Fahim Khan vs The State of Jharkhand

Heard learned counsel appearing for the petitioner and learned counsel for the Respondents.

The petitioner was put on trial along with one more accused person in S.T. No. 122 of 1990 for committing murder of one person. The petitioner was acquitted by the trial court vide judgment dated 15.06.1991 passed by the learned Sessions Judge, Dhanbad.

Against that judgment of acquittal, the State of Jharkhand moved this Court vide Criminal Appeal No. 661 of 2001. This Court reversed the judgment passed by the trial court and convicted this petitioner for the offence under Section 302 I.P.C. and sentenced him to undergo R.I. for life vide judgment and order dated 25.06.2009.

Being aggrieved with that judgment and order, the petitioner preferred Criminal Appeal No. 2081 of 2009 before the Hon''ble Supreme Court which was dismissed on 21.04.2011. Against the order of dismissal, a Review Petition [Crl.] No. 399 of 2011 was preferred which was also dismissed on 24.08.2011.

While the petitioner was serving sentence, an application was filed before the Superintendent, Birsa Mundal Central Jail, Hotwar, Ranchi, stating therein that since his wife is suffering from renal disease, she has to be taken to C.M.C., Vellore, Tamil Nadu for further treatment and, therefore, prayer was made to do needful so that the order of sentence be suspended. But when no action was taken, the petitioner repeatedly filed applications to that effect. When nothing was done the petitioner had no option, but to file the instant Writ Petition [Criminal] before this Hon''ble Court under Article 226 of the Constitution of India for a direction to the authority to suspend the sentence of this petitioner.

Mr. Anil Kumar, learned counsel appearing for the petitioner submits that when this petitioner has been convicted and sentenced by this Court and that judgment and order has been affirmed by the Hon''ble Supreme Court, this Court perhaps would not pass order for suspension of the sentence, but the petitioner had to move to this Court as the jail authority has not been doing anything so as to his case be considered under the provision as contained in Section 432 of the Cr.P.C.

A counter-affidavit has been filed wherein it has been stated that the State Government has framed rule under proviso to Article 309 of the Constitution of India whereby a rule has been framed named as ''Jharkhand Prisoner''s Parole Rule, 2012 under which the matter of suspension of sentence can be dealt with.

Upon it, Mr. Anil Kumar, learned counsel appearing for the petitioner submits that since the petitioner has been convicted under Section 302 of the Indian Penal Code such provision of the Prisoners Act relating to release of prisoners on parole would not be applicable in view of the provision as contained in Section 31-B Sub-Clause (2) of the Prisoners Act, 1900.

We do find substance in the submission advanced on behalf of the petitioner. On looking to the provision as contained in Section 31-B sub-clause (2) we do find that it does prescribe that the provision of sub-section (1) shall not apply to a prisoner who has been convicted of an offence specified in the schedule annexed to this part; Item 6 of Schedule appended to that rule is related to an offence punishable under Sections 302, 303, 306 or 307 of the Indian Penal Code.

Thus, it is evident that the Rule framed by the State Government would not be applicable in the case of the petitioner rather the case of the petitioner would fall within the mischief of provision as contained in Section 432 of the Cr.P.C., which speaks about power to suspend or remit sentences. The said provision reads as follows :-

432 :-Power to suspend or remit sentences.-

(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without Conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.

(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.

(3) If any condition on which a sentence has been suspended or remitted is, In the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favour the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.

(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.

(5) The appropriate Government may, by general rules or special orders give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:

From its perusal, it does appear that a person convicted and sentenced for the offence under Section 302 of the I.P.C. it makes prayer for suspension of the sentence, the appropriate State Government may or may not impose a condition for suspension of the sentence. If condition imposed by the State Government is acceptable to the prisoner, the appropriate Government needs to refer the matter before the court who had convicted and sentenced the person so that opinion be given by the Court as to whether the prayer for suspension of the sentence be accepted or refused. Such opinion on being given the appropriate Government is supposed to pass order with respect to the matter relating to suspension of the sentence of a convicted person.

Here in the instant case, as per the statement made on behalf of the petitioner, the Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi has still not referred the matter before the appropriate Government. At this stage learned counsel appearing for the State submits that specific statements have been made in the counter-affidavit that no such application is pending before the Superintendent, Birsa Munda Central Jail.

Be that as it may, the petitioner if intends to file such application, he may file such application before the Superintendent, Birsa Munda Central Jail. On filing such application, the Superintendent may send it to the appropriate Government. So that the State Government may act in accordance with law at the earliest keeping in view the statement made that the wife of the petitioner needs immediate treatment.

Thus, this petition is disposed of with a direction to the Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi to refer the matter if such an application is filed before an appropriate Government so that appropriate Government may proceed with the matter relating to suspension of sentence, in accordance with law.