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1998 Supreme(Ori) 69
High Court Of Orissa
ARIJIT PASAYAT, S. C. DATTA
RABI PRAKASH AWASTHI - Appellant
Versus
STATE OF ORISSA - Respondent
O. J. S. 11630 Of 1997
Decided On : 03/10/1998
A.A.KHAN, G.P.Dutta, M.R.NAYAK
A life convict who has been sentenced to imprisonment for life has to complete fourteen years of actual incarceration; otherwise he cannot invoke S. 432, and S. 433 of the Code.
Headnote:
CRIMINAL LAW - Premature release of life convict - Section 433 of the Code of Criminal Procedure, 1973 - Petitioner, a life convict, challenged the action of the opposite parties in not accepting his prayer for premature release in terms of Section 433 of the Code of Criminal Procedure, 1973 (in short, the 'code').
Fact of the Case:
Petitioner was convicted for an offence punishable under Section 302 of Indian Penal Code, 1860 (in short 'ipc') by the learned Sessions Judge, Sambalpur in S. T. Case No. 70 of 1977 and was taken to jail custody on 1-9-1978. By judgment dated 23-1-1979 learned Sessions Judge found the accused guilty and sentenced him to undergo imprisonment for life. Order of conviction and sentence passed by learned trial Judge was confirmed by this Court in appeal. On completion of fourteen years' of imprisonment, a reference was made to the State Government as required under Rule 518 (1) of Orissa Jail Manual (in short, 'manual') for consideration of the question whether petitioner was to be released.
Finding of the Court:
The Court held that the reasons which weighed with State Government to refuse premature release cannot be said to be unreasonable or perverse to warrant interference by this Court.
Issues: Whether the petitioner is entitled to be considered for grant of benefit under S. 433-A of the Code, as S. 302, IPC carries a death sentence also.
Ratio Decidendi: The Court held that S. 433-A of the Code is applicable to two categories of convicts (a) those who could have been punished with the sentence of death, but were not, and (b) those whose sentence has been converted into imprisonment for life under S. 433. The Court further held that the object of S. 433-A of the Code is that those governed by it shall not be released unless they have served a sentence of at least fourteen years imprisonment. The Court also held that a convict who has been sentenced to imprisonment for life has to complete fourteen years of actual incarceration; otherwise he cannot invoke S. 432, and S. 433 of the Code.
Final Decision: The Court dismissed the writ application.
PASAYAT, J.
( 1 ) PETITIONER, a life convict detained in Balasore District Jail has challenged the action of the opposite parties in not accepting his prayer for premature release in terms of Section 433 of the Code of Criminal Procedure, 1973 (in short, the 'code' ). Petitioner was convicted for an offence punishable under Section 302 of Indian Penal Code, 1860 (in short 'ipc') by the learned Sessions Judge, Sambalpur in S. T. Case No. 70 of 1977 and was taken to jail custody on 1-9-1978. By judgment dated 23-1-1979 learned Sessions Judge found the accused guilty and sentenced him to undergo imprisonment for life. Order of conviction and sentence passed by learned trial Judge was confirmed by this Court in appeal. On completion of fourteen years' of imprisonment, a reference was made to the State Government as required under Rule 518 (1) of Orissa Jail Manual (in short, 'manual') for consideration of the question whether petitioner was to be released. The State Government was of the view that it was not desirable to release the petitioner, Petitioner takes a plea that he has already been inside jail for fourteen years without remission. He was allowed to go on parole on several occasions. On supposition, conjectures and surmises the State Government has refused to direct his release. Therefore, he has prayed for a direction to the State Government to consider the matter.
( 2 ) IN the counter-affidavit filed by the State of Orissa in Law Department, it has been indicated that petitioner, a life convict (No. 8019/a) has on erroneous premises sought for release from custody on completion of fourteen years' imprisonment. Petitioner's case was referred to I. G. of Prisons under Rule 518 (1) and (2) of Manual to the State Government for consideration of premature release. After receipt of the proposal from I. G. of Prisons, Superintendent of District Jail, Balasore, S. P. and Collector, Jharsuguda were required to give their opinion. The S. P. and Collector declined to recommend premature release of the petitioner on the ground that petitioner is a terror in the locality and the local residents are mortally afraid of him, relations of the petitioner are still inimical to him. Therefore, premature release of petitioner will be detrimental to the peace of the locality and it will also not be safe in the interest of petitioner to be released as hostility still subsists. The State Government considered the entire matter in its proper perspective and rejected the proposal on 18-3-1997.
( 3 ) PETITIONER has given instance of eight persons to contend that they were similarly situated. This stand has been refuted by State Government on the ground that originally case of those persons for premature release was considered by the State and their request for release on completion of fourteen years of substantive sentence was rejected. Subsequently when they completed twenty years of imprisonment, their case was again considered in terms of Rule 708-A of the Manual. At that stage, Government on consideration of long tenure of custody has directed release. Stand of petitioner that he was released on parole has been disputed. Accusation which led to the trial and conviction are that he brutally murdered his family members by firing and stabbing. While considering the question whether premature release would be desirable and that of petitioner in the background of retaliatory possibilities, safety of local residents is also taken into consideration.
( 4 ) LIFE without liberty is "lasting" but not "living", as liberty is the life line of every human being. It is, therefore, not a matter of surprise that liberty is considered one of the most cherished and precious possession of every human being. No one likes fatters on his personal liberty.
( 5 ) SECTION 432 of the Code corresponds to and reproduces almost word for word Section 401 and sub-section (3) of Section 402 of the 1898 Code. Sub-sections (1) to (4) reproduces word for word sub-section
