Surendra vs The State Of Madhya Pradesh
2021 Latest Caselaw 2746 MP

         HIGH COURT OF MADHYA PRADESH,
                 BENCH AT GWALIOR
                    WP No. 9204/2021
        ( Surendra Vs The State of M.P. & another )
                                  (1)

Heard through video conferencing.
Gwalior, dated : 28/06/2021

       No one appears for the petitioner.
       Shri N.S. Tomar, learned Government Advocate for the
respondents-State.

I.A. No. 5718/2021, an application for urgent hearing is

allowed.

This petition under Article 226 of the Constitution of India has

been filed seeking the following reliefs:-

(a) That, a Writ of Certiorari or any other appropriate Writ, Order or direction may kindly be issued for quashing the impugned order (Annexure P/1) passed by the respondent no.1 Govt. of M.P. whereunder the application of the petitioner for his release on probation has been rejected.

(b) That, after quashing the said impugned order (Anenxure P/1), a further direction be given to the respondent No.1 Govt. of M.P. to reconsider the application of the petitioner keeping in view the provisions contained in the Act of 1954 and Rules of 1969 and after such re-consideration, to pass orders afresh thereon in accordance with law.

(c) Any other such orders or directions which the Hon'ble Court may deem fit and proper in the facts and circumstances of the case, be also passed alongwith the costs of the writ petition.

It is the case of the petitioner that the petitioner was convicted

by judgment of conviction and sentence dated 14/12/1999 passed by

II ASJ, District Bhind in S.T. No. 230/96 for offences punishable

under Sections 302/149, 302/149, 307/149, 148 of the IPC and at

present he is undergoing his jail sentence. It is the case of the HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

petitioner that he has suffered actual sentence of 19 years 1 month 9

days without any remission and, accordingly, he is eligible for

release on probation. The petitioner has filed an application for his

release. The application was placed for consideration before the

Probation Board and the Probation Board after considering the

application, recommended for rejection of the application of the

petitioner and, accordingly, the State Government had passed order

dated 24.11.2020 (Annexure P/1) and rejected the application of the

petitioner.

Challenging the order passed by the Competent Authority, it is

submitted by counsel for the petitioner that only reason assigned by

the competent authority is that dispute took place between the

deceased and accused persons upon 5 bighas of land therefore this

offence took place and no reasons have been assigned as to how the

guardian offered by the petitioner would not ensure that the

petitioner would not live peaceful life.

Per contra, it is submitted by the counsel for the State that by

circular dated 10.1.2012 it has been provided that if an accused has

been sentenced to life imprisonment for more than one count, then

he can be released only after undergoing actual jail sentence of

twenty years. It is further submitted that so far as the release of an

accused on remission is concerned, it is subjective satisfaction of the

authority. If the Authority has arrived at subjective satisfaction that

the premature release of the petitioner on remission would not be HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

conducive, then it cannot be said that the said subjective satisfaction

is bad in law.

Heard the learned counsel for the parties. According to the prosecution case, the petitioner has been

convicted under Sections 302/149, 302/149, 307/149 and 148 of IPC

and has been awarded life sentence on two counts. Life

imprisonment means remaining of the whole period of natural life of

the convict. The Supreme Court in the case of Vikas Yadav vs. State

of U.P. & Ors. reported in (2016) 9 SCC 541 has held as under:

19. We shall first see how the Constitution Bench in V. Sriharan ((2016)7 SCC 1) has dealt with this aspect. The three-Judge Bench in Union of India v. V. Sriharan framed certain questions for consideration by the Constitution Bench. The Constitution Bench in V. Sriharan reproduced the said questions and thereafter formulated the core questions for answering the same. After adverting to the same, the Court observed that the issues raised were of utmost critical concern for the whole country as the decision on the questions would determine the procedure for awarding sentence and the criminal justice system. Thereafter, the Court referred to the authority in Swamy Shraddananda (2) v. State of Karnataka ((2008)13 SCC 767) and framed the following questions: (V. Sriharan case, SCC p. 49, para 2)

20.

"2.1. Maintainability of this writ petition under Article 32 of the Constitution by the Union of India. 2.2. (i) Whether imprisonment for life means for the rest of one's life with any right to claim remission?

(ii) Whether as held in Shraddananda case (2), a special category of sentence; instead of death; for a term exceeding 14 years and put that category beyond application of remission can be imposed? 2.3. Whether the appropriate Government is permitted to grant remission under Sections 432/433 of the Criminal Procedure Code, 1973 after the parallel power was exercised under Article 72 by the President and under Article 161 by the Governor of the State or by the Supreme Court under its constitutional power(s) under Article 32?

2.4. Whether the Union or the State has primacy for the exercise of power under Section 432(7) over the subject-matter enlisted in List III of the Seventh HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

Schedule for grant of remission?

2.5. Whether there can be two appropriate Governments under Section 432(7) of the Code? 2.6. Whether the power under Section 432(1) can be exercised suo motu, if yes, whether the procedure prescribed under Section 432(2) is mandatory or not? 2.7. Whether the expression "consultation" stipulated in Section 435(1) of the Code implies "concurrence"?"

20. We have reproduced the entire paragraph from V. Sriharan, for the sake of completeness and understanding. The issues that have been raised by Mr Lalit and Mr Naphade fundamentally relate to the issues in para 2.2. The majority in the Constitution Bench, after referring to the decisions in Maru Ram v. Union of India ((1981)1 SCC

107), Gopal Vinayak Godse v. State of Maharashtra (AIR 1961 SC 600) and State of M.P. v.Ratan Singh ((1976)3 SCC 470), opined that the legal position is quite settled that the life imprisonment only means the entirety of the life unless it is curtailed by remissions validly granted under the Criminal Procedure Code by the appropriate Government or under Articles 72 and 161 of the Constitution by the Executive Head viz. the President or the Governor of the State respectively. The Court referred to the decision in Ashok Kumar v. Union of India ((1991)3 SCC

498), wherein it was specifically ruled that the decision in Bhagirath v. Delhi Admn ((1985)2 SCC 580). does not run counter to Godse and Maru Ram.

21. The relevant paragraph from Ashok Kumar is reproduced below: (SCC p. 516, para 15) "15. It will thus be seen from the ratio laid down in the aforesaid two cases that where a person has been sentenced to imprisonment for life the remissions earned by him during his internment in prison under the relevant remission rules have a limited scope and must be confined to the scope and ambit of the said rules and do not acquire significance until the sentence is remitted under Section 432, in which case the remission would be subject to limitation of Section 433-A of the Code, or constitutional power has been exercised under Articles 72/161 of the Constitution. In Bhagirath case the question which the Constitution Bench was required to consider was whether a person sentenced to imprisonment for life can claim the benefit of Section 428 of the Code which, inter alia, provides for setting off the period of detention undergone by the accused as an under-trial against the sentence of imprisonment ultimately awarded to him."

22. Referring to Section 57 IPC, the decision in Ashok Kumar reiterated the legal position as under: (SCC p. 516, para 15) "15. ... '9. ... The provision contained in Section 57 that imprisonment for life has to be reckoned as equivalent to HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

imprisonment for 20 years is for the purpose of calculating fractions of terms of punishment. We cannot press that provision into service for a wider purpose.' (Bhagirath case, SCC p. 585, para 9)"

23. It has been held in V. Sriharan that the said observations are consistent with the ratio laid down in Godse and Maru Ram.

24. Thereafter, the majority in V. Sriharan quoted a paragraph from Bhagirath case which pertained to set-off under Section 428 CrPC which is to the following effect: (V. Sriharan case, SCC P. 68, para 59) "59. ... '11. ... The question of setting off the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment can arise only if an order is passed by the appropriate authority under Section 432 or Section 433 of the Code. In the absence of such order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean, according to the rule in Gopal Vinayak Godse, imprisonment for the remainder of life.' (Bhagirath case, SCC p. 586, para 11)"

25. Thereafter, the Court in V. Sriharan observed: (SCC pp. 68 & 70, paras 59 & 61) "59. ... We fail to see any departure from the ratio of Godse case; on the contrary the aforequoted passage clearly shows approval of that ratio and this becomes further clear from the final order passed by the Court while allowing the appeal/writ petition. The Court directed that the period of detention undergone by the two accused as undertrial prisoners would be set off against the sentence of life imprisonment imposed upon them, subject to the provisions contained in Section 433-A and, "provided that orders have been passed by the appropriate authority under Section 433 of the Criminal Procedure Code". These directions make it clear beyond any manner of doubt that just as in the case of remissions so also in the case of set-off the period of detention as undertrial would ensure to the benefit of the convict provided the appropriate Government has chosen to pass an order under Sections 432/433 of the Code. The ratio of Bhagirath case, therefore, does not run counter to the ratio of this Court in Godse or Maru Ram.

***

61. Having noted the abovereferred to two Constitution Bench decisions in Godse and Maru Ram which were consistently followed in the subsequent decisions in Sambha Ji Krishan Ji ((1974)1 SCC 196), Ratan Singh ((1976)3 SCC

470), Ranjit Singh ((1984)1 SCC 31), Ashok Kumar ((1991)3 SCC 498) and Subash Chander ((2001)4 SCC 458). The first part of the first question can be conveniently answered to the effect that imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

for rest of the life of the prisoner subject, however, to the right to claim remission, etc. as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State and also as provided under Section 432 of the Criminal Procedure Code."

26. After so stating, the majority in V. Sriharan case addressed to the concept of remission. It opined that: (SCC pp. 70-71, para 62) "62. As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Criminal Procedure Code. Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432, then and then only giving credit to the earned remission can take place and not otherwise. Similarly, in the case of a life imprisonment, meaning thereby the entirety of one's life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid down in Swamy Shraddananda (2)."

Thus where a convict has been sentenced for life

imprisonment, then he has to remain entirety of his life subject to

right to claim remission as provided under Articles 72 and 161 of the

Constitution of India as well as Section 432 of the Cr.P.C. The

competent Authority after considering the pros and cons of the

premature release of the petitioner has decided not to extend the

benefit of remission due to on going enmity between the families of

the petitioner and the complainant party.

It has not been pointed out as to how subjective satisfaction

arrived at by the Competent Authority is bad or perverse. The

petitioner has not filed any document to show that the enmity

between the family of the petitioner and the complainant party has HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR WP No. 9204/2021 ( Surendra Vs The State of M.P. & another )

come to an end. Under these circumstances, this Court is of the

considered opinion that in absence of any material to show that

subjective satisfaction arrived at by the Competent Authority is

perverse or bad, no case is made out warranting interference.

However, it is observed that the rejection of application for grant of

remission would not operate in perpetuity and the petitioner shall be

free to pray for remission in future and if such a prayer is made, then

the Authority shall consider the said application in accordance with

the situation and law prevailing at the relevant time.

With aforesaid observations, this petition is dismissed.

(S.A.Dharmadhikari) Judge (and)

ANAND SHRIVASTA VA 2021.06.29 08:17:42 +05'30'