IMPORTANT POINT
Premature release from prison – Mere reference to heinous nature of crime and vague remark that age and potentiality of convicts are against grant of premature release are not sufficient from any legal perspective.

JUDGMENT

Sabyasachi Bhattacharyya, J.—Both the petitioners are convicts and are languishing in jail since June 20, 2001, that is more than 22 years.

2. They have been in continuous imprisonment in the Baruipur Central Correctional Home. Intermittently, the petitioners were granted parole. Their conduct during parole was without any complaint from the Authorities. The petitioners have sought remission. One of the co-accused of the petitioners, one Tarun Mondal was released by the Supreme Court with the rider that he cannot enter the jurisdictional police station area.

3. The petitioners” requests for remission, however, were repeatedly refused.

4. Insofar as the petitioner no.1 is concerned, in a meeting of the State Sentence Review Board (SSRB) dated September 2, 2022, the premature release request was rejected. The same decision was repeated on February 17, 2023.The considerations by the SSRB were preceded by two orders of this Court passed in WPA No. 14583 of 2022 and WPA No. 28437 of 2022.

5. In case of the petitioner no.2, in the meeting dated September 2, 2022, his prayer for premature release was rejected. The said consideration was pursuant to an order also passed in WPA No. 14583 of 2022. The primary premise of the rejections was the serious nature of the offence committed by the petitioners which allegedly affected the society at large, as well as the age, potentiality and social context of the petitioners.

6. Learned counsel for the petitioners argues that the said last rejection was patently contrary to the order dated January 10, 2023 passed in WPA 28437 of 2022 by this Court, which relied on the judgment of the Supreme Court in Satish @ Sabbe Vs. The State of Uttar Pradesh and Zahid Hussein and others Vs. State of West Bengal and another.

7. The primary criteria regarding the conduct of the petitioners in jail, it is argued, was never considered by the Authorities.

8. It is argued that there is no question of further potentiality remaining in the petitioners to commit the crime for which they were convicted. Hence, the petitioners challenge the refusal to grant premature release to the petitioners.

9. Learned counsel for the State controverts the submissions of the petitioners and argues that the potential of the petitioners to commit similar crime again cannot be ruled out in view of them being in their 40s. As per Section 61(2) of the West Bengal Correctional Services Act, 1992 (hereinafter referred to as, “the 1992 Act”), a prisoner shall be released on certain specific cases. Examples of such cases are, when a prisoner has undergone continuous imprisonment for a period of 14 years including the period of release on parole, when a prisoner is in danger on account of sickness or suffering from compete blindness or infirmity of old age or leprosy or tuberculosis, when the Superintendent recommends to the State early release of such reformed prisoner, etc. In the present case, although the period of incarceration was much more than 14 years, in view of the heinous nature of the crime committed by them, since both of them are convicts in gang rape cases, the authorities are not confident to release the petitioners prematurely, particularly keeping in view the welfare of the society at the effect of the crime on society at large. Further, the age of the petitioners indicate that their potentiality cannot be ruled out to commit similar crimes, if let loose early.

10. Learned counsel further argues that the authorities including the Board considered the socio-economic condition of the petitioners and only thereafter refused the request of the petitioners for early release. It is argued that such discretionary power of the authorities ought not to be interfered with.

11. Heard learned counsel for the parties. It is not in doubt that the petitioners were guilty of gang rape and as such convicted to life imprisonment.

12. The limited question is whether the discretionary power lying with the SSRB was exercised properly a