Virender Nath Vs. State (Delhi Administration) - Court Judgment

Excerpt:
a) the case debated over the remission of the sentence wherein the convict was released who underwent 12 years of sentence - it was observed that premature release of such convict was not hit by the provision of section 432 written with 433-a of the criminal procedure code, 1973 - the court ruled that the rejection of the plea for release of the convict on the ground that he had not completed 14 years of sentence of imprisonment was unjustified - the matter was remanded back to the sentence revising board for reconsideration.b) the case discussed the effect of section 433-a written with section 432 of the criminal procedure code, 1973 - it was held that the provision that made it obligatory for a person convicted for an offence of murder to be incarcerated for a minimum period of 14 years, did not forbid release on parole or furlough within this period. - - i will not plead, your honour that the convict is a reformed man but i certify sir, that he is well on his way to reformation and if released at this stage prematurely there is all possibility of his starting life anew with a sence of purpose and with the due dignity of a citizen. ' (8) the strong plea made by the superintendent jail in the return is worthy of consideration by the authorities. if, on the other hand, a brutal murderer, blood thirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. '(4) we hold that section 432 and section 433 arc not a manifestation of articles 72 and 161 of the constitution but a separate though similar, power and section 433-a by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.charanjit talwar, j.(1) this is a petition filed by virender nath seeking directions to the state to release him prematurely on the plea that he was only 17 years of age at the time of commission of offence, i.e., 29th march, 1978. after trial he was convicted by shri t.s. oberoi, addl. sessions judge, delhi for an offence under section 302, indian penal code and sentenced to imprisonment for life vide judgment dated the 31st january, 1981. according to him he has already undergone 12 years of imprisonment on including the period of remissions and, thereforee, as per sub-para (b) of paragraph 516-b of the punjab jail manual, he ought to have been released after he had undergone sentence of ten years including remissions. that sub-para reads as under : 'action to be taken on expiry of 10 years-(b) (2) the case of a female prisoner and of a male prisoner under 20 years of age at the time of commission of offence who is undergoing : (i) imprisonment/s for life; (ii) imprisonment/s for life and a terms of imprisonment. 245 (iii) commutative periods of rigorous imprisonment aggregating to more than 10 years; or (iv) a single sentence of more than 20 years shall be submitted through the inspector general of prisons, punjab, for the orders of the state government when the prisoner has undergone a period of detention in jail amounting together with remission earned to 10 years. (v) notwithstanding anything contained above, a superintendent, jail may, in his discretion, refer at any time for the orders of the state government through the inspector general of prisoners, punjab, the case of any prisoners sentenced to imprisonment for life whose sentence might in the superintendent's opinion be suitably commuted into a term of imprisonment.' (3) by way of return to the rule nisi issued, the superintendent of central jail no. 3 tihar, shri akash mahapatra has averred that the case of the petitioner was submitted to the sentence revising board by him on 8th june, 1987. but it was returned to him on 18th june, 1987 with the following remarks: 'the commutation roll of the above named convict furnished to us by jail no. 3 has been duly scrutinised and it has been observed that the said convict had been convicted after 18.12.78. in accordance with the present law he has normally, to complete 14 years of actual imprisonment before his case can be placed before the sentence revising board for consideration of his premature release. his commutation roll is, thereforee, returned herewith, since he is not yet eligible for the premature release.' (4) the sentence revising board, we are informed had been set up by the delhi administration to consider and recommend the cases of all the prisoners who are eligible under the punjab jail manual and/or under section 432 of the code of criminal procedure, for premature release, to the lt. governor who is the administrator of delhi. it appears that the board had not considered the case of the petitioner as he was convicted and sentenced after 18th december, 1978, the date on which section 433-a of the code came into operation. as we have noticed, the petitioner was sentenced on 31st january, 1981 almost three years after the commission of the offence. it appears that the board is of the view that under section 432 of the code of criminal procedure, the case cannot be considered for premature release as the petitioner has to undergo actual sentence of 14 years r.i. exclusive of remissions as per section 433-a of the cr. p.c. to the extent the board is right. (5) during the course of arguments, mr. avnish ahlawat, learned counsel for the petitioner appointed at state expense urged an alternate plea that as the petitioner was 17 years of age at the time of commission of offence and only about 20 years of age at the time of his conviction, the sentence awarded to him ought to have been converted into detention in a borstal institution. that pica was propounded on the basis of principles laid in hawa singh v. 246 state of haryana case : 1987crilj1919 . but hawa singh's case has been held to be not a correct law by the supreme court and has since been over-ruled in subhash chand v. state of haryana & ors. (judgments today, dated 18th january, 1988). (6) however, we may note that in the return, the superintendent of jail has reiterated that the petitioner's case is a fit case for premature release. his reasons are : '1 the petitioner was arrested at the tender age of 17 and was sentenced after an inordinate delay of 34 months by the trial court and even on the date of sentence his age was not more than 20 years. 2. he has undergone a total actual sentence of 9 years and 2 months approximately and has also earned remissions to the extent of 2 years and 9 months approximately. thereforee, the total period of sentence undergone by the prisoner inclusive of remissions is 11 years and 11 months approximately as on 31.5.87. 3. he is now a strapping lad of 26 years and he has endeared himself to all in the jail including officers and prisoners by his conduct and behavior. his sence of devotion to his duties in the jail is a shining example of conduct for all prisoners within the jail any for all times to come. it is in view of this conduct of the petitioner that i have certified his overall conduct in the commutation roll. i will not plead, your honour that the convict is a reformed man but i certify sir, that he is well on his way to reformation and if released at this stage prematurely there is all possibility of his starting life anew with a sence of purpose and with the due dignity of a citizen. 4. the objective of all law and justice is to reform society and the jails are also to function as reform institutions. the aim of justice specially in criminal cases is to reform the offender and the duty of the jail is integrated with the dispensation of justice wherein after the period of imprisonment undergone by a prisoner he realises the wrong he has done to the society and he feels that he has paid his due compensation to the society for his crime. the petitioner in the present case satisfies both the conditions. (7) it is, thereforee, clear your honour that the law as it stands today cannot give any relief to the petitioner but if the aim of today's justice is the reformation of the criminal then i plead for a reconsideration of the law with reference to the present case.' (8) the strong plea made by the superintendent jail in the return is worthy of consideration by the authorities. in fact the plea is not to be read as plea of the state who is respondent before us. in maru ram v. union of india alr 1980 sc 2147, while cautioning the government to exercise the power of pardon by keeping the legislative intent expressed in section 433-a of the code in mind, the supreme court observed that ''no constitutional power can be vulgarised by personal vanity of men in authority. likewise, if an opposition leader is sentenced, but the circumstances cry for remission such as that he is suffering from cancer or that his wife is terminally ill or that 247 he has completely reformed himself, the power of remission under arts. 72/161 may ordinarily be exercised and a refusal may be wrong-headed. if, on the other hand, a brutal murderer, blood thirsty in his massacre, has been sentenced by a court with strong observations about his bestiality, it may be arrogant and irrelevant abuse of power to remit his entire life sentence the very next day after the conviction merely because he has joined the party in power or is a close relation of a political high-up. the court, if it finds frequent misuse of this power may have to investigate the discrimination. the proper thing to do, if government is to keep faith with the founding fathers, is to make rules for its own guidance in the exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments. this will exclude the vice of discrimination such as may arise where two persons have been convicted and sentenced in the same case for the same degree of guilt but one is released and the other refused, for such irrelevant reasons as religion, caste, colour or political loyalty. thus it is open to the authority concerned to deal with the matter under its constitutional power. . (9) krishna lyer, j speaking for the majority (in paragraph 72 of that judgment) formulated the findings for exercise of that power. we may quote with advantage some of those findings: '(4) we hold that section 432 and section 433 arc not a manifestation of articles 72 and 161 of the constitution but a separate though similar, power and section 433-a by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. (5) we negate the plea that section 433-a contravenes article 20(1) of the constitution. (8) the power under articles 72 and 161 of the constitution can be exercised by the central and state governments, not by the president or governor on their own. the advice of the appropriate government binds the head of the state. no separate order for each individual case is necessary but any general order made must be clear enough to identify the 'group of cases and indicate the application of mind to the whole group. (9) considerations for exercise of power under articles 72/161 may be myriad and their occasions protean,'and are left to the appropriate government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. only in these rare cases will the court examine the exercise. (14) section 433-a does not forbid parole or other release within the 14-year span. so to interpret the section as to intensify inner tension and intermissions of freedom is to dp violence to language and liberty.' (10) the principles enunciated in maru ram's case (supra) make it clear that section 433-a does not forbid the release of the petitioner and in the event the present case appears to be a fit one for exercise of constitutional 248 power, it would be within the competency of the sentence revising board or the concerned authority to recommend it. the pleas by the superintendent jail and his reasons (quoted above), which form part of the return, persuade us to direct the appropriate; authority to consider the case of the petitioner for pardon under its constitutional power irrespective of the provisions of section 433-a as in our view the case made out by the respondents also falls within the four corners of the findings of the supreme court. the superintendent jail is directed to forward the commutation roll of the petitioner to the sentence revising board within a month who is further directed to consider it in its next meeting. (11) the petition is allowed to the extent indicated above. a copy of the judgment to be sent to the superintendent jail, tihar, new delhi.