Patna High Court
MD SULTANversusTHE STATE OF BIHAR THROUGH CHIEF SECRETARY,GOVT. OF BIHAR, PATNA.
- Decided
- Disposal
- ALLOWED
- Bench
- JITENDRA KUMAR
Holding
The Court set aside the State Sentence Remission Board’s resolution rejecting remission as arbitrary and illegal, directing it to reconsider the petitions in accordance with the prevailing law.
Summary
Petitioners Md. Sultan and Tabassum Ara, convicted of offences under Sections 364A, 368, 149 and 120B of the IPC and sentenced to life imprisonment, applied for remission after serving over 23 years. The State Sentence Remission Board rejected their applications, relying on Notification No. 3106 (2002) which barred remission for offences akin to rape, dacoity and terrorism, and on adverse opinions of the Superintendent of Police, Probation Officer and the presiding trial judge. The petitioners contended that Notification 3106 had been superseded by the Bihar Prison Manual, 2012 (Rule 481) which does not list their offences as disqualifying, and that the Board ignored the jail authority’s favorable recommendation and statutory criteria. The Court held that the Board’s reliance on the obsolete notification and the disregard of the jail authority’s view rendered the decision arbitrary and illegal. The resolution rejecting remission was set aside and the Board was directed to reconsider the applications in accordance with the current law. The writ petition was disposed of.
Issues considered
- The applicability of Notification No. 3106 dated 10.12.2002 for remission decisions after its replacement by the Bihar Prison Manual, 2012.
- Whether the State Sentence Remission Board correctly applied Sections 432 and 433A of the CrPC and Rule 481, Rule 478 of the Bihar Prison Manual in rejecting remission.
- Whether adverse opinions of the Superintendent of Police, Probation Officer and presiding trial judge can outweigh the jail authority’s recommendation and statutory factors.
- Whether the Board complied with the statutory requirement to consider the welfare of society and other prescribed factors for premature release.
- Eligibility of the petitioners for remission under the current remission policy.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 432, 433A
- Indian Penal Code — s. 120B, 149, 364A, 368
- Prisons Act, 1894 — s. 59
Subjects
- remission
- premature release
- life imprisonment
- CrPC Section 432
- CrPC Section 433A
- Bihar Prison Manual
- Rule 481
- Rule 478
- arbitrariness
- writ petition
- rehabilitation
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.924 of 2021
Arising Out of PS. Case No.-162 Year-2002 Thana- SAHEBPUR KAMAL District-
Begusarai
======================================================
1. Md Sultan, Son of Md. Habib, Resident of Village- Ahmadganj, Bakhadda,
P.S.- Sahebpur Kamal, District- Begusarai.
2. Md. Tabbsum Ara, Wife of Md. Sultan, Resident of Village- Ahmadganj,
Bakhadda, P.S.- Sahebpur Kamal, District- Begusarai.
... ... Petitioner/s
Versus
1. The State of Bihar through Chief Secretary, Govt. Of Bihar, Patna.
2. The Principal Secretary, Home Department, Government of Bihar, Patna.
3. The State Sentence Remission Board through its Chairman, Government of
Bihar, Patna-1
4. The Secretary- Cum- Law Remembrance, Law Department, Government of
Bihar, Patna-1
5. The Director General of Police, Police Department, Government of Bihar,
Patna.
6. The Director, Probation Service, Government of Bihar, Patna-1
7. The Inspector General of Police (Prison), Jail Reforms, Government of
Bihar,Patna-1
8. Superintendent of Jail, Central Jail, Bhagalpur.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Vishal Vikram Rana, Advocate.
Ms. Misha Bharti, Advocate
Mr. Utkarsh Vikram Rana, Advocate.
Mr. Akash Priye, Advocate.
Mr. Saurav Dev, Advocate.
For the State : Mr. Manish Kumar, G.P.-4
Mr. Deepak Kumar, A.C. to G.P.-4.
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 10-02-2026
The present writ petition has been preferred by the
petitioners for quashing of the order dated 5.3.2020 passed by
the State Sentence Remission Board, Bihar, directing the
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respondents authorities to consider the petition of the petitioners
for remission.
2. The relevant facts as transpiring from the record
is that the petitioners Md. Sultan and Tabassum Arra along with
other co-accused were found guilty by learned Trial Court.
However, Md. Sultan was found guilty under Section 364-A
read with Section 149 of the Indian Penal Code and Section
120B of the Indian Penal Code, whereas, the petitioner
Tabassum Aara was found guilty under Section 368 read with
Section 149 of the Indian Penal Code and Section 120-B of the
Indian Penal Code as per the judgment dated 07.09.2005 passed
by learned Fast Track Court-I, Begusarai, in Sessions Trial No.
304 of 2003 arising out of Sahebpur Kamal P.S. Case No. 162 of
2002 and by the order of sentence dated 13.09.2005 passed by
learned Trial Court, both the petitioners were sentenced to
rigorous imprisonment for life and fine of Rs.10,000/- for their
offence.
3. The judgment of conviction and order of
sentence passed by learned Trial Court was upheld by this Court
in Criminal Appeal (D.B.) No. 709 of 2005 vide judgment dated
14th September, 2011.
4. It is the case of the petitioners that they are in
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custody since 22.10.2002. As such, as of now, the petitioners’
custody comes to almost 23 years, 03 months and 19 days. It is
further case of the petitioners that their petition for remission
was put up before the State Sentence Remission Board, Bihar,
Patna, but the Board, vide resolution dated 05.03.2020, rejected
the application of the petitioners for recommendation of
remission in view of the observations made by the concerned
authorities. The Jail Superintendent, as per the resolution of the
State Sentence Remission Board, has recommended remission
for the petitioners in view of the reformation. However, the
concerned Superintendent of Police, Probation Officer as well as
Trial Court have given their opinion against grant of any
remission to the petitioners in view of heinous nature of the
offence, and hence, State Sentence Remission Board has
rejected the petition of the petitioners for remission, holding
that the offence committed by the petitioners are similar to the
offence of rape, dacoity, terrorist etc. for which Remission has
been prohibited as per rules.
5. I heard learned counsel for the petitioners Shri
Vishal Vikram Rana and learned Government Pleader-4, Shri
Manish Kumar.
6. Learned counsel for the petitioners submits that
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the resolution of the State Sentence Remission Board dated
05.03.2020 is arbitrary and devoid of any merit. The Jail
Superintendent is the best authority to see any reformatory
change in the prisoner and other authorities like Superintendent
of Police, Trial Court and even Probation Officer, when the
petitioners were in jail, had no occasion to see the change in the
conduct and personality of the petitioners/prisoners. Hence, the
opinion of the Jail authority should have been taken seriously,
more particularly, in view of the fact that the petitioners have
been in jail for more than 23 years and age of the petitioners No.
1 and 2 being 75 and 70 years respectively.
7. However, learned Standing Counsel for the State
defends the resolution of the State Sentence Remission Board,
Bihar, Patna, submitting that the offences committed by the
convicts/petitioners are very serious and heinous in nature. They
have committed offence of abducting four young children for
extortion and they, along with other convicts, had kept the
victims in a tunnel for about five months and three days. Hence,
in view of such heinous offence, the petitioners do not deserve
to be given any remission. He further submits that the offence
committed by the petitioners is as bad as such offence for which
remission is prohibited as per rules like dacoity, rape and
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terrorist activity etc.
8. Before I consider the rival submissions of the
Parties, it would be pertinent to consider the relevant statutory
provisions and judicial precedents.
Statutory provisions in regard to remission
in case of life sentence.
9. Section 432 Cr.PC deals with power of the
Appropriate Government to suspend or remit sentences. It also
provides the procedure for grant of remission by the Appropriate
Government. However, Section 433 A put some restrictions on
powers of the Government to grant remission or commutations
in certain cases providing that a convict of an offence for which
death is one of the punishments provided by law or whether
sentence of death imposed on the convict has been commuted
under Section 433 into life imprisonment, such convict cannot
be released from prison unless he had served at least fourteen
years of imprisonment. Section 432 and 433 A Cr.PC 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
lime, 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
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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;
Provided that in the case of any sentence (other
than a sentence of fine) passed on a male person above the
age of eighteen years, no such petition by the person
sentenced or by any other person on his behalf shall be
entertained, unless the person sentenced is in jail, and,
(a) where such petition is made by the person
sentenced, it is presented through the officer in charge of
the jail; or
(b) where such petition is made by any other
person, it contains a declaration that the person sentenced
is in jail.
(6) The provisions of the above Sub-Sections
shall also apply to any order passed by a Criminal Court
under any section of this Code or of any other law which
restricts the liberty of any person or imposes any liability
upon him or his properly.
(7) In this section and in section 433, the
expression “appropriate Government” means,
(a) in cases where the sentence is for an offence
against, or the order referred to in Sub-Section (6) is
passed under, any law relating to a matter to which the
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executive power of the Union extends, the Central
Government;
(b) in other cases the Government of the State
within which the offender is sentenced or the said order is
passed.”
(Emphasis Supplied)
“433A. Restriction on powers of remission or
commutation in certain cases : Notwithstanding
anything contained in section 432, where a sentence of
imprisonment for life is imposed on conviction of a person
for an offence for which death is one of the punishment
provided by laws or where a sentence of death imposed on
a person has been commuted under section 433 into one of
imprisonment for life, such person shall not be released
from prison unless he had served at least fourteen years of
imprisonment.”
(Emphasis Supplied)
10. Bihar Prison Manual, 2012 framed for
administration of prisons in the State of Bihar in the exercise of
powers under Section 59 of the Prisons Act, 1894, provides for
remission policy of the Bihar Government.
11. Chapter XIII of the Bihar Prison Manual deals
with remission. Chapter XIV of the manual deals with release of
prisoners. Part B of Chapter XV deals with premature release.
12. Rule 474 of the Manual provides for premature
release of life convicts. As per it, Bihar State Sentence
Remission Review Board is an authority to review the remission
awarded to the prisoners and to recommend premature release
of life convicts in appropriate cases. It also provides
composition of the Review Board.
13. Rule 478 deals with what should be considered
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by the Review Board while recommending premature release of
the life convicts. It reads as follows:
“478. While considering the case of premature release of a
particular prisoner the Board shall keep in view the
general principles of remission of sentences, as laid down
by the State Government or by the courts, as also the
earlier precedents in the matter. The paramount
consideration before the Board being the welfare of the
society at large. The Board shall not ordinarily decline a
premature release of a prisoner merely on the ground that
the police have not recommended his/her release. The
Board shall take into account the circumstances in which
the offence was committed by the prisoner; whether
he/she has the propensity to commit similar or other
offences again; socio -economic condition of the convict's
family and possibility of further violence or offence on
his/her release, progress in victim reconciliation
programmes and chances of reclaiming the convict as a
useful member of the society.”
(Emphasis Supplied)
14. Hence, it goes without saying that as per rule
478, the paramount consideration before the Board is the
welfare of the society at large and the Boards are not required to
decline the premature release of a prisoner merely on the ground
that the police have not recommended his/ her release. The
Board is required to take into account the circumstances in
which the offence was committed by the prisoner; whether
he/she has the propensity to commit similar or other offences
again; socio-economic condition of the convict’s family and
possibility of further violence or offence on his or her release,
progress in victim reconciliation programmes and chances of
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reclaiming the convict as useful member of the society.
15. Rule 481 provides for the categories of
prisoners who are eligible or not for premature release. After
amendment in 2023, it reads as follows:
“481. The following categories of prisoners shall be
eligible to be considered for a review of sentences and
premature release by the Board:
(i) Every convicted prisoner whether male or female
undergoing sentence of life imprisonment and covered by
the provisions of Section 433A Cr.PC shall be eligible to
be considered for premature release from the prison
immediately after serving out the sentence of 14 years of
actual imprisonment i.e. without the remissions. The
following categories of convicted prisoner covered
under Section 433-A Cr.P.C. undergoing life sentence
would not be entitled to be considered for premature
release even after undergoing imprisonment for 20
years including remission:"
(a) Such convicts who have been imprisoned for life for
rape, rape with murder, dacoity with murder, murder
involving offence under the Protection of Civil Rights Act,
1955, murder for dowry, murder of a child below 14 years
of age, multiple murder, murder committed after
conviction while inside the prison, murder during parole,
murder in terrorist incident, murder in smuggling
operation."
(b) Gangsters, contract killers, smugglers, drug traffickers,
racketeers awarded life imprisonment for committing
murders as also the perpetrators of murder committed with
pre-meditation and with exceptional violence or
perversity.
(c) Convicts whose death sentence has been commuted to
life imprisonment.
(ii) All other convicted male prisoners not covered by
section 433A Cr.PC undergoing the sentence of life
imprisonment shall be considered for premature release
after they have served at least 14 years of imprisonment
inclusive of remission but only after completion of 10
years actual imprisonment i.e. without remissions.
(iii) The female prisoners not covered by section 433A
Cr.PC undergoing the sentence of life imprisonment shall
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be considered for premature release after they have served
atleast 10 years of imprisonment inclusive of remissions
but only after completion of 7 years actual imprisonment
i.e. without remissions.
(iv) In such cases in which life sentence has been awarded
by specifying that the convict shall undergo life sentence
till the end of his life without remission or commutation,
benefit of remission or commutation shall not be given to
convict.
(v)In such cases in which life sentence has been awarded
by specifying that the convict shall not be released by
granting remission or commutation till he completes a
fixed term of 20 years or 25 years or like, remission or
commutation shall not be granted to a convict until he
completes the fixed term as prescribed in the sentence.”
(Emphasis Supplied)
16. Rule 482 provides the procedure which is
required to be followed for processing of the cases for
consideration of the Remission Board. It reads as follows:
“482. The following procedure shall be followed for
processing of the cases for consideration of the Remission
Board:
(i) After receiving application for remission from or on
behalf of life convict, the concerned Superintendent of
Prison shall initiate the case for premature release as per
the criterion laid down by the State Government in that
behalf but application received prior to four months from
the date when the prisoner would become eligible for
consideration of premature release shall not be considered.
(ii) The Superintendent shall cause a comprehensive note
prepared in each case, giving the background of the
prisoner, and details of the offence for which he/she was
convicted and sentenced. The note shall also reflect fully
on the conduct and behaviour of the prisoner in the prison
during the period of his/her incarceration, and during
his/her release on probation! leave, change in his/her
behavioural pattern, and prison offences, if any,
committed by him/her and punishment awarded to him/her
for such offences. A report shall also be made about his/
her physical and mental health or any serious ailment with
which the prisoner is suffering.
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(iii) The Superintendent shall make a reference to the
Superintendent of Police of the district where the prisoner
was ordinarily residing at the time of committing the
offence (for which he/she was convicted and sentenced) or
where he/she is likely to resettle after release from the
prison. However, in case the place of his/her residence is
not where he/she committed the offence a reference shall
also be made to the Superintendent of Police of the district
in which the offence was committed. In either case, he
shall forward a copy of the note prepared by him to enable
the Superintendent of Police to express his/her views in
regard to the desirability of the premature release of the
prisoner.
(iv) On receipt of the reference, the concerned
Superintendent of Police shall have an inquiry made in the
matter through senior officers of appropriate ranks and
based on his/her own assessment shall make his/her
recommendations. In case the Superintendent of Police is
not in favour of premature release of the prisoner, he/she
shall justify the same with cogent and material reasons.
They shall return the reference to the Superintendent
within 30 days of the receipt of the reference.
(v) The Superintendent shall also make a reference to the
Director Probation Services On receipt of the reference,
the Director Probation Services shall either hold or cause
to be held an enquiry through a Probation officer, for the
desirability or otherwise of premature release of the
prisoner, taking into consideration his/her family and
social background, his/her acceptability by his/her family
members and the society, prospects of his/her
rehabilitation and leading a meaningful life as a good
citizen. In every case the Director Probation Services shall
justify his! her recommendation with cogent and material
reasons.
(vi) The Superintendent shall obtain opinion of the
Presiding Judge of the Court (before or by which the
conviction was had or confirmed) whether to allow or
reject the application for remission."
(vii) On receipt of the report/recommendations of the
Superintendent of Police and Probation Officer and
opinion of Presiding Judge of the Court (before or by
which the conviction was had or confirmed),
Superintendent shall put up the case to the Inspector
General of Prisons and Correctional Services. The
Inspector General of Prisons and Correctional Services
shall examine the case, in view of the opinion of Presiding
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Judge of the Court (before or by which the conviction was
had or confirmed) and report/recommendations of the
Superintendent of Police and Probation Officer regarding
the premature release of a prisoner or otherwise. While
doing so he/she shall keep in view the general or special
guidelines laid down by the State Government for the
State Sentence Remission Board. It shall be given proper
attention to the various norms laid down and guidelines
given by the Supreme Court of India and various High
Courts in the matter of premature release of prisoners.
(viii) Where the life sentences is given under any central
law or any other similar offence under central law, the
State Government shall not have the powers to exercise
remissions or commutations.”
Relevant Case Laws
17. In Rajo alias Rajwa alias Rajendra Mandal
Vs. State of Bihar and Others, as reported in 2023 SCC
OnLine SC 1068, Hon’ble Apex Court has held that the
executive powers of the Government as provided under Section
432 Cr.PC, is inherently discretionary in nature and it has to be
exercised fairly, reasonably and non-arbitrarily. The same view
has been expressed by Hon’ble Apex Court in State of Haryana
Vs. Jagdish as reported in (2010) 4 SCC 216.
18. In Union of India Vs. V Sriharan as reported
in 2016 7 SCC 1, Hon’ble Apex Court has acknowledged that
it lies within the executive’s domain to grant or refuse premature
release. But, such power would have to be guided and the
discretion informed by reason stemming from appropriate rules.
Here, Hon’ble Court has also underlined the need to balance
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societal interest with rights of convict.
19. In Satish alias Sabbe Vs. State of Uttar
Pradesh as reported in (2021) 14 SCC 580, Hon’ble Supreme
Court has held that where the authorities are found to have
failed to discharge their statutory obligation despite judicial
directions, it would then not be inappropriate for a
constitutional court, while exercising its powers of judicial
review, to resume such task onto itself and direct compliance
through a writ of mandamus. The relevant part of the judgment
reads as follows:
“17. It is no doubt trite law that no convict can claim
remission as a matter of right. However, in the present
case, the circumstances are different. What had been
sought and directed by this Court through repeated orders
was not premature release itself, but due application of
mind and a reasoned decision by executive authorities in
terms of existing provisions regarding premature release.
Clearly, once a law has been made by the appropriate
legislature, then it is not open for the executive authorities
to surreptitiously subvert its mandate. Where the
authorities are found to have failed to discharge their
statutory obligations despite judicial directions, it would
then not be inappropriate for a constitutional court while
exercising its powers of judicial review to assume such
task onto itself and direct compliance through a writ of
mandamus.”
(Emphasis Supplied)
20. The same view has been reiterated by Hon’ble
Apex Court in Sukhdev Yadav @ Pahalwan Vs. State of
(NCT of Delhi) and Others as reported in 2025 SCC OnLine
SC 1671. by referring to Satish case (supra).
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21. In Satish case (supra), Hon’ble Supreme
Court has also held that length of sentence or the gravity of the
original crime cannot be the sole basis for refusing premature
release. It was also held that in remission regarding predirection
to commit a crime upon release must be based on antecedents as
well as conduct of the prisoner while in jail and not merely on
his age or apprehension of the victims and witness. Here it was
also held that the statutory mandate on premature release cannot
be completely overlooked by the Government while deciding
the grant of remission of the person. The relevant part of the
judgment reads as follows:
“18. A perusal of the government orders displays that the
statutory mandate on premature release has been
completely overlooked. The three-factor evaluation of : (i)
antecedents, (ii) conduct during incarceration, and (iii)
likelihood to abstain from crime, under Section 2 of the
U.P. Prisoners Release on Probation Act, 1938, have been
given a complete go-by. These refusals are not based on
facts or evidence, and are vague, cursory, and merely
unsubstantiated opinions of the State authorities.
19. It would be gainsaid that length of the sentence or the
gravity of the original crime cannot be the sole basis for
refusing premature release. Any assessment regarding
predilection to commit crime upon release must be based
on antecedents as well as conduct of the prisoner while in
jail, and not merely on his age or apprehensions of the
victims and witnesses. As per the State's own affidavit,
the conduct of both the petitioners has been more than
satisfactory. They have no material criminal antecedents,
and have served almost 16 years in jail (22 years including
remission). Although being about 54 and 43 years old,
they still have substantial years of life remaining, but that
does not prove that they retain a propensity for
committing offences. The respondent State's repeated and
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circuitous reliance on age does nothing but defeat the
purpose of remission and probation, despite the petitioners
having met all statutory requirements for premature
release.”
(Emphasis Supplied)
22. As such, it emerges from Satish case (supra)
and Sukhdev case (supra) that the State Sentence Remission
Review Board can overlook neither the statutory provision nor
judicial precedents, nor can it take decision in unfair and
arbitrary manner and if the Review Board is directed by the
Constitutional Court for reconsideration of its decision after
setting aside the previous decision of the Board, the Board is
duty bound to recommend remission for the prisoner, failing
which the Constitutional Court can resume such task onto itself
and direct compliance through a writ of mandamus. In other
words, if the Constitutional Court send the matter to the Review
Board for reconsideration after setting aside its previous
decision, the Board is duty bound to reverse its decision in
favour of the prisoner, but if the Board fails and the prisoner
moves Constitutional Court again against such order declining
to recommend his/her remission, the Constitutional Court has
duty as a writ court to direct the Government to grant remission.
23. In Maru Ram Vs. Union of India and Others
as reported in (1981) 1 SCC 107, Hon’ble Supreme Court has
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also held that remission schemes offer healthy motivation for
better behaviour, inner improvement and development of social
fibre. Here, Churchil was also quoted, who had said, “The
mood and temper of the public with regard to the treatment of
crime and criminals is one of the most unfailing tests of the
civilisation of any country”, and it was observed that the mood
and temper of our Constitution certify that arbitrary cruelty to
the prisoner and negative attitude to reformation of the
individual are obnoxious. Here, Hon’ble Apex Court also
observed that even the ruling of Bachan Singh on the vires of
death penalty upheld this high stance.
24. Hon’ble Supreme Court in Maru Ram Case
(supra) has also held that the length of imprisonment is not
regenerative of the goodness within and may be proof of the
reverse- a calamity which may be averted by exercise of power
under Article 161 especially when the circumstances show good
behaviour, industrious conduct, social responsibility and
humane responses which are usually reflected in the marks
accumulated in the shape of remission. In short, the rules of
remission may be effective guide-lines of a recommendatory
nature, helpful to government to release the prisoner by
remitting the remaining term.
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25. It has been also held in Maru Ram case
(supra) that the failure of imprisonment as a crime control tool
and the search for non-institutional alternatives in a free milieu,
gain poignant pertinence while considering the mechanical
exclusion of individualised punishment by Section 433-A,
conjuring up the cruel magic of 14 years behind bars — where
“each day is like a year, a year whose days are long” — as a
solvent of the psychic crisis which is crimeogenic factor,
blinking at the blunt fact that at least after a spell the
penitentiary remedy aggravates the recidivist malady.
26. Hon’ble Supreme Court in Maru Ram case
(supra) has also held that if crime claims a victim criminology
must include victimology as a major component of its concerns.
It further observed that indeed, when a murder or other grievous
offence is committed, the dependants or other aggrieved persons
must receive reparation and the social responsibility of the
criminal to restore the loss or heal the injury is part of the
punitive exercise. But the length of the prison term is no
reparation to the crippled or bereaved and is futility
compounded with cruelty.
27. In State of Haryana Vs. Jagdish as reported in
(2010) 4 SCC 216, Hon’ble Supreme Court has held in para
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44 that liberty is one of the most precious and cherished
possessions of a human being and he would resist forcefully any
attempt to diminish it. Similarly, rehabilitation and social
reconstruction of a life convict, as objective of punishment
become of paramount importance in a welfare State. “Society
without crime is a utopian theory.” The State has to achieve the
goal of protecting the society from the convict and also to
rehabilitate the offender. There is a very real risk of revenge
attack upon the convict from others. Punishment enables the
convict to expiate his crime and assist his rehabilitation. The
remission policy manifests a process of reshaping a person who,
under certain circumstances, has indulged in criminal activity
and is required to be rehabilitated. Objectives of the punishment
are wholly or predominantly reformative and preventive.
28. In para 45 of the Jagdish case (supra), it was
further observed that the basic principle of punishment that
“guilty must pay for his crime” should not be extended to the
extent that punishment becomes brutal. The matter is required to
be examined keeping in view modern reformative concept of
punishment. The concept of “savage justice” is not to be applied
at all. The sentence softening schemes have to be viewed from a
more human and social science oriented approach. Punishment
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should not be regarded as the end but as only the means to an
end. The object of punishment must not be to wreak vengeance
but to reform and rehabilitate the criminal. More so, relevancy
of the circumstances of the offence and the state of mind of the
convict, when the offence was committed, are the factors, to be
taken note of.
29. Here, it was also observed in para 47 of the
Jagdish case (supra) that considerations of public policy and
humanitarian impulses—supports the concept of executive
power of clemency. If clemency power is exercised and
sentence is remitted, it does not erase the fact that an individual
was convicted of a crime. It merely gives an opportunity to the
convict to reintegrate into the society. The modern penology
with its correctional and rehabilitative basis emphasises that
exercise of such power be made as a means of infusing mercy
into the justice system. Power of clemency is required to be
pressed in service in an appropriate case. Exceptional
circumstances e.g. suffering of a convict from an incurable
disease at the last stage, may warrant his release even at a much
early stage.
30. In Lakshman Naskar Vs. Union of India and
Others. as reported in 2000 2 SCC 595, Hon’ble Supreme
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Court had laid down the following factors to be considered at
the time of decision for premature release of life convicts:
“(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 the convict has lost his potentiality in
committing crime.
(iv) Whether there is any fruitful purpose of confining this
convict any more.
(v) Socio-economic condition of the convict's family.”
31. All these factors have been reiterated by
Hon’ble Supreme Court in Jagdish case (supra) in the
paragraph no. 46 of the judgment holding that at the time of
considering the case of premature release of a life convict, the
authorities are required to consider his case mainly taking into
consideration whether the offence was an individual act of crime
without affecting the society at large; whether there was any
chance of future recurrence of committing a crime; whether the
convict had lost his potentiality in committing the crime;
whether there was any fruitful purpose of confining the convict
any more; the socio-economic condition of the convict's family
and other similar circumstances.
32. In Rajo case (supra), Hon’ble Supreme Court
has held that the overemphasis on the opinion of the Trial Court
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and complete disregard of comments of other authorities while
arriving at its conclusion for remission would render the
Appropriate Government’s decision unsustainable.
33. Here Hon’ble Apex Court has also held that
the report of the Trial Court cannot carry predominance if it
focuses on the crime with little or no attention to the criminal.
Here, Hon’ble Apex Court has also directed the Appropriate
Government to take a holistic view of all the opinions received
including the judicial view of the Trial Court keeping in mind
the purpose and objective of the remission. The relevant part of
the judgment reads as follows:
“ 18. The record clearly indicates that the reason for
rejection of the petitioner's application, is the adverse
report submitted by the presiding judge in the first round,
which was perfunctorily relied upon and reiterated in the
report submitted by the then presiding judge in the second
round as well. Both the reports submitted by the presiding
judges (at the relevant time), demonstrate a casual opinion,
based solely on the judicial record which presumably
consisted of the finding of guilt, by the trial court and High
Court. This offers only a dated insight on the petitioner,
one that has limited opportunity to consider the progress
the convict has made in the course of serving his sentence.
Yet, the Remission Board has privileged the presiding
judge's opinion over the other authorities - like the
Probation Officer, and Jail authorities, who are in a far
better position to comment on his post-conviction
reformation - offering a cautionary tale.
19. In this court's considered view, overemphasis on the
presiding judge's opinion and complete disregard of
comments of other authorities, while arriving at its
conclusion, would render the appropriate government's
decision on a remission application, unsustainable. The
discretion that the executive is empowered with in
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executing a sentence, would be denuded of its content, if
the presiding judge's view - which is formed in all
likelihood, largely (if not solely) on the basis of the
judicial record - is mechanically followed by the concerned
authority. Such an approach has the potential to strikes at
the heart, and subvert the concept of remission - as a
reward and incentive encouraging actions and behaviour
geared towards reformation - in a modern legal system.
20. All this is not to say that the presiding judge's view is
only one of the factors that has no real weight; but instead
that if the presiding judge's report is only reflective of the
facts and circumstances that led to the conclusion of the
convict's guilt, and is merely a reiteration of those
circumstances available to the judge at the time of
sentencing (some 14 or more years earlier, as the case may
be), then the appropriate government should attach weight
to this finding, accordingly. Such a report, cannot be relied
on as carrying predominance, if it focusses on the crime,
with little or no attention to the criminal. The appropriate
government, should take a holistic view of all the opinions
received (in terms of the relevant rules), including the
judicial view of the presiding judge of the concerned court,
keeping in mind the purpose and objective, of remission.
21. The views of the presiding judge, are based on the
record, which exists, containing all facts resulting in
conviction, including the nature of the crime, its
seriousness, the accused's role, and the material available
at that stage regarding their antecedents. However, post-
conviction conduct, particularly, resulting in the prisoner's
earned remissions, their age and health, work done, length
of actual incarceration, etc., rarely fall within the said
judge's domain. Another factor to bear in mind, is that the
presiding judge would not be the same presiding judge who
had occasion to observe the convict (at a much earlier point
in time) and thus form an opinion. The presiding judge, at
this stage, would only look into the record leading to
conviction. This judicial involvement in executive decision
making is therefore, largely limited to the input it provides
regarding the nature of the crime, its seriousness, etc.
Undoubtedly, even at the stage of sentencing, the judge
ideally is to exercise discretion after looking at a wide
range of factors relating to the criminal and not just the
crime; but as noticed in numerous precedents that have
dealt with sentencing in the commission of heinous crimes,
this is unfortunately, often not the reality. Guidance has
been offered by this court on how to mitigate this in recent
years, but in this court's considered view, it is pragmatic to
acknowledge that it will require time for our criminal
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justice system to incorporate, and uniformly reach such
standards. In fact, earlier cases of conviction (such as the
present one - in 2001), have an even lesser probability of a
judicial record which reflects consideration of such multi-
dimensional factors at the sentencing stage; the lack of
which should not serve as an obstacle to the convict
seeking release (after serving almost two decades, or
more), erasing the reformative journey they may have
undertaken as a result of their long incarceration.
…………………………………………………………...
24. Apart from the other considerations (on the nature of
the crime, whether it affected the society at large, the
chance of its recurrence, etc.), the appropriate government
should while considering the potential of the convict to
commit crimes in the future, whether there remains any
fruitful purpose of continued incarceration, and the socio-
economic conditions, review : the convict's age, state of
heath, familial relationships and possibility of
reintegration, extent of earned remission, and the post-
conviction conduct including, but not limited to - whether
the convict has attained any educational qualification
whilst in custody, volunteer services offered, job/work
done, jail conduct, whether they were engaged in any
socially aimed or productive activity, and the overall
development as a human being. The Board thus should not
entirely rely either on the presiding judge, or the report
prepared by the police. In this court's considered view, it
would also serve the ends of justice if the appropriate
government had the benefit of a report contemporaneously
prepared by a qualified psychologist after
interacting/interviewing the convict that has applied for
premature release. The Bihar Prison Manual, 2012 enables
a convict to earn remissions, which are limited to one third
of the total sentence imposed. Special remission for good
conduct, in addition, is granted by the rules. If a
stereotypical approach in denying the benefit of remission,
which ultimately results in premature release, is repeatedly
adopted, the entire idea of limiting incarceration for long
periods (sometimes spanning a third or more of a convict's
lifetime and in others, result in an indefinite sentence),
would be defeated. This could result in a sense of despair
and frustration among inmates, who might consider
themselves reformed-but continue to be condemned in
prison.”
(Emphasis Supplied)
34. In Rajo Case (supra), in regard to the report of
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the Superintendent of Police, Hon’ble Supreme Court has
cautioned the Appropriate Government that it should be
cognizant of the latent (not always) prejudices of the crime that
the police as well as the investigating agency may be citing,
especially in a case where the slain victims were police
personnel themselves. The relevant part of the judgment reads
as follows:
“23. Another aspect of note in this case, is the report
submitted by the Superintendent of Police in the second
round (which is diametrically different from that which
was submitted in the first round), was adverse. Without
casting aspersions on the veracity of it, or questioning it
on merits, it is appropriate to flag another concern in such
a context. In each case, the appropriate government has to
be cognizant of the latent (not always) prejudices of the
crime, that the police as well as the investigating agency,
may be citing - especially in a case such as the present
one, where the slain victims were police personnel
themselves, i.e., members of the police force. These biases
may inform the report, and cannot be given determinative
value. Doing so will potentially deflect the appropriate
government from the facts relevant for consideration for
premature release, and instead, focus almost entirely upon
facts which evoke a retributive response.”
(Emphasis Supplied)
35. Regarding applicability of the remission policy,
it is settled principle of law that the remission policy prevailing
at the time of conviction is applicable for grant of benefit of
remission. However, in case a more liberal policy exists at the
time of consideration, the benefit should be provided to the
convict according to the liberal policy prevailing at the time of
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the consideration.
36. In Jagdish Case (supra) Hob’ble Supreme
Court has held as follows:
“54. The State authority is under an obligation to at least
exercise its discretion in relation to an honest expectation
perceived by the convict, at the time of his conviction that
his case for premature release would be considered after
serving the sentence, prescribed in the short-sentencing
policy existing on that date. The State has to exercise its
power of remission also keeping in view any such benefit
to be construed liberally in favour of a convict which may
depend upon case to case and for that purpose, in our
opinion, it should relate to a policy which, in the instant
case, was in favour of the respondent. In case a liberal
policy prevails on the date of consideration of the case of
a “lifer” for premature release, he should be given benefit
thereof.”
(Emphasis Supplied)
37. In State of Haryana v. Raj Kumar, (2021) 9
SCC 292, Hon’ble Supreme Court has held as follows:
“16. Still further, it is the consistent view of this Court that the
policy prevalent at the time of conviction shall be taken into
consideration for considering the premature release of a
prisoner………………………………….”
(Emphasis Supplied)
38. In Rajo Case (supra) Hob’ble Supreme
Court has held as follows:
“27. This court, on earlier occasion, had grappled with the
situation of different remission policies/rules prevailing at
different points of the convict's sentence - i.e., when the policy
on the date of conviction, and on the date of consideration for
premature release, are different. It has been held that the policy
prevailing on the date of the conviction (State of Haryana v.
Raj Kumar, (2021) 9 SCC 292), would be applicable. However,
in Jagdish (supra) it was also recognised that if a more liberal
policy exists on the date of consideration, the benefit should be
provided: ………………………………………………...”
(Emphasis Supplied)
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Present Case
39. Coming to the case on hand, I find that the
petitioner/Md. Sultan has been found guilty of offence
punishable under Section 364A read with Sections 149 and
120B of the Indian Penal Code and the petitioner/Tabassum Ara
has been found guilty under Section 368 read with Sections 149
and 120B of the Indian Penal Code. Both the petitioners have
been sentenced to rigorous imprisonment for life and they have
been in custody for about 23 years, 3 months and 19 days
serving the sentence. Their application for remission has been
rejected by the State Sentence Remission Review Board vide
Resolution dated 05.03.2020.
40. As per the resolution of the State Sentence
Remission Review Board dated 05.03.2020, it transpires that in
case of the petitioner/ Md. Sultan, the Jail Authority has
recommended his remission in view of his reformed conduct,
whereas other authorities like concerned Superintendent of
Police, Probation Officer and the Presiding Officer of the Trial
Court have given their opinion against grant of any remission to
him in view of heinous nature of the offence he has committed.
The Superintendent of Police has opined that release of the
petitioner will have ill effect of the society. It may also create
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problem of law and order and it may lead to increase in the
crime. The Probation Officer has reported that release of the
petitioner may lead to unrest in the society and his neighbours
are not ready to accept in their society. The Presiding Officer of
the Trial Court has also opined that the petitioner does not
deserve any leniency in view of the nature of the offence.
41. The State Sentence Remission Review Board
has rejected the application of the petitioner/ Md. Sultan for
remission in view of adverse opinion of the Superintendent of
Police, Presiding Officer of the Trial Court and Probation
Officer. The application has been also rejected in view of
Clause- (iv) (k) of Notification bearing No. 3106 dated
10.12.2002 issued by Home Department, Government of Bihar,
wherein it has been provided that prisoners who are convict of
rape, dacoity, terrorist crime etc. are not eligible for premature
release.
42. It further transpires that the actual custody of
the petitioner was 16 years, 10 months and 8 days, whereas with
remission his period of custody was 21 years and 9 months.
43. As far as petitioner/Tabassum Ara is concerned,
it transpires from the resolution of the State Sentence Remission
Review Board that Jail Authority has recommended remission
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for the petitioner in view of the reformed conduct and even the
Superintendent of Police has not given any adverse opinion
against her premature release stating that at the time of the
crime, there was outrage against the petitioner but now there is
no such outrage and hence, her release will have no any adverse
effect on the society. However, the Probation Officer has opined
against the premature of the petitioner stating that the
neighbours are still not ready to accept her in their society. The
Presiding Officer of the Trial Court has also given adverse
opinion against the remission for the petitioner in view of
heinous nature of the crime she has committed. Hence, the State
Sentence Remission Review Board has rejected her application
in view of the adverse opinion of the Probation Officer as well
as presiding Officer of the Trial Court and in the light of the
Notification bearing No. 3106 dated 10.12.2002.
44. As such, it transpires that the State Sentence
Remission Board has rejected the applications of the petitioners
for remission in view of Clause- (iv) (ka) of Notification bearing
No. 3106 dated 10.12.2002 issued by Home Department,
Government of Bihar, wherein it has been provided that
prisoners who are convicts of rape, dacoity, terrorist crime etc.
are not eligible for premature release. The applications of the
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petitioners have been rejected also in view of the adverse
opinions of the Probation Officer and the trial Court.
45. Here it would be pertinent to point out that
Notification bearing no. 3106 dated 10.12.2002 was issued by
Home Department, Government of Bihar, under Section 59 of
Prisons Act, 1894 and by this Notification, Bihar Government
has substituted Rule 529 of prevailing Bihar Prison Manual,
1929. However, under Section 59 of the Prisons Act, 1894, the
Bihar Government has framed new jail manual-“Bihar Prison
Manual, 2012” suppressing Bihar Jail Manual, 1925 and this
manual came into effect on 12.12.2012 vide notification No.
5350 dated 12.12.2012. As such, Notification bearing No. 3106
dated 10.12.2002 issued by Bihar Government is no longer in
operation, and hence, it has no longer any statutory force.
46. Now, it is Rule 481 of Bihar Prison Manual,
2012 which provides for the categories of the prisoners who are
eligible or not eligible for premature release. Rule 481(a) was
amended in 2023 vide notification No. 14/2022 dated
10.04.2023 issued by Home Department, Government of Bihar,
to delete the offence of “murder of public servant on duty” as
disqualification for benefit of remission policy. From perusal of
Rule 481, it clearly transpires that offence punishable under
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Section 364 A or 368 of Indian Penal Code are not covered
under the category of the offences for which remission is
prohibited.
47. Hence, the rejection of applications of the
petitioners by the State Sentence Remission Board, in view of
the Notification bearing no. 3106 dated 10.12.2002, is
absolutely arbitrary and illegal.
48. Here, it is also relevant to point out that unlike
in Rule 529 of the previous prison manual as it stood after
amendment vide the notification No. 3106 dated 10.12.2002,
there is no word like “etc” in Rule 481 of the New Manual. In
Rule 529 of the previous manual the word “etc.” was used
along with the offences for which remission was prohibited and
this word - “etc” was applied by the Remission Board to deny
remission to the convicts of the offences of similar nature for
which remission was prohibited.
49. It is also pertinent to point out that this Court in
various previous judgments has dealt with the effect of the
notification No. 3106 dated 10.12.2002 at length and has held
that after New Bihar Prison Manual, 2012, it is Rule 481 which
categorizes the prisoners for grant of remission. It has been also
held that the Notification No. 3106 dated 10.12.2002 was not
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implemented prior to 25.09.2007, as is evident from Ajit
Kumar Mishra vs State of Bihar [2023 SCC OnLine Pat
4285, (2023) 4 PLJR 782, (2023) 5 BLJ 783 (PHC)] wherein a
Coordinate Bench of this Court, after referring to previous
judicial precedents, has held as follows:
“26. In the aforementioned background, when the
Rule 529 of the first Jail Manual came to be substituted
w.e.f. 28.12.2002 which is the date of publication of the
notification, the amended provision provided for certain
exceptional categories of convict prisoners who would be
debarred from getting a premature release. The relevant
part of the notification/Remission Notification dated
10.12.2002 are quoted hereunder:—
27. Earlier, there had been a controversy as to the
date on which the amended Remission Notification
amending Rule 529 of the Jail Manual actually came to be
implemented. On the basis of the pleadings on the record,
this Court considered this issue in the case of Surendra
Mahto v. The State of Bihar, (2021) 4 PLJR 393 and after
going through the earlier Hon'ble Division Judgment of
this Court, it has been held that the notification dated
10.12.2002 was not implemented prior to 25.09.2007, in
fact the affidavit of the then Principal Secretary,
Department of Home, Government of Bihar filed in
Cr.WJC No. 2530 of 2017 (Naresh Sahani v. the State of
Bihar) which has been placed before this Court and forms
part of the records of the said case admits this position and
refers the period between 28.12.2002 and 24.09.2007 as
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the period during which life convicts were released by the
Jail Superintendents themselves after calculating 14 years
of actual custody and 20 years with remission. It is
specific stand in the said affidavit that from 25.09.2007
and onwards the life convicts were released by the State
after recommendation of the Board.”
(Emphasis supplied)
50. As such, at the time of the conviction on
07.09.2005, the Notification No. 3106 dated 10.12.2002 was not
in operation. Moreover, at the time of consideration of the
applications of the petitioners for remission on 05.03.2020, a
liberal remission policy as provided in Bihar Prison Manual,
2012 was in operation and hence, the Notification No. 3106
dated 10.12.2002 was not applicable in the case of the
petitioners.
51. Hence, the denial of remission to the petitioners in
the light of the Notification No. 3106 dated 10.12.2002 is
absolutely arbitrary and illegal.
52. The rejection of the applications of the petitioners
even in view of the adverse opinions of some authorities like
Presiding officer of the Trial Court and Probation Officer and
even the Superintendent of Police is not sustainable. The report
of the Presiding Officer of the Trial Court is nothing but
reiteration of the facts and circumstances leading to conviction
and sentence of the petitioners. Learned Trial Court has not
reported on the relevant points which is required to be
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considered by the State Sentence Remission Board at the time of
the consideration of the applications for remission. As per the
judicial precedents, the following factors are required to be
considered by the Board for recommending remission for the
prisoners:
(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 the convict has lost his potentiality in
committing crime.
(iv) Whether there is any fruitful purpose of confining this
convict any more.
(v) Socio-economic condition of the convict's family.”
53. As per Rule 478 of Bihar Prison Manual, 2012, the
paramount consideration before the Board is welfare of the
society at large. The Board is also required to take into account
the circumstances in which the offence was committed, whether
he/she has propensity to commit similar or other offences,
socio-economic conditions of the prisoner and possibility of
further violence or offence on his/her release, progress in victim
reconciliation programmes and chances of reclaiming the
convict as a useful member of the society.
54. As such, the report of the Trial Court was not
helpful for taking decision on the applications of the petitioners
for remission.
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55. Even report of the Probation Officer was hardly
useful for the sake of decision of the State Sentence Remission
Board because the Probation Officer has also ignored to report
on the relevant points.
56. Moreover, the opinion of the jail authority has not
been taken into consideration by the State Sentence Remission
Board. It is the jail authority which is aware of day-to-day
change/reform in the conduct and personality of the prisoners. If
the jail authority has opined that there is reformation in the
conduct of the prisoner and he is fit for grant of remission, it
should not have been ignored.
57. From perusal of the resolution of the State
Sentence Remission Board, it transpires that the Board is
oblivious of the fact that grant of remission to the prisoner is a
facet of reformatory aspect of our criminal justice system and
the prisons are correctional and reformatory centres for adults
convicts, as there are Observation Homes for juveniles in
conflict with law. Remission is premature release of the convicts
prior to completion of their term or life sentence if there is
positive change in the conduct and attitude of the prisoners. The
idea behind such release is to allow reformed prisoners to join
mainstream of the society as a productive member. Remission
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schemes offer healthy motivation for better behaviour, inner
improvement and development of social fibres.
58. As such, I find that State Sentence Remission
Review Board has neither taken care of the Prison Law, nor of
judicial precedents binding upon the Government, nor object of
the remission policy. As such, welfare of the society and the
individual is casualty.
59. Moreover, the petitioners have been in custody for
over 23 years with remission at the time of consideration by the
State Sentence Remission Board. Even their actual custody in
the prison was more than 16 years without remission. The
petitioners are also at the fag end of their life. There is also no
cogent material disclosed in the reports of the concerned
authorities that there is any chance of future recurrence of
committing crime by the petitioners. Moreover, in view of the
reformed conduct and the age, they have already lost their
potentiality to commit crimes and needless to say that no fruitful
purpose would be served by confining the convicts anymore.
There is nothing on record to show propensity of the petitioner
to commit similar other offences. It would be in the interest of
the society to allow the petitioners to join the mainstream of the
society as productive members and lead a normal life.
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Imprisonment is not meant for taking revenge against the
convicts but to make correction or reformation in their conduct
by putting them in prison which are centre for correctional and
reformatory measures.
60. Hence, the resolution dated 05.03.2020 passed by
the State Sentence Remission Board, Bihar, in regard to the
petitioners is totally arbitrary and illegal and hence, it is not
sustainable.
61. Accordingly, the resolution dated 05.03.2020
passed by the State Sentence Remission Board, Bihar, is set
aside and the State Sentence Remission Board is directed to
reconsider the petitions of the petitioners for remission and pass
appropriate orders as per law by 15th day of May, 2026.
62. The present writ petition stands disposed of,
accordingly.
(Jitendra Kumar, J.)
S.Ali/ravi
shankar/Shoaib
AFR/NAFR A.F.R.
CAV DATE N.A.
Uploading Date 09.03.2026
Transmission Date 09.03.2026
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