V.Chandran v. The Lieutenant Governor

IN THE HIGH COURT AT CALCUTTA

[CIRCUIT BENCH AT PORT BLAIR ] *** WPA/213/2021 V.Chandran ...

Petitioner Vs.

The Lieutenant Governor & others.

...

Respondents Mr.G.Binnu Kumar, Advocate ... for the petitioner Mr.Krishna Rao, Advocate ...for the respondents September 14, 2021 [GNC] Item No.1.

The instant writ petition is filed by a convict seeking following reliefs:- "

A. (i) A writ in the nature of Mandamus directing the respondent authorities, particularly the respondent No. 1 to consider the case of the petitioner for pre-mature release from the Correction Home in term of Chapter XX of the Andaman and Nicobar Islands Prison Manual, 2021 and section 433A of the Code of Criminal Procedure 1973.

(ii) A writ in the nature of Mandamus directing the respondent authorities to act within the four corners of law B. A writ in the nature of Certiorari directing the respondents to transmit the entire case record pertaining to this case before this Hon'ble Court, so that after perusing the same conscionable justice may be rendered to your petitioners.

C. Any other appropriate writ or writs and / or order or orders and / or direction or directions.

D. Rule NISI in terms of prayer (A) to (C) above E. Cost and incidentals to this writ Application F. Any other order / orders or further order / orders as your Lordship may deem fit and proper."

The petitioner was convicted in Sessions Case No.17 of 2000 tried for an offence under section 302 of the Indian Penal

Code, 1860. The petitioner was sentenced to suffer imprisonment for life with fine of Rs.5000/- with a default clause that in the event of the non-payment of the fine he may suffer a rigorous imprisonment for a further period of two years. The appeal filed by the petitioner was also dismissed and after exhausting all the avenues the petitioner is serving in the correctional home. According to the petitioner he has served in correctional home for more than 14 years as life convict and entitled to be released in terms of the Andaman and Nicobar Island Prison Manual, 2021. The said Manual is promulgated in exercise of the powers conferred under section 59 of the Prisons Act, 1894 read with the notification dated 11th December, 1952 of the Government of India, Ministry of Home Affairs providing an exhausted provision relating to the convict serving in correctional home. Chapter 20 of the said Manual is dedicated to a premature release of the convicts and the petitioner took shelter under clause 20.08 thereof which runs thus:- "20.08.

The following categories of prisoners shall be eligible to be considered for a review of sentences and premature release by the State Sentence Review Boards.

(i) Women offenders sentenced to life imprisonment: on completion of eight years of imprisonment, including remission, except those covered under Section 433-A of the Code of Criminal Procedure, 1973, whose cases will be considered only after completing 14 years of actual imprisonment.

(ii) Life convict (men and young offenders) on completion of 10 years of imprisonment, including remission, except those covered under Section 433-A of the Code of Criminal Procedure, 1973, whose cases will be considered after completing 14 years of actual imprisonment.

(iii) Prisoners convicted of offences such as rape, dacoity, terrorist crimes, kidnapping, kidnapping

for ransom, crime against women & children, smuggling (including those convicted under NDPS Act), Prevention of Corruption Act, Immoral Traffic Prevention Act, offences against State, and undergoing life imprisonment, after completion of 14 years of sentence inclusive or remission.

(iv) Old and infirm offenders of 65 years of age on the day of the commission of offence, sentenced to life imprisonment on completion of 10 years of sentence or 75 years of age including remission, whichever is earlier subject to the condition that they shall not be actually released unless they have undergone at least five years of imprisonment including remission."

The case of the petitioner apparently comes under subclause (2) of clause 20.08 being a life convict and claimed to have completed 14 years of actual imprisonment. The aforesaid clause further envisaged that the convicts who comes within the purview of the said clause may be considered eligible for review of sentences and premature release by a State Sentence Review Board constituted in this regard. Clause 20.23 of the said Manual which forms part of the said Chapter 20 thereof postulates that once an application of the prisoner for premature release has been rejected by the State Sentence Review Board there will not be any bar for reconsideration but such reconsideration cannot be made within six months of the date of rejection. In other words the reconsideration can be made only after the expiration of six months from the date of the rejection and an outer cap of one year is also provided under the said clause.

It further provides for a fresh report from the Superintendent and one can visualize without any ambiguity

that the previous rejection may not be a consideration as for reconsideration is required to be considered on the fresh material or the fresh report from the Superintendent of the correctional home. The order of the State Sentence Review Board is not regarded as sacrosanct in view of the clause 20.24 which mandates such decision to be placed before the competent authority i.e. the Lieutenant Governor to take an independent decision and the decision of the competent authority shall be communicated to the concerned prisoner. The writ petition proceeds on an assertion that the application for premature release under the aforesaid chapter has not been considered by the State Sentence Review Board and the fate of such application is unknown to the petitioner.

Mr.Rao, learned advocate appearing for the Administration conveys to the Court that the application filed by the petitioner has been rejected in the month of July, 2021 and in view of the embargo having created in clause 20.23 of the Manual reconsideration cannot be made before the expiration of six months from the date of the rejection.

However, Mr.Binnu Kumar, learned advocate appearing for the petitioner is very much vocal in his contention that neither the decision of the State Sentence Review Board nor the competent authority have been served upon the petitioner and therefore, the authorities have not acted strictly in terms of the provisions of the said Manual. According to Mr.Rao, the prerequisites under the aforesaid chapter has been complied with

and there is no fetter on the part of the Administration to supply the decision taken by the State Sentence Review Board or the competent authority to the petitioner.

Since the scope of the writ petition was limited to the extent that the application for premature release has not been considered by the authority and in view of the stand of the Administration that such application has already been disposed of in the month of July, 2021 the original prayer has been diluted as no further order except the one which this Court proposes to pass to mould the relief, can be passed in this writ petition.

Since the decision has already been taken in the month of July, 2021 the Administration is directed to supply the decision/report of the State Sentence Review Board as well as the competent authority, if there be any, to the petitioner within two weeks from the date of communication of this order. Nothing observed hereinabove shall have any swaying effect on the merit of the claim made in the instant writ petition. Furthermore, the allegations made in the instant writ petition shall not be treated to have been admitted by the Administration as this Court does not provide the respondents to the exchange the affidavit and intended to dispose of the writ petition in the manner as indicated above.

The writ petition is thus disposed of.

(Harish Tandon, J. )