Patna High Court – Orders
Sudisht Rai @ Sudist Ray vs The State Of Bihar Through The Chief … on 9 April, 2025
Author: Alok Kumar Pandey
Bench: Alok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.938 of 2023
Arising Out of PS. Case No.-36 Year-1985 Thana- SAHEBGANJ District- Muzaffarpur
======================================================
Sudisht Rai @ Sudist Ray Son of Rupan Ray Resident of village - Madhopur
Hazari, P.S.- Sahebganj, District - Muzaffarpur.
... ... Petitioner
Versus
1. The State of Bihar through the Chief Secretary, Government of Bihar, Patna.
Bihar
2. The State Sentence Remission Board through the Principal Secretary, Home
Department, Govt. of Bihar Patna, Bihar.
3. The Joint Secretary-cum-Director (Administration), Home Department
(Prison), Bihar, Patna. Bihar
4. The Secretary, Law Department, Government of Bihar, Patna. Bihar
5. The Additional Director General of Police, Criminal Investigation
Department, Bihar, Patna. Bihar
6. The Inspector General, Jail and Reforms Services, Bihar, Patna. Bihar
7. The Assistant Inspector General, Jail and Reforms Services, Bihar, Patna.
Bihar
8. The Jail Superintendent, Khudi Ram Bose Central Jail, Muzaffarpur. Bihar
... ... Respondents
======================================================
Appearance :
For the Petitioner : Mr. Vijay Kumar Singh, Advocate
Mr. Abhinav Shandilya, Advocate
Mr. Santosh Kumar, Advocate
For the Respondent-State: Mr. Suman Kumar Jha, AC to AAG-3
Mr. P.N.Sharma, AC to A.G.
======================================================
CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY
CAV ORDER
(Per: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
8 09-04-2025
The present petition has been listed before us
pursuant to the administrative order passed by Hon’ble the
Acting Chief Justice. The learned Single Judge framed three
issues while not agreeing with the view taken by another learned
Single Judge and thereafter observed that the records be placed
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
2/37
before Hon’ble the Acting Chief Justice for appropriate orders.
2. The learned Single Judge has referred the present
matter to a Division Bench for answering the following issues: –
“(i) Whether the sub-clause (gha)
of clause (iii) of the Notification dated
10.12.2002 issued by the Home (Special)
Department, Government of Bihar by which
Rule 529 of the then Bihar Jail Manual was
substituted would cover the case of life
convict who is serving sentence for
committing an offence in which death is one
of the punishments.
(ii) Whether a life convict whose
case is covered under Section 433A Cr.P.C.
may be granted pre-mature release on any
ground whatsoever provided by way of a
rule made by the State Government in form
of a subordinate piece of legislation.
(iii) Whether the petitioner may be
allowed to raise his claim for pre-mature
release on the basis of the judgment of the
learned coordinate Bench of this Court in
the case of Ram Khelawan Yadav
considering the date of his conviction, even
as his case is found covered under Section
433A Cr.P.C.”
FACTUAL MATRIX: –
3. The petitioner was made an accused in Sahebganj
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
3/37
P.S. Case No. 36 of 1985 registered for committing an offence
under Section 302 of the Indian Penal Code (IPC). It is the case
of the petitioner that he was released on bail during the
pendency of the trial. However, thereafter the learned Sessions
Judge, Muzaffarpur, passed the judgment and order dated
24.08.1990 in Sessions Trial No. 51 of 1989, by which the
petitioner has been convicted for committing the offence
punishable under Section 302 of the IPC and he has been
sentenced to undergo life imprisonment.
3.1. The petitioner challenged the said order by
preferring an appeal being Criminal Appeal (D.B.) No. 370 of
1990. It is the case of the petitioner that during the pendency of
the appeal also, he was on bail and the sentence imposed by the
trial court was suspended. However, this Court vide judgment
and order dated 04.09.2012 dismissed the appeal preferred by
the petitioner and thereby affirmed the judgment and order
passed by the trial court.
3.2. The petitioner thereafter challenged the orders
passed by the trial court as well as this Court by preferring
Special Leave Petition before the Hon’ble Supreme Court.
Ultimately, S.L.P. (Criminal) Diary No. 9621 of 2019 preferred
by the petitioner was dismissed on 13.09.2019.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
4/37
3.3. It is the case of the petitioner that as an under-
trial prisoner as well as after dismissal of the appeal of the
petitioner, he has served more than 07 years of actual
imprisonment. It is further case of the petitioner that he has
completed 68 years of age and, therefore, in terms of the policy
framed by the State Government, as contained in Notification
No. 3106 dated 10.12.2002, he, having completed more than 65
years of age and 07 years in incarceration, would be entitled to
be considered for premature release. It is also the case of the
petitioner that on the request of the Jail Superintendent of Khudi
Ram Bose Central Jail, Muzaffarpur, contained in Memo No.
4887 dated 30.05.2022 and letter dated 31.05.2022, the Medical
Board assessed the age of the petitioner and found his age
between 65-70 years.
3.4. The petitioner has, therefore, placed reliance
upon Clause(iii)(d) of the Policy dated 10.12.2002 framed by
the State Government for premature release by contending that,
as per the said clause, a life convict is required to be released
prematurely on completion of 65 years of age, if he has
completed custody of 07 years with remission.
3.5. The petitioner has, therefore, preferred the present
petition in which the petitioner has prayed for the following
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
5/37
reliefs: –
"(I) For issuance of an
appropriate writ in the nature of
MANDAMUS, commanding and directing
the Respondent Authorities to consider the
case of the petitioner for grant of pre-mature
release and release him in view of the
provisions contained under clause (iii) (d) of
Notification contained in Memo No. 3106
dated 10.12.2002 in connection with
Sessions Trial No. 51 of 1989 arising out of
Sahebganj P.S. Case No. 36 of 1985 wherein
vide judgment and order dated 24.08.1990
the petitioner was convicted for life on the
ground that now the petitioner had already
attained the age of 68 years as also the
petitioner had completed more than seven
years of his physical incarceration.
(II) For issuance of any other
appropriate writ/writs, order/orders,
direction/directions for which the writ
petitioner would be entitled under the facts
and circumstances of the case.”
3.6. Learned counsel for the petitioner as well as
learned counsel for the respondent State have argued the matter
before the learned Single Judge. Learned counsel for the
petitioner has placed reliance upon various decisions rendered
by the Hon’ble Supreme Court as well as the order dated
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
6/37
15.12.2021 passed by the learned Single Judge of this Court in
the case of Khelawan Yadav versus the State of Bihar and
Others (Cr.WJC No. 62 of 2021 decided on 15.12.2021). It
was contended before the learned Single Judge in the present
matter that in the case of Khelawan Yadav (supra), another
learned Single Judge, relying upon the very same Clause and on
similar fact, directed the Bihar State Sentence Remission Board
(hereinafter referred to as the ‘Remission Board’) to take a
decision with respect to the petitioner in terms of Rule 529 and
it is the case of the present petitioner that direction issued in the
case of Khelawan Yadav (supra) has been complied with by the
respondents.
3.7. However, in the present case, learned Single
Judge was not agreeable with the view taken by the learned
Single Judge in the case of Khelawan Yadav (supra). Learned
Single Judge in the present matter, after referring various
provisions of Code of Criminal Procedure, 1973 (for short
‘Cr.P.C.’), Rule 529 of Bihar Jail Manual, Rule 481 of Bihar Jail
Manual, 2012 as well as other decisions rendered by the
Hon’ble Supreme Court as well as this Court observed that the
order passed by the learned Single Judge in the case of
Khelawan Yadav (supra) is per incuriam and referred the
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
7/37
present petition to Division Bench for answering the aforesaid
three issues.
4. We have heard Mr. Vijay Kumar Singh, learned
counsel for the petitioner assisted by Mr. Abhinav Shandilya and
Mr. Santosh Kumar, learned Advocates and Mr. Suman Kumar
Jha, learned A.C. to AAG-3 and Mr. P.N. Sharma, learned A.C.
to A.G. for the respondent-State.
SUBMISSIONS ON BEHALF OF THE
PETITIONER: -
5. Learned counsel for the petitioner would contend
that the petitioner has remained in custody for 07 years and he is
aged about 68 years and, therefore, as per Clause (iii)(d) of
Memo No.3106 dated 10.12.2002, issued by the Department of
Home (Special), Government of Bihar, in exercise of Powers
conferred by Section 529 of the Prison Act, 1894, his claim for
premature release is required to be placed before the Remission
Board by concerned jail authorities and thereafter, the
Remission Board is required to consider the case of the
petitioner for premature release in terms of the aforesaid policy
framed by the State Government. Learned counsel referred the
aforesaid Clause and thereafter contended that it not necessary
for the petitioner to make any application before the jail
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
8/37
authorities for placing his case before the Remission Board for
premature release.
5.1. Learned counsel for the petitioner submits that as
per the provisions contained in Article 161 of the Constitution of
India, the Hon’ble Governor is also empowered to pass an order
granting remission to the petitioner. However, in the present
case, the State Government has not placed the case of the
petitioner before the Hon’ble Governor for premature release of
the petitioner. At this stage, learned counsel has placed reliance
upon the decision rendered by the Hon’ble Supreme Court in the
case of Union of India v. V. Sriharan (2016) 7 SCC 1 and more
particularly paragraph 260 of the said judgment. Learned
counsel has also placed reliance upon the decision rendered by
the Hon’ble Supreme Court in the case of State of Haryana v.
Raj Kumar, reported in (2021) 9 SCC 292.
5.2. Learned counsel for the petitioner would further
submit that the policy framed by the Government in the year
2002 would be applicable to the case of the present petitioner
and not the amended policy which has now been framed in the
year 2012. It is further contended that, as per the decision
rendered by the Hon’ble Supreme Court in the case of State of
Haryana v. Jagdish, reported in (2010) 4 SCC 216, the more
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
9/37
beneficial policy at the time of the passing of the order of
conviction or at the time of consideration of the case for
premature release is required to be considered. It is submitted
that 2002 policy is more beneficial to the petitioner and,
therefore, the said policy of 2002 would be applicable to the
case of the petitioner.
5.3. Learned counsel also submitted that the
Government of India, Ministry of Home Affairs, issued
directions vide communication dated 10.06.2022 to the
Principal Secretary(Home) of all the States and Union
Territories as well as the D.G./I.G. (Prisons) of all the States for
grant of special remission to the prisoners as part of the
celebrations of Azadi Ka Amrit Mahotsav. Learned counsel
submits that the benefit of the said policy is also required to be
given to the present petitioner.
5.4. Learned counsel lastly contended that now the
Model Prison Manual, 2016 has been issued by the Government
of India, Ministry of Home Affairs, wherein also eligibility
criteria for premature release have been prescribed. It is,
therefore, urged that the benefit of the said Model Prison
Manual be given to the petitioner.
SUBMISSIONS ON BEHALF OF THE
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
10/37
RESPONDENTS: –
6. Learned counsel for the respondent-State would
mainly contend that the case of the petitioner would be covered
under Sub-clause (a) of Clause (iii) of the Notification dated
10.12.2002. Learned counsel placed reliance upon the
provisions contained in Section 433A of the Cr.P.C. and
contended that as the petitioner has been convicted for
committing offence punishable under Section 302 of the IPC,
his case is covered under Section 433A of the Cr.P.C. and,
therefore, the present petition itself is misconceived. He would
further contend that learned counsel for the petitioner has not at
all referred the powers of the Governor under Article 161 of the
Constitution of India in the memo of petition nor the said point
has been argued by him before the learned Single Judge. Even
otherwise, as the petitioner has not completed 14 years of actual
period of custody, his case cannot be placed before the
Remission Board for premature release. Further, the case of the
petitioner cannot be referred, at this stage, by the State
Government before the Hon’ble Governor for consideration of
the case of the petitioner under Article 161 of the Constitution
of India.
6.1. Learned counsel for the respondents further
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
11/37
submitted that even the direction issued by the Home Affairs
Department, Government of India, in communication dated
10.06.2022 for grant of special remission as a part of
celebrations of Azadi Ka Amrit Mahotsav would also not be
applicable to the case of the petitioner. Similarly, the case of the
petitioner is also not covered under the Model Prison Manual,
2016.
6.2. Learned counsel for the respondents lastly
contended that in the case of Khelawan Yadav (supra), the
respondents’ counsel could not place the relevant policy of the
Government and there is no reference with regard to the
submission of the respondent with respect to Section 433A of
the Cr.P.C. Hence, correct law was not placed before the learned
Single Judge in the case of Khelawan Yadav (supra) and,
therefore, in the said case direction was issued to consider the
case of the said petitioner.
6.3. Learned counsel for the respondents, therefore,
urged that the present petition itself is misconceived.
DISCUSSION: –
7. We have considered the submissions canvassed by
the learned Advocates appearing for the parties. We have gone
through the materials placed on record, the order under
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
12/37
reference, relevant provisions of the Government Policies as
well as the relevant provisions of law and the decisions rendered
by the Hon’ble Supreme Court as well as by this Court.
7.1. The petitioner has filed the present petition with a
prayer that respondents be directed to consider his case for
premature release. Petitioner has been convicted for committing
offence punishable under Section 302 of the IPC and he is in
custody for 07 years. Petitioner is aged about 68 years.
Petitioner has, therefore, claimed that his case falls under Clause
(iii)(d) of the Notification dated 10.12.2002. Petitioner has also
placed reliance upon the order dated 15.12.2021 passed by
another learned Single Judge in the case of Khelawan Yadav
(supra), wherein in similar type of case, this Court directed the
respondent authorities to consider the case of the said petitioner.
However, learned Single Judge in the present case was not
agreeable with the view taken by the learned Single Judge in the
case of Khelawan Yadav (supra) and, therefore, the matter has
been referred to the Division Bench for answering three issues.
7.2. At this stage, we would like to refer the relevant
extract of the Notification dated 10.12.2002, which is
reproduced hereinbelow: –
“Home (Special) Department
Notification
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
13/37The 10th December, 2002
No.K/Kara-Bibidh-63/2001-
3106-In exercise of powers conferred by
Section 59 of the Prisons Act, 1894, the
State Government makes the following
amendments in the Bihar Jail Manual
with immediate effect.-
Amendment
Rule 529 of the Bihar Jail
Manual shall be substituted by the
following :-
“529 (i) Composition of the
State Sentence Remission Board.
There shall be a Board known
as “Bihar State Sentence Remission
Board which shall consider cases of
remission of the sentence awarded to a
prisoner and recommend his premature
release in appropriate cases. This Board
shall be a permanent body and be
constituted consisting of the following
members :-
(1) Home Secretary
Chairman
(2) Law Secretary
Member
(3) Director and Session Judge
nominated by Patna High
Court.
(4) Director, Probation Services
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
14/37Member
(5) I.G Police, nominated by
D.G.P. Member
(6) I.G Prisons,
Member Secretary.
The recommendation of this
Board shall be invalid merely by reason
of any vacancy in the Board or the
inability of any Member to attend the
meeting of the Board. The meeting of the
Board shall not, however, be held if the
quorum is not present. The quorum of the
Board shall be with four members
including the Chairman.
(iii) ELIGIBILITY FOR
PREMATURE RELEASE
Prisoners of the following
categories shall be eligible for
consideration for premature release by
the State Remission Board:-
(a) Every convicted prisoner
whether male or female, undergoing
sentence of life imprisonment and covered
by the provisions of Section 433 A of
CrPC shall be eligible to considered for
premature release immediately after
serving the sentence of 14 years of actual
imprisonment without the remission.
(b) All other convicted male
prisoners undergoing the sentence of life
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
15/37imprisonment shall be considered for
premature release after they have served
at least 14 years of imprisonment
inclusive of remission and after
completion of 10 years actual
imprisonment without remissions.
(c) All other convicted female
prisoners undergoing the sentence of life
imprisonment shall be considered for
premature release after they have served
atleast 10 years of imprisonment
inclusive of remission and after
completion of 7 years of actual
imprisonment without remissions.
(d) Convicted prisoner
undergoing the sentence of life
imprisonment on attaining the age of 65
years provided he or she has served
atleast 7 years of imprisonment including
the remissions.
(e) The convicted prisoners
undergoing the sentence or imprisonment
for life and who are suffering from
terminal diseases like cancer, aids,
irreversible kidney failure, cardio
respiratory disease, deadly and any other
infectious disease as certified by a Board
of Doctors, on completion of 5 years of
actual sentence or 7 years of sentence
including remissions.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
16/37
(iv) Ineligibility for premature
release.
The following category of
convicted prisoners undergoing life
sentence may not be considered eligible
premature release-
(a) Prisoners convicted of the
heinous offences such as rape, dacoity,
terrorist crimes etc.
(b) Prisoners who have been
convicted for organized murdered in a
premeditated manner and in an organized
manner.
(c) Professional murderers who
have been found guilty of murder by
hiring.
(d) Convicted prisoners, who
commit murder while involving in
smuggling operations or who are guilty of
murderer of public servants on duty.”
7.3. At this stage, it is pertinent to note that in exercise
of power conferred by Section 59 of the Prisons Act, 1894, the
Government of Bihar has framed the Manual of 2012 in
supersession of the fist Jail Manual. Chapter 15 of the Manual
of 2012 is in two parts, while part A deals with general
provisions for release. Part B contains Rule 474 to 487, which
are relevant for the purposes of premature release. This part
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
17/37
provide for constitution of Remission Board, the meetings of the
Board, the provisions for dealing with the proposal for
premature release, category of prisoners who shall be eligible
for release by the Board and the categories of the prisoners
covered under Section 433A of the Cr.P.C. in the exception list.
7.4. Categories of convicts covered under Section
433A of the Cr.P.C. have been substituted vide Notification No.
3194 dated 26.05.2016. Rule 481 of the Manual of 2012
provides as under: –
“481. The following categories of
prisoners shall be eligible to be considered
for a review of sentences and premature
release by the Board:
i. Every convicted prisoner whether
male or female undergoing sentence of life
imprisonment and covered by the provisions
of Section 433A CrPC shall be eligible to be
considered for premature release from the
prison immediately after serving out the
sentence of 14 years of actual imprisonment
i.e. without the remissions. 2[The following
categories of convicted prisoner covered
under Section 433A Cr.P.C. undergoing life
sentence would not be entitled to be
considered for premature release even after
undergoing imprisonment for 20 years
including remission:]
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
18/371
[(a) Such convicts who have been
imprisoned for life for rape, rape with
murder, dacoity with murder, murder
involving offence under the Protection of
Civil Rights Act, 1955, murder for dowry,
murder of a child below 14 years of age,
multiple murder, murder committed after
conviction while inside the prison, murder
during parole, murder in terrorist incident,
murder in smuggling operation, 2[xxx]]
(b) Gangsters, contract killers,
smugglers, drug traffickers, racketeers
awarded life imprisonment for committing
murders as also the perpetrators of murder
committed with pre-meditation and with
exceptional violence or perversity.
c) Convicts whose death sentence has
been commuted to life imprisonment.
ii. All other convicted male prisoners
not covered by section 433A Cr.PC
undergoing the sentence of life imprisonment
shall be considered for premature release
after they have served at least 14 years of
imprisonment inclusive of remission but only
after completion of 10 years actual
imprisonment i.e. without remissions.
iii. The female prisoners not covered
by section 433A Cr.PC undergoing the
sentence of life imprisonment shall be
considered for premature release after they
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
19/37
have served at least 10 years of
imprisonment inclusive of remissions but
only after completion of 7 years actual
imprisonment i.e. without remissions.
3
[(iv) In such cases in which life
sentence has been awarded by specifying
that the convict shall undergo life sentence
till the end of his life without remission or
commutation, benefit of remission or
commutation shall not be given to convict.]
3
[(v) In such cases in which life
sentence has been awarded by specifying
that the convict shall not be released by
granting remission or commutation till he
completes a fixed term of 20 years or 25
years or like, remission or commutation
shall not be granted to a convict until he
completes the fixed term as prescribed in the
sentence.]”
7.5. Thus, from the comparison of the aforesaid
policies of the State Government under Notification dated
10.12.2002 and Rule 481 of the Manual of 2012, it would reveal
that clause (iii) (d) of Policy of 2002 did not find place in the
new Policy of premature release.
7.6. Now, at this stage, we would like to refer the
provisions contained in Section 432, 433 and 433A of the
Cr.P.C., which provides as under: –
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
20/37“432. Power to suspend or remit
sentences.–(1) When any person has been
sentenced to punishment for an offence, the
appropriate Government may, at any time,
without conditions or upon any conditions
which the person sentenced accepts, suspend
the execution of his sentence or remit the
whole or any part of the punishment to
which he has been sentenced.
(2) Whenever an application is made to
the appropriate Government for the
suspension or remission of a sentence, the
appropriate Government may require the
presiding Judge of the Court before or by
which the conviction was had or confirmed,
to state his opinion as to whether the
application should be granted or refused,
together with his reasons for such opinion
and also to forward with the statement of
such opinion a certified copy of the record of
the trial or of such record thereof as exists.
(3) If any condition on which a sentence
has been suspended or remitted is, in the
opinion of the appropriate Government, not
fulfilled, the appropriate Government may
cancel the suspension or remission, and
thereupon the person in whose favour the
sentence has been suspended or remitted
may, if at large, be arrested by any police
officer, without warrant and remanded to
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
21/37
undergo the unexpired portion of the
sentence.
(4) The condition on which a sentence is
suspended or remitted under this section
may be one to be fulfilled by the person in
whose favour the sentence is suspended or
remitted, or one independent of his will.
(5) The appropriate Government may,
by general rules or special orders, give
directions as to the suspension of sentences
and the conditions on which petitions should
be presented and dealt with:
Provided that in the case of any
sentence (other than a sentence of fine)
passed on a male person above the age of
eighteen years, no such petition by the
person sentenced or by any other person on
his behalf shall be entertained, unless the
person sentenced is in jail, and–
(a) where such petition is made by the
person sentenced, it is presented through the
officer in charge of the jail; or
(b) where such petition is made by any
other person, it contains a declaration that
the person sentenced is in jail.
(6) The provisions of the above sub-
sections shall also apply to any order passed
by a Criminal Court under any section of
this Code or of any other law, which restricts
the liberty of any person or imposes any
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
22/37
liability upon him or his property.
(7) In this section and in section 433,
the expression “appropriate Government”
means,–(a) in cases where the sentence is
for an offence against, or the order referred
to in sub-section (6) is passed under, any law
relating to a matter to which the executive
power of the Union extends, the Central
Government;
(b) in other cases, the Government of
the State within which the offender is
sentenced or the said order is passed.
433. Power to commute sentence.–The
appropriate Government may, without the
consent of the person sentenced, commute–
(a) a sentence of death, for any other
punishment provided by the Indian Penal
Code (45 of 1860);
(b) a sentence of imprisonment for life,
for imprisonment for a term not exceeding
fourteen years or for fine;
(c) a sentence of rigorous imprisonment,
for simple imprisonment for any term to
which that person might have been
sentenced, or for fine;
(d) a sentence of simple imprisonment,
for fine.
1[433A. Restriction on powers of
remission or commutation in certain cases.
–Notwithstanding anything contained in
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
23/37
section 432, where a sentence of
imprisonment for life is imposed on
conviction of a person for an offence for
which death is one of the punishments
provided by law, or where a sentence of
death imposed on a person has been
commuted under section 433 into one of
imprisonment for life, such person shall not
be released from prison unless he had served
at least fourteen years of imprisonment.]”
7.7. From the aforesaid provisions contained in
Cr.P.C., it would reveal that Section 432 of the Cr.P.C. deals
with the power to suspend or to remit the sentence, whereas
Section 433 of the Cr.P.C. provides the power of appropriate
Government to commute the sentence of a prisoner. However,
Section 433A of the Cr.P.C. imposes restriction on powers of
remission or commutation in certain cases. A bare reading of
Section 433A of the Cr.P.C. would suggest that it starts with a
non obstante clause. It specifically provides that where a
sentence of imprisonment for life is imposed on conviction of a
person for an offence for which death is one of the punishments
provided by law, or where a sentence of death imposed on a
person has been commuted under Section 433 into one of
imprisonment for life, such person shall not be released from
prison, unless he had served at least fourteen years of
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
24/37imprisonment.
7.8. In the present case, it is not in dispute that the
petitioner has been convicted for committing offence punishable
under Section 302 of the IPC. The trial court has imposed the
sentence of life upon the petitioner. However, under Section 302
of the IPC, one of the punishments provided is death sentence.
Thus, we are of the view that the case of the present petitioner
falls under Section 433A of the Cr.P.C.
7.9. Now, we would like to deal with the submissions
canvassed by learned counsel for the petitioner that as the
petitioner has attained the age of 65 years and he has actually
served the sentence of 07 years, his case would fall under clause
(iii)(d) of Notification dated 10.12.2002 issued by the
Government of Bihar.
7.10. We have already reproduced the relevant extract
of the policy dated 10.12.2002 of the State Government with
regard to the premature release of the convicts. Clause (iii) (a)
talks about every convict person, whether male or female, who
is undergoing sentence of life imprisonment covered by the
provisions of Section 433A of the Cr.P.C., for which convict, his
case for premature release can be considered after serving
sentence of 14 years of actual imprisonment without remission.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
25/37
We are of the view that Clause (iii)(a) is in consonance with
Section 433A of the Cr.P.C.
7.11. So far as Clause (iii)(b) is concerned, the same
would be applicable to all other convict male prisoners that is
not covered under Section 433A of the Cr.P.C., who are
undergoing sentence of life imprisonment. Cases of such convict
male prisoners for premature release can be considered after
completion of 10 years of actual imprisonment. We are of the
view that the words ‘sentence of life imprisonment’ used in sub-
clause (b) of Clause (iii) covers such cases where death sentence
is not one of the punishments prescribed for such offences, e.g.,
if a male is convicted for committing an offence punishable
under Sections 194 or 222 or 238 or 304 or 304B or 326 or 412
or 467 etc. of the IPC, where the punishment prescribed is life
imprisonment, such type of convict male prisoners can be
released prematurely after completion of 10 years’ actual
imprisonment. At this stage, it is also relevant to observe that
there is no age criteria mentioned in sub-clause (b) with regard
to such prisoners.
7.12. So far as Clause (iii)(c) of the aforesaid policy is
concerned, it would cover the cases of convicted female
prisoners, who are not covered under Clause (iii)(a) of the
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
26/37
Policy. Such female prisoners undergoing sentence of life
imprisonment shall be considered for premature release after
completion of 07 years of actual imprisonment without
remission, e.g., female convict, who is undergoing sentence of
life imprisonment for committing offences punishable under
Sections 194 or 222 or 238 or 304 or 304B or 326 or 412 or 467
etc. of the IPC. Thus, so far as such female prisoners are
concerned, their case can be considered after completion of 07
years of actual imprisonment. Here also, there is no age criteria
mentioned in sub-clause (c).
7.13. Now, we are concerned with Clause (iii)(d) of
the aforesaid policy and upon which reliance has been placed by
the petitioner. We are of the view that sub-clause (d) covers such
cases where convicted prisoner, either male or female, is
undergoing sentence of life imprisonment for committing
offences punishable such as under Sections 194 or 222 or 238 or
304 or 304B or 326 or 412 or 467 etc. of the IPC. Such convict,
if he/she has attained the age of 65 years and he/she has served
at least 07 years of imprisonment including remission, benefit of
premature release can be provided to such convicts. Thus, we
are of the view that sub-clause (d) would be applicable to the
cases where the prisoner is convicted for committing the offence
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
27/37
where death sentence is not one of the punishments prescribed
and where the punishment prescribed for committing such
offence is life imprisonment, then on attaining the age of 65
years any male or female convict, who has served 07 years of
imprisonment including remission can be considered for
premature release.
7.14. If the interpretation put forward by the petitioner
with regard to Clause (iii)(d) of the Notification dated
10.12.2002 is accepted, then Clause (iii)(a) of the said
Notification would become redundant. It is also required to be
observed at this stage that Bihar Prison Manual is a piece of
subordinate legislation and the State Government has issued the
Notification dated 10.12.2002 while exercising powers under
the said Manual, however, the same cannot override the
provisions contained in Section 433A of the Cr.P.C.
7.15. Now, the State Government has introduced a
new policy under Rule 481 of the Manual of 2012. We have
already reproduced the aforesaid provision. If we carefully go
through the new policy contained in Rule 481 of the Manual of
2012, it transpires that there is no similar provision like Clause
(iii)(d) of Notification dated 10.12.2002. In other words, Rule
529, which was substituted by Notification dated 10.12.2002
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
28/37
being a part of earlier Jail Manual, which stood superseded on
coming into force of the Manual of 2012, is no longer an
eligibility criteria for seeking premature release.
7.16. At this stage, we would like to refer the decision
rendered by the Hon’ble Supreme Court in the case of State of
Haryana v. Jagdish (supra), wherein the Hon’ble Supreme
Court has observed in paragraph 54 as under: –
“54. The State authority is under an
obligation to at least exercise its
discretion in relation to an honest
expectation perceived by the convict, at
the time of his conviction that his case
for premature release would be
considered after serving the sentence,
prescribed in the short-sentencing policy
existing on that date. The State has to
exercise its power of remission also
keeping in view any such benefit to be
construed liberally in favour of a convict
which may depend upon case to case and
for that purpose, in our opinion, it should
relate to a policy which, in the instant
case, was in favour of the respondent. In
case a liberal policy prevails on the date
of consideration of the case of a “lifer”
for premature release, he should be given
benefit thereof.”
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
29/37
7.17. In the case of Rajo @ Rajwa @ Rajendra
Mandal Vs. the State of Bihar and others reported in 2023
INSC 771 (Writ Petition (Criminal) No(s). 252/2023), the
Hon’ble Supreme Court has taken note of the views expressed
in the case of State of Haryana v. Jagdish (supra), wherein it has
been observed that if a liberal policy prevails on the date of
consideration of the case of a “lifer” for premature release, he
should be given benefit thereof. Paragraph 27 of the said
judgment reads as under:-
“27. This court, on earlier
occasion, had grappled with the
situation of different remission
policies/rules prevailing at different
points of the convict’s sentence – i.e.,
when the policy on the date of
conviction, and on the date of
consideration for premature release,
are different. It has been held that the
policy prevailing on the date of the
conviction, would be applicable.
However, in Jagdish (supra) it was
also recognized that if a more liberal
policy exists on the date of
consideration, the benefit should be
provided……..”
7.18. From the aforesaid two decisions rendered by
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
30/37
the Hon’ble Supreme Court, it can be said that if a more liberal
policy exists on the date of consideration of the case of a ‘lifer’
for premature release, he should be given benefit thereof. In the
present case, according to the petitioner, Policy of 2002 for
premature release would be more liberal and beneficial to the
petitioner and, therefore, he has placed reliance upon the said
Policy.
7.19. We have gone through the order dated
15.12.2021 passed by a learned Single Judge of this Court in the
case of Khelawan Yadav (supra), we are of the view that in the
said order, the learned Single Judge has mainly considered the
amended Rule 529 of Bihar Jail Manual. There is no reference
with regard to consideration of Clause (iii)(a) of the aforesaid
Notification dated 10.12.2002 nor there is any reference with
regard to the provisions contained in Section 433A of the
Cr.P.C. Thus, correct provision of law was not brought to the
notice of the learned Single Judge in the case of Khelawan
Yadav (supra). We are, therefore, of the view that the said
decision can be termed as per incuriam.
7.20. Now, we would like to deal with another
submission canvassed by learned counsel for the petitioner, i.e.,
the powers of the Hon’ble Governor under Article 161 of the
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
31/37
Constitution of India. We have gone through the memo of the
present petition and also the order passed by the learned Single
Judge by which the matter has been referred to this Bench. It
appears from the records that the aforesaid contention has not
been taken by learned counsel for the petitioner before the
learned Single Judge. We are of the view that three issues have
been referred to this Bench. Thus, at this stage it is required to
be considered by us whether the new point, which has been
argued by the learned counsel for the petitioner in the present
reference, can be decided by this Bench or not.
7.21. At this stage, we would like to refer to the
decision rendered by the Hon’ble Supreme Court in the case of
Kerala State Science & Technology Museum v. Rambal Co.
reported in (2006) 6 SCC 258. Hon’ble Supreme Court has
observed in paragraph 8 as under: –
“8. It is fairly well settled that
when reference is made on a specific issue
either by a learned Single Judge or Division
Bench to a larger Bench i.e. Division Bench
or Full Bench or Constitution Bench, as the
case may be, the larger Bench cannot
adjudicate upon an issue which is not the
question referred to.”
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
32/37
7.22. In the case of State of Punjab v. Salil Sabhlok
reported in (2013) 5 SCC 1, the Hon’ble Supreme Court has
observed in paragraphs 137 to 140 as under: –
“137. The learned counsel
supporting the appointment of Mr Dhanda
submitted that the Full Bench could not
expand the scope of the reference made to it
by the Division Bench, nor could it frame
additional questions.
138. Generally speaking, they are
right in their contention, but it also depends
on the reference made.
139. The law on the subject has
crystallized through a long line of decisions
and it need not be reiterated again and
again:
139.1. The decisions
include Kesho Nath Khurana v. Union of
India [1981 Supp SCC 38 : 1981 SCC (Cri)
674] : (SCC p. 39, para 1)“1. … The Division
Bench ought to have sent the appeal
back to the Single Judge with the
answer rendered by them to the
question referred by the Single Judge
and left it to the Single Judge to
dispose of the second appeal
according to law.”
139.2.Kerala State Science &
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
33/37
Technology Museum v. Rambal Co. [(2006)
6 SCC 258] : (SCC p. 262, para 8)
“8. It is fairly well settled that
when reference is made on a specific
issue either by a learned Single Judge
or Division Bench to a larger Bench
i.e. Division Bench or Full Bench or
Constitution Bench, as the case may
be, the larger Bench cannot
adjudicate upon an issue which is not
the question referred to.”
139.3.T.A.Hameed v. M.Viswanath
an [(2008) 3 SCC 243] : (SCC p. 245, para
12)
“12. … Since, only reference was
made to the Full Bench, the Full
Bench should have answered the
question referred to it and remitted the
matter to the Division Bench for
deciding the revision petition on
merits.”
139.4. And more recently, Saquib
Abdul Hameed Nachan v. State of
Maharashtra [(2010) 9 SCC 93 : (2010) 3
SCC (Cri) 1146] : (SCC p. 102, para 15)
“15. … Normally, after answering
the reference by the larger Bench, it is
for the Reference Court to decide the
issue on merits on the basis of the
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
34/37
answers given by the larger Bench.”
140. There is no bar shown
whereby a Bench is precluded from
referring the entire case for decision
by a larger Bench–it depends entirely
on the reference made. In any event,
that issue does not arise in this appeal
and so nothing more need be said on
the subject.”
7.23. Thus, from the aforesaid decisions rendered by
the Hon’ble Supreme Court, it can be said that when reference is
made on specific issue either by learned Single Judge or by the
Division Bench to a Larger Bench, the Larger Bench cannot
adjudicate upon an issue which is not the question referred to.
Further, after answering the reference by the Larger Bench, it
was the reference Bench to decide the merits on the answers
given by the Larger Bench. Accordingly, we are of the view that
when learned counsel for the petitioner has not argued the point
with regard to power of the Hon’ble Governor under Article 161
of the Constitution of India before the learned Single Judge and
the learned Single Judge has not referred the said issue to the
Larger Bench, it is not open for us to discuss on the said issue
and give a finding on the same. Thus, in the present reference,
we would like to deal with the issues, which are referred to this
Bench.
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
35/37
7.24. Learned counsel for the petitioner has also
placed reliance upon the instructions issued by the Government
of India, Ministry of Home Affairs vide communication dated
10.06.2022, wherein there is reference of grant of special
remission to the prisoners as a part of celebrations of Azadi Ka
Amrit Mahotsav. However, Clause 5 of the said
policy/communication also provides that special remission is
not to be granted to certain categories of convicts and Clause
5(i) specifically provides that the persons convicted with death
sentence or where death sentence has been commuted to life
imprisonment or persons convicted for an offence for which
punishment of death has been specified as one of the
punishments. We are also of the view that this factual aspect was
not argued by the learned counsel for the petitioner before the
learned Single Judge. Thus, it is not open for us in the present
reference to consider the said issue, when the same is not
referred to us.
7.25. Similarly, learned counsel for the petitioner has
also placed reliance upon the Model Prison Manual, 2016.
However, since the said issue was not argued before the learned
Single Judge, we are of the view that it is not open for us in the
present reference to consider the said issue as the same has not
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
36/37
been referred to the Larger Bench.
ANSWER TO THE ISSUES REFERRED: –
8. In view of the aforesaid discussion, our answer to
the issue referred are as under: –
(i) Sub-clause (gha) of Clause (iii) [sub-clause (d) of
Clause (iii)] of the Notification dated 10.12.2002 issued by the
Home (Special) Department, Government of Bihar, by which
Rule 529 of the then Bihar Jail Manual was substituted would not
cover the case of the life convict who is serving sentence for
committing an offence in which death is one of the punishments.
(ii) Rule framed by the State Government in the form
of subordinate piece of legislation granting benefit of premature
release cannot override the provisions contained in Section
433A of the Cr.P.C. Thus, a life convict, whose case is covered
under Section 433A of the Cr.P.C., cannot be granted premature
release on any ground whatsoever provided by way of a rule made
by the State Government in the form of a subordinate piece of
legislation.
(iii) The claim of the petitioner for his premature release
on the basis of the judgment delivered by a learned Single Judge in
the case of Khelawan Yadav (supra) cannot be allowed as the said
decision can be terms as per incuriam.
9. The reference stands answered accordingly and the
Patna High Court CR. WJC No.938 of 2023(8) dt.09-04-2025
37/37
matter is remitted back to the learned Single Judge for deciding
the matter on its own merits.
(Vipul M. Pancholi, J)
Alok Kumar Pandey, J: I agree.
(Alok Kumar Pandey, J)
Pawan/-
U
[ad_1]
Source link