Paragraph numbers below are the court’s original numbering, recovered from the source text.
15. The record clearly indicates that the reason for rejection of the petitioner’s application, is the adverse report submitted by the presiding judge in the fi rst round, which was perfunctorily relied upon and reiterated in the report submitted by the then presiding judge in the second round as well. Both the reports submitted by the presiding judges (at the relevant time), demonstrate a casual opinion, based solely on the judicial record which presumably consisted of the fi nding of guilt, by the trial court and High Court. This off ers only a dated insight on the petitioner, one that has limited opportunity to consider the progress the convict has made in the course of serving his sentence. Yet, the Remission Board has privileged the presiding judge’s opinion over the other authorities – like the Probation Offi cer, and Jail authorities, who are in a far better position to comment on his post-conviction reformation – off ering a cautionary tale.
16. In this court’s considered view, overemphasis on the presiding judge’s opinion and complete disregard of comments of other authorities, while arriving at its conclusion, would render the appropriate government’s decision on a remission application, unsustainable. The discretion that the executive is empowered with in executing a sentence, would be denuded of its content, if the presiding judge’s view– which is formed in all likelihood, largely (if not solely) on the basis of the judicial record– is mechanically followed by the concerned authority. Such an approach has the potential to strikes at the heart, and subvert the concept of remission – as a reward and incentive encouraging actions and behaviour geared towards reformation – in a modern legal system.
17. All this is not to say that the presiding judge’s view is only one of the factors that has no real weight; but instead that if the presiding judge’s report is only refl ective of the facts and circumstances that led to the conclusion of the convict’s guilt, and is merely a reiteration of those circumstances available to the judge at the time of sentencing (some 14 or more years earlier, as the case may be), then the appropriate government should attach weight to this fi nding, accordingly. Such a report, cannot be relied on as carrying predominance, if it focusses on the crime, with little or no attention to the criminal. The appropriate government, should take a holistic view of all the opinions received (in terms of the relevant rules), including the judicial view of the presiding judge of the concerned court, keeping in mind the purpose and objective, of remission.
18. The views of the presiding judge, are based on the record, which exists, containing all facts resulting in conviction, including the nature of the crime, its seriousness, the accused’s role, and the material available at that stage regarding their antecedents. However, post-conviction conduct, particularly, resulting in the prisoner’s earned remissions, their age and health, work done, length of actual incarceration, etc., rarely fall within the said judge’s domain. Another factor to bear in mind, is that the presiding judge would not be the same presiding judge who had occasion to observe the convict (at a much earlier point in time) and thus form an opinion. The presiding judge, at this stage, would only look into the record leading to conviction. This judicial involvement in executive decision making is therefore, largely limited to the input it provides regarding the nature of the crime, its seriousness, etc. Undoubtedly, even at the stage of sentencing, the judge ideally is to exercise discretion after looking at a wide range of factors relating to the criminal and not just the crime; but as noticed in numerous precedents16 that have dealt with sentencing in the commission of heinous crimes, this is unfortunately, often not the reality. Guidance has been off ered by this court17 on how to mitigate this in recent years, but in this court’s 16 Sangeet (supra); Swamy Shraddananda (2) @ Mural Manohar Mishra v. State of Kar- nataka [2008] 11 SCR 93; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [2009] 9 SCR 90; Chhannu Lal Verma v. State of Chattisgarh [2018] 14 SCR 355; Rajen- dra Pralhadrao Wasnik v. State of Maharashtra [2018] 14 SCR 585; and Manoj v. State of Madhya Pradesh [2022] 9 SCR 452. 17 Ibid. RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE OF BIHAR & ORS. [S. RAVINDRA BHAT, J.] considered view, it is pragmatic to acknowledge that it will require time for our criminal justice system to incorporate, and uniformly reach such standards. In fact, earlier cases of conviction (such as the present one – in 2001), have an even lesser probability of a judicial record which refl ects consideration of such multi-dimensional factors at the sentencing stage; the lack of which should not serve as an obstacle to the convict seeking release (after serving almost two decades, or more), erasing the reformative journey they may have undertaken as a result of their long incarceration.
19. It has been repeatedly emphasized that the aim, and ultimate goal of imprisonment, even in the most serious crime, is reformative, after the off ender undergoes a suffi ciently long spell of punishment through imprisonment. Even while upholding Section 433A, in Maru Ram v. Union of India18, this court underlined the relevance of post-conviction conduct, stating whether the convict, “Had his in-prison good behavior been rewarded by reasonable remissions linked to improved social responsibility, nurtured by familial contacts and liberal parole, cultured by predictable, premature release, the purpose of habilitation would have been served, If law—S. 433-A in this case—rudely refuses to consider the subsequent conduct of the prisoner and forces all convicts, good, bad and indiff erent, to serve a fi xed and arbitrary minimum it is an angry fl at untouched by the proven criteria of reform.”
20. Another aspect of note in this case, is the report submitted by the Superintendent of Police in the second round (which is diametrically diff erent from that which was submitted in the fi rst round), was adverse. Without casting aspersions on the veracity of it, or questioning it on merits, it is appropriate to fl ag another concern in such a context. In each case, the appropriate government has to be cognizant of the latent (not always) prejudices of the crime, that the police as well as the investigating agency, may be citing – especially in a case such as the present one, where the slain victims were police personnel themselves, i.e., members of the police force. These biases may inform the report, and cannot be given determinative value. Doing so will potentially defl ect the appropriate government from the facts 18 [1981] 1 SCR 1196 relevant for consideration for premature release, and instead, focus almost entirely upon facts which evoke a retributive response.
21. Apart from the other considerations (on the nature of the crime, whether it aff ected the society at large, the chance of its recurrence, etc.), the appropriate government should while considering the potential of the convict to commit crimes in the future, whether there remains any fruitful purpose of continued incarceration, and the socio-economic conditions, review: the convict’s age, state of heath, familial relationships and possibility of reintegration, extent of earned remission, and the post-conviction conduct including, but not limited to – whether the convict has attained any educational qualifi cation whilst in custody, volunteer services off ered, job/ work done, jail conduct, whether they were engaged in any socially aimed or productive activity, and the overall development as a human being. The Board thus should not entirely rely either on the presiding judge, or the report prepared by the police. In this court’s considered view, it would also serve the ends of justice if the appropriate government had the benefi t of a report contemporaneously prepared by a qualifi ed psychologist after interacting/ interviewing the convict that has applied for premature release. The Bihar Prison Manual, 2012 enables a convict to earn remissions, which are limited to one third of the total sentence imposed. Special remission for good conduct, in addition, is granted by the rules.19 If a stereotypical approach in denying the benefi t of remission, which ultimately results in premature release, is repeatedly adopted, the entire idea of limiting incarceration for long periods (sometimes spanning a third or more of a convict’s lifetime and in others, result in an indefi nite sentence), would be defeated. This could result in a sense of despair and frustration among inmates, who might consider themselves reformed– but continue to be condemned in prison.
22. The majority view in Sriharan (supra) and the minority view, had underlined the need to balance societal interests with the rights of the convict (that in a given case, the sentence should not be unduly harsh, or excessive). The court acknowledged that it lies within the executive’s domain to grant, or refuse premature release; however, such power would be guided, and the discretion informed by reason, stemming from appropriate rules. The 19 See Rules 405 and 413 of the Bihar Prison Manual, 2012. RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE OF BIHAR & ORS. [S. RAVINDRA BHAT, J.] minority view (of Lalit and Sapre JJ) had cautioned the court from making sentencing rigid: “73. […] Any order putting the punishment beyond remission will prohibit exercise of statutory power designed to achieve same purpose Under Section 432/433 Code of Criminal Procedure In our view Courts cannot and ought not deny to a prisoner the benefi t to be considered for remission of sentence. By doing so, the prisoner would be condemned to live in the prison till the last breath without there being even a ray of hope to come out. This stark reality will not be conducive to reformation of the person and will in fact push him into a dark hole without there being semblance of the light at the end of the tunnel.” This concern suff uses the reasoning in Ram Chander(supra).
23. This court, on earlier occasion, had grappled with the situation of diff erent remission policies/rules prevailing at diff erent points of the convict’s sentence – i.e., when the policy on the date of conviction, and on the date of consideration for premature release, are diff erent. It has been held that the policy prevailing on the date of the conviction20, would be applicable. However, in Jagdish(supra) it was also recognised that if a more liberal policy exists on the date of consideration, the benefi t should be provided: “43. […] The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefi t to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefi t thereof.” 20 See State of Haryana v. Raj Kumar, (2021) 9 SCC 292 [para 16].
24. Applying these principles in the case at hand, on the date of conviction (24.05.2001), it is the pre-2002 policy21 that was applicable. The relevant extract is as follows: “[…] the State Government has decided that to give remission to the accused who has been sentenced to life imprisonment and subsequently to release him from prison, life imprisonment should be considered as imprisonment for 20 years and the following procedure should be adopted in the matter of releasing the prisoners sentenced for life imprisonment – 1. Under Section 429 of the Code of Criminal Procedure, 1973 Act No. 2 of 1974, the prisoner who gets life imprisonment will not get the benefi t of presumptive report (ambiguous) i.e. in the case in which he has been sentenced to life imprisonment, the period spent in jail during the period of enquiry, investigation and disposal of the case and before the date of conviction may be deducted from the imprisonment of 20 years. 2. Upon conviction, if any person has been sentenced to imprisonment for life for an off ense for which one of the punishments is death or if the death sentence has been commuted to life imprisonment under Section 433 of the Code of Criminal Procedure, 1973, and where such sentence of imprisonment for life has been awarded on or after 18.12.1978, such prisoner shall be released from prison only if- a. He has spent a period of 14 years in prison from the date of conviction. b. The total of the period of remission and imprisonment is 20 years. [….]” It is pertinent to point out that in the old pre-2002 policy, there is no mention of any ineligibility criteria, much less one that is analogous to Rule 529(iv)(b) of the 2002 policy, which was cited by the Remission Board in its rejection of the petitioner’s application on 20.04.2023. 21 No. A/P.M-03/91-550 dated 21.01.1984. RAJO @ RAJWA @ RAJENDRA MANDAL v. THE STATE OF BIHAR & ORS. [S. RAVINDRA BHAT, J.]
25. In light of these fi ndings and the precedents discussed above, it would be appropriate if the Remission Board reconsidered the petitioner’s application for remission afresh, considering the reports of the police and other authorities, the post-prison record of the petitioner, the remissions earned (including that which is earned for good conduct) his age, health condition, family circumstances, and his potential for social engagement, in a positive manner. The concerned presiding judge is hereby directed to provide an opinion on the petitioner’s application for premature release, by examining the judicial record, and provide adequate reasoning, taking into account the factors laid down in Laxman Naskar (supra), within one month from the date of this judgment. With the benefi t of this new report, the Remission Board may reconsider the application – without entirely or solely relying on it, but treating it as valuable (maybe weighty) advice that is based on the judicial record. Given the long period of incarceration already suff ered by the writ petitioner and his age, the Remission Board should endeavour to consider the application at the earliest and render its decision, preferably within three months from the date of this judgment. A copy of this judgment shall be marked by the Registry of this Court, to the Home Secretary, Government of Bihar, who is the chairperson of the Remission Board, as well as the concerned Presiding Judge, through the Registrar, High Court of Judicature at Patna High Court. Before parting, this court would like to place on record its deep appreciation for the valuable assistance provided by Mr. Randhir Kumar Ojha, appearing on behalf of the petitioner and Mr. Azmat Hayat Amanullah, appearing on behalf of the State.
26. The writ petition is allowed in the above terms. Pending applications, if any, are disposed of. Headnotes prepared by: Writ petition allowed. Divya Pandey