MASOOM BAI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS Habeas Corpus Writ Petition has been filed by the petitioner Masoom Bai, who is mother of accused Salim, who was arrested in a case for the offence under Section 302 IPC on 3. 11. 76. He was tried by the learned District Judge, Jhalawar, who by his judgment dated 28. 05. 1977 convicted him for offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/ -. Salim had one more case against him being case No. 32/78, wherein he was convicted and sentenced under Section 326 and 147 IPC but the sentence in the later case was only one year nine months and a fine of Rs. 100/ -. Thus, Salim was in jail eversince 1976. According to the petitioner he was entitled to the benefit of the Rajasthan Prisoners (Shortening of Sentence) Rules 1958, (hereinafter referred to as the 'rules 1958' ). Sub-rule (iii) of Rule 8 of the Rules, 1958 reads as under: " 8 (iii) Prisoners eligibility for consideration by the Advisory Board: A Prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the aggregate 14 years and has served two thirds of his sentence including remission. A sentence for trasportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentences in default of payment of fine. If the same has not been paid. " Since Salim had served out two third of the sentence his case therefore, was likely to be considered by the Advisory Board and it was not so considered, therefore, he preferred a writ petition before this Court vide D. B. Civil Writ Petition No. 1243/87, Salim vs. State of Rajasthan. In the aforesaid writ petition, this Court vide order dated 4. 10. 88 directed that Advisory Board be convened within two months and in that meeting the matter of Salim be considered. The case of the petitioner is that even though this direction was given in October 1988, that the Advisory Board should be convened within two months, yet the order of this Hon'ble Court had not been complied with till July, 1989. The submission of the petitioner is that the Advisory Board thereafter recommended Salim's case for pre-mature release in its meeting dated 21. 7. 89, but the recommendation was not accepted and order for release were not passed. The submission of the petitioner is that the Advisory Board had thereafter considered the case of Salim on 19. 10. 89,9. 1. 90 and 21. 6. 90 and subsequently also recommended the case for pre-mature release. It is further submitted that in the meeting dated 23. 01. 1990, the Advisory Board advised the pre-mature release of Salim. However, the State Government declined the recommendations of the advisory Board dated 23. 01. 1990. It is submitted that the State Govt. has neither assigned the reason for taking a view different then the view taken by the Advisory Board nor opportunity of hearing has been given Salim before declining the recommandations. The petitioner's case is that Salim's case does not fall within the scope of Section 433 A Cr. P. C. which came into force in 1978 and therefore, he had a right to be considered under the rules then existing. Even otherwise, it is submitted that Salim is now in jail for nearly 15 years. Assuming for a moment that Section 433- A Cr. P. C. would be applicable even then now he has undergone 14 years in side the jail. It is submitted that the Advisory Board is a high powered committee which consists of Home Secretary to the Government as the Chairman, a Judicial Officer next to the District and Sessions Judge in whose jurisdiction the Central Jail is situated, and two non-official persons preferably local members of the State Legislature or Parliament, nominated by the Government and the Superintendent of Central Jail concerned as Secretary and it was obligatory to the State Government to have accepted the recommendations made by it. The State Government in its reply admitted that the accused Salim is in Jail since 3. 11. 76 and by 18. 12. 1990, he has served 13 years, I month and 26 days period of his imprisonment. He also remained in jail for six months 25 days as under trial prisoner and after remission it comes to 18 years, 7 months and 4 days. The period of special remission given by the State Government has not however been counted for pre-mature release. It is submitted that earlier on 24. 11. 88 this Court had directed the State Government to convene the meeting of the Advisory Board and according to the learned counsel of the petitioner, the case of Salim was not considered because the orders could not be conveyed in time and were conveyed on 8. 12. 88. Thereafter, the record was called from the District Jail, Jhalawar and there being strike of the employees on 19. 01. 1989, the meeting could only be convened on 21. 07. 1989 wherein the case of the petitioner was placed for consideration and it is submitted that the Advisory Board looking to the seriousness and gravity of the offence after calling a report from the S. P. Jhalawar rejected his prayer for pre-mature release. The case of Salim was also placed before Board on 19. 12. 89. THIS time, also the S. P. and the District Magistrate concerned gave adverse report. However, the Advisory Board by majority view recommended the case of Salim for early release but the State Government did not agree with the recommendations of the Advisory Board and rejected the same. On 9. 01. 1990, though there was a meeting of the Advisory Board but the case of Salim was not considered by the Advisory Board on the simple ground that his case has already been recommended by the Advisory Board prior to that and final orders have not been passed by the State Government and it was again placed before the Advisory Board on 21. 6. 90. The case of Salim was reconsidered by the Advisory Board on 21. 6. 90 and again the Advisory Board recommended his case for premature release but the State Government did not agree and vide order dated 27. 1. 90 said that there was non-compliance of Rule 7 and 11 of the Rules, hence his case was sent back to the Suptd. Central Jail, Jaipur for sending it back with recommendations to the Advisory Board. It is submitted that Salim's case was again considered on 11. 12. 90 but no decision was taken in this case. It is submitted that the case of Salim will not be considered in the next meeting of the Advisory Board.

(2.) WE called for the original record where the case of Salim has been dealtwith by the Advisory Board from time to time as well as by the State Government. WE have also heard the learned counsel for the parties and perused the aforesaid record. The Rajasthan Prisons (Shortening of Sentences) Rules, 1988 have been framed in exercise of powers by clause (5) of section 59 of the Prisons Act 1894. A high powered Advisory Board is required to be constituted as per Rule 3 for every Central Jail or District Jail to investigate and recommend to the Government on sentences of certain classes of prisoners with a view to release a member of such reformed prisoners who have served sufficiently deterrent period of the punishment. The Advisory Board which is meant for the Central Jail, Jaipur consists of Home Secretary to the Government of Rajasthan as a Chairman, next senior most Judicial Officer to the District and Sessions Judge within whose jurisdiction the Central Jail is situated, and two non-official persons preferably local members of the State Legislature or Parliament nominated by the Government and the Superintendent of Central Jail, Jaipur. According to sub-rule (iii) of Rule 8 of the Rules, a prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the. aggregate 14 years, and have served two third of his sentence including remission is entitled to be considered by the aforesaid Advisory Board. A sentence for. transportation for life will be construed to be one of imprisonment for 20 years for this purpose and the period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid. It may be mentioned here that the Advisory Board is required to meet at least twice in a year in the Central Jail and normally the meetings should be in the months of January and July every year. The Board, so constituted is required to scrutinise the record as mentioned in rule 7. Certain classes of prisoners have been excluded from consideration which have been mentioned in Rule 9 but we are not concerned with them in this case as it is neither the case of the State nor the case of Salim that his case comes within the aforesaid class. After following the prescribed procedure the Advisory Board submits its recommendations with full history of each case in a prescribed form given in appendix to the Rules to the Govt. while recommending, the Advisory Board is also competent to make a recommendation regarding imposing certain stringent conditions on the prisoner and the same are required to be entered into a bond in the Form-2, which is given in the Apendix to the Rules. After the recommendations reach the Government they are required to be considered according to the provisions of Rule 12 and other relevant papers, the Government shall order release of prisoner in cases for which having regard to all the circumstances of the case, it considers that the prisoner may be released without any danger to the society.