Kerala High Court
Prasanna vs State Of Kerala on 11 April, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:31224
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
WA NO. 1245 OF 2024
AGAINST THE JUDGMENT DATED 14.08.2024 IN WP(Crl.)
NO.90 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
PRASANNA
AGED 59 YEARS, W/O.RAJAN, VELLAMATHUKUDI HOUSE,
KEEZHILLAM (P.O), PERUMBAVOOR, ERNAKULAM
(DIST)., PIN - 683541
BY ADV K.DEEPA (PAYYANUR)
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 THE ADDL. CHIEF SECRETARY TO HOME DEPARTMENT
GOVERNMENT OF KERALA, SECRETARIAT,
THIRUVANANTHAPURAM., PIN - 695001
3 THE DIRECTOR GENERAL OF POLICE (PRISONS)
POLICE HEAD QUARTERS, THIRUVANANTHAPURAM.,
PIN - 695001
4 THE SUPERINTENDENT OF PRISON
OPEN PRISON & CORRECTION HOME NETTUKALTHERI,
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2025:KER:31224
-: 2 :-
THIRUVANANTHAPURAM (DIST)., PIN - 695572
5 THE CHAIRMAN
JAIL ADVISORY COMMITTEE, OPEN PRISON &
CORRECTION HOME NETTUKALTHERI,
THIRUVANANTHAPURAM (DIST)., PIN - 695572
BY ADVS.
SHRI.P.NARAYANAN, SPL. G.P.
SHRI.JACOB P.ALEX, AMICUS CURIAE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2025, ALONG WITH WA.2137/2024, THE COURT ON
11.04.2025 DELIVERED THE FOLLOWING:
W.A. Nos.1245 and 2137 of 2024
2025:KER:31224
-: 3 :-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
FRIDAY, THE 11TH DAY OF APRIL 2025 / 21ST CHAITHRA, 1947
WA NO. 2137 OF 2024
AGAINST THE JUDGMENT DATED 03.12.2024 IN WP(Crl.)
NO.79 OF 2024 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER IN THE WRIT PETITION:
BINDU PRAKASAN
AGED 47 YEARS, W/O PRAKASAN,
PARAMBIL HOUSE, BROTHERS ROAD, KANDANNASSERY
P.O., THRISSUR, PIN - 680102
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
MANU SRINATH
LIJO JOHN THAMPY
NIVEDITA MUCHILOTE
RIYAS M.B.
RESPONDENTS/RESPONDENTS IN THE WRIT PETITION:
1 STATE OF KERALA
HOME DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
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2025:KER:31224
-: 4 :-
2 DIRECTOR GENERAL
PRISON AND CORRECTIONAL SERVICE DEPARTMENT,
GOVERNMENT OF KERALA, POOJAPPURA,
THIRUVANANTHAPURAM, PIN - 695012
3 JAIL ADVISORY BOARD
OPEN PRISON AND CORRECTIONAL HOME, CHEEMENI,
KASARAGOD, KERALA, PIN - 671313
4 DISTRICT PROBATION OFFICER
THRISSUR, KALYAN NAGAR, AYYANTHOLE, THRISSUR,
KERALA, PIN - 680003
5 DISTRICT POLICE CHIEF
THRISSUR CITY, RAMAVARMAPURAM RD, PALLIMOOLA,
MANNUMKAD, RAMAVARMAPURAM, THRISSUR, KERALA,
PIN - 680631
6 SUPERINTENDENT
OPEN PRISON AND CORRECTIONAL HOME, CHEEMENI,
KASARAGOD, KERALA, PIN - 671313
BY ADVS.
SHRI.P.NARAYANAN, SPL. G.P.
SHRI.JACOB P.ALEX, AMICUS CURIAE
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON
19.03.2025, ALONG WITH WA.1245/2024, THE COURT ON
11.04.2025 DELIVERED THE FOLLOWING:
W.A. Nos.1245 and 2137 of 2024
2025:KER:31224
-: 5 :-
C.R.
P.B.SURESH KUMAR & JOBIN SEBASTIAN, JJ.
-----------------------------------------------
Writ Appeal Nos.1245 and 2137 of 2024
-----------------------------------------------
Dated this the 11th day of April, 2025
JUDGMENT
P.B.Suresh Kumar, J.
The questions that arise for consideration in these
matters are common and as such, they are disposed of by this
common judgement. For a proper adjudication of the
questions, a clear articulation of the facts involved in the
matters is essential.
2. The appellant is the petitioner in the writ
petition from which the appeal arises. Her husband is
undergoing imprisonment for life pursuant to his conviction
under Section 302 of the Indian Penal Code (IPC) for having
committed the murder of one Geetha, with whom he was
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having an illicit relationship. The convict has undergone 22
years, 3 months and 19 days of imprisonment as on
10.06.2024 and has also earned a remission of 6 years, 3
months and 22 days. The period of sentence of the convict
inclusive of remission would workout to be approximately 29
years. Although the case of the convict is being recommended
by the Advisory Committee constituted under Section 77(1) of
the Kerala Prisons and Correctional Services (Management)
Act, 2010 (the Act) for premature release from the year 2017
onwards, the same is not being accepted by the Government.
The appellant, in the circumstances, preferred W.P.(Crl.) No.320
of 2023 before this Court voicing the grievance and the writ
petition was disposed of as per Ext.P3 judgment directing the
Government to consider the case of the convict for premature
release in the light of the latest recommendation of the
Advisory Committee. Pursuant to the said direction, the
Government issued Ext.P4 order holding that the case of the
convict being a case involving the brutal murder of a widow
who requires special care in the society, his premature release
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would facilitate offences against women and that therefore, the
case of the convict cannot be considered for premature
release. The present writ petition is instituted challenging
Ext.P4 order.
3. A counter affidavit was filed in the writ petition
on behalf of the State Government contending, among others,
that punitive measures imposed on persons convicted for
offences against women are found not sufficient to deter and
curb such offences; that stopping crimes against women is
essential to ensure their safety and security; that criminal
activities against women restrict their freedom and hinders
their active participation in the society; that granting release to
those involved in offences against women may facilitate
offences against women and that they are, therefore, not
extended the benefit of premature release.
4. The learned Single Judge dismissed the writ
petition holding that the power conferred on the Government
to grant remission is discretionary, and having regard to the
facts of the case, the impugned order does not warrant
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interference. The appellant is aggrieved by the decision of the
learned Single Judge.
5. The appellant is the petitioner in the writ
petition from which the appeal arises. Her husband is
undergoing imprisonment for life pursuant to his conviction
under Sections 302 and 307 IPC for having committed the
murder of his mother and attempted to commit the murder of
his father. The convict has undergone 20 years, 9 months and
27 days of imprisonment as on 30.06.2024 and he has earned
a remission of 5 years, 10 months and 10 days. The period of
sentence of the convict inclusive of remission would workout
to be approximately 26 years. The case of the convict was
recommended twice by the Advisory Committee constituted
under Section 77(1) of the Act for premature release. The
recommendations were, however, not accepted by the
Government. The appellant, in the circumstances, preferred a
writ petition before the Apex Court, and the same was
disposed of by the Apex Court in terms of Ext.P5 order
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directing the appellant to make a representation before the
Government and directing the Government to consider the
same. Pursuant to Ext.P5 order, the appellant preferred a
representation and the same was rejected by the Government
in terms of Ext.P7 order holding that inasmuch as the
conviction was for the murder of his mother, the case cannot
be considered for premature release. Ext.P7 order was
challenged by the appellant before this Court in W.P(Crl)
No.973 of 2022. During the pendency of the writ petition, the
Advisory Committee recommended the case of the convict
again for premature release on 02.05.2023. In the light of the
said development, W.P(Crl) No.973 of 2022 was disposed of in
terms of Ext.P12 judgment directing the Government to
consider the said recommendation of the Advisory Committee
untrammelled by Ext.P7 decision earlier taken in the matter.
Pursuant to Ext.P12 judgment, the Government issued Ext.P14
order rejecting the recommendation of the Advisory Committee
holding that the consistent stand of the Government in matters
of this nature is that persons involved in the murder of women
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and children shall not be granted premature release. The
present writ petition is instituted challenging Ext.P14 order.
6. A counter affidavit was filed in the writ petition
on behalf of the State Government. The stand taken by the
Government in the counter affidavit is consistent with the
stand taken by the Government in the counter affidavit filed in
W.P.(Crl) No.90 of 2024 from which W.A.No.1245 of 2024 arose.
7. The learned Single Judge dismissed the writ
petition following the decision of the learned Single Judge
impugned in writ appeal No.1245 of 2024 and holding that the
policy of the Government referred to in Ext.P14 is one evolved
in terms of Section 77 of the Act and the Kerala Prisons and
Correctional Services (Management) Rules, 2014 (the 2014
Rules) and that therefore, the decision is in order. The
appellant is aggrieved by the decision of the learned Single
Judge.
8. In the year 2020, Government proposed to
grant premature release to all those prisoners who have
completed 14 years of imprisonment and whose proposals for
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premature release were rejected by the Advisory Committee.
A committee was constituted thereupon for the said purpose to
examine their cases for premature release. The said committee
formulated a few general guidelines for determining the
eligibility of the prisoners and recommended to the
Government for premature release of 67 prisoners on the basis
of the formulated guidelines. The prisoners were classified in
four categories in terms of the said guidelines as (i) Category
of prisoners who are not eligible for premature release (ii)
Category of prisoners who are eligible for premature release
after 25 years of imprisonment including remission (iii)
Category of prisoners who are eligible for premature release
after 20 years of imprisonment including remission and (iv)
Category of prisoners who are eligible for premature release
after 14 years of imprisonment excluding remission. The
Government accepted the recommendations made by the
committee after excluding (i) persons involved in most cruel
murder, (ii) persons who committed murder of women and
children, persons who committed murder with rape and (iii)
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among the prisoners who are undergoing treatment for mental
illness, prisoners whose relatives are reluctant to receive them,
as per G.O.(Ms) No.116/2022/HOME dated 14.06.2022. The
said Government Order is part of the records in W.A.No.1245 of
2024. The relevant part of G.O.(Ms) No.116/2022/HOME dated
14.06.2022 dealing with the exclusions made by the
Government from the categories, reads thus:
"6. Accordingly, the Government have examined in detail the
recommendations of the Committee headed by the Additional
Chief Secretary(Home&Vigilance) Department vide minutes
read as 5th paper above and decided to approve the proposal,
excluding the following category of prisoners :-
1. Persons involved in most cruel murder.
2. Persons who committed murder of women and
children, persons who committed murder with rape.
3. Among the prisoners who are undergoing treatment
for mental illness, the prisoners whose relatives are reluctant
to receive them."
9. It is seen that a doubt arose in the course of
the hearing as to whether the guidelines prescribed in G.O.(Ms)
No.116/2022/HOME dated 14.06.2022 and the exclusions made
therein represent the policy of the Government on premature
release of prisoners, and consequently, in terms of the interim
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2025:KER:31224
order passed on 28.11.2024, this Court directed the
respondents to file an affidavit placing on record as to how and
under which document the eligibility of the prisoners for
premature release is assessed. Pursuant to the said order, an
affidavit has been filed on behalf of the Government in
W.A.No.1245 of 2024 stating that the said Government Order
cannot be treated as the policy of the Government for, the
same was formulated solely for the purpose of releasing those
prisoners who have completed 14 years of imprisonment and
whose proposals for premature release were rejected by the
Advisory Committee. It is also stated in the affidavit that the
Government is identifying prisoners eligible for premature
release in accordance with the provisions contained in Chapter
36 of the 2014 Rules.
10. Heard Adv.Deepa K.Payyanur for the appellant
in W.A.No.1245 of 2024 and Adv.Manu Srinath for the appellant
in W.A.No.2137 of 2024. Special Government Pleader
Sri.P.Narayanan addressed arguments on behalf of the State.
We also had the benefit of hearing Sri.Jacob P.Alex, who was
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appointed as amicus curiae in the matters.
11. The learned counsel for the appellants
contended in unison that classification of prisoners for
premature release based on the gender of the victim, and the
denial of the benefit of such release solely due to the severity
of the offence committed, are arbitrary and discriminatory.
According to the learned counsel, a blanket exclusion of certain
offences from the scope of grant of premature release is not
permissible in law. They relied on the decision of the Apex
Court in Joseph v. State of Kerala, 2023 SCC OnLine SC 1211, in
support of this argument. It was submitted by the learned
counsel that inasmuch as the Government extended the
benefit of premature release to similarly placed prisoners, the
prisoners involved in the cases on hand are also entitled to be
released prematurely. In addition, the learned counsel for the
appellant in W.A. No. 2137 of 2024 argued that in the light of
Section 77 of the Act, the benefit of premature release is one
to be extended to well-behaved long-term convicted prisoners,
regardless of the nature of the offence they committed.
W.A. Nos.1245 and 2137 of 2024
2025:KER:31224
According to the learned counsel, in the absence of any case
for the Government that the prisoners involved in the cases on
hand are not well-behaved long-term convicted prisoners, they
are certainly entitled to the benefit of premature release.
12. Per contra, the learned Special Government
Pleader argued that the exclusion of prisoners involved in
certain categories of offences, especially those involved in the
offences against women and children, in the matter of
extending the benefit of premature release, is perfectly in
order and does not violate the fundamental rights guaranteed
to the prisoners. The learned Special Government Pleader
relied on the decisions of the Apex Court in State of Haryana v.
Jai Singh, (2003) 9 SCC 114 and Sanaboina Satyanarayana v.
Govt. of A.P., (2003) 10 SCC 78, in support of this argument. It
was pointed out by the learned Special Government Pleader
that even in Joseph, the Apex Court clarified that grouping of
type of convicts based on the offences they were found to
have committed, as a starting point, is permissible.
13. The learned amicus curiae brought to our
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attention, the statutory provisions which have a bearing on the
questions involved. The learned amicus curiae has also made
available a compilation of various decisions of the Apex Court
dealing with the subject and explained their interplay on the
facts of the present cases. According to the learned amicus
curiae, in the light of the decision of the Apex Court in Joseph,
the State cannot be heard to contend that exclusion of convicts
from the zone of consideration for premature release on the
ground that they were involved in offences against women, is
not arbitrary. According to the learned amicus curiae, inasmuch
as the convicts involved in the cases were not imposed with a
punishment of a longer term of imprisonment by the convicting
courts, they are entitled to be considered for premature
release in terms of the relevant statute. It was also the
submission of the learned amicus curiae that the issue relating
to premature release is one to be considered based on the
provisions of the Act and the 2014 Rules and the relevant
considerations namely, reformation, post-conviction changes in
behaviour, remorse, good behaviour in jail etc. were not taken
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note of while passing the impugned orders. It was also pointed
out by the learned amicus curiae that one of the most
important objects of punishment is reintegration of the convict
back to society and the said object has been defeated in terms
of the impugned orders.
14. We have examined the arguments advanced
by the learned counsel for the parties as also the learned
amicus curiae.
15. The orders impugned in the writ petitions were
issued at a time when the Code of Criminal Procedure, 1974
(the Code) was in force. Section 432 of the Code confers power
on the State Government to remit the whole or any part of the
punishment to which a person has been sentenced for an
offence. Section 433A of the Code, however, restricts the
power conferred on the State Government under Section 432
by providing that 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, such a
person shall not be released from prison unless he had served
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at least 14 years of imprisonment.
16. The Travancore-Cochin Prisons Act, 1950 (Act
XVIII of 1950) and Prisons Act, 1894 (Central Act IX of 1894)
were the statutes in force at the time of formation of the State.
Both the statutes were enacted only to regulate the
management of prisons. The Kerala Prisons Rules, 1958 (the
1958 Rules) framed invoking the power conferred by the said
statutes provided for constitution of an Advisory Board to
investigate and report on the sentences of prisoners. The 1958
Rules also empowered the Advisory Board to submit
recommendations for their release in terms of the same. It is
also provided in 1958 Rules that the case of prisoners whose
aggregate sentence is more than 20 years shall be submitted
for special orders of the Government as to their premature
release on completion of 14 years of sentence including
remission in each case. The said Rule reads thus:
"545A. '14-Year-Rule'.--The cases of * prisoners whose
aggregate sentence is more than 20 years shall be submitted
together with the records specified under Rule 545 for special
orders of Government as to their premature release or
completion of 14 years of sentence including remission in
each case.
W.A. Nos.1245 and 2137 of 2024
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** "Provided that 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 of the Code of Criminal
Procedure, 1973 such persons shall not be considered for
release from prison unless he has served at least fourteen
years of imprisonment."
The 1958 Rules also contained a provision to the effect that the
sentence of prisoners sentenced to life imprisonment shall be
deemed to be a sentence of imprisonment for twenty years.
Rule 299 dealing with the said aspect reads thus:
"299. Definitions in these rules. - [...]
(c) The sentence of all prisoners sentenced to imprisonment
for life or to more than twenty years imprisonment in the
aggregate or to imprisonment for terms exceeding in the
aggregate twenty years shall for the purpose of these rules,
be deemed to be sentence of imprisonment for twenty years."
17. "Prisons" being a State Subject under Entry 4
of List II of the Seventh Schedule to the Constitution, the
statutes referred to in the preceding paragraph were replaced
with the Act by the State Government, with effect from
14.05.2010. Unlike the repealed enactments, the Act was
intended not only to regulate the management of prisons, but
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also to provide for the safe custody, correction, reformation,
welfare and rehabilitation of prisoners. The Preamble of the Act
reads thus:
"WHEREAS, it is expedient to provide for the safe custody,
correction, reformation, welfare and rehabilitation of prisoners
and management of prisons and correctional services in the
State and for matters connected therewith or incidental
thereto."
Section 77 of the Act provides for premature release. Section
77 reads thus:
"77.Premature release: (1) Well behaved, long term convicted
prisoners may be prematurely released with the objective of
their reformation and rehabilitation, by the Government,
either suo motu or on the recommendations of an Advisory
Committee as may be prescribed.
(2) The Advisory Committee constituted as per sub-
section (1) shall have the powers and duties, as may be
prescribed. "
Chapter 36 of the 2014 Rules deals with the "Advisory
Committee" provided for under Section 77 of the Act for
premature release of prisoners and related matters. Rules in
Chapter 36 lay down the procedure to be followed for making
recommendations for premature release of prisoners. Rules
465(2), 466(3) and 466(4) of the 2014 Rules read thus:
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"465(2) വ ടതല ന യ പര ഗണ കമ ള കറകത ത ന ഇരയ യവര ല ന നള വ ടതല നന
സ ബന ച പത കരണവ ക ഴപ ട കണക നലടമകണത ണ. ഈ ആവശ ത മലക യ
കറകത ത ന ഇരയ യവരന- ബനകള, അയലവ സ കള, തമ0ശ സ1യ ഭരണ
സ പനങള നല ജനപത ന ധ കള മതല യവനര ബനനപട അമന1ഷണ ന-മതണത ണ.
ഇതര അമന1ഷണ ത-വക രന- ബനകള ല ന നക- ന-മതണത ണ. കറകത ത ന
ഇരയ യവരന- പത കരണ വ ലയ രതനത ന യ മപ ല>സ ഉമ@ ഗസന നപ മബഷന
ഓഫ>സറ നലകന രഹസ മന1ഷണ റ മപ രIകള ഉപമയ ഗ മകണത ണ. കറകത ത ന
ഇരയ യവര ലന നള പത കരണ ജ ല നപ മബഷന ഓഫ>സറ ല ന ന മശഖര ച പസത
റ മപ രട മNലള തനP അഭ പ യ സഹ ത ബനനപട കറകണല സ പനത നല സപണ
സമ ത മ നക ഹ ജര മകണത ണ."
466(3) ഓമര ത-വക രൻ്നറയ ക ല വധ ത>രനത ന മമള വ ടതല ന യള ശപ ർശ
പര ഗണ കമ ൾ ത-വക രൻ്നറയ സമഹത ൻ്നറ ആനകയമള മകമത ന സർക മര
മക -ത കമള ശ ക ഇളവ നന സ ബന ച നൽക യ Iള നപ ത തത1ങൾക ക>ഴ
വഴകങൾക പരമ പ ധ ന കൽപ മകണത ണ. അനമ നങളന- അ- സ നത ലളത
സ ങൽപ കവമ യ ക രണങള ൽ മപ ല>സ ൽ ന നള ശപ ർശ അനകലമല എന
ക രണത ൽ മ ത ഒര ത-വക രൻ്നറ അക ലവ ടതല ന യള ശപ ർശ സമ ത
തള കളയവ ൻ പ ടളതല. ത-വക രൻ കറകത ന-ത യമപ ഴള സ ഹചര ങള
വ ടതല യ കഴ ഞ ൽ വ>ണ അതരത ലളമത മറതരത ലളമത
കറകത ത മലർനപ- നള പവണതയ കണക നലടതമവണ വ ടതല ന യ ശപ ർശ
സമർപ മകണത.
466(4) ഒമന അത ലധ കമമ പ വശ സമ ത അക ലവ ടതല നള ശപ ർശ ന ര കര ച
എനത വ>ണ പര ഗണ കനത ന ത-സമ കനതല. ഇതരത ൽ ന രസ ച ഒര ശ ക പത യന-
മകസ ഒര വർഷ കഴ ഞമ തമമ പനkപര മശ ധ കവ ൻ പ ടള. പനkപര മശ ധനയ ജയ ൽ
സപണ ൻ്നറ പത യ റ മപ ർട ആവശ മ ണ. ഇതരത ലള പനkപര മശ ധന ക ല വധ
ത>രനത ന മമള വ ടതല നള ശപ ർശ ന രസ ചത ന മശഷമള ത-വക രൻ്നറ ജയ ല നല
സ1ഭ വത ൻ്നറ അ- സ നത ല കണ , അല നത മ ന രസ കനത ന അവല ബമ ക യ
റ മപ ർIകളന- അ- സ നത ല വരത .
As evident from the extracted Rules, even though the scheme
of the Act is that well-behaved long-term convicted prisoners
should be considered for premature release with the object of
their reformation and rehabilitation, the Rules obligate the
Advisory Committee to consider the views of the victims as
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also the views of the relatives of the prisoners, while making
recommendations. Similarly, the Rules also obligates the
Advisory Committee to consider the welfare of the society as
also the prisoner while making recommendations for
premature release of the prisoners. Likewise, the Rules
obligates the Advisory Committee to give utmost regard to the
various principles laid down by the courts in the matter of
considering the issues relating to premature release of
prisoners. There is also a provision in the 2014 Rules analogous
to Rule 216 of 1958 Rules namely, Rule 377 which provides
that if the period of imprisonment of life convicts and those
other convicts whose aggregate sentence exceeds 20 years,
their period of imprisonment shall be deemed to be 20 years.
Rule 377 of 2014 Rules reads thus:
"377. ശ ക ക ല വധ ന ജനപടതൽ. (1) ജ>വപര ന ശ ക വ ധ കനപടമത ഒന ലധ ക
ശ കകളന- ആനക ക ലയളവ ഇരപതവർഷത ലധ കമ യ ര കകമയ ശ കയന- വ വ ധ
വകപകളനസര ചള ക ലയളവ ഇരപത വർഷത ലധ കമ യ ര കകമയ നചയ ൽ, ഈ
അദ യത ൻ്നറ ആവശ ങൾക യ പസതത ശ ക 20 വർഷമ യ കണക കനത ണ.
(2) ശ ക യ ളവ കണക കനത ന മമൽമന ട വഹ കനത ആക ൻ്നറ 72-)o
വകപ (1)-)o ഉപവകപ പക ര രപ>കര ച ഇളവ നചയൽ സമ ത യ യ ര ക ."
As clarified in sub-rule (2) of Rule 377, for releasing a prisoner
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based on the said Rule, the recommendation of the Remission
Committee constituted under Section 72 of the Act is required.
18. It is trite that in the matter of deciding the
eligibility for premature release of prisoners, the Policy/Rules
that are in force as on the date of conviction are to be applied.
This principle finds reiteration in several judgments of the Apex
Court including State of Haryana v. Jagdish, (2010) 4 SCC 216
and State of Haryana v. Raj Kumar, (2021) 9 SCC 292. The
State Government has no case that it had a policy for
extending the benefit of remission to prisoners at the time
when the prisoners involved in these cases were convicted. In
other words, since the 1958 Rules was in force at the time of
conviction of the prisoners, it was obligatory on the part of the
State Government to consider their case for premature release
in terms of the provisions contained in the 1958 Rules.
Inasmuch as both the prisoners were not directed to undergo
imprisonment for a period exceeding 20 years by the
concerned convicting courts and since they have already
completed 20 years of actual imprisonment, according to us,
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their cases ought to have been considered by the State
Government favourably, for, the scheme of 1958 Rules is that
the sentence of prisoners undergoing life imprisonment shall
be limited to 20 years. This position was clarified by the Apex
Court in Joseph. Paragraph 38 of the said judgment dealing
with that aspect reads thus:
"38.In the petitioner's case, the 1958 Rules are clear - a life
sentence, is deemed to be 20 years of incarceration. After this,
the prisoner is entitled to premature release. The guidelines
issued by the NHRC pointed out to us by the counsel for the
petitioner, are also relevant to consider - that of mandating
release, after serving 25 years as sentence (even in heinous
crimes). At this juncture, redirecting the petitioner who has
already undergone over 26 years of incarceration (and over 35
years of punishment with remission), before us to undergo, yet
again, consideration before the Advisory Board, and thereafter,
the state government for premature release - would be a cruel
outcome, like being granted only a salve to fight a raging fire, in
the name of procedure. The grand vision of the rule of law and
the idea of fairness is then swept away, at the altar of procedure
- which this court has repeatedly held to be a "handmaiden of
justice". (Underline supplied)
19. Be that as it may, as noted, the stand of the
State Government in these matters is that it does not have a
remission policy and that the benefit of premature release is
extended to prisoners in terms of the provisions of the Act and
2014 Rules. Let us now consider the entitlement of the
prisoners involved in these cases for premature release in
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terms of the Act and 2014 Rules. As noted, Section 77 of the
Act provides for premature release of long-term convicted
prisoners who are well behaved with the objective of their
reformation and rehabilitation, either suo motu or on the
recommendation of the Advisory Committee. In the light of the
said statutory provision, in the absence of any other policy for
the State Government for extending the benefit of premature
release, it could be inferred that the policy of the State
Government is that well-behaved long-term convicted
prisoners shall be extended the benefit of premature release
with the objective of their reformation and rehabilitation. The
case of the appellant in W.A.No.1245 of 2024 is that the
convict has undergone 22 years, 3 months and 19 days of
imprisonment as on 10.06.2024 and that he has also earned a
remission of 6 years, 3 months and 22 days. Similarly, the
case of the appellant in W.A.No.2137 of 2024 is that the
convict has undergone 20 years, 9 months and 27 days
imprisonment as on 30.06.2024 and that he has also earned a
remission of 5 years, 10 months and 10 days. In the light of
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Rule 377 of the 2014 Rules, inasmuch as the prisoners involved
in the cases on hand have completed more than 20 years of
actual imprisonment, they are entitled to be treated as long
term convicted prisoners. Rule 376 of 2014 Rules prescribes
that prisoners shall be granted remission for keeping peace
and good behaviour in jail. The fact that the prisoners have
earned remission for a period exceeding five years,
demonstrates their good behaviour in the jails. The prisoner
involved in W.A.No.1245 of 2024 has been recommended by
the Advisory Committee under Section 77(1) of the Act for
premature release on several occasions since 2017 and the
prisoner involved in W.A.No.2137 of 2024 has been
recommended by the Advisory Committee under Section 77(1)
of the Act for premature release twice. No doubt, the
recommendations of the Advisory Committee does not create
any obligation on the part of the Government to release
prisoners prematurely. The Government has the discretion to
accept or reject the recommendations of the Advisory
Committee. In the cases on hand, as revealed from the orders
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impugned in the writ petitions, the Government has not
rejected the recommendations of the Advisory Committee on
the ground that the prisoners are not entitled to premature
release in terms of Section 77 of the Act. Instead, the
recommendations were rejected having regard to the gender of
the victim and the severity of the offence committed by the
prisoners. No doubt, premature release is a matter over which
the State Government has discretion and the convict is having
only a right to be considered for premature release. But, the
discretion has to be exercised in a fair, just and reasonable
manner [See Laxman Naskar v. Union of India, (2000) 2 SCC
595]. The pointed question, therefore, is whether the
Government is justified in rejecting the recommendations
made by the Advisory Committee for the reasons mentioned in
the orders impugned in the writ petitions, especially when it
does not have a remission policy and also its stand that the
entitlement for remission is determined based on the Act and
the 2014 Rules.
20. The reason stated in Ext.P4 order which is
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impugned in the writ petition, from which W.A.No.1245 of 2024
arises is that the offence committed by the prisoner is
extremely cruel inasmuch as he committed the murder of a
widow who requires special care of the society and the reason
stated in Ext.P14 order which is impugned in the writ petition,
from which W.A.No.2137 of 2024 arises is that persons
involved in the murder of women are not entitled to premature
release. In fact, the reasons aforesaid were the reasons stated
by the Government in G.O.(Ms) No.116/2022/HOME dated
14.06.2022 to deny the benefit of premature release to a batch
of similarly placed prisoners. The case of Joseph decided by the
Apex Court is also an identical one, as the prisoner involved in
that case was also denied the benefit of premature release on
the ground that persons involved in the murder of women are
not entitled to premature release. Having regard to G.O.(Ms)
No.116/2022/HOME dated 14.06.2022, it was held by the Apex
Court in Joseph that a blanket exclusion of certain offences
from the scope of grant of remission is not only arbitrary, but
turns the ideals of reformation that run through our criminal
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justice system, on its head. Paragraph 32 of the said judgment
reads thus:
"32. To issue a policy directive, or guidelines, over and above
the Act and Rules framed (where the latter forms part and
parcel of the former), and undermine what they encapsulate,
cannot be countenanced. Blanket exclusion of certain offences,
from the scope of grant of remission, especially by way of an
executive policy, is not only arbitrary, but turns the ideals of
reformation that run through our criminal justice system, on its
head. Numerous judgments of this court, have elaborated on
the penological goal of reformation and rehabilitation, being the
cornerstone of our criminal justice system, rather than
retribution. The impact of applying such an executive
instruction/guideline to guide the executive's discretion would
be that routinely, any progress made by a long-term convict
would be rendered naught, leaving them feeling hopeless, and
condemned to an indefinite period of incarceration. While the
sentencing courts may, in light of this court's majority judgment
in Sriharan (supra), now impose term sentences (in excess of 14
or 20 years) for crimes that are specially heinous, but not
reaching the level of 'rarest of rare' (warranting the death
penalty), the state government cannot - especially by way of
executive instruction, take on such a role, for crimes as it
deems fit."
As seen from the extracted passage, the view that is taken in
Joseph is that the blanket exclusion of certain offences from
the scope of grant of remission will have the effect of
imposing, on the accused, a longer term of sentence which the
Government cannot do, but only the Court can do. It was also
held by the Apex Court in the said case that typecasting
convicts based on the crime committed in the distant past
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would result in a real danger of overlooking the reformative
potential of each individual convict and such typecasting would
result in violation of Article 14 of the Constitution. Paragraph
37 of the judgment in Joseph reads thus:
"37. Classifying - to use a better word, typecasting convicts,
through guidelines which are inflexible, based on their crime
committed in the distant past can result in the real danger of
overlooking the reformative potential of each individual
convict. Grouping types of convicts, based on the offences
they were found to have committed, as a starting point, may
be justified. However, the prison laws in India - read with
Articles 72 and 161 - encapsulate a strong underlying
reformative purpose. The practical impact of a guideline,
which bars consideration of a premature release request by a
convict who has served over 20 or 25 years, based entirely on
the nature of crime committed in the distant past, would be to
crush the life force out of such individual, altogether. Thus, for
instance, a 19 or 20 year old individual convicted for a crime,
which finds place in the list which bars premature release,
altogether, would mean that such person would never see
freedom, and would die within the prison walls. There is a
peculiarity of continuing to imprison one who committed a
crime years earlier who might well have changed totally since
that time. This is the condition of many people serving very
long sentences. They may have killed someone (or done
something much less serious, such as commit a narcotic drug
related offences or be serving a life sentence for other non-
violent crimes) as young individuals and remain incarcerated
20 or more years later. Regardless of the morality of continued
punishment, one may question its rationality. The question is,
what is achieved by continuing to punish a person who
recognises the wrongness of what they have done, who no
longer identifies with it, and who bears little resemblance to
the person they were years earlier? It is tempting to say that
they are no longer the same person. Yet, the insistence of
guidelines, obdurately, to not look beyond the red lines drawn
by it and continue in denial to consider the real impact of
prison good behavior, and other relevant factors (to ensure
that such individual has been rid of the likelihood of causing
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harm to society) results in violation of Article 14 of the
Constitution. Excluding the relief of premature release to
prisoners who have served extremely long periods of
incarceration, not only crushes their spirit, and instils despair,
but signifies society's resolve to be harsh and unforgiving. The
idea of rewarding, a prisoner for good conduct is entirely
negated."
Underline supplied
As seen from the extracted passage, it was observed therein
that if a prisoner who has completed 20 or 25 years of
imprisonment, is excluded from consideration for premature
release based entirely on the nature of crime committed by
him in the distant past, the same would certainly crush the life
force out of such individual, altogether. It was also observed by
the Apex Court in the said case that excluding the relief of
premature release to prisoners who have served extremely
long periods of incarceration, not only crushes their spirit, and
instils despair, but signifies resolve of the society to be harsh
and unforgiving and that the same would negate the idea of
rewarding a prisoner for good conduct. In essence, the view
taken by the Apex Court in Joseph is that the persons involved
in offences against women and children are not entitled to
premature release at all, is against the scheme of the Act and
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that long-term convicted prisoners cannot be denied the
benefit of remission, having regard to the nature of crime
committed by them in the distant past.
21. Let us now consider the arguments advanced
by the learned Special Government Pleader. True, in Joseph, it
was observed by the Apex Court that grouping types of
convicts based on the offences they were found to have
committed, as a starting point, may be justified. But, in the
light of the propositions laid down in the said case as contained
in paragraphs 32 and 37 of the judgment, the said observation
cannot be understood as one permitting grouping of convicts
based on the offences they were found to have committed in
such a manner as to exclude certain offences from the scope
of grant of remission as done by the State Government. True,
in Jai Singh, the Apex Court held that it is permissible to
exclude convicts based on the nature of the offence committed
by them in the matter of extending the benefit of remission,
having regard to the effect of such offences on the society.
Similarly, it was held by the Apex Court in Sanaboina
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Satyanarayana that classification to keep away convicts of
crime against women from the benefits of remission cannot be
said to be unreasonable. It would be incorrect if we hold that
the decisions referred to above are not in conflict with the
decision in Joseph. There exists some conflict, even though the
decision in Joseph is one rendered in the context of a prisoner
who is deemed to have completed the entire term of his
imprisonment in terms of the provisions of the Act and the
Rules made thereunder dealing with the management of
prisons and related matters, which is enacted invoking the
power under Entry 4 of List II of the Seventh Schedule to the
Constitution.
22. What should a High Court do when faced with
two judgments of the Supreme Court which cannot be
apparently reconciled with respect to its ratios is a vexed
question. One line of decision is that if there is a conflict in two
Supreme Court decisions, the decision which is later in point of
time would be binding on the High Courts. The second line of
decisions is that in case there is a conflict between the
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judgments of the Supreme Court consisting of equal
authorities, incidents of time is not a relevant factor and the
High Court must follow the judgment which appears it to lay
down elaborately and accurately. A Full Bench of the Punjab
and Haryana High Court in Indo Swiss Time Limited v. Umrao,
1981 SCC OnLine P&H 45 followed the second line of decisions.
The same is the view taken by the Bombay High Court also in
Special Land Acquisition Officer (I) v. Municipal Corporation of
Greater Bombay, 1987 SCC OnLine Bom 177. According to us,
the decision in Joseph is not only the decision rendered at a
later point of time, but also one which identifies the core of the
issues arising for consideration in matters of this nature and
answers the same elaborately and accurately. Needless to say,
we accept the decision of the Apex Court in Joseph as the
binding precedent. We are inclined to hold that long-term
convicted prisoners, especially those who deemed to have
completed the entire term of imprisonment in terms of the
provisions contained in the Act and 2014 Rules, other than
those who were sentenced by the convicting courts for
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imprisonment for a period exceeding 20 years, cannot be
denied the benefit of remission having regard to the nature of
the offence committed by them in the distant past.
23. We take this view for yet another reason also.
Granting early release to prisoners is a matter related to their
fundamental human rights. The National Human Rights
Commission has received a number of representations pointing
out that the State Governments are applying differing
standards in the matter of premature release of prisoners
undergoing life imprisonment. After considering the response
received from a number of States/Union Territories, the
Commission fixed guidelines and the same were
communicated to all the State Governments/Union Territories
on 26.09.2003. The Apex Court has made a reference to these
guidelines also in Joseph. In the said communication, even
though it is provided that there can be a classification among
the life convicts having regard to the magnitude, brutality and
gravity of the offence for which the convict was sentenced to
imprisonment, the period of incarceration inclusive of
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remission even in worst of the worst situation should not
exceed 25 years.
24. On an evaluation of the totality of the facts
and circumstances of the cases on hand, especially the finding
rendered by us that the prisoners involved in these cases were
entitled to be released prematurely on completion of
imprisonment for a period of 20 years in terms of the 1958
Rules, we are of the view that these are apt cases where this
Court should direct the Government to release the prisoners
with immediate effect, as done by the Apex Court in Joseph.
However, inasmuch as the grant of remission is a prerogative
of the Government, although the power conferred on the
Government for the said purpose is a power coupled with duty
to be exercised after taking into account all the relevant
factors, we set aside the impugned judgments as also the
orders of the Government impugned in the writ petitions and
dispose of the writ appeals directing the Government to
consider afresh, the last among the recommendations made by
the Advisory Committee for the premature release of the
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prisoners involved in these cases, within a period of one
month, in the light of the findings and observations made by
the Apex Court in Joseph, as referred to by us in this judgment,
untrammelled by the nature of the offences for which they
were convicted.
25. In Rashidul Jafar v. State of U.P., (2024) 6 SCC
561, the Apex Court observed that many of the life convicts in
our country who have suffered long years of incarceration have
few or no resources at all and lack of literacy, education and
social support structure, impede their right to access to legal
remedies. Having regard to the decision of the Apex Court in
Rashidul Jafar and other relevant matters, the Apex Court, in
Suo Motu Writ Petition (Crl.) No.4 of 2021 titled In Re: Policy
Strategy for Grant of Bail, issued certain general directions to
ensure that the appropriate Government considers the case of
all prisoners for extending the benefit of premature release, in
cases where they are entitled to such release, as and when
they become eligible for the same, irrespective of the fact as to
whether they make specific applications for grant of premature
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release, and directed the District Legal Services Authorities to
monitor implementation of the direction aforesaid.
26. It has come to the notice of this Court while
considering these matters that a large number of prisoners
who deemed to have completed their entire term of
imprisonment in terms of Rule 377 of 2014 Rules, are
languishing in jails in the State, despite recommendations in
their favour made by the Advisory Committee under Section 77
of the Act as in the case of the prisoners involved in these
matters and the directions issued by the Apex Court in In Re:
Policy Strategy for Grant of Bail. In the circumstances, having
regard to the spirit of the decisions of the Apex Court in
Rashidul Jafar and In Re: Policy Strategy for Grant of Bail, we
deem it appropriate to direct the Government suo motu, in
public interest, to consider the cases of those prisoners who
deemed to have completed the term of imprisonment in terms
of Rule 377 of 2014 Rules and in whose favour there were
recommendations by the Advisory Committee for premature
release, as directed in the case of prisoners involved in these
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matters, within two months from the date of receipt of a copy
of this judgment. It shall be the endeavour of the State Legal
Services Authority to implement the directions issued in this
judgment. A copy of this judgment shall be forwarded to the
Kerala State Legal Services Authority. It is made clear that
those prisoners who were sentenced for imprisonment for any
specified period by the concerned convicting courts, without
remission, will not be entitled to the benefit of this judgment,
before completing the period of imprisonment specified by the
convicting courts.
Before parting, we also place on record our
boundless appreciation for the able assistance given by the
learned amicus curiae Sri.Jacob P.Alex, for rendering this
judgment.
Sd/-
P.B.SURESH KUMAR, JUDGE.
Sd/-
JOBIN SEBASTIAN, JUDGE.
YKB
