Hussein & Ors Vs. State of West Bengal
& Anr  Insc 143 (15 March 2001)
Babu & S.N. Phukan Phukan, J.
life convicts have filed the present Petitions under Article 32 of the
Constitution challenging the orders of the State Government rejecting their
prayer for premature release.
petitioners were convicted under Section 302/34 IPC and sentenced to suffer rigorous
imprisonment for life. They are in Central Correctional Home, Alipore, Kolkota
and have served actual imprisonment of more than 18 years and the total period
of imprisonment including remission being more than 24 years. They had
approached this court earlier as their prayer for premature release was rejected
by the State Government. This court set aside the orders of the Government and
directed reconsideration. As their prayers have again been rejected; the
petitioners are again before us.
learned senior counsel for the petitioners has urged that in view of sub-rules
(4) and (29) of Rule 591 of the West Bengal Rules for the Superintendence and
Management of Jails (for short the Rules) relating to premature release of the
life convict and Explanation to Section 61 of the West Bengal Correctional Services
Act, 1992 (herein after referred to as the Act) all the petitioners are
entitled to be released as of right as their total period of imprisonment is
more than 20 years. Mr. Mukul Rohtagi, learned Additional Solicitor General has
contended that there is no right of premature release in view of the law laid
down by this court, as sentence for imprisonment for life means imprisonment
for the entire life of the prisoner, unless the appropriate Government decides
to exercise its discretion to remit either whole or part of the sentence of a
life convict. According to learned Additional Solicitor General in view of
facts and circumstances of cases of the petitioners and the police report, the
State Government rightly rejected the prayers of the petitioners.
court after examining the provisions of Article 161 of the Constitution, Cr.P.C.
and I.P.C. has consistently held that a sentence of imprisonment for life does
not automatically expire at the end of 20 years of imprisonment including
remission, as a sentence of imprisonment for life means a sentence for the
entire life of the prisoner unless the appropriate government chooses to
exercise its discretion to remit either the whole or part of the sentence. [See
Gopal Vinayak Godse versus The State of Maharashtra and others 1961 (3) SCR
440; State of Madhya
Pradesh versus Ratan
Singh and Others 1976 (3) SCC 470; Sohan Lal versus Asha Ram and Others 1981
(1) SCC 106 and; Bhagirath versus Delhi Administration 1985 (2) SCC 580] We
extract below sub-rules (4) and (29) of Rule 591 of the Rules:
considering the cases of prisoners submitted to it under sub-rules (1) and (2),
the State Government shall take into consideration
circumstances in each case,
character of the convicts crime,
conduct in prison, and
probability of his reverting to criminal habits or instigating others to commit
State Government is satisfied that the prisoner can be released without any
danger to the society or to the public it may take steps for issue of orders
for his release under Section 401 of the Code of Criminal Procedures, 1898.
Every case in which a convict, who has not received the benefit of any of the
foregoing rules, is about to complete a period of 20 years of continued
detention including remission earned, if any, shall be submitted three months
before such completion by the Superintendent of the Jail in which the convict
is for the time being detained, through the Inspector General, for orders of
the State Government. If the convicts jail records during the last three years
of his detentions are found to be satisfactory the State Government may remit
the remainder of his sentence.
sub-rules do not provide for automatic release of a life convict after he has
completed 20 years of the detention including remission. Under these sub-rules
only right which a life convict can be said to have acquired is a right to have
his case put up by the prison authorities in time to the State Government for
consideration for premature release and in doing so the government would follow
the guidelines mentioned in sub-rule (4).
explanation to Section 61 of the Act is as follows:
For the purpose of calculation of the total period of imprisonment under this
section, the period of imprisonment for life shall be taken to be equivalent to
the period of imprisonment for 20 years.
Explanation came for consideration by this court in Laxman Naskar (Life
Convict) vs. State of W.B. and Anr 2000 (7) SCC 626 and this Court held that
the said Explanation is only for the purpose of calculation of the total period
of imprisonment of a life convict under Section 61, which shall be taken to be
equivalent to the period of imprisonment for 20 years and a life convict would
not be entitled to automatic release under this provision of law.
therefore, find no substance in the submission made by Mr. Malik, the learned
Additional Solicitor General has rightly pointed out that in view of the law
laid down by this court a positive order of release has to be passed by the
Government after due consideration. Now we have to consider whether the
impugned orders are sustainable.
the counter filed on behalf of the Government, we find that the State
Government constituted a Review Board to consider the cases of premature
release of the petitioners.
said Review Board consists of the following:
Home Secretary Chairman
Judicial Secretary Convenor
I.G. of prison, West Bengal Member
Secretary Home (Jails) Member Department
Director General & I.G. of Police, Member West Bengal
Commissioner of Police, Calcutta Member
Chief Probation Officer Member Following guidelines were famed by the
Government for the premature release of life convicts, namely
Whether the offence is an individual act of crime without affecting the society
Whether there is any chance of future recurrence of committing crime;
Whether there is any fruitful purpose of confining of these convicts any more;
Whether the convicts have lost potentiality in committing crime;
Socio economic condition of the convicts families.
Review Board refused to grant premature release of the petitioners on the
following grounds: (1) Police report is adverse;
convicts are not over aged person and as such have not lost the potentiality in
other co-convicts were trying to come out from jail, there was a possibility of
re-grouping for anti-social activities;
offence was not an individual act of crime but was affecting society as a
were anti-social and;
witnesses who had deposed at the trial as well as local people were
apprehensive of retaliation in the event of premature release.
of one of the petitioners, namely, Md. Talib, Review Board also noted one of
the co-convicts was granted premature release who was murdered in an encounter
after the release.
state here that jail authority recommended premature release of the Writ
Petitioners. In our opinion, the conduct of the petitioners while in jail is an
important factor to be considered as to whether they have lost their
potentiality in committing crime due to long period of detention. The views of
the witnesses, who were examined during trial and the people of the locality
cannot determine whether petitioners would be a danger to the locality, if
released prematurely. This has to be considered keeping in view the conduct of
the Petitioners during the period they were undergoing sentence. Age alone
cannot be a factor while considering whether the petitioners have still
potentiality of committing crime or not as it will depend on changes in mental
attitude during incarceration.
coming to the conclusion for possibility of re- grouping for anti-social
activities, the Review Board did not take into account that the life convicts
are in jail for more than 18 years. The Board also did not consider whether
there would be any fruitful purpose of confining the convicts any more and also
the socio-economic condition of their families. Regarding petitioner Md. Talib,
the Review Board also noted that one co- convict was released prematurely and
was murdered in the encounter with other criminals after his release. The
learned Additional Solicitor General informed us that the said co-accused was
released in the year 1991 and was murdered in the year 1998 and therefore in
our opinion this fact has no nexus for consideration of premature release of
the petitioner, Md. Talib.
are, therefore, of the view that the reasons given by the Review Board for
rejecting the prayers for premature release of the petitioners are irrelevant
and the devoid of any substance. Accordingly, we quash the impugned orders of
the government and remit the matter again for deciding it afresh within the
period of 3 months from today.
result the Writ Petitions are allowed. After issuance of the Rule, the same is