Roshan Ali The Principal Secretary to Government, Government of Odisha and others … v. …
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No.170 of 2022 Roshan Ali The Principal Secretary to Government, Government of Odisha and others ….. Vs. ….. Petitioner Ms.Geetanjali Majhi, Advocate Opposite Parties Mr.D.Nayak, AGA CORAM: JUSTICE S.TALAPATRA JUSTICE SAVITRI RATHO ORDER 18.01.2023 This matter is taken up through hybrid mode.
Legal Reasoning
Heard Ms. Geetanjali Majhi, learned counsel appearing for the Order No. 04. 1. 2. petitioner and also Mr.D.Nayak, learned Additional Government Advocate appearing for the State. 3. This is the second round of litigation. Earlier, the petitioner by filing a similar petition, had asked this Court to release him pre-maturely due to his health conditions. This Court having recorded his eligibility to be considered for premature release vide Resolution No.4817 – IVJ.7/08 (pt)/L dated 05.05.2010 had occasion to observe that Section 433-A of Cr.P.C. clearly provides that any convict who has been sentenced to suffer life imprisonment cannot be released from prison unless he has served at least 14 years of imprisonment. The said restriction can also be read into Section 433-A of Cr.P.C. Where death penalty is an option and a convict has been awarded life imprisonment, he cannot be considered Page 1 of 5 //2// for pre-mature release unless he has completed 14 years of active imprisonment. Hence, there cannot be any amount of doubt that had the petitioner not served minimum 14 years of imprisonment, his case could not have been considered. But the petitioner has served more than 18 years of active imprisonment. This Court had observed that the resolution dated 05.05.2010 has to be taken into consideration by the State Sentence Review Board. 4. The apex court in the case of the petitioner had extended his interim bail, may be in contemplation that he would be released pre- prematurely on appreciation of the relevant resolution. Be that as it may, the earlier writ petition being W.P. (CRL) No.142 of 2020 was disposed of by the judgment dated 13.09.2022 where this Court had clearly directed the State Sentence Review Board to re-consider the case of the petitioner within a period of one month from the date of receipt of the order and till a final decision is taken by the State Sentence Review Board, the petitioner shall continue to enjoy the interim bail as granted by the apex court. 5. In the 41st meeting of the State Sentence Review Board, held on 27.09.2022, the case of the petitioner was re-considered and rejected in terms of the resolution vide Odisha Gazette Notification No.1174 dated 19.04.2022. 6. Ms. Majhi, learned counsel has criticized this decision of the State Page 2 of 5 //3// Sentence Review Board stating that the said consideration is absolutely un-called for in view of the specific direction of this Court in the said judgment dated 13.09.2022. That apart, Ms.Majhi, learned counsel, having referred to the said resolution dated 19.04.2022 has drawn our attention to paragraph-7 (6) (c) wherein it has been stipulated as follows: “Regard shall also be given to various norms laid down and guidelines given by the Apex Court and the Orissa High Court in the matter of premature release of prisoners”. According to Ms. Majhi, learned counsel, by the judgment dated 13.09.2022, a clear observation was made that the resolution dated 05.05.2010 is a compilation of the resolution dated 26.09.2000 and the resolution dated 25.05.2005. Ms. Majhi, learned counsel has further submitted that even if the resolution dated 19.04.2022 had been properly considered, the petitioner would have been released prematurely. She has referred to a decision of the apex court in respect of application of which resolution would be applicable to the convict when there are more than one resolution - whether the resolution which was prevalent on the date of his conviction or the subsequent notification which was relevant on the date of consideration. Ms. Majhi has referred to the case in State of Haryana and others v. Jagdish reported in (2010) 4 SCC 216. In that decision the apex court has observed as follows: ....“54.State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, Page 3 of 5 //4// at the time of his conviction that his case for pre-mature 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 pre-mature release, he should be given benefit thereof.” The said decision has been re-stated in the case of Radheshyam Bhagwandas Shah @ Lala Vakil v. State of Gujarat and another reported in (2022) 8 SCC 552. In Radheshyam Bhagwandas Shah (supra), the apex court has observed that the law is well-settled that consideration of premature release will be made in terms of the policy that was prevalent on the date of conviction. It is apparent from the
Decision
impugned order dated 01.11.2022, under Annexure-3 to the writ petition, that the State Sentence Review Board did not consider the case of the petitioner in terms of the policy which is reflected in the resolution dated 25.05.2005, prevalent on the date of his conviction. According to us, the said policy is liberal and beneficial for the petitioner. 7. Mr. D.Nayak, learned Additional Government Advocate appearing for the State has submitted on instruction that the petitioner has suffered imprisonment for more than 20 years, and as such, he can be considered in both the categories as made under the Resolution dated 25.05.2005. Page 4 of 5 //5// 8. Having observed thus, we set aside the resolution of the State Sentence Review Board taken on 27.09.2022 and communicated to the petitioner by the Deputy Secretary to Government of Odisha, Law Department vide his letter dated 01.11.2022, under Annexure-3 to the writ petition. We direct that the petitioner’s case shall be considered in terms of the resolution dated 25.05.2005 forthwith, but not beyond 07 (seven) days from today. 9. In terms of the above observations and direction, the W.P.(CRL) is disposed of. 10. Urgent certified copy of this order be granted as per rules. 11. A copy of this order be supplied to Mr.Nayak, learned Additional Government Advocate in course of the day for onward transmission to the concerned Department. (S.Talapatra) Judge (Savitri Ratho) Judge Bichi Page 5 of 5