Orissa High Court
Lajara Chhatria vs State Of Odisha on 20 June, 2024
Bench: S.K. Sahoo, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
JCRLA No. 49 of 2008
Lajara Chhatria .... Appellant
Mr. J.K. Panda, Advocate
-versus-
State of Odisha .... Respondent
Mr. Arupananda Das
Addl. Govt. Advocate
CORAM:
THE HON'BLE MR. JUSTICE S.K. SAHOO
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
ORDER
Order No. 20.06.2024
08. 1. This order arises on the basis of the information
furnished by the learned trial Court upon receipt of the
direction issued by this Court pursuant to the dismissal of
the JCRLA preferred by the Appellant against the order
of his conviction and sentence awarded by the trial Court.
In its direction, this Court called upon the Appellant to
surrender and to serve the remainder of the sentence. The
learned trial Court informed that pending the Appeal, in
exercise of the powers conferred under Article 161 of the
Constitution of India, the Governor has been pleased to
remit the unexpired portion of the sentence passed on the
Appellant and to order his premature release.
It is, therefore, considered expedient by this Court
to deal with a situation of this nature by this order more
particularly in respect to the various aspect to be looked
into in a pending Appeal where clemency is allowed. To
assist in passing the order, this Court directed the learned
Law Secretary, Government of Odisha and the DG,
Prisons, Odisha to furnish affidavit showing any
guidelines to deal with a situation where premature
release order is passed pending Appeal. Both, the
Secretary, Law and DG, Prisons have filed their
respective affidavits.
2. Heard the learned AGA Mr. Das.
3. Having gone through the affidavits and the
circumstances, this Court finds it worth to deal with issue
as hereunder.
4. The High Court of Punjab & Haryana, in the matter
of Ravdeep Kaur Vs. State of Punjab & Ors. reported in
2023:PHHC:127233 took the following view -
"Merely because the appeal filed by the petitioner
is still pending for disposal is apparently not
enough for the authorities concerned not to initiate
and consider her case for grant of premature
release. In Harjit Singh @ Hare Ram vs. State
of Punjab and Others 2015(1) R.C.R.
(Criminal) 370, a Division Bench of this Court
after relying upon the judgment of the Hon'ble
Supreme Court in Narayan Dutt and Others vs.
State of Punjab and another 2011 (2) R.C.R.
(Criminal) 140, has held that the case of a convict
for being released prematurely could not be
withheld merely for the reason that the appeal
preferred by him/her was pending before the
Appellate Court. On the other hand, if the case of
the convict falls squarely under the instructions
issued by the Governor of Punjab for premature
release, the Government has to consider the same
despite the pendency of the appeal before the
Court."
5. In the matter of Maru Ram Vs. Union of India
reported in (1981) 1 SCC 107, the Constitutional Bench
of Supreme Court while answering the vires of premature
release in the then newly enacted provision of 433-A in
the Code of Criminal Procedure, 1973, held that -
"Sentencing is a judicial function but the
execution of the sentence, after the Court's
pronouncement, is ordinarily a matter for the
Executive under the CrPC, going by Entry 2 in
List III of the Seventh Schedule. Keeping aside
the constitutional powers under Arts. 72 and 161
which are 'untouchable' and 'unapproachable' for
any legislature, let us examine the law of
sentencing, remission, and release.
...
In the first place, an order of remission does not
wipe out the offence; it also does not wipe out the
conviction. All that it does is to have an effect on
the execution of the sentence. An order of
remission thus does not in any way interfere with
the order of the Court; it affects only the execution
of the sentence passed by the Court and frees the
convicted person from his liability to undergo the
full term of imprisonment inflicted by the Court,
though the order of conviction and sentence
passed by the Court still stands as it was. The
power to grant remission is executive power and
cannot have the effect which the order of an
appellate or revisional Court would have of
reducing the sentence passed by the trial Court
and substituting in its place the reduced sentence
adjudged by the appellate or revisional Court.
...
Though, therefore, the effect of an order of
remission is to wipe out that part of the sentence
of imprisonment which has not been served out
and thus in practice to reduce the sentence to the
period already undergone, in law the order of
remission merely means that the rest of the
sentence need not be undergone, leaving the order
of conviction by the Court and the sentence passed
by it untouched."
6. It emerges from the above decisions that an order of
premature release, as granted by the executive authority,
affects the execution of the sentence but does not alter the
judicial determination of guilt or the sentence itself. The
principles established under the law clarify that an order
of remission or premature release does not erase the
offence or the conviction. It impacts only the execution of
the sentence, meaning the convict is relieved from serving
the remainder of the sentence as ordered by the Court.
The conviction and the sentence imposed by the Court
remain intact and unaltered. In the case in hand, the
Government, exercising its executive powers under
Section 432 of the Code of Criminal Procedure, 1973 and
the relevant provisions, has granted premature release to
the Appellant. This release means that the Appellant is
not required to serve the remaining term of the life
sentence as initially imposed. However, the judicial
conviction and sentence remain valid and effective. The
premature release of the Appellant does not affect the
pending appeal and as such the appeal against the
conviction and sentence remains under the jurisdiction of
this Court. The Appellant's release does not equate to an
acquittal or a reduction in the sentence. This Court retains
the authority to adjudicate the appeal, including the power
to confirm, alter, or set aside the conviction and sentence
based on the merits of the case.
7. Keeping in mind the dictum of the supreme Court,
to ensure consistency and clarity in handling cases where
a convict is granted premature release in the event of
pendency of their appeal, the following facts need be
required to ensure to avoid confusion. It is expected that
this may help harmonize the judicial process with
executive actions of premature release, ensuring that the
legal principles regarding sentencing, remission, and
execution of sentences are consistently applied.
Adherence of the following shall maintain judicial
integrity and clarity in the adjudication of appeals
involving premature release.
Key points to consider:
1. Upon being notified of the premature release of a
convict by the trial Court or executive authorities, the
appellate Court shall formally acknowledge the action;
2. The order of premature release should be recorded
in the case file;
3. The appeal against the conviction and sentence
shall continue to be adjudicated on its merits,
unaffected by the premature release;
4. The Court retains full authority to confirm, alter, or
set aside the conviction and sentence based on the
appeal's merits;
5. Both the prosecution and the defence should be
clearly informed that the premature release pertains
only to the execution of the sentence;
6. The conviction and original sentence remain legally
effective until modified by judicial order;
7. The Court should ensure that the convict complies
with any conditions imposed by the executive authority
as part of the premature release;
8. The registry of the Court must ensure that cases
involving premature release are prioritized and listed
for hearing at the earliest possible date;
9. A separate in-house mechanism may be maintained
for such cases to monitor compliance and expedite
proceedings;
10. Detailed records of the premature release,
including the executive order and any conditions
imposed, should be maintained in the Court's records;
11. Any subsequent orders or actions by the Court
related to the appeal shall have no effect on the
premature release unless its merit is under challenge in
a judicial review.
8. From the discussions as above, there is no anomaly
regarding the power of the appropriate Government for
premature release pending an Appeal. In the instant case,
this Court has confirmed the conviction and sentence
passed by the learned trial Court. Since the function of
execution of the sentence rests with the executive and the
Hon'ble Governor in exercise of the power conferred
under Article 161 of the Constitution has been pleased to
extend the benefit of premature release to the Appellant,
respecting the said decision of the appropriate
Government which is not under challenge, this Court
modifies its order dated 15.11.2023 and withdraws its
direction calling upon the Appellant before the learned
trial Court to serve out the sentence.
(S.K. Sahoo)
Judge
(Chittaranjan Dash)
Judge
Bijay
Location: HIGH COURT OF ORISSA
