Ishwar Chand Rai Vs The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna, Bihar

“I. For issuance of an appropriate writ in the nature of CERTIORARI for quashing the decision of the State Remission Board dated 03.05.2018 so far it relates to the petitioner, whereby and whereunder the State

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Remission Board has been pleased to reject the proposal of the petitioner for his pre-mature release inter-alia on the ground that under clause (iv) (kha) of Notification No. 3106 dated 10.12.2002, the petitioner is not eligible for grant of pre-mature release as also there is unfavourable opinion of the Presiding Judge.

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II. For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to consider the case of the petitioner for pre-mature release and grant him on the ground that now the petitioner has already completed more than 24 years of sentence with remission and more than 20 ½ years of physical incarceration, taking into consideration that the case of the petitioner has been covered under 1984 Policy prevailing at the relevant time of his conviction since the petitioner is the convict of 2005 and almost all the prescribed Authorities recommended for his premature release except Presiding Judge.

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III. For issuance of any other appropriate writ/writs, order/orders direction/directions for which the writ petitioner would be entitled under the facts and circumstances of the case.”

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Brief Facts of the Case

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3. It is the case of the petitioner that he has been convicted and sentenced to death vide judgment and order dated 02.06.2005 passed by learned First Additional District and Sessions Judge, Buxar in Sessions Trial No. 32 of 2002 arising out of Rajpur P.S. Case No. 52 of 2001. The said conviction was

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converted into life sentence in Death Reference No. 4 of 2005 and Cr. Appeal No. 430 of 2005 (DB) vide order dated 28.03.2008 passed by Hon’ble Division Bench of this Court. The petitioner is in judicial custody since 20.07.2001 and has completed more than 20 years with remission.

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4. Learned counsel submits that earlier, the petitioner had moved this Court in Cr.WJC No. 3101 of 2018 and the same was disposed of with an observation on 22.01.2019 with liberty to the petitioner to question the correctness of the decision of the State Sentence Remission Board (hereinafter referred to as the ‘Board’/ ‘Remission Board’) taken in its meeting held on 03^rd May, 2018 whereby the Board had refused to recommend the name of the petitioner for premature release.

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5. From Annexure ‘4’ to the writ application, it would appear that the Remission Board had earlier rejected the request of the petitioner for his premature release on the ground that in terms of Clause (iv) (kha) of the Home Department (Special) Notification No. 3106 dated 10.12.2002, the prisoners who have been found guilty of committing murder in a planned murder shall not be eligible for consideration for premature release. It is this decision which has been sought to be challenged in the writ petition.

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6. It appears that the petitioner filed I.A. No. 1 of 2022 whereby and whereunder he brought on record a fresh order dated 27.08.2021 passed by the Remission Board by which once again, the request of the petitioner for premature release has been rejected on the same ground. When this writ application with I.A. No. 1 of 2022 was taken for consideration on 22.12.2022 along with an analogous writ petition, learned counsel for the parties requested for an adjournment to enable them to file their respective written notes of argument.

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7. Learned counsel for the petitioner has filed short notes with judgment, however, learned counsel for the State has made oral submissions in course of hearing. With the consent of the parties, the writ application and I.A. No. 1 of 2022 have been taken together for consideration.

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8. Learned counsel for the petitioner has relied upon the judgment of the Hon’ble Division Bench rendered in the case of Ram Babu Singh Vs. The State of Bihar and others in Cr.WJC No. 2224 of 2017 wherein the petitioner had been convicted for the offence punishable under Section 302 IPC and was ordered to suffer the sentence of rigorous imprisonment for life vide judgment of conviction and sentence dated 29.02.2000. In the said case, the Hon’ble Division Bench referred its earlier judgment in

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the case of Ravi Pratap Mishra Vs. The State of Bihar and Others reported in 2017 (2) PLJR 201 in which it has been held that the report of any form which is required for Remission Board for coming to a just and proper conclusion would not be binding upon it.

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9. Learned counsel submits that in the case of Surendra Mahto Vs. The State of Bihar and Others reported in 2021 (4) PLJR 393 , this Court has thoroughly examined policy as contained in Notification No. 3106 dated 10.12.2002 and in ultimate analysis held that the said policy could not be given effect to before 25.09.2007 as for the first time, the Remission Board was constituted vide notification dated 09.04.2018. In paragraph ‘46’ of the judgment in case of Surendra Mahto (Supra), this Court has interalia held as under:-

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“ 46. … this Court unhesitatingly comes to a conclusion that the notification bearing no. 3106 dated 10.12.2002 was not acted upon immediately as it was not workable and the petitioner is correct in saying that for the first time the Remission Board was constituted vide Annexure ‘P-9’….”

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10. Learned counsel for the petitioner submits that the petitioner has completed 20 years with remission and more than 14 years in actual custody. The rejection of the prayer of the appellant

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for his premature release on the ground applying clause iv (kha) of the Notification No. 3106 dated 10.12.2002 is only an arbitrary exercise of power and it is not in tune with the judgment of the Hon’ble Division Bench of this Court in the case of Munna Singh @ Ajay Sharma versus the State of Bihar and Others (Cr.WJC No. 722 of 2023) reported in 2024 SCC Online Pat 894.

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Stand of the State

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11. Mr. P.N. Sharma, learned AC to AG appears for the State and admits at the Bar that the case of the petitioner would be covered by the judgment of this Court rendered in the case of Munna Singh (supra) and clause (iv) (kha) of the Notification dated 10.12.2002 would not be applicable in view of the judicial pronouncements on the subject.

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Consideration

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12. At first instance, this Court would take note of clause (iv)(kha) of the notification no. 3106 dated 10.12.2002 as under:-

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“(iv) ¼[k½ oSls canh] tks iwoZ fparu fd;s x;s fo’k;ksa ,oa lqfu;ksftr <ax ls gR;k,¡ vk;ksftr djus ds fy, fl)nks’k gksA”

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13. The order dated 27.08.2021 (Annexure ‘B’ to the counter affidavit) passed by the Remission Board relating to the petitioner reads as under:-

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“izkscs”ku inkf/kdkjh dk vuqdwy izfrosnu] ijUrq iqfyl v/kh{kd@ ihBklhu U;k;k/kh”k dk izfrdwy izfrosnuA

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2- x`g ¼fo”ks’k½ foHkkx] fcgkj dh vf/klwpuk la[;k 3106 fnukad 10-12-2002 dh dafMdk& ¼iv½¼[k½ esa izko/kkfur gS fd oSls canh tks iwoZ fparu fd, x, fo’k;ksa ,oa lqfu;ksftr <ax ls gR;k,¡ vk;ksftr djus ds fy, fl)nks’k gks] ,sls canh le; iwoZ fjgkbZ ds fy, fopkj ;ksX; ugha gks ldsaxsA

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3- rn~vkyksd esa vle; dkjk eqfDr dk izLrko vLohd`r fd;k tkrk gSA”

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14. On perusal of the judgment of the Hon’ble Division Bench in Death Reference No. 4 of 2005 and Criminal Appeal No. 430 of 2005 (DB), this Court finds that the Hon’ble Division Bench has though recorded that the manner of occurrence appears savage and brutal but at the same time, the Hon’ble Division Bench has discussed a situation in the family on account of distribution of family properties and has opined that the sentence of rigorous imprisonment for life upon the appellant along with the sentence of fine of Rs. 50,000/- shall meet the ends of justice. The Hon’ble Division Bench, accordingly, modified the conviction and sentence of the appellant. There is no finding in the judgment of the Hon’ble Division Bench that the appellant had committed the offence with preconcert of mind and in a planned manner. It is

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evident that Clause (iv)(kha) of Notification No. 3106 dated 10.12.2002 would apply only in those cases where the prisoners are guilty of commission of murder in a planned manner.

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15. In I.A. No. 1 of 2022, the order dated 27.08.2021 passed by the Remission Board has been enclosed. A perusal thereof would show that the case of the petitioner for premature release has been rejected after recording that the report of the Probationer Officer is favourable but there is an adverse report from the Superintendent of Police/Presiding Officer of the court. Thereafter, referring to Clause (iv)(kha) of the Notification, the case of the petitioner for premature release has been rejected.

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16. The report of the Superintendent of Police and the Presiding Officer of the court are not before this Court. It would, however, be worth mentioning that in the case of Laxman Naskar Vs. Union of Indian and Others reported in (2002) 2 SCC 595 , the Hon’ble Supreme Court has observed that to consider the prayer for premature release, the police report be called for on the following points:-

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(i) Whether the offence is an individual act of

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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

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in committing crime.

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17. There is nothing on the record that the police report covered all the above points.

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18. Recently, in the case of Rajo @ Rajwa @ Rajendra Mandal Vs. The State of Bihar and others reported in 2023 INSC 771 (Writ Petition (Criminal) No(s). 252/2023) , the Hon’ble Supreme Court has opined that so far as the opinion of the learned Presiding Officer of the court is concerned, the same is not binding upon the Remission Board. This Court has, earlier, in the case of Surendra Mahto (Supra) taken note of the similar situation where the report of the Probation Officer was favourable to the prisoner but the report of the Presiding Judge was adverse. This Court has held that in its opinion, the learned Presiding Judge had completely failed to understand the decision of the Hon’ble Supreme Court on the subject. In the case of Rajo @ Rajwa @

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Rajendra Mandal (supra), the Hon’ble Supreme Court has held as under:-

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“ 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

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decision on a remission application, unsustainable. The discretion that the executive 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 subvert the concept of remission - as a reward and incentive encouraging actions and behaviour geared towards reformation - in a modern legal system.

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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,

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keeping in mind the purpose and objective, of remission.”

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19. Having regard to the materials available on the record and the observations of this Court hereinabove based on the judicial pronouncements as also the stand of the learned AC to AG for the State, this Court is of the considered opinion that the impugned order cannot sustain the test of law and is liable to be set aside.

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20. Accordingly, this Court sets aside the decision of the Remission Board dated 27.08.2021 as contained in Annexure ‘B’ to the counter affidavit of the State and remits the matter to the Board to consider the case of the petitioner afresh keeping in view the judicial pronouncements on the subject which have already been discussed hereinabove. Such decision shall be taken within a period of two months from the date of receipt/communication of a copy of this order.

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21. This writ application stands disposed of accordingly.

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(Rajeev Ranjan Prasad, J)

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lekhi/-

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AFR/NAFR
CAV DATE	15.07.2024
Uploading Date	31.08.2024
Transmission Date	31.08.2024

Ishwar Chand Rai v. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna, Bihar

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Ishwar Chand Rai v. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna, Bihar

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