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PETITIONER: LIFE CONVICT LAXMAN NASKAR

       Vs.

RESPONDENT: STATE OF WEST BENGAL & ANR.

DATE OF JUDGMENT:       01/09/2000

BENCH: S. Rajendra Babu, J. & Shivaraj V. Patil, J.

JUDGMENT:

J  U  D  G  M  E N  T RAJENDRA BABU,  J.:

L...I...T.......T.......T.......T.......T.......T.......T..J     This  writ  petition  filed  under  Article  32  of  the Constitution  seeks for the release of the petitioner who is undergoing imprisonment for life after having been convicted under  Section 302 I.P.C.  read with Section 34 I.P.C..  The claim  of  the  petitioner  is that  he  has  undergone  the following period of actual sentence and earned remissions :-

  YEAR MONTHS  DAYS (a) From 25.6.1982 To 1.5.2000 including under trial period confinement

   17

   10

 6 (b)  Remissions earned or Govt. Remissions granted upto 31.12.1999

     5

    8

 29 (c) Total sentence including remissions

   23

    7

  5

   The  petitioner also claims that under Section 61(1)  of the  West  Bengal Correctional Services Act XXXII  of  1992, which  on Presidential assent being given came to force with

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effect  from  April 14, 2000, he is entitled to be  released inasmuch as he had served the sentence and earned remissions as  detailed  above  and was entitled to be released  as  on September 27, 1996.  The details are set forth hereunder :-

  YEAR     MONTHS   DAYS (i) Length of life imprisonment under the definition of punishment vide explanation is :

   20

         0

   0 (ii)  Deduct the period of remission earned or granted under section 58 or section 59

    5

         8

  29

   14           3    1 (iii) Deduct the period of set off under section 428, CrPC 1973

     0

         2

  8 (iv)  Total amount of actual sentence the petitioner herein was liable to undergo

   14

         0

 24

DAYS   MONTHS  YEAR v) Sentence of the petitioner started from the date of his sentence on 3.9.1982

  3

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     9

1982 (vi) Add the amount actual sentence to be undergone from item (iii) above

 24

     0

   14 (vii) Date of Release on which the Superintendent of jail was liable to release the petitioner rule 771 now under section 61(1) read with Rule 571 in chapter XIII West Bengal Jail Code.

 27 that is, 27th September, 1996

     9

1996

   After  examining the legal position as to the nature  of the  powers  arising  under Section 432 Cr.P.C.   read  with@@              JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Article  161  of  the Constitution and  the  relevant  rules@@ JJJJJJJJJJJJJJJJJJJJJ relating  to  remission of sentences, it is observed in  the State  of Madhya Pradesh v.  Ratan Singh, 1976 (3) SCC  470, as under :-

   (1)  That  a sentence of imprisonment for life does  not automatically  expire  at the end of 20 years including  the remissions,  because  the Administrative Rules framed  under the  various  Jail  Manuals or under the Prison  Act  cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire   life  of  the   prisoner  unless  the   appropriate Government  chooses  to  exercise its  discretion  to  remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure, 1898;

   (2)  That  the appropriate Government has the  undoubted discretion  to  remit  or refuse to remit the  sentence  and where it refuses to remit the sentence no writ can be issued directing the State Government to release the prisoner.

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   In  Naib Singh v.  State of Punjab, 1983 (2) SCC 454, it was  noticed  that a distinction between  imprisonment  for@@      JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ life  and imprisonment for a term has been maintained  in@@ JJJJJJJJJJ the  Indian  Penal  Code in several of  its  provisions  and moreover,   whenever   an  offender   is   punishable   with imprisonment   for   life  he  is  not   punishable   with imprisonment which may be of either description within the meaning  of Section 60 I.P.C.  and therefore, we cannot come to  the conclusion that the court, by itself, could  release the  convict  automatically  before the full  life  term  is served.   This aspect was highlighted in Gopal Vinayak Godse v.   State of Maharashtra & Ors., 1961 (3) SCR 440,  wherein it  was  held  that  sentence for  imprisonment  for  life ordinarily means imprisonment for the whole of the remaining period  of  the  convicted persons natural  life;   that  a convict  undergoing such sentence may earn remissions of his part  of sentence under the Prison Rules but such remissions in  the  absence  of an order of an  appropriate  Government remitting  the  entire  balance of his sentence  under  this Section  does  not  entitle  the   convict  to  be  released automatically  before the full life term is served.  It  was observed that though under the relevant rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term,  including remissions and that is only for the purpose of  working  out  the remissions that the said  sentence  is equated  with definite period and not for any other purpose. In  view  of this legal position explained by this Court  it may  not help the petitioner even on the construction placed by  the learned counsel for the petitioner on Section  61(1) of  the West Bengal Correctional Services Act XXXII of  1992 with  reference to explanation thereto that for the  purpose of  calculation  of the total period of  imprisonment  under this  Section  the period of imprisonment for life shall  be taken  to be equivalent to the period of imprisonment for 20 years.   Therefore,  solely on the basis of completion of  a term  in  jail  serving imprisonment and  remissions  earned under  the  relevant  rules  or  law  will  not  entitle  an automatic  release, but the appropriate Government must pass a  separate  order remitting the un-expired portion  of  the sentence.

If what we have stated above is the correct position in law then  what arises for consideration in this case is  whether there  has  been  due  consideration  of  the  case  of  the petitioner  by the Government.  On an earlier occasion  when the  matter  had  come up before this Court an  order  dated February  15, 2000 had been made directing the Government to re-consider  the  cases  for premature release of  all  life convicts  who had approached the Court earlier.  Thereafter, the  Government constituted a Review Committee consisting of the  following  members  to examine the matter  and  make  a report thereof to the Court :-

1) Home Secretary                                Chairman 2) Judicial Secretary                                Convenor 3) I.G. of Prisons, West  Bengal                                Member 4) Secretary Home (Jails) Department        Member 5) D.G. & I.G. of Police, West Bengal                Member 6) Commissioner of Police, Calcutta                Member 7) Chief Probation Officer                            Member

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   This  Court  also  issued certain guidelines as  to  the basis  on  which a convict can be released  prematurely  and@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ they are as under :-@@ JJJJJJJJJJJJJJJJJJJJ

   1.   Whether the offence is an individual act of  crime without affecting the society at large.

   2.   Whether there is any fruitful purpose of  confining of this convict anymore.

   3.   Whether there is any chance of future  reoccurrence of committing crime.

   4.   Whether  the convict has lost his  potentiality  in committing crime.

   5.  Socio Economic condition of the convicts family.

   In  the present case, the report of the jail authorities is  in  favour  of  the  petitioner.   However,  the  Review@@                     JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ Committee  constituted  by  the  Government  recommended  to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ reject  the claim of premature release of the petitioner for the following reasons :-

   1.   That  the police report has revealed that  the  two witnesses  who  had deposed before the trial court  and  the people  of the locality are all apprehensive of acute breach of peace in the locality in case of premature release of the petitioner;

   2.   That  the petitioner is a person of about 43  years and hence he has the potential of committing crime;  and

   3.  That the incident in relation to which the crime had occurred  was the sequel of the political feud affecting the society  at  large.  If we look at the reasons given by  the Government,  we  are  afraid  that  the  same  are  palpably irrelevant  or  devoid of substance.  Firstly, the views  of the  witnesses  who  had been examined in the  case  or  the persons  in  the  locality   cannot  determine  whether  the petitioner would be a danger if prematurely released because the persons in the locality and the witnesses may still live in the past and their memories are being relied upon without reference  to  the  present  and  the  report  of  the  jail authorities  to the effect that the petitioner has  reformed himself to a large extent.  Secondly, by reason of ones age one cannot say whether the convict has still potentiality of committing  the crime or not, but it depends on his attitude to  matters,  which  is  not  being taken  note  of  by  the Government.  Lastly, the suggestion that the incident is not an  individual  act of crime but a sequel of  the  political feud affecting society at large, whether his political views have  been changed or still carries the same so as to commit crime has not been examined by the Government.  could On the@@                                                       IIIIII basis  of  the grounds stated above the Government not  have@@ IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII rejected  the  claim  made  by   the  petitioner.   In   the circumstances, we quash the order made by the Government and

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remit  the  matter  to it again to examine the case  of  the petitioner  in  the  light of what has been stated  by  this Court  earlier and our comments made in this order as to the grounds  upon  which  the Government refused to act  on  the report  of the jail authorities and also to take note of the change  in the law by enacting the West Bengal  Correctional Services  Act XXXII of 1992 and to decide the matter  afresh within  a  period  of  three months from  today.   The  writ petition  is  allowed accordingly.  After issuing  rule  the same is made absolute.