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CASE NO.: Writ Petition (crl.) 274-277  of  2000

PETITIONER: ZAHID HUSSEIN & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND ANR.

DATE OF JUDGMENT:       15/03/2001

BENCH: S. Rajendra Babu & S.N. Phukan

JUDGMENT:

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   Phukan, J.

   Four  life  convicts  have filed the  present  Petitions under  Article 32 of the Constitution challenging the orders of the State Government rejecting their prayer for premature release.

   Four petitioners were convicted under Section 302/34 IPC@@                                                          JJJ and  sentenced  to  suffer rigorous imprisonment  for  life.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ They  are in Central Correctional Home, Alipore, Kolkota and@@ JJJJ have  served  actual imprisonment of more than 18 years  and the  total period of imprisonment including remission  being more  than 24 years.  They had approached this court earlier as  their  prayer for premature release was rejected by  the State  Government.   This court set aside the orders of  the Government  and directed reconsideration.  As their  prayers have  again been rejected;  the petitioners are again before us.

   Mr.   Malik, learned senior counsel for the  petitioners has urged that in view of sub-rules (4) and (29) of Rule 591@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ of  the  West  Bengal  Rules  for  the  Superintendence  and@@ JJ Management  of  Jails  (for short the Rules)  relating  to premature  release  of the life convict and  Explanation  to Section  61  of the West Bengal Correctional  Services  Act, 1992  (herein  after  referred  to as  the  Act)  all  the petitioners are entitled to be released as of right as their total  period  of imprisonment is more than 20  years.   Mr. Mukul  Rohtagi,  learned  Additional Solicitor  General  has contended  that  there is no right of premature  release  in view  of  the law laid down by this court, as  sentence  for imprisonment for life means imprisonment for the entire life of  the prisoner, unless the appropriate Government  decides

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to  exercise its discretion to remit either whole or part of the  sentence  of  a  life convict.   According  to  learned Additional   Solicitor   General  in   view  of  facts   and circumstances  of  cases of the petitioners and  the  police report, the State Government rightly rejected the prayers of the petitioners.

   This court after examining the provisions of Article 161@@                                                          JJJ of  the Constitution, Cr.P.C.  and I.P.C.  has  consistently@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ held  that  a  sentence of imprisonment for  life  does  not@@ JJJJ automatically  expire at the end of 20 years of imprisonment including  remission, as 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  part  of  the sentence.   [See  Gopal  Vinayak Godse versus The  State  of Maharashtra  and  others 1961 (3) SCR 440;  State of  Madhya Pradesh  versus  Ratan  Singh and Others 1976 (3)  SCC  470; Sohan  Lal versus Asha Ram and Others 1981 (1) SCC 106  and; Bhagirath versus Delhi Administration 1985 (2) SCC 580]

We extract  below sub-rules (4) and (29) of Rule 591 of the Rules:

   (4)  In considering the cases of prisoners submitted to it  under sub-rules (1) and (2), the State Government  shall take  into  consideration   (i) the circumstances  in  each case,  (ii) the character of the convicts crime, (iii)  his conduct in prison, and (iv) the probability of his reverting to  criminal  habits or instigating others to commit  crime. If  the State Government is satisfied that the prisoner  can be  released  without  any danger to the society or  to  the public it may take steps for issue of orders for his release under Section 401 of the Code of Criminal Procedures, 1898.

   (29) Every case in which a convict, who has not received the  benefit  of  any of the foregoing rules,  is  about  to complete  a  period  of  20  years  of  continued  detention including remission earned, if any, shall be submitted three months  before such completion by the Superintendent of  the Jail  in  which the convict is for the time being  detained, through  the  Inspector  General, for orders  of  the  State Government.   If the convicts jail records during the  last three  years of his detentions are found to be  satisfactory the  State  Government  may  remit   the  remainder  of  his sentence.

   These  sub-rules do not provide for automatic release of a  life  convict  after  he has completed 20  years  of  the detention  including remission.  Under these sub-rules  only right which a life convict can be said to have acquired is a right  to have his case put up by the prison authorities  in time to the State Government for consideration for premature release  and  in  doing so the government would  follow  the guidelines mentioned in sub-rule (4).

   The explanation to Section 61 of the Act is as follows:

   Explanation    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

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the period of imprisonment for 20 years.

   This Explanation came for consideration by this court in@@                                                           JJ Laxman  Naskar  (Life Convict) vs.  State of W.B.  and  Anr.@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 2000  (7)  SCC  626  and  this  Court  held  that  the  said@@ JJJJ Explanation  is  only for the purpose of calculation of  the total period of imprisonment of a life convict under Section 61,  which shall be taken to be equivalent to the period  of imprisonment  for  20 years and a life convict would not  be entitled  to automatic release under this provision of  law. We,  therefore, find no substance in the submission made  by Mr.  Malik, the learned senior counsel.

   Learned Additional Solicitor General has rightly pointed@@                                                      JJJJJJJ out  that  in  view  of the law laid down by  this  court  a@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ positive order of release has to be passed by the Government after  due  consideration.  Now we have to consider  whether the impugned orders are sustainable.

   From  the counter filed on behalf of the Government,  we@@                                                           JJ find that the State Government constituted a Review Board to@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ consider  the cases of premature release of the petitioners. The said Review Board consists of the following:

   (1) Home Secretary Chairman

   (2) Judicial Secretary Convenor@@     JJJJJJJJJJJJJJJJJJJJJJ

   (3) I.G.  of prison, West Bengal Member

   (4) Secretary Home (Jails) Member Department

   (5)  Director  General  & I.G.  of Police,  Member  West          Bengal

   (6) Commissioner of Police, Calcutta Member

   (7) Chief Probation Officer Member

   Following  guidelines  were famed by the Government  for@@                                                          JJJ the premature release of life convicts, namely:@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ

   (i)  Whether  the offence is an individual act of  crime without affecting the society at large;

   (ii) Whether there is any chance of future recurrence of committing crime;

   (iii) Whether there is any fruitful purpose of confining of these convicts any more;

   (iv)  Whether  the  convicts have lost  potentiality  in

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committing crime;

   (v) Socio economic condition of the convicts families.

   The  Review Board refused to grant premature release  of the petitioners on the following grounds:  (1) Police report is  adverse;  (2) the convicts are not over aged person  and as  such have not lost the potentiality in committing crime; (3)  since  other co-convicts were trying to come  out  from jail, there was a possibility of re-grouping for anti-social activities;   (4)  the offence was not an individual act  of crime  but  was affecting society as a large;  (5)  convicts were  anti-social and;  (6) the witnesses who had deposed at the  trial  as  well as local people  were  apprehensive  of retaliation in the event of premature release.

   In  case of one of the petitioners, namely, Md.   Talib, Review  Board also noted one of the co-convicts was  granted premature release who was murdered in an encounter after the release.

   We  may  state  here  that  jail  authority  recommended premature  release of the Writ Petitioners.  In our opinion, the conduct of the petitioners while in jail is an important factor  to be considered as to whether they have lost  their potentiality  in  committing  crime due to  long  period  of detention.   The  views of the witnesses, who were  examined during trial and the people of the locality cannot determine whether  petitioners  would be a danger to the locality,  if released  prematurely.  This has to be considered keeping in view  the conduct of the Petitioners during the period  they were  undergoing  sentence.   Age alone cannot be  a  factor while  considering  whether  the   petitioners  have   still potentiality of committing crime or not as it will depend on changes in mental attitude during incarceration.

   While  coming  to the conclusion for possibility of  re- grouping  for  anti-social activities, the Review Board  did not take into account that the life convicts are in jail for more than 18 years.  The Board also did not consider whether there  would  be  any  fruitful  purpose  of  confining  the convicts  any more and also the socio-economic condition  of their  families.   Regarding  petitioner  Md.   Talib,  the Review  Board  also noted that one co- convict was  released prematurely  and  was murdered in the encounter  with  other criminals  after  his  release.    The  learned   Additional Solicitor  General informed us that the said co-accused  was released  in the year 1991 and was murdered in the year 1998 and  therefore  in  our opinion this fact has no  nexus  for consideration  of  premature release of the petitioner,  Md. Talib.

   We are, therefore, of the view that the reasons given by the  Review  Board for rejecting the prayers  for  premature release  of the petitioners are irrelevant and the devoid of any substance.  Accordingly, we quash the impugned orders of the  government  and remit the matter again for deciding  it afresh within the period of 3 months from today.

   In  the  result the Writ Petitions are  allowed.   After issuance of the Rule, the same is made absolute.

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