SATISH KR GUPTA Vs. STATE OF BIHAR

JUDGEMENT

(1.) All the petitioners are convicts confined in the Central Jail, Bhagalpur, and are undergoing sentence of imprisonment for life. On the occasion of the birth centenary of Deshratna Dr. Rajendra Prasad, the First President of India, the Government of Bihar in exercise of its powers u/ S. 432(i) of the Code of Criminal Procedure (hereinafter referred to as the Code) issued a notification dt. 25th of Nov. 1983 (Annexure-1) granting remission to convicted prisoners. This notification was published under memo No. 13104 dt. 25th Nov. 1983. Some days later Inspector General of Prisons Bihar, under his letter No.9172 Jail dt. 1/12/1983 (Annexure-5) sought to explain and clarify the government order of remission as contained in Annexure1 and further another clarification was issued by the Law Secretary under his office letter No.198 Jail dt. 7-1-84 (Annexure-2). The prayer in this application is to quash certain portions of the government's order of remission as contained in Annexure-1 on the ground that they are discriminatory and violative of Art.14 of the constitution inasmuch as a distinction in granting remission has been made between lifers (those undergoing imprisonment for life) and other convicts and further prayer is to quash Annexures 2 and 5 as being ultra vices and beyond the competence of the authorities issuing them.

(2.) The order of remission as contained in Annexure-1 states that no remission will be granted to persons convicted of offences u/s.124A (Seditions), 363A, 364, 370, 372, 376, 395 and 396 of the Penal Code. It further lays down the extent to which the remission is to be granted and the manner in which it is to be calculated for different types of convicts. Only the first two clauses of the Notification Annexure-1 are relevant for determining the issues raised in this writ application. These two Clauses are to the following effect : - Ka) For persons undergoing a sentence of imprisonment for life, remission will be at the rate of three months for each completed year of confinement. Kha) For those prisoners who are not undergoing a sentence of imprisonment for life, the remission will be at the rate of three months for each year of the sentence imposed. The order of remission Annexure-1 was made operative from 3-12-1983.

(3.) Annexure-5 is the letter sent by the I.G. Prisons, Government of Bihar to all jails in the state purporting to clarify and provide guidelines for interpreting the different clauses of Annexure-1. With regard to the first the clause the clarifications are as follows : - In the case of lifers i.e. Clause (ka) of Anx.-1 the remission shall be calculated at the rate of three months for each completed year of confinement from the date of conviction up to 3-12-83 and proportionate remission for the period which is less than one year and in calculating the remission the period spent as under trial prisoner will not be taken into account and as regards the cases coming under Clause (kha) i.e. cases of prisoners not sentenced to imprisonment for life, the letter states that the remission shall be calculated at the rate of three months for each year of confinement in the jail from the date of conviction and for the period which may be less than one year, the remission shall be calculated on pro-rata basis. It further indicates that no remission shall be calculated for the period spent in completely prior to the date of conviction. The letter issued by the Law Department of the Government of Bihar, Annexure-2 also seeks to make several clarifications but those which are relevant for our consideration are contained in Cls. (5) and (6) of this letter. Cl. (5) states that the benefit of remission will be available only to such convicts who are in custody on the relevant date 3-12-1983 and not to such convicts who are on bail at that time and Cl. (6) of this letter states that if the convict has been allowed to set off the period of set off u/ S. 428 shall not be taken into account in calculating the period of confinement for the purpose of giving remission. The propriety and legality of the aforesaid clarifications as contained in Annexures 2 and 5 have been challenged.