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Judgment
R.R. Prasad, J.—This writ application has been filed for a direction upon the respondents to release the petitioners from the imprisonment forthwith in terms of the Government Resolution contained in Memo No. 1315 dated 18.4.2007 as the petitioners sentenced for life imprisonment on being found guilty have served sentence for more than 25 years including the period of remission.
A data furnished on behalf of the petitioners which is part of the writ application showing the number of the case in which each of the petitioner was convicted, the period of custody, period of remission and the period of custody with remission is being reproduced hereinbelow:
S. No.
Petitioner
S.T. No. & Sections
Custody
Remission
Custody incl. remission
1.
2.
3.
4.
5.
6.
1.
Petitioner No. 1 Jagnu Mahto S/O Ruplal Mahto
S.T. No. 224/90 (Tenughat) offence 302/34, 302, 411 I.P.C.
18yr. 7month 5 days.
8yr. 0 month 15days
26yr, 7month 20days.
2.
Petitioner No. 2 Hasnain Mian s/o Lt. Bhikhu Mian.
ST. No. 164/91 (Haz) offence 396 I.P.C.
18 yr. 0 month 21 days
6 yr. 0 month 18 days
25 yr. 1 month 9 days.
3.
Bartu Mahto S/o Lt. Kitku Mahto (petitioner -3)
S.T. No. 164/91 (Haz) offence 396 I.P.C.
19 yr. 9 month 29 days
6 yr. 1 month 5 days
25 yr. 4 month 4 days.
4.
Petitioner-4 Raj Kumar Kuswaha S/o Hardeo Pd.
S.T. No. 328/92 offence-302, 34 I.P.C.
16yr. 9 month 17 days
8yr. 6 month 15 days
28 yr. 4 month 2 days
5.
Petitioner-5. Triveni Bhuiyan S/o N.K. Bhuiyan
S.T. No. 151/92 Section 302/34, 201/34, 323/34 I.P.C
17 yr. 07 month 00 days
8 yr. 09 month 19 days
26 yr. 04 months 19 days.
6.
Petitioner-6 Prithivi Bhuyan S/o Ram Jiwan Bhuiyan
S.T. No. 151/92 Section 302/34, 201/34, 323/34 I.P.C
17 yr. 6 month 23 days
8 yr. 11 month 11 days
26 yrs. 5 month 24 days.
7.
Petitioner-7 Ajay Anjola S/o Siril Anjola
S.T. No. - do-
17 yr. 1 month 8 days
9 yr. 1 month 19 days
26 yrs 2 month 27 days.
8.
Petitioner -8 Yogai Singh s/o Bishun Singh
S.T. No. 151/92, Section 302/34, 201, 323/34 I.P.C
17 yr. 7 month 2 days
7 yr. 6 month 29 days
25 yr. 2 month 2 days.
Learned Counsel appearing for the petitioners submits that on completion of imprisonment for more than 25 years including the period of remission, the petitioners made representation before the Secretary, Ministry of Home, Government of Jharkhand, Ranchi and also other authorities for their release in terms of the Government Resolution as contained in memo No. 1315 dated 18.4.2007 but still they have not been released and under this situation, this application has been filed on behalf of the petitioners for a direction to the authorities to release the petitioners forthwith.
A counter affidavit has been filed on behalf of the respondents that the case of the petitioner when was placed before the "State Sentence Review Board", the Board did feel that the clause with respect to release of a convict after completion of 25 years of imprisonment including the period of remission put in the Resolution No. 1315 dated 18.4.2007 is not inconsonance with the guideline laid down by the Hon''ble Supreme Court in a case of Laxman Naskar Vs. Union of India and Others, as according to the said decision life sentence is nothing less than lifelong imprisonment and, therefore, the matter has been referred to the Government for consideration for the necessary amendment in the said resolution and under this situation, the matter relating to release of the petitioner was kept in abeyance.
It be stated that the Government of Jharkhand in terms of the guidelines laid down by the Hon''ble Supreme Court in the case of Laxman Nasker v. Union of India (supra) has taken a policy decision under Memo No. 1315 dated 18.4.2007 with respect to pre-mature release of the convict wherein it has been resolved that a convict completing 20 years of imprisonment including the period of remission though does not acquire right to be released pre-maturely but he is entitled for consideration of his early release by the Board, who will be giving due consideration while taking decision of early release of the following points.
Whether the offence is an individual act of crime without affecting the society at large;
Whether there is any chance of future recurrence of committing crime;
Whether the convict has lost his potentiality in committing crime;
Whether there is any fruitful purpose of confining this convict any more;
Socioeconomic condition of the convict''s family.
At the same time it has also been resolved that, in any case, the period of imprisonment shall not exceed 25 years including the period of remission. This clause clearly indicates that, in any case, if the convict has completed 25 years of imprisonment, he is entitled to be released but the Board considers this clause to be inconsistent with the ratio laid down by the Hon''ble Supreme Court in Laxman Nasker''s case. If such conclusion has been drawn by the Board, then in our view, it becomes a misreading of the ratio laid down by the Hon''ble Supreme Court in Laxman Nasker''s case wherein it has been held as under:
It is settled position of law that life sentence is nothing less than lifelong imprisonment and by earning remissions a life convict does not acquire a right to be (sic) has framed any then those rules or schemes will have to be treated a guidelines for exercising its power under Article 161 of the Constitution of India and if according to the Government policy instructions in force at the relevant time the life convict has already undergone the sentence for the period mentioned in the policy instructions., then the only right which a life convict can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. When an authority is called upon to exercise its powers under Article 161 of the Constitution that will have to be done consistently with the legal position and the Government policy/instructions prevalent at that time.
Thus, it is evident that if the Government has framed any rule or scheme for early release of convict on fulfilling certain condition, the authority is to take decision in terms of the policy prevalent at that time. We have already indicated that the Government while framing certain guide lines for consideration of premature release has also resolved that if the period of imprisonment is 25 years including the period of remission or more one is entitled to be released forthwith. Unless and until that clause is amended, the authority is to act in accordance with the Government policy prevalent. Since the petitioner has admittedly completed the period of imprisonment for more than 25 years, he, under the policy decision of the Government, is entitled to be released forthwith.
Considering this aspect of the matter, the Division Bench of this Court in W.P.(Cr.) No. 176 of 2009 directed in similar circumstances to release the petitioner of that case forthwith.
Under the circumstances, the authorities are directed to release the petitioners forthwith. In the result, this application is allowed.