Kanchi @ Sanjit Makhal vs The State Of West Bengal And Others
2023 Latest Caselaw 260 Cal

D/L. 11.
January 10, 2023.
 MNS.


                                 WPA No. 28437 of 2022

                                Kanchi @ Sanjit Makhal
                                         Vs.
                          The State of West Bengal and others

                       Mr. Malay Bhattacharyya,
                       Mr. Subhrajyoti Ghosh

                                     ... for the petitioner.

                       Mr. Raja Saha,
                       Mr. S. C. Lahiri

                                     ...for the State.

                       Learned    counsel    for     the     petitioner

                contends that the petitioner, who was convicted

                of an organised act of gang rape, has already

                spent more than 21 years behind the bars.

                Hence, the petitioner is entitled to premature

                release   from   custody    by     the     respondent-

authorities. However, the SSRB, that is, the

State Sentence Review Board, has turned down

such request of the petitioner.

It is contended, by placing reliance on

several judgments of the Supreme Court, that

none of the relevant criteria, which are to be

looked into while considering such request, were

taken into consideration in the present case.

Learned counsel appearing for the State

places reliance on a recommendation of the

National Human Rights Commission dated

October 20, 1999. It is submitted that, pursuant

to the said guidelines, the State of West Bengal

has already formed SSRB, which is functioning

and took the decision impugned in the present

writ petition.

By placing specific reliance on Clause 4 of

the said Guidelines, a copy of which is handed

over in Court and be kept on record, it is argued

by learned counsel for the State that certain

categories of convicted prisoners undergoing life

sentence "may not" be considered eligible for

premature release. Sub Clause 4.1 thereunder

stipulates that prisoners convicted of the offences

as given therein, including rape, fall within such

category.

Thus, it is submitted that the respondent-

authorities acted well within their jurisdiction and

discretion in refusing the premature release of the

present petitioner.

Learned counsel further argues that all the

procedures given in the guidelines were

undertaken duly by the respondent-authorities in

the present case, including seeking reports from

several authorities, as mandated therein.

Heard learned counsel for the parties.

The decision of the SSRB, annexed at

page 32 of the writ petition, specifically stipulates

the ground for refusal of the premature release of

the present petitioner in the following words:

"Organized act of gang rape by the convict and his associates on two girls. Hence, the crime affected the society. Premature release of the convict is opposed by police authorities. Considering the nature of crime committed by the convict and age and potentiality of the convict, premature release prayer of the convict is not recommended by the Board at this stage."

The yardsticks for considering premature

release were considered by the Supreme Court in

various judgements. In one of such judgements,

cited by the petitioner, that is, in the case of Zahid

Hussein and others Vs. State of West Bengal and

another, the Supreme Court held, inter alia, that

in the opinion of the Bench, the conduct of the

petitioners while in jail is an important factor to be

considered as to whether they have lost their

potentiality in committing the crime due to long

period of detention.

It was further observed 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. It was observed

in the said judgement that this has to be

considered keeping in view the conduct of the

petitioners during the period they were

undergoing sentence. In fact, age alone cannot

be a factor while considering whether the

petitioners still have potentiality of committing

crime or not as it will depend of changes in

mental attitude during incarceration.

The next judgment cited by the petitioners

is the case of Satish @ Sabbe Vs. The State of

Uttar Pradesh, where the Supreme Court held

that in the said case, considering how the

petitioners have served nearly two decades of

incarceration and have thus suffered 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. This would both ensure that liberty

of the petitioners is not curtailed, nor that there is

any increased threat to society.

It is seen from the judgements of the

Supreme Court that the general tenor of the view

expressed therein is that age ipso facto cannot be

a consideration for refusing premature release of

a convict. In fact, the factum of the present

petitioner being aged about 41 years does not by

itself operate against the petitioner's premature

release, but also is a factor for consideration in

favour of his release. Since the petitioner is not

too elderly till now, there is probably still scope of

reintegration of the petitioner in the mainstream of

society by engaging himself in a proper

occupation. However, if the said chance is

refused in a blanket fashion, the convict, who is

behind the bars would fail to appreciate the

rectification component of penalty.

Since jails are now called 'correctional

homes', the letter and spirit of such nomenclature

ought to be taken into consideration. In the event

premature release is refused merely on the

ground of the age of the petitioner and the nature

of the crime alone, it would not do justice to the

notion of justice befitting a civilized nation.

The fact that the organised act of gang

rape by the convict and his associates affected

the society at the relevant point of time twenty-

one years ago cannot be a determinant for

refusal of the premature release.

In the impugned decision of the SSRB, the

said authority proceeded to observe that

premature release of the convict was opposed by

police authorities and merely considering the

nature of crime committed by the convict and age

and "potentiality" of the convict, premature

release was refused. The nature of the crime

committed by the petitioner more than 21 years

back appears to have swayed with the SSRB

while coming to the conclusion that the

potentiality of the convict to commit the crime still

remains. Such yardstick is irrelevant and besides

the issue.

However, the Supreme Court has

repeatedly observed that what is relevant is the

conduct of the convict while in jail, which is an

important factor to be considered in respect of

loss of potentiality or retention of the same to

commit a crime over the long period of detention.

In the present case, however, there is no

iota of reflection of such consideration in the

decision of the SSRB. Rather, extraneous and

irrelevant circumstances including the present

age of the petitioner have been taken note of by

the SSRB while passing the order of refusal.

That apart, it is alleged that a co-accused

of the petitioner in the same crime has already

been granted premature release. The same, in

the event there is no prominent distinguishing

factor between the two, is patently violative of the

principle of equality enshrined in Article 14 of the

Constitution of India.

Such aspect of the matter is also not

reflected from the impugned decision of refusal of

premature release of the petitioner.

Hence, the impugned decision of the

SSRB not to recommend the premature release

of the petitioner cannot be sustained.

Accordingly, WPA No. 28437 of 2022 is

disposed of by setting aside the recommendation

of the State Sentence Review Board of West

Bengal refusing to recommend the premature

release of the petitioner.

The SSRB shall, on the basis of the

material feedback already on record, reconsider

the issue of premature release of the petitioner on

the correct yardsticks as indicated above,

including the conduct of the convict during the

period of his incarceration as well as his conduct

during parole (which appears to be satisfactory in

the present case).The SSRB shall also take into

consideration the factor that "more than two

decades of incarceration" (quoting from the

Supreme Court judgements) should have

sufficiently mitigated the potentiality of crime in

the petitioner.

The SSRB shall revisit the issue and

decide the same as expeditiously as possible in

accordance with law and in the light of the above

observations, positively within three months from

this date.

It is, however, made clear that the SSRB,

for re-deciding the issue on the criteria as

indicated above, shall not insist upon fresh

reports from various authorities and the proposal

of the Superintendent of Jail, but shall decide the

issue on the materials which were produced

before it on the previous occasion.

Upon such decision being taken, the same

shall be intimated immediately thereafter to the

petitioner.

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 with the requisite

formalities.

(Sabyasachi Bhattacharyya, J.)