JUDGMENT
Mathur, J.
1. In this group of petitions, petitioners are life convicts on the charge of murder and they are, undergoing imprisonment for life.
2. The common grievance of the petitioners is that inspite of the fact that their case have riped for premature release as they have undergone a sentence of more than 14 years, still their cases have not been considered by the Government under the provisions of Rajasthan Prisons (Shortening of Sentences) Rules, 1958 (hereinafter referred to as the “Rules 1958”). In another group of petitions the grievance voiced is that their case for premature release under the Rules of 1958 has been refused by the Government on unsustainable grounds. It is submitted that concern State authorities have failed to discharge their statutory duty to implement the Enlightened Policy of premature release of a convict for life imprisonment.
3. With a view to deal with the grievance of the applicants it would be convenient to refer some of the provisions which have direct bearing on the question of premature release.
4. Section 432 confers power on the appropriate Government to suspend the execution of sentence or remit the whole or part of the sentence with or without conditions.
5. Section 433 confers power on the appropriate Government to commute-
(a) a sentence of death, for any other punishment provided under the . Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
6. Section 433-A which was introduced in the Code of Criminal Procedure by Amendment Act 1945 of 1978 imposes a restriction on the power of the Government under Section 432 to remit sentences. It provides that a person shall not be released from prison unless he has atleast served 14 years imprisonment by the 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 various sentences of death imposed on person has been commuted under Section 433 into one of the imprisonment for life.
7. It will thus be seen that Section 432 and 433 confers power of suspension, remission and commutation of sentence on the appropriate Government. The Apex Court in Maru Ram v. U.O.I. (1), while interpreting Sections 432, 433 and 433-A of the , Code pointed out that wide powers of remission and commutation of sentence have been conferred on the appropriate Government on completion of 14 years of imprisonment.
8. The State of Rajasthan has framed the Rules in the name of Rajasthan Prisons (Shortening of Sentences) Rules, 1958. Sub-rule 3 provides Constitution of Advisory Board for every Central and District Jail to investigate and recommend the government on sentences of certain classes of prisoners with a view to release number of such prisoners as have served sufficient deterrent period of their sentences. Sub Rule provides the criteria to be considered while scrutiny of the applications for premature release of the convict. Rule 7 reads as follows :-
“7. Scrutiny by the Advisory Board.- The Advisory Board before recommending shortening of sentences or premature release of prisoners shall examine the following matters in full and accurate details :-
(a) Circumstances in which offence was committed and the punishment awarded by the Court;
(b) Details of the prisoner’s previous history and character in the district where the prisoner was resident;
(c) Prisoner’s conduct in the prison and the result of imprisonment already undergone by him;
(d) Opinion of the District Magistrate and the Superintendent of
Police of the Districts in which the prisoner was convicted and was
resident with special reference to the following points :-
(i) the reaction in the locality, if the prisoner is released prematurely.
(ii) the feelings of the relations of the victim or victims of the offence who suffered at the hands of the accused in the case of premature release;
(iii) whether the life of the accused itself will be safe, if he is to be released prematurely;
(iv) any other information material to the case of the prisoner; and
(v) whether the prisoner can be released with safety to the community.”
9. Rule 8 provides eligibility for consideration by the Advisory Board. Rule 9 excludes prisoners convicted of certain offences as rape etc., from the consideration of premature release by the Advisory Board. Rule 10 provides procedure. Rule 12 empowers the State Government to release a convict on premature release.
10. A Division Bench of the Himachal Pradesh High Court in Bir Singh v. State of Himachal Pradesh and Ors. (2), has observed that though the policy regarding premature release of convict is evolved in the exercise of executive powers and it is within the realm of discretionary jurisdiction, such power is coupled with the legal duty to exercise the same once the conditions for the exercise are shown to exist. The court observed, thus :-
“It is settled law that where a power is deposited with a public officer for the purpose of being used for the benefit of the persons who are specifically pointed out, and with regard to whom a definition is supplied of the conditions upon which they are entitled to call for the exercise, that power ought to be exercised and the Court will require it to be exercised. If the existence of the purpose is established and the conditions of the exercise of the discretion are fulfilled, the competent authority will be under an obligation to exercise the discretion in furtherance of such purpose.”
11. The court further observed thus :-
“The exercise of power of premature release of a person must not, therefore, be looked upon as an act of charity, compassion or clemency but as an act in the discharge- of a duty to implement the enlightened policy and such an act is to be performed upon the fulfillment of the requisite conditions to effectuate the salutary purpose.”
12. In Bhagwat Saran and Ors. v. State of Uttar Pradesh and Ors. (3), the State rejected the prayer for premature release saying that “after considering their cases sympathetically, keeping in view the law and order situation they cannot be released.” The court disapproved such sort of orders and directed to release the convicts forthwith.
13. In Shri Niwas and Ors. v. Delhi Administration and Ors. (4), the Apex Court dealt with the cases, of the convicts in jail for more than about 17 and 18 years. They were directed to be released forthwith.
14. In Babu v. State of U.P. (5), the Court expressed its dissatisfaction, the manner in Which the State Government dealt with the cases of premature release. It was observed that order refusing the prayer for premature release lacked application of mind to the relevant considerations, while remitting the matter for fresh consideration directed to release the convict for a period of 3 months. The State was directed to consider the case of the convict in right perspective and decide the same during the said period.
15. In Kansi Ram v. State of U.P. (6), the State Government rejected the prayer for premature release on twins grounds. Firstly that the convict has “no source of means of living” and “may commit a crime after release”. Secondly “revert into crime and abscond.” The Apex Court observed that there was a complete lack of application of mind on the part of the competent authority. Both the objections were answered by the Apex Court as follows :-
“Since the prisoner is undergoing imprisonment in jail for more than 18 years, presently by the very nature of things he cannot have source of income at present. In fact, he will never have one till he is released. It is no valid ground in the eyes of law. So far as the second ground is concerned, it is not based on any material whatsoever. It is a bald assertion apart from being conjectural. The order passed by the competent authority refusing to release him is therefore, wholly bad in law.”
16. In Laxman Naskar v. Union of India and Ors. (7), the prayer for premature release was refused on account of adverse police report. On perusing the record the court found that the government did not consider the prayer for premature release as per the Rules. It Was also found that the Government did not pay sufficient attention to conduct record of the petitioners while in jail nor did it consider whether they had lost their potentiality in committing crime. The court observed as follows :-
“The relevant aspect, namely, that there is no fruitful purpose in confining them any more was also not considered nor were the socio-economic conditions of the convict’s family taken into account. Thus, the orders of the Government suffer from infirmities and are liable to be quashed.”
17. In Zahid Hussein and Ors. v. State of W.B. and Anr., (8), the court noted the guidelines framed by the Government for the premature release of the life convicts. The guidelines have been given in para 11 of the judgment which reads as follows ;-
“11. Following guidelines were framed by the Government for the premature release of life convicts, namely:
(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 there is any fruitful purpose of confining of these convicts any more.
(iv) Whether the convicts have lost potentiality in committing crime.
(v) Socio-economic condition of the convicts’ families.”
18. The court in Zahid Hussain’s case noted the reasons given for refusing the premature release by the Review Board which reads as follows :-
“12. The Review Board refused to grant premature release of the petitioners on the following grounds : (i) police report is adverse; (2) the convicts are not overaged persons and as such have not lost the potentiality in committing crime; (3) since other co-convicts were trying to come out from jail, there was a possibility of regrouping for antisocial activities; (4) the offence was not an individual act of crime but was affecting society at large; (5) convicts were antisocial; and (6) the witnesses who had deposed at the trial as well as local people were apprehensive of retaliation in the event of premature release.”
19. In the opinion of the Apex Court the reasons for rejection were not sustainable. The court was of the view that the conduct of the convict while in jail is an important factor to be considered as to whether he has lost their potentiality in committing crime due to a long period of detention. Secondly the views of the witnesses who were examined during the trial and people of the locality cannot determine whether petitioners would be danger to the locality, if released prematurely. Thus, the Apex Court observed that a prayer for premature release has to be considered by the appropriate authority, keeping in view, the conduct of the convicts during the period they were undergoing sentence. It was further observed that while coming to the conclusion for prospecting of regrouping for antisocial activities, the Review Board did not take into account that the life convicts are in jail for more than 18 years. The Board also did not consider whether there would be any fruitful purpose of continuing the convicts any more and also the socio-economic conditions of their families.
20. In State of Punjab v. Gurdev Singh aforesaid discussion it emerges that the power of shortening of sentence of the convict is enabling power and does not give a vested right to the released convict in all circumstances. At the same time the enabling power like any discretionary power is not ment to be used arbitrarily and at the whim and caprice of the person vested with such discretion. It has to be exercised on well-known criteria, otherwise, it will be violative of Article 14 of the Constitution for discretion in exercise of such powers without reason of it. Thus, in a case where the State Government fails to exercise the discretionary powers in right perspective in accordance with the guidelines provided under the statute or the relevant Rules and above all by the Apex Court and this court from time to time, as is being done in various cases referred to above, this court will be competent to direct in appropriate case to release the convict prematurely. Thus, the recommendation of the advisory report is to be considered by the State Government in right perspective, keeping in mind, the fruitful purpose of further continuing the convict in jail, socio-economic conditions of the family and the potentiality of the convict in committing the crime. It would be wrong to presume that if the accused is released he will revert to crime. Similarly, the premature release cannot be refused on surmises and conjunctures that if he is released, there will be danger to his own life or life of the complainant party, unless there are very strong and substantial reasons to arrive at such conclusions. It must be kept in view, that the gap of 14 years between the date of crime and the application for consideration of premature release is much more a sufficient time to heel up woon effect of the complainant party.
21. The State Government should also not only prepare a schedule for making of the advisory report and the time period wherein the Government is to take a decision under Rule 12 but also to adher to it punctually, faithfully and religiously. It must be kept in mind that the convicts are also human being, and cases which have riped for consideration of premature release, each one of them and their family members are awaiting the decision every day, every hour. Each authority involved in the process of consideration of premature release, are expected to adopt a humanitarian approach. They are required to be sentivised, in discharge of their duty of dispensation of justice.
22. We have examined the each case and considered the reply submitted by the respondents. The order refusing the prayer for premature release betrays lack of application of mind of the relevant considerations.
23. In view of the aforesaid discussion, we allow all the petitions and following the course adopted by Supreme Court in Babu v. State (supra), direct the respondents to reconsider the case of the each of the petitioners latest by 19th May, 2003 and to take fresh decision in the light of criteria pointed out and observations made above, in accordance with law. Meanwhile the petitioners in the each writ petition namely Dhula S/o Bhaggda, Soma S/o Bachan, Logar S/o Nava Dangi, Pyara S/o Nava Dangri, Sawatnath S/o Heernath Sidh, Yasin S/o Ganni Khan, Bagda Ram S/o Joga Ram, Dulichand S/o Asha Ram, Amarjeet Singh S/o Krishna Singh, shall be released forthwith for a period of 3 months on furnishing a personal bond in the sum of Rs. 5,000/- to the satisfaction of the concerned Jail Superintendent.
24. Put up on 22nd May, 2003 for reporting the compliance.