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IN THE HIGH COURT OF JUDICATURE AT PATNA
RAJEEV RANJAN PRASAD, J.
Cr. WJC No.938 of 2023
(5.10.2024)
Sudisht Rai @ Sudist Ray ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Criminal Procedure Code, 1973 – Sections 432, 433 and 433A – Rule 529 of Bihar Jail Manual [Rule 481 of Bihar Jail Manual, 2012] – Premature release of life convict – Where sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of punishments provided by laws or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of sentence – In present case, trial court imposed a sentence of imprisonment for life upon petitioner for an offence committed under Section 302 IPC – Since Section 302 IPC is punishable with life imprisonment or death, the case is covered under Section 433-A first Part – Sub-clause (ka) of clause (iii) of Notification dated 10.12.2002 is in consonance with Section 433-A Cr.P.C. – Even sub-clause (gha) of clause (iii) of Notification would not come to rescue of a person who has been serving a life sentence for an offence of which death is one of punishments, if he would be governed by Notification dated 10.12.2002 – In no case, sub-clause (gha) of clause (iii) of said Notification may be construed in a manner which would put it in teeth of Section 433-A CrPC and will have effect of rendering sub-clause (ka) of clause (iii) of Notification dated 10.12.2002 redundant in eye of law – Bihar Prison Manual is a piece of Subordinate legislation – Rule 529 which was substituted by Notification dated 10.12.2002 being a part of earlier Jail Manual which stood superseded on coming into force of Manual of 2012, was no longer an eligibility criteria for seeking premature release. (Paras 25 and 31)
Criminal Procedure Code, 1973 – Sections 432, 433 and 433A – Rule 529 of Bihar Jail Manual [Rule 481 of Bihar Jail Manual, 2012] – Premature release of life convict – Instead of going into issue of declaring Coordinate Bench Judgment in case of Khelawan Yadav per incuriam, it would be well within judicial discipline and spirit of justice that matter be referred to a Division Bench of this Court for answering following issues: (i) Whether sub-clause (gha) of clause (iii) of the notification dated 10.12.2002 issued by Home (Special) Department, Government of Bihar by which Rule 529 of then Bihar Jail Manual was substituted would cover case of life convict who is serving sentence for committing an offence in which death is one of punishments. (ii) Whether a life convict whose case is covered under Section 433A Cr.P.C. may be granted pre-mature release on any ground whatsoever provided by way of a rule made by State Government in form of a subordinate piece of legislation. (iii) Whether petitioner may be allowed to raise his claim for pre-mature release on the basis of judgment of Coordinate Bench of this Court in case of Khelawan Yadav considering date of his conviction, even as his case is found covered under Section 433A Cr.P.C. (Para 35)
Rajeev Ranjan Prasad, J. – This writ application has been preferred for the following reliefs: –
“(I) For issuance of an appropriate writ in the nature of MANDAMUS, commanding and directing the Respondent Authorities to consider the case of the petitioner for grant of pre-mature release and release him in view of the provisions contained under clause (iii) (d) of Notification contained in Memo No. 3106 dated 10.12.2002 in connection with Sessions Trial No. 51 of 1989 arising out of Sahebganj P.S. Case No. 36 of 1985 wherein vide judgment and order dated 24.08.1990 the petitioner was convicted for life on the ground that now the petitioner had already attained the age of 68 years as also the petitioner had completed more than seven years of his physical incarceration.
(II) For issuance of any other appropriate writ/writs, order/orders, direction/directions for which the writ petitioner would be entitled under the facts and circumstances of the case. ”
Case of the Petitioner
2. Petitioner is a citizen of India who was made an accused in Sahebganj P.S. Case No. 36 of 1985 registered for the offence punishable under Section 302 of the Indian Penal Code (hereinafter in short ‘IPC’). The allegation against him was that he had committed murder of one Chandrika Rai on 01.05.1985. In the trial of the said case, the petitioner was held guilty, he was convicted under Section 302 IPC and was ordered to undergo life imprisonment vide judgment and order dated 24.08.1990 by the learned Sessions Judge, Muzaffarpur in Sessions Trial No. 51 of 1989. A copy of the judgment of the learned trial court is on the record as Annexure ‘P-1’.
3. It appears on perusal of the judgment that the case was registered on the basis of the fardbeyan of one Meghu Rai, brother of deceased Chandrika Rai, who alleged that one Ram Pravesh Rai, son of accused Sudisht Rai had plugged tikola (small size of mangoes) on 01.05.1985 at about 07:30 am from his tree situated in the same plot in which his house stands. His mother asked said Ram Pravesh Rai not to plug tikolas and went to register protest with accused Sudhist Rai and his wife. On this, the wife of Sudisht Rai abused his mother and while she was abusing, accused Sudisht Rai also started to abuse his mother. It was alleged that when the deceased brother of the informant asked them not to abuse, wife of Sudish Rai came with a lathi and aimed lathi at Chandrika Rai who caught hold of the lathi. In the meantime Sudisht Rai brought bhala and inflicted bhala blow on the chest of Chandrika Rai. Chandrika Rai came running in the injured condition and while preparations were being made to take him to Sahebganj Hospital for treatment, he succumbed to his injuries in about 5 or 10 minutes of the assault.
4. The judgment of the learned trial court was sought to be challenged in Cr. Appeal (DB) No. 370 of 1990 before this Court. The said Cr. Appeal was dismissed vide judgment dated 04.09.2012. During pendency of the appeal, the appellant-petitioner was on bail.
5. The judgment of the Hon’ble Division Bench of this Court in Cr. Appeal (DB) No. 370 of 1990 was subject to a Special Leave Petition (Criminal), Diary No. 9621 of 2019 which stood dismissed on 13.09.2019. In this manner, the judgment of conviction and order of sentence attained finality.
6. The petitioner remained in jail for a little more than two years during the trial and the pendency of appeal. He is in jail since 29.05.2018 i.e. for about 6 years 4 months. When the writ application was filed, he was in jail for about 5 years since 29.05.2018.
7. The petitioner claimed consideration of his case for grant of premature release. According to him, his age mentioned in the judgment of the learned trial court is 35 years. The Aadhar Card of the petitioner shows his date of birth as 01.01.1955 and as per the assessment of Medical Board which was constituted on the request of the Jail Superintendent, Khudi Ram Bose Central Jail, Muzaffarpur, the petitioner has been found aged i
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