ORDER
K. A. Swami, J.
1. In this petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the Government Order dated 12-11-1984 bearing No. HD 87 PRR 84, produced as Annexure-E. He has also sought for issue of a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to release him prematurely.
2. 1) The petitioner along with four other accused was convicted on 18-8-1978 for the offences punishable under Sections 143, 148, 307 read with Section 149; and Section 324 read with Section 149 of the Indian Penal Code, in Sessions Case No. 12 of 1977 on the file of the Principal District and Sessions Judge, Bangalore, and was sentenced to undergo rigorous imprisonment for a period of 3 months, one year, 5 years and one year respectively on each of the aforesaid counts. The substantive sentences were ordered to run concurrently.
2. 2) Being aggrieved by the aforesaid order of convictions and sentences, the petitioner along with other accused preferred Criminal Appeal No. 280 of 1978; and the State also preferred Criminal Appeal No. 68 of 1979 before this Court. Both the appeals were heard and decided together by this Court, on 1st August, 1979. This Court confirmed the convictions and enhanced the sentence from five years to ten years. Pursuant to the order of convictions and sentences, the petitioner has been undergoing imprisonment in the District Prison, Mysore. During the period of trial and after conviction, the petitioner has been on bail for some time and also had been released on parole for some time.
2.3) After the petitioner became eligible for review of sentence, his case was taken up by the Advisory Board for the District Prison, Mysore, on 6-4-1983 for review of sentence. The majority of the members of the Advisory Board opined in favour of premature release of the petitioner; whereas the District and Sessions Judge, Mysore and the Inspector General of Prisons, Karnataka did not opine in favour of premature release of the petitioner. Inspite of the majority opinion in favour of premature release of the petitioner, the case of the petitioner for premature release was not put up before the State Government; therefore the petitioner approached this Court in Writ Petition No. 21012/83, ILR 1985 KAR 1013 for issue of a writ in the nature of mandamus to respondents 2 to 4 to refer his case to the Advisory Board for the District Prison, Mysore, or in the alternative to consider the recommendation of the Advisory Board for premature release. That Writ Petition was decided by this Court on 25th September, 1984. It was held :-
'(i) the proceeding of the Advisory Board held on 6-4-83 was a valid proceeding which was attended by five out of seven members of the Advisory Board and the majority of them opined in favour of the premature release of the petitioner. Therefore, the Advisory Board, in its proceeding dated 6-4-1983 did recommend for premature release of the petitioner.
(ii) the recommendation made by the Advisory Board on 6-4-1983 had not been placed before the State Government ; therefore, it was not necessary to bring the subject before the Advisory Board subsequent to 6-4-1983.
(iii) it was necessary for the 2nd respondent to submit the recommendation of the Advisory Board dated 6-4-1983 for the premature release of the petitioner to the State Government for its consideration.'
Accordingly, the 2nd Respondent was directed to place the opinion of the Advisory Board dated 6-4-1983 before the State Government on or before the 10th October, 1984 without expressing his opinion in any manner. The State Government was also directed to consider the recommendation of the Advisory Board as incorporated in its proceeding dated 6th April, 1983 for the premature release of the petitioner without reference to its earlier order rejecting the petition filed by the father of the petitioner for the premature release of the petitioner and also the letter dated 29-7-1983 bearing No. J2/CR. 300/83 written by the Inspector General of Prisons - Sri C. S. Mallaiah (2nd Respondent) and without obtaining his opinion in any manner and take a decision in the light of the observations made in the order, on or before the 15th November, 1984. It was also further directed that if the State Government failed to take a decision on reconsideration of the recommendation dated 6-4-1983 made by the Advisory Board for premature release of the petitioner and in the light of the observations made in the order on or before the 15th November, 1984, the petitioner shall stand prematurely released. On the contrary, if the State Government were to take a decision on or before the 15th November, 1984 not to release the petitioner prematurely from the jail, he was directed to surrender to the jail authorities of the District Prison, Mysore within 24 hours from the time of the service of the order. During the period of consideration, the petitioner was directed to be released on bail on certain conditions. It was also made clear that it was open to the petitioner to challenge the decision of the State Government regarding his premature release if it went against him.
2.4) Accordingly, the State Government has taken a decision by the impugned order dated 12th November, 1984, which is as follows :
'After taking all the relevant factors into consideration and the recommendation contained in the proceedings of the Advisory Board, District Prison, Mysore, dated 6-4-1983, Government have come to the conclusion that any lenience shown to convicts of the kind in question would be totally misplaced and would not serve the ends of justice. Government have therefore decided not to accept the recommendation of the Advisory Board, District Prison, Mysore, dated 6-4-1983, relating to the premature release of the convict No. 1821, Sri. M.P. Jayaraj. Hence, Government hereby order that the convict No. 1821, Sri M. P. Jayaraj, shall not be released prematurely. It is also hereby ordered that a copy of this order should be served forthwith on the convict No. 1821, Sri M.P. Jayaraj.'
It is this order that is assailed in this Writ Petition.
3. The respondents have filed the statement of objections and additional statement of objections. The petitioner has also filed the reply statement and an application for raising additional ground which has also been allowed. The records of the case are also made available during the course of the hearing. Sri B. Veerabhadrappa, Learned Counsel for the. petitioner, and Sri S. Udayashankar, Learned High Court Government Pleader for respondents, are heard. In this order, the Advisory Board for the District Prison, Mysore, will hereinafter be referred to as the 'Advisory Board'. The Karnataka Prisons Act, 1963 ; The Karnataka Prison Rules, 1974 ; and the Karnataka Prison Manual, 1978, will be referred to in this order as the 'Act', 'Rules' and 'Manual' respectively.
4. It is contended on behalf of the petitioner by Learned Counsel Sri Veerabhadrappa, that the State Government has not taken into consideration the observations made in the decision of this Court in Writ Petition No, 21012 of 1983 ; that the State Government has proceeded on wrong assumption of facts as to the period of sentence undergone ; that the State Government has not taken into consideration the relevant factors and circumstances which are enumerated in para 821 of the Manual ; that the State Government has based its decision mainly on the facts and circumstances and the conduct of the petitioner which led to the conviction and enhancement of sentence ; that the opinion of the Advisory Board has not been considered in the correct perspective ; that the State has not taken into consideration all the relevant factors ; that there is no proper consideration of the case of the petitioner ; that even subsequently the Advisory Board in its meeting held on 8-10-1984 has again recommended tor premature release of the petitioner ; that there is nothing seated regarding the conduct of the petitioner while serving the sentence which is very relevant for arriving at a decision whether the petitioner has or has not not to be prematurely released; that the petitioner has by his consistent good conduct in the prison has shown that he has overcome the conduct of the nature which led to his conviction; that he has now become completely different and improved person; that by his consistent good work and conduct in prison, he has shown that he can be trustworthy citizen even if he is released prematurely; that the unexpired portion of sentence being of short duration; that in tune with modern accepted theory of rehabilitation of an offender for the good and safety of the society and on taking into consideration the latest opinion of the Advisory Board; it is submitted that if this Court is of the view that the order of the State Government is not sustainable, instead of directing the State Government to reconsider the matter afresh in the light of the opinion of the Advisory Board dated 8-10-1984. it is just and appropriate to direct premature release of the petitioner on such terms and conditions as the Court may deem fit to impose.
5. On the contrary, it is contended by Sri S. Udayashankar, learned High Court Government Pleader, that the State Government has kept in view the observations made in the order of this Court in Writ Petition No. 21012 of 1983 dated 25th September, 1984; that it has taken into consideration all the relevant factors before arriving at a conclusion that the petitioner is not entitled to a premature release; that the factors stated in para 821 of the Manual are to be taken into consideration by the Advisory Board and not by the State Government; that the State Government has considered the matter in accordance with para 817 of the Manual and also the opinion of the Commissioner of Police, Bangalore and the District Magistrate, Bangalore, as the petitioner is a resident of Bangalore and is convicted for the offences committed at Bangalore; that the fact that the petitioner has earned ordinary and special remissions and has conducted himself in a better manner while serving sentence are not by themselves sufficient to coma to the conclusion that the petitioner is entitled to premature release; that the circumstances and the conduct of me petitioner which led to his conviction and sentence of imprisonment cannot at all be excluded from consideration because the same are the basis of conviction and sentence; that looking into the nature of the offences, place chosen for committing the offences and the person chosen for victimisation are also relevant; that it is a case in which offences are committed in the open Court and thereby it has created fear in the minds of the litigant public and they are afraid of attending the Court to seek justice; that if such convicted criminal is prematurely released, it will be travesty of justice; that what the petitioner seeks is only a concession because in law he is bound to undergo imprisonment for the period for which he is sentenced; that there is no right vested in the petitioner to have him released prematurely; that the law has allowed the ultimate decision to rest with the State Government because it is the State Government which is responsible for maintaining the law and order; therefore, when the State Government on considering the relevant factors and circumstances has come to the conclusion that the petitioner is not entitled to premature release, it would not be just and appropriate for this Court to interfere in exercise of its jurisdiction either under Article 226 or 227 of the Constitution.
6. 1) Having regard to the aforesaid contentions, the points that arise for consideration are as follows :
(1) Whether the right to premature release is guaranteed to the petitioner ?
(2) Whether the State Government has considered the case of the petitioner for premature release in accordance with law and on recommendation of the Advisory Board dated 6-4-1983 pursuant to the direction issued in Writ Petition No. 21012/83 on 25th September. 1984, and if so whether the impugned order of the State Government is in accordance with law and is arrived at on taking into consideration the observations made in the aforesaid decision ?
(3) What order ?
6. 2) Before taking up the aforesaid points for consideration, it is also necessary to determine as to what is the unexpired period of sentence as on 31-3-1985. During the course of hearing, three sheets of paper are filed-one containing the unexpired period of sentence of the petitioner and another showing the details of special remissions granted to the petitioner in addition to regular remissions for work and for good conduct. These two papers are filed on 28-3-1984 by the Research-cum-Statistical Officer, Office of the Inspector General of Prisons, Bangalore. The contents of the same are as follows :
'Un-expired Portionof Sentence of Convict No. 1821 M.P.Jayaraj of District Prison, Mysore.
Y
M
D
1.
Un-expired portion of sentence as on 30-9-84
1
8
03
2.
Released on Bail from 1-10-84 to 13-11-8443 days to be undergone
(+) 0
1
13
1
9
16
3.
October and November 84 No remission earned.
4.
Ordinary remission earned
Decr. 84 ...
7days
Jan. 85 ...
7days
14 days
5.
Special remission for attending adult education
30days
44 days
6.
Feb. 84Blood-remission
10 days
54 days
(-)0
1
24
1
7
22
7.
Actual sentence undergone from 1-10-84 to 31-1-85
(-) 0
4
0
8.
Un-expired portion of sentence as on 31-1-85
1
3
22
9.
Actual sentence undergone from 1-2-85 to 31-3-85
(-)
0
2
0
1
1
22
10.
Remission for February and March, 1985
(-)
0
0
14
11.
Un-expired portion of sentence as on 31-3-85
1
1
08
Sd/-.
XX
Research-cum-Statistical Officer
I.G. of PrisonsOffice.'
Special remission granted to the prisoner No. 1821 M.P.Jayaraj, in addition to regular remission for work and for good conduct:
September, 1981
For blood donation
10 days
December, 1981
Forgood conduct
15 days
January, 1982
For blood donation
10 days
April, 1982
For blood donation
10 days
July, 1982
For blood donation
10 days
November, 1982
For blood donation
10 days
November, 1982
For good conduct
15 days
April, 1983
For good work
10 days
September, 1983
For good conduct
15 days
December, 1983
For blood donation
10 days
June, 1984
For maintaining garden
30 days
August, 1984
For blood donation
10 days
December, 1984
For attending adult education
30 days
February, 1985
For blood donation
10 daysSd/-Research-cum-StatisticalOfficer I.G. ofPrisons Office.'
6.3) As the calculation of un-expired period of sentence of the petitioner as stated in the aforesaid sheet was not found to be correct inasmuch as it was not in accordance with Rules 21, 25, 30 and 31 of the Rules, Learned Government Pleader, in the light of the observations made by the Court during the course of hearing filed another calculation sheet dated 14-4-1985 signed by the very same officer, showing the un-expired period of sentence of the petitioner as on 31-3-1985. The details of the same are as follows:
'
D
M
Y
Date of sentence
18
8
78
Sentence awarded
(-) 0
0
10
Date of release
17
8
88
Deduct remission earned
Upto March 1985
(-) 11
1
02
6
7
86
Deduct U.T. Period
(-) 11
0
1
25
6
85
Add Parole and Bail cut days:
Parole ... 47 days
(-) 14
10
00
Bail ... 267 days
314 days 9
5
86
Un-expired portion of sentence
as on 31-3-1985
1
1
1'
6.4) It is now not in dispute that the aforesaid calculation made by the aforesaid officer is in accordance with the relevant rules. Therefore we have to proceed on the basis that as on 31-3-1985 the un-expired portion of the sentence of the petitioner was one year, one month and one day.
7. POINT No. (1) : Power to suspend the execution of sentence or remit the whole or any part of the punishment to which the convicted criminal has been sentenced is one of the attributes of the sovereign power of the STATE. This power of the STATE is statutorily recognised by Section 432 of the Code of Criminal Procedure. The object of the Act, the Rules and the Manual is not only to execute the sentence of punishment but also to see that a convicted criminal is reformed and consequently is rehabilitated and salvage to the society. Review or remission of sentence for good work and conduct while undergoing sentence of imprisonment is one of the incentives to make the convicted criminal to improve in his conduct, behaviour and attitude towards his fellowmen and get over the mental condition under which the convicted criminal labours. With this end in view, the Rules and the Manual are framed. The Manual also incorporates the recommendations of the All India Jail Manual Committee Working Group on Prisons. It is to realise this object, Chapter XLIV of the Manual provides for constitution of Advisory Board for each Central Prison and District Prison, Class-I. For review of long term sentences of convicted criminals this Chapter is framed in exercise of the power of the State Government under Section 63(2)(e) of the Act. The expression 'release of the prisoner' includes premature release also. For the purpose of determining whether a convicted criminal has undergone one-half of the sentence or 2/3rd of it, the remissions earned by him are also to be taken into consideration in addition to setting off the period of detention undergone during the course of investigation, enquiry and trial against the term of imprisonment imposed on a convicted criminal as per Section 428 of the Code of Criminal Procedure. The Advisory Board, as per para-816 of the Manual is required to meet atleast twice every year-during the month of January and July, for review of sentence of all convicted criminals who have become eligible for review of sentences. The Superintendent of the prison is required to put up before the Advisory Board the records of a prisoner for review of sentences. The records consist of - (1) Character and antecedents of the prisoner ; (2) Copy of the judgment and order of Appellate Court, if any ; (3) Opinion of the District Officers for or against the premature release of the prisoner, if received ; (4) Nominal roll showing the detailed conviction particulars of the prisoner and the period actually undergone, remission earned, sentence to be undergone; (5) opinion of the Superintendent regarding the work and conduct and rehabilitation prospects of the prisoner; (6) Social history or personality trait; (7) Information regarding co-accused of the prisoner if any (see: para 818 of the Manual). Para 819 of the Manual provides for the procedure to be adopted for placing cases before the Advisory Board for review of sentences. Once a prisoner becomes eligible for premature release, his case shall have to be considered once in six months. Of course, if the Advisory Board opines that a prisoner be released prematurely and it is approved by the State Government, he will be released prematurely. On the contrary, if the State Government does not approve of it, then unless the State Government directs for fresh consideration of the case of the prisoner, the Advisory Board will not be entitled to reconsider it. Para-821 of the Manual enumerates the factors which have to be taken into consideration for the purpose of finding out whether a convicted criminal has to be released prematurely or not. Thus, the provisions contained in Chapter XLIV of the Manual do establish that there is a right conceded to the prisoner to demand consideration of his case for premature release if he is eligible for such consideration. Whether he has to be released prematurely or not, is a matter which ultimately has to be considered by the State Government on the basis of the recommendation of the Advisory Board. But. it cannot be denied that there is a right vested in the prisoner to have his case considered for premature release ; in other words to have the sentence reviewed. When law concedes such a right to the prisoner corresponding duty is also imposed on the authority empowered to consider the case for premature release. Therefore, the Advisory Board and the State Government both are in law bound to consider the case of a convicted criminal who has become eligible for review of sentence in accordance with provisions contained in Chapter XLIV of the Manual. Though the right in the absolute sense of the term may be not conceded, without any condition whatsoever, but it cannot be held that there his no right whatsoever in the prisoner to claim tha his case for premature, release be considered. Even on the earlier occasion when the petitioner approached this Court in Writ Petition No. 21012/83, ILR 1985 KAR 1013 @ 1018 = 1020 = 1027 on considering the various provisions of Chapter XLIV of the Manual, this Court has held as follows:
'5.2) Thus, a birds eye view of the aforesaid provisions of the Manual makes it clear that the Advisory Board is required to meet twice a year during the months of January and July in order to review the sentences of all the prisoners who have become eligible for such review for the purpose of consideration of their cases for premature release. If the Advisory Board recommends for premature release, the Inspector General of Prisons is required to submit the recommendation along with the records to the State Government and obtain its orders. Of course, it is open to the State Government to agree or disagree with the recommendation of the Advisory Board or. postpone the consideration of the same. In case the State Government postpones consideration of the same, it shall have to be re-submitted to the State Government as per its direction. It is also open to the State Government to direct that the prisoner shall be released in the ordinary course on the expiry of the sentence less the period of remission earned. Thus, a right is created in the prisoner who has become eligible for review of his sentence for premature release to have his sentence reviewed by the Advisory Board and in case the Advisory Board recommends for his premature release he has also a right to have such recommendation considered by the State Government. Such a right having been conferred on the prisoner by the Manual, which has the force of law, is enforceable.
5.3) .......As on 31-12-1982, he had also earned the remission of one year three months fourteen days. The period of remission is also required to be taken into account for the purpose of finding out whether the prisoner is eligible for review of his sentence as per para 816(2) of the Manual. Thus, as on 31-12-1982, the unexpired period of sentence of the petitioner was only 3 years 9 months and 21. days. In other words, he had undergone more than half of the sentence long prior to 6-4 1983, In fact, his case ought to have been considered in the year 1982 itself, because in that year itself he had completed more than five years of imprisonment. However, his case was taken up for consideration only on 6-4-1983.....'
7.2) However much a person is condemned, there is no doubt that he is entitled to be treated in accordance with law which also means with all reasonableness and free from bias and arbitrariness. Not only this, he is also entitled to enforce the rights guaranteed to him inside and outside the prison. This shows the sublimity of Rule of law which assures fair treatment even to a condemned criminal. The Supreme Court, in Sunil Batra -v.-Delhi Administration, reported in AIR 1980 SC 1579:1980 CriLJ 1099:( 1980 ) 3 SCC 488, has observed that 'whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'. Bhagwati, J. in Maneka Gandhi : [1978]2SCR621 observed :
The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right, just and fair' and not arbitrary, fanciful or oppressive ; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.'
The Manual-prepared in consonance with the modern trends in the field of Correctional Administration provides for remissions in sentence, release on parole and premature release. Thus, a prisoner undergoing rigorous imprisonment, on fulfilling the norms or criteria laid down in the Manual, is entitled to be considered for premature release. In other words, the right to be considered for premature release is conferred on the prisoner....'
Thus, for the reasons stated above, on Point No. (1) it is held that on becoming eligible for consideration for review of sentence for premature release, the right accrues or is conferred upon a convicted criminal to demand that his case for premature release be considered in accordance with the provisions contained in Chapter XLIV of the Manual.
8. 1) POINT NO. (2): At the outset, the contention of the petitioner that the State Government has failed to take into consideration the observations made in the order dated 25th September, 1984 passed in Writ Petition No. 21012/83, can be disposed of. It is not possible to accept this contention. There is no observation made in the said order which can be said to have limited the exercise of power by the State Government to consider the case of the petitioner for premature release on the basis of the recommendation dated 6-4-1983 made by the Advisory Board. The State Government was directed not to take into consideration the order passed by it on the petition filed by the father of the petitioner for premature release and also the letter dated 29-7-1983, bearing No. J2/CR. 300/83 written by the Inspector General of Prisons and also without obtaining his opinion in any manner. It was also further directed to take a decision in the light of the observations made in the order. Accordingly, the State Government has not obtained any opinion from the Inspector General of Prisons nor it has taken into consideration its earlier order rejecting the petition filed by the father of the petitioner for premature release and also the letter dated 29-7-1983 bearing No.J2/CR. 300/83, written by the Inspector General of prisons. It is one thing to contend that the order of the State Government is not in accordance with law and it does not take into consideration all the relevant factors and it is quite another thing to contend that the observations made in the order of this Court passed in Writ Petition No. 21012/83 are not taken into consideration. Therefore, it is not possible to hold that the State Government has acted contrary to the directions and observations contained in the order dated 25-9-1984 passed in Writ Petition No. 21012/83.
8. 2) Before we further proceed to consider the second point, it is also necessary to point out the background in which the cases of review of sentences of eligible convicted criminals have to be considered. The philosophy of Penology has changed. It is no more retributive or cruel. The stress is now on reforming an offender. He has to be transformed into a good man in order to salvage him for the good of the society. It is now well established that cruel and retributive punishment is counter-productive. It not only makes an offender - who may not be a person of criminal intent and action, but has committed crime compelled by several surrounding circumstances beyond his control - to become an hardened criminal for the rest of his life. Consequently, he is not only lost in particular to his family, and in general to the society, but also becomes a menace to the society and proves to be a great threat to law and order situation. On the contrary, if reformative theory of Penology is sincerely applied and practised, there is every possibility of regaining such a person. His character, conduct and behaviour towards his fellowmen can be changed. Here it may be relevant to notice the following observations of the Supreme Court, made in Md. Giasuddin -v.- State of Andhra Pradesh., : 1977CriLJ1557 :
'9. Western jurisdiction and sociologists, from their own angle have struck a like note. Sir Samuel Romilly critical of the brutal penalties in the then Britain, said in 1817 : 'The laws of England are written in blood.' Alfieri has suggested: 'society prepares the crime, the criminal commits it.' George Nicodotis, Director of Criminological Research Centre, Athens, Greece, maintains that 'Crime is the result of the lack of the right kind of education.' It is thus plain that crime is a pathological aberration, that the criminal can ordinarily be redeemed, that the State has to rehabilitate rather than avenge. The subculture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in Penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of re-shaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. We, therefore, consider a therapeutic, rather than an in 'terrorem' outlook, should prevail in our Criminal Courts since brutal incarceration of the person merely produces laceration of his mind. In the words of George Bernard Shaw : 'If you are to reform him, you must improve him and, men are not improved by injuries'. We may permit ourselves the liberty to quote from Judge Sir Jeoffrey Streatfield: 'If you are going to have anything to do with the Criminal Courts, you should see for yourself the conditions under which prisoners serve their sentences. In the same strain, a British Buddhist-Christian Judge, speaking to a BBC reporter underscored the role of compassion : 'Circuit Judge Christmas Humphreys told the BBC reporter recently that a Judge looks 'at the man in the dock in a different way, not just a criminal to be punished, but a fellow human being, another form of life who is also a form of the same one life as oneself'. In the context of Karuna and punishment for Karma the same Judge said : 'The two things are not incompatible. You do punish him for what he did, but you bring in a quality of what is sometimes called mercy, rather than an emotional hate against the man for doing something harmful. You feel with him, that is what compassion means' (The Listener, Nov 25, 1976, p. 692).
10. Incidentally, we may glance at the prison system which leaves much to be desired in the sense of humanizing and reforming the man we call criminal.
11. Jimmy Carter, currently President of the United States and not a law man, made certain observations in his Law Day Speech to the University of Georgia while he was Governor of that State, which bear quotation :
'In our prisons, which in the past have been a disgrace to Georgia, we have tried to make substantive changes in the quality of those who administer them and to put a new realm of understanding and hope and compassion into the administration of that portion of the system of justice. Ninety-five per cent of those who are presently incarcerated in prisons will be returned to be our neighbours. And now the thrust of the entire program, as initiated under Ellis Mac-Dougall and now continued under Dr. Ault, is to try to discern in the soul of each convicted and sentenced person, redeeming features that can be enhanced. We plan a career for that person to be pursued while he is in prison, I believe that the early data that we have on recidivism rates indicates the efficacy of what we have done.'
12. In the light of what we propose to do, in disposing of this appeal, another observation of Jimmy Carter in the course of the same speech is relevant.
'Well, I do not know the theory of law, but there is one other point I want to make, just for your own consideration. I think we have made great progress in the Pardons and Paroles Board since I have reorganised the Government. We have five very enlightened people there now. And on occasion they go out to the prison system to interview the inmates, to decide whether or not they are worthy to be released after they serve one third of their sentence. I think most jurors and most judges feel that when they give the sentence, they know that after a third of the sentence has gone by, they will be eligible for careful consideration. Just think for a moment about your own son or your own father or your own daughter being in prison, having served seven years of a lifetime term and being considered for a release. Don't you think that they ought to be examined and that the Pardons Parole Board ought to look them in the eye and ask them a question and if they are turned down, ought to give them some substantive reason why they are not released and what they can do to correct their defects?'
8.3) I will now proceed to examine whether the State Government has considered the recommendation of the Advisory Board dated 6-4-1983 in the correct perspective and and on taking into consideration all the relevant factors and in accordance with the provisions contained in Chapter XLIV of the Manual. The impugned order of the State Government excluding the preamble portion, consists of four paragraphs. Each paragraph forms a part by itself. In the first paragraph, unexpired portion of the sentence as on 31-12-1982 excluding the period of remission and the period of imprisonment undergone are stated. In the second paragraph, the recommendation of the Advisory Board for premature release and the minority view of the District and Sessions Judge, Mysore and the Inspector General of Prisons, Karnataka, are referred to. In the third paragraph, the observations made by this Court while dismissing the Criminal Appeals and enhancing the sentence of imprisonment, are adverted to. In the last paragraph, the decision of the Government is stated, which is reproduced in paragraph 2,4 of this order.
8.4) The material facts relied upon by the State Government for coming to the conclusion that the petitioner is not entitled to premature release are not correct. It is stated in the first part of the order after preamble that the petitioner as on 31-12-1982 had undergone imprisonment for a period of 3 years 10 months and 13 days and had yet to undergo imprisonment for 3 years 9 months and 21 days after excluding the period of remission of one year 3 months and 14 days. Even though the unexpired period of sentence as on 31-12-1982 is stated correctly, but the statement as to the actual period of sentence undergone as on 31-12-1982 by the petitioner is not correct. By 31-12-1982, more than one half of the sentence had been undergone. The State Government has failed to take into consideration the period spent under detention as undertrial prisoner. Under Section 428 of the Code of Criminal Procedure, this period is also required to be set off against the term of imprisonment In fact, if the petitioner had undergone imprisonment as on 31-12-1982 only 3 years 10 months 13 days, he would not have become eligible for review of sentence. Thus, on a vital fact, the State Government has proceeded on wrong assumption. Further, as on 30-9-1984 and 12th November, 1984 - the date on which the State Government passed the order - the unexpired period of sentence was hardly one year 6 months 16 days, as revealed from the proceedings of the Advisory Board dated 8-10-1964 produced by Learned Government Pleader.
8.5) In addition to this, in the second part of the order, the State Government for not accepting the recommendation of the Advisory Board, for premature release, has depended upon the minority view expressed by the District Judge, Mysore and the Inspector General of Prisons, Karnataka, who in turn have given their opinion only on the basis that 'the Commissioner of Police, Bangalore, and the District Magistrate, Bangalore had not recommended the case for premature release; that the petitioner had yet to undergo more than half of the period of the total term of imprisonment; that there were no extenuating circumstances which could be considered and hence they would not recommend the release of the petitioner prematurely.' (See: para 2 of the impugned order). In this regard, it is relevant to notice that even on 31-12-1982, the petitioner had undergone more than half of the total term of imprisonment. Under Chapter XLIV of the Manual, a prisoner who is sentenced to ten years imprisonment, is not eligible for consideration of his case for premature release unless he has undergone one half of the sentence of imprisonment including remission (See: para 816 of the Manual). Further, under Section 428 of the Code of Criminal Procedure, the period of detention undergone by him during the investigation, enquiry and trial has to be set off against the term of imprisonment. It is nobody's case that on 31-12-1982, the petitioner had not undergone more than one half of the sentence. Therefore, the Commissioner of Police and the District Magistrate both in opining that the case of the petitioner cannot be recommended for premature release, have proceeded on a wrong basis that the petitioner has yet to undergo more than one-half of the period of total term of imprisonment. This is also a vital factor on which the District Magistrate, Bangalore and the Commissioner of Police Bangalore have proceeded on wrong assumption. The District Judge, Mysore and the Inspector General of Prisons have simply acted upon the opinion expressed by the District Magistrate, Bangalore and the Commissioner of Police. Bangalore and have opined against premature release of the petitioner The State Government has acted upon such opinion. As it is pointed out, the said opinion is based upon wrong assumption of vital facts, because on 31-12-1982 the petitioner had undergone more than one half of the term of imprisonment. In fact, on 6-4-1983, only three years six months fifteen days had remained to be undergone even without taking into account ordinary remissions earned from 1-1-1983 to 6-4-1983. Thus, the State Government has acted upon the minority opinion expressed by the District and Sessions Judge, Mysore and the Inspector General of Prisons, Karnataka, who, as it is already pointed out, have proceeded on wrong assumption of vital facts. Further, in the minority opinion expressed by the District and Sessions Judge, Mysore and the Inspector General of Prisons, it is stated, as referred to in the impugned order, that there are no extenuating circumstances. This again cannot be considered to be correct because as per the note put up before the Advisory Board as on 31-12-1982 the conduct of the petitioner was noted as satisfactory. No adverse remarks were made against the petitioner during the period he was in jail. Para-821 of the Manual specifically states that the Board should consider the social history of the offender, the circumstances of his criminal behaviour, conduct in the prisons, response to training and treatment, changes in habits attitudes and character, degree of criminality, health and mental condition and the possibility of his resettlement after release. On taking into consideration these circumstances, the Board is required to consider the case of the petitioner for premature release. Of course, the opinion of the District Magistrate and the District Superintendent of Police if available are also required to be considered carefully. In the absence of any adverse remarks against the petitioner about his behaviour, conduct, habits and other activities in the jail and also he having earned regular and special remissions, the opinion expressed by the District and Sessions Judge, Mysore and the Inspector Central of Prisons on the basis of the opinion of the Commissioner of Police, Bangalore and the District Magistrate, Bangalore, that there are no extenuating circumstances to be taken into consideration in order to find out whether the petitioner is entitled to premature release or not, cannot be considered to be correct and such an opinion is opposed to undisputed facts. Thus, the minority view which is relied upon by the State Government is not based upon correct facts. Even if it is held that inspite of the majority opinion of the Advisory Board which alone can be considered as the opinion of the Advisory Board, it is still open to the State Government to take into consideration the minority view expressed by the District and Sessions Judge and the Inspector General of Prisons; unless such a view is based upon the correct facts, it is not possible to hold that the decision arrived at by the State Government on the basis of the minority view is correct and does not call for interference. The District Magistrate, Bangalore, by his letter dated 17th January, 1983 bearing No. MAG 5 CR 150/82-83 addressed to the Superintendent, District Prison, in connection with premature release of the petitioner has on the basis of the opinion expressed by the Commissioner of Police, Bangalore City, in his letter No. 310/RS/GIS/82. dated 3-1-1983, stated that in view of the facts furnished by the Commissioner of Police, Bangalore City in his letter referred to above, the premature release of the petitioner is not recommended. The aforesaid letter of the Commissioner of Police, Bangalore dated 3-1-1983, bearing No. 310/RS/GSI/81-82 addressed to the District Magistrate, Bangalore District is as follows :
'ToThe District MagistrateBangalore District,Bangalore.Sir,Sub : Premature release of convict No. 1821- M.P. Jairaj S/o M. Puttaswamappa, confined in District Prison, Mysore.
Ref : No. 5080/82 dated 16-12-1982
With reference to the above subject, I write to state that the particulars in respect of the convict No. 1821, M. P. Jairaj in form No. 91, from Sl. No. 7 to 14 are herein furnished.
The release of the convict is not recommended as there is possibilities of associating himself with the other members of the gang and there is likelihood of creating law and order problem in the locality.
Concerned reference are herewith enclosed.'
Form No. 91 appended to the said letter is as follows :
'Convict No. 1821, M.P. Jairaj S/o M. Puttaswamappa
1.
Prisoner No.
1821
2.
Name
M.P. Jairaj
3.
Father Name
M. Puttaswamappa
4.
Residence
M. Puttaswamappa,
No. 49, 17th Cross,
Jakkasandra,
Bangalore-27
5.
Cast
Ganigaru (Hindu)
6.
Profession
Business
7.
Whether ordered to be shadowed on releaseor tonotify residence
It is necessary. He should be shadowed in case he is released on premature.
8.
Whether he belongs to acriminalgang.
He is a associate of criminal gang.
9.
Whether he has lands andhouses and what is the amount of assessment paid.
He has owned a house at No. 49, 17th cross,Jakkasandra and with shop in Wilsongarden P.S. limits.
10.
Is he married and has family?
He has married and his wife is stayingat B.T.S. Road, Wilson-garden P.S.Limits
11.
Has any male member of the family beenconvicted?
No.
12.
Opinion of the villagers and neighbourers asregards the release of the prisoner.
The neighbourers of M.P. Jairaj are not in theopinion of release of convict on premature.
13.
Whether he has any associates?Whether he has been previously convictedand if so, how often including the convictions, of any, which have come to notice after the present conviction?
The details are furnished in page No. 1.
14.
Whether he may be released withoutinjury tothe community ?
I am not in favour of releasing the convict M.P. Jairaj on premature'.
As far as the note put up in Form No. 72 before the Advisory Board as on 31-12-1982 is concerned, it is stated that the conduct of the petitioner in the jail was satisfactory. On that day, the unexpired period of sentence was only 3 years 9 months and 21 days. Thus, the opinion of the Commissioner as found in his latter dated 3-1-1983 is not based on correct evaluation of the facts and circumstances of the case. It is further stated by him that there is likelihood of creating law and order problem in the locality and there are possibilities of associating himself with the other members of the gang; therefore the convict is not recommended for premature release. These observations are not based upon valid material. If that be so, even after the release of the petitioner on serving full sentence, such a situation may arise. Further, while on bail or parole, it is not the case of the respondents that the petitioner associated with the other members of the gang. The opinion that there is likelihood of creating law and order problem is not based upon any facts and circumstances and it is an opinion which is divorced from the actual facts that the petitioner while in jail has improved in his conduct, behaviour, character and has earned special remissions. The opinion stated in the aforesaid form is also based upon the ground that the neighbours of M. P. Jayaraj are not in favour of releasing the petitioner prematurely. This Is again not in conformity with the improvement shown by the petitioner in the Jail. The expression 'Law and Order Problem' is very vague. It is necessary for the Commissioner of Police to particularise the problem that is likely to be created if the petitioner is prematurely released.
8.6) After referring to the aforesaid minority opinion expressed by the District and Sessions Judge, Mysore, and the Inspector General of Prisons, Karnataka the State Government in its order refers to the previous history of the case, the circumstances and the conduct of the petitioner which led to the conviction and enhancement of sentence. It also quotes the observations contained in the Judgment of the High Court. A hereafter the order proceeds to state that in the light of the observations made by the High Court while enhancing the sentence and on taking into consideration all the relevant factors the recommendation contained in the proceedings of the Advisory Board, District Prison, Mysore, dated 6-4-1983, the Government is of the opinion that any leniency shown to the convict in question would be totally misplaced and would not serve the ends of justice. Accordingly, it has not accepted the recommendation of the Advisory Board and has directed that the petitioner should not be released prematurely. No doubt, the circumstances and the conduct of the convict which led to his conviction and the observations made in the order while confirming the conviction and enhancing the sentence, by the High Court are relevant matters to be taken into consideration. But, they are not be all and end all of the matter. As per para-821 of the Manual, the conduct of the prisoner within the prison while serving the sentence and the improvement shown by him and the chances of rehabilitation are also the matters which have to be taken into consideration. Para 821(i) of the Manual provides :
'The Board should consider the social history of the offender, the circumstances of his criminal behaviour, conduct in the prisons response to training and treatment, charges in habits attitudes and character, degree of criminality, health and mental condition and the possibility of his resettlement after release, i.e., evaluate prisoners response to imprisonment, training and treatment. The Board may also take into consideration such circumstances as were not before the Court, when the sentence was awarded. The opinion of the District Magistrate and District Superintendent of Police, if available, should be carefully considered. On the basis of such an overall examination of the case the Board should record its recommendations or otherwise, in all the cases.'
It is contended by learned Government Pleader that the factors mentioned in para 821 of the Manual are required to be taken into consideration by the Advisory Board and not by the State Government. It is not possible to accept this contention. No doubt, para-821 of the Manual refers to the Advisory Board ; but the factors mentioned therein are those which are required to be taken into account for the purpose of finding out whether a convicted criminal deserves to be prematurely released, These factors cannot become irrelevant when the State Government considers the recommendation of the Advisory Board. Just as the principles governing grant or refusal of injunction remain the same whether it is the Trial Court or the superior Court, the factors to be taken into consideration for granting or refusing to grant premature release will remain the same. Therefore the State Government ought to have taken into consideration the factors enumerated in para-821 of the Manual.
8.7) There are no adverse remarks against the petitioner concerning his conduct, behaviour, work, relationship with his fellow prisoners, health, discipline etc. He appears to have maintained good health which is revealed from the fact that he has donated blood on many occasions. He has attended adult education, maintained garden and maintained good conduct. It is not the case of State that he has misused the liberty while on parole or bail. These are very relevant factors to be taken into consideration. Under these circumstances, it is not possible to hold that the State Government has taken into consideration all the relevant factors. It is submitted that at any rate it cannot be held that the order of the State Government is based on totally irrelevant grounds, as some of the reasons mentioned are relevant, the discretion cannot be held to have been improperly, arbitrarily or capriciously exercised ; as such, it is not a fit case for interference under Article 226 or 227 of the Constitution, There is no doubt that this Court in exercise of its jurisdiction under Article 226 or 227 of the Constitution, is not sitting in judgment as an Appellate Authority. What this Court has to see in a case like this, whether the discretion is exercised properly on approaching the case in the correct perspective and on consideration of all the relevant factors.
8.8) Learned Government Pleader has placed reliance on a decision of the Supreme Court in Writ Petitions : 916/82 (Haripad Nath) and 918/82 (Chandresh Sharma), reported in Shri Niwas -v.- Delhi Administration, : AIR1982SC1391 . In para 8 of the Judgment, the cases of Haripad Nath and Chandresh Sharma, are considered. It is held that the cases for premature release of the aforesaid persons are considered and rejected by the Board and it is not possible to take the view that the reasons are not valid or irrelevant. Thus this decision cannot be held to go against the exercise of power under Articles 226 and 227 of the Constitution. On the contrary, the decision makes it clear that it is open to the Court to consider whether the reasons given in the order refusing to order premature release are valid and relevant. In the instant case, it is already pointed out that vital facts having a bearing on the question of premature release are wrongly assumed. AH the relevant factors are not taken into consideration. Thus it is a case in which discretion is not exercised properly on approaching the case in the correct perspective keeping in view the object and intendment and the philosophy behind the premature release and on consideration of all the relevant factors. When the law promises to a convicted criminal that if he improves his conduct, behaviour and exhibits consistent and continuous good conduct, does good work, maintains good health etc.. he will be given an opportunity to rehabilitate by releasing him prematurely; denial of the same must be on valid grounds and on proper and full consideration of all the relevant factors and in consonance with the object and intendment of the philosophy of law concerning the subject. Otherwise, it will be nothing but backing out from the promise which the law has held out to a prisoner. The discretion vested in the State Government in the matter of consideration of the question as to whether a convicted criminal has to be prematurely released or not, is not unfettered. When the discretion to be exercised by the State emanates from the Statute and relates to an Individual or group of individuals or persons and their right and property, no Court can countenance arbitrary power and unfettered discretion. Such a power is anti-thesis of and nothing but negation of, the Rule of Law. The statutory power, however wide it Is, has to be exercised reasonably, fairly and justly and in good faith and for the purpose for which it is intended arid in accordance with, and in consistence with the aims arid objects and intendments of the enactment which empowers the authority with such power. Normally, this Court under Article 226 or 227 of the Constitution, does not interfere with the proper exercise of discretion; but it will cot fail to interfere if the discretion is exercised without taking into consideration all the necessary factors and circumstances keeping in view the object and intendment of the law which vests the State with such discretionary power. Laker Airways Ltd., Deptt. of Trade, (1977) Q.B. 643. Lord Denning has observed thus:
'Seeing that, the prerogative is a discretionary power to be exercised for the public good, it follows that its exercise can be examined by the Courts just as any other discretionary power which is vested in the executive.'
For the reasons stated above, it is not possible to hold that this is a case in which the interference is not called for. As such, the impugned order of the Government is liable to be interfered with. Point No. (2) is answered accordingly.
9.1) The next and the last question that remains for consideration, is as to whether the matter should be remitted to the State Government for reconsideration in the light of the observations made in this order, or a direction shall issue to Respondents 1 to 3 to release the petitioner. It is contended by Sri S. Udayashankar, Learned Government Pleader, that as the law has vested the discretion in the State Government because it is the State Government which is responsible for maintaining the law and order, in the event the impugned order of the State Government is quashed, the matter may be remitted to the State Government for fresh consideration on obtaining recommendation from the Advisory Board. On the contrary, it is contended on behalf of the petitioner that the unexpired period of sentence is not much compared with the period of imprisonment undergone by the petitioner ; that in the normal course, the petitioner in his own right will be released before the end of February, 1986 and even earlier if he is able to earn special remissions ; that as the State Government has not properly exercised the discretion, therefore, it is just and appropriate that instead of remitting the matter, a direction may be issued to release the petitioner.
9.2) As on 31-3-1985, the unexpired portion of the sentence was one year one month and one day. Thus the petitioner will be completing the entire term of sentence on 1st of May, 1986 without ordinary and special remissions. With ordinary and special remissions, he may even be released in his own right before the end of February, 1986.
9.3) While serving sentence, he has maintained good conduct and has earned ordinary and special remissions. Even when he was outside the Jail on parole and on bail, nothing is brought to the notice of the Court that he had misused the liberty. The modern trend in Criminology is to rehabilitate the prisoner based upon his good conduct and behaviour while serving sentence. There is no doubt that the petitioner has shown improvement in his conduct and behaviour and has maintained good health and earned remissions for his good work and other things as is apparent from the list of special remissions earned by him-the details of which are reproduced in para-6.2 of this order. Thus, by his consistent and continuous good conduct, he has shown that he can be a trust-worthy citizen. No previous conviction is either pleaded or brought to my notice. Nothing is brought on record or shown to the Court as to what happened to the earlier criminal cases other than the one which has ended in conviction and the sentence of which be is now undergoing.
9.4) No doubt, the power to grant premature release is vested in the State Government. As it is already pointed out, the power is not exercised properly on consideration of all the relevant factors and in the correct perspective.
9.5) The Advisory Board has, on two occasions i.e.. 6-4-1983 and 8-101-984. considered the case of the petitioner for review of sentence. On both the occasions, it has recommended for premature release of the petitioner. The proceeding of the Advisory Board dated 8-10-1984 also goes to show that the conduct of the petitioner in the jail as on 30-9-1984 was satisfactory. No doubt, the opinion of the Advisory Board is not unanimous ; but the majority of the members have opined in favour of premature release. In the decision rendered in Writ Petition No. 21012/83 on 25-9-1984, ILR 1985 KAR 1013. while considering the provisions contained in the Manual relating to Advisory Board, this Court has held that the majority opinion of the Advisory Board shall be considered as the opinion of the Advisory Board. Therefore, we have to proceed on the basis that on 8-10-1984, the Advisory Board has recommended for premature release.
9.6) Further, the case of the petitioner itself was placed before the Advisory Board for the first time long time after he became eligible for consideration for premature release. This aspect of the matter has already been adverted to in the decision dated 25-9-1984 rendered in Writ Petition No. 21012/83, : (1983)1SCC389 . Even after the Advisory Board opined for premature release on 6-4 1983, the matter was not placed before the State Government until the petitioner approached this Court in Writ Petition No. 21012/83, : (1983)1SCC389 and obtained a direction to place the opinion of the Advisory Board before the State Government and the State Government to consider the same. There was unexplained and unjustifiable delay in placing the matter before the Advisory Board and also in placing it before the State Government. If only in the normal course, as per the provisions contained in Chapter XLIV of the Manual, the case of the petitioner was taken up for consideration for premature release as soon as he became eligible, probably more than twice the case of the petitioner would have come up before the Advisory Board and before the State Government for consideration regarding premature release. Thus in this way, there has been unreasonable delay in considering the case of the petitioner for premature release. Even after the direction was issued by this Court to consider the case of the petitioner for premature release, the State Government has not taken into consideration all the relevant factors for coming to a conclusion that the opinion of the Advisory Board cannot be accepted, Under these circumstances, if the matter is again remitted to the State Government for fresh consideration, it would be nothing but delaying the matter. In the case of exercise of discretion coupled with the unreasonable delay, it is stated by H.W.R. Wade in Administrative Law, Fifth Edition, at page 387, as follows :
'Delay in performing a legal duty may also amount to an abuse which the law will remedy. Where a British 'patrial' was entitled by statute to enter the country 'without let or hindrance but the Home Office refused her the necessary certificate of partiality except by an administrative procedure which would have made her wait for over a year, the Court of Appeal held that the certificate could not be arbitrarily refused or delayed and ordered its issue, citing Magna Carts 1215 : 'to no one will we delay right or justice.'
In Bhagwat Saran -v.- State of U. P., : (1983)1SCC389 while considering the case for premature release in a petition under Article 42 of the Constitution, the Supreme Court has held as follows :
'After hearing counsel on either side and considering the affidavit of the respondents filed herein, we arc satisfied that it is a case where the Committee's recommendations should have been accepted by the Government. The Committee had recommended the release of these prisoners after taking into consideration the behaviour inside the jail as well as other factors. The only ground given by the State in the counter-affidavit is that 'after considering their cases sympathetically, keeping in view the law and order situation they cannot be released'. A bald statement like that without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted. In fact there are no reasons why recommendations could not be accepted. We direct that the petitioners be released forthwith.'
For the reasons stated above, I am of the view that it will not be wrong if the Petitioner is directed to be released on imposing certain conditions. Such a direction will be just and appropriate and it will be in consonance with the reformative theory of punishment and will help the prisoner (the petitioner) to rehabilitate.
10. For the reasons stated above, this Writ Petition is allowed. The order dated 12-11-1984 passed by the State Government in No. HD 87 PRR 84 produced as Annexure-E, is quashed. It is held that the petitioner has earned and deserved premature release and as such he is entitled to premature release. Respondents 1 to 3 are directed to release the petitioner :
(i) on furnishing two sureties for a sum of Rs. 40,000/-each to the satisfaction of Respondent-3 and also on executing a self bond for a like sum ;
(ii) on release, within 24 hours, he must intimate the Commissioner of Police, Bangalore, the place at which he resides at Bangalore ;
(iii) he must not leave the Corporation limits of the City of Bangalore without intimating the Commissioner of Police, Bangalore, in advance, the place he intends to visit and the address at which he stays in that place ;
(iv) he shall maintain good conduct and behaviour and he shall not involve himself directly or indirectly in any unlawful activities which are likely to endanger or cause breach of peace and disturb tranquillity;
(v) he shall not associate with notorious bad characters or lead a desolate life ;
(vi) he shall report to the Station House Officer, Wilson Garden, Bangalore, once in fortnight at the hour and date specified by the Station House Officer.
The aforesaid conditions are valid and remain In force, til the expiry of 1-5-1986. If the petitioner violates any on' of the aforesaid conditions on or before 1-5-1986, he is liable to undergo the remaining portion of sentence and it is open to the respondents to move this Court for revoking this order and directing the petitioner to undergo the remaining portion of the sentence.
Learned High Court Government Pleader submits that as the case involves the question of law as to the scope of interference by this Court in such matters under Article 226 or 227 of the Constitution, the State Government intends to carry the cause to the Appeal Bench; therefore, he submit that the operation of the order just now pronounced may be stayed for a period of two weeks. The request is reasonable. Accordingly, the operation of the order just now pronounced is stayed till 10th May, 1985.