Criminal Appeal No. 271 of 2004 · The High Court
Case Details
IN THE HIGH COURT OF ORISSA, CUTTACK WPCRL No.127 of 2023 An application under Articles 226 & 227 of the Constitution of India. ---------------------------- Nilu @ Tarkeswar Kumar Choudhury … Petitioner -Versus- State of Orissa & Odisha … Opp. Parties For Petitioner For Opp. Parties - - Mr. Lalitendu Mishra Advocate Mr. Arupananda Das Addl. Govt. Advocate ---------------------------- P R E S E N T: THE HONOURABLE MR. JUSTICE S.K.SAHOO AND THE HONOURABLE MR. JUSTICE S.K. MISHRA --------------------------------------------------------------------------------------------------- Date of Hearing and Judgment: 13.02.2024 --------------------------------------------------------------------------------------------------- By the Bench: The famous quote of Oscar Wilde reads as follows:- “Every saint has a past and every sinner has a future.” [2] For certain offences committed on 09.10.2000, the petitioner who was found guilty and has remained in judicial custody for more than two decades and done a number of good works inside jail has knocked at the portals of this Court by filing this writ petition in the nature of Habeas Corpus challenging the communication dated 02.02.2023 made by the Deputy Inspector General of Prisons (Headquarters), Directorate of Prisons and Correctional Services, Bhubaneswar, in which his premature release proposal was rejected by the State Sentence Review Board in its 42nd meeting held on 13.01.2023 on the ground of ‘adverse report of the district authorities’. It appears that the petitioner Nilu @ Tarkeswar Kumar Choudhury, accused Gopal Kumar Mahakud along with three others faced trial in the Court of learned Additional Sessions Judge, Rourkela in S.T. No.118/45/2001 for the offences punishable under sections 302/34 of I.P.C., section 5 of the Explosive Substances Act read with section 34 of I.P.C., section 396 read with section 34 of I.P.C. and section 25 of the Arms Act read with section 34 of I.P.C. The learned trial Court vide judgment and order dated 17.07.2004, found the petitioner so also the co-accused persons guilty under section 396/34 of I.P.C., section 5 of the [3] Explosive Substances Act read with section 34 of I.P.C. and section 25 of the Arms Act read with section 34 of I.P.C. and sentenced each of them including the petitioner to undergo imprisonment for life and to pay fine of Rs.25,000/- (rupees twenty five thousand) each, in default, to suffer R.I. for further period of five years for the offence under sections 396/34 of I.P.C. and R.I. for three years under section 5 of the Explosive Substances Act read with section 34 of I.P.C. The petitioner preferred CRLA No.248 of 2004 before this Court challenging the judgment of the learned trial Court, which was dismissed vide judgment and order dated 23.12.2011. Needless to say that the Criminal Appeal No.271 of 2004 preferred by the co-convict, i.e., Gopal Kumar Mahakud, was also dismissed on the same day vide common judgment and order dated 23.12.2011. 2. In the writ petition, it is stated that the petitioner is languishing in the Sub-Jail, Rourkela, for the last twenty three years since 2000. The proposal for his premature release was rejected by the State Sentence Review Board on 02.12.2021 on the ground that the convict had spent more than twenty four years of imprisonment including remission and the convict along with four others committed dacoity in UCO Bank, Sector-5, [4] Rourkela, with murder of bank peon, namely, Ranjit Soren by exploding bomb. The proposal for premature release was once again rejected on 13.01.2023 on the ground of adverse report of the district authorities. It is further averred that the co-convict, Gopal Mahakud, who stands on the same footing like the petitioner, has been granted premature release by the concerned authorities, as per order dated 21.11.2019. Reliance has been placed on Rule 836 of Odisha Model Jail Manual, 2020, which prescribes the guidelines for premature release of the life convicts. It is further stated that non-consideration of the case of the petitioner by the opposite party no.2 for premature release is contrary to law and in violation of the norms and guidelines as stipulated by the State Government. It is further stated that the petitioner has already attained the age of 55 years and not having any adverse report while in jail and he has volunteered various activities in the Jail and was also a part of the para-legal volunteering, for which his case should have been considered for premature release. It has also been stated that the petitioner is well educated and is taking classes since last thirteen years in the jail and educating the convicts voluntarily and some of the convicts have completed their High School Certificate Examination in the meantime under his guidance. It is further stated that the appropriate Government has the authority to [5] commute the sentence as per the provisions prescribed under sections 432 and 433 of Cr.P.C. and Article 161 of the Constitution of India empowers the authority to commute the sentence. The rejection of the petition for premature release of the petitioner by the opposite parties is contrary to law. 3. When the matter was taken up on 25.09.2023 and we noticed the sole ground of rejection of premature release by the State Sentence Review Board, which was held on 13.01.2023, we made a query to the learned counsel for the State as to whether there is any rule framed or any scheme of remission or any guideline issued by the State Government on premature release of the convicts. Learned counsel for the State drew attention of this Court to the ”Guidelines for Premature Release, 2022 (hereinafter “2022 Guidelines”), which was published in the Extraordinary Gazette of Odisha dated 19.04.2022, wherein under clause no.6, categorization of prisoners for premature release has been made and it is stated that convicts, who have been imprisoned for life, interalia, in case like dacoity with murder, their cases for premature release would be considered after completion of twenty five years of incarceration. Since as per the averments taken in the writ petition, similarly situated [6] co-convict, namely, Gopal Kumar Mahakud was released prematurely prior to the completion of twenty five years of incarceration, we observed that the Government is not strictly following the provisions under clauses 6(a) to 6(e) of the 2022 Guidelines while considering the case of premature release in case of life convicts. Learned counsel for the State placed the written instruction dated 21.11.2022 received from the Superintendent of Police, Rourkela, and pointed out that the adverse report against the petitioner indicates that the Superintendent of Police, Rourkela, entrusted the enquiry to the Inspector-In-Charge of R.N. Pali Police Station on the proposal for premature release of the petitioner. The enquiry report submitted by the I.I.C. indicated that law and order problem could not be ruled out if the petitioner is released prematurely and there is apprehension that the petitioner, keeping personal grudge over the informant and his family members, and that the petitioner might not lead a honest livelihood.
Legal Reasoning
We made a query to the learned counsel for the State as to whether copy of the enquiry report of the Inspector-In- Charge of R.N. Pali Police Station was served on the petitioner to have his say in the matter and whether the petitioner was given [7] an opportunity of hearing on the adverse report, learned counsel for the State took time to obtain instruction in that respect. 4. When the matter was taken up on 13.11.2023, learned counsel for the State, by fling counter affidavit, submitted that there is no provision in the 2022 Guidelines to supply copy of the enquiry report to the convict and to give an opportunity of hearing, for which the enquiry report submitted by the Inspector-In-Charge, R.N.Pali Police Station has not been supplied to the petitioner and no opportunity of hearing was given to him. 5. Learned counsel for the State filed counter affidavit, paragraphs-5, 7, 8, 9, 10, 11 & 12 of which read as hereunder:- “5. That in reply to the averments made in Paragraphs 3 and 5, it is humbly submitted that the petitioner is actually in custody for 22 years on the date of submission of the proposal of premature release. The copy of the custody certificate is annexed herewith and marked as Annexure-A/3. xx xx xx xx xx 7. That in reply to the averments made in Paragraphs 6 and 7, it is humbly submitted that the proposal of premature release of the petitioner has been rejected on 13.01.2023 on [8] the basis of the adverse report of the District Authorities of Sundargarh vide letter NO.48021 dated 13.12.2022 and the report of the Superintendent of Police, Rourkela vide letter dated 21.11.2022. That law and order problems cannot be ruled out if the petitioner is released on premature release. The copy of the letter of District Authorities, Sunargarh vide letter No.48021 dated 13.12.2022 and copy of the letter of Superintendent of Police, Rourkela dated 22.11.2022 is enclosed herewith and marked as Annexures-B/3 & C/3 respectively. 8. That in reply to the averments made in Para-
Decision
8 of the writ petition, it is humbly submitted that the co-accused Gopal Gouda has been granted premature release on 21.11.2019 as per the guidelines issued by the Law Department Resolution No.4817 dated 05.05.2010. The copy of the said resolution No.4817 dated 05.05.2010 is annexed herewith and marked as Annexure- D/3. It is humbly submitted that the present petitioner proposal of premature release rejected on 13.01.2023 at that time new Guideline of the Law Department vide Resolution No.4375 dated 19.04.2022 has been issued. The copy of Resolution No.4375 dated 19.04.2022 is enclosed herewith and marked as Annexure-E/3. [9] 9. That in reply to the averments made in Paragraphs-9 to 16, it is humbly submitted that at the time of the consideration of the proposal of premature release of the petitioner, the new Guideline of the Law Department dated 19.04.2022 has been issued for premature release of the life convicts and the petitioner proposal has been considered following the new guideline. 10. That it is humbly submitted that the offence committed by the petitioner (dacoity with murder of Govt. servant on duty) comes under the restrictive category of crime, under clause 6(1)(a) of the Resolution dated 19.04.2022 which prescribes that the petitioner is eligible for consideration of premature release on completion of 25 years of imprisonment. 11. That it is humbly submitted that the Government is strictly following the 2022 guidelines while considering the case of premature release in case of the life convicts mentioned in Clause-6(1)(a) to (e). 12. That it is humbly submitted that there is no such provisions in 2022 guidelines to supply copy of enquiry report to the convict and also no such guideline to give an opportunity of hearing for which the enquiry report of Inspector-in- Charge, Raghunathpali Police Station has not [10] been supplied to the petitioner and no opportunity of hearing has been done.” 6. A rejoinder affidavit has been filed by the petitioner in response to the counter filed by the opposite parties, paragraphs-6, 7, 8 & 14 of which read as hereunder:- “6. That, it is humbly replied herewith, as per the resolution under Annexure-E/3 in the Counter Affidavit, as relied by the Opp. Parties that the circular/guideline of Law Department, Odisha U/s.7(4)(b) of the guidelines for premature release, 2022, the S.P., Rourkela has not complied the above guideline and mechanically replied the report of IIC, Raghunath Palli, P.S. and without application of mind, is just made copy paste of the same report of IIC, Raghunath Palli, P.S. and not in favour of the premature release of the prisoner. For kind perusal of this Hon’ble Court, the relevant provision of the resolution is quoted hereunder : xx xx xx xx xx However, the Superintendent of Police, Rourkela has not followed the guidelines for premature release, 2022 by not giving cogent reasons and satisfactory materials which are showing that, there is an apprehension of danger over the Complainant and his family members by the [11] petitioner (Convict). The S.P., Rourkela made a final report without any further enquiry on the report which was presented by the IIC, Raghunathpalli P.S. and send to the D.M., Sundargarh. 7. That, it is humbly submitted here that, the complainant then was the bank manager at the time of the incident. The complainant is must be on superannuation who may not be residing since few years in the same place. The enquiry report of IIC, Raghunathpalli is silent on it. So, it is crystal clear that the IIC, as well as the S.P. have not thoroughly checked up and enquired about the whereabouts of the informant of the original case. It is also incorrect fact that the complainant may not be a local person and there is an apprehension of danger to his life. Hence the report is disbelieved. 8. That in reply to the averments made in paragraph No.8 of the counter affidavit, it is humbly submitted that the premature release of the co-convict namely Gopal Mahakud on 21.11.2019 was issued as per the guidelines of the Law Department Resolution No.4817 dated 05.05.2010 and the premature release of the present petitioner was rejected on the basis of the new guidelines of the Law Department Resolution No.4375 dated 09.04.2022. [12] However, if one of the co-convict arising out of the same case, is released on premature release on basis of a particular set of guidelines, the premature release of the other convict of the same case should have also been considered under the same set of guidelines. The guidelines under which the co-convict Gopal Mahakud was released prematurely should have a prospective effect for consideration of the premature release of the present petitioner. The natural justice should prevail and the authorities should have considered the case of the considered favourably.” 14. That, in reply to the averments made in paragraph No.12 of the counter affidavit, it is humbly submitted that, even though there are no specific provisions in the 2022 guidelines to supply copy of inquiry report to the convict and also to give an opportunity of hearing to the convict, it is a well recognized principle of natural justice and not just an empty formality that, when an officer /person is contemplating any adverse decision against a person, the person so concerned should be given an opportunity of hearing and has a right to be informed about the decision contemplated against him. So the natural justice should have been followed.” (Emphasis supplied) [13] 7. Learned counsel for the petitioner placed reliance on a decision of the Hon’ble Supreme Court in the case of Hitesh @ Bavko Shivshankar Dave -Vrs.- State of Gujarat reported in 2023 Live Law (SC) 72. In paragraph-4 of the said judgment, it is held that while determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalized to provide more beneficial terms, those should also be borne in mind. Learned counsel for the petitioner also placed reliance on the decision in Rajo @ Rajwa @ Rajendra Mandal vrs. State of Bihar & others reported in (2023) SCC Online SC 1068, in paragraphs-19, 20, 23 & 25 of which it is held as follows :- “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 [14] is empowered with in 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 subverts 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 [15] of the concerned court, keeping in mind the purpose and objective, of remission. xx xx xx xx xx 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. xx xx xx xx xx 25. The majority view in Sriharan (supra) and the minority view, had underlined the need to balance societal interests with the rights of the [16] convict (that in a given case, the sentence should not be unduly harsh, or excessive). The court acknowledged that it lies within the executive's domain to grant, or refuse premature release; however, such power would be guided, and the discretion informed by reason, stemming from appropriate rules. The minority view (of Lalit and Sapre JJ) had cautioned the court from making sentencing rigid: “73.[…]Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose Under Section 432/433 Code of Criminal Procedure. In our view Courts cannot and ought not deny to a prisoner the benefit to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel.” (Emphasis supplied) Learned counsel for the petitioner further placed reliance on a Single Bench decision of the Delhi High Court dated 2nd November 2023 passed in WP(CRL) No.2589/2023 & [17] CRL.M.A. No.28433/2033 (Hari Singh vrs. State of NCT of Delhi & others), in paragraphs-10, 12, 15, 16 & 17, it is held as follows:- “10. As per the Nominal Roll of the petitioner, he has been in custody since 08.04.1993. As on date, he has undergone almost 16 years and 5 months of incarceration and has earned a total remission of approximately 3 years and 9 months. The petitioner has been working as a ‘Lunger Sahayak’ and his overall jail conduct has been satisfactory. The petitioner has been granted bail/parole/furlough for a total of 26 times, and no punishment has been awarded to him since his incarceration. 12. The factors for consideration while deciding the application of a convict for premature release, as laid down by the Hon’ble Supreme Court in Laxman Naskar (supra) and which have been reiterated in State of Haryana v. Jagdish (2010) 4 SCC 216, are:- (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and [18] (v) the socio-economic condition of the convict’s family. xx xx xx xx xx 15. It is well established that when the convict has undergone substantial and long period of incarceration, the eventual purpose of imprisonment, in all circumstances, including the most serious offences, is reformative and not retributive. To deny the benefit of remission to a convict, solely on the basis of the nature of crime committed, and without appreciating other parameters including but not limited to the convict’s age, health and socio-economic condition and family relations, his post- conviction conduct, jail conduct etc., would not serve the ends of justice. It is of ultimate importance that the societal interest must be balanced with the rights of the convict and resorting to mechanical and clerical approach in dealing with the application of premature release where the convicts have undergone long periods of incarceration which will result in defeating the said purpose. 16. In view of the aforesaid, as also taking into consideration the factors as enumerated above as also that the reports of the Delhi Police and the Social Welfare Department, the post-prison record of the petitioner, period of incarceration, including his age, health, family conditions, jail [19] conduct and his potential for social engagement, have not been considered by the SRB at the time of rejection of the application of the petitioner, this Court is of the considered opinion that the present is a fit case to be remanded back to the DG (Prisons) and the SRB to reconsider the application of the petitioner for premature release afresh. 17. In the facts and circumstances and without adverting to the merits of the matter, the DG (Prisons) and Sentence Review Board is directed to reconsider the case of the petitioner for premature release and return a finding thereof with adequate reasoning, especially after taking into account all the five factors as laid down by the Hon’ble Supreme Court in Laxman Naskar (supra), within a period of three weeks with intimation of the same to the petitioner within a period of one week thereafter. (Emphasis supplied) Learned counsel for the petitioner further placed reliance on a decision of the Hon’ble Supreme Court in the case of Laxman Naskar (Life Convict) vrs. State of W.B. & another reported in (2000) 7 SCC 626, in paragraphs-6, 7 & 9, it is held as follows:- “6. This Court also issued certain guidelines as to the basis on which a convict can be released [20] prematurely and they are as under: (SCC p. 598, para 6) “(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.” 7. 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 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 [21] (3) that the incident in relation to which the crime had occurred was the sequel of the political feud affecting the society at large. xx xx xx xx xx 9. On the basis of the grounds stated above the Government could not have rejected the claim made by the petitioner. In the circumstances, we 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 32 of 1992 and to decide the matter afresh within a period of three months from today. The writ petition is allowed accordingly. After issuing rule the same is made absolute. 8. Learned counsel for the State submitted that in view of the decision of the Hon’ble Supreme Court in Hitesh (supra), the policy of the State Government on the date of conviction would have to be the determinative factor in determining the entitlement of a convict for premature release. Since the petitioner was convicted by the trial Court on 17.07.2004, the relevant Guideline, which was in vogue at that point of time, was [22] of 2000, wherein the convicts, who committed murder of public servant on duty and dacoity, was totally ineligible for premature release. However, in 2010, as per the Resolution dated 05.05.2010 of the Law Department, Government of Odisha, it was observed that certain categories of convicted persons undergoing life sentence would be entitled to be considered for premature release only after undergoing twenty years of incarceration including remission and the period of incarceration, inclusive of remission, even in such cases should not exceed twenty five years. The convicts, who have been imprisoned for life for committing murder with dacoity and murder of public servant on duty, were also included in the Guideline for consideration of their cases for premature release after undergoing imprisonment for twenty years. Subsequently, on 19th April, 2022, another Guideline came, wherein it is mentioned that while in other cases of life imprisonment, the premature release can be considered on completion of twenty years of incarceration including remission, but so far as the convicts, who have been imprisoned for life in case of dacoity with murder and murder of a public servant on duty, their cases will be considered on completion of twenty five years of incarceration. Learned counsel for the State submitted that the petitioner had not completed twenty five years of incarceration when case was [23] considered by the State Sentence Review Board and more over there was adverse report against him and the order of rejection dated 02.12.2021 was never challenged by the petitioner. Answering to the contentions raised, we find that the impugned order under challenge is dated 02.02.2023. The order dated 02.12.2021 of the State Sentence Review Board, which is annexed to the writ petition as Annexure-2, indicates that the petitioner had spent more than twenty four years of imprisonment, including remission. However, in the impugned order dated 02.02.2023, it is mentioned that the premature release proposals of the convicts, which were rejected by the State Sentence Review Board in its 42nd meeting held on 13.01.2023 on the ground as mentioned against each, can be placed before the State Sentence Review Board for re- consideration only after expiry of a period of one year from the date of last rejection order as per paragraph-8(4) of the Orissa Gazette Notification No.1174 dated 19.04.2022 and the ground of rejection was the adverse report of the district authorities. Since one year period has already elapsed in the meantime, the State Sentence Review Board has to consider the case of the petitioner in accordance with law. [24] Being directed by this Court, learned counsel for the State has produced the report from the Superintendent, Special Jail, Rourkela (Welfare Services) dated 08.02.2024, wherein it is mentioned as follows:- “Certified that life Convict No.1112/A Nilu @ Tarkeswar Kumar Choudhury S/.Late Sidheswar Choudhury aged about 55 years of Vill. Banposh, PS. Raghunathpali, Dist.Sundargarh, at present Vill. Banglatoli, Santra Colony, Panposh PS.Raghunathpali, Rourkeka, Dist.Sundargarh now confined in Special Jail, Rourkela since 16.11.2000. During his stay in this Jail, his attitude, behavior towards staff and other inmates is very satisfactory. Besides this he is also very disciplined, obedient and rule binded. For which he has been engaged to impart education to the illiterate inmates and also working as Para Legal Volunteer inside the Jail.” (Emphasis supplied) 9. In view of the foregoing discussions, since the present conduct of the petitioner is very satisfactory and he is leading a disciplined, obedient and rule-bound life in jail and he is engaged in imparting education to illiterate inmates and working as para-legal volunteer and since he has already completed the requirement of twenty five years of incarceration including the [25] period of remission, as per the 2022 Guidelines, the State Sentence Review Board shall consider his case afresh, without being influenced by the earlier rejection order, taking into consideration the report of the Superintendent, Special Jail as quoted above. We direct the entire exercise shall be completed within a period of two months from the date of communication of this judgment. 10. The writ petition is allowed to the extent as indicated above and is disposed of accordingly. 11. A copy of this judgment be handed over to the learned counsel for the State for onward communication to the authority concerned for compliance. ………………………… S. K. Sahoo, J. …………………………. S. K. Mishra, J. Orissa High Court, Cuttack The 13th February, 2024/M.K.Rout, A.R.-cum-Sr.Secy. Signature Not Verified Digitally Signed Signed by: MANOJ KUMAR ROUT Designation: A.R.-Cum-Sr. Secretary Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 23-Feb-2024 11:07:34