Mannu Ray @ Mannu Rai vs State Of Bihar

This writ application has been filed seeking a writ in the nature of mandamus commanding the respondent no.8 to place the case of the petitioner before the State Remission Board (hereinafter referred to as the ‘Board’) in connection with Session Trial No. 434 of 1990 arising out of Sakra P.S. Case No. 173 of 1989. Further prayer of the petitioner is to direct the Board to grant premature release to the petitioner on the ground that the petitioner has already completed more than ten years of his physical incarceration.

In the present case, the petitioner has been convicted for offence punishable under Sections 302/149 of the Indian Penal Code (in short ‘IPC’) by the learned Additional Sessions Judge, Fast Track Court-IV, Muzaffarpur in Sessions Trial No. 434 of 1990. He has been awarded rigorous imprisonment for life and has been directed to pay a fine of Rs. 5,000/-. It is stated that the judgment of conviction and order of sentence passed against the petitioner has been affirmed up to the Hon’ble Supreme Court. The petitioner remained behind the bars from 03.10.1989 to 23.11.1989 and thereafter he was in judicial custody from the date of conviction i.e. 16.05.2006 till he was granted bail on 17.10.2006 in the appeal. After affirmation of conviction in the appeal, the petitioner was put behind the bars from 30.09.2011 and since then he is in incarceration. In paragraph ‘13’ of the petition, it is stated that the petitioner has completed ten years eight months and eight days in custody. This writ application has been filed on or about 14.12.2021, therefore, as on today, the petitioner has completed about thirteen years of incarceration.

Learned counsel for the petitioner submits that Section 432 Cr.P.C. (hereinafter referred to as the ‘Cr.P.C.’) confers power upon the appropriate government to suspend the execution of sentence or remit the whole part of the punishment of any person. The power of the government to commute a sentence of imprisonment for life to an imprisonment for a term not exceeding fourteen years or with fine is conferred under Section 433 Cr.P.C. Section 433A Cr.P.C provides restriction on power of remission of commutation in certain cases. It is submitted that according to Section 433A Cr.P.C. “Notwithstanding anything contained in Section 432 Cr.P.C 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 in Section 433 Cr.P.C. into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment”. Learned counsel for the petitioner relies upon Clause (iii) ([k) of Notification as contained in Memo No. 3106 dated 10.12.2002 issued by the Department of Home (Special), Government of Bihar (P-2 to the writ application) to submit that the life convict who have completed fourteen years of imprisonment with remission and ten years without remission will be eligible for consideration of their premature release.

It is the submission of learned counsel for the petitioner that one of the convicts namely, Bhagwat Roy, of the instant trial had filed writ application being Cr.W.J.C. No. 1095 of 2017. It is further submitted that Cr.WJC No. 1095 of 2017 was disposed of by an Hon’ble Division Bench of this Court vide order dated 02.08.2017 with direction to the Board to obtain a report from the Medical Board and thereafter take a decision in accordance with law. Pursuant to the said order of the Hon’ble Division Bench, the convict Bhagwat Roy of the instant trial has been released giving him benefit of Clause (iii) ([k) and (?k) of Annexure ‘P-2’.

Learned counsel for the petitioner submits that the petitioner and convict Bhagwat Roy were convicted in the same trial. It was Bhagwat Roy who had fired shot causing death of the victim and he was convicted for the offence under Section 302 IPC as also under Section 27 of the Arms Act whereas the petitioner has been convicted with the aid of Section 149 IPC under Section 302/149 IPC. It is his submission that the petitioner’s case deserves to be considered giving the same benefit in terms of the Clause (iii) ([k) of the Notification dated 10.12.2002.

A counter affidavit has been filed on behalf of the State which has been sworn by the Jail Superintendent, Shaheed Khudiram Bose Central Jail, Muzaffarpur. It is stated that to put up a proposal before the Remission Board for premature release, it is mandatory that the convict must have served fourteen years of actual custody and twenty years of custody with remission. It is submitted that since the petitioner would complete fourteen years of actual custody and twenty years with remission, his proposal for premature release shall be placed before the Board for consideration.

A supplementary counter affidavit has also been filed to explain the circumstances in which the Circle Officer-convict Bhagwat Roy was granted premature release by the Board. It is submitted that in the case of Bhagwat Roy the Hon’ble Division Bench vide order dated 02.08.2017 passed in Cr.W.J.C. No. 1095 of 2017 directed the Board to obtain a report from the Medical Board and thereafter, take a decision in accordance with law. The co-convict Bhagwat Roy was aged 68 years and he was critically ill so in the light of Clause (iii) (p) of Notification No. 3106 dated 10.12.2002 the said convict was recommended by the Medical Board headed by the Civil Surgeon, Muzaffarpur for consideration of his case for premature release. It is stated that the Board in it’s meeting dated 05.10.2017 considered the proposal of Bhagwat Roy and recommended his premature release, thereafter, Bhagwat Roy was released.

Learned counsel for the State submits that in this case the petitioner has not pleaded any special circumstance so as to seek the same benefit which was given to Bhagwat Roy.

Consideration

Having heard learned counsel for the petitioner and learned counsel representing the State, this Court finds that the bone of contention in the present writ application is a provision contained in the Notification Dated 10th December, 2002 (Annexure- ‘P-2’), therefore, this Court deems it just and proper to extract Annexure ‘P-2’ hereunder for a ready reference:-

On perusal of Rule (iii) ([k), this Court finds that this provision has to be read along with Clause (iii) (d). According to this provision, those convicts male or female who are undergoing life imprisonment and whose case is covered under Section 433A Cr.P.C. shall not be eligible to be considered for premature release unless he/she serves at least 14 years of incarceration without remission. Section 433A Cr.P.C. reads as under:-

“[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.]”

On a bare reading of Section 433A Cr.P.C. it would appear that this provision is in the nature of a restriction on the power of remission or commutation as conferred upon the competent authority under Section 432 Cr.P.C. According to this provision, 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 Cr.P.C. into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

To this Court, there is no iota of doubt that in the present case the petitioner would be covered in the first part of Section 433A Cr.P.C., he has been sentenced for imprisonment for life on conviction for an offence under Sections 304/149 IPC for which death is one of the punishments provided by law. Thus, in his case he would not be released from prison unless he has served at least 14 years of imprisonment.

Section 433A Cr.P.C. is a provision contained in a central legislation. It cannot be allowed to be contended that Clause (iii) ([k) of the Notification Dated 10th December, 2002 issued by the Home (Special) Department, Government of Bihar would take away or prevail over the provision of Section 433A Cr.P.C. Clause (iii) ([k) would apply only to those cases in which the convict is undergoing life imprisonment for committing an offence for which life imprisonment is a punishment but that penal provision does not attract death as one of the punishments. Clause (iii) (p) of the Notification dated 10th December, 2002 contains a provision whereunder those convicts who are under going life imprisonment but are suffering from Cancer, AIDS, non-reversible disease of kidney, heart, respiratory disease and contagious disease and those are certified by a board of medical examiners, they may be granted premature release upon completion of five years of actual incarceration and seven years with remission.

Since the petitioner is facing life imprisonment for an offence under Section 302 read with Section 149 IPC and one of the punishments prescribed under this provision is a death sentence, the case of the petitioner would be covered under Clause (iii) (d) and not under Clause (iii) ([k) of the Notification dated 10th December, 2002.

So far as the plea of the petitioner that convict Bhagwat Roy had been granted privilege of premature release, the respondents have come out with a plea that in view of the Medical Board Report as contained in Annexure ‘C’, his case was considered for premature release.

This Court has no reason to go into the case of Bhagwat Roy and therefore, save and except to say that the petitioner has not come out with any plea giving any special reason for consideration of his case for premature release, his plea seeking a direction to the respondent authorities to consider his case for premature release, at this stage, cannot be acceded to. The writ application is thus premature and is disposed of accordingly.

It goes without saying that on completion of 14 years of actual incarceration and 20 years with remission, the application for premature release of the petitioner shall be considered by the Board in accordance with law within a reasonable time.

This writ application stands disposed of accordingly.