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Judgment
This Court had passed the following two orders on 15.03.2019 and 07.05.2019.
Order dated 15.03.2019
"1. This petition seeking long parole leave is filed by the convict prisoner who has undergone nearly 23 years in jail as long convict.
Mr. Rashesh Rindani, learned APP is directed to produce on record the Government Resolutions / Notifications or Rules governing the early release of life convict under Sections 432, 433 as also 433 (A) of the Code of Criminal Procedure, 1973. At the same time, he is directed to produce on record the constitution and the role of Jail Advisory Committee who is consisting of nearly 11 persons. It has been pointed out that in a meeting dated 03.06.2016, the committee recommended positively the early release of convict prisoner. That meeting of committee took place on 03.06.2016. However, surprisingly a communication dated 16.06.2016 addressed to Additional Chief Secretary, Home Department, Gandhinagar by Additional D.G. and I.G. Prison gave his opinion negating the early release though recommended by the Committee. More surprisingly yet no order is passed by even the Home Department taking decision thereon as informed to the Court. This should be placed on record on or before 03rd April, 2019.
Though convict prisoner has enjoyed furlough leave from 14.01.2019 to 27.01.2019, looking at the recommendation of committee, though may not be relevant for the present purpose, and the appreciation letter issued by the Jail Authority for the commendable work done by prisoner, he is ordered to be released on parole leave up to 05th April, 2019 on a usual terms and conditions ,including furnishing a bail bond of Rs.5,000/ (Rupees Five Thousand) to the satisfaction of the jail authority. The convict prisoner shall surrender to the jail authority on expiry of the parole leave.
For the time being matter to be placed on board on 3rd April, 2019.
The registry to immediately inform the order to the concerned Jail Authority. Copy of this order be supplied to the learned APP immediately."
Order dated 07.05.2019 reads thus;
" Though this application is filed for long parole leave as also for premature release, the jail authority has, at the first instance, forwarded this application treating to be long parole leave application. However, since the applicant has already undergone nearly 23 years of imprisonment and as asserted in the communication dated 14.03.2019 by the In charge Superintendent, Gondal Sub Jail, the case of the applicant came to be rejected for premature release vide order dated 21.10.2010 as also again on 17.04.2012, but however, in accordance with the policy of the State, it appears that the case of the applicant for premature release is not considered as required, respondents are directed to produce on record all the relevant existing policy decisions in respect of premature release and remission to such convicts on record of this case. At the same time, respondents are directed to place on record how many times the case for premature release under the policy of the State Government is considered by it.
Since the issue involved in this application is of great importance and touching the right of the convict - prisoner, High Court Legal Services Committee is directed to appoint a lawyer for the applicant and he may be provided with all the necessary documents, including all existing State policies, remission as also premature release prevailing at the relevant time as also for the present. Put up for consideration on 26.06.2019."
In compliance with the said orders, affidavit has been filed by the State placing relevant material on record.
The question, in view of the above orders is required to be addressed under Section 432 of the Code of Criminal Procedure (for short 'CRPC') contemplating the suspension/remission of sentences subject to the restrictions contained in Section 433A. In the instant case, the prisoner was sentenced to: (1) life imprisonment for the offense punishable under section 302 (2) five years rigorious imprisonment under section 307 of Indian Penal Code (for short 'IPC') and (3) rigorous imprisonment for 1 year for the offenses punishable under section 25(1) of the Arms Act. The sentences ran concurrently and the prisoner by now having served the sentence over 23 years, sentences nos. (2) and (3) (supra) have been exhausted and only sentence (1) is required to be completed. Having regard to the restrictions contemplated in section 433A, 14 years imprisonment shall be the minimum incarceration for the prisoners sentenced to life imprisonment if the provision contemplates capital punishment also or in cases where capital punishment converted to life imprisonment under section 433(1) of CRPC; to be eligible for the benefit under section 482 of CRPC. Prisoner in the facts of the case could be eligible for the benefits under section 432 of CRPC for his having completed over 14 years in prison and having complied with the conditions contemplated under section 433A of CRPC.
An affidavit has been filed by the State producing on record Government policy contained in resolution dated 23.01.2014 in regard to remission and premature release of the prisoner. The policy brackets the cases ineligible for remission/premature release at Annexure - I thus:
ANNEXURE - I
The following class of prisoners SHALL NOT be granted State Remission as well as for Premature Release.
(I) Such prisoners who have been convicted for a crime
(a) which was investigated by Delhi Special Police Establishment constituted under Delhi Special Police Establishment Act, 1946 (No.25 of 1946)
(b) which involved the misappropriation of or destruction of damage to any property belonging to the Central Government.
or
(c) which was committed by a person in the Service of Central Government while acting or purporting to act in the discharge of his official duties.
(II) Such prisoners
(a) who have been categorized as habitual offenders under the prevailing rules by the competent authority.
(b) who have been ordered by a Magistrate to furnish security and are undergoing imprisonment for not furnishing such security.
(c) who are undergoing sentence in default of payment of fine.
(III)The Prisoners who are convicted for any offence under the following Acts:(
1) The Drugs & Cosmetics Act, 1940 (No.23 of 1940)
(2) The Foreign Exchange Regulation Act, 19473 (No.46 of 1973)
(3) The Employees Provident Funds and Miscellaneous Provisions Act, 1952 (No.19 of 1952)
(4) The Prevention of Food Adulteration Act, 1954 (No.57 of 1954)
(5) The Essential Commodities Act, 1955 (No.10 of 1955).
(6) The Protection of Civil Rights Act, 1955 (No.22 of 1955)
(7) The Customs Act, 1962 (No.52 of 1962)
(8) The Excise Act, 1955.
(9) The Narcotic Drugs and Psychotropic Substances Act, 1985 (No.61 of 1985).
(10) The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (No.52 of 1974)
(11) The Representation of the Peoples Act, 1951 (No.43 of 1951).
(12) The Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1980 (No.46 of 1980).
(13) The National Security Act, 1980 (No.65 of 1980).
(IV) (a) A prisoner or prisoners sentenced for group murder of two or more persons.
(b) Absconders, including those who are absconding from Parole/furlough, bail / interim bail, police custody or jail and those who have late surrendered in jail from Parole / Furlough, interim bail after three days of the stipulated period.
(c) Life Imprisonment prisoners convicted under TADA or POTA.
(d) Prisoners convicted for murder with rape or gang rape.
(e) Prisoners sentenced under Section 489 of the Indian Penal Code.
(f) Such prisoners who have been convicted for life imprisonment under Section 302 Indian Penal Code in connection with Dowry/cruelty cases I.e. offences under Section 306, 304B, 498A etc. of Indian Penal Code.
(g) Prisoners convicted for any offence against any law relating to a matter to which the executive power of the State does not extend.
(h) Prisoners sentenced to two or more sentences of life imprisonment for two or more separate cases of murder.
(I) Prisoners undergoing life sentence, who are having any other criminal case (s) pending against them either with the police for investigation or in the Court for trial.
(V) (a) The prisoners who have notorious, dangerous and involved in gang wars or interstate crime or offences having international ramification,
(b) The prisoners who are involved in the offences falling under Section 392 to 402 of the Indian Penal Code,
(c) The prisoners who are involved in the serious offences under the Arms Act, 1959, the Explosive Substances Act, 1908, or under the Unlawful Activities (Prevention) Amendment Act, 2008.
(d) The prisoners who are involved in activities of spying or escaping from Jail.
(e) The prisoners belonging to banned organizations.
(VI) Wherever, the Appropriate Authority is Central Government, in those cases, the State Government will not consider for granting the State Remission and Premature Release of the convict Prisoners.
This Court is concerned with V(a) to V(e). The policy draws an exception as enumerated in Annexure I, to the benefit of remission and premature release. The serious offense punishable under section 302 or 307 perse not being part of the exception under AnnexureI would qualify for the benefit of remission of premature release on satisfaction of the necessary conditions. At the same time, clause(c) of (V) of AnnexureI deserves the above benefit to the prisoners involved in the "serious offenses", inter alia under the Arms Act, without defining or categorizing or distinguishing the serious offenses from the offenses with the lesser degree of seriousness under the said Act.
In light of the above provisions, the order dated 30.04.2019, a copy of which is placed by learned APP on record is required to be examined in the context of the question as to whether the decision contained therein is in consonance with section 432, read with section 433A of CRPC and the policy above referred. The case of the prisoner has been rejected on three grounds; (i) that he, by use of gun committed the murder of his neighbor Bahadur Popatbhai Khant. (ii) that (V) of the policy above referred excludes the convicts of the offences under section 25(1) of the Arms Act from the benefits above referred. (iii) Negative opinion is given by Inspector General, District Magistrate and Police Authorities.
For the reasons above stated, the first ground cannot be sustained. The third ground is also silent as to the nature of opinion, it is not clear whether as per such opinions, any provision of the policy would suffer a set back by early release of the prisoner, therefore said ground would not be available to the respondent.
The ground no.2 would however require a close scrutiny. Reliance therein is on clause(c) of V of the policy above stated in Annexure:I. It excludes the prisoners who are involved in the serious offenses under the Arms Act, 1959, the Explosive Substances Act, 1908, or under the Unlawful Activities (Prevention) Amendment Act, 2008, from the benefit under sections 432 read with 433 and the policy (supra). The said clause, as indicated above, does not distinguishing the serious offense or the offense with lessor degree of seriousness under the Arms Act. In absence of such distinction, untrammeled wild discretion would be available to the authority concerned to define its' own criteria of "seriousness" of the offenses which may result into arbitrary exercise of powers in breach of Article 14 of the Constitution of India. It would therefore be appropriate for the policy makers to fill up the said grey area and distinguish between serious offenses and nonserious offenses under the legislations (supra).
The seriousness of the offense in absence of any other criteria can be determined reckoning the quantum of sentence imposed upon the convict inasmuch as while deciding the quantum of sentence, what principally weighs with the judicial mind is seriousness of the offense.
In the facts of this case, a punishment of one year under Section 25 1A of the Arms Act is an indicator that the offense was not serious. No independent offense under the Arms Act was committed except illegal possession of the arm and its use for committing a murder of the victim. Pertinently, the manner of commission of serious offense like murder does not disentitle a prisoner of the benefit under the policy above referred and therefore the emphasis on the fact that the murder was committed by use of arms is of no consequence. It is not the prosecution case that any other offense independent of the murder, was committed by the prisoner under the Arms Act, except illegal possession of arms and its use in murder. Therefore, in the facts of the present case, offense under the Arms Act above referred cannot be said to be an independent serious offense dis entitling the prisoner of the benefits under the policy above referred.
The approach of the Trial Judge refusing to render his opinion and relegating the appropriate Government to the jail authority cannot be countenanced as such approach is in contravention of subsection (2) of section 432 which obligates the convicting Judge or the Judge confirming the conviction to render his opinion with reasons as to whether the application under subsection (1) of section 432 should be granted or refused; and to forward, along with such opinion, the certified copy of the record of the trial as may exist on his file.
In view of the above discussion, in the opinion of this Court, the case is required to be reconsidered by the State under Section 432 read with section 433A along with relevant materials in light of the observations made in this judgment. It is hoped that considering the fact that the prisoner has already undergone more than 23 years, the consideration by the State would be as expeditiously as possible. This order shall be communicated to the convict at Gondal Sub Jail.
With the above directions and observations, this petition is disposed of.