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Seriousness Of Crime Not A Ground To Deny Premature Release To A Life Convict; Reformative Element To Be Considered: Bombay High Court

LIVELAW NEWS NETWORK
17 Nov 2020 5:47 AM GMT
Seriousness Of Crime Not A Ground To Deny Premature Release To A Life Convict; Reformative Element To Be Considered: Bombay High Court
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The Goa Bench of the Bombay High Court recently observed that merely stating that the crime committed by convict was a serious one, without anything else, cannot be a good ground to refuse premature release.

A Bench of Justices MS Sonak and MS Jawalkar therefore allowed the petition of a life convict under Section 302 of IPC (Murder) and directed that he be granted premature release, as he had spent almost 20 years of actual imprisonment.

While doing so, the Bench took into account two factors:

(i) State Sentence Review Board had rejected Petitioner's application for premature release on 7 occasions, basically on the ground of seriousness of offence and the objections from the victim's family members;

(ii) the Sessions Court had taken into consideration the seriousness of the crime and opined that 19 years incarceration was sufficient taking into consideration the reformative element.

The Bench observed that the crime committed by the Petitioner was undoubtedly serious and that is why he was sentenced for life and suffered actual incarceration of about 20 years till date. It explained,

"The Board was, therefore, required to consider whether this sentence was sufficient and commensurate to the crime committed by the petitioner. Merely stating that this was a serious crime without anything else, cannot be a good ground to refuse premature release of the petitioner."

The Court proceeded to elucidate the principles set by the Apex Court in Sangeet & Anr. v. State of Haryana, (2013) 2 SCC 452, for release of prisoners and pointed out that while considering an application for premature release, the Government must obtain the opinion (with reasons) of the Presiding Judge of the Convicting or the Confirming Court.

The Bench noted,

  • A life convict has no indefeasible right to premature release, but he is entitled upon completion of 14 years of imprisonment, to have his case considered by the Sentence Review Board in accordance with the Prison Rules and for an appropriate recommendation in that regard to the State Government.
  • The State Sentence Review Board may consider the case of a life convict for premature release upon completion of 14 years imprisonment, and the role of the Sentence Review Board is only recommendatory and the decision on the premature release and the power to grant such release vests with the appropriate Government. The case of such a prisoner for premature release may be considered by the Government, either upon a recommendation made by the State Sentence Review Board in accordance with the Prison Rules or on an application made to it by the Prisoner himself under section 432 of the Cr. P.C.
  • The State Government before it takes a decision on the recommendation of the Sentence Review Board, or on an application by the prisoner seeking release, has to seek the opinion of the Presiding Judge of the convicting or confirming Court under Section 432(2) of the Cr. P.C.
  • The Presiding Judge of the convicting or confirming Court has to state his / her opinion on the case of the concerned prisoner with reasons for such opinion and to forward with the opinion a certified copy of the record of trial or of such record thereof as exists to the Government.
  • The Government upon receipt of the opinion from the Presiding Judge of the convicting or confirming Court alongwith the records of the case and on considering the opinion of the Court and the relevant material submitted by the Superintendent of the Jail under rule 404(1) of the Prison Rules has to take a decision in accordance with Section 432(1) of the Cr. P.C. read with Rule 404(2) of the Goa Prison Rules, 2006.

Therefore, noting that the Sessions Judge has recommended that 19 years of imprisonment is sufficient, taking into consideration the reformative element of sentencing, the Court said that the Petitioner's case can be considered for premature release.

It also took into account the fact that Petitioner was released on parole and furlough on not less than 23 occasions but there is no complaint that on any of these occasions he defied the terms and conditions subject to which he was released.

The Court also observed that the Board ought to not have denied Petitioner's early release merely on the basis of apprehensions expressed by the victim's family as there was no allegation that the petitioner interfered with the family members of the victim or with any of the witnesses who may have deposed against him, while he was on parole/ furlough.

"The Board, has itself noted that the Probation Officer interacted with the family members of the petitioner, i.e., his brother and sister-in-law, who have indicated their willingness to accept the petitioner in the family home should he be prematurely released. The Board has also referred to the release of the petitioner on parole and furlough but has failed to take into consideration the fact that the petitioner, when on parole, gave no cause for any complaints either from the witnesses or their family members who may have deposed against the petitioner or from the family members of the victim," the order states.

Interestingly, the Court refused to remit the matter to the Board for a fresh decision because the Board had already rejected the case of the petitioner on not less than 7 occasions, for almost the same reasons. "Therefore, in the peculiar facts in the present case, we feel that it would be quite futile to once again remit the matter to the Board," it said and ordered Petitioner's release.

Know the Law

As held by the Top Court in the case of Sangeet (supra), a prisoner serving a life sentence has no indefeasible right to release on completion of either 14 years or 20 years in prison. He is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government under Section 432 of the Cr.P.C. which, in turn, is subject to the procedural checks in that Section and the substantive check in Section 433-A of the Cr. P.C.

In case of a convict undergoing life imprisonment he will be in custody for an indeterminate period, therefore remissions earned by or awarded to such a life convict are only notional. In his case to reduce the period of incarceration a specific order under Section 432 of the Cr. P.C. will have to be passed by an appropriate Government, however, the reduced period cannot be less than 14 years as per Section 433A of the Cr. P.C. Before actually exercising the power of remission under Section 432 of the Cr. P.C., the appropriate Government must obtain the opinion (with reasons) of the Presiding Judge of the Convicting or the Confirming Court. Remissions can only be given on a case to case basis and not on a wholesale manner.

Case Title: Dilip S. Shetye v. State Sentence Review Board & Ors.

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