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Measures Needed For Expeditious Disposal Of Criminal Appeals In Which Appellants Are Still In Custody: Orissa High Court

It is a matter of grave concern that the Orissa High Court in a latest, learned, landmark and laudable judgment titled Shyam Sundar Jena vs State of Orissa in JCRLA No. 73 of 2006 has expressed its mounting concern regarding the inordinate delay in disposal of the appeals. The Bench of Justice SK Mishra and Justice Savitri Ratho hoped that appropriate measures would be taken by the State of Odisha and the High Court of Orissa “for expeditious disposal of the Criminal Appeals in which the appellants are still in custody.” Very rightly so!

To start with, Justice SK Mishra who has authored this notable judgment for himself and Justice Savitri Ratho sets the ball rolling by first and foremost pointing out in para 1 that, “In this appeal, the appellant-convict, Shyam Sundar Jena, has assailed his conviction under Section 302 of the Indian Penal Code, 1860(hereinafter referred to as the “Penal Code” for brevity) and sentence of imprisonment for life and to pay a fine of Rs.1000/- (rupees one thousand), in default to pay the fine, to undergo rigorous imprisonment for one month, passed by learned Addl. Sessions Judge, Jajpur in S.T. Case No.660/2003 (arising out G.R. Case No.370/2003 of the court of learned S.D.J.M., Jajpur corresponding to Binjharpur P.S. Case No.50/2003).”

While stating in brief the prosecution case, the Bench then discloses in para 2 that, “Shorn of unnecessary details, the prosecution case in brief is that the deceased-Urmila had married the appellant-accused sometime in the year 1994. At the time of marriage, a sum of Rs.20,000/-, gold chain, ring etc., were given as per the demand made from the side of the appellant. After the marriage, the appellant further demanded a sum of Rs.10,000/- and he used to assault Urmila and force her to bring the said amount as dowry. The matter was settled on a number of occasions by the village gentries. It is alleged that on 7.7.2003 night the appellant forcibly opened the door of the room where Urmila had slept with her son. The appellant poured kerosene and set her on fire with a match stick. Thereafter Urmila screamed and her brother-in-law came. He abused and slapped the appellant. Urmila had sustained extensive burn injuries and implicated the appellant in the said manner before others who arrived at the spot. She was shifted to District Headquarters Hospital, Jajpur in a trekker. In the same night one Lalu Jena @ Babaji came and informed Ghanashyam(brother of Urmila) about the shifting of Urmila to the said Hospital. Thereafter after advice of the Doctor, Urmila was shifted to S.C.B. Medical College and Hospital, Cuttack.”

To be sure, the Bench then states in para 3 that, “On 10.4.2003 Ghanashyam submitted F.I.R. before the Officer-in-charge, Binjharpur Police Station. In pursuance of the F.I.R. lodged, one Basanta Kumar Jena, Officer-in-charge of Binjharpur P.S. rushed to S.C.B. Medical College and Hospital, Cuttack and found Urmila to have sustained extensive burn injuries on her body. He took steps for recording the dying declaration of Urmila and Urmila expired on 13.4.2003.”

To put things in perspective, the Bench then reveals in para 4 that, “During course of investigation, the Investigating Officer issued requisition for medical examination of the appellant and his son. He seized the wearing apparels of the deceased Urmila and a pillow. Sarat Kumar Nathasharma, S.I. of Police, Bijnjharpur P.S. (another Investigating Officer) took step for examination of those articles by the Director, State Forensic Science Laboratory, Rasulgarh. After completion of investigation, the Investigation Officer submitted charge sheet against the appellant.”

Quite significantly, the Bench then envisages in para 13 that, “In this case, the evidence of P.W.26- Nigamananda Panda, the Executive Magistrate, is of much importance. He has categorically stated on oath that he proceeded to the S.C.B. Medical College and Hospital on being directed by the Collector, Cuttack. He consulted Dr. P.K.Mallik-P.W.25, who informed the Magistrate that the deceased-Urmila is mentally and physically fit to give dying declaration. Thereafter the Executive Magistrate put questions to the deceased about her name, her father’s name, her native village, the marital village, her age and as to when her marriage was performed. The Magistrate further stated that she gave rational answers to the questions. Therefore, he was satisfied that the deceased was in fit state of mind. Thereafter, the Magistrate started questioning the deceased about the occurrence as to how she got the burn injuries and then recorded verbatim, the answer given by the deceased in his own hand. He read over the contents of the dying declaration recorded by him and had questioned the deceased if it was correctly written to which she had replied in affirmative. She was not in a position to append signature on the statement and her left hand palm was burnt. So he took the right hand thumb impression of the deceased on the statement, i.e. Ext.4. Though cross examined at length, in our opinion, no major contradiction has been pointed out by the defence. Though, it appears that there are some difference between the evidence of P.Ws.25 and 26 as to when the opinion of the Doctor was given, it is a very hyper technical argument, which cannot be given much weightage.”

Be it noted, the Bench then also makes it clear in para 15 that, “The submissions of the learned counsel for the appellant that the dying declaration is not in question answer form and hence it is not properly recorded are also of no value. The ratio laid down by the Hon’ble Supreme Court is that there is no format prescribed for recording of dying declaration and it depends on facts of each case whether the dying declaration has been properly recorded or not and whether it can be relied upon as the sole basis for conviction. We are of the opinion that the evidence of P.Ws.6,7,22,25 and 26 read together leaves no doubt in the mind of the Court that the dying declaration is true and voluntary and these five witnesses have not been cross examined to show that they have faulted while recording the declaration by P.W.26 or that these witnesses are not reliable. P.W.26, the Executive Magistrate recorded the dying declaration of the deceased on 10.4.2003 on the requisition made by P.W.22, the I.O., on being certified regarding the mental and physical fitness of the deceased-declarant by P.W.25 Dr. P.K.Mallik in presence of P.Ws.6 and 7, namely Pramila Jena and Prasant Kumar Parida, who are also signatories to the dying declaration. So in all fitness of things, we do not think this is a case where the dying declaration should be viewed with suspicious and the conviction should be over turned into a judgment of acquittal.”

Going forward, the Bench then also makes it clear further in para 16 that, “Moreover, this dying declaration has been relied upon by the learned Addl. Sessions Judge, who had the opportunity of observing the demeanor of the witnesses when he recorded the evidence of those witnesses. His subjective findings of reliability on P.Ws.6,7,22,25 and 26 should not be lightly brushed aside by the appellate court.”

It is worth noting that it is then observed in para 17 that, “The learned counsel for the appellant submitted that P.W.1 is the informant in this case. He has stated in the F.I.R. that on 09.4.2003 when the condition of her sister became better he could learn from her that the above mentioned accused (named in the FIR) has tortured her both physically and mentally and then put kerosene on her body and set her on fire. In the F.I.R. he referred the names of six accused persons including the present appellant. He has admitted in the cross examination that he has mentioned the name of the appellant along with five others of his family members, but he denied the suggestion that he has done it deliberately to harass the accused persons.”

What’s more, the Bench then says with consummate ease in para 18 that, “In our considered opinion this will not adversely effect the probative value of the dying declaration as admittedly P.W.1 was not present at time of recording of the dying declaration. Secondly, he had talked to the deceased on 10th and from whatever impression he has got he lodged the F.I.R. So it cannot be taken as a major lacuna in the prosecution evidence to throw out the dying declaration, which has been recorded by an Executive Magistrate, with a medical certificate regarding the mental and physical fitness of the declarant and which has been accepted as good evidence of the murder of the deceased by the learned Addl. Sessions Judge. In that view of the matter, we are not inclined to allow the appeal.”

Moving on, the Bench then notes in para 19 that, “The alternative submission that the appellant is in custody for more than 17 years and six months and, therefore, the sentence should be remitted to the period undergone. In the case of UNION OF INDIA VS. V.SRIHARAN ALIAS MURUGAN AND OTHERS (supra), the Hon’ble Supreme Court has held that the sentence of imprisonment for life in terms of Section 53 read with Section 45 of the Penal Code only means imprisonment for rest of the life of the prisoner subject, however, to the right to claim remission etc. as provided under Articles 72 and 161 of the Constitution of India to be exercised by the President and the Governor of the State and also as provided under Section 432 of the Cr.P.C.”

While explaining the types of remissions, the Bench then observes in para 20 that, “As far as remissions are concerned, it consists of two types. One type of remission is what is earned by a prisoner under the Prison Rules or other relevant rules based on his/her good behaviour or such other stipulations prescribed therein. The other remission is the grant of it by the appropriate Government in exercise of its power under Section 432 of the Cr.P.C. Therefore, in the latter case when a remission of the substantive sentence is granted under Section 432 Cr.P.C., then and then only giving credit to the earned remission can take place and not otherwise. Similarly in the case of a life imprisonment, meaning thereby the entirety of one’s life, unless there is a commutation of such sentence for any specific period, there would be no scope to count the earned remission. In either case, it will again depend upon an answer to the second part of the first question based on the principles laid in Swamy Sraddananda (2) Vs. State of Karnataka; (2008) 13 SCC 767. The Hon’ble Supreme Court has further held that convict undergoing the life imprisonment can always apply to the authority concerned for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 of the Cr.P.C. and the authority would be obliged to consider the same reasonably subject to the principles laid down in the case of Swamy Sraddananda (2) (supra). The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. Ultimate decision whether remissions be granted or not is entirely left to the discretion of the authorities concerned, which discretion ought to be exercised in a manner known to law. The only right of the convict i.e. recognized is a right to apply to the competent authority and have his case considered in a fair and reasonable manner.”

For the sake of clarity, the Bench then elucidates in para 21 that, “We examined the notification issued by the State Government in this regard. The Government of Odisha in Law Department issued a notification bearing No.4817/L./IVJ.7/08(pt) Dt.5.5.10 regarding resolution of reconstituting the Board to review of sentence awarded to a prisoner and to recommend his premature release. The State Sentence Review Board has been constituted which is to meet at least once in a quarter at Bhubaneswar. The eligibility for premature release is quoted here in below:

“Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A Cr.P.C. shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without the remissions.

It is, therefore, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the State Sentence Review Board shall have the discretion to release a convict at an appropriate time in all cases considering the 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 in jail during the 14 years incarceration;

(b) The possibility of reclaiming the convict as a useful member of the society; and

(c) Socio-economic condition of the convicts family. Section 433A was enacted to deny premature release before completing 14 years of actual incarceration to such convicts as stand convicted of a capital offence.xxx””

For the sake of further clarification, the Bench then observes in para 22 that, “However, certain categories are mentioned in the said notification by way of the exceptions to the 14 years rule, in such cases, their cases shall be considered only after 20 years including remission. The period of incarceration inclusive of remission even in such cases should not exceed 25 years. These cases include cases of convicts imprisoned for life for murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, murder of a child below 14 years of age, multiple murder, cases of gangsters, contract killers, smugglers and convicts whose sentence has been commuted to life imprisonment.”

As a corollary, it is then stated in para 23 that, “Thus, we are of the opinion that though the Courts do not have jurisdiction to pass an order for a remission of imprisonment of life to any other kind of sentence, but it is open for appellant to make an application to the proper authority in the State of Odisha, the Principal Secretary, Department of Home, Government of Odisha. So, we give liberty to the appellant to make an application to that effect to the concerned authority for remission of his sentence to the period already undergone. In this connection, the correctional authorities, more particularly the Prison Welfare Officer, shall render effective service to the appellant to make a proper representation before the proper authority designated by the State of Odisha. We also hope and trust that if any such application is made by the appellant, the authority shall take a decision as early as possible preferably within a period of sixty days of the receipt of the application regarding remission in terms of the principles laid down by the Hon’ble Supreme Court in the case of Swamy Sraddananda (2) (supra) and in the case of UNION OF INDIA VS. V.SRIHARAN ALIAS MURUGAN AND OTHERS (supra) and the notification issued by the State Government.”

While dwelling on the delay, the Bench then quite forthrightly states in para 24 that, “As regarding the delay in disposal of the appeal is concerned, we are constraint to observe that because of things or matters not in the hands of the judiciary, the appeals are being taken up at a belated stage for which we consider all the stake holders including the judiciary responsible for the same. But at the same time we do not say that judiciary is alone responsible for delay in disposal of the cases. We also rely upon the observations made by brother Hon’ble Shri Justice Sangam Kumar Sahoo in the case of Managobinda Mohapatra Vs. State of Odisha; (2020) 79 OCR 787 (Para-1) and in the case of Nitya @ Nityananda Behera Vs. State of Odisha; (2020) 80 OCR 89 (para-15).”

Now coming to the concluding paras. Para 25 states that, “With such observation, the JCRLA is dismissed.” Finally, para 26 then concludes this notable judgment on an optimistic note by observing that, “However, we hope and trust that appropriate measures should be taken by the State of Odisha and the High Court of Orissa for expeditious disposal of the Criminal Appeals in which the appellants are still in custody.”

On a concluding note, it must be said that the Orissa High Court has very rightly expressed its grave concerns pertaining to the inordinate delay in the disposal of the appeals. What is really most pleasing to see is that the two Judge Bench of Orissa High Court comprising of Justice SK Mishra and Justice Savitri Ratho  have not dithered from holding all the stakeholders responsible for the delay in the disposal of the appeal which includes not just the State but the judiciary also even though it has conceded that judiciary alone is not responsible for the delay in the disposal of the cases.

Sanjeev Sirohi

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