Allowed

Satya Parkash v. State of Hp and Others

Himachal Pradesh HC7 Sept 2020CWP/2729/2019

Case brief

AI extract

What is this about?

Petitioner, convicted of murder and other offences, filed a writ petition quashing the Sentence Review Board's order refusing premature release. The court held the Board failed to consider conduct and socio-economic factors, set aside the order, and entrusted the case for fresh consideration.

What did the court decide?

Order dated 8.7.2019 set aside; Additional District and Sessions Judge directed to consider the case afresh within one week.

Satya Parkash Vs State of Hp and… — Pension and Retirement Benefits | Himachal Pradesh HC (2020)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No.2729 of 2019 Date of Decision: 7.09.2020

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----------------------- Satya Parkash	------------------------------------------------------------- …… Petitioner versus
State of H.P. & others -------------------------------	…….Respondents ------------------------------------------------------------
Hon’ble Mr. Justice San *Whether approved for* -------------------------------	deep Sharma, Judge. *report? Yes.* ------------------------------------------------------------
For the Petitioner	: Mr. Sarthak Mehta, Advocate, through video-conferencing.
For the Respondents -------------------------------	: Mr. Sudhir Bhatnagar, Additional Advocate General, through video-conferencing. ------------------------------------------------------------

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Sandeep Sharma, Judge (oral)

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By way of instant petition filed under Article 226 of the Constitution of India, prayer has been made on behalf of the petitioner for quashing of order dated 8.7.2019, whereby Himachal Pradesh State Sentence Review Board (hereinafter referred to as the ‘Review Board’) has declined to recommend his premature release. 2. Precisely, the facts of the case as emerge from the record are that the petitioner was convicted by learned Additional District & Sessions Judge, Mandi, H.P., under Sections 302, 307 of IPC

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and Section 27 of the Arms Act vide judgment dated 20.9.1999.

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Pursuant to aforesaid judgment, petitioner is undergoing life imprisonment at Model Central Jail, Kanda, Shimla, District Shimla,

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H.P. In the year, 2015, petitioner-convict after having spent more

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than 16 years in jail approached the respondent-State for remission of sentence, but till date, aforesaid prayer of him has been not acceded to. Now, when the petitioner has already spent more than 20 years in jail, Review Board without there being any cogent and convincing reason has refused to recommend the premature release of the petitioner vide order dated 8.7.2019 and as such, petitioner is compelled to approach this Court in the instant proceedings, praying therein for following main reliefs:-

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“That writ in the nature Habeas Corpus or Certiorari may kindly be issued for quashing the minutes of meeting of the Himachal Pradesh State Sentence Review Board held on 08/08/2019 and information letter vide dated 31/08/2019 vide Annexure P-6 qua the petitioner dealt at Sr. No.1, not to recommend his premature release and further Himachal Pradesh State Sentence Review Board may kindly be directed to release the petitioner prematurely forthwith and justice be done.”

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Perusal of order dated 8^th July, 2019 passed by the

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Review Board, wherein case of the petitioner has been specifically dealt with at Sr. No.15, reveals that though all the District authorities concerned recommended premature release of petitioner, but since learned Additional District & Sessions Judge-I, Mandi did not give specific opinion qua premature release in favour of the petitioner

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and merely stated in his report that “ if the Director General of

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Prisons & Correctional Services, Himachal Pradesh and its Board, think it appropriate to release the prisoner Premature i.e without undergoing the life imprisonment, Board may release the convict premature sentence,” Review Board rejected the case of the petitioner on the ground that he has committed serious crime of murder and in the event of his being released, he may again indulge in such crime and as such, his prayer for remission of sentence

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cannot be accepted.

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It is quite apparent from the decision of the Review Board that the opinion of learned Additional District & Sessions Judge-I, Mandi, weighed heavily with board while rejecting the prayer of the petitioner for remission of sentence, but if communication dated 3.11.2017 sent by Additional District & Sessions Judge-I, Mandi in reference to letter dated 29.8.2017 sent by Dy. Superintendent Jail, Model Central Jail, Kanda, Shimla, H.P., is perused, it nowhere suggests that learned Additional District & Sessions Judge-I, Mandi has appreciated the facts and circumstances in which petitioner unfortunately committed offence under Section 302, 307 of IPC and Section 27 of Arms Act, rather he simply having taken note of the fact that petitioner committed offence under section 302 and 307 of IPC and under Section 27 of Arms Act,

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proceeded to conclude that since the petitioner stands convicted under aforesaid provisions of law, he does not deserves premature release.

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Needless to say, authority concerned while considering the prayer, if any, made on behalf of the convict for remission of sentence is expected to consider various factors while recommending /refusing remission of sentence. Authority is not only required to see nature of offence committed by the person, rather it is expected to see conduct of the convict while he was in jail during his imprisonment. Since District authorities concerned having taken note of various factors, especially report of Jail Superintendent, recommended the case of the petitioner for remission of sentence, learned Additional District and Sessions Judge ought to have considered the matter in broad spectrum. Learned Additional District and Sessions Judge, Mandi, while considering prayer for remission of sentence made on behalf of the petitioner ought not have swayed with the nature of the offence allegedly committed by the convict, because for that he /she already stands convicted, rather prayer for remission of sentence is to be considered on other various factors as

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well i.e. (i) conduct of the accused while in Jail (ii) his /her social economic condition (iii) period spent by him/her in jail and lastly the

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possibility of his/her again indulging in the crime. However, in the

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case at hand, learned Additional Sessions Judge-I, Mandi appears to have dealt with the matter very casually and instead of shouldering responsibility, if any, has attempted to pass the buck to the Director General of Prisons & Correctional Services, Himachal Pradesh, especially by stating in his letter that “ convict has committed offence under Section 302,307 of IPC and Section 27 of Arms Act, and as such, he does not deserve to be released premature, but if the Board

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thinks it proper to release him prematurely, it may release the convict/petitioner .”

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If the order passed by Review Board is perused, it while

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rejecting the case of the petitioner, has completely ignored the recommendations made by other authorities and solely relied upon the opinion rendered by the Additional District and Sessions Judge, Mandi, which otherwise by no stretch of imagination can be said to be an opinion. While rejecting petitioner’s request for grant of remission, learned Additional District and Sessions Judge has described the offences as serious crime, unfortunately without going

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into the facts and circumstances of the case, in which petitioner

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committed offence under Section 302 of IPC. True it is that petitioner stands convicted and sentenced for life for having

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committed offence punishable under Section 302 IPC, but authorities

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including Additional District and Sessions Judge while considering prayer for remission of sentence is/was expected to take note of the fact that convict has already spent more than 20 years in jail and during this period, his conduct has been found to be good. Probation Officer as well as Jail Superintendant in their respective reports have nowhere given any adverse comments against the petitioner-convict.

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According to the Jail Manual, case of premature release

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is to be considered provided the convict has maintained good

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conduct in jail and for this purpose good conduct means that he has not committed any jail offence for a period of five years prior to the date of his eligibility for consideration for release. While considering premature release, authorities are to be satisfied that in the event of release of the convict, there is no likelihood of the convict committing a crime of breach of peace in any way connected with the circumstances of the crime for which he was originally convicted.

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In the case at hand, there is no adverse report against the petitioner

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–convict and as such, learned Additional Advocate General before responding to the communication sent to him by the Review Board ought to have taken note of all the aforesaid factors. No doubt, the

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magnitude, brutality and gravity of the offence for which the convict

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was sentenced to life imprisonment are also to be taken into consideration but that does not mean that case of the person undergoing life sentence cannot be considered for pre-mature release. Though, there is no specific reason, if any, placed on record by the Review Board while rejecting the case of the petitioner, but since same is based upon so called opinion rendered by the learned Additional District and Sessions Judge, Mandi, it can be presumed that petitioner’s case has been rejected merely on the ground that he has committed heinous crime, but as has been observed herein above, person allegedly having committed heinous crime is not estopped from claiming remission of sentence, especially when his conduct and behavior in jail is /was found to be good. Review Board has discretion to release a convict at an appropriate time in all cases considering circumstances in which the crime was committed and other relevant factors like a) whether the convict has lost his potential for committing crime considering his overall conduct; b) the possibility of reclaiming the convict as a useful member of the society; and c) Socio-economic condition of the convict’s family. It is quite apparent from the material available on record that case of the petitioner has been recommended favorably for premature release

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taking into consideration his conduct inside the jail and all other circumstances by the Jail Superintendant and Chief Probation Officer. Chief Probation Officer, in its communication dated 12.5.2015 has submitted that life Convict Satya Prakash has an old father, wife and daughter in his family. Life Convict’s father is 80 years old, who is not able to earn livelihood. Most importantly, in the aforesaid report, Chief Probation officer has reported that economic condition of Satya Prakash is not good and whole of his land is lying barren as there is none to look after the same. Besides above, it has been reported that there is no source of income in the family of life convict. As per statement of local Pradhan, ward member and father of the convict, his behavior is cordial having good equation with the people of the area.

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True, it is that Review Board before recommending the

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case is also required to take into consideration recommendation made by the Superintendent of Police and Chief Probation Officer besides having opinion of Judge, who had awarded the punishment, but while considering prayer for remission of sentence it is also

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required to take into consideration general principles of amnesty/remission of the sentence as laid down by the State Government or by the courts. The paramount consideration before

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the Review Board should be the welfare of the prisoner and the

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society at large. Ordinarily, premature release of the prisoner should not be declined on the ground that authorities recommended his/her release on certain farfetched and hypothetical premises, rather board is required to take into account the circumstances in which the offence was committed by the prisoner and whether he has the probability and is likely to commit similar or other offence

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again, if he is granted remission of sentence.

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Their Lordships of the Hon’ble Supreme Court in

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Laxman Naskar vs. Union of India and others, AIR 2000 SC 986 have held that rejecting prayer for premature release on extraneous consideration, i.e. on ground of objections by police is improper. Their Lordships have held as under:

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“3. It is settled position of law that life sentence is nothing less than lifelong imprisonment and by earning remissions a life convict does not acquire a right to be released prematurely; but if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution and if according to the Government policy instructions in force at the relevant time the life convict has already undergone the sentence for the period mentioned in the policy instructions, then the only right which a life convict can be said to have acquired is the right to have his case put up by the prison authorities in time before the authorities concerned for considering exercise of power under Article 161 of the Constitution. When an authority is

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called upon to exercise its powers under Article 161 of the Constitution that will have to be done consistently with the legal position and the Government policy/instructions prevalent at that time.

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All the "life convicts" before us have completed continued detention of 20 years including remission earned. From the counter filed by the State, we find that the Government has also framed guidelines for this purpose. To consider the prayer for premature release of the "life convicts" , police report was called for on the following points :-

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(i) Whether the offence is an individual act of crime without affecting the society at large;

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(ii) Whether there is any chance of future recurrence of committing crime;

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(iii) Whether the convict has lost his potentiality in committing crime; (iv) Whether there is any fruitful purpose of confining this convict any more;

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(v) Socio-economic condition of the convict's family.

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Though the police report did not cover all the above points, the prayer of "life convicts" for premature release was rejected mainly on the ground of objections by police. The police had only reported about the chances of the petitioners committing crime again. It becomes apparent from the record that the Government did not consider the prayer for premature release as per the rules. The Government did not pay sufficient attention to the conduct-record of the petitioners while in jail nor did it consider whether they had lost their potentiality in committing crime. The relevant aspect, namely, that there is no fruitful purpose in confining them any more was also not considered nor the socio economic conditions of the convict's family were taken into account. Thus the orders of the Government suffer from infirmities and are liable to be quashed.”

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Learned Additional District and Sessions Judge, while

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responding to the communication sent by the Review Board has not

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bothered to consider the aforesaid aspects of the matter. Petitioner,

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who is 50 years of old, has already spent more than 20 years in jail in

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connection with offence allegedly committed by him meaning thereby, he has already lost his prime years of life, but keeping in view his age i.e. 50 years, he still can be said to have the potential and zeal to do something in the society if he is given chance. Besides above, petitioner, who on account of his being in jail was unable to attend/take care of his family, would be able to do something for his family as well, which is otherwise in pitiable condition, if case of the

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petitioner is considered sympathetically by the authorities concerned. Otherwise also, perusal of impugned order dated 8.7.2019, reveals that Review Board in similar cases where convicts

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aged between 50 to 60 years having committed offence under Section 302 IPC have been granted remission and as such, decision of Review Board appears to be arbitrary and discriminatory.

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Consequently, in view of above, this Court finds merit in

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the present petition and accordingly, same is allowed and order dated 8.7.2019 is set-aside. Learned Additional District and Sessions

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Judge-I, Mandi, is directed to consider and decide the case of the petitioner afresh expeditiously within a period of one week from the date of receipt of the copy of the instant judgment. Needless to say,

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learned Additional District and Sessions Judge shall pass speaking

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order while considering the case of the petitioner afresh. Review

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Board after having received fresh opinion of Additional District and Sessions judge, Mandi, would consider the case of the petitioner afresh within a period of two weeks thereafter. Registry to apprise the learned Additional District and Sessions Judge with regard to passing of the instant order, enabling him to do the needful well within the stipulated time. Learned Additional Advocate general undertakes to apprise the Review Board with regard to passing of the instant order so that necessary action is taken expeditiously after the receipt of opinion from the Additional District and Sessions Judge. In the aforesaid terms, present petition stands disposed of, so also

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pending applications, if any.

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(Sandeep Sharma) September 7, 2020 Judge

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(shankar)

Satya Parkash v. State of Hp and Others

Case brief

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Satya Parkash v. State of Hp and Others

Case brief

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