Present application is filed by the petitioner - convict praying for three months parole leave on suitable terms and conditions so as to help his family members.
It is true that a convict is undergoing the punishment for the misdeed but that does not disentitle him from a sympathetic treatment and by no standard, the rights available to him under the statute are taken away. Present is the case wherein the convict is in jail serving out life imprisonment for an offence under Section 302 in Sessions Case No.59 of 1985. He was arrested on 15.12.1984. He was convicted by judgment and order dated 24.7.1989. The jail remarks which are made available by learned APP Mr. Patel shows that he has undergone 14 years and 8 months. It is also mentioned that he was released on 4th furlough in the year 1996, he absconded and could be lodged back in jail only after 2956 days by the Police. But thereafter, he has enjoyed his 6th, 7th, 8th, 9th and 10th furlough and last but not the least, 11th furlough also and every time, he reported in jail in time.
The Inspector General of Prisons sent proposal to the State Government for early release of the petitioner under Section 433 (A) of Cr.P.C by communication dated 5.3.2011. The said proposal is replied by the Home Department by communication dated 31.12.2011. The communication is addressed to the Inspector General of Prisons and it reads to the effect that in response to your communication dated 5.3.2011 bearing No.JUD/14 Years/2/1414/2011, the application of Gopal Bhimabhai Sathwara - convict No.37444 of District Jail, Rajkot for early release under Section 433 (A) of Cr.P.C., the proposal is considered by the Government carefully ('kaljipurvak') and the same is rejected on the following grounds :-
Deputy Commissioner of Police, Rajkot has not recommended.
District Magistrate, Rajkot has not recommended.
District Superintendent of Police, Jamnagar has not recommended.
District Magistrate, Jamnagar has not recommended.
A/B Committee has not recommended.
Superintendent, District Jail, Rajkot has not recommended.
Inspector General of Prisons has not recommended.
The convict has absconded for 2955 days from furlough.
The conduct of the convict is not satisfactory.
Co-accused of the convict Bhima Naran Sathwara has absconded since 9.8.1996.
For the aforesaid reasons, the convict No.37444 Gopal Bhimabhai Sathwara cannot be released under Section 433 (A) of Cr.P.C., as it will not be in the interest of the Society. Hence, the proposal of early release of the convict is rejected.
A copy of the judgment sent by you with the aforesaid letter is returned.
Learned advocate for the petitioner produced death certificate of Bhimji Naran Kanjariya who has died on 7.12.2011. It appears that when the authorities considered the case, the said event had not taken place. That is why, in reason No.(x), it is mentioned that the co-accused Bhima Naran Sathwara is absconding since 9.8.1996. But then, the material which was placed before the Advisory Board, a copy of which is produced by the learned advocate for the petitioner, shows that, 'Bhima Naran Sathwara is acquitted after having served out the sentence'. This shows the precision with which the authorities are considering the question of liberty of a convict under Section 433 (A) of Cr.P.C. for early release, after having served out more than 14 years of imprisonment.
Learned APP Mr. Patel was asked to apprise the Court about the Advisory Board and the method and manner in which this Board functions. Learned APP is not able to lay his hand on the exact Circular under which such Advisory Board is constituted. One of the learned advocate Ms. Gayatri B. Jadeja was able to find out from the website that such Jail Advisory Board is constituted under Rule 1448 of Bombay Jail Manual. It is further learnt by her that such Board is constituted at District level. The District Magistrate is the Chairman along with him other members are, the learned Sessions Judge, the Superintendent of Police and two other local Officers. It is also learnt from the website that under Rule 1448, the Board is to examine the eligibility of the convicts for review of their case. This Board is expected to meet at the interval of three months.
Learned APP could lay his hand and produce a Circular bearing No.JLK/3390/CM/16/Part/2/J dated 9.7.1992 issued by the Home Department of State of Gujarat. The Circular is issued after taking into consideration Sections 432, 433 (A) and 428 of Cr.P.C. It is also issued after taking into consideration Government Home Department Circular No.JLK/3383/7849/J dated 11.5.1984 and last but not the least, Home Department Circular No.JLK/3385/3610/J dated 7.8.1985. It is provided in this Circular that it pertains to the early release of the life convicts who on and after 18.12.1978 have served out 14 clear years imprisonment.
What is important about the Circular is that it casts a duty on the Inspector General of Prisons to initiate the proceeding with regard to the life convicts whom on 18.12.1978 or thereafter, have completed 13 clear years of imprisonment with set off. The Inspector General of Prisons has to start the procedure for early release. This means that the ' State' is expecting that the case of every life convict on his completing 13 years of clear imprisonment should be placed before the Advisory Board for considering his early release on completion of 14 years. The very fact that the Circular provides that the process shall start on completion of 13 years, the State does not want any convict to continue in jail after completing 14 years in the event the authority comes to the conclusion that he is required to be released.
During these last five days, this Court has come across numerous cases wherein convicts have continued to be in jail for more than not only 14 years but in some cases 17 years. One of the case which has come to the notice of this Court is of convict No.74156 - Kailashnath Babulal Sharma who has been in jail for 15 years, 2 months and 6 days as shown in jail remarks tendered by the learned APP under signature of Deputy Superintendent of Vadodara Central Jail dated 14.5.2012. In his case, the proposal for early release was rejected by the Home Department on 21.7.2010. Thereafter, the said convict filed Special Criminal Application No.64 of 2011 before this Court wherein this Court by order dated 25.2.2011 directed the authorities to move the Home department with relevant documents afresh and also to file an application before the Advisory Board and the said application was ordered to be considered in accordance with law. Pursuant to that order, Inspector General of Prisons by letter dated 31.5.2011 presented the case before the Advisory Board and along with its recommendations, a proposal was to be made before the Government. The action taken pursuant to the order of this Court was ordered to be intimated to the convict - Kailashnath Babulal Sharma by Home department by letter dated 31.5.2011 writing it to the Superintendent Central Jail, Vadodara. It is thereafter that the State Government by order dated 10.5.2012 decided to give benefit of early release under Section 433 (A) of Cr.P.C. to the said convicts on certain conditions. Question is about the period between 21.7.2010 to 10.5.2012. Prima facie, it appears that it was only because the convict was able to approach this Court by filing Special Criminal Application No.64 of 2011 that his case could be reopened and reconsidered by the authorities. Prima facie, the order does not reflect any change in circumstances. That gives a reason to this Court to believe that the entire exercise which is expected to be undertaken for early release of the convicts who have served out 14 years is not undertaken with due sincerity and required sympathy. It is, therefore, deemed proper to issue following directions :-
The Inspector General of Prisons shall produce before this Court the details of the convicts undergoing life imprisonment who have completed 13 years of imprisonment on the date of his report, and whether process for their early release has started or not.
The Inspector General of Prisons shall also produce before this Court the details of the convicts who are in jail having served more than 14 years of clear imprisonment and whether proposal is made in their case and the result thereon;
These details shall be placed before the Court on or before 18.6.2012.
Coming to the relief to the present petitioner, taking into consideration the fact that the petitioner has served out more than 14 years and 8 months, the authorities are directed to release him on parole for 45 days on usual terms and conditions.
Similar facts are noticed by this Court in (A) Special Criminal Application No.1519 of 2012 Convict No.7451 - Bharwad Vibha Popat who has served out 14 years 9 months.
(B) Special Criminal Application No.1540 of 2012 Convict No.20419 - Aslam Ibrahim Sindhi who has served out 14 years, 1 month and 17 days.
(C) Special Criminal Application No.1548 of 2012 Convict No.73411 - Mohmmed Usman Gani Memon who is also stated to be in jail for more than 15 years by now whose petition praying for the benefits under Section 433 (A) is stated to be pending before this Court.
The matter is to be listed on 18.6.2012.
A copy of this order be made available to learned APP Mr. Patel for its onward communication.
Sd/-
(Ravi R. Tripathi, J.) Savariya Top