MOST SUDAMA DEVI W/O LATE MOTI LAL YADAV AND M/O SHIV GOPE RESIDENT OF MOHALLA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The writ petitioner is the mother of a life convict Shiv Gope. By judgment in Sessions Trial No. 814 of 1995 arising out of Jakkanpur Police Station Case No. 82 of 1985, the son of the petitioner was convicted by the Additional Sessions Judge III, Patna for an offence under Sec. 302 read with Sec. 34 of Indian Penal Code and sentenced him to imprisonment for life. This conviction and sentence has not been interfered with either in appeal by this Court or by the Apex Court. He has been in custody in the said case from before conviction itself. It is not in dispute that, by now, he has been in physical custody in relation to the said case for over 22 years. The mother seeks his premature release. His case for premature release was earlier rejected by the State Sentence Remission Board (for brevity, the Board) on 29.06.2016 in view of adverse police report. The report was that if he is released, there is apprehension that he would start a gang war. There was nothing to substantiate such an apprehension or such an allegation. It was also refused on the ground that as required by Sec. 432 (2) of the Code of Criminal Procedure, 1973 (for brevity, Cr.P.C.), the trial Judge had not sent a report and in absence thereof, the Board could not consider the same and, therefore, could not order his release.

(2.) After the writ petition was filed, a counter affidavit has been filed stating that in view of amendment made to the Bihar Prison Manual 2012, which has been issued under Sec. 59 of the Prisons Act, 1894 whereby amendments have been made to Rule 482 (2) thereof by notification dated 26.05.2016 which required a police report and a report from trial Judge to consider a convict's premature release mandatory. The Presiding Officer of the trial Court, on 10.06.2016, sent a report that as the records were not available, they having been sent to the High Court decades back, no report could be given and there being no report from the trial Court, his case could only be rejected. So far as adverse police report is concerned, State has annexed the communication dated 11.10.2014 of the Senior Superintendent of Police, Patna to the Superintendent, Central Jail, Beur wherein it is stated that if the petitioner's son is released, there is likely to be gang war. Then there is letter of the District Magistrate-cum-Collector, Patna dated 09.11.2016 to the Inspector General of Prisons stating that in recent times, there were activities of Maoists and if Shiv Gope is released, they would start criminal activities all over again. Similar is the report of the Senior Superintendent of Police dated 07.11.2016. What is surprising is that the petitioner's son Shiv Gope has been in custody for over 20 years continuously. Apart from these apprehensions, there is absolutely not a single chit of paper that has been brought on record to show the reasonableness of such an apprehension. It is also disclosed in the counter affidavit that Shiv Gope, along with several other so-called famous criminals, has been shifted now to Bhagalpur from Patna. Apart from this, there is no other material to deny the remission and premature release. We must take note of one submission, as made in the counter affidavit. We would rather quote from the counter affidavit, the relevant part of paragraph 6:

(3.) It was argued that petitioner's son has suffered conviction and sentence of life imprisonment. He is a condemned criminal. He has no right. He is at the mercy of the State. It is then pointed out that Sec. 432 (1) of Crimial P.C. does not make it obligatory on the Government to grant premature release. The expression used therein is that the Government may, at any time, without conditions or upon any conditions, suspend the execution of his sentence or remit the whole or any part of the punishment. The Sec. is quoted hereunder: