Sri Dulal Sharma vs The State Of Tripura
2022 Latest Caselaw 813 Tri

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                           HIGH COURT OF TRIPURA
                                 AGARTALA
                           WP (Crl.) No. 04 of 2020

     Sri Dulal Sharma
     son of late Badal Sharma, resident of Ambassa, Lalchari, P.S. Ambassa,
     Dist. Dhalai, Pin 799204.
                                                            ----- Petitioner(s)
                                  Versus

1. The State of Tripura,
   represented by the Secretary, Home (Jail) Department, Government of
   Tripura, New Capital Complex, P.O. NCC, Agartala West Tripura, Pin
   799010.

2. Inspector General of Prisons,
   Office of the Inspector General of Prison, Dhaleswar, Agartala, Dist. West
   Tripura, P.O. Dhaleswar, Pin 799007.

3. Superintendent of Sub-Jail,
   Longtharai Valley Sub Jail, Chailengta, Dist. Dhalai, Tripura, P.O.
   Chailengta, Pin 799273.

4. Sri Amal Krishna Debbarma,
   The then Dy. Jailor of Longtharai Valley Sub Jail, Dist. Dhalai, P.O.
   Chailengta, Pin 799273.
   Presently posted as Dy. Jailor at office of the I.G. Prisons, Dhaleswar,
   Agartala, Dist. West Tripura, P.O. Dhaleswar, Pin 799007
                                                          ----- Respondent(s)

For Petitioner(s) : Ms. Sarama Deb, Advocate.

For Respondent(s) : Mr. R. Datta, Public Prosecutor.

Ms. Kathakali Roy Barman, Advocate.

     Date of Hearing              :     10th May, 2022.
     Date of Pronouncement        :     30th August, 2022.
     Whether fit for reporting    :     YES




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                                           B_E_F_O_R_E_

HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY

JUDGMENT & ORDER [Per S.G. Chattopadhyay], J

The writ petitioner has claimed compensation to the tune of

Rs.15,00,000/- (rupees fifteen lakhs) apart from seeking other reliefs for

denial of remission as per his entitlement during his detention in Longtharai

valley Sub Jail in connection with case No. ST 25(NT/D) of 2011 under

section 376(1) IPC.

[2] The factual context of the case is as under:

By judgment and order dated 18.12.2012 passed by the

Assistant Sessions Judge, Dharmangar in ST 25(NT/D) of 2011, petitioner

Dulal Sharma was sentenced to RI for 7 (seven) years and fine of

Rs.10,000/- (rupees ten thousand) and in default to SI for 3 (three) months

for commission of offence punishable under section 376(1) IPC. Aggrieved

thereby, petitioner challenged the judgment and order of his conviction and

sentence before the Sessions Judge, North Tripura by filing an appeal which

was upheld by the Sessions Judge by his judgment and order dated

22.02.2013 passed in Criminal Appeal No.04 of 2013. After his conviction by

the trial Court, petitioner was put to prison to suffer the sentence w.e.f.

18.12.2012 and he was released from jail at the end of the term of his

sentence on 17.04.2019. As per the release order, petitioner has been

allowed remission for a period of 7 (seven) months 23 (twenty three) days

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which came to be 237 days. According to the petitioner, as per Jail Code he

was entitled to remission for a period of 420 days and if he was granted

remission for 420 days as per his entitlement he would have suffered

detention under his conviction and sentence for a period of 2118 days

instead of 2310 days. It is claimed by the petitioner that due to denial of

appropriate remission to him, he has suffered detention for a longer period

for which the petitioner approached this Court seeking the following

directions:

"To issue Rule NISI calling upon the respondents to show cause as to why a writ of certiorari for declaring that the petitioner's ordinary remission register has been unauthorizedly tempered contrary to provisions of the Bengal Jail code 1937 resulting in illegal detention of the petitioner for 182 days beyond the period of his sentence computed after granting him ordinary remissions of 5 days each month as a admissible to him as per Rules of Bengal Jail Code 1937 and that the petitioner is entitled to compensation to the tune of Rs.15 lakhs for such illegal detention and causing mental agony and suffering caused with mala fide intention.

AND As to why a writ of mandamus should not be issued directing the State respondents and respondent No.4 to pay compensation to the petitioner to the tune of Rs.15 lakhs for such illegal detention.

AND As to why a writ of certiorari should not be issued directing the respondent No.3 to produce the original remission card/roll/register, History tickets of the petitioner, register of convicted prisoner admitted into the jail, Kamjari register/work allotment and any other documents reflecting the initiation of a proceeding if any for bad conduct of the petitioner in hail for which his number of days of ordinary remission had been reduced from time to time, and any other relevant records relating to the petitioner for inspection of the Court for the period from December 2012 to April 2019.

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AND As to why any other writ/writs/orders shall not be issued for enforcement of constitutional, legal and fundamental right of the petitioner under Article 14, 20 & 21 of the Constitution of India.

AND For any other writ/writs or directions may be issued so as to grant complete and adequate relief to the petitioner as Your Lordship deem fit proper."

[3] Affidavit in opposition on behalf of respondent Nos.1, 2 and

3 came to be filed on 01.09.2020 in which the said respondents pleaded

that petitioner was convicted under section 376(1) IPC and sentenced to RI

for 7 (seven) years and fine of Rs.10,000/- (rupees ten thousand) with

default stipulation. According to the said respondents, RI for 7 (seven)

years converted to days would be RI for 2555 days. As per the order of the

trial Court, the petitioner suffered imprisonment for 97 days during

investigation and trial of the case. Therefore, a period of 97 days would be

set off against the term of imprisonment and after set off it came to be

2458 days. Since the petitioner was sentenced to SI for 3 (three) months in

default of payment of fine and he defaulted in paying the fine, the default

sentence of 03 months was added to 2458 days and the petitioner was

supposed to undergo 2458+90=2548 days of detention without remission.

Since he earned remission for 237 days during the entire period of his

detention under the order of his conviction and sentence, he actually

suffered detention for a period of 2548-237=2311 days. According to the

respondents, initially petitioner was allowed ordinary remission for 5 (five)

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days per month. But subsequently, 2 (two) days of remission per month

was deducted due to his misconduct. Ultimately, the petitioner earned

monthly remission of 3 (three) days for 79 (seventy nine) months and he

earned total remission of 79 (seventy nine) months x 3 (three) days=237

days. It has been asserted by the respondents that as per the Jail code,

petitioner is not entitled to any remission for the entry month and for the

month on which he was released. Moreover, he was not also entitled to any

remission for suffering the default sentence for 3 (three) months.

[4] An additional affidavit on behalf of respondent No.4 came to

be filed on 13.10.2020 in which the said respondent asserted that without

remission petitioner was supposed to undergo imprisonment for 2548 days

in terms of the sentence awarded to him but he actually served

imprisonment for 2311 days because remission for 237 days was granted to

him in terms of the Jail Code. According to the respondent, as per the Jail

Code petitioner was not entitled to any remission for the first calendar

month of his detention under sentence and he was not also entitled to any

remission for the calendar month of his release. Moreover, for the default

sentence of 3 (three) months, he was not entitled to remission and as such

he was entitled to remission only for 79 (seventy nine) months @ 3 days

per month which came to be 79 x 3=237 days.

[5] Heard Ms. Sarama Deb, learned advocate representing the

petitioner and Mr. R. Datta, learned P.P. appearing for the respondents

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No.1, 2 and 3 and Ms. Kathakali Roy Barman, learned advocate appearing

for respondent No.4.

[6] It is contended by Ms. Deb, learned counsel that right to

remission is a legal right which emanates from the Prison Act and the rules

made thereunder. To nourish her contention, counsel has relied on the

decision of the Apex Court in State of Haryana vs. Mahender Singh &

Ors. reported in (2007) 13 SCC 606 wherein the Hon'ble Apex Court has

held as under:

"38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. (State of Mysore v. H. Srinivasmurthy; (1976) 1 SCC 817)"

[7] Ms. Deb, learned counsel has further contended that the

ratio decided by the Apex Court in the case of Mahender Singh (Supra)

was followed in the case of Union of India vs. V. Sriharan alias

Murugan & Ors. reported in (2016) 7 SCC 1 wherein the Apex Court

held as under:

"258. In paras 27 and 38 of the decision in State of Haryana vs. Mahender Singh [(2007) 13 SCC 606], this Court observed:

"27. It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its Executive Power of remission must consider each individual case keeping in view the relevant

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factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law.

* * *

38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from the Rules framed thereunder. Although no convict can be said to have any constitutional right for obtaining remission in his sentence, he in view of the policy decision itself must be held to have a right to be considered therefor. Whether by reason of a statutory rule or otherwise if a policy decision has been laid down, the persons who come within the purview thereof are entitled to be treated equally. (State of Mysore v. H. Srinivasmurthy; (1976) 1 SCC 817)"

259. The convict undergoing the life imprisonment can always apply to the authority concerned for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 CrPC and the authority would be obliged to consider the same reasonably. This was settled in Godse (AIR 1961 SC 600) which view has since then been followed consistently in State of Haryana v. Mahender Singh [(2007) 13 SCC 606], State of Haryana v. Jagdish [(2010) 4 SCC 216], Sangeet v. State of Haryana [(2013) 2 SCC 452 and Laxman Naskar v. Union of India [(2000) 2 SCC 595]. The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation as ruled in Godse (AIR 1961 SC 600). All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the authorities concerned, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner."

[8] Counsel contends that in the instant case despite filing an

application, the petitioner was not granted remission as per his entitlement

and as such he suffered illegal detention for which he is entitled to

compensation.

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[9] Counsel appearing for the respondents on the other hand

have argued that remission was granted to the petitioner as per his

entitlement otherwise he would have been in jail for a longer period.

Counsel have contended that for his proven misconduct, number of

remission was less in his case as per Jail Code. It is contended by the State

counsel that the petition is devoid of merit and liable to be rejected.

[10] Considered the submissions made by the counsel

representing the parties. Perused the record.

[11] The Apex Court in the case of V. Sriharan (Supra) has

succinctly held whether remissions be granted or not is entirely left to the

discretion of the authorities concerned, which discretion ought to be

exercised in a manner known to law.

[12] As discussed, whether remissions be granted or not is

entirely left to the discretion of the authorities concerned, but the same

cannot be exercised arbitrarily. In the case of State of Madhya Pradesh

vs. Ratan Singh & Ors. reported in (1976) 3 SCC 470, the Hon'ble Apex

Court held that the appropriate Government has the undoubted discretion

to remit or refuse to remit the sentence. In a later decision, in the case of

Mahender Singh (Supra), the Hon'ble Apex Court held that the convict

has a legal right to be considered for remission and the power of remission

should be exercised in a fair and reasonable manner. The decision in

Mahender Singh (Supra) was followed by the Constitution Bench in the

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case of V. Sriharan (Supra) in which the Apex Court held that all that the

convict can claim is a right that his case be considered. The decision

whether remissions be granted or not is entirely left to the discretion of the

authorities concerned, which discretion ought to be exercised in a manner

known to law. In the case of Ram Chander vs. State of Chhattisgarh &

Anr. reported in 2022 SCC Online SC 500, the Hon'ble Apex Court held

that while a discretion vests with the Government to suspend or remit the

sentence, the executive power cannot be exercised arbitrarily. Observation

of the Court is as under:

"12. While a discretion vests with the government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily. The prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution. In Mohinder Singh (supra), this Court has held that the power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. The Court held thus:

"9. The circular granting remission is authorized under the law. It prescribes limitations both as regards the prisoners who are eligible and those who have been excluded. Conditions for remission of sentence to the prisoners who are eligible are also prescribed by the circular. Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise power of remission in that case. Power of remission, however, cannot be exercised arbitrarily. Decision to grant remission has to be well informed, reasonable and fair to all concerned."

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13. In Sangeet (supra), this Court reiterated the principle that the power of remission cannot be exercised arbitrarily by relying on the decision in Mohinder (supra).

14. While the court can review the decision of the government to determine whether it was arbitrary, it cannot usurp the power of the government and grant remission itself. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh.

15. In Laxman Naskar v. State of West Bengal (2000) 7 SCC 626, while the jail authorities were in favour of releasing the petitioner, the review committee constituted by the government recommended the rejection of the claim for premature release on the grounds that (i) the two witnesses who had deposed during the trial and people of the locality were apprehensive that the release of the petitioner will disrupt the peace in the locality; (ii) the petitioner was 43 years old and had the potential of committing a crime; and (iii) the crime had occurred in relation to a political feud which affected the society at large. The Court while placing reliance on Laxman Naskar v. Union of India (supra) stipulated the factors that govern the grant of remission, namely:

"6...(i) Whether the offence is an individual act of crime without affecting the society at large.

(ii) Whether there is any chance of future recurrence of committing crime.

(iii) Whether the convict has lost his potentiality in committing crime.

(iv) Whether there is any fruitful purpose of confining this convict any more.

(v) Socio-economic condition of the convict's family."

[13] We have considered the present case in the light of the

judgments rendered by the Hon'ble Apex Court.

[14] In the given case, it is apparent on the face of the record

that petitioner was sentenced to RI for 7 (seven) years with fine of

Rs.10,000/- (rupees ten thousand) and in default to SI for 3 (three)

months. The sentence was confirmed in appeal. Pursuant to the sentence, WP(Crl.) No. 04 of 2020 Page - 11 of 12

he was put to prison on 18.12.2012 and on expiry of sentence he was

released from jail on 17.04.2019. His release order (Annexure-4) indicates

that he earned remission for 7 (seven) months and 23 (twenty three) days

which came to be 237 days.

[15] Accordingly, 237 days' remission was granted to the

petitioner and he was released from prison on 17.04.2019. We have also

perused the jail records produced by the Public Prosecutor and gone

through the relevant provisions of the Prison Manual. As stated, petitioner

has claimed that under the Jail Code, he is entitled to ordinary remission of

5 (five) days per month like other convicts since there is no record of

commission of any offence as per his history ticket while in jail. It is claimed

that he was granted only 2 (two) days remission per month for which he

suffered detention for a longer period whereas it has been asserted by

respondent No.4 in his additional counter affidavit that ordinary remission

could not be allowed to the petitioner due to his bad conduct. He was given

remission for 3 (three) days per month for 79 (seventy nine) months and as

such the total remission came to be 237 days. Similarly, respondents No.1,

2 and 3 also asserted in their counter affidavit that ordinary remission can

be given to a prisoner having a thorough record of good conduct. But in the

case of the petitioner, he has a thorough record of bad conduct for which 3

(three) days remission was granted to him. Even though he was not

engaged in prison service like cooking and sweeping on Sundays and

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Holidays, he was awarded 1 (one) day's remission per month. Thus, he was

granted 3 (three) days remission per month for 79 (seventy nine) days

which came to be 237 days. The respondents categorically stated that the

petitioner was not entitled to any special remission as per Prison Manual

since he was convicted on the charge of rape.

[16] From the records placed before us and the pleadings of the

respondents it is clear that the jail authorities (respondents herein) assessed

the period of remission as per the relevant provisions of the Jail Code and

from the materials available no arbitrariness can be attributed to the

respondents in exercising the power of remission. Therefore, the petitioner

is not entitled to any compensation as prayed for. Resultantly, the petition

stands dismissed.

[17] In terms of the above, the case is disposed of. Pending

application(s), if any, shall also stand disposed of.

The prison records produced by the Public Prosecutor shall

be returned to him forthwith.

(S.G. CHATTOPADHYAY), J (INDRAJIT MAHANTY), CJ

Rudradeep

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