Excerpt
The petitioner was in custody since 18.3.1998 charged under Sections 302/34/504/506 of the Indian Penal Code, 1860. He was put on the trial, and during the trial, he was bailed out on 9.7.2003 and released on 26.7.2003. Further, he was convicted and sentenced to life imprisonment on 16.6.2007. He preferred an appeal before this Court and was released on a bail on 1.10.2012. His appeal finally came to be dismissed on 23.5.2014. He surrendered before the court below on 23.8.2014 and since then he is in jail and as of date has undergone incarceration of more than 17 years.
Facts
The mother of the petitioner staked a claim for the release of her son upon completion of 16 years of custody. He was charged under Section 433 of the Indian Penal Code. The claim was rejected on the ground that the petitioner’s total detention period was only 12 years 10 months 29 days as against the requisite period of 16 years. The State government was misled as it did not have the custody warrant of the petitioner taken into custody. To resolve the confusion as to when was the petitioner actually taken into custody, a report was submitted which revealed that the Chief Judicial Magistrate had taken the petitioner into custody in Case Crime No. 1311/1997 on 18.3.1998. It was stated that if a mistake had been committed by the Chief Judicial Magistrate by not enclosing the custody warrant of the petitioner dated 18.3.1998 in his records, the rights of the petitioner under Section 433 of the Code cannot be jeopardized.
Arguments before the Court
The counsel for the petitioner contended that due to the miscalculation of the custodial warrant dated 18.3.1998 by the Chief Judicial Magistrate, the issue was finally resolved on 15.12.2020. The rejection of the claim dated 29.1.2021 on the ground of criminal history and vague allegations of threat perception was mala fide. The counsel further argued that the petitioner had served more than 17 years of imprisonment with no appeal either by State or by the family of the victim and in so far apprehension of the family of the victim is concerned that they would be at potential risk if the petitioner will be released, is not a prescribed parameter for rejection of the claim under the G.O. dated 1.8.2018. Thus, it was submitted that the impugned order is not only based on irrelevant considerations but also suffers absolute non-application of mind. The counsel asked the court to direct the respondents to release the petitioner.
The Counsel for the respondents argued that Section 433 of the Code is an extraordinary power conferred upon the State which exercised on the parameters laid down in the policy dated 1.8.2018. He further submitted that the order dated 2.3.2020 by which the claim was rejected on the ground of incomplete detention period, would not prevent the State Government. He submitted that only when a convict fulfils the period of requisite detention, the application for release under Section 433 of the Code becomes maintainable under law. He also argued that there are materials on record to prove that the petitioner after release on bail was alleged to have committed another murder which was registered as Case Crime No. 670/2013.
Court’s Observation
The court observed that as per Section 433 of the Indian Penal Code, the appropriate government is granted the power to commute types of punishments for the offences committed including payment of the fine. Section 433-A provides restrictions on powers of remission or commutation in certain cases. The court observed that once the State has formulated a policy for the release of convicts under Section 433, it is always open for the State to either grant commutation to a class of convicts or an individual based on the case. In the opinion of the Court, life convict could only seek consideration for premature release in the light of Section 433 of the Code and the policy of the day. Thus, even though power under Section 433 of the Code may be discretionary, yet once the State has conceived a policy to release convicts then it is obliged to consider a request for premature release.
Court’s Decision
Based on the perusal of the original records, the court did not find any material which proved or indicated that while the petitioner was on the bail, he ever threatened the family of the victim with dire consequences. The Court also added that a premature release should always be considered reasonably and fairly known to law. The High Court thus, allowed the present writ petition and the matter was remanded to the competent authority to consider the release of the petitioner afresh under Section 433 of the Code, in accordance with the law, within a month.
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