Biresh Poddar And Another vs State Of West Bengal And Others
2023 Latest Caselaw 4523 Cal

AD-29
Ct No.09
28.07.2023
TN
                            WPA No. 14257 of 2023

                            Biresh Poddar and another
                                       Vs.
                          State of West Bengal and others


             Mr. Gunjan @ Kanishk Sinha
                                               .... for the petitioners

             Mr. Biswabrata Basu Mallick,
             Mr. Sanjib Das,
             Mr. Madhusudan Mukhopadhyay,
             Mr. Biman Halder
                                                     .... for the State



                   The grievance of the petitioner no. 1, who is in

             incarceration for about twenty-three years, is that the

             petitioner no.1's prayer for remission was refused by

             the respondent authorities.

Learned counsel places reliance on several

judgments of this court, as well as the Supreme

Court, to indicate that the relevant criteria were not

considered by the respondent authorities while so

rejecting.

It is further submitted that the concerned

District Judge was not a part of the State Sentence

Review Board, which considered and rejected the

petitioner no.1's application for remission.

Learned counsel appearing for the respondent

authorities submits that the last rejection took place

in the year 2022. Hence, in the event the petitioner

no. 1 seeks remission, in view of the previous

rejection, he has to make a fresh application, which

can be considered by the respondent authorities in

due course of the law.

A perusal of the impugned order of rejection, as

disclosed by the State as well, indicates that the

consideration before the State Sentence Review Board

in its 67th meeting held on April 05, 2022, which also

comprised of the rejection of the present petitioner

no.1's application for remission, was on an extremely

cryptic note.

The remarks against the present petitioner

no.1's name, in the remarks column, read that the

petitioner no.1 "cold bloodedly murdered his wife and

five (5) daughters - inhuman in nature - chances of

future recurrence cannot be ruled out - there is no

one to look after him in family - local people raised

strong objection - considering nature of the crime and

objection by local people, premature release proposal

was strongly opposed. Considering the objection by

police authorities and apprehension about

rehabilitation, premature release was not

recommended by the Board".

        The     State         merely        acted           upon       such

recommendation            and      refused            the     petitioner's

application.

However, the Guidelines relating to premature

release of convicts/prisoners, as formulated by the

National Human Rights Commission, a copy of which

has been fairly handed up by the respondent

authorities themselves, indicated that there are

several other considerations which were omitted in the

impugned recommendation of the State Sentence

Review Board.

In a communication dated February 11, 1999,

the Joint Secretary of the National Human Rights

Commission circulated among all the IG

(Prisons)/Chief Secretaries of States, etc. the relevant

Guidelines.

Clause 5 of the said Guidelines pertains to

Procedure for processing of the cases for consideration

of the Review Board. In Clause 5.2, it is stipulated

that the Superintendent of Jail shall prepare a

comprehensive note giving out the family and societal

background of the prisoner and, inter alia, will reflect

fully about the conduct and behaviour of the prisoner

in jail during the period of his incarceration,

behaviour/conduct during the period he was released

on probation leave, change in his behavioural pattern

and the jail offences, if any, committed by him and

punishment awarded to him for such offence(s). A

report is also to be prepared about the

physical/mental health or any serious ailment of

which the prisoner is suffering, entitling his case

special consideration for premature release.

Clause 5.3, again, stipulates that the

Superintendent of Jail shall make reference to the

Superintendent of Police of the district where the

prisoner was ordinarily residing at the time of the

commission of the offence, for which he was convicted

and sentenced, or where he is likely to resettle after

his release from the jail.

There is a detailed modality spelt out in the said

guidelines.

Although a presumption may very well be raised

in the present case that the prescribed procedure was

substantially complied with by the State, even

proceeding on such premise, it is seen that the

consideration by the Sentence Review Board did not

take into account the relevant criteria and yardsticks

stipulated by the Guidelines of the Human Rights

Commission.

Tests, such as the conduct and behaviour of the

prisoner in jail during the period of incarceration, his

behaviour/conduct during the period he was released

on probation leave, change in his behavioural pattern

during his incarceration, the potential of the petitioner

to commit similar crime again and/or to create

conditions which might be detrimental to the people of

his neighbourhood, have not been considered in detail

in the said Review Board's meeting.

That apart, the composition of the Board is also

de hors the provisions of the Guidelines, since the

concerned District Judge was not a member of the

said Board.

Keeping in view such criteria, the matter is

required to be remanded back to the State Sentence

Review Board for a further consideration.

Since the petitioner had already made an

application, which was improperly considered by the

State Sentence Review Board, a further application of

the petitioner no. 1 is not required.

Accordingly, WPA No. 14257 of 2023 is disposed

of by directing the respondent authorities to place the

matter afresh before the State Sentence Review Board,

constituted properly in accordance with law and the

relevant Guidelines, for a reconsideration of the

petitioner no.1's application for remission, upon

taking into account all the relevant yardsticks as

stipulated in law and settled by several judgments of

the Supreme Court and this court, as well as the

relevant Guidelines, also considering the ingredients

as spelt out above in the present order.

It is expected that such reconsideration shall be

held as expeditiously as possible, preferably within

three months from this date. The State respondent

shall constitute a proper State Sentence Review Board

for such purpose, if necessary also placing before the

said Board other pending remission application(s) of

other prisoner(s), as expeditiously as possible,

positively within one month from this date.

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.)