JUDGMENT
1. In these proceedings, which commenced on a letter petition by a convict from jail, we have been given valuable and impartial assistance by the learned Government Advocate Sri Vijay Shankar Misra, considering that the petitioner is not represented and the issue is of public importance.
The Issue
2. In Mirza Mohammad Husayn v. State of U.P., [2002 (1) JIC 342 (All)], a Division Bench of this Court comprising Hon'ble G.P. Mathur and Hon'ble S.K. Jain JJ. struck down two GO.s, dated 11.1.2000 and 25.1.2000 issued by the Governor, mulct Article 161, which inter alia directed release of all life imprisonment male prisoners over 60 years in age, and female prisoners over 50 years, if they had undergone an actual period of 3 year, imprisonment on 26.1.2000. The main reasons for this order were that irrespective of the differences and seriousness of the cases, release of all prisoners, over 60, in the case males and 50 years in the case of females, who had undergone only 3 years sentence, in cases of life imprisonment by one stroke by a blanket order without examining the individual cases amounted to an arbitrary and mala fide exercise of the governor's Constitutional powers, as it set at naught well considered judicial orders.
3. In paragraph 23 the Bench has expressed its views thus: "However by the Government Order, the sentence awarded to all the prisoners have been drastically reduced and virtually set aside by one stroke. This has not been done in favour an individual or a small group of prisoners but for all the convicts who were undergoing imprisonment and were confined in jail in the State of U.P. The sentence had been imposed upon them as a result of judgments delivered by Courts including superior Courts, High Court and Supreme Court on sound judicial principles. Where pardon is granted to a named individual or a small group of persons having common or identical features whose identity is known it is a case of mercy as it only affects the execution of their sentence.. Where, however, a general order is passed whole hog without identifying the persons and its applicability being dependent entirely upon the period of imprisonment suffered, it cannot be termed as an act of mercy or pardon, as in reality it impinges upon the judicial orders passed by the Court imposing sentences upon the convicts. The release of prisoners under this order does not take place on a particular fixed day which would normally he the case in a pardon hut on different dates depending upon when they fulfil the criteria fixed in the order, namely, undergoing of 2 or 3 years sentence. The power of pardon under Article 161 cannot be exercised in a manner which completely negates the scheme of constitution regarding division of powers. An essential function performed by the judiciary cannot he altered or modified or its effect taken away in the garb of power of pardon by the Governor under Article 161 of the Constitution. It is a clear misuse of power which cannot be countenanced and must be struck down."
4. Apart from directing re-arrest of the released accused Nos. 17 to 19, under the impugned Government Order in Mirza Mohammad's case, the Bench also directed in paragraph 32, that: "in larger public interest, the appropriate direction which should be issued by this Court is to direct the State to put all such persons back to prison who have been granted premature release on the strength of the impugned Government Orders."
5. Like the sweeping releases, this direction set in motion a flurry of re-arrests. Although many of the accused were rightly rearrested who had undergone only a petty three year term of imprisonment in a case of murder, arid had got their ages increased to 60 or 50 years if they were males or females, by under hand means. However in regard to a large number of the accused who had infact undergone over 14 years actual imprisonment, or were reaching an age of 80 years, steps were initiated to re-arrest such released prisoners, because of the general directions in Mirza Mohammad's case. Many of such prisoners having financial and other resources, who had undergone 14 years and had been re-arrested or whose re-arrest were being sought, approached the Hon'ble Supreme Court. Orders were passed by the apex Court on 5.9.03 and 30.1.04 staying re-arrests or directing release of prisoners who had undergone 14 years sentence, after calling for Jail Reports, in SLP (Crl) 5002/02, SLP (Crl) 5020/02, SLP (Crl) 5006. SLP (Crl) 5013/02, W.P. (Crl.) 7/2003, SLP (Crl) 1190/2003, Crl. M.P. and SLP (Crl) 5018/02, SLP (Crl) No. 5005/2002, SLP (Crl) 4259/2003 etc. and in the reported decision in Vijay Bahadur v. State of U.P., [2003 (2) JIC 457 (SC)].
6. In SLP (Crl) . . . /2001 connected with Crl.M P. No. 13434 7 2001 the apex Court passed an order on 7.12.01 requiring all those petitioners who had not been in custody for more than 14 years to surrender for consideration of their SLPs. However the Court made an exception in regard to one petitioner Jaipal, s/o Ramji Lal) who was shown to be aged 80 years.
7. Even in Mirza Mohammad's case at the end of paragraph 9, the Division Bench headed by Hon'ble G.P. Mathur distinguished the cases of convicts who had undergone 14 years imprisonment thus. "So legislative intent is that a person sentenced to imprisonment for life should hot be released unless he has served fourteen years."
8. It appears to us that such practices of releasing accused en-masse by such general Government Orders purportedly issued by the Governor under Article 161 are resorted to when no regular releases are being effected under the normal provisions for premature release of prisoners contained in the Jail Manual and Sections 432 and 433 of the Code of Criminal Procedure, or under the U.P. Prisoners Release on Probation Act, 1938 and other parallel provisions, where prisoners are required to be released after detailed examination of their cases, but only prisoners with political' clout are managing to secure premature releases, and jails have become over crowded Indeed these en masse releases at one stroke, resemble the official practice of hurried spending, without application of mind to the merit of each case in the last few days or hours of the financial year, because the well considered steps needed for earmarking budgetary expenditures are not taken all the year long.
Approach needed
9. It is thus clear that there is need to strike a middle path and to avoid the two extremes. Neither the release of prisoners almost immediately after conviction by the executive making a mockery of judicial orders, not he other extreme of allowing prisoners to languish in jails for periods as long as 20 to 25 years meet our approval. For some years the pairokars and relations visit these prisoners in jail, but later they get embroiled with the problems of their own lives or become disheartened and even stop visiting these prisoners who become forgotten numbers, bereft of hope. When the period of incarceration of a prisoner in jail is unduly prolonged, women and children are exploited and families ruined. The possibility of the prisoner eventually being re-integrated as a socially useful and productive member of his family on release gradually fades. Also no useful purpose is served by detaining the prisoner for a longer period, as society and the relations of the victim could usually be expected to be satisfied with this adequate measure of punishment undergone by the offender, and whatever deterrent message that a punishment intended to convey would have been received by the prisoner after his long stint in jail, and indeed he has lost any potentiality of committing a future crime.
10. But the solution to this problem is not by passing general orders releasing prisoners en bloc, but by individually considering cases of prisoners for premature release in accordance with criteria laid down in relevant statutes and government orders at appropriate levels within a reasonable or prescribed time frame.
Factual background of the case
11. While examining the case of a convict Bacchey Lal who had sent a letter petition from jail to this Court in 1997 stating that he had served out an actual jail term of 14 years and 2 months on 7.7.97, we had passed an order oh 5.3.2004 calling for an affidavit from the Superintendent, Central Jail, Varanasi indicating the present status of the said convict. We also directed the Jail Superintendent to disclose, as to how many inmates are currently present in Varanasi Central jail who had undergone an actual period of imprisonment of 14 years or more. This period was to include the period of detention as under trials. This direction was issued because we find that mostly prisoners with economic or political resources alone succeed in approaching this Court or the apex Court or Government for relief. It is time that this Court throws open its doors also to the voiceless and the resourceless.
12. In response the Deputy Jailor, Central Jail, Varanasi filed an affidavit dated 1.3.04 indicating that Bacchey Lal had been convicted under Sections 302/323/34 IPC by judgement dated 31.7.84 in ST. No. 219 of 1983 by the Additional Sessions Judge. Mirzapur. He was detained in jail from 9.5.83. and was directed to be released on bail on 5.3.2000.
13. It was further pointed out that there were 108 inmates in Central Jail, Varanasi who had completed an actual term of over 14 years. A copy of the list of these inmates was also attached as Annexure SCA I.
14. The list makes startling reading. On 24.2.04, (the date of the report), these prisoners are shown incarcerated in prison from periods ranging from 14 years 20 days to 26 years, 9 months and 19 days. In the majority of cases they have undergone jail terms from 17 to 20 years. What is more shocking is that even the appeals of 24 prisoners have not been decided up to the present date. Although most of the prisoners had been convicted by judgements passed by the concerned Sessions Judges after 1978, there were about 46 prisoners who had been convicted prior to 18.12.1978, and to whose cases the interdict of Section 433A of the Code of Criminal Procedure requiring them to serve out a minimum actual jail term of 14 years, without remissions would not apply.
15. A second supplemetary affidavit dated 5.4.04 has been filed by the Deputy Jailor on 6.4.01. This affidavit has annexed a Government Order, SCA I, dated 6.2.1992 issued by the State Government in exercise of powers conferred under Article 161 of the Constitution of India, fixing guidelines for considering prayers for reducing the sentences commuting sentences and considering mercy petitions and effecting other remissions and modifications in sentences awarded to convicted prisoners lodged in various jails in the State.
16. Another annexure, SCA III, to the second supplementary affidavit, mentions steps taken by the authorities for consideration of the prisoners' application in Form 'A', (i.e. under the Prisoners Release on Probation Act 1938, hereafter the Probation Act), and nominal roles under Paragraph 198 of the Jail Manual. The second Supplementary affidavit points out that the cases of 24 prisoners for premature relief were not considered at all because their appeals are pending before the High Court. One convict Raj Bahadur Singh son of Surya Baksh Singh was released on 26.3.04, and one prisoner Murli son of Bhagga has been directed to be released by the State Government for which the challan has been sent. Out of the 108 convicted prisoners the Forms 'A' of 32 prisoners is pending consideration under the Probation Act, and the nominal roles of 19 prisoners forwarded under para 198 of the Jail Manual and Section 432 Cr.P.C., as the prisoners have completed 14 years imprisonment together with remissions are pending consideration. The cases of 31 persons have been finally rejected by the State Government under both provisions. The dates when the Forms A, and nominal roles were forwarded, and various steps taken on these applications at different stages are not mentioned. Brief reasons for rejection of the cases are also not mentioned in the Supplementary Affidavit, or the concerned Annexure, SCA III.
17. A third annexure, SCA II to the second supplementary affidavit contains a G.O. dated 3.7.92 which disallows consideration of the nominal roles under the 14 year guideline for premature release under paragraph 198 of the Jail Maual if their appeals against their convictions . re still pending. The G.O. also refers to an earlier G.O. dated 22.12.75 which had already prohibited consideration of Forms TV under the Prisoners Release on Probation Act of those prisoners whose appeals have not yet been decided.
18. In support of these Government Orders the learned Government Advocate has referred to the following lines in paragraph 8 of the apex Court decision in 'Ashok Kumar v. Union of India', reported in AIR 1991 SC 1792: "The law governing suspension, remission and commutation of sentence is both statutory and constitutional. The stage the exercise of the power generally speaking (emphasis ours) is post-judicial, i.e., after the judicial process has come to an end. The duty to judge and to award the appropriate punishment to the guilty is a judicial function which culminates by a judgment pronounced in accordance with law. After the judicial function thus ends the executive junction of giving effect to the judicial verdict commences." From these observations the learned G.A would like us to conclude that so long as the judicial function survives, the executive has no role to play for suspension; commutation, remission of sentences, or even for grant of pardon. This is regardless of whether an original trial or an appeal is pending before the High Court or the apex Court, and the time consumed for the disposal of the trial or appeal is of no consequence.
Analysis of the G.O.s dated 3.7.92 and 22.12.75 barring consideration of Nominal Roles and Forms A during pendency of Appeal.
19. Significantly the observations in the aforesaid G.O. restraining applications for premature release are qualified by the words, "generally speaking." If there is a complete bar on the executive for consideration of the cases of prisoners who have undergone the statutory minimum period of 14 years for grant of any kind of remission, commutation or probation in their sentences, the restriction suffers from the danger of falling foul of Articles 21 and 14 of the Constitution of India. We find that similarly placed prisoners who have undergone over 14 years in jail, and whose convictions have been confirmed as their appeals have even been dismissed or who have not preferred any appeals, are entitled to have their cases for premature release from jail considered under various statutory or constitutional provisions. This group of prisoners whose applications in Form A and nominal roles are not being considered because of non-disposal of their appeals for reasons such as poverty and absence of a pairokar, and the inability of the judicial system to dispose of appeals in a reasonble length of time, in fact stand on a worse footing. Such prisoners are doubly prejudiced, first as their appeals are not heard over prolonged periods. Second, even their nominal roles and applications in Form 'A' are not forwarded precluding consideration of their prayers for premature relief long after the passage of the statutory minimum period of 14 years.
20. Specifically so far as the U.P. Prisoners Release on Probation Act 1938 is concerned, it facilitates a loose form of release from jail by licence under the guardianship of a government officer or a suitable person belonging to the same religion of the prisoner, after the prisoner has served out a prescribed minimum term, if from his antecendents and conduct in prison, the State government is satisfied that the prisoner is likely jo abstain from crime and lead a peaceable life on release. The prisoner is Still treated in constructive custody, and the period of licensed release counts towards his sentence. There is no sound reason here, for denying a prisoner the right to have his application for release in Form A considered under this Act, until the final disposal of his appeal. A fortiori there is much greater reason for releasing a prisoner on parole or licence under this Act, and for observing his conduct in jail and outside, if his appeal has been wrongly held up for no fault of the prisoner over an inordinately long length of time.
21. In this regard, the Constitutional apex Court bench has held in Maru Ram v. Union of India, AIR 1980 SC 2147, in paragraph 69, "We, heartwarmingly, observe experiments in open jails, filled by lifers, liberal paroles and probations, generosity of juvenile justice and licensed release or freedom under leash a la, 'The Uttar Pradesh Prisoners' Release on Probation Act, 1938. We cannot view without gloom the reversion to the sadistic superstition that the longer a life-convict is kept in a cage the surer will be his redemption. It is our considered view that, beyond an optimum point of say, eight years we mean no fixed formula prison detention benumbs, and makes nervous wreck or unmitigated brute of a prisoner. "
22. Likewise in paragraph 72(11) the same law report again reiterates: "The U.P. Prisoners' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy."
23. More recently in Dadu v. State of Maharashtra, (2000) 8 SCC 437, where the Constitutional validity of Section 32A of the Narcotics, Drugs and Psychotropic Substances Act which prohibits suspension, remission or commutation of sentences during the pendency of an appeal under that Act was assailed, an argument was raised by a petitioner that even his right to be released on parole had been taken away. The apex Court rejected this contention in paragraphs 6 to 11 of the report holding that there was no suspension of sentence when a prisoner was directed to be released on parole, which could always be granted in accordance with statutes rule jail manual or government orders. Paragraphs 10 and 11 in 'Dadu's' case read as follows:
"10. Again in State of Haryana v. Nauratta Singh it was held this Court as under: (SCC p. 520, para 14) 'Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.'
11. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32A of the Act. Notwithstanding the provisions of (he offending section, a convict is entitled to parole, subject however, to the conditions governing the grant of it under the statute, if any, or the jail manual or the government instructions. The Writ Petition No. 169 of 1999 apparently appears to he misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with the jail manual applicable in the matter."
24. In Poonam Lata v. M.L. Wadhawan, a(1987) 3 SCC, it has been observed in paragraph 8:
"The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically 'parole' is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed-terms sentences of imprisonment of above IS months are subject to release on licence, (hat is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. "
25. From these passages and statement of the legal position we think that the State Government was not justified in prohibiting acceptance of applications in Form 'A' under the U.P. Prisoners Release on Probation Act, 1938 during the pendency of Criminal appeals by the G.O dated 22.12.75, as release on licence or parole on controlled conditions with a promise by the prisoner to return to jail if so required appear to be the most appropriate course of action especially when the Court was not in a position to dispose of the prisoner's appeal in any rational period of time, and the prisoner had undergone the prescribed period of imprisonment, i.e. 14 years with remissions in case of trial court convictions prior to 18.12.1978 and actual 14 years imprisonment in cases to which section 433A Cr.P.C applied, (that is post 18.12.1978 convictions), which entitled him to move an application under Form 'A'.
Suggestion to State Government to relax G. O. dated 22.12.75 and accept applications in Form A.
26. We therefore recommend to the State government to relax the operation of the GO. dated 22.12.75 and to accept applications for release on licence, under the U.P. Prisoners' Release on Probation Act, 1938 during the pendency of their criminal appeals, if the prisoner is otherwise eligible to prefer the same in accordance with prescribed conditions.
Direction to the Registry to furnish details of appeals and prisoners who have not been granted bail during the pendency of appeals.
27. The Registrar-General is also directed to provide within one month, in respect of all criminal appeals in which the accused have not secured bail or have been re-arresed subsequently, with reason for re-arrest, details of the year wise break up of pending criminal appeals, offences for which convicted, number of appellants who are in jail, number of appeals which have been preferred from jail, and number of represented appeals, reasons for delay in disposal of appeal, such as difficulties in preparation of paper books, or non-appearance by counsel etc. This direction is necessary because it is absolutely imperative, and the mandate of Article 21 of the Constitution of India, that appeals where prisoners are in jail, must be decided first by this Court, and it is of no consequence that there are thousands of earlier appeals pending since 1981, but where the appellants have been released on bail.
Alternative recommendation to State Government to move application under section 389 Cr.P.C. for permitting bail in cases where accused are in jail for over 14 years, and appeals still undisposed.
28. In the alternative we also recommend to the Government Advocate to move applications after consultation with the State Government, under Section 389 Cr.P.C. requesting the High Court to consider enlarging such appellants on bail who continue to languish in jail even after 14 years or other sufficiently long period of actual imprisonment, if efforts to get their appeals decided in a few months do not bear fruit.
Direction to State Government and IG, Prisons to produce records of two prisoners released by State government and 31 prisoners whose Nominal Roles and Applications in Form 'A' finally rejected.
29. It is strange that inspite of several prisoners having undergone periods vastly exceeding 14 years actual imprisonment, only two prisoners out of the 108, have been directed to be released and cases of 31 prisoners have been finally rejected. It would therefore be desirable to call for the entire records of the aforesaid 2 prisoners, Murli son of Bhagga, and Raj Bahadur Singh son of Surya Baksh Singh whose release have been ordered, and 31 prisoners whose cases have finally been rejected, in regard to consideration of their Forms A, nominal roles under the U.P. Prisoners Release on Probation Act, Jail Manual, Sections 132 and 433 Cr.P.C and any other statutory or Constitutional provisions. These records should disclose the consideration of their cases for premature release at different levels, such as at the levels of Jailor, D.M., Probation Officer, S.P./SSP, IG, Prisons, the relevant district or State level committees and State Government as may be applicable under the relevant provisions wherein their cases have been considered, and the dates when the cases have been received by the jailor and forwarded to the different appropriate levels. The State Government and Director General of Prisons is therefore being directed to produce the complete records of the two prisoners who have been released and 31 prisoners whose prayer for premature release has finally been rejected by the State Government within a period of two months.
Direction to State Government and IG, Prisons to ensure disposal of all pending applications in respect of the 19 prisoners whose nominal roles are pending, and 32 prisoners whose Forms 'A' are pending in Varanasi Central Jail within a period of 3 months.
30. This direction has become imperative, in view of the inexcusably long period of time that has already expired for consideration of the cases of these prisoners.
Criteria for disposal of applications for premature relief
31. Apart from the criteria for disposal mentioned in statutory provisions such as Section 2 of the U.P. Prisoners Release on Probation Act, para 198 of the Jail Manual, and in the G.O.s or guidelines issued under Article 161 of the Constitution of India or otherwise, the apex Court has approved certain criteria for premature release adopted by State Governments. In para 5 of Laxman Naskar v. Union of India, 2000 Cri.L.J. 1471 the following points for considering applications for premature release have been approved:
"(i) Whether the offence is an individual act or crime without affecting the society at large;
32. This report should contain all the information that was already furnised in the charts SCA I to the first supplementary affidavit dated 1.3.04 and SCA III to the second supplementary affidavit dated 5.4.04, i.e. the name, parentage and permanent address of prisoner, S.T. No., provision under which convicted, date of sentence by Sessions Court, designation of Court, period of sentence, status of appeal, status of Form A, status of nominal role, final order of State Government on application for premature release (if any). In addition the report should also mention age of prisoner, present condition of health if suffering from serious illness. Briefly the main reason for rejection of application for premature release could also be mentioned, in cases where it has been finally rejected. What was the date when the prisoner had undergone 14 years actual imprisonment, and the date when the applications in Form A, and Nominal Roles were forwarded. If the conviction by the Sessions Judge is prior to 18.12.78, the date when the prisoner had undergone 14 years together with remissions and became eligible for consideration for premature release, and the actual date for forwarding the applications in Form A and Nominal Roles Whether any action for premature release taken under any other G.O. under Article 161 or otherwise, fate of such application.
Superintendent Central Jail, Varanasi to submit report in one month on all life convict and other prisoners who have not been able to file appeals against their convictions and the reasons for non-filing of appeals
33. In those cases where no appeal was filed, reasons for non-filing of the appeal may be given. The last direction is necessary because we find that in the present case of Bacchey Lal, the filing of the appeal was unduly delayed by 10 years, for which the unrepresented prisoner could not be faulted as he was in jail.
Chairman Legal Services Authority will submit a report through the Secretary of the Authority within one month on steps to be taken for assisting prisoners for filing appeals, streamling procedures for filing appeals and for aquainting prisoners about prison rights including procedure for premature release under jail manual and other provisions
34. A copy of this order will be sent forthwith by the Registrar General to the Chairman Legal Services Authority, UP. for compliance.
State Government and IG, Prisons to report on number of seriously ill prisoners in jail, and steps taken for their release under paragraphs 195, 196 and 197 of the Jail manual and other provisions, within 3 months.
35. List for further hearing on 21-05-2004.