Sri Gopal Sarkar vs The State Of West Bengal And Others
2022 Latest Caselaw 6079 Cal

                           In the High Court at Calcutta
                          Constitutional Writ Jurisdiction
                                   Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                             W.P.A. No. 17248 of 2021

                               Sri Gopal Sarkar
                                     Vs.
                     The State of West Bengal and others



     For the petitioner              :     Mr. Sudipto Maitra,
                                           Mr. Vijay Verma,
                                           Mr. Dwaipayan Biswas

     For the State                   :     Mr. Amitesh Banerjee,
                                           Ms. Ipsita Banerjee

     Hearing concluded on            :     25.08.2022

     Judgment on                     :     30.08.2022



     Sabyasachi Bhattacharyya, J:-



1.   The petitioner is a lifer, in jail custody for more than twenty-three years.

     Kamal and Nepal Sarkar, the petitioner's brothers, made several efforts to

     obtain remission of the petitioner after he had served a considerable part of

     his sentence (more than fourteen years). Upon the State Sentence Review

     Board (SSRB) having rejected the petitioner's request for premature release

     on February 3, 2020, a writ petition, being WPA 3571 of 2020, was moved

     before this court, which was dismissed vide Judgment and Order dated

     February 19, 2021, thereby upholding the report of the SSRB.
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2.   Being thus aggrieved, the petitioner preferred an appeal bearing MAT No.

     252 of 2021. It was disposed of by a Division Bench on April 9, 2021 by

     granting liberty to the petitioner to make an appropriate application for

     remission of sentence before the competent authority, who was directed by

     the Division Bench to duly process that application following due procedure

     in terms of Section 432 of the Code of Criminal Procedure (Cr.P.C) and

     have a final decision taken through the competent authority.

3.   The SSRB, in its sixty-fifth meeting held on July 14, 2021, considered the

     cases of 322 life convicts for premature release under Section 432 of the

     Cr.P.C. However, the petitioner Gopal Sarkar, along with some others, was

     not recommended by the SSRB for premature release in its report. Such

     report was accepted by the State Government by an Order of the Principal

     Secretary to the Government of West Bengal dated September 9, 2021,

     against which the present writ petition has been preferred.

4.   Learned counsel contends that the power to suspend or remit sentences is

     provided in Section 432 of the Cr.P.C. Moreover, the Division Bench, when

     remanding the matter back, had specifically directed that the provisions of

     Section 432 have to be taken into account.          However, the decision

     impugned in the present writ petition was taken de hors the said

     provisions.

5.   Section 432(2) provides that 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 held or confirmed, to state his

     opinion as to whether the application should be granted or refused,
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      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.

6.    It is submitted that a judicial scrutiny is contemplated in the said provision

      for sufficient reasons.   Otherwise, it is submitted, the Government may

      arbitrarily remit sentences of convicts who have otherwise been held guilty

      of serious offences by courts of law.

7.    In the present case, however, it is submitted that the said sanction of court

      was never taken.

8.    Learned counsel for the petitioner, by placing reliance on Dharam Pal and

      others Vs. State of Uttar Pradesh and others, reported at (2014) 1 SCC (Cri)

      131 = [(2013) 9 SCC 798], submits that in the said judgment, the Supreme

      Court directed the petitioner to be released since they had completed

      fourteen years of imprisonment. The Superintendent of the concerned jail

      was to release the prisoners forthwith.

9.    Hence, there is no bar to the Court directly releasing the petitioner.

10.   Next placing reliance on Kansi Ram Vs. State of U.P., reported at 1990

      (Supp) SCC 134, learned counsel submits that the Supreme Court held in

      the said case that the petitioner was in actual detention for more than

      eighteen years; however, the State Government did not consider his case for

      release on the grounds that there was no source of means of living and that

      he may commit a crime after release.       The Government was also of the

      opinion that he may revert into crime and abscond.

11.   Those grounds, it was observed by the Supreme Court, betrayed a

      complete lack of application of mind on the part of the competent authority.
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      Ordinarily, the Supreme Court observed, it would have directed the

      competent authority to reconsider his case afresh, but having regard to the

      facts and circumstances of the case, inasmuch as he has actually remained

      in jail for more than eighteen years, it was directed that the respondent was

to release the prisoner from detention within two weeks from said date.

12. Learned counsel next cites Ram Chander Vs. State of Chhattisgarh and

another, reported at 2022 SCC OnLine SC 500. In the said judgment, the

Supreme Court discussed judicial review of the power of remission in the

context of Section 432 of the Cr.P.C. The Supreme Court held that, while a

discretion vests with the Government to suspend or remit the sentence, the

executive power cannot be exercised arbitrarily. The prerogative of the

executive is subject to the rule of law and fairness in State action embodied

in Article 14 of the Constitution. Other judgments of the Supreme Court

were considered in the said judgment and the said principle was reiterated.

Although it was held that the court can review the decision of the

Government to determine whether it was arbitrary, it cannot usurp the

power of the Government and grant remission itself. It was further observed

that where the exercise was found to be arbitrary, the authorities may be

directed to consider the case of the convict afresh. Although the court is

not to supplant the prerogative exercised by the competent authority, since

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 Cr.P.C., the petitioner is entitled to the relief of

having directions issued to consider his representation expeditiously on its

own merits. While commenting on the value of the opinion of the presiding

judge, the Supreme Court held specifically that the procedure under

Section 432(2) is mandatory. The manner in which the opinion is to be

rendered by the presiding officer can always be regulated and settled by

High Court concerned and the Supreme Court by stipulating the required

procedure to be followed as and when any such application is forwarded by

the appropriate Government.

13. Learned counsel for the petitioner next relies upon Satish @ Sabbe Vs. The

State of Uttar Pradesh, reported at 2021 (1) Supreme 294. It was held

therein that no convict can claim remission as a matter of right. Once a

law has been made by the appropriate legislature, it is not open for the

executive authorities to surreptitiously subvert its mandate. The Supreme

Court reiterated that any assessment regarding predilection to commit

crime upon release must be based on antecedents as well as conduct of

prisoner while in jail and not merely on his age or apprehensions of the

victims and witnesses.

14. Lastly, learned counsel relies on Zahid Hussein and others Vs. State of W.B.

and another, reported at 2001 SCC (Cri) 631. The Supreme Court laid

down therein that the conduct of the prisoners 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 are 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 prisoners during the period they were undergoing sentence.

Age alone, it was held, cannot be a factor while considering whether the

petitioners still have potentiality of committing crime or not, as it will

depend on change in mental attitude during incarceration. While coming to

the conclusion of the possibility of regrouping for anti-social activities, the

Review Board did not take into account that the life convicts are in jail for

more than eighteen years and the Board did not consider whether there

would be any fruitful purpose of confining the convicts any more and also

the socio-economic condition of their families.

15. It is submitted that the said vital considerations were omitted in the

present case.

16. Learned counsel appearing for the State controverts the submissions of the

petitioner and places reliance on the judgment on Dharam Pal and others

Vs. State of Uttar Pradesh and others [(2013) 9 SCC 798].

17. In the said case, the Supreme Court directed the Superintendent of the

concerned jail to release the prisoners forthwith, who were undergoing life

imprisonment. However, the Supreme Court did not directly pass an order

of releasing the convicts.

18. It is submitted that the National Human Rights Commission (NHRC) took a

resolution on October 20, 1999, the proceedings of which are relied on by

counsel. In the said guidelines, the constitution of a State Sentence Review

Board (SSRB) was contemplated. The composition of the State Board would

be as follows:

1. Minister-in-Charge, Jail Department/Principal - Chairman Secretary, Home; Principal Secretary-in-Charge of Jail Affairs/ Law & Order

2. Judicial Secretary/Legal Remembrancer - Member

3. A District & Session Judge nominated by the - Member High Court

4. Chief Probation Officer - Member

5. A senior police officer nominated by the DG of - Member Police not below the rank of IG of Police

6. Inspector General of Prisoners - Member-Secretary

The coram is to be at least four persons, including the Chairman.

19. In Clause 6.3 thereof, the Commission observed that while considering the

case of premature release of a particular prisoner the Board shall keep in

view the general principles of amnesty/remission of the sentence as laid

down by the State Government or by courts as also the earlier precedents

in the matter. The paramount consideration before the Board was to be

welfare of the prisoner and the society at large. More specifically, the Board

shall not ordinarily declare a premature release of prisoner merely on the

ground that the police has not recommended his release on certain far-

fetched and hypothetical premises. The Board shall take into account the

circumstances in which the offence was committed by the prisoner and

whether he has the propensity and is likely to commit similar or other

offence again.

20. Learned counsel for the State next relies on a report of compliance filed by

the State. It was indicated in the said report that the SSRB based its

recommendations on various reports obtained from the correctional home

where the inmate is housed, the local police and the Chief Probation and

After-care Officer. The composition of the Board has also been stated in the

report.

21. Hence, it is submitted, the respondent-authorities acted within the purview

of the guidelines of the NHRC and the documents obtained in connection

with the petitioner. Highlighting the fact that the petitioner had been

convicted for heinous offences, including kidnapping and murder of a

fourteen-year-old boy, it is argued that this Court ought not, under Article

226 of the Constitution of India, to substitute or supplant its own decision

for the exercise by the SSRB and the State in due compliance with law and

procedure as well as taking into account all relevant certificates.

22. Moreover, it is argued that further compliance of Section 432(2), Cr.P.C.

was not required in the present case. Although the Division Bench had

directed to take into account the provisions of Section 432 of the Cr.P.C.,

further reference to a court was redundant, since such exercise had already

been completed at the first instance when the matter had come up before

this Court. It is submitted that neither the NHRC guidelines nor the law

envisages a further reference to court in the second round of litigation, after

it passed through such sanction on the first occasion.

23. Upon hearing learned counsel appearing for the parties, a salient feature

which catches the eye is that the petitioner, who is in his late fifties, has

been in custody for more than 23 years. Out of the said period, for about

eight years, he was on bail (March 26, 1998 to September 10, 2006), till his

sentence was affirmed. During the entire period, the petitioner's records

stand unblemished. About thirty local residents filed joint petition

indicating their view that they had no objection if the petitioner was

rehabilitated in normal life upon remission.

24. The reference in the police report, on which the SSRB relied, was to the

opinion of "disinterested persons in the neighbourhood". Such

indeterminate, vague body of 'disinterested' persons could not be a

sufficient stimulus for taking the serious decision of refusing remission to

the petitioner, despite the authorities having recommended his name for

remission.

25. That apart, the two brothers of the petitioner, namely Nepal and Kamal,

affirmed affidavits on several occasions to say that they are willing to take

responsibility of the petitioner upon remission. It is to be noted that the

affidavit in support of the present writ petition has been affirmed by the

wife of one of such brothers. Hence, the ground cited in the refusal of

remission to the petitioner, that the petitioner does not have the potential

to earn livelihood and does not have anyone to go back to, apart from one

brother who has been visiting him, is perverse on the face of it. That apart,

it cannot be expected that the convict, even after incarceration for almost a

quarter of a century, would be proficient in some vocation. Adverse

inference drawn against the convict on such ground would be entirely

counter-productive to the concept of remission and negate the reformative

purpose of punishment.

26. Modern society has been increasingly laying stress on reformation and not

retribution. Such purpose would be totally frustrated if remissions are

refused even after so many years of custody to prisoners having no criminal

antecedents otherwise. In the event of such refusals, the hyper-technical

approach of the authorities would invalidate the justification of the

ornamental moniker "correctional home", which is the present jargon in

vogue for jail, and relegate it to mere hypocrisy on the part of civil society.

27. Surprisingly, the report of the Probation-cum-After-care Officer dated

September 9, 2021, which has been annexed to the present writ petition,

was never considered. The report of the Superintendent of the Dum Dum

Correctional Home dated January 23, 2021, which was sent to the

respondent-authorities, clearly reflects the impeccable records of the

petitioner. It is clearly evident from the same that the petitioner had all

along shown good and respectful attitude to the administration as well as

his co-inmates. Not only that, the petitioner, according to the said report,

also undertook nursing activities and looked after mentally unsound

prisoners.

28. Such acts of the petitioner clearly speak out loud in favour of his remission.

29. That apart, the petitioner has had no criminal antecedent otherwise than

the present conviction.

30. Such documents and factors were utterly overlooked in refusing the

petitioner's remission.

31. During his entire jail tenure of 23 years, the petitioner was never castigated

even by a single adverse report by the jail authorities. Apart from the eight

years while he was on bail, the petitioner had obtained five paroles for a

total of 42 days during the pandemic period. During this entire period

when the petitioner roamed free, he does not have even a single incident

reported against his from any quarter of society.

32. The respondents have merely cited the age of the petitioner (who is now

about 57 years old) to hold on to the conjecture that he had the potential to

regroup and to threaten the witnesses of the case in which he was

convicted.

33. However, age itself would not be a valid consideration, as also held by the

Supreme Court in several cited judgments as discussed above.

34. In the event the petitioner's physical and mental soundness are construed

against him for the purpose of remission, the entire purpose behind the

concept of "correctional homes" would be frustrated. In fact, a remission

would be wasted on a person of unsound mind and/or body, apart from the

perspective of human sympathy, in the sense that such person might not

be able to contribute effectively to the society.

35. Hence, such opinion of the police authorities is ridiculous, in the absence of

even a single adverse report or other factor supporting such allegation. The

entire apprehension against the petitioner is based on thin air, as opposed

to the joint petition filed by the residents of the locality for his release.

36. In the present case, it is also to be noted, the SSRB was not composed of

the exact officers contemplated in the guidelines of the NHRC, which is

cited by the State itself. Whereas a District and Session Judge nominated

by the High Court is absent, no reference was even made to a court within

the contemplation of Section 432(2) of the Cr.P.C,, although the Division

Bench, while remanding the matter, specifically directed Section 432 to be

considered in its entirety and not sans sub-section (2) thereof.

37. Thus, upon a complete appreciation of the evidence glaring from the record,

it is seen that both the SSRB and the respondents committed a patent

perversity in refusing remission to the writ petitioner.

38. After the direction of the Division Bench, the observations of the Single

Judge in respect of the petitioner became academic and merged into the

Division Bench judgment.

39. Hence, the direction of the Division Bench prevails, mandating the

respondent-Authorities to consider Section 432 in its proper perspective

while reconsidering remission.

40. The yardsticks provided therein and in the landmark judgments of the

Supreme Court, as cited by the petitioner and indicated above, clearly

vitiate the exercise of the respondents' power in refusing the remission of

the petitioner.

41. There is no hard and fast rule, even as per the Supreme Court judgments,

that the matter has to be referred back to the authorities in every case.

42. The opinion of the Supreme Court in Ram Chander (supra) to that effect,

was not in the context of a prior exercise having been indicated in Section

432 and, more importantly, there was no direction by any Division Bench of

the High Court in the said case for the respondents to reconsider the entire

prayer of remission in the context of Section 432 of the Cr.P.C. The

moment Section 432 is directed to be complied with, it is implicit in the

order of the Division Bench that the respondent had to comply with the

said provision in its entirety, including sub-section (2) thereof. Having not

done so, the impugned refusal of remission cannot be sustained in law.

43. In any event, since the above discussion shows that there are overwhelming

materials-on-record unerringly indicating towards remission of the

petitioner, there is no justifiable cause to violate the petitioner's right of

equality as enshrined in Article 14 of the Constitution of India in

discriminating against the petitioner to refuse such remission. Since the

respondents, including the SSRB (which was not validly constituted as per

the NHRC guidelines), shirked their responsibility to adhere to the law and

relevant criteria, further remand would unnecessarily rob the petitioner of

his personal liberty for a further inordinate period, for which this Court

cannot be pardoned by its own judicial conscience.

44. Keeping on balance of interest of society and the personal liberty of the

petitioner, as well as taking into consideration all the materials admittedly

on record, I am, thus, of the opinion that the petitioner ought to be granted

remission immediately.

45. Accordingly, WPA No.17248 of 2021 is allowed, thereby setting aside the

decision of the respondents to refuse the remission to the petitioner,

namely, Gopal Sarkar. The respondents are directed to immediately release

the said Gopal Sarkar from custody, in view of the remission so granted by

this Court.

46. The order be communicated by the Office at the earliest to the

Superintendent of the Dum Dum Correctional Home in order to implement

the early release of the petitioner.

47. There will be no order as to costs.

48. Urgent certified copies, if applied for, be issued by the department on

compliance of all requisite formalities.

( Sabyasachi Bhattacharyya, J. )