Right to be Reformed
Ultimate Goal Of Imprisonment Even In Most Serious Crime Is Reformation
While taking the right step in the right direction, the Apex Court in a most learned, laudable, logical, landmark and latest judgment titled Rajo @ Rajwa @ Rajendra Mandal v. The State of Bihar & Ors in Writ Petition (Criminal) No(s). 252 of 2023 and cited as (2023 INSC 771) in the exercise of its criminal original jurisdiction that was pronounced as recently as on August 25, 2023 has most commendably allowed to be considered the premature release of the murder convict who was incarcerated in jail for 24 years. It must be noted that the appellant had twice applied to the Remission Board for premature release but both were rejected. Of course, the Probation Officer had submitted a favourable report but the Superintendent of Police noted the adverse report submitted by the Presiding Judge. The Apex Court very rightly underscored that even prisoners convicted of serious crimes can be reformed and reintegrated into society after being imprisoned. The top court also very commendably propagated that the government should consider various factors when making decisions about early release, such as the prisoner’s potential for future crimes, the purpose of continued imprisonment, the prisoner’s socioeconomic status, health, family ties, and efforts to reintegrate. So the Remission Board will now be required to consider the petitioner’s application for remission afresh.
Above all, to make a person spend whole life in jail is the worst crime on earth in my humble opinion and my humble submission is that it serves just no fruitful purpose at all to make a person rot in jail for his/her whole life! Eminent jurist and former Supreme Court Judge (late) Mr VR Krishna Iyer had once very famously said that, “I believe in Operation Valmiki because every saint has a past and every sinner has a future.” He had also very rightly pointed out in ‘The Economic Times’ newspaper dated February 11, 2013 that, “Supreme Court has said that life imprisonment meant behind bars for life. It is worse than death to keep a person confined for his entire life in jail rather than taking his life.” No denying it!
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice S Ravindra Bhat for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Prashant Kumar Mishra sets the ball rolling by first and foremost putting forth in para 1 that, “The petitioner, currently serving a sentence of life imprisonment for commission of offences punishable under Section 302/34 of the Indian Penal Code, 1860 and Section 27 of the Arms Act, 1959 approaches this court under its Article 32 jurisdiction, seeking appropriate direction to the first respondent to prematurely release him, on the ground that he has been in custody for 24 years without grant of remission or parole.”
To put things in perspective, the Bench envisages in para 2 that, “The petitioner (aged 40, at the time), with three other co-accused persons, was convicted by the Sessions Court, Madhepura in Sessions Case No. 123/2000 and Sessions Case No. 194/2000. on 24.05.2001 for the murder of three persons – two of which were police personnel (dafadars) and the third being a chowkidar, who were all on duty during a village mela – by indiscriminate firing, while they were waiting to be served food. The petitioner was accused to be one among those who had shot at the deceased victims, in a premeditated and planned manner. The trial court sentenced the petitioner and three other co-accused persons to undergo rigorous imprisonment for life; while three other accused were acquitted on all charges. A co-accused (Baudha Mandal), who was the first to fire at the victims, was killed during the pendency of investigation/trial in a police encounter. The petitioner’s conviction and sentence (along with that of three other co-accused convicts), was affirmed by the High Court on 01.09.2005. [By the Patna High Court in Criminal Appeal No. 327/2001 (which was disposed along with Criminal Appeal No 309/2001, filed by three co-accused persons)]. Owing to a lack of means and awareness, the petitioner could not approach this court to challenge the same, and his conviction by the High Court, attained finality.”
As it turned out, the Bench observes in para 3 that, “Pursuant to an order of this court, after notice was issued, the respondent-state has filed an affidavit indicating the computation of his period of sentence undergone, the status of his plea for remission to be granted, as well as the remission policies (as amended from time to time) of the state government. This affidavit confirms that the petitioner long completed 14 years of actual imprisonment (on 19.07.2013), and in fact has, as on 26.07.2023, completed over 24 years of actual imprisonment. Accounting for the remission earned (of over 4 years and 8 months of remission, i.e., a total 1694 days), he has served 28 years, 8 months and 21 days. It is pertinent to mention that he completed 20 years of actual imprisonment on 19.07.2019, and if computed with remission earned as per prevailing rules, then on 05.11.2014 itself.”
Do note, the Bench observes in para 15 that, “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 first 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 finding of guilt, by the trial court and High Court. This offers 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 Officer, and Jail authorities, who are in a far better position to comment on his post-conviction reformation – offering a cautionary tale.”
Most remarkably, the Bench notes in para 16 that, “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.”
It is worth noting that the Bench notes in para 17 clarifying that, “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 reflective 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 finding, accordingly. Such a report, cannot be relied on as carrying predominance, if it focuses 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.”
Most forthrightly, the Bench points out in para 18 that, “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 precedents [Sangeet (supra); Swamy Shraddananda (2) @ Mural Manohar Mishra v. State of Karnataka  11 SCR 93; Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra  9 SCR 90; Chhannu Lal Verma v. State of Chattisgarh  14 SCR 355; Rajendra Pralhadrao Wasnik v. State of Maharashtra  14 SCR 585; and Manoj v. State of Madhya Pradesh  9 SCR 452.] that have dealt with sentencing in the commission of heinous crimes, this is unfortunately, often not the reality. Guidance has been offered by this court (Ibid) on how to mitigate this in recent years, but in this court’s 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 reflects 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.”
To be sure, the Bench then specifies in para 19 stating that, “It has been repeatedly emphasized that the aim, and ultimate goal of imprisonment, even in the most serious crime, is reformative, after the offender undergoes a sufficiently long spell of punishment through imprisonment. Even while upholding Section 433A, in Maru Ram v. Union of India  1 SCR 1196, 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 indifferent, to serve a fixed and arbitrary minimum it is an angry flat untouched by the proven criteria of reform.”
Be it noted, the Bench notes in para 20 that, “Another aspect of note in this case, is the report submitted by the Superintendent of Police in the second round (which is diametrically different from that which was submitted in the first round), was adverse. Without casting aspersions on the veracity of it, or questioning it on merits, it is appropriate to flag 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 deflect the appropriate government from the facts relevant for consideration for premature release, and instead, focus almost entirely upon facts which evoke a retributive response.”
Most significantly, the Bench holds in para 21 that, “Apart from the other considerations (on the nature of the crime, whether it affected 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 qualification whilst in custody, volunteer services offered, 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 benefit of a report contemporaneously prepared by a qualified 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 benefit 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 indefinite 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.”
We cannot afford to gloss over what is then pointed out in para 22 that, “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 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 benefit 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 suffuses the reasoning in Ram Chander (supra).”
Briefly stated and as a corollary, the Bench then mandates in para 25 that, “In light of these findings 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 benefit 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 suffered 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.”
In essence, it is high time and the law must be amended and the Chairman of the Remission Board should not be Home Secretary but a former CJI or at least former Chief Justice of a High Court. The Apex Court has very rightly advocated that the ultimate goal of imprisonment even in most serious crime is reformation. It is high time and all the High Courts and lower courts must always definitely abide in totality by what the top court has held so sensibly in this leading case and consider cases as directed hereinabove!