Kanchi @ Sanjit Makhal And Another vs The State Of West Bengal And Others
2023 Latest Caselaw 6967 Cal

                      In the High Court at Calcutta
                     Constitutional Writ Jurisdiction
                              Appellate Side

The Hon'ble Justice Sabyasachi Bhattacharyya

                            W.P.A.NO. 20731 of 2023

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

     For the petitioners             :     Mr. Uday Sankar Chattopadhyay,
                                           Mr. Suman Sankar Chatterjee,
                                           Ms. Trisha Rakshit,
                                           Ms. Rajashree Tah,
                                           Ms. Aishwarya Datta

     For the State                   :     Mr. Somnath Ganguli,
                                           Mr. Balarko Sen

     Hearing concluded on            :     05.10.2023

     Judgment on                     :     11.10.2023



     Sabyasachi Bhattacharyya, J:-

1.

Both the petitioners are convicts and are languishing in jail since

June 20, 2001, that is more than 22 years.

2. They have been in continuous imprisonment in the Baruipur Central

Correctional Home. Intermittently, the petitioners were granted

parole. Their conduct during parole was without any complaint from

the Authorities. The petitioners have sought remission. One of the

co-accused of the petitioners, one Tarun Mondal was released by the

Supreme Court with the rider that he cannot enter the jurisdictional

police station area.

3. The petitioners‟ requests for remission, however, were repeatedly

refused.

4. Insofar as the petitioner no.1 is concerned, in a meeting of the State

Sentence Review Board (SSRB) dated September 2, 2022, the

premature release request was rejected. The same decision was

repeated on February 17, 2023.The considerations by the SSRB were

preceded by two orders of this Court passed in WPA No. 14583 of

2022 and WPA No. 28437 of 2022.

5. In case of the petitioner no.2, in the meeting dated September 2, 2022,

his prayer for premature release was rejected. The said consideration

was pursuant to an order also passed in WPA No. 14583 of 2022. The

primary premise of the rejections was the serious nature of the offence

committed by the petitioners which allegedly affected the society at

large, as well as the age, potentiality and social context of the

petitioners.

6. Learned counsel for the petitioners argues that the said last rejection

was patently contrary to the order dated January 10, 2023 passed in

WPA 28437 of 2022 by this Court, which relied on the judgment of the

Supreme Court in Satish @ Sabbe Vs. The State of Uttar Pradesh and

Zahid Hussein and others Vs. State of West Bengal and another.

7. The primary criteria regarding the conduct of the petitioners in jail, it

is argued, was never considered by the Authorities.

8. It is argued that there is no question of further potentiality remaining

in the petitioners to commit the crime for which they were convicted.

Hence, the petitioners challenge the refusal to grant premature release

to the petitioners.

9. Learned counsel for the State controverts the submissions of the

petitioners and argues that the potential of the petitioners to commit

similar crime again cannot be ruled out in view of them being in their

40s. As per Section 61(2) of the West Bengal Correctional Services

Act, 1992 (hereinafter referred to as, "the 1992 Act"), a prisoner shall

be released on certain specific cases. Examples of such cases are,

when a prisoner has undergone continuous imprisonment for a period

of 14 years including the period of release on parole, when a prisoner

is in danger on account of sickness or suffering from compete

blindness or infirmity of old age or leprosy or tuberculosis, when the

Superintendent recommends to the State early release of such

reformed prisoner, etc. In the present case, although the period of

incarceration was much more than 14 years, in view of the heinous

nature of the crime committed by them, since both of them are

convicts in gang rape cases, the authorities are not confident to

release the petitioners prematurely, particularly keeping in view the

welfare of the society at the effect of the crime on society at large.

Further, the age of the petitioners indicate that their potentiality

cannot be ruled out to commit similar crimes, if let loose early.

10. Learned counsel further argues that the authorities including the

Board considered the socio-economic condition of the petitioners and

only thereafter refused the request of the petitioners for early release.

It is argued that such discretionary power of the authorities ought not

to be interfered with.

11. Heard learned counsel for the parties. It is not in doubt that the

petitioners were guilty of gang rape and as such convicted to life

imprisonment.

12. The limited question is whether the discretionary power lying with the

SSRB was exercised properly and in due process of law, adhering to

the correct principles of law as laid down by the Supreme Court and

the appropriate norms of a civilised society.

13. A perusal of the order dated January 10, 2023 in WPA 28437 of 2022

as well as the previous refusal of premature release to the petitioners

shows that the grounds are common in the said case and now.

Remarkably, the authorities are equally cryptic and still continue to

pay lip-service to the considerations of law while passing such refusal

order.

14. The mere reference to the heinous nature of the crime committed and

the vague remark that the age and potentiality of the convicts are

against the grant of premature release are not sufficient from any legal

perspective whatsoever.

15. The SSRB has, probably in deference to the previous directions of the

Court, have added one or two grounds here and there for such

rejection, including the "associations and socio-economic conditions"

of the petitioners, whatever that means.

16. The grounds of refusal of the prayer for premature release of the

petitioner no.2-Kabu Malik along with thirteen other convicts vide the

SSRB meeting dated September 2, 2022 are reports from different

State authorities, age and potentiality of the life convicts, period of

detention undergone, physical and mental condition, conduct during

incarceration and while on parole, potentiality to commit any crime in

future, social acceptance, chances of rehabilitation, gravity and nature

of the crime and public sensitivity involved with the crime.

17. The ground of rejection in respect of the petitioner no.1 in the same

meeting dated September 2, 2022 was followed by a second refusal by

the Board on February 17, 2022. Virtually, the same grounds were

repeated. The age, physical potentiality, etc., of the petitioner no.1

were considered along with the gravity of the offence of the said

petitioner.

18. The SSRB, vide its decision dated February 17, 2023, observed that

gang rape of two girls, even long years back, has left a deep impact in

the society, particularly in the locality. The SSRB also noted that it

had considered the age, physical potentiality of the convict and his

associations and socio-economic condition. Surprisingly, the

Committee stated that in view of the said factors, "a doubt has

cropped up in the mind of the committee" that all such factors may

instigate him to commit further crime of such nature.

19. First, the mere gut feeling or doubt "in the mind of the committee"

cannot be a relevant consideration to jump to the conclusion that it

may instigate the petitioners to commit further crime of the same

kind, without any material basis for so observing.

20. The heinous nature of the crime is not doubted; but it occurred about

two decades back. The petitioners are in incarceration since then.

They do not have a life outside prison. It is as vague as possible to say

that the crime left "a deep impact in the society, particularly in the

locality". Children who were born at the time of the crime have since

attained adulthood and the locality must have evolved in structure

much. The "social Impact in the locality" cited by the authorities, if the

petitioners are released, has not been explained at all or

substantiated.

21. The age of the petitioner no.1 is around 41-42 years. At such age, the

petitioner is still capable of being rehabilitated in society, having spent

long 22 years behind the bars. Surprisingly, the ages of the petitioners

have been cited as reasons for the rejection, but the authorities have

not even enumerated their exact age in the refusal. There is no

explanation as to why the ages of the petitioners are magic numbers

due to which their premature release should be refused.

22. As to the physical potentiality of the petitioners, it is extremely

doubtful whether „physical potentiality‟ or mental drive sufficient to

repeat the same or similar crime would still remain in a prisoner after

22 years of incarceration. In fact, a person who has been behind the

bars for so long and knows fully well life in incarceration would

probably be much more cautious in future. It is absurd to assume,

without any material basis vis-a-vis the conduct of the petitioners in

prison or during parole, that he would still have associations and

physical potentiality to repeat the crime. The presumption would

rather be that a person who after the prolonged period of over two

decades behind the bars seeks a remission would be extra careful not

to repeat, not only the heinous crime for which he was incarcerated in

the first place but any offence for that matter which would make him

go behind the bars again. Thus, blindly citing the nature of the crime,

the age and the perceived „potentiality‟ of the criminal without an

objective assessment would frustrate the entire purpose behind

reformation in prisons.

23. Moreover, even something so grave in nature and "heinous" as a gang

rape does not justify castigating the convicts after 22 years. If the

authorities, who are in charge of reforming the convicts, themselves

give up on the latter and sit in judgment over them even after two

decades of incarceration in „correctional homes‟, God-forsaken are the

convicts.

24. What the SSRB meant by "socio-economic condition" of the petitioners

is patently suspect. The same was just a parroting of the said

yardstick, as contemplated by the courts in various decisions. Rather,

in the absence of anything adverse in the socio-economic conditions of

the petitioners to apprehend similar crime by the petitioner again, it

would be appropriate in the context and in the light of the judgments

of the Apex Court rendered time and again, to take a lenient view in

favour of the petitioners.

25. It is well-settled that in modern times, the penal law is not retributive

but at best a deterrent and definitely reformative. Even the jails have

been renamed in common parlance as "correctional homes" which

implies the implicit purpose of punishment to be

correctional/reformative. At the present age of social reforms and

evolution, when various measures are being taken all over the civilised

world to take a lenient approach favourable to the rehabilitation in

mainstream society of criminals and ensuring their reformation, it

would be harsh to shut out the attempts of a 22 years incarcerated

prisoner to go out and live his life anew without giving them a chance

to be repatriated in mainstream society.

26. The Supreme Court in Zahid Hussein (supra) had observed that the

conduct of the prisoners while in jail is an important factor to be

considered in ascertaining whether they have lost their potentiality in

committing the crime due to long period of detention.

27. The authorities themselves in the present case have observed there is

no adverse report against the petitioners during the period under

parole or to reveal anything adverse in the behaviour of the petitioners

inside the correctional home. The authorities have observed that the

petitioner no.1‟s behaviour in prison was good. The behaviour or

conduct of the petitioner no.2 has not been considered at all by the

SSRB while refusing his prayer for release.

28. In Satish @ Sabbe (supra), the Supreme Court was also considering a

two-decade old incarceration and observed that a balance between

individual and societal welfare can be struck by granting the petitioner

conditional premature release subject to their continuing good

conduct which would ensure that liberty of the petitioners is not

curtailed nor there is any increased threat to society.

29. In such context, age, per se, cannot be an adverse consideration for

refusing the petitioners premature release. In fact, it was observed

categorically in the order dated January 10, 2023 in WPA 28437 of

2022 that age ipso facto cannot be a consideration for refusing

premature release and that the factum of the petitioner no.1 being

aged about 41 years does not itself operate against the petitioners‟

premature release but rather is a factor for consideration in favour of

his release. The petitioner, it was held, is not too elderly till now.

Hence, there is still scope of reintegration of the petitioner in society

by engaging himself in an appropriate occupation. Brazen refusal of

such opportunity in a blanket fashion would ensure that the convict

would fail to appreciate the rectification component of penalty.

30. Seen from such perspective, the refusal by the respondent-authorities

to grant premature release to the petitioners is palpably bad in law.

31. It is required to be mentioned here that it is observed that the SSRB

and the respondent-authorities have been repeatedly dealing with

prayers of individual prisoners for premature release in a cryptic

manner. Although administrative exigencies require that detailed

reasons akin to a Civil Court‟s judgments need not be passed in

respect of each of the convicts, it would be only appropriate if instead

of clubbing numerous cases of premature release in the same meeting

and passing cryptic orders, the SSRB would hold consecutive sessions

periodically and regularly and take up for decision a comparatively

small number of individual cases of premature release of convicts in

each such session. Such an approach would ensure that the SSRB

can advert to the relevant factors as underlined by the High Courts

and the Supreme Court repeatedly regarding such premature release

of convicts by devoting more time to each of the convicts.

32. The manner in which the yardsticks such as age, physical potentiality,

etc. have merely been stated in a cryptic fashion, without even spelling

out as to the particulars of such yardstick, such as the actual age of

the victim, the actual reasons backing up the findings as to physical

potentiality, association of the convicts, socio-economic condition of

the convicts, etc, and enumerating specifically as to why such factor

went either in favour of or against the premature release of the

petitioners, cannot be sanctioned. Taking a cue from the above

observations, the SSRB ought to be more cautious and hold more

frequent sessions/meetings, taking up less number of individual cases

in each such meeting but holding consecutive sessions over a period

of days at a time if necessary and advert to the particulars of each of

the yardsticks in respect of each of the convicts and give specific

reasons for accepting or refusing the request of each prisoner by

dealing with the particular factors involved in such case.

33. Insofar as the present petitioners are concerned, the only reason why

their cases are being remanded back to the SSRB despite the SSRB

having performed very poorly on the last few occasions on the above

count is that this Court does not want to usurp the administrative

discretion of the SSRB and interdict due process of law. However, in

the event such exercises are repeated, appropriate orders would be

passed in future.

34. In the light of the above observations, WPA No. 20731 of 2023 is

disposed of by directing the respondent no.1 to ensure that the prayer

of the present petitioners for premature release is considered afresh in

the light of the above observations within November 30, 2023.

Immediately thereafter, necessary consequential steps shall be taken

by the respondent-authorities pursuant thereto. Whatever may the

outcome, the same shall be intimated not only to the petitioners but to

each of the convicts whose cases have been considered in the SSRB

meeting within a week thereafter. Such procedure should be followed

not as a one-time measure but on every such occasion for all

prisoners.

35. There will be no order as to costs.

36. Urgent certified server copies, if applied for, be issued to the parties

upon compliance of due formalities.

( Sabyasachi Bhattacharyya, J. )