Judgment

RAJENDRA BABU, J.- This writ petition filed under Article 32 of the Constitution seeks for the release of the petitioner who is undergoing imprisonment for life after having been convicted under Section 302 IPC read with Section 34 IPC. The claim of the petitioner is that he has undergone the following period of actual sentence and earned remissions:

_______________________________________________________________________Years Months Days

_______________________________________________________________________

(a) From 25-6-1982 to 1-5-2000 17 10 6

including undertrial period confinement 5 8 29

(b) Remissions earned or government

remissions granted up to 31-12-1999

(c) Total sentence including remissions 23 7 5

2. The petitioner also claims that under Section 61(1) of the West Bengal Correctional Services Act 32 of 1992, which on Presidential assent being given came to force with effect from 14-4-2000, he is entitled to be released inasmuch as he had served the sentence and earned remissions as detailed above and was entitled to be released as on 27-9-1996. The details are set forth hereunder:

Year Months Days

(i) Length of life 20 0 0

imprisonment under the

definition of punishment

vide explanation is:

(ii) Deduct the period of 5 8 29

remission earned or granted

under Section 58 or Section 14 3 1

Days Months Year

_______________________________________________________________________

(v) Sentence of the petitioner 3 9 1982

started from the date of his 0 2 8

sentence on 3-9-

1982

(vi) Add the amount actual 24 0 14

sentence to be undergone

from Item (iii) above

(vii) Date of release on 27 that is, 9 1996

which the Superintendent of 27-9-1996

Jail was liable to release the

petitioner under Rule 771 now

under Section 61 (1) read with

Rule 571 in Chapter XIII, West

Bengal Jail Code

3. After examining the legal position as to the nature of the powers arising under Section 432 CrPC read with Article 161 of the Constitution and the relevant Rules relating to remission of sentences, it is observed in State of M.P. v. Ratan Singh1 as under: (SCC Headnote)

"(1) That a sentence of imprisonment for life does not automatically expire at the end of 20 years including the remissions, because the administrative rules framed under the various jail manuals or under the Prisons Act cannot supersede the statutory provisions of the Indian Penal Code. A sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or a part of the sentence under Section 401 of the Code of Criminal Procedure, 1898;

(2) That the appropriate Government has the undoubted discretion to remit or refuse to remit the sentence and where it refuses to remit the

iii) Deduct the period of set-off under Section 428 CrPC, 1973

(iv) Total amount of actual sentence the petitioner herein was liable to undergo sentence no writ can be issued directing the State Government to release the prisoner;"

4. In Naib Singh v. State of Punjab2 it was noticed that a distinction a between "imprisonment for life" and "imprisonment for a term" has been maintained in the Indian Penal Code in several of its provisions and moreover, whenever an offender is punishable with "imprisonment for life" he is not punishable with "imprisonment which may be of either description" within the meaning of Section 60 IPC and therefore, we cannot come to the conclusion that the court, by itself, could release the convict automatically before the full life term is served. This aspect was highlighted in Gopal Vinayak Godse v. State of Maharashtra3 wherein it was held that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted persons natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant Rules a sentence for imprisonment for life is equated with the definite period of 20 years, there is no indefeasible right of such prisoner to be unconditionally released on the expiry of such particular term, including remissions and that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. In view of this legal position explained by this Court it may not help the petitioner even on the construction placed by the learned counsel for the petitioner on Section 61(1) of the West Bengal Correctional Services Act 32 of 1992 with reference to explanation thereto that for the purpose of calculation of the total period of imprisonment under this section the period of imprisonment for life shall be taken to be equivalent to the period of imprisonment for 20 years. Therefore, solely on the basis of completion of a term in jail serving imprisonment and remissions earned under the relevant Rules or law will not entitle an automatic release, but the appropriate Government must pass a separate order remitting the unexpired portion of the sentence.

5. If what we have stated above is the correct position in law then what arises for consideration in this case is whether there has been due consideration of the case of the petitioner by the Government. On an earlier occasion when the matter had come up before this Court an order dated 15-2-2000 had been made directing the Government to reconsider the cases for premature release of all life convicts who had approached the Court earlier. Thereafter, the Government constituted a Review Committee consisting of

the following members to examine the matter and make a report there of to the Court:

(1) Home Secretary Chairman

(2) Judicial Secretary Convenor

(3) IG of Prisons, West Bengal Member

(4) Secretary Home (Jails) Department Member

(5) DG & IG of Police, West Bengal Member

(6) Commissioner of Police, Calcutta Member

(7) Chief Probation Officer Member

6. This Court also issued certain guidelines as to the basis on which a convict can be released prematurely and they are as under:

"(i) Whether the offence is an individual act of crime without affecting the society at large.

(ii) Whether there is any chance of future recurrence of committing crime.

(iii) Whether the convict has lost his potentiality in committing crime.

(iv) Whether there is any fruitful purpose of confining this convict any more.

(v) Socio-economic condition of the convicts family."

7. In the present case, the report of the jail authorities is in favour of the petitioner. However, the Review Committee constituted by the Government recommended to reject the claim of premature release of the petitioner for the following reasons:

(1) that the police report has revealed that the two witnesses who had deposed before the trial court and the people of the locality are all apprehensive of acute breach of peace in the locality in case of premature release of the petitioner;

(2) that the petitioner is a person of about 43 years and hence he has the potential of committing crime; and

(3) that the incident in relation to which the crime had occurred was the sequel of the political feud affecting the society at large.

8. If we look at the reasons given by the Government, we are afraid that the same are palpably irrelevant or devoid of substance. Firstly, the views of the witnesses who had been examined in the case or the persons in the locality cannot determine whether the petitioner would be a danger if prematurely released because the persons in the locality and the witnesses may still live in the past and their memories are being relied upon without reference to the present and the report of the jail authorities to the effect that the petitioner has reformed himself to a large extent. Secondly, by reason of ones age one cannot say whether the convict has still potentiality of committing the crime or not, but it depends on his attitude to matters, which is not being taken note of by the Government. Lastly, the suggestion that the incident is not an individual act of crime but a sequel of the political feud affecting society at large, whether his political views have been changed or a still carries the same so as to commit crime has not been examined by the Government.

9. On the basis of the grounds stated above the Government could not have rejected the claim made by the petitioner. In the circumstances, we quash the order made by the Government and remit the matter to it again to examine the case of the petitioner in the light of what has been stated by this Court earlier and our comments made in this order as to the grounds upon which the Government refused to act on the report of the jail authorities and also to take note of the change in the law by enacting the West Bengal Correctional Services Act 32 of 1992 and to decide the matter afresh within a period of three months from today. The writ petition is allowed accordingly.

After issuing rule the same is made absolute.