and 5.2.2014) relating to fasting of the prisoners regarding
premature release of the life convicts, who have spent more than 14 years
in prison was suo motu taken cognizance by this Court. In
[(2010) 4 SCC 216] (State of Haryana & Ors. v. Jagdish), Hon'ble
Supreme Court held that the State Authority is under an obligation to at
least exercise its discretion in relation to an honest expectation perceived
by the convict and since the news reported that the State Government has
not taken decision regarding remission to be granted to the life convicts,
this Court has taken the matter as Public Interest Litigation.
2. In response to the notice, State of Jharkhand has filed its
response stating that the State has its own policy for premature release of
the prisoners by granting remission under the law and the said Policy was
notified, vide memo no.2307 dated 26.5.2011, which interalia provides
premature release of various categories of prisoners and that there is a
State Sentence Review Board comprising of the Home Minister as
Chairman and five Members namely Secretary, Department of Home,
Secretary, Department of Law, One District and Sessions Judge
nominated by Hon'ble Jharkhand High Court, Chief (Principal) Probation
Officer, Director General of Police or his representative and Inspector
General of Prison. The Inspector General of Prison is the Member
Secretary of the State Sentence Review Board. The policy provides that the
State Sentence Review Board shall meet every three months but if
necessary, the meeting can be convened even earlier. On behalf of the
State, reliance was placed upon [(2013) 2 SCC 452] (Sangeet and
Another v. State of Haryana), wherein the Hon'ble Supreme Court in
para 61 held that
an exercise of power by the appropriate Government
under sub-section (1) of Section 432 Cr.P.C cannot be suo motu for the
simple reason that this sub-section is only an enabling provision
. In
para 61 of the aforesaid judgment, Hon'ble Supreme Court held as
under:-
"61. It appears to us that an exercise of power by the appropriate
Government under sub-section (1) of Section 432 CrPC cannot be
suo motu for the simple reason that this sub-section is only an
enabling provision. The appropriate Government is enabled to
"override" a judicially pronounced sentence, subject to the
fulfilment of certain conditions. Those conditions are found either
in the Jail Manual or in statutory rules. Sub-section (1) of Section
432 CrPC cannot be read to enable the appropriate Government to
"further override" the judicial pronouncement over and above
what is permitted by the Jail Manual or the statutory rules. The
process of granting "additional" remission under this section is
set into motion in a case only through an application for
remission by the convict or on his behalf. On such an application
being made, the appropriate Government is required to approach
the Presiding Judge of the court before or by which the conviction
was made or confirmed to opine (with reasons) whether the
application should be granted or refused. Thereafter, the
appropriate Government may take a decision on the remission
application and pass orders granting remission subject to some
conditions, or refusing remission. Apart from anything else, this
statutory procedure seems quite reasonable inasmuch as there is
an application of mind to the issue of grant of remission. It also
eliminates "discretionary" or en masse release of convicts on
"festive" occasions since each release requires a case-by-case
basis scrutiny."
In para 77 of the aforesaid decision, Hon'ble Supreme Court summarized
the conclusion as under:-
"Conclusion
77. The broad result of our discussion is that a relook is needed at
some conclusions that have been taken for granted and we need to
continue the development of the law on the basis of experience gained
over the years and views expressed in various decisions of this Court. To
be more specific, we conclude:
77.1. This Court has not endorsed the approach of aggravating and
mitigating circumstances in Bachan Singh [(1980) 2 SCC 684 (Bachan
Singh v. State of Punjab]. However, this approach has been adopted in
several decisions. This needs a fresh look. In any event, there is little or no
uniformity in the application of this approach.
77.2. Aggravating circumstances relate to the crime while mitigating
circumstances relate to the criminal. A balance sheet cannot be drawn up
for comparing the two. The considerations for both are distinct and
unrelated. The use of the mantra of aggravating and mitigating
circumstances needs a review.
77.3. In the sentencing process, both the crime and the criminal are
equally important. We have, unfortunately, not taken the sentencing
process as seriously as it should be with the result that in capital offences,
it has become Judge-centric sentencing rather than principled sentencing.
77.4. The Constitution Bench of this Court has not encouraged
standardisation and categorisation of crimes and even otherwise it is not
possible to standardise and categorise all crimes.
77.5. The grant of remissions is statutory. However, to prevent its
arbitrary exercise, the legislature has built in some procedural and
substantive checks in the statute. These need to be faithfully enforced.
77.6. Remission can be granted under Section 432 CrPC in the case of
a definite term of sentence. The power under this section is available only
for granting "additional" remission, that is, for a period over and above the
remission granted or awarded to a convict under the Jail Manual or other
statutory rules. If the term of sentence is indefinite (as in life
imprisonment), the power under Section 432 CrPC can certainly be
exercised but not on the basis that life imprisonment is an arbitrary or
notional figure of twenty years of imprisonment.
77.7. Before actually exercising the power of remission under Section
432 CrPC the appropriate Government must obtain the opinion (with
reasons) of the Presiding Judge of the convicting or confirming Court.
Remissions can, therefore, be given only on a case-by-case basis and not in
a wholesale manner."
3. On behalf of the State, it was submitted that in view of the
judgment rendered in the case of Sangeet and Another [(2013) 2 SCC
452], exercise of power under sub-section (1) of Section 432 Cr.P.C cannot
be suo motu for the simple reason that the sub-section (1) is only an
enabling provision and therefore, no case for remission was considered by
the State Government. However, it was submitted that the State
Government has called for the details of all pending applications and it
was reported that in total 152 were pending, out of which 106 proposals
were considered by the State Sentence Review Board in the meeting held
on 7.2.2014. Out of 106 proposal considered, 53 life convicts were
recommended for premature release and all said 53 life convicts were
released.
4. Vide order dated 21.2.2014, we directed the respondent State
to communicate the order of rejection of premature release relating to all
52 life convicts mentioning the respective grounds of rejection. In so far
as 46 proposals for which details are to be obtained, we have directed the
respondent State to expedite the steps to obtain the opinion of the
Convict/Successor Court at the earliest and convene a meeting in
accordance with the Rules.
5, It is stated that in compliance of the order of the Court, the
reasons of rejection regarding 52 life convicts were communicated to the
respective prisoners. In so far as the remaining 46 prisoners are
concerned, it is stated that in total 97 proposals were placed before the
State Sentence Review Board for consideration for premature release in
the meeting held on 20.6.2014. It is further stated that considering the
report submitted by the Jail Superintendent, Superintendent of Police,
Probation Officer and the opinion of the Convict/Successor Courts, 25 life
convicts were recommended for premature release and have been notified
to be released by the Home Department and have actually been released
from the respective jails. It is further stated that the remaining cases have
been kept pending.
6. It will be in order if the meeting of the State Sentence Review
Board is convened periodically as per the scheme and applications of the
life convicts/prisoners along with necessary proposals are considered for
remission in accordance with the provisions of law and various judgments
of the Hon'ble Supreme Court (Sangeet and Another [(2013) 2 SCC
452]). Such periodical deliberations would send message to the prisoners
that in future they may not be restoring to fasting/demonstrations inside
the Prison.
7. Learned Additional Advocate General had drawn our attention
to the order of Hon'ble Supreme Court dated 9.7.2014 in Writ Petition
(Criminal) No.48/2014 (Union of India v. V.Sriharan @ Murugan &
Ors.), wherein Hon'ble Supreme Court has restrained the State
Government from exercising power of remission to life convicts, until
further orders. The respondent State is further directed to act in
accordance with provision of law, State's Scheme for remission and the
further directions of Hon'ble Supreme Court.
This writ petition is disposed of with the above directions and
observations. We hereby place on record the valuable assistance rendered
by Mr.Anoop Kumar Mehta.
(R.Banumathi, CJ)
(Amitav K.Gupta,J)
dey