Anuj Kumar Gupta @ Sethi Gupta vs The State Of Bihar Through The ...
2021 Latest Caselaw 6079 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Criminal Writ Jurisdiction Case No.387 of 2020
            Arising Out of PS. Case No.-39 Year-2002 Thana- FALKA District- Katihar
     ======================================================

Anuj Kumar Gupta @ Sethi Gupta S/o Girendra Prasad Gupta @ Girendra Gupta Resident of Village-Falka, P.S.-Falka, District-Katihar, Bihar.

... ... Petitioner Versus

1. The State Of Bihar through the Chief Secretary Government Of Bihar, Old Secretariat, Patna.

2. The Chief Secretary Govt. of Bihar, Old Secretariat, Patna.

3. The Additional Chief Secretary, Home, Govt. of Bihar, Patna.

4. The Law Secretary, Department of Law, Govt. of Bihar, Patna.

5. The Inspector General of Prison, Govt. of Bihar, Patna.

6. The Assistant Inspector General of Prison and Reformatory Services, Govt.

of Bihar, Patna.

7. The Deputy Superintendent of Jail, Open Jail, Buxar.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Surendra Kumar Singh, Advocate For the Respondent/s : Mr. Prabhu Narayan Sharma, AC to AG ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD

C.A.V. JUDGMENT

Date : 13-12-2021 This writ application has been preferred by a life

convict who had been sentenced to death by the learned trial

court but in appeal the Hon'ble Division Bench of this Court has

commuted his death sentence to one of life imprisonment. Being

a life convict, the petitioner has spent 22 years of imprisonment

with remission at the time of filing of the writ application. He

made a request to the competent authority to allow him to go on

premature release, however, his request for premature release has Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

been rejected by the Bihar State Remission Board vide minute of

the meeting dated 27.01.2020.

2. In the aforementioned background the petitioner has

prayed for the following reliefs:-

"I. To issue an appropriate writ, order or direction in

the nature of certiorari for quashing the decisions

taken by State Punishment Remission Council (Here

in after referred as 'Council) Dated 27.01.2020 with

respect to the petitioner whereby and where under

the case of Remission and release of the petitioner

was rejected on non est grounds without looking in to

the facts and the circumstances of the case and

without considering the case of the petitioner in

proper perspective particularly ignoring the findings

recorded by the Division Bench in case of petitioner

in its Judgement Dated 02.11.2007 in Cr. Appeal No.

690 of 2005 (DB).

II. To issue further appropriate writ, order or

direction to the Respondent authorities to consider

the case of the petitioner for premature release under

the provisions of section 433 and 433A of the Code

of Criminal Procedure and the provisions of the

Bihar Prison Manual as also in view of the Principles

decided by Hon'ble Apex court and the High Court.

Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

III. To issue an appropriate writ order or direction in

the facts and the circumstances of the case directing

the Respondents to release the petitioner forth with

without any further delay.

IV. This Hon'ble court may adjudicate and hold that

the Council has not considered the case of the

petitioner for premature release in the light of the

findings recorded by the Division Bench of this

Hon'ble court in the case, of petitioner and has

practically ignored the said finding and passed the

rejection order on 27.01.2020 in mechanical manner

on wholly erroneous grounds.

V. This Hon'ble court may further adjudicate and

hold that in view of the specific findings recorded on

02.11.2007 by the Division Bench of this Hon'ble

Court on the subject, it was not appropriate for the

council to reject the case of the petitioner for

premature release on the non est Grounds.

VI. This Hon'ble court may further adjudicate and

hold that for the negligence and latches on the part of

the Respondents, the petitioner cannot be made to

suffer.

VII. This Hon'ble court may further adjudicate and

hold that in the facts and the circumstances of the Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

case the action of the Respondents rejecting the claim

of the petitioner for pre mature release, after having

under gone 22 years imprisonment with remission, is

an act of the malafide and arbitrary exercise of the

power by the Respondents.

VIII. To award the cost of litigation and suitable

compensation to the Petitioner for the loss and

damages caused to the petitioner by the erroneous

considerations/actions of the respondents.

IX. To allow any other relief or reliefs for which the

Petitioner is found entitled in the fact and

circumstances of this case."

BRIEF FACTS OF THE CASE

3. The admitted facts of the case are that the petitioner

was an accused in Sessions Trial No. 220 of 2003 arising out of

Falka P.S. Case No. 39 of 2002. He was convicted for the offences

under Sections 364A, 302, 201 and 120B of the Indian Penal Code

vide judgment dated 07.09.2005 passed by learned Ist Additional

District & Sessions Judge, Katihar. The petitioner was awarded

death sentence, against the said judgment of conviction and

sentenced the petitioner preferred Cr. Appeal No. 690 of 2005

(DB) before this Court.

Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

4. The appeal preferred by the petitioner was heard

along with the Death Reference Case No. 8 of 2005 and a Division

Bench of this Hon'ble Court finally vide it's judgment dated

02.11.2007 acquitted him from the charges under Sections 364A

and 120B of the Indian Penal Code but sustained his conviction

under Sections 302 and 201 of the Indian Penal Code. While

commuting the death sentence of the petitioner, the Hon'ble

Division Bench of this Court commuted the sentence to one of life

imprisonment. The Special Leave Petition preferred by the

appellant before the Hon'ble Supreme Court was dismissed. The

petitioner has, thus, remained in custody since 23.04.2002.

REQUEST FOR REMISSION

5. It appears that the petitioner requested the competent

authority for his premature release. In this regard, the

correspondences which have taken place are available on the

record of the writ application. It appears that pursuant to the letter

no. 367 dated 10.05.2017 written by the Superintendent, Open

Prison, Buxar, the then Superintendent of Police, Purnea wrote to

him on 11.07.2017, that according to the inquiry report and

opinion of the Sub-Divisional Police Officer, Sadar, Purnea the

conduct of the prisoner (petitioner) and his family members were

good and there was no threat to the society on release of the Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

petitioner. The then Superintendent of Police, Purnea opined that

in the light of the report of the S.D.P.O., Purnea the petitioner may

be granted premature release.

6. The report of the Probation Officer as contained in his

letter no. 82 dated 09.05.2018 also opined in favour of giving an

opportunity to the petitioner to rehabilitate. Probation Officer

reported that earlier the petitioner was earning his livelihood by

running an electronic shop at Katihar and he has also his family

house at Purnea.

7. From the records, it appears that the matter relating to

premature release of the petitioner remained pending for a

considerable period. In the meantime, another report of the

Superintendent of Police, Katihar as contained in Letter No. 251

dated 5.01.2020 was submitted in which it was stated that the

Officer Incharge of the Falka Police Station had reported that

premature release of the petitioner is likely to result in adverse

impact on the informant and his family. It appears that the opinion

was also sought from the learned Presiding Officer of the trial

court and the learned Presiding Officer observed against the

premature release of the petitioner stating that the petitioner was

involved in murder of an innocent boy of less than 14 years. Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

8. The proposal of the petitioner was placed before the

Remission Board in it's meeting held on 27.01.2020. From the

minutes of the meeting (Annexure '2'), it would appear that the

case of the petitioner was considered as one under Section 364A,

302, 201 and 120B of the Indian Penal Code. The Remission

Board rejected the request of the petitioner taking note of the

adverse reports of the Superintendent of Police, Katihar and the

Presiding Officer of the learned trial court. Further the Remission

Board opined that in the light of the para (iv) ([k) of Notification

No. 31 those prisoners who have committed per-meditated

murders shall not be considered for premature release. As regards

the petitioner, it has been observed by the Remission Board that

in his case he had kidnapped a boy of less than 14 years for

ransom and murdered him for which he has been found guilty,

hence, his proposal was rejected.

SUBMISSION ON BEHALF OF THE PETITIONER

9. Learned counsel for the petitioner has challenged the

decision of the Remission Board as contained in Annexure '2' on

the following grounds:-

(i) The Probation Officer who had occasion to observe the

conduct of the petitioner had submitted the social investigation

report as regards the petitioner. He has informed that this petitioner

was running his electronic shop and from the earnings thereof he Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

was making the livelihood of his family. The family of the

petitioner has also a house at Purnea and upon hearing that the

petitioner may be considered for premature release, his family

members and neighbours expressed their happiness. The

neighbours told the Probation Officer that on his release there

would be no problem of rehabilitation of the petitioner and the

neighbours had no complain against his proposed release. Thus,

Probation Officer's report has not at all been considered by the

Remission Board.

(ii) The Remission Board has taken into consideration

the report of Superintendent of Police, Katihar which contains

nothing but a statement that the Officer-In-Charge of Falka Police

Station had inquired into the matter and according to him the

informant and the family members of the informant had expressed

their apprehension against the petitioner. Annexure 'B' to the

counter affidavit filed on behalf of respondent nos. 2, 3, 5, 6 and 7

on 14th July, 2021 is the letter No. 251 dated 15.01.2020 of the

Superintendent of Police, Katihar and it contains an enclosure

which is copy of the letter dated 08.01.2020 written by one

Dayanand Paswan, the Assistant Sub-Inspector of Police of Falka

Police Station.

Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

Learned counsel submits that perusal of Annexure 'B' to the

counter affidavit shows that the letter of the S.I. is nothing but a

casual exercise on his part to somehow defeat the case of the

petitioner for premature release. He has mentioned in his letter

that this petitioner is a dreaded criminal but save and except a

bald statement no material at all has been mentioned in his letter to

show that the petitioner is a dreaded criminal. Further the Assistant

Sub-Inspector of Police says that he inquired from the informant

and co-villagers who told that the premature release of the

petitioner is likely to put the life of the informant's family in

danger. There is, however, no basis for saying that, because the

letter of the A.S.I. is not supported by copy of any complaint

either from the informant or any other co-villager. Moreover, it is

completely diversed to the opinion of the Superintendent of Police,

Purnea. The Superintendent of Police, Purnea had earlier vide his

Memo No. 2500 dated 11.07.2017 submitted that the conduct of

the petitioner and his family is good and there is no threat if he is

released. It is his submission that the letter of the Superintendent of

Police, Purnea is available at page '15' of the writ application and

the same has not been contested by the respondents.

Learned counsel has also drawn the attention of this Court

towards the order recorded by this Court on 10.01.2021 in which Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

this Court had noticed the bald pleadings of the State in the

counter affidavit and has recorded that basis of the opinion of the

officer-in-charge was not available on the record. This Court had

called upon the respondents to place on record the copy of the

inquiry report and the basis on which the opinion was recorded by

the officer-in-charge of Falka Police Station.

Learned counsel submits that in it's order dated 10.08.2021

when this Court pointed out that there was no copy of inquiry

report or the basis thereof and the State was given an opportunity

to place on record the copy of the inquiry report of the officer-in-

charge based on which the opinion of the Superintendent of Police

of Katihar had been recorded, instead of bringing on record the

basis of the earlier report, the State respondents indulged in

creating fresh reports and tried to impress upon this Court to

justify the decision of the Remission Board taken in it's meeting

on 27.01.2020. It is only when the learned AC to learned Advocate

General sensed the difficulties in proceeding to argue the matter

on the basis of such fresh documents, he decided not to press the

supplementary counter affidavit. All these facts are recorded by

this Court in it's order dated 08.09.2021. It is, thus, the submission

of learned counsel for the petitioner that the report of the

Superintendent of Police, Katihar as also the report of the Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

Presiding Officer of the learned trial court were not based on any

material rather those were submitted without any basis and by

ignoring the findings of the Hon'ble Division Bench of this Court

recorded in it's judgment dated 02.11.2007 passed in Cr. Appeal

No. 690 of 2005. Attention of this Court has been drawn towards

the findings of the Hon'ble Division Bench recorded in paragraph

'18' of the judgment. It is submitted that no sufficient evidence on

record was found to hold the petitioner guilty of the charge under

Section 364A or Section 120B of the IPC, therefore, the Hon'ble

Division Bench acquitted him from those charges. Further the

Hon'ble Division Bench held in categorical terms that "....on

going through the entire prosecution case it is further found that

according to prosecution the murder was committed not on account

of pre-determination but on account of certain development such as

failure to find a safe place to hide the boy perhaps with a view to

negotiate for ransom. Hence, it is not possible to hold that murder

was committed on account of cold blooded pre-meditation. The

post-mortem examination report also does not show that murder

was effected with unusual brutality....."

Learned counsel, thus, submits that the opinion held by the

Remission Board that it is a case of premeditated murder after Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

kidnapping of the boy is completely contrary to the findings of the

Hon'ble Division Bench.

(iii) 10. Learned counsel further submits that so far as the

policy decision of the Government as contained in the notification

no. 3106 dated 10.12.2002 is concerned, a perusal thereof would

show that the case of the petitioner is fit to be considered for

premature release. It is submitted that the Hon'ble Division Bench

while commuting the death sentence of the petitioner to the one of

life imprisonment did not debar the petitioner from getting the

benefit of remission as per the policy decision of the Government.

It is his submission thus, that the Remission Board has completely

erred in taking the case of the petitioner as a case of premeditated

murder and rejection of his case for premature release in terms of

the applicable policy contained in notification no. 3106 dated

10.12.2002 is unjust and improper as also contrary to the mandate

of the Government Policy.

SUBMISSION OF THE STATE

11. On the other hand, Mr. Prabhu Narayan Sharma, learned

AC to learned AG has opposed the prayer of the petitioner on the

following grounds:-

(i) In case of this petitioner, the 2002 policy is applicable.

But, according to him, the commutation of the death sentence to one of

life imprisonment in case of the petitioner would not confer him the Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

benefit of remission. By reading paragraph '8' of the judgment of the

Hon'ble Division Bench, Mr. Sharma, learned AC to AG has submitted

that the Appellate Court nowhere records a finding that it was not a case

of a planned murder. According to him, imprisonment for life as held by

the Hon'ble Supreme Court in the case of Union of India versus

Sriharan @ Murugan reported in (2016) 7 SCC 1 always means

imprisonment till end of life. In this case, the reports of the

Superintendent of Police, Katihar and the Presiding Officer of the

learned trial court have been considered by the Remission Board and

then having found that in terms of the Government's Notification dated

10.12.2002 the petitioner is not eligible to be considered for premature

release, the Remission Board rightly rejected his request for premature

release.

(ii)According to him, the petitioner may invoke the

constitutional power of the Governor as contained under Article 161 of

the Constitution of India but because the Hon'ble Appellate Court has

not granted liberty to the petitioner to get the benefit of remission, his

case shall not be eligible to be considered for premature release in terms

of the notification No. 3106 dated 10.12.2002.

CONSIDERATION

12. This Court has heard learned counsel for the petitioner as well

as the State at length. In course of hearing, pleadings have been exchanged

between the parties and this Court has carefully gone through the same. At

the outset, this court is of the considered opinion that in view of the

categorical finding recorded by the Hon'ble Division Bench in paragraph '18' Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

of the judgment in Cr. Appeal (DB) No. 690 of 2005 there is no scope for

learned AC to learned AG to contend that the Hon'ble Division Bench has not

recorded a finding that it was not a case of planned murder; on the contrary

this Court finds that the Hon'ble Division Bench has recorded inter alia as

under:-

".....we find that there is no sufficient evidence on record to

hold him guilty of the charge under Section 364 (A) or Section 120B of

the I.P.C. He is, therefore, acquitted of those charges. However, as

discussed earlier, he is found guilty of the charge under Section 302 and

also under Section 201 of the I.P.C. Coming to the legality of death

sentence awarded to appellant Anuj Kumar Gupta @ Sethi Gupta, we

find that he is an young man whose age was assessed by the Court in

July 2005 as 25 years. It has also come in the statement recorded by the

trial court that he has no criminal antecedent and has not been convicted

in any other earlier case. On going through the entire prosecution case it

is further found that according to prosecution the murder was

committed not on account of pre-determination but on account of

certain development such as failure to find a safe place to hide the boy

perhaps with a view to negotiate for ransom. Hence, it is not possible to

hold that murder was committed on account of cold blooded pre-

meditation. The post-mortem examination report also does not show

that the murder was effected with unusual brutality......."

13. This Court has no iota of doubt that the Hon'ble

Division Bench judgment has recorded as a matter of fact a finding Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

that the murder was committed not on account of pre-

determination. The Remission Board has completely erred by

taking a view that this petitioner was involved in murder of the

boy with pre-meditation of mind after kidnapping him. The

Remission Board could not appreciate that the charges under

Section 364A and 120B of the IPC were not proved against the

petitioner and he was acquitted of those charges. The Remission

Board, as it appears from Annexure '2' proceeded to consider the

case of the petitioner as if he was convicted under Section 364(A)

and 120B of IPC. This was not a correct approach on the part of

the Remission Board.

14. This Court has much to say on the manner in which

the Remission Board took note of both the reports of the

Superintendent of Police, Katihar and the Presiding Officer of the

learned trial court as one of the reasons to reject the case of the

petitioner. The Remission Board remained completely unmindful

of the social investigation report submitted by the Probation

Officer. Further, the fact that the petitioner has his house at Purnea

also and his shop is situated in Katihar, therefore, report of

Superintendent of Police, Purnea gained importance was also

required to be looked into but that has not at all been taken care of.

The report of Superintendent of Police, Katihar categorically Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

shows how the system works in the police department. The

Superintendent of Police, Katihar is said to have submitted his

report vide his memo no. 251 dated 15.01.2020. In his report

(Annexure 'B' to the counter affidavit of the State) the

Superintendent of Police talks of the report submitted by the

Officer-In-Charge of Falka Police Station saying that the Officer-

In-charge has made an inquiry but this is factually wrong which is

evident from the enclosure letter as contained in memo no. 23

dated 08.01.2020 submitted by one Dayanand Paswan, Assistant

Sub Inspector of Police of Falka police station. The Assistant Sub

Inspector of Police has done a paper work only, he has not

enclosed any copy of complaint or application in any form

submitted by the informant and his family or any of the co-villager

of the petitioner expressing any apprehension on the part of this

petitioner. What is disturbing for this Court is that the Assistant

Sub Inspector has recorded in his letter that this petitioner is a

dreaded criminal whereas Hon'ble Division Bench Judgment has

taken note of the facts recorded in the trial court judgment that this

petitioner has no criminal antecedent. The Probation Officer's

report says that the petitioner was running an electronic shop from

which he was earning his livelihood. This Court has, thus, no

hesitation in recording that the Superintendent of Police, Katihar Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

has acted only as a post office in forwarding the letter of Assistant

Sub Inspector of Police by making a wrong statement in his

forwarding letter that the report is that of the Officer-In-Charge of

the police station. This is how the system has worked in this case.

15. So far as the opinion of the Presiding Officer of

learned trial court is concerned, this Court finds no reason as to

why while considering a case of premature release a bald opinion

of the learned Presiding Officer of the trial court without there

being any basis of such opinion may be a ground to reject the case

of the petitioner. This is to be kept in mind that the Hon'ble

Division Bench had partly interfered with the trial court's

judgment by acquitting the petitioner of the charges under

Sections 364A and 120B of the Indian Penal Code. To

substantiate it's view, this Court would say that once the Hon'ble

Division Bench of this Court has held that the charge of the

kidnapping for ransom and brutal killing were not proved against

the petitioner and further there was no pre-meditation of mind

behind killing of the boy, for the purpose of consideration of the

release of a convict the age of the victim alone shall not be a good

for the presiding officer to recommend rejection of the application

for premature release. Apparently, in this case while recording his Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

opinion, the learned Presiding Officer of the trial court did not

look into the judgment of the Hon'ble Division Bench.

16. The purpose behind keeping the policy of premature

release is based on the reformative theory of criminal

jurisprudence. While considering the case for premature release all

those who are concerned and competent to consider the case for

remission are obliged to keep in their mind that the rehabilitation

of a convict is essential part of social obligation, thus, the

authorities must exercise due diligence and care in the decision

making process particularly while refusing to grant premature

release to a convict. Such decision must be guided by the policy of

the government and such policies be given effect to without any

prejudice/bias. The fact that the Superintendent of Police, Purnea

had also submitted a report and that was favouring premature

release of the petitioner coupled with the Probation Officer's

report are relevant materials for the Remission Board to consider.

As stated above, the reports of Superintendent of Police, Katihar

and that of the Presiding Officer of the learned trial court have no

cogent basis to stand and the decision of the Remission Board

based on these reports cannot sustain the taste of reasonableness

and fair play in action.

Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

17. The Remission Board has relied upon paragraph (iv)

(d) and ([k) of the notification dated 10.12.2002. This Court

would extract the said policy hereunder:-

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bl i'kZ~n dh vuq"kalk;sa i'kZn~ esa fdlh fjfDr ;k blds fdlh lnL; dh i'kZn~ dh cSBd esa Hkkx ysus esa vleFkZrk ds dkj.k ek= ls vof/k vekU; ugha gksaxhA ijUrq cSBd gsrq x.kiwfRrZ iwfrZ ugha gkus ij] i'kZn dh cSBd ugha gksxhA i'kZn~ dh x.kiwfRrZ v/;{k dh lfEefyr djrs gq, pkj lnL; ls gksxhA

¼ii½ i'kZn~ dh cSBd dh vof/k jkT; naMkns"k ifjgkj i'kZn~ ,d frekgh esa de&ls&de ,d ckj] jkT; eq[;ky; esa] iwjh dk;Z lwph ds lkFk de&ls&de 10 fnu iwoZ lnL;ksa dks vf/klwfpr frfFk dks cSBd djsxhA rFkkfir i'kZn~ ds v/;{k] ;fn vko";d le>s] rks i'kZn~ dh ,d ls vf/kd cSBdsa ,d frekgh esa cqyk ldsaxsA ¼iii½ le;&iwoZ fjgkbZ ds fy, vgZrk jkT; naMkns"k ifjgkj i'kZn }kjk le;&iwoZ fjgkbZ ds fy, fopkj gsrq fuEufyf[kr dksfV ds canh ik= gksaxs %& ¼d½ izR;sd fl}nks'k canh] iq:'k vFkok efgyk] tks vkthou dkjkokl dk naM Hkqxr [email protected] gks rFkk tks naM izfØ;k lafgrk dh /kjk 433 ¼,½ ds izko/kkuksa ls Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

vkPNkfnr gks] fcuk ifjgkj ds de&ls&de 14] o'kksZ dh okLrfod ltk Hkqxrus ds rqjr ckn le;&iwoZ fjgkbZ ds fy, fopkj djus gsrq ik= gksaxsA ¼[k½ lHkh vU; vkthou dkjkokl dh ltk izkIr iq:'k fl)nks'k canh ifjgkj lfgr 14 o'kksZ dh U;wure ltk Hkqxrus vkSj fcuk ifjgkj ds 10 o'kksZ dh okLrfod ltk iwjh djus ds mijkUr le; iwoZ fjgkbZ ds fy, fopkj djus ds ik= gksaxsA ¼x½ lHkh vU;] vkthou dkjkokl dh ltk Hkksx jgh efgyk fl)nks'k cunh] ifjgkj lfgr 10 o'kksZ dh U;wure ltk Hkqxrus vkSj fcuk ifjgkj ds 7 o'kksZ dh okLrfod ltk vof/k iwjh djus ds mijkUr le; iwoZ fjgkbZ ds fy, fopkj djus dh ik= gksxhA ¼?k½ fl)nks'k canh tks vkthou dkjkokl dh ltk dkV jgs gksa] 65 o'kZ dh vk;q iwjh djus ij] ;fn ifjgkj lfgr mUgksaus 7 o'kksZ ds llkeu dh ltk dkV yh gksA ¼Pk½ vkthou dkjkokl dk naM Hkqxr jgs oSls fl)nks'k canh tks dSlj] ,M~l] Bhd uk gksus okyh fdMuh dh chekjh] ân; ,oa "okl ls twM+s vlk/; jksx ,oa vUl ,slh NwvkNwr okyh chekjh ls xzLr gksa] tSlk fd fpfdRldksa ds ,d cksMZ }kjk izekf.kr gks] ;fn mUgksaus 5 o'kksZa ds okLrfod vFkok ifjgkj lfgr 7 o'kksZ dk naM Hkqxr fy;k gksA ¼iv½ le;&iwoZ fjgkbZ ds fy, v;ksX;rk fuEukafdr Js.kh ds fl)nks'k canh] tks vkthou dkjkokl dk naM Hkqxr jgs gks] le; iwoZ fjgkbZ ds fy, fopkj&;ksX; ugha gks ldsaxs %& ¼d½ cykRdkj] MdSrh] vkradoknh vijk/kksa] vkfn tSls vijk/kksa ds fl)nks'k canhA ¼[k½ oSls canh] tks iwoZ fparu fd;s x;s fo'k;ksa ,oa lqfu;ksftr <ax ls gR;k,¡ vk;ksftr djus ds fy, fl)nks'k gksA ¼x½ oSls is"ksoj gR;kjs] ftUgsa HkkM+s ij gR;k djkus dk nks'kh ik;k x;k gksA ¼?k½ oSls fl)nks'k canh tks rLdjh dk;Z esa varfyZIr jgrs gq, gR;k djrk gks vFkok dRrZO; ij jgus okys yksd lsodksa dh gR;k dk nks'kh gksA

¼v½ ifjgkj i'kZn ds fopkj ds fy, ekeyksa ds izLrqrhdj.k dh izfØ;k ¼d½ dsUnzh;@ftyk dkjk ds izR;sd v/kh{kd] ftuds ikl vkthou dkjkokl dh ltk Hkqxr jgs canh gks] le;&iwoZ fjgkbZ ds fy, fofgr vgZrkvksa ds vuqlkj fopkj&{ks= esa vkus ds fy, fdlh canh ds vgZrk jkT; ljdkj }kjk bl fufer vf/kdfFkr ekunaM ds vuqlkj fopkj.k ds ;ksX; cafn;ksa ds gksus dh frfFk ls 3 ekg igys ls muds ekeyksa dh izfØ;k izkjEHk djsxkA ¼[k½ dkjk v/kh{kd ,sls izR;sd ekeysa esa ,d foLr`r fVIi.kh canh dh ikfjokfjd ,oa lekftd i`'BHkwfe nsrs gq, rS;kj djsxkA mudh fVIi.kh eas ;g Hkh mfYyf[kr jgsxk fd fdl vijk/k ds fy, mls fl)nks'k ik;k x;k vkSj nh x;h ltk ,oa ifjfLFkfr;k ftlds v/khu vijk/k fd;k x;kA canh ds dkjkokl ds nkSjku mlds vkpj.k ,oa vkpkj] ijoh{kk vodk"k ds mls NksM+s tkus dh vof/k esa mldk vkpj.k ,oa vkpkj] mlds vkpj.k "kSyh esa dksbZ ifjoZru gqvk gks vFkok dkjk vijk/k ;fn mlds }kjk fd;k x;k gks vkSj mlds fy, ltk nh x;h gks] ds ckjs esa os iw.kZ :i ls izdk"k MkysxsaA mlds "kkjhfjd] ekufld LokLFk ;k dksbZ xaHkhj fcekjh gS] ftlls canh ihfM+r gS dh mls le;&iwoZ fjgkbZ ds fy, fo"ks'k fopkj.k ds fy, gdnkj cukrh gks] ds ckjs esa ,d izfrosnu Hkh rS;kj fd;k tk,xkA bl fVIi.kh esa dkjk/kh{kd dh viuh vuq"kalk esa vUrZfoZ'V gksxh fd canh dh le;&iwoZ fjgkbZ ds i{k esa gS ;k ugha vkSj izR;sd n"kk esa og Ik;kZIr dkj.kksa }kjk lefFkZr gksxhA ¼x½ dkjk/kh{kd ml ftys ds vkj{kh v/kh{kd dks funsZf"kr djsaxs fd canh vijk/k djus ds le;] ftlds fy, mls fl)nks'k fd;k x;k gS] dgk¡ lkekU;r;k fuokl djrk Fkk vFkok dkjkeqDr gksus ds ckn og iqu% dgk clus okyk gSA fQj Hkh] canh tgka vijk/k djus ds le; lkekU;r;k fuokl djrk Fkk mlds fHkUu LFkku] tgk¡ mlus vijk/k fd;k] fd n"kk esa Hkh ml ftys ds vkj{kh v/kh{kd dks ,d funsZ"k fn;k tk,xk] ftlesa vijk/k fd;k x;k FkkA nksuksa gh fLFkfr;ksa esa] og vius }kjk rS;kj dh x;h fVIi.kh dh izfr canh dh le;&iwoZ Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

fjgkbZ dh okaNuh;rk ds laca/k esa viuk fopkj O;Dr djus gsrq vkj{kh v/kh{kd dks leFkZ djus gsrq izsf'kr djsxkA ¼?k½ lacaf/kr vkj{kh v/kh{kd funsZ"k izkIr gksus ij ekeys esa tks leqfpr dksfV ds ojh; vkj{kh inkf/kdkjh gks] }kjk tkap djk,xas ,oa Lofoosdkuqlkj viuh vuq"kalk djsxasA vuq"kalk djrs le; vkj{kh v/kh{kd ;a=or~ dk;Z ,oa canh dh le;&iwoZ fjgkbZ dk fojks/k ifjdfYir vk"kadkvksa ,oa vekU; vk/kkjksa ij ugha djsaxsA vxj vkj{kh v/kh{kd canh dh le;&iwoZ fjgkbZ ds i{k esa uk gks rks os rdZiw.kZ dkj.kksa ,oa rF;ksa ls mls U;k;ksfpr Bgjk,sxasA os funsZf"kr izkfIr ds 30 fnuksa ds fHkrj lacaf/kr dkjk vf/k{kd dks viuh jk; ds lkFk funsZ"k okil dj nsaxsA ¼Pk½ dkjk?kh{kd canh dY;k.k inkf/[email protected]"kd jkT; dh ijoh{kk lsok dks Hkh bl laca/k esa funsZ"k djsxas ,oa mUgsa viuh fVIi.kh dh ,d izfr Hkh vxzlkfjr dj nsaxsA funsZ"k dh izkfIr ij] canh dY;k.k inkf/kdkjh funs"kd] ijoh{kk lsok Loa; djsaxs] vFkok fdlh ijoh{kk inkf/kdkjh ds ek/;e ls canh ikfjokfjd ,oa lekfpt i`'VHkwfe] mlds ifjokj ds lnL;ksa } kjk mldh Lohdk;Zrk] rFkk canh ds iquokZl ,oa ,d vPNs ukxfjd ds :i esa lkFkZd thou O;rhr djus gsrq lkekftd laHkkoukvksa dk /;ku j[krs gq, canh dh le; iwoZ fjgkbZ dh okaNuh; tkap djsaxs vFkok djk,xsaA os ;a=or~ dk;Z ugha djsaxs ,oa izR;sdekeys dks le;&iwoZ fjgkbZ ds fy, vuq"kaflr ugha djsaxsA nksuksa esa ls gjsd ekeys esa rF;ksa ds :i esa vfHkfyf[kr [email protected] vuq"kalk dks U;k;ksfpr Bgjk,xsA canh dY;k.k inkf/[email protected]"kd ijoh{kk lsok viuk [email protected] vuq"kalk funsZ"k dh izkfIr ls 30 fnuksa ds Hkhrj dkjk/kh{kd dks lqiwnZ dj nsaxsA ¼N½ vkj{kh v/kh{kd rFkk canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok ds izfrosnu & vuq"kalk izkIr gksus ij] dkjk/kh{kd jkT; naMkns"k ifjgkj i'kZn~ dh izLrkfor cSBd ls de&ls&de ,d ekg iwoZ ekeyksa dks dkjk egkfujh{kd ds lkeus miLFkkifr djsaxsA dkjk egkfujh{kd ekeys dh tkap dkjk/kh{kd] vkj{kh v/kh{kd ,oa canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok ds izfrosnuksa @vuq"kalkvksa dks /;ku esa j[krs gq, djsaxsa A vkj{kh vf/k{kd rFkk canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok,a canh dh le;&iwoZ fjgkbZ vFkok jkT; naMkns"k ifjgkj i'kZn~ ds ljdkj }kjk vf/kdkfFkr lkekU; ;k fo"ks'k fn"kk funsZ"k dks /;ku esa j[krs gq, canh dh fjgkbZ ds laca/k esa viuh vuq"kalk,a djsaxsA le;&iwoZ fjgkbZ ds fo'k; esa ekuuh; loksZPp U;k;ky; ,oa foHkUu ekuuh; mPp U;k;y;ksa }kjk fn, x;s fofHkUu lfUu;eksa ,oa fn"kk funsZ"kks dks Hkh /;ku esa j[kk tk,xkA ifjgkj i'kZn ds fy, izfØ;k ,oa fn"kk funsZ"k ¼d½ dkjk egkfujh{kd jkT; eq[;ky; esa jkT; naMkns"k ifjgkj i'kZn~ dh cSBd fdlh fnu rFkk le; vkgqr djsaxs ftldh iwoZ lwpuk cSBd dh fu/kkZfjr frfFk ls de&ls&de nl fnu iwoZ i'kZn~ ds v/;{k ,oa lnL;ksa dks lwpuk nh tk,xh ,oa mlds lkFk lEiw.kZ dk;Zlwph ds dkxtkr layXu jgsaxs] ;Fkk & dkjk/kh{kd dh fVIi.kh] vkj{kh v/kh{kd] canh dY;k.k inkf/kdkjh @ funs"kd ijoh{kk lsok;s rFkk dkjkegkfujh{kd dh vuq"kalk,a] nLrkostksa dh izfr lfgr ;fn dksbZ gksA ¼[k½ cSBd lkekU;rk v/;{k dh v/;{krk esa gksxh vkSj ;fn dqN dkj.kksa ls cSBd esa mifLFkr gksus esa vleFkZ gks rks ;g U;kf;d lfpo&lg&fof/k ijke"khZ dh v/;{rk esa gksxh A & lnL;&lfpo ¼dkjk egkfujh{kd½ jkT; naMkns"k ifjgkj i'kZn~ ds le{k fopkj.k gsrq izR;sd canh ds ekeys dks izLrqr djsaxsA i'kZn~ ekeys ij fopkj djsxh ,oa viuk fopkj xfBr djsxhA tgka rd O;ogk;Z gks] naMkns"k ifjgkj i'kZn~ loZlEefr ls vuq"kalk djus dk iz;kl djsxhA fQj Hkh folEefr dh n"kk esa cgqer vfHkHkkoh gksxk vkSj og i'kZn~ dk fu.kZ; ekuk tk,xkA ¼x½ fdlh fof"k'V canh dh le;&iwoZ fjgkbZ ds ekeys ij fopkj djrs le; i'kZn~ {keknku] naMkns"k ds ifjgkj vkfn dks jkT; ljdkj }kjk U;k;ky;ksa }kjk] ml fo'k; esa iwoZ ds mnkgj.k ds :i esa vf/kdfFkr lkekU;% fl)karksa dks fopkj esa j[ksxkA naMkns"k ifjgkj i'kZn~ ds le{k canh dY;k.k ,oa lekt dY;k.k dk loksZifj /;ku gksxkA i'kZn~ lkekU;r;k fdlh canh dh le;&iwoZ fjgkbZ dks ek= bl vk/kkj ij vLohdkj ugha djsxh fd Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

iqfyl }kjk mlds fjgkbZ dfri; vrkfdZd ,oa dkYifud vo/kkj.kkvksa ds dkj.k vuqlaflr ugh gSa i'kZn~ mu lHkh ifjfLFkkfr;ksa dks fopkj {ks= esa j[skxk ftlesa canh }kjk vijk/k fd;k x;k gks] rFkk canh }kjk bl rjg ds ;k vU; fdLe ds vijk/k djus dk :>ku gS ;k ugh] ;k bl rjg dk vijk/k og iqu% dj ldrk gS ;k ughaaA ¼?k½ jkT; naMkns"k ifjgkj i'kZn~ }kjk fdlh canh dh le; iwoZ fjgkbZ dh ,d ;k ,d ls vf/kd voljksa ij vLohd`r mlds ekeysa ds iqufoZpkj esa ck/kd ugha gksxhA fQj Hkh] fdlh fl)nks"k canh ds vLohd`r ekeys ij iqufoZpkj mlds ekeys esa iwoZ esa fd;s x;s fopkj dh frfFk ls ,d lky dh vof/k chr tkus ij gh fd;k tk;sxkA ¼p½ jkT; naMkns'k ifjgkj i'kZn dh vuq"kalk,a vfoyEc l{ke inkf/kdkjh ds le{k fopkjkFkZ izLrqr dh tk;sxhA l{ke inkf/kdkjh jkT; naMkns"k ifjgkj i'kZn~ dh vuq"kalkvksa dks ;k rks Lohdkj djsxk ;k mls vfHkfyf[kr dkj.kksa ds vk/kkj ij vLohd`r djsxk ;k fdlh fof"k'V ekeys ij iqufoZpkj djus ds fy, jkT; naMkns"k ifjgkj i'kZn dks dgsxkA l{ke izkf/kdkjh dk fu.kZ; lacaf/kr canh dks lalwfpr fd;k tk;sxk vkSj ;fn l{ke izkf/kdkjh us ifjgkj iznku fd;k gks vkSj mlds le; iwoZ fjgkbZ dk vkns"k fn;k tk pqdk gks] rks canh rqjar l"krZ vFkok fcuk "kRrZ dkjk ls eqDr dj fn;k t;sxkA bl fu;e dk vfHkHkkoh izHkko bl fu;e dk vfHkHkkoh izHkko fcgkj dkjk gLrd ds fu;e&548 ,oa fu;e&552 ij ml gksxk] tgk¡ rd vkthou dkjkokl dh ltk Hkqxr jgs cafn;ksa dks le;&iwoZ fjgkbZ ls laca/k gks fcgkj jkT;iky ds vkns"k ls] g0 ¼vkj- ts- ,e- fiYyS½ x`g vk;qDr ,oa lfpo"'

18. This Court finds that the detail guidelines by way of

procedures provided under various clauses of paragraph (v) to

process the case of a convict for premature release have not been

followed.

19. In course of argument, this Court called upon

learned counsel for the state to answer the following issues:-

"(i) Whether as a matter of policy decision or

scheme of remission, if any, framed by the State

Government in exercise of its power under

Section 432 Cr.P.C., the Government is

considering the cases for remission of sentence in Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

respect of those who are serving the life

imprisonment after commutation of their sentence

from death to one of life imprisonment?

(ii) If the answer of the above question is in

affirmative what are those schemes and guidelines

for consideration?

(iii) What is the basis of the report submitted by

the officer in-charge of the police station saying that

if released on remission this petitioner would be a

threat to the society or to the victim's family?

(iv) Whether the opinion of the learned Presiding

Officer/Judge saying that the petitioner does not

deserve any sympathy is based on and is in

accordance with the parameters required to be

considered under the scheme of the remission?"

20. While answering those issues, the IG Prison and

Correctional Services Bihar has filed his affidavit and it is

admitted therein that the Government is considering the remission

of sentence in respect of those who are serving the life

imprisonment after commutation of their sentence from death to

one of life imprisonment. If this is the stand of IG Prison, the

submission of Mr. Prabhu Narayan Sharma, learned AC to learned Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

AG that the Hon'ble Division Bench has not given the benefit of

remission to the petitioner, therefore, the petitioner would not be

entitled to get the benefit of remission is wholly misconceived and

is liable to be rejected. The Hon'ble Division Bench has not

debarred the petitioner from getting the benefit of remission in

terms of government policy. Thus, his case is liable to be

considered. The judgment of Hon'ble Supreme Court in the case of

Shriharan @ Murugan (supra) rather helps the petitioner on this

score.

21. As regards the remission policy, it is stated that vide

letter no. 550 dated 21.01.1984 it has been clarified 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 punishment

provided by law or where sentence of death imposed on a person

have been commuted under Section 433 Cr.P.C into one of the

imprisonment of life, such person shall not be released from prison

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

date of conviction and the sum of remission and custody have

become 20 years. Section 433 and 433A Cr.P.C. are quoted

hereunder for a ready reference:-

"433. Power to commute sentence.--The appropriate Government may, without the consent of the person sentenced, commute--

Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine

[433A. Restriction on powers of remission or commutation in certain cases.--Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.]"

22. Therefore, what is stated by IG Prison in his affidavit

as regards consideration of cases of a life convict are nothing but a

reiteration of the legal position as under Section 433 and 433A

Cr.P.C.

23. The 10.12.2002 notification on which reliance has

been placed has already been quoted hereinabove. In view of the

categorical finding of the Hon'ble Division Bench of this Court,

the case of the petitioner cannot be brought within any of the

exceptions so as to render him ineligible from consideration.

1. Ins. by Act 45 of 1978, s. 32 (w.e.f.18-12-1978) Patna High Court CR. WJC No.387 of 2020 dt.13-12-2021

24. This Court, therefore, arrives on a conclusion that the

decision of the Remission Board taken in it's meeting held on 27.01.2020

is completely arbitrary and bad in law, hence, the same is liable to be set

aside. In result, this Court sets aside the decision of the Remission Board

as contained in it's minutes dated 27.01.2020 (Annexure '2' to the writ

application) in respect of this petitioner.

25. The Remission Board is directed to consider the case of the

petitioner for premature release in the very next meeting of the board

which may be likely to be held after receipt/communication of this order

but in any case such decision must be taken within two months from the

date of receipt/communication of this order. It goes without saying that

the Remission Board shall follow the procedures in terms of the

Government's Policy i.e. Notification dated 10.12.2002 and in the light of

the discussions made in this judgment.

26. The writ application is allowed to the extent indicated

hereinabove.

                                                                        (Rajeev Ranjan Prasad, J)
 avin/-shushma
 AFR/NAFR                   AFR
 CAV DATE                   23.09.2021
 Uploading Date             13.12.2021
 Transmission Date          13.12.2021

Note: The ordersheet duly signed has been attached with the record. However, in view of the present arrangements, during Pandemic period all concerned shall act on the basis of the copy of the order uploaded on the High Court website under the heading 'Judicial Orders Passed During The Pandemic Period'.