Md. Khalid vs Chief Secretary
2023 Latest Caselaw 5607 Cal

   14
28.08.2023
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              IN THE HIGH COURT AT CALCUTTA
             CONSTITUTIONAL WRIT JURISDICTION
                      APPELLATE SIDE

                    W.P.A. No. 9073 of 2023

                           Md. Khalid
                              Vs.
                        Chief Secretary,
                  State of West Bengal & Ors.


                 Mr. Krishna Das Poddar,
                       ... for the petitioner

                 Mr. Amal Kumar Sen,
                 Mr. Lal Mohan Basu
                       ...for the State

                 Mr. Saikat Banerjee,
                 Mr. Karan Prasad
                       ...for the High Court Administration


                 The present challenge is against a resolution of

              the State Sentence Review Board (in short SSRB),

              West Bengal for reconsideration of the petitioner's

              request for premature release. The petitioner is a

              lifer in jail since about 1993, that is, for a period of

              more than 30 years and is approximately 57 years

              of age.

                 Learned counsel for the petitioner submits that

              despite previous directions of a coordinate Bench of

              this Court for the Board to take into account the

              conduct of the petitioner during his time in parole

              and other relevant decisions of the High Courts and

              the Supreme Court in that regard, the SSRB again

              refused to consider the case of the petitioner for
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premature        release,       without      taking      into

consideration such aspects of the matter.

   Learned counsel places reliance on several

judgments, primarily of the Supreme Court as well

this Court, and submits that the overwhelming

majority of the judgments have held that the

conduct of the petitioner during parole and during

incarceration as well as the potential of the

petitioner to commit a serious crime if released

prematurely, are the relevant considerations, which

have not been adverted to by the SSRB.

   Learned counsel, apart from relying on such

judgments, which will be discussed hereunder, also

points out that the petitioner, being a graduate,

engaged in share-trading business during the

period when he was on parole on several occasions.

It is further submitted that the petitioner, if

rehabilitated,   can     join   mainstream     society    by

having a source of income, more so, since the

petitioner acquired employable skills during his

imprisonment, a certificate of which is annexed to

the supplementary affidavit of the petitioner.

   Learned counsel also places reliance on the

conduct of the petitioner during imprisonment,

which    was      satisfactory     even   as     per     the

Superintendent      of   the     concerned     Correctional
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Home     where   the    petitioner   was   all   along

imprisoned.

   Learned counsel next places particular reliance

on the observations of the coordinate Bench on the

last occasion, where the leaned Single Judge had

specifically observed that the Board is directed to

take into account the conduct of the petitioner no.

1 (present petitioner) during his time in parole as

well as recent decisions of the High Courts and

Supreme Court.

   Learned counsel for the State primarily opposes

the prayer on the ground that the crime committed

by the petitioner, for which he was convicted, was

heinous, being a noted bomb-blast case in the

middle of Kolkata, which resulted in death of about

70 innocent persons. It is contended that keeping

in view the nature of the said crime and the fact

that the petitioner has potential to recommit a

similar crime if let loose, the SSRB was quite

justified in refusing premature release of the

petitioner.

   That apart, it is pointed out that the SSRB gave

sufficient reasons in its refusal, observing inter alia

that the Review Board is not convinced that the

convict will not commit a crime of similar nature in

future, also noting that the Kolkata Police raised

strong objection and expressed concern about
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general aggravation of the law and order situation

in the event of release of the said convict.

   Learned counsel specifically places reliance on a

Notification dated December 20, 2022 by the

Government of West Bengal, which was published

in the Official Gazette on December 21, 2022.

     In the said Notification, pursuant to directions

of the Hon'ble Supreme Court in SLP(Crl) No. 529 of

2021,   certain   guidelines    were     issued   by   the

Government. The said guidelines, inter alia, require

that premature release has to be recommended by

SP and District Magistrate for the District and

Commissioner of Police, Calcutta for Calcutta, as

the case may be and the SSRB, before reviewing,

shall consider the opinion of the convicting or

confirming courts for premature release of the

convicts in the light of the order dated November

2012 passed by the Supreme Court in the matter of

Santosh and another vs. State of Haryana. Lastly,

the Circular provides, the SSRB will on the basis of

recommendation         made    by   SP     and    District

Magistrate or Commissioner of Police, as the case

may be, and on the basis of opinion of the

convicting/confirming courts, finally recommend

for release of the life convicts prematurely in

exercise of the power under Section 432(1) of the

Code of Criminal Procedure, 1973.
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     It is submitted that after being remanded to

the SSRB, the exercise ought to be considered as a

de novo consideration, where the Notification of

December 20, 2022 is squarely applicable.

     Learned counsel for the State next cites a

judgment authored by the National Human Rights

Commission,      providing    guidelines,       inter   alia,

regarding the stage of sentence review board and

premature release in Clause 4.1 thereof, while

considering the eligibility for premature release, it

is stipulated that prisoners convicted of offences

such as rape, dacoity, terrorist crime etc. shall not

be eligible for premature release.

     Learned     counsel   appearing      for    the    State

submits that since the police authorities have not

recommended,      rather     vehemently     opposed      the

premature release of the convict, that is, the

present petitioner, the SSRB rightly exercised its

authority in proper perspective and, as such, the

same ought not to be overturned by this court.

     Learned counsel appearing for the Registrar

General of this court submits that the impleadment

of the said respondent is rather premature since

the role of the said authority comes in only once the

question of taking the opinion of the

convicting/confirming court comes into play, which

is at a much later stage even as per the 2021

Notification.

Considered the arguments of the parties.

Out of the judgments cited by learned counsel

for the petitioner, State of Haryana vs. Raj Kumar

lays down that the power of remission is to be

exercised by the State Government as an

appropriate government if the prisoner has

undergone 14 years of actual imprisonment. The

said judgment primarily deals with interplay

between the power on the Governor and the State

Government and, as such, is not germane in the

present context. In the judgment of Laxman Naskar

vs. Union of India and others reported at (2000) 2

SCC 595, the Supreme Court laid down five

yardsticks for the purpose of premature release.

The guidelines are:

(i) Whether the offence is an individual act of crime without affecting the society at large;

(ii) Whether there is any chance of future recurrence of committing crime;

(iii) Whether the convict has lost his potentiality in committing crime;

(iv) Whether there is any fruitful purpose of confining the convict any more and;

(v) Socio economic condition of the convict's family.

Again in the judgment of Laxman Naskar vs.

State of West Bengal reported at (2000) 7 SCC 626,

the same guidelines were reiterated by the Supreme

Court.

Learned counsel also cites a judgment in WPA

17248 of 2021 (Sri Gopal Sarkar vs. State of West

Bengal and others) where several judgments of the

Supreme Court were considered. The court while

passing the said judgment inter alia places reliance

on Satish @ Sabbe vs. the State of Uttar Pradesh,

reported at (2021) 1 Supreme 294 where the

Supreme Court had observed 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.

Again in Zahir Hossain and others vs. State of

West Bengal and another reported at 2000 1 SCC

(Cri) 631, the Supreme Court laid down 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.

This court, in the said case, had also observed

that apart from the eight years while the prisoner

was on bail, he obtained five paroles for a total 42

days during the pandemic period during which he

roamed free and did not have a single incident

reported against him from any quarter of society.

The same was considered as a mitigating factor for

considering the premature release.

The takeaway from the above judgments is

that certain considerations have to be read into the

exercise of premature release of a prisoner/convict.

The Supreme Court has clearly observed that the

conduct of the prisoner while in jail and in parole is

an extremely important consideration in such

exercise and not merely the age of the petitioner or

the apprehensions of victims and witnesses and/or

neighbours.

The Supreme Court in Hossain (supra) has

also held 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.

In the present case, the place from where the

police came and the SSRB decided was mere

Paranoia on the part of the said authorities on the

premise of the nature of the crime committed by the

petitioner more than three decades back.

As in Hossain (supra), the potentiality of a

prisoner to commit crime has to be considered in

the context of the conduct of the prisoners in jail,

due to long period spent by the petitioner in

detention. It is rather obvious that a prisoner who

is for the last 30 years behind the bars, that is,

more than the period of his life when he was free

before his incarceration, the conduct of the

petitioner during his incarceration and parole

acquires all the more relevance rather than his

conduct prior to being convicted.

That apart, the five tests laid down by the

Supreme Court in Laxman Naskar vs. State of West

Bengal (supra) also take into account the factor

where the convict has lost his potentiality in

committing crime, which has been elaborated in

Satish @ Sabbe (supra).

The socio-economic condition of the convict

and his family is another relevant consideration.

In the present case, certain mitigating factors

have been projected by the petitioner such as the

petitioner having acquired employable skills while

in imprisonment as well as being a Graduate and

having engaged in share trading business, which is

a healthy commercial activity which can fetch some

income for the petitioner, which enhances the scope

of the petitioner being absorbed in mainstream

society and in the rehabilitation of the petitioner.

As of today, punishment is more of a correctional

measure than a retributive one and, as such, the

scope of rehabilitation has to be factored into any

consideration of early remission.

In the present case, the petitioner has annexed

to the supplementary affidavit a certificate given by

the Superintendent of the Correctional Home where

the petitioner is at present incarcerated. The same,

in no uncertain terms, enumerates that his conduct

during imprisonment is good and satisfactory.

Regarding potentiality of committing further crime

in view of his conduct/mental attitude [the test laid

down in Zahir Hossain (supra)] the Superintendent

of the Midnapore Central Correctional Home was of

the opinion that the petitioner has already lost his

potentiality, though apparently it cannot be judged,

but he has no tendency to commit further crime.

Even the cautious approach of the Superintendent,

which is evident from the said report, betrays the

fact that the Superintendent did not find anything

incriminating in the conduct of the petitioner while

considering his case.

On the question of chances of rehabilitation on

release, keeping in view the nature of labour

performed by the petitioner in custody, the

Superintendent touched the issue that before

custody/conviction, he was a businessman and,

according to his statement, he has every

potentiality of rehabilitation, giving tuition to

children/accountant job.

Even if we do not rely much on the said

statement, it is evident that the petitioner has

acquired certain skills as a graduate and has

earned some money from share transactions while

on parole. In fact, the petitioner was on parole for a

considerable period stretched over several (about

19) months, in the present case, during which is

conduct left no scope of being complained of.

Coming to the question of applicability of the

Notification of December, 2021, a careful scrutiny

of the matter discloses that the present case is not

a fresh consideration by the SSRB on a de novo

recommendation by the State or the police

authorities or any other authority.

In the present case, as evident from the

materials-on-record, there was an initial

consideration by the SSRB and an order was

passed by the said Board on September 14, 2018,

which is four years prior to the coming into force of

the 2022 Notification. By the said order, as

recorded in the order of the learned coordinate

Bench dated November 29, 2022 in W.P.A. 23255 of

2019 (which order was also passed prior to the

enactment of the notification) the prayer for

premature release of the present petitioner was not

recommended by the Board on the ground that the

petitioner was a part of a group which organized a

heinous crime with a chance of future recurrence.

The Court, while considering such issue, came to

the conclusion that the Board was to take into

account the conduct of the petitioner during his

time on parole as well as recent decisions of the

Supreme Court and High Courts with regard to

premature release, while reconsidering the issue of

premature release of the petitioner.

Subsequently, on March 24, 2023 in another

challenge, it was observed by the same learned

Judge that since the Board had given a decision as

reflected from the proceeding of the special meeting

held on February 17, 2023, the petitioner would

have to challenge the decision afresh, which was

preferred by the petitioner.

Hence, it is evident that the present

reconsideration is nothing but a part or a sequel of

the saga which started on September 14, 2018 with

the SSRB refusing the request of the petitioner for

premature release.

The entire exercise is being remanded time and

again to the SSRB because of the erroneous

construction by the SSRB and the State-authorities

of the law and the directions of this Court.

The crux and distilled proposition, which can be

culled out from the above discussions, including

the propositions laid down by the Supreme Court

and the High Courts as well as the previous

direction in the matter of the petitioner, the

relevant considerations are:

   (i)     the conduct of the petitioner - both

           during his time on parole as well as

           during incarceration,

   (ii)    The potential of the petitioner to organize

           a   similar     crime,      for    which   he    was

convicted in the first place, if released,

taking a cue from the conduct of the

petitioner as indicated above.

   (iii)   The   scope      of      the      petitioner    being

           rehabilitated         and         absorbed       into

mainstream society for the purpose of the

petitioner getting a second chance to lead

a good life conforming to the norms of the

society.

(iv) Whether the petitioner, keeping in view

the socio-economic background of the

petitioner, is in a position to earn some

amount of income to sustain himself if

released and/or whether the petitioner

has the minimum skills to integrate with

society and earn an income.

The above considerations are utterly absent in

the impugned decision of the SSRB. It transpires

from a cursory perusal of the same that the SSRB

was rather influenced by the opinion of the police,

which can be related to the Paranoia of the police

as observed above, that there was a strong

objection to the premature release merely because

of the heinous nature of the crime committed by

the petitioner thirty years back and the vague

possibility of the petitioner committing such crime

again, without any reflection whatsoever on the

conduct of the petitioner during his entire period of

incarceration and parole, which is the only relevant

yardstick to gauge the potential of the petitioner of

committing such crime.

In the impugned decision, the SSRB

overturned and reversed its previous observations

"keeping in view the nature of offence in which the

accused was involved", which is not the sole

consideration at all in such cases.

The Review Committee expressed that it is "not

convinced" that the convict will not commit a crime

of similar nature in future. The reason of such

conviction seems apparently to be nothing more

than thin air.

It as also mentioned, as an afterthought, that

the Kolkata police raised strong objection in the

meeting and expressed concern of the general

aggravation of the law and order situation in the

event of release of the said convict.

If "general aggravation of the law and order" is

a relevant consideration while assessing a case of

premature release, probably half of the population

qualify for being guilty of such general aggravation

of law and order situation and should be behind

the bars in the first place.

Such vague consideration, it is surprising, also

became a part of the SSRB consideration, although

the SSRB, as per the contemplation of the Statute,

is supposed to be a specialized authority, which is

in charge of considering the cases of premature

release of life convict, which is an extremely

sensitive issue.

Thus, the impugned decision of the SSRB in

its meeting held on February 17, 2023 does not

qualify to be sustained in any manner whatsoever,

being de hors the law as well as contrary to the

direction of the coordinate Bench under which the

same was undertaken, as well as being in gross

contravention of the judgments of the Supreme

Court prevalent in such field.

Insofar as the National Human Rights

Commission guidelines are concerned, there is

nothing to show that the said guidelines, including

Clause 4.1 thereof, is an absolute and binding

rider, which has to be adhered to by the State

operators and/or the SSRB.

In any event, the said guidelines were issued

long back and were fully in force from much before

the time when the previous considerations by the

learned Single Judge happened. Even the SSRB, on

the previous occasions, did not consider the said

guidelines as a relevant factor at all. Moreover, in

none of the previous orders of the coordinate Bench

can I find any reference to the said National Human

Rights Commission's guidelines by even the State

authority.

Thus, in the above circumstances, W.P.A. No.

9073 of 2023 is allowed, thereby setting aside the

impugned decision of the SSRB dated February 17,

2023 and remanding the matter back to the SSRB

to reconsider the question of the prayer for release

of the petitioner on the basis of the request made

on behalf of the petitioner in that regard in the year

2018, which exercise shall be completed positively

before the October 15, 2023. Such fresh

consideration shall be in the light of the above

observations and in consonance of the law on the

subject, as discussed above.

There will be no order as to costs.

Urgent photostat certified copies of this order,

if applied for, be made available to the parties upon

compliance of all necessary formalities.

(Sabyasachi Bhattacharyya, J.)