1. Life convict seeking premature release under Article 32 — Dispute over rejection of release recommendations based on executive policy excluding specific categories of crimes. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 )
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2023 Supreme(SC) 981
SUPREME COURT OF INDIA
S. Ravindra Bhat, Dipankar Datta, JJ.
Joseph – Appellant
Versus
The State of Kerala & Ors. – Respondents
Writ Petition (Criminal) No (S). 520 of 2022
Decided On : 21-09-2023
Important Points
IMPORTANT POINTS
(1) Remission policy prevailing on the date of conviction, is to be applied in a given case, and if a more liberal policy exists on the day of consideration, then latter would apply.
(2) Blanket exclusion of certain offences from scope of grant of remission, especially by way of an executive policy, is not only arbitrary but turns ideals of reformation that run through our criminal justice system, on its head.
(1) Remission policy prevailing on the date of conviction, is to be applied in a given case, and if a more liberal policy exists on the day of consideration, then latter would apply.
(2) Blanket exclusion of certain offences from scope of grant of remission, especially by way of an executive policy, is not only arbitrary but turns ideals of reformation that run through our criminal justice system, on its head.
Subject
Remission and Premature Release - Premature Release of Long-Term Convicts
Act Referred
CONSTITUTION OF INDIA: Art.32, Art.161, Art.72, Art.21, Art.20, Art.14
CRIMINAL PROCEDURE CODE: S.433(a), S.432
INDIAN PENAL CODE: S.302, S.392, S.376
Kerala Prison Rules: R.4
PRISONS RULES: R.377, R.462, R.463, R.464, R.465, R.466, R.467, R.468
CRIMINAL PROCEDURE CODE: S.433(a), S.432
INDIAN PENAL CODE: S.302, S.392, S.376
Kerala Prison Rules: R.4
PRISONS RULES: R.377, R.462, R.463, R.464, R.465, R.466, R.467, R.468
Headnote
Criminal Procedure Code, 1973 – Sections 432 and 433-A – Constitution of India – Articles 72 and 161 – Premature release of life convict – Remission policy prevailing on the date of conviction, is to be applied in a given case, and if a more liberal policy exists on the day of consideration, then latter would apply – Execution of a sentence is sole prerogative of State/Executive which may exercise its discretion as granted constitutionally (Art. 161 and 72 of Constitution) and statutorily (Section 432, Cr.P.C., and State enactments) – To issue a policy directive or guidelines, over and above Act and Rules framed (where latter forms part and parcel of former), and undermine what they encapsulate, cannot be countenanced – Blanket exclusion of certain offences from scope of grant of remission, especially by way of an executive policy, is not only arbitrary but turns ideals of reformation that run through our criminal justice system, on its head – Discretion conferred widely by plenary statute or statutory rules, cannot be lightly fettered – Latitude Constitution gives to executive, under Articles 72 and 162, in regard to matters such as remission, commutation, etc, cannot be caged or boxed in form of guidelines, which are inflexible – Life sentence is deemed to be 20 years of incarceration – After this, prisoner is entitled to premature release – At this juncture, redirecting petitioner who has already undergone over 26 years of incarceration (and over 35 years of punishment with remission), to undergo, yet again, consideration before Advisory Board, and thereafter, State Government for premature release would be a cruel outcome – Petitioner to be released with immediate effect. (Paras 19, 26, 28, 29, 31, 34 and 35)
Facts of the case:
Petitioner, currently serving a life imprisonment sentence for a crime committed in 1996, punishable under Sections 302 and 392 of the Indian Penal Code approaches this court seeking to enforce his right under Article 32 of the Constitution of India. He seeks appropriate direction to State Government, to prematurely release him, having been in custody (i.e., actual imprisonment) for over 26 years, and served a sentence of over 35 years (including over 8 years of remission earned).
Findings of Court:
As per records produced by the State, the petitioner has earned over 8 years of remission, thus demonstrating his good conduct in jail. The discussions in the minutes of meetings of the Jail Advisory Board are also positive and find that he is hardworking, disciplined, and a reformed inmate. Therefore, in interest of justice, this court is of the opinion, that it would be appropriate to direct release of the petitioner, with immediate effect. It is ordered accordingly.
Result : Writ Petition allowed.
Legal Category Hierarchy
- crime and sentencing
- constitutional law
- administrative law
Advocates appeared:
For the Petitioner(s): Mr. Adolf Mathew, Adv. Mr. Sanjay Jain, AOR
For the Respondent(s): Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mr. Subhash Chandran K.R., Adv. Mrs. Ashly Harshad, Adv.
For the Petitioner(s): Mr. Adolf Mathew, Adv. Mr. Sanjay Jain, AOR
For the Respondent(s): Mr. Harshad V. Hameed, AOR Mr. Dileep Poolakkot, Adv. Mr. Subhash Chandran K.R., Adv. Mrs. Ashly Harshad, Adv.
Table of Contents
2. Petitioner claims statutory right to remission and priority of rules over executive guidelines — State contends remission is a discretionary act of mercy. (Para 8 , 9 , 10 , 11 , 12 , 13 , 14 , 15 , 16 )
3. Executive guidelines cannot override statutory rules or fetter statutory discretion — Blanket exclusion of certain offences from remission is arbitrary and undermines the reformative goal of sentencing. (Para 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27 , 28 , 30 , 31 , 33 , 34 , 35 )
4. Statutory discretion cannot be fettered by self-created executive policies; guidelines are advisory and subservient to legislative acts and statutory rules. (Para 29 , 32 )
5. Writ petition allowed — Direction for the immediate release of the petitioner. (Para 35 , 36 )
6. Which remission policy applies to a convict for premature release?
The remission policy prevailing on the date of conviction is applicable. However, if a more liberal policy exists on the day of consideration, the more liberal policy shall apply. (Para 19 )
7. How is the date of conviction determined when an acquittal is reversed on appeal?
An appellate conviction relates back to the date of the trial court's verdict and substitutes it. Such persons are entitled to the benefit of the remission system prevailing prior to the appellate judgment. (Para 20 , 21 )
8. Can executive guidelines restrict the grant of statutory remission?
No. Statutory discretion cannot be fettered by self-created executive rules or policies. Guidelines that do not have statutory flavor are merely advisory and are subservient to legislative acts and statutory rules. (Para 28 , 29 , 32 )
9. Is the blanket exclusion of certain crimes from premature release legally sustainable?
No. Blanket exclusion based on the nature of the crime committed in the distant past is arbitrary, violates Article 14, and contradicts the reformative and rehabilitative goals of the criminal justice system. (Para 28 , 33 )
JUDGMENT :
S. RAVINDRA BHAT, J.
1. The petitioner, currently serving a life imprisonment sentence for a crime committed in 1996, punishable under Sections 302 and 392 of the Indian Penal Code (hereafter “IPC”) approaches this court seeking to enforce his right under Article 32 of the Constitution of India. He seeks appropriate direction to the state government, to prematurely release him, having been in custody (i.e., actual imprisonment) for over 26 years, and served a sentence of over 35 years (including over 8 years of remission earned).
Facts and background
2. It was alleged that on 16.09.1994, the petitioner had gone to his sister-in-law’s (the deceased victim) place of work, and on the false pretext that her mother was seriously ill and had been admitted to the hospital, taken her away with the permission of the in-charge of the convent where she worked. The prosecution case was that he had her walk along the railway line and at a desolate place, allegedly raped and robbed her of the ornaments she was wearing, before laying her on the tracks to be runover by a passing train.
3. The petitioner was arrested on 09.10.1994 in connection with the case and remained in custody till the trial court1[By judgment dated 23.03.1996 passed by the Sessions Court, Thrissur in S.C. No. 73/1995] acquitted him of all charges on 23.03.1996. The High Court2[By judgment dated 06.01.1998 passed by the Kerala High Court in Crl. A. No. 511/1996] reversed the acquittal, and convicted the petitioner by its judgment dated 06.01.1998 for the offences punishable under Section 302, 376 and 392 IPC. The High Court sentenced him to life imprisonment for the offence under Section 302, and rigorous imprisonment of 7 years on each count of Section 376 and 392 IPC, which were to run concurrently. This court3[By judgment dated 27.04.2000 passed by this Court in Crl. A. No. 656/1998], however, on 27.04.2000 set aside the conviction under Section 376 IPC and confirmed the conviction and sentence under Sections 302 and 392 IPC only.
4. Pursuant to an order of this court, the respondent-state filed an affidavit indicating the computation of his period of sentence undergone, the status of his plea for remission to be granted, as well as filed the state’s various remission policies (as amended from time to time). The petitioner completed 1 year 5 months and 10 days of custody as an undertrial, before his acquittal by the trial court. After his conviction by the High Court, he surrendered to the sentence on 28.01.1998, and remained in custody thereafter. On 13.08.2010, he completed 14 years of actual imprisonment (including the time spent as an undertrial). And on 13.08.2016, he completed 20 years of actual imprisonment. The custody certificate produced in his writ petition, confirms that he completed actual imprisonment of 25 years 9 months and 26 days on 07.06.2022, (i.e., he completed 25 years actual imprisonment on 13.08.2021). However, in terms of the state’s counter affidavit, as on 31.01.2023, he completed 25 years 10 months 3 days of actual imprisonment and has earned 8 years 4 months and 16 days in remission. Regardless of the arithmetical inconsistencies, it is not contested that he has completed over 26 years of actual imprisonment.
5. In the course of hearing, it was pointed out that the petitioner’s case had been considered by the Advisory Committee/Jail Advisory Board under prevailing Rules4[ Kerala Prison Rules , 1958 (hereafter ‘1958 Rules’) and Kerala Prisons and Correctional Services (Management) Rules, 2014 (hereafter ‘2014 Rules’).] on nine occasions of which three times, the Board had recommended his premature release. However, the state government had rejected his request on all three occasions. Pursuant to a direction by this court, the State has placed on record each of the Minutes of the Meeting/Reports of the Advisory Boards, containing recommendations (positive and negative) relating to the petitioner, and the rejection orders passed by the Sta
