Sri Gopal Sarkar vs The State Of West Bengal And Others
2021 Latest Caselaw 1475 Cal

                        In the High Court at Calcutta
                       Constitutional Writ Jurisdiction
                                Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            WPA No. 3571 of 2020
                              Sri Gopal Sarkar
                                     Vs.
                     The State of West Bengal and others

For the petitioner      :     Mr. Sudipto Maitra,
                              Mr. Manojit Bhattacharyya,
                              Mr. Daipayan Biswas

For the State           :     Mr. Subhabrata Datta,
                              Mr. Benazir Ahmed,
                              Mr. Debashis Sarkar

Hearing concluded on    :     11.02.2021

Judgment on             :     19.02.2021

Sabyasachi Bhattacharyya, J:-


 1.   The petitioner was convicted to life imprisonment for offences under

      Sections 366/384/302/201 of the Indian Penal Code by the Judgment

      and Order dated December 14, 1991 of the Sessions Judge, Third Bench,

      City Sessions Court, Calcutta. Thereafter, the petitioner preferred an

      appeal against such judgment and was released from the Alipore Central

      Correctional Home on February 28, 1998, pursuant to an order passed

      by this court. On September 10, 2006, the petitioner was again sent to

      the Presidency Correctional Home and re-committed on November 6,

      2006. Thereafter, the petitioner was committed to the Dum Dum Central
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     Correctional Home on May 29, 2008. The appeal of the petitioner was

     ultimately dismissed and the conviction affirmed.


2.   After incarceration of over 14 years, the petitioner filed a criminal

     revision,   bearing   C.R.R.   No.       1545   of   2012,   wherein    the   then

     Superintendent of the Dum Dum Central Correctional Home affirmed an

     affidavit and intimated the court that a proposal had been sent to the

     Review Committee on June 28, 2012, through the IG Correctional

     Services for premature release of the petitioner, who had undergone

     actual imprisonment for more than 14 years.


3.   The revisional application was disposed of on August 16, 2012, upon a

     co-ordinate Bench observing that such disposal was in terms of the

     statement made by counsel for the State that the petitioner's case shall

     be taken up by the Review Committee on its next meeting and the

     decision would be conveyed to the petitioner. Liberty was given to the

     petitioner to challenge the order of the Review Committee.


4.   No   decision   was   subsequently        communicated       to   the   petitioner,

     prompting the petitioner to file a writ petition, bearing W.P. No. 4036 (W)

     of 2013. The said writ petition was disposed of by another co-ordinate

     Bench on February 27, 2013 with the observation that the petitioner's

     prayer for premature release shall be placed before the Review

     Committee in its next meeting. The Review Committee was to proceed to
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     consider the petitioner's application in accordance with law and pass an

     appropriate order. In the event the petitioner's prayer was rejected, a

     reasoned order was to be passed. If the prayer was accepted, necessary

     follow-up steps were to be taken without delay, also in accordance with

     law.


5.   Subsequently, on April 30, 2014, one Kamal Sarkar, the brother of the

     petitioner, gave a representation to the Chairman of the Review

     Committee, State of West Bengal to the effect that the petitioner had

     already served more than 17 years in correctional homes as a life convict.

     A request was made therein to take a decision regarding release of the

     petitioner on humanitarian ground. No such decision, however, was

     communicated to the petitioner or his brother, prompting the petitioner

     to file the present writ petition, seeking a direction on the respondents to

take adequate steps for arriving at a decision regarding the premature

release of the petitioner.

6. At the time of hearing, learned counsel for the State hands up the

minutes of the proceedings of the 64th meeting of the State Sentence

Review Board, West Bengal for consideration of premature release of life

convicts. Such meeting was held on February 3, 2020. It transpires from

such minutes that the request of premature release made by the

petitioner was not recommended by the Committee on the ground that

the petitioner was guilty of a group act, had potential to organize gang

and that reverting to crime could not be ruled out, based on the objection

given by the police authorities.

7. Learned counsel for the petitioner argues that one Bijon Barua, who was

also a prime accused in the same offence and was also convicted to life

imprisonment, has already been released prematurely. It is thus argued

that the petitioner suffered from a patent discrimination, violative of

Article 14 of the Constitution of India. It is further submitted by counsel

for the petitioner that the considerations, on which the petitioner's

prayer for premature release was rejected, were irrelevant in the context.

Such refusal was based solely on the report given by the police

authorities and did not take into consideration the petitioner's conduct

during the period of custody, which could only be intimated by the jail

authorities, whose views were not reflected in the minutes at all.

8. That apart, the Review Committee contravened the specific direction of

the co-ordinate Bench, dated February 27, 2013, in W.P. No. 4036(W) of

2013 that, if the petitioner's prayer is rejected, a reasoned order was to

be passed. In the present case, no reasoned order was passed. It is

submitted that the petitioner is already in actual incarceration for about

24 years and has attained an age of 53 years. It is, thus, irrelevant as to

the nature of crime committed by the petitioner more than two decades

ago, for the purpose of premature release.

9. It is further argued that the role of the petitioner in the offence-in-

question was minor, which justifies the premature release of the

petitioner all the more. Learned counsel places reliance on Section 433A

of the Code of Criminal Procedure and submits that a convict is entitled

to premature release in case of incarceration for more than 14 years,

which period has been exceeded by a decade in the case of the petitioner.

10. Learned counsel also refers to the West Bengal Correctional Services Act,

1992, with specific reference to Sections 58 and 61(4) of the said Act and

submits that the yardsticks mentioned therein were not applied in the

petitioner's case.

11. Rule 591(29) of the West Bengal Jail Code stipulates that only the

conduct of the convict in prison for the three years immediately

preceding the completion of 20 years in prison is to be considered for the

purpose of premature release. It is argued that there was no reflection of

such consideration in the minutes of the meeting held by the Review

Committee.

12. Learned counsel for the petitioner places reliance on Zahid Hussein and

others vs. State of W.B. and another, reported at 2001 SCC (Cri) 631, in

support of the proposition that the conduct of the convict while in jail is

an important factor to be considered to ascertain whether they have lost

their potentiality in committing crime due to long period of detention. In

the said case it was held that the views of the witnesses who were

examined during trial and the people of the locality cannot determine

whether the petitioners would be a danger to the locality if released

prematurely. This has to be considered keeping in view the conduct of

the petitioners during the period when they were undergoing sentence. It

was observed that age alone cannot be a factor while considering

whether the petitioner still has the potentiality of committing crime or

not as it will depend on changes in mental attitude during incarceration.

13. Learned counsel next relies on Laxman Naskar vs. Union of India and

others, reported at (2000) 2 SCC 595. In the said case, though the police

report did not cover all the points as per the guidelines framed by the

Government, the prayer of life convicts for premature release was

rejected mainly on the ground of objection by the police. The police had

only reported the chances of the petitioner committing crime again. The

Government did not consider the prayer for premature release as per the

Rules and did not pay sufficient attention to the conduct record of the

petitioners while in jail, nor did it consider whether they had lost their

potentiality in committing crime. It was held by the Supreme Court that

the relevant aspect, namely, that there is no fruitful purpose in confining

the convict any more, was also not considered, nor was the socio-

economic condition of the convict's family taken into account. Thus, the

Supreme Court set aside the orders of rejection of premature release of

the State Government and directed the Government to reconsider the

matter.

14. It is, thus, argued that the petitioner ought to be prematurely released

immediately upon a proper consideration of the relevant factors by the

Review Committee.

15. Learned counsel appearing for the State-respondent contends that the

procedure/guidelines on premature release of prisoners framed by the

National Human Rights Commission, a copy of which is handed up to

court, contemplates the eligibility for premature release under the

provision of Section 433A of the Code of Criminal Procedure. It is

stipulated therein that a consideration of the circumstances in which the

crime was committed was one of the relevant factors to be considered,

apart from whether the convict has lost his potential for committing

crime considering his overall conduct in jail during the 14 years'

incarceration, the possibility of re-claiming the convict as a useful

member of the society and the socio-economic condition of the convict's

family. The Commission was also of the view that the total period of

incarceration including remissions should ordinarily not exceed 20 years.

Certain illustrative cases of crimes were also mentioned therein.

16. It is submitted that the minutes of the relevant meeting of the Review

Board sufficiently indicate the considerations which were taken into

account for the purpose of assessing the requests of premature release. It

is argued that the input by the police authorities is also one of the

relevant factors as per the law and the judgments governing the field.

Moreover, the Notification dated January 24, 2000, published in

pursuance of the recommendations of the National Human Rights

Commission, for constituting a Review Board in order to review the cases

of life convicts detained in different jails, specified the Home Secretary,

Judicial Secretary, IG of prisons, West Bengal, Secretary, Home (Jails),

DG and IG of Police, West Bengal, Commissioner of Police, Calcutta and

the Chief Probation Officer as members of the Board. The Review Board

was to review cases of life convicts who have completed actual

imprisonment of 14 years and more and whose premature release has

not been recommended by the SP and District Magistrate for the Districts

and Commissioner of Police, Calcutta, as the case may be. Cases

including those pending with negative reports would be submitted before

the Review Board within 15 days from the date of receipt of the negative

reports. It is argued that the composition of the Committee itself

indicates that the Commissioner of Police, DG and IG of Police and Home

Secretary were members thereof. Moreover, the recommendations of SP,

District Magistrate and Commissioner of Police were also mentioned

therein. This justifies, according to learned counsel for the State, the

relevance of the inputs from the police authorities with regard to

premature release.

17. Learned counsel for the State cites the judgment of State of Haryana and

others vs. Jagdish, reported at (2010) 4 SCC 216. In the said case, the

Supreme Court held that the right of the convict is limited to the extent

that his case be considered in accordance with the relevant Rules, etc.,

but he cannot claim premature release as a matter of right.

18. The Supreme Court further held that at the time of considering the case

of premature release of a life convict, the authority may be required to

consider his case mainly taking into consideration whether the offence

was an individual act of crime without affecting the society at large,

whether there was any chance of future recurrence of committing a

crime, whether the convict had lost his potentiality in committing the

crime, whether there was any fruitful purpose of confining a convict

anymore and the socio-economic condition of the convict's family and

other similar circumstances. The Supreme Court went on further to

observe that consideration of public policy and humanitarian impulses

supports the concept of executive power of clemency. If clemency power

is exercised and sentence is remitted, it does not erase the fact that an

individual was convicted of a crime. It merely gives an opportunity to the

convict to re-integrate into the society.

19. It is, thus, argued that the potentiality of the convict to commit a fresh

crime and the nature of the crime for which he was convicted, apart from

the scope of re-integrating the convict into the society, are the relevant

factors, which were taken into consideration by the Review Committee in

the present case.

20. Learned counsel then cites State of Punjab vs. Gurmej Singh, reported at

(2002) 6 SCC 663, where the Supreme Court held, inter alia, that

premature release is considered on the material facts and circumstances

prevailing at the relevant time of release. Report of the officers concerned

is also called for and it is after consideration of all the materials that

necessary decision is taken in the matter.

21. Such observation also justifies, according to learned counsel for the

State, inputs being taken from the police authorities.

22. Learned counsel next cites Rajan vs. Home Secretary, Home Department

of Tamil Nadu and others [(2019) 14 SCC 114], in support of the

proposition that grant or non-grant of remission is a prerogative to be

exercised by the competent authority and it is not for the court to

supplant that procedure. Indeed, it was held in the report, grant of

premature release is not a matter of privilege but is the power coupled

with duty conferred on the appropriate Government in terms of Sections

432 and 433 of the Criminal Procedure Code, to be exercised by the

competent authority after taking into account all the relevant factors,

such as it would not undermine the nature of crime committed and the

impact of the remission that may be the concern of the society as well as

of the State Government.

23. In case of the present petitioner, it is submitted, none of the tests for

premature release were satisfied, as reflected from the minutes-in-

question. Bijon Barua, who was the other co-accused granted remission,

got such remission on intelligible differentia. The report of the authorities

in case of Bijon Barua indicated sufficiently that his overall conduct and

behaviour during his stay in police custody suggested that he committed

the crime in bad companionship and thereon he intended to lead a good

and honest life onwards. He also enumerated the fact that he felt guilty

for the crime that he committed. He participated in the crime for quick

money at a young age, when he could not have earned his livelihood

legitimately and also expressed the wish that, if released, he would spend

his life as a complete family man and would earn his livelihood on private

tuition and would live honestly the rest of his life. His wife had divorced

him long ago and his only daughter had got married. The daughter and

uncle came to meet him after one or two months. It was further reflected

that he was leading a tragic life with spiritual thoughts and that Bijon

Barua seemed to have lost mental strength and intention to repeat the

crime for which he was behind the bars.

24. Learned counsel relies on a Memo bearing No. Jt. CP(Crime)/CI/99/17

dated May 8, 2017 issued by the Joint Commissioner of Police (Crime),

Kolkata to the Commissioner of Police, Kolkata in such regard.

25. Learned counsel also relies on Memo No. 044(5)/DG-IG/20, Jt. C.P

Crime/SO 203 dated January 27, 2020 which reflects the brief facts of

the crimes and comments with reasons on the proposal of premature

release of the petitioner. The reasons given for the refusal to grant

premature release were:

          (i)     Heinous and group act,

          (ii)    May retaliate upon the witnesses,

(iii) Has age and potential to arrange a group/gang to commit such crimes,

(iv) He is divorcee; only his brother Kamal Sarkar visits him now and then, and

(v) He has no specific skill to earn his livelihood; hence, reverting to crime is highly probable. The police opposed the petitioner's release on such grounds strongly.

26. It is further submitted that the petitioner was found guilty of the offence

of murder under Section 302, read with Section 34 of the Indian Penal

Code, as well as criminal conspiracy under Section 120B of the Code. He

was further found guilty of the offence of causing disappearance of

evidence of the murder as contemplated in Section 201, read with

Section 34, of the Indian Penal Code and was convicted on all such

counts. Hence, it is submitted, the rejection of the petitioner's request for

premature release was fully justified by cogent reasons.

27. A consideration of Section 433A of the Code of Criminal Procedure read

with Sections 58 and 61(4) of the West Bengal Correctional Services Act,

1992 indicate that a convict who is behind the bars for more than 14

years can be released prematurely under certain considerations. Rule

591(29) of the West Bengal Jail Code stipulates the convicts' conduct for

the last 3 years prior to completion of 20 years of incarceration as a

ground of consideration for such release.

28. Sections 54 and 57 of the Indian Penal Code speak of punishment being

commuted.

29. A conjoint reading of the said provisions, however, merely casts a liability

on the authorities concerned to consider the case of premature release

under certain criteria. Those criteria have been sufficiently elaborated in

the guidelines issued by the Human Rights Commission, as

circumscribed by the several judgments of the Supreme Court holding

the field.

30. Clause 3.1 of the procedure/guidelines dated September 26, 2003,

issued by the National Human Rights Commission deals with the

eligibility of convicts for such premature release. The circumstances in

which the crime was committed, the potential of the convict to commit

such crime again, considering his overall conduct in jail, possibility of

reclaiming the convict as a useful member of the society and socio-

economic conditions of the convict's family are relevant considerations

stipulated therein.

31. In the present case, the minutes of the 64th meeting of the State

Sentence Review Board held on February 3, 2020, coupled with the

Memo dated January 27, 2020 referred to above, sufficiently indicate the

yardsticks on which the requests for premature release of convicts,

including the petitioner, were considered.

32. Clause 2 of the minutes stipulates the consideration, which includes

individual reports from Police Authorities, Correctional Home Authorities

and Probation-cum-After Care Authorities, the tenure of imprisonment

served by the life convicts, physical and mental condition, age, conduct

during incarceration, potentiality of committing crime in future, social

acceptance and chances of rehabilitation etc., of the life convicts. Gravity

of the offence and public sensitivity involved with the crime were also

part of the enumerated considerations. Thus, it is evident that all the

relevant yardsticks were applied by the Authorities while coming to the

decision regarding premature release of the convicts under consideration.

In fact, in case of 33 life convicts, the Committee recommended

premature release, on the considerations as stipulated in the minutes.

Six convicts were relegated to a further review meeting on the grounds

stated therein. 116 life convicts were refused the prayer for premature

release, including the present petitioner.

33. The short mention of the reasons in the third column of such minutes

mentioned group act, potential to organize gang and reverting to crime,

which could not be ruled out by the police authorities. That apart, Memo

No. 044(5)/DG-IG/20 of the Joint Commissioner of Police, Crime dated

January 27, 2020, issued prior to filing of the present writ petition,

provided further reasons for such refusal in case of the petitioner. The

scope of retaliation upon witnesses, the nature of the offence, being a

heinous and group act, and the age and potential of the petitioner to

arrange a group/gang to commit such crimes were considered. The social

situation of the petitioner and his chances of being reinstated were also

adverted to. The petitioner, it was recorded, has no specific skill to earn

his livelihood, thereby increasing the chances of reverting to crime.

34. As such, all the parameters as stipulated in the judgments cited before

this court were taken into consideration.

35. The procedure/guidelines on premature release of prisoners issued by

the National Human Rights Commission on September 26, 2003 were

specifically considered and adverted to, as reflected from the minutes of

the relevant Review Committee meeting and the other documents in that

regard placed by the State-respondent. As far as the violation of Article

14 is concerned, the petitioner does not have a fundamental or statutory

right to premature release. Undoubtedly, the petitioner has a right of

being considered for such premature release after a particular period of

incarceration, which right was exhausted by the petitioner upon a

consideration being given in that regard by the Review Committee. There

cannot be any invocation of Article 14 of the Constitution of India in

terms, since there were sufficient intelligible differentia existing in the

release of a co-accused, namely, Bijon Barua and the refusal of such

release to the petitioner. As far as the age and conduct in prison is

concerned, as well as the chance of rehabilitation in society and loss of

potential to commit a similar crime in future are concerned, Bijon Barua

was way ahead, as per the inputs in the reports by the authorities, than

the petitioner. A perusal of the minutes itself shows that sufficient

consideration was given to all the convicts for premature release. The

Review Committee gave adequate reasons for the refusal of the

petitioner's prayer for premature release, which are in consonance with

the tests laid down in the cited reports.

36. As such, the decision-making process of the Review Committee in

refusing premature release to the petitioner cannot be faulted. Police

reports are one of the components of the considerations which are

relevant for grant of premature release, along with other yardsticks. All

the parameters, as settled by the decisions of the Supreme Court and the

relevant guidelines of the National Human Rights Commission, were

satisfied in the present case. Hence, no fault can be found with the

decision-making process and/or the exercise of discretion by the Review

Board.

37. In the circumstances, the decision rejecting the petitioner's request for

premature release was justified and cannot be interfered with.

38. Accordingly, WPA No.3571 of 2020 is dismissed without any order as to

costs.

39. However, the petitioner will be at liberty to apply afresh for premature

release before the next Review Committee meeting. If such an application

is made by the petitioner, the Review Committee shall decide afresh on

the same in its next meeting in accordance with law and procedure,

without being influenced in any manner by any of the observations made

in this judgment.

40. Urgent certified copies of this order shall be supplied to the parties

applying for the same, upon due compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )