Southern States - Kerala

Release of prisoners: HC directive to Govt.

By Our Staff Reporter

Kochi June 4. A Division Bench of the Kerala High Court on Tuesday held that the State Government was bound to objectively consider each case of life convicts, recommended for early release in the light of the Supreme Court's guidelines, before passing orders releasing such prisoners.

The Bench comprising Justice J. B. Koshy and Justice K. Padmanabhan Nair observed that the action of the State Government should be transparent and should be an application of its mind while passing orders under Article 161 of the Constitution (the State power to recommend that the Governor pardon, suspend, remit or commute sentences in certain cases).

The Bench also directed the State Government to issue guidelines on the exercise of power under Article 161 and also in the light of the Supreme Court's guidelines.

The Supreme Court had held that in view of section 433A of the Code of Criminal Procedure, no life convict could be released before he/she had undergone imprisonment for a period of 14 years under the power given to the Government under section 432 (power to suspend or remit sentences) and 433 (power to commute sentence) of the Code of Criminal Procedure. The Apex Court had also ruled that while exercising the power under Article 72 and 161, neither the President or the Governor who acted on the advise of the Council of Ministers nor the State Government should overlook the object, spirit and philosophy of section 433A according to which life convicts shall not be released unless he/she had served at least 14 years of imprisonment.

The Judges pointed out that until the enactment of section 433A, the Government had the discretion to grant remission but section 433 A obliged the Government to detain life convicts in prison for 14 years .

The court made the observations in a suo motu proceedings initiated by the court when it came cross complaints that paroles were granted indiscriminately and life convicts released from jail prematurely even before they had served 14 years of imprisonment.

The Judges pointed out that by getting a remission in the sentence, a life convict did not acquire a right to be released prematurely. If the Government had framed any rule or a scheme for the early release of convicts , those rules should be treated as guidelines for exercising the power under Article 161, the court said while citing a Supreme Court judgment in this regard. The court opined that the Article 72 and 161 (power of the President and the Governor respectively to pardon, suspend or remit sentence) was an exceptional power to be exercised in appropriate circumstances, considering the facts of each case.

The Bench said that the State Government had directed the Prison Review Committee to consider the cases of convicts if one had undergone eight years of imprisonment. This violated the principles underlying section 433A of the Code of Criminal Procedure and guidelines laid down by the Supreme Court. As for the recommendations of the Prison Committee for early release of certain life convicts in 1998 and 1999, the court found that the Government did not verify whether the Committee had followed the norms laid down by the GovernmentBesides, there was no material before the Government to consider whether there was any necessity to grant an early release.

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