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.

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 recomm