LIFE CONVICT LAXMAN NASKARversusSTATE OF WEST BENGAL AND ANR.

A                       LIFE CONVICT LAXMAN NASKAR
                                           v.
                      ST A TE OF WEST BENGAL AND ANR.



B
                                SEPTEMBER 4, 2000

              [S. RAJENDRA BABU AND SHIVARAJ V. PATIL, JJ.]                           -
          Constitution of India-Article 32-West Bengal Correctional Services
    Act XX.XII of 1992-Section 61(1)-Life convict applying for premature
C   release-On basis of remissions earned-Jail authorities observing in favour
    of life convict-Review Committee rejecting release on different
    Consideration-Whether he is entitled for automatic release-Held, no--
    Separate order should be made by appropriate Government-Further held,
    reasons given by government palpably wrong-Matter remitted to State
    Government fresh consideration.
D
           The petitioner, undergoing imprisonment for life, has filed a writ
    petition in this Court seeking release from jail, on the ground that under
    Section 61(1) of the West Bengal Correctional Services Act XXXII of 1992,
    which came into force with effect from April 14,2000, he is entitled to be
    released prematurely inasmuch as he had served the sentence and earned
E   remissions. On an earlier petition when the matter had come up before this
    Court an order had been made directing the Government to re-consider the
    case for premature release of all life convicts who had approached the Court.
    Thereafter, the Government constituted a Review Committee and also issued
    certain guidelines as to the basis on which a convict can be released
p   prematurely. Though in the present case, the report of the jail authorities
    was in favour of the petitioner, the Review Committee constituted by the
    Government recommended to reject the claim of premature release of the
    petitioner for different reasons.

          Allowing the writ petition the Court
G
          HELD: 1. In view of the legal position explained by this Court it may
    not help the petit~oner even on the construction on Section 61(1) of the West
    Bengal Correctional Service Act XXXII of 1992 with ref~rence 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
H                                         62
           LIFE CONVICT LAXMAN NASKAR ''· STA TE OF WEST BENGAL                63

equivalent to the period of imprisonment for 20 years. Therefore, solely on          A
the basis of completion of a term in jail serving imprisonment and remissions
earned under the relevant rules or law will not entitle and automatic release,
but the appropriate Government must pass a separate order remitting the un-
expired portion of the sentence. [66-D-E)

      State of Madhya Pradesh v. Ratan Singh, [1976) 3 SCC 470; Naib Singh           B
v. State of Punjab, [1983) 2 SCC 454 and Gopal Vinayak Godse v. State of
Maharashtra, [1961) 3 SCR 440, relied on.

       2. The reasons given by the Government, are palpably irrelevant or
devoid of substance. Firstly, the views of the witnesses who had been examined       C
in the case or the persons in the locality cannot detenpine 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 one's age one cannot say whether the convict          D
has still the 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            E
examined by the Government. (67-G-H; 68-A-B]

      The order made by the Government was quashed and the matter was
remitted to it again to examine the case of the petitioner in the light of what
has been stated earlier and the comments made in this order as to the grounds
upon which the Government refused to act on the report of the jail authorities
                                             0
                                                                                     F
and also to take note of the change in the law by enacting the West Bengal
Correctional Service Act XXXII of 1992 and to decide the matter afresh within
a period of three months. [68-C-D]

     CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Crl.) No. 110
of2000.                                                                              CJ
     (Under Article 32 of the Constitution of India.)

     B.S. Malik and Santosh Singh for the Petitioner.

     Altaf Ahmed, Additional Solicitor General, and Tara Chandra Sharma for          H
     64                      SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A the Respondent.
           The Judgment of the Cou1i was delivered by

          RAJENDRA BABU, J. This writ petition filed under Article 32 of the
    Constitution seeks for the release of the petitioner who is undergoing
B   imp!"isonment 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
                                                                                               ~
c         (a) From 25.6.1982 To 1.5.2000                 17           10              6
          including under trial period
          confinement.

          (b) Remissions earned or Govt.             5                8           29
          Remissions granted upto 31.12.1999
D         (c) Total sentence including           23                   7           5
          remissions

           The petitioner also claims that under Section 61(1) of the West Bengal
    Correctional Services Act XXXII of 1992, which on Presidential assent being
E given came to force with 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
F
          (i) Length of life imprisonment under               20              0            0
          the definition of punishment vide expla-
          nation is :
          (ii) Deduct the period of remission                  5           8          29
          earned or granted under section 58 or
G
          section 59
                                                              14           3

          (iii) Deduct the period of set off under             0           2           8
          section 428, CrPC 1973

H         (iv) Total amount of actual sentence the            14          0           24
      LIFE CONVICT LAXMAN NASKAR v. STA TE OF WEST BENGAL [RAJENDRA BABU, J.] 65

          petitioner herein was liable to undergo                                     A
                                                       DAYS      MONTHS YEAR
          (v) Sentence of the petitioner started          3         9        1982
          from· the date of his sentence on
          3.9.1982
          (vi) Add the amount actual sentence to        24         0         14       B
          be undergone from item (iii) above

          (vii) Date of Release on which the        27 that is,    9         1996
          Superintendent of jail was liable to     27th September,
          release the petitioner, rule 771 now      1996
          under section 61 (I) read with Rule                                         c
          571 in chapter XIII West Bengal
          Jail Code.

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

            "(l) 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 E
            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;                                            •F

            (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."
                                                                                      G

-          In Naib Singh"· State of Punjab, [1983] 2 SCC 454, it was noti;;ed that
    a distinction between 'imprisonment for life' and 'imprisonment for a term' has
    been maintained in 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     H
      66                       SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

 A 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 person's
 B    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
 C    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
D    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
E    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
F 'of the c.ase 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 earli~r. Thereafter,
    the Government constituted a Review Committee consisting of the following
G members to examine the matter and make a report thereof to the Court :-
           (I)   Home Secretary                            Chairman
           (2)   Judicial Secretary                        Convenor

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

H          (4)   Secretary Home (Jails) Department         Member

r·
      ..
 ~/
      LIFE CONVICT LAXMAN NASKAR v. STATE OF WEST BENGAL [RAJENDRA BABU, J.]         67

           (5)     D.G. & I.G. of Police, West Bengal        Member                        A
           (6)     Commissioner of Police, Calcutta          Member
           (7)     Chief Probation Officer                   Member
,.
          This Court also issued certain guidelines as to the basis on which a
     convict can be released prematurely and they are as under :                           B
             "l.     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.
                                                                                           c
             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 convict' s family."
                                                                                           D
            In the present case, the report of the jail authorities is in favour of the
     petitioner. However, the Review Committee constituted by the Government
     recommended to 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          E
     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                                                F

           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           G
     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    H
    68                      SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A the petitioner has reformed himself to a large extent. Secondly, by reason of
    one's 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
B   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.

          On the basis of the grounds stated above the Government could not
    have rejected the claim made by the petitioner. In the circumstances, we
C   quash the order made by the Government and 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 I 992 and to decide the matter afresh
D   within a period of three months from today. The writ petition is allowed
    accordingly. After issuing rule the same is made absolute.

    VM                                                           Petition allowed.




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