The denial of premature release based on misapplied guidelines is arbitrary and discriminatory, necessitating a reassessment by the Remission Board.

JUDGMENT :

Rajeev Ranjan Prasad, J.

Heard learned counsel for the petitioners and learned AC to AG for the State of Bihar.

2. The two petitioners in the present writ application are seeking a direction to the respondent authorities for their premature release from the custody as they have already served their sentence of fourteen years physically and more than twenty years with remission.

3. During pendency of the writ application, the petitioners amended the writ application. By way of amendment, the petitioners prayed for setting aside the decision dated 28.12.2023 passed by the State Remission Board (hereinafter referred to as the ‘Board’) whereby and whereunder the application of the petitioners for premature release has been rejected.

Brief Facts of the Case

4. The petitioners are serving their sentence in connection with Asthawan (Sare) P.S. Case No. 120 of 2004. They faced trial for the charges under Sections 302/34, 307/34, 386/34 and 120B of the Indian Penal Code (in short ‘IPC’) as well as under Section 27 of the Arms Act. The petitioners were appellant in Cr. Appeal (DB) No. 1230 of 2006 which was heard with Death Reference No. 10 of 2006, they were awarded death sentence by the learned trial court for the offence under Section 302/34 IPC.

5. The Hon’ble Division Bench of this Court upheld the conviction of the appellants under Section 302/34 IPC but while considering the sentence which may be awarded to the appellants, the Hon’ble Division Bench observed interalia as under:-

“…. so far as choice of sentence is concerned it has to be kept in mind that the appellant Vijay and four others on account of their brick kiln being closed were under great frustration and their mental condition was also disturbed so whatever they did was done in frustration and due to business rivalry. No doubt it is a case of mass murder but in my considered view this case does not come within the category of "rarest of rare" cases. Moreover all the five appellants are from the same family. In the circumstances, I think that the ends of justice would be met if the sentence of death imposed on the appellants Bhuneshwar Prasad, Mahesh Prasad, Ajay Kumar, Vijay Prasad and Dhananjay Prasad are modified into the sentence of life imprisonment.”

6. It appears that the petitioners moved the Hon’ble Supreme Court in Cr. Appeal No. 769 of 2009. The appeal was taken up for hearing on October 10, 2018. By that time, appellant nos. 1 and 2 had died. So far as the other appellants were concerned, they were advised to withdraw the appeal with liberty to pursue remedy for premature release. The Hon’ble Supreme Court while allowing the remaining appellants to withdraw the appeal observed in the following words:-

“At the request of these appellants, the instant appeal is disposed of as withdrawn with the liberty as prayed.

We make it clear that we are not expressing any opinion either way on the merits of the proposed remedy. The same will have to be considered on its own merits in accordance with law.”

7. It appears from Letter No. 2106 dated 09.04.2020 written by Superintendent of Police, Nalanda that an inquiry was conducted prior to recommendation of the case of the petitioner for premature release. In the said inquiry at the level of SDPO, Sadar, Biharsharif, it was found that there was no chance of any law and order problem or internal dispute in case of release of these petitioners. The Superintendent of Police, Nalanda, therefore, recommended the case of th