Roshan Ali vs The Principal Secretary To ...
2022 Latest Caselaw 4635 Ori

     THE HIGH COURT OF ORISSA AT CUTTACK

                       WPCRL No.142 of 2020


In the matter of an application under Articles-226 & 227 of the
Constitution of India ;
                            -----------

Roshan Ali,
S/o. Late Khursid Ali,
Resident of Gourishankar Road,
Jagsalia, P.S.- Juggalai, Jamshedpur,
State - Jharkhand.                    .......                      Petitioner.

                            -Versus-

The Principal Secretary to Government
of Odisha, Home Department,
At- Secretariat Building, Bhubaneswar,
District - Khorda & others         .......                        Opp. Parties


___________________________________________________________
     For the Petitioner : Ms. Geetanjali Majhi, Advocate

     For the Opp. Parties: Mr. S.S. Kanungo, Addl. Govt. Advocate
___________________________________________________________

      CORAM:

      THE HONOURABLE SHRI JUSTICE S. TALAPATRA
      THE HONOURABLE SHRI JUSTICE M.S. SAHOO


                            JUDGMENT

th 13 September, 2022

S. Talapatra, J. By means of this writ petition, the petitioner has urged

to issue a writ of mandamus for releasing the petitioner prematurely,

taking the health conditions to consideration.

2. Several Interlocutory Applications have been filed as off-

shoot of this writ petition. The present petitioner, even, had approached

the Apex Court by filing a Special Leave Petition, being, Special Leave

to Appeal (Crl.) No.2781 of 2021 titled as Roshan Ali vs. Government of

Odisha & others. In the said proceeding, it has been observed by the

Apex Court, in the order dated 26.03.2021, as follows:

"From a certificate issued from Dr. Manoj Kumar Daga, Director, Paediatrics, and, Adult Cardiac Surgery of B.M. Birla Hospital and Research Centre, it appears that the petitioner has undergone a cardiac by-pass surgery and is presently admitted in ITU Bed No.320-B at the said hospital."

3. The said matter arose out of rejection of the prayer for

extension of parole, as earlier granted. The Apex Court by the said order

asked the State Government not to take any coercive action against the

petitioner in view of the said surgery.

4. Finally, by the order dated 11.07.2022, the said SLP (Crl.)

No.2781 of 2021 has been disposed of by the Apex Court requesting the

High Court to dispose of the pending writ petition, as expeditiously as

possible, preferably within a period of three months from the date of

communication of the order. The hearing was expedited and it was

heard accordingly.

5. Before we take note of the sheet-anchor of the controversy,

we are persuaded to refer to the order passed in I.A. No.22 of 2021,

which was filed for extension of parole for better treatment in this writ

proceeding. In the order dated 15.03.2021 delivered in I.A. No.22 of

2021 resume of facts, relevant to the present controversy, has been laid

down. For the purpose of convenience, the relevant part is reproduced

hereunder:

"Convict Roshan Ali, aged about 62 years Male confined in this jail since 20.05.2017 in S.T. Case No.169/2004 U/Ss.364A/342/34 IPC. He is a known case of Ischemic Heart disease, Anterior Wall M.I., Left Ventricular failure Gr.II and is undergoing treatment at Jail Hospital, Rourkela, as per advice & guidance of Cardiologist VIMSAR, Burla. During his stay at this Jail he had two episodes of M.I. in the last 3 years and undergone period follow up check up at VIMSAR, Burla. He was referred to VIMSAR, Burla on 28.10.2020 for follow up check up and necessary evaluation. As opined by Cardiologist, he is symptomatic with minimal activities. He is advised rest to avoid physical exertion. He needs rest to prevent further Myocardial Infraction."

6. Even thereafter, on 11.08.2022, the petitioner had filed a

consolidated writ petition after due amendment by which the

paragraphs- 8.1, 8.2, 8.3, 8.4, 8.5, 8.6, 8.7 & 8.8 have been incorporated

in the original writ petition.

7. In the newly added paragraphs, the petitioner has asserted

as follows:

(i) His conduct in the prison was throughout good and there was no adverse remark against him by the jail authorities.

(ii) The jail authority intended to place his papers for his premature release. In the course of inquiry, a report has been obtained from the local Police.

(iii) In paragraph-8.3 of the consolidated writ petition, it has been averred that "based on the report of the Office of the Police Inspector-cum-O/C Jugsalai P.S. vide its Memo No.1837, dated 30.10.2021, the Senior Superintendent of Police, East Singhbhum, Jamshedpur vide its Memo No.1820, dated 06.11.2021 has reported that there is no probable effect on law and order problem in the locality, there is no apprehension of danger to the life of the people in the locality, there is probability that the petitioner will lead an honest livelihood, if the petitioner is released from the jail. The Memorandum dated 13.11.2021 has been enclosed with the writ petition.

8. From perusal of the letter No.1950, dated 02.02.2022, it is

evident that the petitioner's name figures at Sl. No.38 and the ground of

rejection of the proposal for premature release of the petitioner is as

follows:

"It is a case of kidnapping for ransom money. It is clear that the State Sentence Review Board has rejected the

proposal for premature release of the petitioner only by referring to the offence under which the petitioner has been convicted for, which is unfair, unreasonable and arbitrary, as the State Sentence Review Board has been constituted as per the guidelines furnished by the National Human Rights Commission with a view to review the sentence awarded to the prisoner and for recommending his premature release in appropriate cases."

9. The State Sentence Review Board has not considered the

health condition of the petitioner, the period of sentences undergone by

the petitioner in jail, the behavior and conduct of the petitioner in the

jail while serving his sentence and also the probable impact of his

release on the society.

10. The petitioner has suffered from Coronary Heart Disease

(CHD), Myocardial Infraction (M.I.), Triple Vessel Disease (TVD) and

has undergone heart surgery during the period of parole.

11. It has been stated that, while making proposal for

premature release of the petitioner, the Medical Officer had stated as

follows:

"The prisoner is suffering from IHD, MR, left Ventricular failure and in my opinion, there is no hope of his recovery either in or out of jail. It is desirable that he be allowed the comfort of dying at his home."

The said report of the Medical Officer is available with the

amended consolidated copy of the writ petition.

12. It has been asserted that the petitioner has completed 17

years 16 days on the any of submission of proposal i.e. 28.02.2021. At

present, he has completed more than 18-1/2 years of imprisonment. If

the period of remission is added, the imprisonment would count at 19

years 11 months 10 days as on 28.02.2021.

13. Ms. Majhi, learned counsel has referred the latest

guidelines, which has been circulated in the form of Resolution

No.4817-IVJ.7/08 (pt)/L dated 05.05.2010.

14. In the prelude of the said Resolution, it has been stated that

the guidelines of the National Human Rights Commission as circulated

to the Government of Odisha, vide their communication dated

06.11.1999 has been followed while formulating the said resolution.

15. Paragraph-3 of the said Resolution deals with eligibility for

premature release. For the purpose of reference, the entire text of the

para-3 is reproduced hereunder:

"3. ELIGIBILITY FOR PREMATURE RELEASE:

The following category of inmates shall be eligible to be considered for premature release by the State Sentence Review Board.

Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the

provisions of Section 433A Cr.P.C. shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions.

It is, therefore, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the State Sentence Review Board shall have the discretion to release a convict at an appropriate time in all case considering the circumstances in which the crime was committed and other relevant factors like.

(a) Whether the convict has lost his potential for committing crime considering his overall conduct in jail during the 14 years incarceration.

(b) The possibility of reclaiming the convict as a useful member of the society, and

(c) Socio-economic condition of the convicts family. Section 433A was enacted to deny premature release before completing 14 years of actual incarceration to such convicts as stand convicted of a capital offence. The Commission is of the view that within the category a reasonable classification can be made on the basis of the magnitude brutality and gravity of the offence for which the convict was sentenced to life imprisonment certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years including remissions. The period of incarceration inclusive of remission even in such cases should not exceed 25 years. Following categories are

mentioned in this connection by way of illustration and are not to be taken as an exhaustive list of such categories.

a) Converts who have been imprisoned for life murder to heinous cases such as murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, 1955 murder of a child below 14 years of age multiple murder, murder committed after conviction while inside the jail, murder during parole, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty.

b) Gangsters, contract killers, smugglers, drug, traffickers, racketeers awarded life imprisonment for committing murder as also the perpetrators of murder committed with premeditation and with exceptional violence or perversity.

c) Convicts whose death sentence has been commuted to life imprisonment.

All other convicted male prisoners not covered by Section 433A Cr.P.C. undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years of actual imprisonment i.e. without remission. The female prisoners not covered by Section 433A Cr.P.C. undergoing the sentence of the imprisonment would be entitled to be considered for premature release after they have served at least 10 years of imprisonment inclusive of remission but only after completion of 7 years actual imprisonment i.e. without remission.

Cases of premature release of prisoner undergoing life imprisonment before completion of 14 years of actual imprisonment on ground of terminal illness or old age etc., can be dealt with under the provisions of Article 161 of the Constitution of India."

In this regard, there is no controversy.

16. Having referred to this provision, Ms. Majhi, learned

counsel has submitted that the said guidelines requires that the

Superintendent of Jail shall prepare a comprehensive note incorporating

the family and social background of the prisoner, the offence for which

he was convicted and sentenced and the circumstances under which the

offence was committed. He will also reflect fully about the conduct and

behaviour of the prisoner in the jail during the period of his

incarceration, behavior/conduct during the period he was on probation/

leave, change in his behavioural pattern and the jail offences, if any,

committed by him or the punishment awarded to him for such offences.

A report shall also be made about his physical/mental health or of any

serious ailment with which the prisoner is suffering entitling his case for

special consideration for the premature release. The process has been

detailed in the said guidelines. The District Magistrate on asking shall

furnish his report/recommendation to the Superintendent of Jail not later

than 30 days from the date of receipt of reference from the

Superintendent of Jail. It has been stated that the Superintendent of Jail,

Superintendent of Police and the District Magistrate made their own

recommendations with regard to premature release of the prisoner. Such

recommendations are to be made on the basis of the guidelines given by

the Apex Court and other Constitutional Courts in the matter of

premature release of the prisoner. Even in the said Resolution, the

functioning of the State/Central Review Board has been delineated.

17. It has been also observed that while considering the case of

premature release of the particular prisoner, the Board shall keep in

view the general principle of amnesty/remission of the sentence as laid

down by the State Government or by the Courts as also by the earlier

precedents in the matter. The paramount consideration before the State

Sentence Review Board is the welfare of the prisoner and the society at

large. The Board shall not ordinarily decline a premature release of a

prisoner merely on the ground that the Police has not recommended his

release in serving context and hypothetical premise. Thereafter, the

Board shall take into account the circumstances in which the offence

was committed by the prisoner and whether he has been or is likely to

commit similar and other offences again. The Board is empowered to

consider such cases during six months of the due date, subject to any

claim of untoward happening during the intervening time before release

on the due date, in which case, the release could be stayed for

reconsideration by the Board. Reconsideration of a case already rejected

by the Board, can only be again made after a period of one year from

the date of last consideration.

18. Ms. Majhi, learned counsel has submitted a written note

where she has raised certain questions relating to the rejection of the

proposal for premature release of the petitioner consecutively for three

times. According to Ms. Majhi, learned counsel, the Board is bound to

consider all the relevant facts as per parameters. According to her,

delineated in the Resolution, substantive part of which has been

reproduced or referred.

....earlier rejection is mechanical rejection beyond the

provision of the said Resolution dated 05.05.2010.

19. Ms. Majhi, learned counsel has referred to the health status

of the petitioner (the prisoner) and submitted that he has become infirm

for the nature of illness he has been suffering since long. The years of

imprisonment has not been considered appropriately

20. In support of her contention, Ms. Majhi, learned counsel

has placed her reliance on a decision of the Apex Court in Sonadhar vs.

State of Chhattisgarh, [the order dated 17.08.2022 delivered in

SLP(Crl.) No.529 of 2021]. In that order, the Apex Court has observed,

inter alia, as follows:

"We may however notice that as the case was of kidnapping for ransom money (page-47) proposal for premature release was rejected.

Learned counsel for the State to point out whether such an offence is excluded from the plea of remission and if so for what period."

Learned counsel for the petitioner also submits that in case

of Roshan Ali vs. Government of Orissa, the same ground for remission

was rejected but ultimately interim bail was granted by this Court in

SLP (Crl.) No.2781 of 2021 by order dated 11.07.2022. In Sonadhar,

the Government of Chhattisgarh allowed premature release by way of

resolution.

21. It is obvious that the reference has been made to the case of

the present petitioner and the order dated 11.07.2022 whereby the

petitioner was granted interim bail with the direction upon this Court for

expeditious disposal of the instant writ petition, preferably within three

months.

22. Ms. Majhi, learned counsel has submitted that there is no

bar in granting premature release on remission, as the petitioner has

completed substantive imprisonment of 14 years and as such, having

regard to the provision of Section-433A of the Cr.P.C., the petitioner's

case can be considered for premature release. But on adopting an

inappropriate view, which is fully misconceived, the petitioner's earlier

prayer for premature release as proposed was not recommended.

23. In response to the said submission, Mr. S.S. Kanungo,

learned Addl. Government Advocate has categorically submitted that

though elaborate reasons have not been provided, but every aspects

which are required to have been considered by the State Sentence

Review Board. Only thereafter, the proposal for premature release was

rejected by the said Board. Mr. Kanungo, learned Addl. Government

Advocate has submitted that there cannot be any controversy as regards

the interpretation of Section-433A of the Cr.P.C. A person having

committed kidnapping couched with demand of ransom can only be

considered after the prisoner served out the substantive sentence for 14

years. Mr. Kanungo, learned Addl. Government Advocate appearing for

the State has, however, not controverted the statement made by the

petitioner in respect of the years of incarceration served out by the

petitioner and as such, there is no controversy that the petitioner has

served out imprisonment more than what is required.

24. The petitioner has by this time completed more than 18

years of active incarceration without counting any period of parole. Mr.

Kanungo, learned Addl. Government Advocate referred to a decision of

the Apex Court in Sangeet and another vs. State of Haryana, reported

in (2013) 2 SCC 452 to buttress his contention. In Sansect, the Apex

Court had occasion to observe, inter alia, as follows:

"Under the circumstances, it appears to us that there is a misconception that a prisoner serving a life sentence has an indefeasible right to release on completion of either fourteen years' or twenty years' imprisonment. The prisoner has no such right. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 Cr.PC which in turn is subject to the procedural checks in that section and the substantive check in Section 433-A Cr.PC."

25. Mr. Kanungo, learned Addl. Government Advocate has

submitted that all the procedural fairness has been observed while

considering the proposal for premature release of the petitioner.

According to Mr. Kanungo, the petitioner has committed the crime with

collaboration of gang. In the Judgment dated 14.12.2015, delivered in

CRLA No.541 of 2007, along with other Criminal Appeals of the co-

convicts, this Court had observed as follows:

"With regard to the 2nd submission of Mr. Dash that there exists material contradictions with regard to prosecution story if one carefully goes through the depositions of P.Ws. 2, 7 & 8; it is needless to say that as pointed out earlier there exists minor contradictions in their depositions without affecting the core prosecution story which clearly reflects

P.Ws. 7 & 8 were abducted by a number of culprits which included Rajan Mishra, Shamim Sidique, Virendra Jaiswal and Roshan Ali with a common intention to extract ransom. In order to extract ransom they confined P.W.8 at Hartoli in the farm house of Virendra Jaiswal."

Therefore, the crime committed by a gang of criminals is

proved. Thus the crime falls within a category of crime, which is grave

and heinous offence.

26. We have carefully gone through the records as produced

before us and appreciated the submission of the counsel of the parties.

We have also taken care of Annexure-1 of the consolidated writ

petition, which is a medical report whereby it was observed as follows:

"On medical examination of Roshan Ali today on 28/10/2020 reveals the presence of underling CAD, M.I., Ischemic Cardiomyopathy with severe LV Dysfunction. He is symptomatic with minimal activities. He is advised rest to avoid physical exertion. He should be under continuing medical therapy for Capital M.I. heart failure and to be under regular observation."

27. The similar opinion on the health status of the petitioner

has been provided by the Jail hospital, which is the part of the report of

the Superintendent of Special Jail. We have come across the proposal of

premature release as initiated by the Superintendent of Special Jail,

Rourkela giving his reasons including the reports collected from various

agencies including the District Magistrate & Collector and the

Superintendent of Police of the district. All spoke in favour of the

premature release. The report of the Superintendent of Police has been

briefly referred before. However, for better reference, the relevant part

of the report of the Senior Superintendent of Police, East-Singhbhum,

Jamshedpur dated 10.09.2020 is extracted hereunder:

"1. Anticipation of Law and Order situation if any over the issue of release of the convict: There is no probable effect on law and order problem in the locality and apprehension of breach of peace in the locality if the convict will be released.

2. Apprehension of danger if any, to the local people from the Convict: There is no apprehension of danger to the life of people in the locality in general or any individual who might be the target of the personal grudge of the convict.

3. Whether the convict will lead an honest livelihood and a normal life after release: There is probability of his honest livelihood viz. leading a normal life and he may not revert to criminal habits.

4. Whether the family members of the Victim/Victim will take revenge on the convict out of previous grudge: There is no danger to the life of the convict from other and may not take revenge during the release in the locality or within the P.S. jurisdiction.

So, it is recommendation that to release the convict Roshan Ali, S/o. Late Khurshid Ali, R/o. Gourishankar Road,

Jugsalai, P.S.- Jugsalai, Dist.- East Singhbhum, Jamshedpur."

28. Despite all the favourable reports from all the agencies

operating in the ground level, the State Sentence Review Board has

rejected the said proposal in respect of the petitioner in the meeting that

was held on 12.01.2022. In Sl. No.38 of the catalogue of the persons,

considered for premature release, the name of the petitioner has figured

under the Column-5 the justification has been given in favour of the

decision. It has been noted against the petitioner that his case is of

kidnapping for ransom money. Nothing more and nothing beyond that

has been recorded. But in other cases, number of years the convict has

suffered has been referred and considered for premature release.

29. As such, we are persuaded by the submission of Ms. Majhi,

learned counsel that only on the face of the category of offence, the

petitioner's case was rejected by the State Sentence Review Committee

and there is every reason to believe and assume that the provision of

Section-433A of the Cr.P.C. has been misconceived by the State

Sentence Review Committee. As such, the justification as given by the

State Sentence Review Committee for rejecting the proposal of the

petitioner's premature release is grossly inadequate and unsustainable.

30. So far as the petitioner is concerned, we remit the matter

back to the State Sentence Review Board for consideration afresh in

terms of the Resolution dated 05.05.2010 read with Section 433A of the

Cr.P.C. The important aspects those are to be essentially considered by

the Board are his health condition, good conduct in the jail and

consequence of his release as reported by the Superintendent of Police

and the District Magistrate & Collector. The State Sentence Review

Board shall also consider the aspect of reforming the convict as useful

member of the society.

31. So far as Section-433A of the Cr.P.C. is concerned, Mr.

Kanungo, learned Addl. Government Advocate is partly correct but not

wholly, in as much as, no acceptable justification has been given by the

State Sentence Review Board. Apparently, the said justification is the

blind-folded application of Section-433A of the Cr.P.C.

32. In State of U.P. and another vs. Barati reported in 2001

AIR SCW 5091, the Apex Court has observed that the State may take

the final decision in respect of premature release on the

recommendation made by the Advisory Board by the State Sentence

Review Committee. But the process can always examined by the Court.

33. Section-433A of the Cr.P.C. functions as a proviso to

Section-432, which deals with suspension, remission and commutation

of sentence. It is well settled that the gravity of the offence can form the

basis of valid classification, if the object of such classification is to

grant or not to grant of remission. Section-433 provides, inter alia, that

the appropriate Government may without the consent of the convict may

commute sentence of imprisonment for life for imprisonment for a term

not exceeding 14 years or for fine.

By the subsequent amendment in the Cr.P.C., Section-

433A has been incorporated providing that notwithstanding anything

contained in Section-432 where a sentence for imprisonment for life is

imposed on conviction of a person for an offence for which death is one

of the punishment provided by law or where a sentence of death

imposed on a person has been commuted U/S. 433(1) of imprisonment

for life, such release from prison cannot be executed unless the prisoner

has served at least 14 years of imprisonment.

34. Section-433A clearly provides that the case of any convict,

who has been sentenced to suffer life imprisonment cannot be released

from the prison unless he had served at least 14 years of imprisonment.

The said unambiguous restriction can be read in Section-433A.

A convict who has been sentenced to suffer life imprisonment ; where

death penalty is also an option, cannot be considered for premature

release on remission unless he has completed 14 years of active

imprisonment. There cannot be any amount of doubt or dispute that

unless the petitioner served out a minimum period of 14 years of active

imprisonment, his case could not have been considered and could have

been rejected at the threshold. But it is an admitted fact by now the

petitioner has suffered more than 18 years of active imprisonment.

35. Not only the category of the crime, committed by the

petitioner is to be taken into consideration but factors as high-lighted by

the Resolution dated 05.05.2010 has to be taken into consideration. It

may be mentioned here that the Apex Court in contemplation that the

petitioner will be released prematurely, has extended him interim bail

and now the petitioner is at large by virtue of the interim bail.

36. We are of the view that having considered the health status

of the petitioner, the conduct of the petitioner in the prisons, absence of

apprehension as consequence of his release by the competent authorities

in charge of the law & order, [as reported by the competent persons like

the Senior Superintendent of Police and the District Magistrate &

Collector] it appears that the proposal for premature release to the

petitioner may earn a favourable recommendation from the Board.

37. It is made clear that, if in the mode of execution of the

crime, the element of extreme brutalities, if any, as located, that should

be taken into consideration before the release is recommended.

38. The State Sentence Review Board is, therefore, directed to

reconsider the case of the petitioner within a period of one month from

the date of receipt of this order.

39. The petitioner shall continue on interim bail, as granted by

the Apex Court till a final order is taken by the State Sentence Review

Board or the State Government whichever is later.

40. Having observed thus, the writ petition stands allowed to

the extent as indicated above.

41. There shall be no order as to cost.

(S. Talapatra) Judge

(M.S. Sahoo) Judge

Orissa High Court, Cuttack.

The 13th September, 2022/Subhasis Mohanty, P.A.