Full Judgment Text
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CASE NO.:
Appeal (crl.) 1222 of 2007
PETITIONER:
C.A. Pious
RESPONDENT:
The State of Kerala and Anr
DATE OF JUDGMENT: 14/09/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
Division Bench of the Kerala High Court dismissing the writ
appeal filed by the appellant.
3. Background facts in a nutshell are as follows:
The appellant is suffering life imprisonment in Central Jail,
Kannur in view of the conviction for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’).
He made a claim before the State Government that the Kerala
Prison Rules, 1958 (in short ’Rules’) provide for release on
probation on completion of 8 years of custody. According to
him the period of study leave amounting to 6 years 10 months
and 13 days have to be reckoned while computing the period
of sentence undergone. The prayer was rejected on the ground
that the writ petitioner had not suffered 8 years of custodial
sentence and, in fact, he had undergone imprisonment for 6
years, 3 months and 25 days to which the remand period of 1
month and 17 days is to be added making a total of 6 years 5
months and 10 days. The High Court found substance in the
stand of the State Government with reference to Rule 225(2)
that the writ petitioner was not entitled to any relief. A writ
appeal was filed before the High Court. The Division Bench by
the impugned order held that the case of the writ petitioner
could not have been placed before the committee as he has not
suffered mandatory period of 8 years of sentence.
4. Learned counsel for the appellant submitted that the
period of study has to be reckoned. Reference is made to Rule
461. Learned counsel for the State on the other hand
supported the order of the High Court.
5. Rule 280-A provides for suspension of sentence as
empowered under Section 432 (6) of the Code of Criminal
Procedure, 1973 (in short ’Cr.P.C.’) for the period of leave for
the purpose of study. The special rules framed also is
captioned as "RULES FOR SUSPENSION OF SENTENCE OF
PRISONERS FOR THE PURPOSE OF STUDY". On the other
hand, Chapter 26 of the Rules with respect to leave specifies
only two kinds of leave i.e. emergency and ordinary. The above
rules do not contemplate suspension of sentence and it can
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also be seen from the same that the maximum period of
emergency leave at a stretch is only for a period of 15 days and
the ordinary leave up to a maximum of 30 days at a time vide
Rule 453. Rule 452B also provides that a prisoner once
released on leave of any kind will not be eligible for a
subsequent release on leave until the completion of six months
of actual imprisonment to be counted from the date of his last
return from leave. Emergency leave in Rule 455 is an
exception to this as the same is confined to 15 days as noted
above and the grounds are death or serious illness of a near
relative. On the other hand, during the period of study leave,
the sentence stands suspended. The result of suspension of
sentence as per Rule 225(2) is that the same is excluded from
the period of sentence undergone. Ipsissima verba Rule 225
is as follows:
"225. Procedure when sentence is suspended.
(1) When an appellate court directs that the
execution of sentence or order appealed
against be suspended the appellant shall, if
detained in jail pending the further orders of
such Appellate Court, be treated in all respects
as an under trial prisoner".
(2) Should the appellant be ultimately
sentenced to imprisonment the period during
which the original sentence was suspended
shall (a) if passed in jail, be included, and (b) if
passed out of Jail, be excluded in computing
the term for which he is sentenced by the
Appellate Court".
6. Rule 225 (2) makes the position very much explicit. Rule
461 i.e. the provision for treatment of the period of leave as the
sentence undergone cannot be made applicable to the study
leave period. The same is abundantly clear from the fact that
at the time of commencement of study leave, the sentence
stands suspended whereas for the emergency leave or ordinary
leave, the above suspension is not contemplated under
Chapter 26 of the Rules. It is also seen from the concerned
Rules as noted above, i.e. Rule 453 that the period of
emergency and ordinary leave are confined to a short period
and the same is not granted continuously and also that a gap
of six months is contemplated as per Rule 452(B) for further
release of a prisoner granting ordinary leave. Emergency leave
as already noted vide Rule 455 is limited to extreme situations
like death or serious illness. But so far as study leave is
concerned, it is seen that the same is granted somewhat
liberally. The appellant himself was outside the prison for
more than six years. He was outside the prison more than the
period he spent inside.
7. It appears that the Government of Kerala had constituted
a High Level Committee on the basis of the order passed in
suo motu proceedings which was initiated as in several
instances several convicts sentenced for serious offences were
released after undergoing short terms imprisonment.
Guidelines were framed by the Committee which were
promulgated by G.O.(P) 228/03/Home dated 18.10.2003. In
para 3 of the guidelines of the State Government order, it is as
follows:
"The Committee will recommend premature
release of life convicts who have completed 8
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years of actual imprisonment including set off
if any ordered by a competent court and
excluding remission of any kind considering
the nature of offence committed by the
prisoners, nature of the crime, possible effects
on the community, their conduct in a prison
and in whose cases the committee feels that
premature release would help in their social
reformation and rehabilitation".
8. Stand of the appellant is clearly unsustainable. In view
of the clear position emitting from Rule 225, the High Court’s
judgment does not suffer from any infirmity that, to be entitled
to benefit convict has to suffer at least 8 years of custody.
9. In Maru Ram v. Union of India and Ors. (1981 (1) SCC
107) it was inter-alia held as follows:
"28. Neither argument has force. The first one
fails because Section 302, IPC (or other like
offence) fixes the sentence to be life
imprisonment. 14 years’ duration is never
heavier than life term. The second submission
fails because a remission, in the case of life
imprisonment, ripens into a reduction of
sentence of the entire balance only when a
final release order is made. Godse is too
emphatic and unmincing to admit of a
different conclusion. The haunting distance of
death which is the terminus ad quem of life
imprisonment makes deduction based on
remission indefinite enough not to fix the date
with certitude. Thus, even if remissions are
given full faith and credit, the date of release
may not come to pass unless all the unexpired,
uncertain balance is remitted by a government
order under Section 432. If this is not done,
the prisoner will continue in custody. We
assume here that the constitutional power is
kept sheathed.
29. Let us assume for the sake of argument
that remissions have been earned by the
prisoner. In Murphy v. Commonwealth (172
Mass 264) referred to by Cooley and cited
before us (infra), it has been held that earned
remissions may not be taken away by
subsequent legislation. May be, direct effect of
such a privative measure may well cast a
heavier penalty. We need not investigate this
position here.
30. A possible confusion creeps into this
discussion by equating life imprisonment with
20 years’ imprisonment. Reliance is placed for
this purpose on Section 55, IPC and on
definitions in various Remission Schemes. All
that we need say, as clearly pointed out in
Godse is that these equivalents are meant for
the limited objective of computation to help the
State exercise its wide powers of total
remissions. Even if the remissions earned have
totalled up to 20 years, still the State
Government may or may not release the
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prisoner and until such a release order
remitting the remaining part of the life
sentence is passed, the prisoner cannot claim
his liberty. The reason is that life sentence is
nothing less than lifelong imprisonment.
Moreover, the penalty then and now is the
same \027 life term. And remission vests no right
to release when the sentence is life
imprisonment. No greater punishment is
inflicted by Section 433-A than the law
annexed originally to the crime. Nor is any
vested right to remission cancelled by
compulsory l4-year jail life once we realise the
truism that a life sentence is a sentence for a
whole life (see Sambha Ji Krishan Ji v. State of
Maharashtra (AIR 1974 SC 147) and State of
M. P. v. Ratan Singh (1976 Supp SCR 552).
31. Maybe, a difference may exist in cases of
fixed term sentences. Cooley lends support :
Privilege existing at time of
commission of offence (e.g. privilege
of earning a shortening of sentence
by good behaviour) cannot be taken
away by subsequent statute.
xxx xxx xxx
72. We conclude by formulating our findings:
(1) We repulse all the thrusts on the vires of
Section 433-A. Maybe, penologically the
prolonged term prescribed by the section is
supererogative. If we had our druthers we
would have negatived the need for a fourteen-
year gestation for reformation. But ours is to
construe, not construct, to decode, not to
make a code.
(2) We affirm the current supremacy of Section
433-A over the Remission Rules and short-
sentencing statutes made by the various
States.
(3) We uphold all remissions and short-
sentencing passed under Articles 72 and 161
of the Constitution but release will follow, in
life sentence cases, only on government
making in order en masse or individually, in
that behalf.
(4) We hold that Section 432 and Section 433
are not a manifestation of Articles 72 and 161
of the Constitution but a separate, though
similar power, and Section 433-A, by nullifying
wholly or partially these prior provisions does
not violate or detract from the full operation of
the constitutional power to pardon, commute
and the like.
(5) We negate the plea that Section 433-A
contravenes Article 20(1) of the Constitution.
(6) We follow Gopal Vinayak Godse v. State of
Maharashtra (1961 (3) SCR 440) to hold that
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imprisonment for life lasts until the last
breath, and whatever the length of remissions
earned, the prisoner can claim release only if
the remaining sentence is remitted by
government.
(7) We declare that Section 433-A, in both its
limbs (i.e. both types of life imprisonment
specified in it), is prospective in effect. To put
the position beyond doubt, we direct that the
mandatory minimum of 14 years’ actual
imprisonment will not operate against those
whose cases were decided by the trial Court
before December 18, 1978 when Section 433-A
came into force. All ’Lifers’ whose conviction by
the court of first instance was entered prior to
that date are entitled to consideration by
government for release on the strength of
earned remissions although a release can take
place only if government makes an order to
that effect. To this extent the battle of the
tenses is won by the prisoners. It follows, by
the same logic, that short. sentencing
legislations, if any, will entitle a prisoner to
claim release there under if his conviction by
the court of first instance was before Section
433-A was brought into effect.
(8) The power under Articles 72 and 161 of the
Constitution can be exercised by the Central
and State Governments, not by the President
or Governor on their own. The advice of the
appropriate Government binds the Head of the
State. No separate order for each individual
case is necessary but any general order made
must be clear enough to identify the group of
cases and indicate the application of mind to
the whole group.
(9) Considerations for exercise of power under
Articles 72/161 may be myriad and their
occasions protean, and are left to the
appropriate Government, but no consideration
nor occasion can be wholly irrelevant,
irrational, discriminatory or mala fide. Only in
these rare cases will the court examine the
exercise.
(10) Although the remission rules or short-
sentencing provisions proprio vigore may not
apply as against Section 433-A, they will
override Section 433-A if the government,
Central or State, guides itself by the self-same
rules or schemes in the exercise of its
constitutional power. We regard it as fair that
until fresh rules are made in keeping with
experience gathered, current social conditions
and accepted penological thinking- a desirable
step, in our view- the present remission and
release schemes may usefully be taken as
guide-lines under Articles 72/161 and orders
for release passed. We cannot fault the
government, if in some intractably savage
delinquents, Section 433-A is itself treated as a
guide-line for exercise of Articles 72/161.
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These observations of ours are
recommendatory to avoid a hiatus, but it is for
Government, Central or State, to decide
whether and why the current Remission Rules
should not survive until replaced by a more
wholesome scheme.
(11) The U.P. Prisoners’ Release on Probation
Act, 1938, enabling limited enlargement under
licence will be effective as legislatively
sanctioned imprisonment of a loose and liberal
type and such licensed enlargement will be
reckoned for the purpose of the 14-year
duration. Similar other statutes and rules will
enjoy similar efficacy.
(12) In our view, penal humanitarianism and
rehabilitative desideratum warrant liberal
paroles, subject to security safeguards, and
other humanizing strategies for inmates so
that the dignity and worth of the human
person are not desecrated by making mass
jails anthropoid zoos. Human rights awareness
must infuse institutional reform and search for
alternatives.
(13) We have declared the law all right, but
law-in-action fulfils itself not by declaration
alone and needs the wings of communication
to the target community. So, the further
direction goes from this Court that the last
decretal part is translated and kept
prominently in each ward and the whole
judgment, in the language of the State, made
available to the inmates in the jail library.
(14) Section 433-A does not forbid parole or
other release within the 14-year span. So to
interpret the section as to intensify inner
tension and intermissions of freedom is to do
violence to language and liberty."
10. As and when the appellant suffers actual custody of more
than 8 years, let his case be considered in accordance with law
by the concerned authorities.
11. We make it clear that we have not expressed any opinion
in the acceptability of the plea of the appellant while
considering the case of the appellant. The parameters and
requirements have to be kept in view while considering the
case.
12. The appeal is dismissed with the aforesaid observations.