IN THE HIGH COURT OF JUDICATURE AT PATNA
CR. WJC No.1054 of 2010
1. RAMASHRAY SHARMA SON OF LATE TRIVENI
SINGH
2. RAM KISHORE SHARMA SON OF LATE TRIVENI
SINGH
ALL RESIDENT OF VILLAGE AND POLICE STATION-
MOKAMA (MOLDIAR TOLA),DISTRICT-PATNA-----------
- PETITIONERS
.
Versus
THE STATE OF BIHAR & ORS .
For the petitioners:- Mr. Manish Kumar No.2,Advocate
For the State:- Mr. Siddharth Prasad, AC to AAG 9
10 25 .01.2011 Two petitioners Ramashray Sharma
and Ram Kishore Sharma have filed this
application for directing the respondent
authorities to release them from the custody
in the light of notification of the State of
Bihar, Department of Home (Special) dated
10.12.2002 contained in Memo No. 3106,
since they have already remained in custody
for a period, which makes them entitled for
premature release from custody, in terms of
Clause (iii) sub Clause (Gha) and (ch) of the
Notification.
Petitioners were named as accused
2
in Mokama P.S. case No. 23 of 1976 and
faced trial vide Sessions Trial No. 92 of 1983.
They were convicted by the Additional
Sessions Judge Xth, Patna under Section 302
of the Indian Penal Code vide judgment and
order dated 26.3.1987 and sentenced them
R.I. for life. Criminal Appeal No. 120 of 1987
preferred by them against the judgment of
conviction was dismissed by the High Court
vide judgment dated 12.5.2000 and the Apex
Court also dismissed SLP No. 2773 of 2000
preferred by them, against their conviction
by the Trial Court and the High Court.
Petitioners‟ case is that a duly
constituted Medical Board as per direction of
the State Government, for assessing the age
of prisoners, with an object of their
premature release, had examined these two
petitioners and as on 23.5.2007 their age
was assessed as 73 and 75 years
respectively. Now they are more than 78-80
3
years. They have remained in custody with
remission for thirteen years. Petitioners are
claiming their entitlement for premature
release in the light of notification dated
10.12.2002 issued under the signature of
Home Commissioner, State of Bihar, wherein
a guideline has issued for release of
prisoners completing the sentence under
different heads. Clause (iii) of this
notification relates to the entitlement of
convicts for premature release, on
recommendation to the State Government by
the State remission Board. Clause (iii) (Ka)
provides that each convict, male or female
who is undergoing life imprisonment and
whosoever comes under the provision of
section 433 (A) Cr.P.C. will be entitled for
consideration of their premature release,
after remaining in custody for 14 years,
without remission. Clause (iii) (gha) provides
that convict undergoing life imprisonment,
4
who have completed 65 years of age will be
entitled for premature release if remained in
custody for seven years with remission.
Clause (iii) (ch) provides that convicts
undergoing life imprisonment, who are
suffering from disease like cancer, aids or
incurable disease of Kidney, Heart and
respiratory system or any infectious disease
for which the Medical Board has certified, will
be entitled for premature release after
remaining in custody for actual five years or
with remission 7 years.
Petitioner no.1 Ramashray Sharma
and petitioner No.2 Ram Kishore Sharma
both are claiming that they are suffering
from incurable heart disease. In order to
corroborate this claim they have annexed
medical certificates of Indira Gandhi Institute
of Cardiology. They also have stated that
they are more than 65 years presently 78
to 80 years, as such their case comes well
5
within Sub-Clause (Gha) and (ch) of clause
(iii) of the notification, relating to premature
release.
Counsel appearing for the petitioners
has submitted that in view of the notification
as well as Full Bench decision of this Court
in case of Umesh Prasad Singh Vs. State of
Bihar reported in 1984 PLJR 724, petitioners
are entitled for their premature release as
they have remained in custody for more than
seven years with remission.
Counter affidavit has been filed on
behalf of the Inspector General (Prison)
Bihar, Patna. So far as the factual matrix
regarding petitioners‟ conviction and their
period in custody is concerned, it has not
been disputed. However, it has been stated
that the notification of the Government
relating to remission and premature release
of convicts remaining in custody for longer
period on account of their conviction for
6
offences in which the life and death sentence
are awarded, has been amended by State
Government vide notification dated
10.12.2002 contained in Memo no. 3106.
The State Government in exercise of powers
conferred under Section 59 of Bihar Jail
Manual has brought amendments in Rule
529 of the Bihar Jail Manual and constituted
remission Board. The State remission Board
will be a Board which will consider and will
make recommendation to the State
Government, in appropriate cases for
premature release. The Board will comprise
of Home Secretary, Law Secretary, one
District and Sessions Judge nominated by the
High Court, one Inspector General of Police,
Inspector General ( Prison) as well Director
(Vigilance) nominated by the Director
General of Police, Bihar, Patna. This Board
will make recommendation for premature
release of such convicts, who have acquired
7
eligibility for premature release. So far
petitioners are concerned, for premature
release recommendation in their case had
earlier been made by Superintendent,
Adarsh Jail Beur, Patna vide letter no. 2606
dated 9.5.2006 and letter no. 1987 dated
11.4.2006. Since, at that time State
Remission Board was not functional, as such
their cases for premature release could not
be considered. On constitution of Remission
Board, recommendation made by
Superintendent of concerned Jail, in favour of
the petitioners was considered and rejected
by the „Board‟, considering that they have
been convicted under Section 302 I.P.C. and
unless they will complete 14 years in actual
confinement, they will not be entitled for
premature release. Both the petitioners
have been convicted under Section 302 of
the Indian Penal Code and thus come under
coverage of provisions contained in Section
8
433 (A) of Cr.P.C.. Any convict whose case
comes under the provisions of section 433(A)
Cr.P.C cannot be considered for premature
release, unless completes 14 years of actual
confinement. In this view the case of the
petitioners come under Clause (iii) Sub-
Clause (ka) of the notification and not within
the purview of Clause (iii) (Gha) and (Ch) of
the Notification.
Section 433 (A) Cr. P.c. was inserted
by amendment Act of 1978. Section 433 (A)
Cr.P.C. is as follows:-
“Notwithstanding anything contained
in section 432, where a sentence of
imprisonment for life is imposed on
conviction of a person for an offence for
which death is one of the punishment,
provided by law or where a sentence of
death imposed on a person has been
commuted under section 433 into one of
imprisonment for life, such person shall not
9
be released from prison unless he had
served at least fourteen years of
imprisonment.
Section 433 A was added by criminal
Law Amendment Act, 1978. Object of this
section is to prescribe minimum 14 years
imprisonment for those, who are convicted
for an offence, one of punishment for which
is death, or a person whose death sentence
has been commuted to life sentence. The
non-obstanate clause makes it clear that
such minimum imprisonment is
notwithstanding any thing contained in
Section 432 I.P.C. Section 432 I.P.C.
empowers the appropriate Government to
suspend or remit sentence of a convict,
undergoing imprisonment for satisfying
sentence imposed”.
Section 433(A) makes the actual
detention in prison for full 14 years as a
mandatory minimum sentence in two classes
10
of case (i) where the offender has been
punished with death but the culprit could
not be punished with death, as he survived
through commutation to life imprisonment
and (ii) offences in which though there is
provision for punishing with death sentence
being maximum sentence, the culprit has
been awarded life imprisonment. Section 5
of the Cr.P.C. provides that ordinarily the
Cr.P.C. will not affect any special law, any
local law or any special jurisdiction or power,
or any special forum of procedure but the
code will override the special law where the
statute do not specify any particular mode
enforcing a new obligation created by it. The
short sentencing measures and Remission
Scheme promulgated by various State are
not saved by Section 5 Cr.P.c. as Section
433 (A) is not overridden by it. Section
433(A) Cr.P.C. applies in preference to any
local laws because section 5 specially
11
declares that specific provision if any, to the
contrary, will prevail upon any special or
local law. Section 433(A) creates an
obligation and protects that for these two
special classes of offence. In case of
conviction for such offences and sentence
actual duration of imprisonment cannot be
less than 14 years. In the Indian Penal Code
there are several offences in which maximum
punishment is death and alternative
punishment is life imprisonment. The list of
such offences are as follows:-
Section 121 Waging, or Death or
I.P.C attempting to imprisonment
wage war for life and fine
against Govt.
of India
Section 132 Abetment of Death or with
IPC mutiny, if imprisonment
mutiny is for life, or
committed in imprisonment
consequence for ten years
thereof. and fine
Section 194 Giving or Death or
IPC fabricating false imprisonment
evidence with for life or R.I.
intent to for ten years
procure and fine
conviction of
capital offence.
If innocent
person be
thereby
12
convicted and
executed.
Section 302 Punishment for Death or
IPC murder imprisonment
for life and fine
Section 303 Punishment for Death
IPC murder by life-
convict.
Section 307 Attempt by life Death or
IPC convict to imprisonment
murder, if hunt for ten years
is caused. and fine
Section 364A Kidnapping for Death or
IPC ransom etc. imprisonment
for life and fine.
Section 396 Murder in Death,
IPC dacoity imprisonment
for life, fine or
rigorous
imprisonment
for ten years.
For such offences if death sentence
has been awarded but later on commuted in
imprisonment for life or life sentence has
been awarded which is the alternative
sentence, there will be application of section
433(A) Cr.P.C. The scheme of the remission
introduced by the State Government cannot
be contrary to the provisions under Section
433A Cr.P.C. In AIR 1980 SC 2147 ( Maru
Ram and others Vs. Union of India and ors),
13
this view has been propagated. Full Bench
decision of this Court reported in 1984 PLJR
724 has also canvassed this view that in a
case where the conviction is for offence
under Section 302 I.P.C., the life convict is
not entitled to the benefit of States Policy of
remission in contravention of the provision
under section 433(A) Cr.P.C., unless has
remained in custody for 14 years.
So far Clause (Gha) and (Ch) of
Clause (iii) of the notification dated
10.12.2002 is concerned, it is applicable in
case of such persons, who have been
convicted for offence in which maximum
punishment is imprisonment for life but there
is no alternative punishment of death
provided under the Indian Penal Code. Such
convicts, if suffering from incurable disease
or have become aged more than 65 years
can be benefited under Sub Clause (Gha)
and (Cha) of Clause (iii) in notification. The
14
case of the petitioners not coming within the
such provisions as on account of their
conviction under section 302 IPC, in which
maximum sentence is death with life
imprisonment as an alternative sentence,
they cannot be benefited under Clause
(Gha) and (Ch) of the notification.
In AIR 1980 S.C. 2147, it is held:-
“The fasciculus of clauses (Ss. 432, 433 and
433-A), read as a package, makes it clear
that while the Code does confer wide powers
of remission and commutation of sentences it
emphatically intends to carve out an extreme
category from the broad generosity of such
executive power. The non obstante clause, in
terms excludes S. 432 and the whole
mandate of the rest of the Section
necessarily subjects the operation of S. 433
(A) to a serious restriction. This embargo
directs that commutation in such cases shall
not reduce the actual duration of
15
imprisonment below 14 years. Whether that
Section suffers from any fatal constitutional
infirmity is another matter but it does
declare emphatically an imperative intent to
keep imprisoned for at least 14 years those
who fall within the sinister categories spelt
out in the operative part of Section 433-A. If
S. 433 A, by sheer repugnancy, forces a
permanent holiday on the prison remission
laws of the States vis a vis certain classes of
„lifers‟, the former must prevail in situation of
irreconcilability. Assuming that Rules under
the Prisons Act are valid and cannot be
dismissed as State law, a harmonious
reading of S. 433A and the Prison Rules must
be the way out. Otherwise, the latter law
must prevail or implied repeal may be
inferred.”
The provisions under Section 433A
Cr.P.C. is prospective, as such persons who
have been convicted by the trial Court before
16
December 18, 1978 shall be entitled to the
benefits accruing to them from the remission
scheme or short sentencing projects as if
Section 433A did not stand in their way.
These two petitioners were convicted by the
trial Court in 1987 much after December, 18
1978, as such they are not entitled for
benefit of any earlier remission scheme or
short sentencing projects of the State
Government.
One of the questions which was also
raised at the time of hearing of the case, as
to whether in exercise of power conferred
under section 59 of Prisons Act, any
amendment could have been brought in
relation to premature release or remission of
prisoner.” Rule 59 provides a long list of
items relating to which rule can be framed by
the State Government, consistent with this
Act. I find that in this list of subjects, item
no. 27 relates to admission, custody,
17
employment and release of prisoners. In this
view item no. 27, authorizes State
Government to make rule in the matter of
premature release of prisoners. Amendment
has been brought in exercise of powers
conferred under Section 59 of the Prisoners’
Act.
Considering all these facts, we are of
the view that none of these petitioners are
entitled for their premature release under sub-
Clause (Gha) and (Ch) of clause (iii) of the
notification (Annexure-3), since they have been
convicted under Section 302 I.P.C., and their
cases being fully covered by provisions of
Section 433(A) of the Cr.P.C. They can claim
their for premature release only after
remaining in custody for 14 years without
remission and 20 years with remission.
This writ application, as such is
rejected.
Akumar ( Mridula Mishra, J.)
18
(Dharnidhar Jha,J.)