prisoners while undergoing sentences has to be considered. For recommending 20 . Crl.Appeal No.144 of 2020 & batch decided on 23.01.2020 21 . (2001) 3 SCC 750 KL,J W.P. Nos.20421 of 2019 & batch 50 premature release, conduct of life-convict 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. The said aspect has to be considered keeping in view the conduct of the Petitioners therein 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.
xviii) As discussed supra, there is specific mention in the recommendation that the conduct of the life-convict is satisfactory and he is also maintaining good relation with the family. Thus, the life- convict will fit into three factors mentioned above. The said fact was not considered by respondent No.1 in the impugned rejection memo.
xix) In Puli Ramadevi14 this Court at paragraph No.11, has categorically held that respondent No.1 can review the case of life- convict and scrutinize and ensure conformation of the eligibility conditions laid down in the remission policy as held by the Apex Court in Union of India v. V. Sriharan22 that life-convict cannot claim remission as a matter of right and that all that he can claim is a right that his case be considered. The decision whether remissions be 22 . (2016) 7 SCC 1 KL,J W.P. Nos.20421 of 2019 & batch 51 granted or not is entirely left to the discretion of the authorities concerned, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner. Similar ratio was held by the Apex Court in Ashok Kumar Barik v. State of Orissa23.
xx) As discussed supra, there is no consideration of any of the principles laid down by the Apex Court in the judgments by respondent No.1 in the impugned proceedings dated 26.09.2019. Even respondent No.1 did not consider the order dated 19.12.2016 passed by this Court in W.P. No.27105 of 2016, wherein this Court ordered to consider the representation of the life-convict within a period of one month. There is no explanation, much less plausible explanation for abnormal delay in complying with the said order. There is no consideration of recommendations in the impugned proceedings. In view of the same, the impugned rejection memo is liable to be set aside and accordingly it is set aside.
xxi) Accordingly, W.P. No.19525 of 2020 is allowed setting aside the rejection memo No.9439/Ser.III/A2/2019 dated 26.09.2019. Further, respondent No.1 herein is directed to re-consider the representation dated 24.12.2016 submitted on behalf of the life- convict No.3893 within a period of four (04) weeks from the date of receipt of a copy of this order, strictly in accordance with the relevant 23 . (1998) 8 SCC 539 KL,J W.P. Nos.20421 of 2019 & batch 52 guidelines issued by respondent No.1 in G.O.Ms.No.30 dated 26.09.2020, which is in force as on today. He shall consider the actual sentence and total sentence completed by the life-convict, and the principle laid down by the Apex Court and other High Courts in the judgments mentioned above and also the remand period and remission, failing which, it will be viewed seriously. It is further directed that respondent No.1 shall consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS20 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
10. W.P. No.21397 of 2020: This writ petition is filed by Mr. M. Mohsin, who son of life-convict No.6484 (Mohd. Habeeb), accused in S.C. No.112 of 1997. This case is also similar to the case of life-convict - SK Zakaria in W.P. No.19525 of 2020 who is also one of the accused in the very same S.C. No.112 of 1997.
i) According to the petitioner, the life-convict has completed more than 25 years and 2 months in prison. The life-convict filed W.P. No.11825 of 2016 and the same was disposed of by this Court vide order dated 19.12.2016 with the following:
"The petitioner is directed to submit a representation to the 1st respondent by placing reliance on G.O.Ms.No.16, Home (Legal) Department, dated 17.02.2016 informing that he is entitled for the benefit of premature release in KL,J W.P. Nos.20421 of 2019 & batch 53 terms of para 5 (iii) (a) of G.O.Ms.No.16, Home (Legal) Department, dated 17.02.2016, since he has completed 19 years including remission. On such representation, the 1st respondent is directed to dispose of the same, as expeditiously as possible, in accordance with law, within a period of one (1) month from the date of receipt of a copy of the order. If the petitioner is aggrieved by the order of the 1st respondent, he is at liberty to approach this Court."
ii) Pursuant to the said order, the life-convict has submitted a representation dated 28.12.2016 and the same was rejected by respondent No.1 vide proceedings Memo No.RC3/369/2016, dated 12.01.2017 with the following:
"The attention of the Superintendent, Central Prison, Cherlapalli is invited to the correspondence cited and he is requested to inform that the request of the Convict Prisoner No6484 Mohd Habeeb @ Abbu S/o. Nabi for revoking of punishment orders is examined and hereby rejected."
The said order is without any reasons. There is no consideration of the principle laid down by the Apex Court in the aforesaid decisions. Thus, it is an order without application of mind. A perusal of the record would reveal that the life-convict has over-stayed for 44 days on Parole. Therefore, vide proceedings dated 14.08.2016, the Director General of Prisons and Correctional Services, Hyderabad, punished the life-convict with forfeiture of 220 days ordinary remission and denial of parole and furlough for a period of two years. It is also KL,J W.P. Nos.20421 of 2019 & batch 54 relevant to note that despite the said punishment, the respondents have considered the parole of the life-convict vide proceedings dated 04.12.2018 and 12.12.2018.
iii) In view of elaborate discussion in W.P. No.19525 of 2020, and for the reasons mentioned supra, the impugned rejection memo RC3/369/2016, dated 12.01.2017 is hereby set aside. Accordingly, W.P. No.21397 of 2020 is allowed setting aside the rejection memo RC3/369/2016, dated 12.01.2017 issued by respondent No.2. Further, respondent No.1 herein is directed to re-consider the representation dated 24.12.2016 submitted on behalf of the life-convict No.6484 (Mohd. Habeeb) within a period of four (04) weeks from the date of receipt of a copy of this order, strictly in accordance with the relevant guidelines issued by respondent No.1 in G.O.Ms.No.30 dated 26.09.2020, which is in force as on today and also the actual sentence and total sentence completed by the life-convict, and the principle laid down by the Apex Court and other High Courts referred supra and also the remand period and remission, failing which, it will be viewed seriously. However, respondent No.1 shall also consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
11. W.P. No.21478 of 2020: The petitioner in this writ petition is son of Mohd. Sarwar, Life Convict No.4161. He filed this writ KL,J W.P. Nos.20421 of 2019 & batch 55 petition seeking to declare the action of respondent No.1 in not complying with the order dated 19.12.2016 passed by this Court in W.P. No.11545 of 2016 as illegal and arbitrary and for consequential direction to consider the case of life convict for his premature release as per the policy framed in G.O.Ms.No.195 dated 30.06.1995 which was framed in pursuance to the order dated 16.02.1995 in W.P. No.2422 of 1995.
i) In this case also, the life-convict was sentenced to undergo imprisonment for life in S.C. No.112 of 1997 for the offence of murder of M.A. Khadeer, the then Deputy Secretary, A.P. State Wakf Board on 09.11.1992 at 9.30 P.M. According to the petitioner, his father, lift-convict has completed about more than 25 years in prison along with remission earned as on the date of filing the writ petition. As per the report dated 30.05.2010 by the District Probation Officer, Grade-I, Ranga Reddy District, the conduct of the life-convict while in Jail was very good and, therefore, requested to release him on mercy grounds, but his case was not considered. Accordingly, his father filed W.P. No.16800 of 2011 for his release in terms of G.O.Ms.No.283 dated 30.10.2010 and the said writ petition was dismissed. Thereafter, G.O.Ms.No.16 Home (Legal) Department, dated 17.02.2016 was issued granting special remissions to various categories of prisoners. Even then, the case of father of petitioner was not considered. Then, the father of petitioner filed W.P. No.11545 of 2016 and the same was disposed of by this Court vide order dated KL,J W.P. Nos.20421 of 2019 & batch 56 19.12.2016 directing the petitioner to submit a representation to respondent No.1 in terms of G.O.Ms.No.16 as he was completed 18 years 3 months including remission and on such representation, respondent No.1 was directed to dispose of the same as expeditiously as possible, in accordance with law, within a period of one month from the date of receipt of a copy of the said order.
ii) Pursuant to the said order, mother of the petitioner has submitted a representation to respondent No.1, but the same was not considered so far. Thus, there is a serious lapse on the part of respondent No.1 for non-compliance of the order dated 19.12.2016 passed by this Court in W.P. No.11545 of 2016. I have already discussed at length including the principles laid down by the Apex Court in W.P. Nos.19525 of 2020 and 21397 of 2020, and most of the facts of this writ petition are also akin to the said writ petition and, therefore, there is no need to discuss the same again.
iii) For the reasons mentioned in W.P. Nos.19525 and 21397 of 2020, this writ petition (W.P. No21478 of 2020) is disposed of directing respondent No.1 herein to consider the case of Mohd. Sarwar (Life-convict No.4161) in terms of the order dated 19.12.2016 passed by this Court in W.P. No.11545 of 2016 and also the guidelines framed by the Government vide G.O.Ms.No.195, dated 30.06.1995 within a period of four (04) weeks from the date of receipt of a copy of this order. Respondent No.1 shall also consider the actual sentence and total sentence completed by the life-convict and KL,J W.P. Nos.20421 of 2019 & batch 57 the principle laid down by the Apex Court and other High Courts mentioned above and the remand period and remission, failing which, it will be viewed seriously. However, respondent No.1 shall further consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
12. W.P. No.21948 of 2020: The petitioner in this writ petition is nephew of Ranjith Padwal, life-convict No.4134. The petitioner filed this writ petition seeking to declare the action of respondent No.1 in not complying with the order dated 10.01.2020 passed by this Court in W.P. No.4704 of 2014 as illegal and arbitrary and for consequential direction to consider the case of life convict for his premature release as per the policy framed in G.O.Ms.No.195 dated 30.06.1995 in pursuance of the order dated 16.02.1995 in W.P. No.2422 of 1995.
i) According to the petitioner, the life-convict has spent more than 17 years 4 months and 29 days along with remission earned and that the conduct of the life-convict in Jail has been very satisfactory and, therefore, his case has to be considered for premature of release. The life-convict has also filed W.P. No.4704 of 2014 for not considering his case for remission pursuant to the policy decision taken in G.O.Ms.No.220, dated 28.09.2013 as mala fide and arbitrary. In the said writ petition, This Court has considered the contention of the respondents' authorities that the life-convict is not entitled for KL,J W.P. Nos.20421 of 2019 & batch 58 remission in terms of G.O.Ms.No.220, dated 28.09.2013, more particularly, clause (xii) of para-4 as the said G.O. was not in force. However, while disposing of the said writ petition vide order dated 10.01.2020, this Court directed respondents therein to consider the case of life-convict in compliance with G.O.Ms.No.38, Home (Legal) Department, dated 28.03.2016 and pass appropriate orders within a period of four weeks from the date of said order. However, it is made clear that if the petitioner is aggrieved by such order, he is at liberty to question the same.
ii) This Court has also considered the fact that G.O.Ms.No.220, dated 28.09.2013 was not in force. As on today, remission guidelines issued by respondent No.1 vide G.O.Ms.No.30 dated 26.09.2020 are in force. According to the petitioner, life-convict is eligible to get benefit under remission guidelines. In Jagdish8, the Apex Court held that respondent No.1 has to consider the remission policy existing as on the date of conviction.
iii) In Shri Niwas3, the Apex Court directed the respondents therein to consider and dispose of the case of the petitioner for premature release within a period of one month from the date of said order. If, for some reason, they are not disposed of at the expiry of one month from that day, the petitioners shall then stand released on bail to the satisfaction of Chief Metropolitan Magistrate, Delhi. In case, ultimately, the Sentence Revising Board takes a decision adverse to these two petitioners, it will be open to the petitioners to challenge KL,J W.P. Nos.20421 of 2019 & batch 59 that decision in appropriate proceedings and it will also be open to the authorities concerned, if they are so advised, to apply for cancellation of bail.
iv) As already discussed supra, that in Zahid Hussein21 the Apex Court held that conduct of prisoners while undergoing sentences has to be considered and it is an important factor for premature release.
v) For the foregoing discussion, W.P. No.21948 of 2020 is disposed of directing respondent No.1 herein to consider the case of Ranjith Padwal (Life-convict No.4134) in terms of the order dated 10.01.2020 passed by this Court in W.P. No.4704 of 2014 within a period of four (04) weeks from the date of receipt of a copy of this order. However, respondent No.1 shall also considering the actual sentence and the total sentence completed by the life-convict including the remand period and remission earned, and also the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020 and the principle laid down by the Apex Court in the aforesaid decisions, failing which, it will be viewed seriously. However, respondent No.1 shall further consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
KL,J W.P. Nos.20421 of 2019 & batch 60
13. W.P. No.21484 of 2020: The petitioner in this writ petition is father of Thallpalli Ramulu, life-convict No.4335 and Thallpalli Anjaiah, life convict No.2643. This writ petition is filed seeking to declare the action of respondents in not considering the case of life- convicts for premature release even after a long incarceration of 17 years along with remission earned as arbitrary and for a consequential direction to the respondents to pardon and consider the cases of life- convicts for premature release as per the guidelines envisaged in G.O.Ms.No.190, dated 07.08.2004 and the principle laid down by the Apex Court in Jagdish8.
i) According to the petitioner, his sons are life-convicts, who were convicted in S.C. No.365 of 2007 on the file of II Additional Sessions Judge, Karimnagar for the offence under Section 302 of IPC and accordingly they were sentenced to undergo imprisonment for life vide judgment dated 19.12.2007. As on the date of filing the writ petition, the life-convicts have undergone 17 years of sentence along with remission. They had no adverse remarks while they are in jail. The life-convicts were convicted for double murder. The petitioner submitted a representation dated 30.07.2020 to consider the cases of his sons for premature release. But, his case was not considered by not including the names of his sons in the list of convicts to be released as per remission policies. The ground for rejection of his case was that his sons committed two murders and, therefore, they are not entitled for the benefit of premature release as per the Government KL,J W.P. Nos.20421 of 2019 & batch 61 instructions. According to the petitioner, the said ground is totally against the principle laid down by the Apex Court in Jagdish8 wherein it was held that claim of life-convict has to be considered as per the policy in existence as on the date of conviction. As per G.O.Ms.No.190, dated 07.08.2004, neither prisoner committed the offence under Section - 302 of IPC has been mentioned, nor prisoner who convicted of multiple murder, is extended the said benefit for premature release. Thus, the action of respondents in not considering the case of life-convicts is also against the guidelines issued in the said G.O.Ms.No.190.
ii) This Court has already dealt with the principle held by the Apex Court in Mahender Singh7 wherein it was held that any new policy will have a prospective operation and that the convict shall be governed by the policy that was prevailing at the time of his conviction. The said principle was reiterated in Jagdish8. Further, it is relevant to extract Article - 142 of the Constitution of India, which is as under:
"142. Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in KL,J W.P. Nos.20421 of 2019 & batch 62 that behalf is so made, in such manner as the President may by order prescribe (2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself"
iii) Even in this case, while serving out the sentences of imprisonment in jail, the life-convicts also acquired educational qualifications, which have to be considered while recommending the case for premature release as held by the Apex Court in H. Nilofer Nisha20. It appears the respondents' authorities lost sight of the said aspect.
iv) For the foregoing discussion, this Writ Petition is disposed of directing respondent No.1 herein to consider the case of petitioner's son viz., Thallpalli Ramulu (Life-Convict No.4335) and Thallpalli Anjaiah (Life-Convict No.2643) within a period of four (04) weeks from the date of receipt of a copy of this order. However, respondent No.1 shall also considering the actual sentence and the total sentence completed by the life-convict including the remand period and remission earned, and also the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020 and the principle laid down by the Apex Court in the aforesaid decisions, failing which, it will be viewed seriously. However, respondent No.1 shall further consider KL,J W.P. Nos.20421 of 2019 & batch 63 the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
14. W.P. No.24490 of 2020: This writ petition is filed by the petitioner, who is sister of Rajesh Goud, life-convict No.4247 seeking to declare the action of respondents in not considering the statutory mandate and three-factor evaluation of (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime for premature release of his brother as illegal and unjust and for consequential direction to consider the representation dated 30.07.2020 for premature release as per the G.O.Ms.No.19, dated 28.07.2020. A similar relief is sought in W.P. No.1463 of 2021.
i) According to the petitioner, her brother was convicted for the offence under Section 304-B of IPC vide judgment dated 09.09.2010 on the file of I Additional Sessions Judge, Rangareddy District in S.C. NO.108 of 2008 and accordingly he was sentenced to undergo imprisonment for life. As on the date of filing the writ petition, her brother has undergone more than 14 years along with remission. He has no adverse remarks during his incarceration period. Her brother submitted representation dated 30.07.2020 to consider his case for premature release, but the same was not considered. Thus, non- consideration of his case is against the guidelines issued by the Government vide G.O.Ms.No.19, dated 28.07.2020 and also the KL,J W.P. Nos.20421 of 2019 & batch 64 principle laid down by the Apex Court in Jagdish8, Laxman Naskar19 and Satish @ Sabbe413.
ii) In this case, the life-convict has completed 15 years of actual sentence. In support of the same, the petitioner has relied on a judgment rendered by the Apex Court in Criminal Appeal No.960 of 2020, dated 31.10.2018. Even the representation dated 30.07.2020 submitted by the life-convict has not been considered by the respondents. Despite receiving and acknowledging the representation, either it should be considered or rejected by the respondents. The respondents did not do so. Thus, there is laches on the part of respondents.
15. W.P. No.1463 of 2021: In this writ petition, the petitioner is nephew of Atchanna alias Anjaneyulu, Life-Convict No.4130. The life-convict was convicted by judgment dated 31.12.2007 in S.C. No.408 of 2006 on the file of IV Additional Sessions Judge (FTC), Rangareddy District for the offences under Sections - 302 and 380 read with 511 of IPC and accordingly, he was sentenced to undergo imprisonment for life. According to the petitioner, the life-convict has undergone a sentence of more than 13 years along with remission and that he had no adverse remarks during his incarceration period. Though she submitted a representation dated 30.07.2020 to consider her case for premature release in accordance with the guidelines issued by the Government vide G.O.Ms.No.19, dated 28.07.2020.
KL,J W.P. Nos.20421 of 2019 & batch 65 The case of the life-convict in this writ petition is also on the same footing of the life-convict in W.P.No.24490 of 2020.
i) For the foregoing discussion and also considering the principle laid down by the Apex Court and other High Courts referred supra, both the writ petitions viz., W.P. No.24490 of 2020 and W.P. No.1463 of 2021 are disposed of directing respondent No.1 herein to consider the representation dated 30.07.2020 submitted by Rajesh Goud, Life-Convict No.4247 and Atchanna @ Anjaneyulu, Life- Convict No.4130, within a period of four (04) weeks from the date of receipt of a copy of this order. However, while considering the said representation, respondent No.1 shall consider the actual sentence and the total sentence completed by the life-convicts including the remand period and remission earned, and also the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020 and the principle laid down by the Apex Court in the aforesaid decisions viz., Jagdish8, Laxman Naskar19, Satish @ Sabbe413 and Puli Ramadevi14, failing which, it will be viewed seriously. Respondent No.1 shall further consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
16. W.P. No.18838 of 2020: This writ petition is filed by the petitioners seeking to set aside the G.O.Ms.No.30, dated 26.09.2020 issued by the respondents as illegal and arbitration and consequential KL,J W.P. Nos.20421 of 2019 & batch 66 direction to the respondents to reconsider the cases of life-convicts for premature release in accordance with the guidelines issued by the Government vide G.O.Ms.No.19, dated 28.07.2020. Petitioner No.1 is son of SK Mushtaq Ahmed @ Goremiyan, Life-convict No.3532 and relative of Mukhtiar Ahmed, Life-convict No.1169. Other two writ petitions viz., 21967 of 2020 and 20259 of 2020 are also filed seeking similar relief.
i) According to the petitioners in W.P. No.18838 of 2020, the life-convicts were convicted vide judgment dated 04.10.2010 in S.C. No.807 of 2005 on the file of the IV Additional Sessions Judge (Fast Track Court), Karimangar for the offence under Section 302 read with 34 of IPC and accordingly, they were sentenced to undergo imprisonment for life. As on the date of filing of the writ petition, SK Mukhtiar Ahmed has undergone the actual sentence of 8 years, 11 months and 26 days and the total sentence of 12 years 4 days with remission, while SK Mushtaq Ahmed @ Goremiyan has undergone the actual sentence of 9 years 3 months and 8 days and the total sentence of 12 years 1 month and 8 days with remission. The remission policy would be applicable as on the date of conviction as held by the Apex Court in Jagdish8.
ii) The Director General of Prisons and Correctional Services, Telangana State, Hyderabad vide his letter No.RC3/194/2019, dated 04.08.2020 submitted to respondent No.1 specifically mentioned in the Annexure-IV to G.O.Ms.No.19, dated 28.07.2020 that KL,J W.P. Nos.20421 of 2019 & batch 67 SK.Muqthair Ahmed, life-convict, has completed 10 years of actual sentence and total sentence and recommended to consider his case.
17. W.P. No.21967 of 2020: According to the petitioner, she is mother of Tankri Kishen, life-convict No.4280. The life-convict in this case was convicted vide judgment dated 04.07.2013 in S.C. No.366 of 2012 on the file of VI Additional Sessions Judge at Siddipet for the offence under Section 302 of IPC and accordingly he was sentenced to undergo imprisonment for life. As on the date of filing the writ petition, the life-convict has undergone the actual sentence of 7 years, 11 months and 26 days and the total sentence of 12 years 4 days with remission. The remission policy is applicable as on the date of conviction as held by the Apex Court in Jagdish8.
18. W.P. No.20259 of 2020: According to the petitioner, she is mother of B.Shiva Prasad Rao, life-convict No.4159. The life-convict was convicted vide judgment dated 21.07.2009 in S.C. No.297 of 2008 on the file of the Special Judge for trail of Offences under the SCs/STs (POA) Act - cum - VI Additional Metropolitan Sessions Judge and accordingly he was sentenced to undergo imprisonment for life. As on the date of filing the writ petition, the life-convict has undergone the total sentence of nearly 14 years with remission. In this case also, the petitioner claims the remission policy as on the date of conviction as envisaged in G.O.Ms.No.190, dated 07.08.2004.
KL,J W.P. Nos.20421 of 2019 & batch 68
19. The learned counsel for the petitioners by referring to the comparative table of G.O.Ms.No.19 dated 28.07.2020 and G.O.Ms.No.30, dated 26.09.2020, would submit that G.O.Ms.No.30 is in violation of the principle laid down by the Apex Court in a catena of decisions. There is no consideration of the principle laid down by the Apex Court in Jagdish8, Laxman Naskar19 and Satish @ Sabbe413 on the ground that remission policy should be made applicable to the life-convict as on the date of conviction and three factors. The actual sentence and the total sentence undergone by the life-convicts were not properly considered in G.O.Ms.No.30. No reasons are forthcoming in issuing of modified GO. As held by the Apex Court in Jagdish8 that 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 pre-mature 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. As already discussed above, the Apex Court in Puli Ramadevi14 held that the right accrued to the eligible convicts to be considered for premature release cannot be nibbled without objectively examining their case.
20. Respondent No.5 filed counter contending that the remission policy / guidelines issued by respondent No.1 is one time, KL,J W.P. Nos.20421 of 2019 & batch 69 and in supersession of earlier guidelines, it has issued fresh guidelines from time to time. While issuing the said guidelines, respondent No.1 has considered the principle laid down by the Apex Court in a catena of decisions and also theory of reformatory criminal justice system. Thus, there is no error in issuing the guidelines vide G.O.Ms.No.30, dated 26.09.2020.
21. In view of the above submissions made by the learned Government Pleader for Home, the petitioners failed to establish any ground to set aside the G.O.Ms.No.30. However, considering the submissions made by the petitioners, it can be directed to reconsider the request of the life-convicts.
22. For the foregoing discussion and also the discussion made in W.P.No.20421 of 2019, these writ petitions viz., W.P. Nos.18838, 21967 and 20259 of 2020 are disposed of directing respondent No.1 herein to reconsider the cases of life-convicts viz., SK Mushtaq Ahmed @ Goremiyan (Life Convict No.3532); Tankri Kishen (Life Convict No.4280); and Mr. B. Shiva Prasad Rao (Life-Convict No.4159) within a period of four (04) weeks from the date of receipt of a copy of this order. However, while considering the said representation, respondent No.1 shall consider the actual sentences and the total sentences completed by the life-convicts including the remand period and remission earned, and also the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020 and the principle laid down by the Apex Court in the aforesaid decisions viz., KL,J W.P. Nos.20421 of 2019 & batch 70 Jagdish8, Laxman Naskar19, Satish @ Sabbe413, Zahid Hussein21 and Puli Ramadevi14, failing which, it will be viewed seriously. However, respondent No.1 shall further consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation.
23. The aforesaid discussion would reveal that respondent No.1 has not considered the earlier orders passed by this Court in the writ petitions mentioned above within the time limit granted by this Court. There is no explanation, much less plausible explanation from respondent No.1 with regard to the same and also with regard to abnormal delay caused in compliance of the orders passed by this Court. The said acts on the part of respondent No.1 will be viewed seriously. Thus, respondent No.1 is directed to comply with the orders passed by this Court in the above batch of writ petitions within the time stipulated, failing which it will be viewed seriously. Liberty is also granted to the petitioners to move contempt proceedings in the event of non-compliance of the orders passed by this Court within the time stipulated by this Court. Respondent No.1 shall consider the principle laid down by the Apex Court and various other High Courts referred supra with regard to various issues viz., remission policy as on the date of conviction of accused, educational qualifications, more particularly higher qualifications acquired by the life-convicts while KL,J W.P. Nos.20421 of 2019 & batch 71 serving out the imprisonment, triple factors stated above, conduct of the life-convicts and other aspects stated above. Respondent No.1 shall also keep in mind while considering the applications of the life- convicts the aim and object of remission and remission policy.
24. CONCLUSION:
i) Accordingly, W.P. Nos.20421, 20425 and 20530 of 2019 are disposed of directing respondent No.1 herein to consider the representations dated 13.08.2019 submitted by the respective petitioners within a period of four (04) weeks from the date of receipt of a copy of this order by considering the principle laid down by the Apex Court in Jagdish8, wherein it was held that life-convict is entitled for remission in terms of policy existing as on the date of conviction and also the principle laid down in Laxman Naskar19 and Satish @ Sabbe413 viz., respondent No.1 has to consider triple factors of (i) antecedents; (ii) conduct of the lifers during incarceration; and (iii) likelihood to abstain from crime. Respondent No.1 shall also consider the contentions of the petitioner that this Court passed order dated 31.01.2012 in Crl.P. No.12130 of 2010 directing that sentences in both the aforesaid Sessions Cases shall run concurrently.
ii) W.P. Nos.19525 and 21397 of 2020 are allowed setting aside the rejection memo Nos.9439/Ser.III/A2/2019, dated 26.09.2019 and RC3/369/2016, dated 12.01.2017 issued by respondent Nos.1 and KL,J W.P. Nos.20421 of 2019 & batch 72 2 respectively. Further, respondent No.1 herein is directed to re- consider the representations dated 24.12.2016 submitted on behalf of the respective life-convict Nos.3893 and 6484 within a period of four (04) weeks from the date of receipt of a copy of this order strictly in accordance with the relevant guidelines issued by respondent No.1 in G.O.Ms.No.30 dated 26.09.2020, which is in force as on today. He shall consider the actual sentence and total sentence completed by the life-convict, and the principle laid down by the Apex Court and other High Courts in the judgments mentioned above.
iii) W.P. No21478 of 2020 is disposed of directing respondent No.1 herein to consider the case of Mohd. Sarwar (Life-convict No.4161) in terms of the order dated 19.12.2016 passed by this Court in W.P. No.11545 of 2016 and also the guidelines framed by the Government vide G.O.Ms.No.195, dated 30.06.1995 within a period of four (04) weeks from the date of receipt of a copy of this order.
iv) W.P. Nos.21948, 21484, 24490 and 1463 of 2020 are disposed of directing respondent No.1 herein to consider the cases of
i) Ranjith Padwal (Life-convict No.4134) in terms of the order dated 10.01.2020 passed by this Court in W.P. No.4704 of 2014; ii) Thallpalli Ramulu (Life-Convict No.4335) and Thallpalli Anjaiah (Life-Convict No.2643) respectively; and iii) the representation dated 30.07.2020 submitted by Rajesh Goud, Life-Convict No.4247 and Atchanna @ Anjaneyulu, Life-Convict No.4130 respectively, within a period of four (04) weeks from the date of receipt of a copy of this KL,J W.P. Nos.20421 of 2019 & batch 73 order. However, respondent No.1 shall consider the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020, and also the principle laid down by the Apex Court in the aforesaid decisions viz., Jagdish8, Laxman Naskar19, Satish @ Sabbe413 and Puli Ramadevi14
v) W.P. Nos.18838, 21967 and 20259 of 2020 are disposed of directing respondent No.1 herein to re-consider the cases of life- convicts viz., SK Mushtaq Ahmed @ Goremiyan (Life Convict No.3532); Tankri Kishen (Life Convict No.4280); and Mr. B. Shiva Prasad Rao (Life-Convict No.4159) respectively within a period of four (04) weeks from the date of receipt of a copy of this order. However, while considering the said representation, respondent No.1 shall consider the guidelines issued by the Government vide G.O.Ms.No.30 dated 26.09.2020 and the principle laid down by the Apex Court in the aforesaid decisions viz., Jagdish8, Laxman Naskar19, Satish @ Sabbe413, Zahid Hussein21 and Puli Ramadevi14
vi) However, it is made clear that respondent No.1 while considering the aforesaid cases shall also consider the actual sentence and the total sentence completed by the respective life-convicts including the remand period and remission earned and the principle laid down by the Apex Court and other High Courts mentioned above. Further, respondent No.1 shall also consider the directions issued by the Hon'ble Supreme Court in RE: CONTAGION OF COVID 19 VIRUS IN PRISONS18 and Division Bench of this Court vide order KL,J W.P. Nos.20421 of 2019 & batch 74 dated 14.09.2020 in W.P. (PIL) No.164 of 2020 due to the present COVID-19 pandemic situation in each case, failing which it will be viewed seriously.
As a sequel, miscellaneous petitions, if any, pending in the Writ Petitions shall stand closed.
_________________ K. LAKSHMAN, J 01st June, 2021 Note: L.R. Copy to be marked (B/O.) Mgr