Patna High Court's Justice Rajeev Ranjan Prasad has set aside the order of Bihar State Sentence Remission Board for non-compliance with Supreme Court's judgement on March 20, 2024 in Md Azimuddin v. State of Bihar and others. The nine other respondents included the State Sentence Remission Board, Joint Secretary Cum director (Admin.), Home Department (Prison), Bihar, Secretary , Law Department. Bihar, the Additional director General of police, Criminal Investigation Department, Bihar, the Inspector General Jail and Reforms Services, Bihar, Assistant Inspector General , Jail and Reforms Services, Bihar, the Principal Probation Officer, Supaul, the Superintendent of Police, Supaul and the Jail Superintendent Supaul.
The Court concluded that "this Court is of the considered opinion that the case of the petitioner for grant of premature release is required to be considered afresh by applying the parameters which have been pointed out by the Hon’ble Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal and Ram Chander (Supra). The reports of the authorities which are on the record seem to be stereotype reports for purpose of denying the benefit of remission. Even though the petitioner has remained in incarceration for about twenty-two years, the competent authority has not considered the potential of the petitioner to commit crimes in future, his age, state of health, familial relationships and the possibility of reintegration. The competent authority has not taken into consideration as to whether while in custody the petitioner hasengaged in any socially aimed or productive activity and what has been his overall development as a human being. The Hon’ble Supreme Court has observed that the Board should not entirely rely either on the learned Presiding Judge or the report prepared by the police and benefit of a report contemporaneously prepared by a qualified psychiatrist after interacting or interviewing the convict would serve the ends of justice. In this case, this Court finds that no effort has been made to consider the aforesaid aspects of the matter. The directions of the Hon’ble Supreme Court that the appropriate government may have the benefit of a report of a qualified psychiatrist has not at all been complied with."
Justice Prasad observed that the Board has passed the order in a routine and mechanical manner by just referring to the reports of the Superintendent of Police and the Presiding Officer of the court which is not in consonance with the judgment of the Supreme Court.The matter is remitted to the competent authority for a fresh consideration of the application seeking premature release.
This writ application was filed seeking quashing of the order dated August 27, 2021 passed by the Bihar State Sentence Remission Board rejecting the premature release application of Md Azimuddin, the petitioner on the ground of adverse report of the Sub-Divisional Probation Officer, the Superintendent of Police, Supaul and the Presiding Officer of the trial court.
The petitioner convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and was sentenced to death by the Additional Sessions Judge-cum-Fast Track Court No.1, Supaul by judgment dated November 18, 2006 passed in Session Trial No.165 of 1996. The case arose out of Raghopur P.S. Case No.101 of 1995. The petitioner's sentence was commuted/converted into a life imprisonment by High Court at Patna in Criminal Appeal (DB) No.1225 of 2006.
The petitioner's counsel submitted that the petitioner is in custody since July 31, 2001 i.e. more than 22 years. His case is covered by Section 433-A of the Code of Criminal Procedure and considering the object of the premature release, he deserves proper consideration of his application for premature release. A proposal for his premature release was submitted before the Superintendent, Divisional Jail, Supaul who vide his letter no.46/Jail dated January 11, 2020 forwarded the application to the Bihar State Sentence Remission Board. The petitioner had filed a Criminal Writ Application being Cr.WJC No.324 of 2020 in which a coordinate Bench of the High Court vide order dated November 22, 2021 granted liberty to the petitioner to challenge the order dated August 27, 2021 passed by the Board during pendency of the writ application by which the application of the petitioner for premature release was rejected. Hence, the present application has been filed.
The order dated August 27, 2021 passed by the Board was based the reports of the Superintendent of Police and Presiding Officer of the Court. The reports were found to be adverse. As a consequence, the petitioner's application was rejected. The counsel for the petitioner submitted that the report of the Probation Officer is completely general in terms and the other reports such as report of the Superintendent of Police, Supaul and the report of the learned Presiding Officer are not in consonance with the decision of the Supreme Court in the case of Rajo @ Rajwa @ Rajendra Mandal v. State of Bihar (2023) and in the case of Ram Chander v. State of Chhattisgarh (2022).
The High Court examined as to whether the reports submitted by the Superintendent of Police and the Presiding Officer of the court are in consonance with the views expressed by the Supreme Court.
In the case of Rajo alias Rajwa alias Rajendra Mandal case, the Supreme Court has held that "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 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."
The Court observed: "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, keeping in mind the purpose and objective, of remission."
In the case of Ram Chander v. State of Chhattisgarh, the Court observed that in Union of India v. V. Sriharan, (2016), "a Constitution Bench of this Court held that the procedure stipulated in Section 432(2) is mandatory. The Court did not specifically hold that the opinion of the Presiding Judge would be binding, but it held that the decision of the Government on remission should be guided by the opinion of the Presiding Officer of the court concerned." The Court had framed the following question: “143. … Question (vi) : Whether suo motu exercise of power of remission under Section 432(1) is permissible in the scheme of the section, if yes, whether the procedure prescribed in sub-section (2) of the same section is mandatory or not? 22. Answering the above question, the Court held: “148. Keeping the above principles in mind, when we analyse Section 432(1)CrPC, it must be held that the power to suspend or remit any sentence will have to be considered and ordered with much more care and caution, in particular he interest of the public at large. In this background, when we analyse Section 432(1)CrPC, we find that it only refers to the nature of power available to the appropriate Government as regards the suspension of sentence or remission to be granted at any length. Extent of power is one thing and the procedure to be followed for the exercise of the power is different thing. There is no indication in Section 432(1) that such power can be exercised based on any application. What is not prescribed in the statute cannot be imagined or inferred. Therefore, when there is no reference to any application being made by the offender, that cannot be taken to mean that such power can be exercised by the authority concerned on its own. More so, when a detailed procedure to be followed is clearly set out in Section 432(2). It is not as if by exercising such power under Section 432(1), the appropriate Government will be involving itself in any great welfare measures to the public or the society at large. It can never be held that such power being exercised suo motu any great development act would be the result. After all, such exercise of power of suspension or remission is only going to grant some relief to the offender who has been found to have committed either a heinous crime or at least a crime affecting the society at large. Therefore, when in the course of exercise of larger constitutional powers of similar kind under Articles 72 and 161 of the Constitution it has been opined by this Court to be exercised with great care and caution, the one exercisable under a statute, namely, under Section 432(1)CrPC which is lesser in degree should necessarily be held to be exercisable in tune with the adjunct provision contained in the same section. Viewed in that respect, we find that the procedure to be followed whenever any application for remission is moved, the safeguard provided under Section 432(2)CrPC should be the sine qua non for the ultimate power to be exercised under Section 432(1)CrPC."
It further observed: "149. By following the said procedure prescribed under Section 432(2), the action of the appropriate Government is bound to survive and stand the scrutiny of all concerned, including the judicial forum. It must be remembered, barring minor offences, in cases involving heinous crimes like, murder, kidnapping, rape, robbery, dacoity, etc. and such other offences of such magnitude, the verdict of the trial court is invariably dealt with and considered by the High Court and in many cases by the Supreme Court. Thus, having regard to the nature of opinion to be rendered by the Presiding Officer of the court concerned will throw much light on the nature of crime committed, the record of the convict himself, his background and other relevant factors which will enable the appropriate Government to take the right decision as to whether or not suspension or remission of sentence should be granted. It must also be borne in mind that while for the exercise of the constitutional power under Articles 72 and 161, the Executive Head will have the benefit of act and advice of the Council of Ministers, for the exercise of power under Section 432(1)CrPC, the appropriate Government will get the valuable opinion of the judicial forum, which will definitely throw much light on the issue relating to grant of suspension or remission."
It concluded: "150. Therefore, it can safely be held that the exercise of power under Section 432(1) should always be based on an application of the person concerned as provided under Section 432(2) and after duly following the procedure prescribed under Section 432(2). We, therefore, fully approve the declaration of law made by this Court in Sangeet v. State of Haryana, (2013) in para 61 that the power of appropriate Government under Section 432(1) of the Criminal Procedure Code cannot be suo motu for the simple reason that this section is only an enabling provision. We also hold that such a procedure to be followed under Section 432(2) is mandatory. The manner in which the opinion is to be rendered by the Presiding Officer can always be regulated and settled by the High Court concerned and the Supreme Court by stipulating the required procedure to be followed as and when any such application is forwarded by the appropriate Government. We, therefore, answer the said question to the effect that the suo motu power of remission cannot be exercised under Section 432(1), that it can only be initiated based on an application of the persons convicted as provided under Section 432(2) and that ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the court concerned.”
Justice Rajeev Ranjan Prasad drew on these decisions of the Supreme Court. He cited the provisions under Rule 478 and Rule 481 of the Bihar Prison Manual. It reads: “478. While considering the case of premature release of a particular prisoner the Board shall keep in view the general principles of remission of sentences, as laid down by the State Government or by the courts, as also the earlier precedents in the matter. The paramount consideration before the Board being the welfare of the society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his/her release. The Board shall take into account the circumstances in which the offence was committed by the prisoner; whether he/she has the propensity to commit similar or other offences again; socio-economic condition of the convict's family and possibility of further violence or offence on his/her release, progress in victim reconciliation programmes and chances of reclaiming the convict as a useful member of the society.”
It further reads: “481. The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the Board:
i. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A CrPC 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. 2 [The following categories of convicted prisoner covered under Section 433A Cr.P.C. undergoing life sentence would not be entitled to be considered for premature release even after undergoing imprisonment for 20 years including remission:] [(a) Such convicts who have been imprisoned for life for rape, rape with murder, dacoity with murder, murder involving offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the prison, murder during parole, murder in terrorist incident, murder in smuggling operation, (b) Gangsters, contract killers, smugglers, drug traffickers,racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity. c) Convicts whose death sentence has been commuted to life imprisonment.
ii. All other convicted male prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 14 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions.
iii. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment shall be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions.[(iv) In such cases in which life sentence has been awarded by specifying that the convict shall undergo life sentence till the end of his life without remission or commutation, benefit of remission or commutation shall not be given to convict.]
(v) In such cases in which life sentence has been awarded by specifying that the convict shall not be released by granting remission or commutation till he completes a fixed term of 20 years or 25 years or like, remission or commutation shall not be granted to a convict until he completes the fixed term as prescribed in the sentence.]”
In this background, the High Court's judgement inferred that "On a bare perusal of the aforementioned rules, it would appear that while considering an application for premature release, the Board has to keep in mind the general principles of remission of sentences as laid down by the State Government or by the Courts, as also the precedence in the matter."
The High Court has directed that "The Board shall obtain fresh report from the S.D.P.O./Superintendent of Police, Supaul and the learned Presiding Officer of the court on all the parameters which have been recorded by the Hon’ble Supreme Court in the case of Rajo alias Rajwa alias Rajendra Mandal (Supra) and Ram Chander (Supra). The Board shall also obtain report of a psychiatrist who may conduct an interview of the petitioner."
It has instructed that such reports must be obtained within a period of three months from the date of receipt/production of a copy of the order and thereafter appropriate decision be taken in accordance with law/policy decision/Prison Manual within a period of one month. A reasoned order which must reflect independent exercise of mind by the Board shall be communicated to the petitioner within an overall period of four months from the date of receipt/communication of a copy of this order.
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