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2024 Supreme(Online)(KER) 34767
HIGH COURT OF KERALA
BECHU KURIAN THOMAS, J
GOPALAKRISHNAN P – Appellant
Versus
STATE OF KERALA – Respondent
WP(Crl.) 308/2024
SRI.K.S.MADHUSOODANAN, SRI.M.M.VINOD KUMAR, SRI.P.K.RAKESH KUMAR, SRI.K.S.MIZVER, SRI.M.J.KIRANKUMAR
Premature release of convicts is discretionary and not a right; individual circumstances must be considered, not parity with co-accused.
Headnote:(A) Code of Criminal Procedure, 1973 – Section 432 – Constitution of India – Article 161 – Premature release of convicts – The first petitioner, convicted under IPC Section 302, sought premature release after serving over 14 years, citing good behavior and vocational training – The court emphasized that premature release is not a right and must consider individual circumstances, not parity with co-accused – The petition was dismissed as the Advisory Board's discretion was upheld. (Paras 1, 6, 10, 13, 14) (B) Criminal Jurisprudence – The court highlighted the importance of considering the victim's perspective in decisions regarding premature release, stressing that leniency towards convicts should not undermine justice for victims. (Paras 8) (C) Advisory Board Discretion – The court reiterated that the Advisory Board has the discretion to recommend premature release based on individual merits, and reasons are required only for granting release, not for denial. (Paras 10, 14)
Facts of the case:
The first petitioner, sentenced to life imprisonment for murder, claimed eligibility for premature release based on good behavior and vocational training completed during imprisonment.
Findings of Court:
The court found no merit in the petition as premature release is not a right and the Advisory Board's discretion was upheld. Issues: The main issues included the eligibility for premature release and the principle of parity among co-accused. Ratio Decidendi: The court ruled that premature release is discretionary and not a right, emphasizing individual circumstances over claims of equality among co-accused. Result: Writ petition dismissed.
JUDGMENT
Petitioners seek a declaration that the first petitioner is entitled to the same treatment as meted out in Ext.P2 for grant of premature release under section 432 Cr.P.C read with Article 161 of the Constitution of India . A direction is also sought to prematurely release the first petitioner from imprisonment.
2. The first petitioner was the 11th accused in S.C. No.459/2007 on the files of the Sessions Court, Thrissur. He was convicted for the offence under section 302 of the Indian Penal Code, 1860 and was sentenced to life imprisonment by judgment dated 27.03.2009. On appeal to this Court, the conviction and sentence were affirmed while the special leave petition before the Supreme Court was dismissed on 27.01.2023. First petitioner alleges that after counting the set off of 137 days, apart from the remission of 5 years and 8 months as on 2021, he has undergone an actual sentence of more than 14 years and a total sentence of 20 years. He alleges that reckoning his good behaviour inside the prison, he was transferred in March 2012 to the Open Prison, at Viyyur Central Prison where he has been undergoing various studies.
3. The first petitioner claims to have passed his Secondary School Leaving Certificate in September 2010, Certificate of Masonry in 2014, Tappers Training Certificate in 2017, Electrical Wireman Certificate in 2018 and permit for Electrical Wireman in 2019. He also claims that he obtained the certificate for Refrigerator and Air Conditioning from Government Polytechnic in 2019 and has also completed a Beekeeping Training Course in 2023 apart from a Tappers Intensive Skill Improvement Programme again in 2023.
4. Petitioners allege that despite all the above achievements and even a favourable police report as well as the Probation Officer’s report, the first petitioner’s eligibility for being prematurely released from the sentence of life imprisonment was not considered favourably and instead, on 02.02.2024, the Jail Advisory Committee adjourned his case without any reason. In the meantime, on the basis of advice received, he preferred an appeal to the State Level Advisory Board. Petitioner also alleges that while the said appeal was pending consideration, he learnt that a person by the name of Sri.Baiju, who was one of the co-accused along with the first petitioner in the same crime (Convict No.5497) was granted premature release by the Government as per order dated 06.03.2024 in G.O. (MS)No.69/2024/HOME. In such circumstances, first petitioner claims that he is being subjected to arbitrary treatment as the 7th accused in the same crime was granted premature release while such treatment has not been extended to him, despite the petitioner standing on a much better footing in terms of reformation than the said Sri. Baiju. Hence this writ petition seeking directions for release of the first petitioner prematurely from imprisonment.
5. A statement has been filed by the third respondent alleging that the first petitioner - Convict No.2821, has undergone an actual imprisonment of 14 years, 9 months and one day as on 31.3.2024, apart from earning a total remission of five years and five months and 27 days. It was also stated that the first petitioner has already availed 1105 days of leave (39 times including Covid special leave) and during his period of sentence at the open prison he has completed various vocational training. The statement further mentions that as per rule 464 of the Kerala Prisons and Correctional Services (Management) Rules, 2014 (hereinafter referred to as ‘the Rules’), a Jail Advisory Board is constituted to recommend premature release of eligible prisoners and whenever a prisoner completes 14 years of actual sentence, without remission, he becomes eligible to be placed for consideration of the Advisory Board, even without any application. After discussions on the merits of each case, an appropriate decision is taken by the said Board whether to recommend the premature release of prisoner
