Chattisgarh High Court
Sadhuram vs State Of Chhattisgarh on 1 November, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 18-08-2021
Pronounced on 1-11-2021
WPCR No. 171 of 2020
Sadhuram S/o Puniram Aged About 56 Years R/o Village Pota Police
Station Mlkharauda, District Janjgir Champa Chhattisgarh, Through
Dharampal Karamvir, S/o Puniram Karamvir, Aged About 56 Years,
R/o Village Malkharauda, District Janjgir Champa Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through The Secretary Home Department ,
D.K.S. Bhawan Secretariat Raipur , District Raipur Chhattisgarh.
2. Inspector General Perion / Jail Head Quarter, Raipur District Raipur
Chhattisgarh.
3. District Magistrate / Collector Bilaspur, District Bilaspur Chhattisgarh.
4. Superintendentent Central Jail Bilaspur, District Bilaspur
Chhattisgarh.
---- Respondents
For Petitioner : Mrs. Renu Kochar, Advocate
For State : Mr. Sudeep Verma, Dy. Government Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed the present WP(Cr) under Article 226 of the
Constitution of India seeking issuance of writ of mandamus to
respondents authorities directing them to release the petitioner as he
has completed 14 years of jail sentence, under the Provisions of
Section 433 of Cr.P.C.
2. The facts of the case, in brief, are that the petitioner is in jail since
05.10.1997 as he was convicted for the offence punishable under
Sections 302, 449 of IPC by the learned Additional Sessions Judge,
Shakti, District Janjgir-Champa in S.T. No. 496/97 on 23.10.1998.
Against that conviction he preferred an appeal before this Court in
Criminal Appeal No. 2737/1998 which was dismissed by this Court on
20.08.2014.
3. Learned counsel for the petitioner would submit that the brother of
the petitioner has submitted an application before concerning
Superintendent of Jail on 20.02.2020 for his release as he has
completed 14 years of jail sentence. The Superintendent of Central
Jail vide letter dated 07.02.2020 did not consider the application on
the ground that the petitioner has completed only 13 years 10 months
and 25 days as on 06.02.2020 including trial period/period after
conviction/remission period, since he has not completed 14 years of
jail sentence, he is not entitled to be released.
4. Learned counsel for the petitioner would further submit that in the
light of the provisions contained under Section 433 of the Cr.P.C., the
respondents may be directed to decide the petitioner's case for his
release which is pending since 20.02.2020.
5. The State has filed their return in which they have stated that as per
the judgment of Hon'ble Supreme Court in Union of India vs. V.
Sriharan 1 the petitioner should complete 20 years of stay in prison
which include 14 years of actual imprisonment whereas six years
shall consist of earned remission. It means, the petitioner has to
undergo imprisonment for 14 years. Since, he has not completed
actual 14 years of jail sentence, he has rightly been denied. The
details of imprisonment have been given in their return. The petitioner
has been remained in jail for a period of 18 years, 4 months and 28
days on 29.06.2020 which include under trial period of 1 year 17
days, convicted period of 13 years, 2 months and 18 days and
earned remission of 4 years, 2 months and 10 days. Learned counsel
for the State would further submit that the petitioner was released on
bail on 20.04.2006 and remained in bail upto 28.09.2014. This period
cannot be counted as having undergone the sentence. As such, the
petitioner has not completed 20 years as stipulated in circular dated
20.09.2017, he is not entitled to get the benefit. The relevant
paragraph of the circular is extracted below for convenience:-
" mijksDr ds laca/k esa funZsf'kr fd;k tkrk gsS fd vkthou dkjkokl dh ltk ls nf.Mr
cafn;ksa das }kjk 14 o"kZ dh okLrfod ltk ,oa vftZr ifjgkj dhs feykdj dqy HkqxrkbZ
xbZ ltk vof/k 20 o"kZ iw.kZ Caucasus ds 06 ekg iwoZ gh n.M nsus okys lacaf/kr ekuuh;
U;k;ky; ds ihBk/khu U;k;k/kh'k ls cafn;ksa 'ks"k ltk dk ifjgkj vkosnu eatwj fd;s
tkus ds laca/k esa vfHker izkIr djus dh dk;Zokgh izkjaHk dh tkos rFkk izdj.k esa
ekuuh; U;k;ky; ds vfHker izkIr gksus ds i'pkr 20 o"kZ dh ltk e; ekQh] iwjh gksus
ij canh dk iw.kZ izdj.k ;Fkk&canh dk vkosnu i=] ukfeuy jksy] ekuuh; ihBklhu
U;k;ky; dk vfHker] la{ksfidk] rS;kj dj rRdky bl dk;kZy; dks Hkstsa] rkfd fcuk
fdlh foyac ds cafn;ksa ds n.Mkns'k ds 'ks"k ltk dk ifjgkj eatwj djus ds mDr izdj.k
(2016) 7 SCC 1
esa 'kklu }kjk vko';d dk;Zokgh dh tk ldsA"
6. The points required to be determined by this Court are:-
1. Whether petitioner has completed actual 14 years of imprisonment
after excluding the remission or not?
2. Whether the petitioner can claim as a matter of right to be
released after completion of 14 years of imprisonment?
7. For proper understanding of the points to be determined it is
necessary to reproduce Sections 433 and 433A of Cr.P.C. which are
as below:-
"433. Power to commute sentence. The appropriate
Government may, without the consent of the person
sentenced, commute-
(a) a sentence of death, for any other punishment
provided by the Indian Penal Code;
(b) a sentence of imprisonment for life, for
imprisonment for a term not exceeding fourteen
years or for fine;
(c) a sentence of rigorous imprisonment, for simple
imprisonment for any term to which that person
might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
433A. Restriction on powers of remission or
Commutation in certain cases.- Notwithstanding
anything contained in section 432, where a sentence of
imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the
punishments provided by law, or where a sentence of
death imposed on a person has been commuted under
section 433 into one of imprisonment for life, such person
shall not be released from prison unless he had served
at least fourteen years of imprisonment."
8. Learned counsel for the petitioner would further submit that the Jail
Manual, Rule 358 provides release of prisoners who have completed
14 years of imprisonment. Rule 359 deals with constitution of
advisory board for grant of remission to the prisoners who have
completed 14 years of sentence. Rules 358 and 359 are reproduced
below:-
"358. (1) When a prisoner has been sentenced to
imprisonment for life, whether or not he has also been
sentenced to a term of imprisonment, or when he has
been sentenced to a term or term of imprisonment
exceeding 14 years, he shall be considered for release
as soon as the term already undergone (together with
any remission earned under the rules) and such other
special remission if any as have been granted by the
Government in celebration of any public event amounts
to fourteen years. His case shall be reported to the State
Government through the Inspector General with full
information regarding the character of his crime, his
conduct in prison and the probability of his reverting after,
release to criminal habits or instigating others to commit
crime, in order to enable the State Government to decide
whether he should be released and if so, whether he
should be subjected to police supervision or other
suitable conditions. If the State Government decides that
he should not be released, "then after two years from the
State Government's order his case shall be reported
again for further consideration.
(2) The Superintendent of the Jail in which the prisoner is
undergoing his sentence shall be primarily "responsible
for submitting the report under sub-rule (1).
359. There shall be four Advisory Boards for the jails in
Madhya Pradesh located at Jabalpur, Raipur, Gwalior
and Indore:-
(1) The Boards shall consist of 5 members namely -
(a) Inspector General of Prisons, Madhya Pradesh,
Chairman
(b) Deputy Inspector General of Police of the
ranges of Jabalpur, Raipur, Gwalior and Indore for
respective Boards.
(c) District Magistrates of the Districts of Jabalpur,
Raipur, Gwalior and Indore for respective Boards.
(d) The Session judges stationed at Jabalpur,
Raipur, Gwalior and Indore for respective Boards.
And
(e) One non-official member for each Board from
residents of one of the districts covered by the
Board located at the respective headquarters
appointed by the State Government.
(2) The Superintendent of the Central Jails of Jabalpur,
Raipur, Gwalior and Indore shall be Ex-officio Secretaries
of the respective Boards.
(3) A non-official member shall hold office for a term of
three years from the date of his appointment. Such
appointment shall be notified in the official Gazette.
(a) The State Government may if it thinks fit
without assigning any reasons, remove a non-
official member before the expiry of his term of
office such removal shall be notified in the official
Gazette and intimation thereof shall be given to the
Inspector General of Prisons, Madhya Pradesh
and Superintendent of the Jail concerned.
(b) The State Government may re-appoint a non-
official member after the expiry of his term of office.
(4) The function of the advisory Board |hall be to make
recommendations regarding the revision of sentences of
imprisonment passed by the criminal Courts.
(5) The jurisdiction of the 4 Boards shall be as below:-
(a) Advisory Board at Jabalpur - xxxxxxxxxxxx
(b) Advisory Board at Raipur - All the jails and sub-
jails situated in the districts of Raipur, Jagdalpur,
Bilaspur, Raigarh, Sarguja and Durg.
(c) Advisory Board at Gwalior - xxxxxxxxxxxxxxxx
(d) Advisory Board at Indore - xxxxxxxxxxxxxxxxx
(6) Each Board shall meet twice a year in February and
August at the place of its headquarters on such date and
at such time as may be fixed from time to time by the
Inspector General.
(7) In these rules a "long term prisoner" means a prisoner
sentenced to three years' imprisonment or more or to
imprisonment for life.
(8) The sentence of every casual long term prisoner who
has served half his sentence, and of every habitual long
term prisoner with not more than three previous
convictions who has served two-thirds of his sentence
shall be reviewed. The remission earned by the
prisoner's conduct and diligence, excluding that granted
in celebration of public events, shall be included in the
period of sentence undergone.
(9) (I) No sentence shall come up for revision until a
period of 2½ years, including remission earned has been
served.
But in cases in which prisoner charged with an
offence under Section 302, 303, 304, 396 or 397 of
the IPC is convicted of a lesser offence and is
sentenced to four year's rigorous imprisonment or
more, his case shall not come up for revision
before the Board until he shall have served a
period of four years inclusive of remission earned.
(ii) Sentences in default of the payment of fine
when the fine has not been paid, shall be included
when calculating revision board dates.
(iii) (a) For the purpose of calculating the date on
which the case of a convict with two or more life
sentences would be considered by the Revising
Board, such sentence shall be treated as
concurrent and his case shall be due for
consideration by the Board when he has served
half of the sentence if he is a casual or two-thirds if
he is an habitual convict.
(b) The case of convict with a life sentence and a
sentence for a definite term whether the two
sentences are concurrent or consecutive, shall be
considered by the Revising Board when he has
served half of the life sentence if he is casual or
two-thirds, if he is an habitual convict.
(c) In case of several sentences of imprisonment
for definite terms, if the sentences are concurrent,
they shall be treated as on sentence for the period
of the longest of such sentences. But if the
sentences are consecutive, the total of all such
sentences shall be taken into consideration for
fixing the date for the Revising Board subject to the
condition that if the total period which a term
convict has to serve in respect of two or more
consecutive sentences, exceeds 20 years the case
of a casual convict shall be referred to the Revising
Board after he has served ten years and that of an
habitual convict after he has served thirteen years
and four months.
(10) (a) The Superintendent of the jail where the
prisoners are confined whose cases have become
due for consideration by the Advisory Board, shall
obtain for the information of the board from the
District Magistrate of the district in which the
prisoner was residing before his conviction all
material information bearing on the case, and in
particular a report regarding the prisoner's conduct
and character before conviction and the local
conditions under which the prisoner would live in
the event of release. This information shall be
obtained in the form prescribed for the purpose.
Before sending of the form to the District
Magistrate the Superintendent shall enter in
column (5) of that form particulars of the prisoner's
conduct in jail, an opinion about his release and in
case where release is desirable on medical
grounds, the best available medical opinion
regarding the physical and mental condition of the
prisoner. The District Magistrate shall be given two
months notice of a meeting of the Board so that he
can collect the information in time.
(b) The District Magistrate shall give his opinion as to
the effect of the prisoners' release upon law and
order in the district, and shall give his reasons in
brief if he opposes release on the gound that it will
effect law and order adversely. His opinion or the
wider question as to whether in particular case of,
say, rape or murder, the prisoner was rightly
convicted and adequately sentenced in the first
instance would be irrelevant and even if of some
relevance the question should be left by the District
Magistrate to the Advisory Board and Government.
(11) The District Magistrate shall also supply for the
information of the Board the following documents
concerning the prisoners;
(a) particulars of the convict in the form appended
to these rules,
(b) history ticket
(c) a copy of the judgment.
12(a) The Board after a full consideration of the case
shall make a recommendation to the State Government
either to postpone the question of the grant of remission
for a period not exceeding two years or to release the
prisoner prematurely with or without conditions. Good
conduct in jail shall be indispensable condition for
recommendation by the Advisory Board for premature
release in all cases except when the recommendation is
made on urgent medical grounds. Where the members of
a Board are not unanimous, its recommendations shall
be in accordance with the opinions of the majority of its
members. Where a Board makes a recommendation
which is in opposition to the opinion of the District
Magistrate of the District in which the prisoner was
residing before his conviction it shall state the reasons in
details for such recommendations.
(b) If the State Government decides that the prisoner
should not be released, then after an interval of two
years from the State Government's orders, the prisoner's
case shall be reported again for reconsideration.
(13) (a) The Board may consider in the manner laid down
above case of long term prisoners convicted by courts
within the jurisdiction of another State Government. In
such cases the report of the District Magistrate referred
to in sub-rule (12) will be called for three months before
the meeting of the Board.
(b) Recommendations in such cases will be forwarded to
the State Government for transmission to Government
within whose jurisdiction the convicting Court lies.
(14) (a) The Board may consider the cases of persons
convicted by Courts-Martial in the manner laid down in
rules (2) to (12), Superintendents of Jails will obtain
information regarding their antecedents and character,
together with a statement of the offence direct from the
Adjutant General in India. The antecedents of such
persons at the time of enlistment may be presumed to be
satisfactory, and for the purpose of reviewing their
sentence, there is no practical necessity to inquire further
into their past. It should be noted that Court-Martial do
not record judgments. The Advisory Board will meet and
make inquires in the jail regarding the behavior of such
persons.
(b) Recommendations in such cases will be forwarded to
the State Government for transmission to Government of
India.
(15) When a case has been postponed for reconsideration a
fresh date of consideration shall be fixed on the date on which
the case is due for consideration the Superintendentshall
endorse fresh remarks as to conduct etc., on slips to be pasted
on the margin of the revision sheet but a fresh report need not
be called for from the District Magistrate.
(16) The Jailor shall maintain a Revising Board Register in
which he shall enter the dates of revision of all convicts at the
time of their admission. A sufficient number of pages shall be
set apart for each half ear and the name and number of each
convict with date of revision shall be entered in its appropriate
half year.
(17) The Superintendent shall record his opinion on the revision
sheet as to the convict's fitness for release and his physical
and mental condition, before his case is forwarded to the
District Magistrate.
Note -1 A convict's occupation shall be given in words
e.g. Barhai, Nai, etc.
Note -2 In the case of convicts sentenced in more cases
than one, full particulars of each case such as the name
of the sentencing officer, case number, crime section,
sentence and date of sentence shall be entered on the
revision sheet.
Note- 3 Convicts whose cases are about to be put up
before revising board for consideration shall not be
transferred to other jails unless their transfers are
absolutely necessary; or in the case of convicts confined
in district jails other than district jails at the divisional
headquarters where their cases are due to be
considered, their transfer to the district jail at such
divisional headquarters is required by the chairman of
the Revising Board. When a convict has been so
transferred the Superintendent of the receiving jail shall
see that the revision sheet of the convict is put up before
the board with a note indicating that the convict has been
so transferred.
(18) Revising Boards should scrutinise cases of professional
dacoits, i.e., dacoits with more than one conviction, with special
care and should not recommend the premature release of such
prisoners unless they are satisfied that there is no likelihood of
the prisoners resuming their previous criminal activities.
(19) (a) The revision sheets of all convicts recommended for
release by a Revising Board shall be forwarded by the
Secretary to the Board, to the State Government through the
Chairman of the Board. The revision sheets in other cases shall
be attached to the conviction warrants of thei convicts
concerned and in the case of convicts confined in other jails
shall be forwarded to those jails to be so attached to their
conviction warrants.
(b) If in the case of a life convict the Revising Board
decides not to recommend premature release and the
case is one to which the provision of rule next following
applies, the revisions sheet of the convict shall be
forwarded for consideration to the State Government with
the decision of the Revising Board recorded thereon.
(20)(a) When the case of any convict is received under the
fourteen year rule by the State Government before it has been
considered by the Revising Board, the State Government may
defer the determination of the period to be served till the case
has been so considered by the Government. To ensure proper
working of this rule, Superintendent shall make a note of the
fact on the convict's roll and also bring it to the notice of the
State Government. When submitting the Revising Board's
recommendation, that the determination of the period to be
served by the convict had been deferred by the Government at
the same time quoting the number and date of the Government
order.
(b) On receipt of the case of a life convict on the
recommendation of the Revising Board, the State
Government may pass one of the following orders:
(i) That the convict shall be released immediately
conditionally or unconditionally;
(ii) That the convict shall be released conditionally
or unconditionally after serving a stated period of
sentence inclusive of remission: or
(iii) That the case shall be reconsidered after a
stated period or after the convict has served a
specified period of sentence inclusive of
remissions."
In the second case when the release is to be unconditional the
convict shall be released without further reference to the State
Government when he has served the period specified in the
order. If the order is that the release shall be conditional
Superintendent shall resubmit the case to Government for
orders at least two months before the expiry of the specified
period of sentence. In such case and also when an order has
been passed by the Government as at (iii) above, the
resubmission of the case should be initiated by the Jail at least
two months before the date fixed for its resubmission in order
to avoid any possible delay in the receipt of the case by
Government.
(21) A note of the recommendation of the Revising Board and
the orders of the State Government in each case shall be made
in the Revising Board Register.
(22) In the case of every convict released under the provisions
of this chapter, the convict's revision sheet shall be attached to
the commitment warrant or warrant which shall, after proper
endorsement be returned to the Court concerned.
(23) The Board may also consider the cases of adolescent
prisoners confined in the Borstal Institute, Narsimhapur in the
manner laid down in rules (2) to (12) before they are
transferred to the adult jail on attaining the age of 21 years."
9. Learned counsel for the petitioner would also refer to the judgment
passed by the Hon'ble Division Bench of this Court in Writ Petition
(PIL) No. 78/2017 on 02.05.2009, relevant portion thereof is
reproduced as under :-
"14. Considering the statutory provisions contained under
Section 432 of CrPC read with Rule 358 and 359 of the Rules,
1968, we dispose of this PIL with the following directions :-
(1) The Prison Review Board constituted under Rule 358
of the Rules, 1968 shall meet at least twice in a year to
review the cases of all such convicts whose cases are
produced before it by the Inspector-General (Prison) for
exercise of power under Section 432 of CrPC.
(2) The Prison Review Board shall take up cases of such
convicts whose earlier application for release have been
considered and rejected more than two years back and
this practice should be followed in every meeting of the
Board.
(3) Whenever applications under Section 432 of CrPC
are sent to the Presiding Judge for its opinion under sub-
10 section (2) of Section 432, the Presiding Judge shall
not exercise his power in a mechanical manner. It is also
expected of the Presiding Judge that cases under
Section 432(2) of CrPC shall be disposed of within a
period of three months from the date on which the matter
is first placed before the Presiding Judge."
10. From bare perusal of para 6 of the return it will be evident that the
petitioner has completed conviction period to the tune of 14 years 6
months and 20 days. The details of imprisonment of the petitioner in
tabulated form is as below:
Period Sentence as on 29.06.2020
Under Trial period 1 year 17 days
Convicted period 13 years 2 months 18 days
Earned remission 4 years 2 months 10 days
Period Imprisonment
As on 29.06.2020 13 years 2 months 18 days
After 29.06.2020 till to 1 year 4 months and 2 days
date
Total 14 years 6 months 20 days
11. As per the circular dated issued by the Director General (Prison and
Correctional Services), Government of Chhattisgarh, out of 20 years
of imprisonment actual undergone imprisonment period should be 14
years and after remission he should have completed 20 years of
imprisonment, then only proceedings for grant of remission should be
initiated. Now, the petitioner has fulfilled the criteria fixed by the
Director General, therefore, the petitioner is at least now to be
considered for remission as he has completed 14 years of actual
imprisonment. However, it is well settled legal position that remission
cannot be claimed as a matter of right. The Hon'ble Supreme Court
in State of Rajasthan and Others vs Mukesh Sharma 2 while
considering the validity of the rules framed by the State of Rajasthan,
Rajasthan Prisons (Shortening of Sentences) Rules, 2006 has held
in para 13 and 15 as under:-
"13. Manifestly remission not being a matter of right, much less
upon completion of 14 years of custody, but subject to rules
framed in that regard, including complete denial of the same in
specified circumstances, as a matter of State policy, nothing
prevents the State from imposing restrictions in the manner
done by Rule 8(2)(i) to consider claims for remission.
15. It is, therefore, held that the High Court erred in striking down
Rule 8(2)(i) of the Rules, 2006 on both counts. The Rule is held
to be valid and consistent with the law......."
12. Point No. 2 is decided accordingly.
13. The Hon'ble Supreme Court in State of Haryana vs Raj Kumar
alias Bittu 3 has examined the provisions of 432, 433 A and policy of
the Government and after elaborate discussion has held in
paragraphs 19 and 20 as under:-
"19. The Notification dated 13.8.2008 published in exercise of the
powers conferred upon an appropriate Government under
Section 432(5) of the Code, provides that the appropriate
Government may, by general rules or special orders, give
(2019) 14 SCC 273
AIR 2021 SC 3813
directions as to the suspension of sentences and the conditions
on which petitions should be presented and dealt with.
Therefore, all the polices issued from time to time are under
Section 432 of the Code, though no reference is made to such
provisions in any of the policies except the last one dated
13.8.2008. The source of power to frame guidelines or the
policies for remission etc. was earlier in Section 59(5) of the
Prisons Act, 1894 and now in terms of Section 432(5) of the
Code. Therefore, such policies are statutory in nature, framed
in exercise of power conferred upon appropriate government
under Section 432(5) of the Code.
20. The clause 2(c) of the policy dated 13.8.2008 deals with the
convicts who have been imprisoned for life having committed a
crime which is defined in the Indian Penal Code, 1860 (IPC) as
punishable for life imprisonment but not with death sentence.
The cases of such prisoners can be considered after
completion of 10 years of actual sentence including undertrial
period provided the total period of such sentence including
remission is not less than 14 years. The distinction is that in
such cases, the remission is taken into consideration whereas,
the remissions earned by a prisoner convicted for an offence
under Section 302 IPC, an offence punishable with death,
cannot be considered for premature release. If such a prisoner
is to be considered for premature release in the cases of life
imprisonment for an offence under IPC, the bar under Section
433-A of the Code would not apply. The judgment in Jagdish
has to be read in the light of the distinction which we have
drawn between the power exercised by the Hon'ble Governor
and the power to be exercised by the State Government."
14. Since in present case petitioner has completed more than 14 years of
imprisonment therefore his case should be considered by State
Government for remission within a period of 3 months from the date
of receipt of copy of this order, in accordance with circular / policy of
the State Government.
15. With the aforesaid observation and direction, the present writ petition
(criminal) is finally disposed off.
Sd/-
(Narendra Kumar Vyas)
Judge
Deshmukh
