Bijaya Kumar Padhy @ Biji Padhy vs Chairman, State Sentence Review Board, Orissa, Bhubaneswar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2016 Supreme(Ori) 1141

IN THE HIGH COURT OF ORISSA
VINOD PRASAD AND BISWANATH RATH, JJ.
CRLMP. NO.1509 OF 2015 CRLPM NO. 277 OF2016
(Date of Judgment : 24.11.2016)
In the matter of applications under Articles 226 and 227 of the Constitution of India.
In both the CRLMPs
Bijaya Kumar Padhy @ Biji Padhy … Petitioner
Versus
Chairman, State Sentence Review Board,
Orissa, Bhubaneswar and others… Opp.Parties

Advocates Appeared:
For Petitioner: M/s. S.C. Tripathy, B.P. Tripathy & K.K. Pradhan. (in both the CRLMPs)
For Opp.Parties :Additional Government Advocate. (in both the CRLMPs)

Headnote:1. PENAL CODE, 1860 - Sec. 53 read with Sec. 45 - Constitution of India - Arts. 141, 142 - Whether imprisonment for life in term of Sec. 53 read with Sec. 45, IPC meant imprisonment for rest of life of the prisoner or a convict undergoing life imprisonment has a right to clear remission ? - As held by Apex Court, the sentence of life imprisonment means imprisonment of the rest of life or the remainder of life of the convict - Such convict can always apply for obtaining remission either under Art. 72 (b) of the Constitution or U/s 432, Cr.P.C. and the authority would be obliged to consider the same reasonably - State Governments are obligatory mandated to consider the case of life convicts reasonably.
2. CONSTITUTION OF INDIA, 1950 - Arts. 14 and 21 - Life convict - Rejection of prayer for pre-mature release - Writ - Rejection was based on extraneous consideration which, on the date on which petitioner’s case was considered by the Board, was also non-existent, as by that date petitioners stood acquitted in the Arm’s Act case which decision had already attained finality - At all stages but for the first petitioner has been subjected to discriminatory action by the Respondent-State and hence on those occasions both the rejection were not only illegal and discriminating but also arbitrary - A co-convict in the same proceeding having been permitted with remission in his sentence since 2009, High Court finds that the reason for rejection of similar request of the petitioner, even seven years thereafter, is not only illegal, arbitrary and discriminatory but appears to be an attempt staged and cooked one with clear intent to thwart the liberty of the petitioner granted under Arts.14 and 21 of the Constitution of India -Directions issued.
3. REMISSION - Punishment awarded through a judgment is not over-ruled but the convicts gets the benefit of a liberalised policy of stage pardon and such right of a convict cannot be thwarted on the whims and unfounded apprehensions without any tangible material - Granting remission to one in the same conviction and order of sentence and refused to the other is nothing but a most discriminatory act by the concerned authorities which has to be stamped with serious disapproval.

JUDGMENT

By the Bench:- The petitioner, a life convict, has filed Criminal Miscellaneous Petition No. 1509 of 2015, hankering his release, by making following prayer:-

“It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to :-

(a) Direct pre-mature release of the Petitioner in terms of judgment dated 15.4.2015 in CRLMP No. 816/14 and then in CRLMP No. 1128/15 disposed of on 23.3.2015:

(b) Pass such order or further order as may be deemed fit and proper.

2. Another petition was also filed by the same petitioner being CRLMP 227 of 2016, challenging rejection of his prayer for pre-mature release by the State Government, basing his claim on the decision by this Court rendered in W.P. (Crl.) No. 48 of 2014. Petitioner has made following prayer in this second application:-

“It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to:

(a) quash the impugned minutes of meeting dated 20.2.2016 and final order dated 25.2.2016 under annexure-4 Series and thereby direct pre-mature release of the Petitioner in terms of judgment dated 15.4.2015 in CRLMP No. 816/14 and then in CRLMP No. 1128/16 disposed of on 23.9.2015.

(b) direct State/its instrumentalities to pay adequate compensation to the Petitioner for depriving him his personal liberty since the year 2007,

(d) And for this act of kindness the petitioner shall as in duty bound shall ever pray.”

3. Perusal of pleadings, counter affidavits and the record reveals that the petitioner initially invoked extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India, by preferring CRLMP No. 816 of 2016, for his premature release of the petitioner. The CRLMP was heard and disposed of by this Court by judgment dated 15.4.2015, by making following observations and order:-

“In our view the State Government is not powerless to modulate the Rules or exercise executive power to undo an apparent injustice when its Rule comes in conflict with the basic structure of the Constitution under Chapter-III thereof, especially Article 14, which is untouchable. After 24th January 2012 the date on which the petitioner was acquitted of the crime alleged against him while on parole. Case of the petitioner became at par with other accused who is enjoying liberty of freedom outside jail boundary wall. The petitioner remained in jail cell for two more years. This brings his case within the area of breach of Article 14 of the Constitution. Since we are of the opinion that in this peculiar case the State is not bereft of the power to grant further periodic parole t the petitioner to remedy injustice meted out to him by it till the Hon’ble Supreme Court decides the issue to remission or reprieve or premature release, therefore while concluding we direct the State Government to consider parole to be granted to the petitioner considering entire relevant facts and circumstances and it is hereby order as such.“

4. Subsequently the respondent State Government considered the case of the petitioner and again rejected his claim for premature release and hence a second innings was initiated by the petitioner by filing Criminal Miscellaneous Petition No. 1128 of 2015, with the prayer to set aside adverse order passed by the State Government. Since interregnum, Hon’ble Apex Court, took up the question of premature release of life convicts by the State Governments, and reserved the judgment, that this Court, after hearing both the sides in Criminal Miscellaneous Petition 1128 of 2015, disposed it off by directing the petitioner to get an order from the apex Court or wait till apex Court has decided the matter finally. Hon’ble Supreme Court, in all the concerned cases, lead case being Writ Petition (Crl.) No. 48 of 2014, disposed of by their judgment dated 2.12.2015 with certain directions.

5. In this back ground that we have heard both the contesting sides. From perusal of the pleadings and from t

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