Holding

A life imprisonment sentence does not automatically expire after 20 years; premature release is at the discretion of the appropriate government, and the Review Board's reasons for denial were irrelevant, leading to the quashing of the orders.

Summary

Four life convicts who had served more than 18 years (over 24 years including remission) filed writ petitions under Article 32 challenging the State Government's refusal to grant them premature release. The petitioners argued that, under Rule 591(29)(4) of the West Bengal Rules for Superintendence and Management of Jails and the explanation to Section 61 of the West Bengal Correctional Services Act, 1992, they were entitled to release as a matter of right after completing 20 years of imprisonment. The Supreme Court held that a life sentence does not automatically expire after 20 years; release is solely at the discretion of the appropriate government, and the petitioners only have a right to have their cases considered. The Court found the Review Board's reasons for denial—adverse police report, potential for re‑grouping, and socio‑economic factors—irrelevant and without substance. Consequently, the orders refusing premature release were quashed and the matter was remitted to the government for fresh consideration within three months. The writ petitions were allowed.

Issues considered

Whether a sentence of imprisonment for life automatically expires after the completion of 20 years under the West Bengal Correctional Services Act, 1992 and Rules 591(29)(4).
Whether the petitioners have a statutory right to premature release as a matter of right under the Rules and the explanation to Section 61.
Whether the State Government's discretion to remit a life sentence is limited or absolute.
Whether the reasons given by the Review Board for rejecting premature release are legally sufficient.

Legislation cited

Code of Criminal Procedure, 1898s. 401
Constitution of Indias. Article 161, s. Article 32
West Bengal Correctional Services Act, 1992s. 61

Subjects

life imprisonmentpremature releasegovernment discretionWest Bengal Correctional Services ActRule 591Review BoardArticle 32writ petitionsentence expirysocio‑economic condition

Judgment

A ZAHID HUSSEIN AND ORS.
V.

STATE OF WEST BENGAL AND ANR. '
MARCH !5, 2001

B [S. RAJENDRA BABU AND S.N. PHUKAN, JJ.]

Constitution of India, J950-A11icle 32-Premature release of' life
convicts-State Government's refusal release on recommendations of the
RtvieHl Board---On appeal Held, life in1p1isonnient does not auto1natically
c expire at the end o/20 years ofimprisonrnent-Appropriate Goveniment may
exercise its discretion to n~mit either the ivhole or pa11 of it-Revie1v Board
did not consider the socio-econonzic condition of #ieir fa1nilies and lvhether
there 1vould be any fruitful purpose in confining them £11 jail-Reasons given
,for rejecting the prayer for pren1ature release 1vere irrelevant and devoid of
any substance-West Bengal Correctional Sen•ices Act, 1992-West Bengal
D Rules for Superintendence and Management of Jails--Rules 591(29)(4).

West Bengal Rules for Superintendence and Management of .Tails-
Rules 591(29)(4)-Prcmature release of life convicts-No provision for
automatic release afte!_· co1npletion of 20 years of iinprisonment-However,
E they have the right to put up their cases for consideration before the State
Gove1nment-Conducl of convicts in jail and their potentiality to commit
cri1nes after release are i1nportant considerations-West Bengal Con·ectional
Services Act, 1992-Section 61.

F Petitioners are life convicts who had served more than 18 years of
actual imprisonment. "t'his Court had previously directed the State Gov-
ernment to reconsider their prayers for premature release under Rules
591(29)(4) of the West Beugal Rules for the Superintendence and Manage-
ment of ,Jails. A Review Board considered their cases and refused to grant
premature release as the police report was adverse, their potentiality to
G commit crime had not reduced, there was possibility of their regrouping
'vi th rd eased co-convicts, offences committed hy them were not individual
acts hut had affected society at large, witnesses who had deposed against
them were apprehensive and that one of the co-convicls who was granted
premature release had been murdered in an encounter. Hence this petition
H under Article 32 of the Constitution of India, 1950.
442
ZAHID HUSSEIN v. STATE 443
Petitioners contended that they were entitled to be released as a A
matter of right under the Rules and Explanation to Section 61 of the West
t Bengal Correctional Services Act, 1992 as their total period of imprison-
ment exceeded 20 years .
• Respondents contended that there was no such right available, that
life imprisonment means imprisonment for entire life of the prisoner; and B
that the appropriate Government only has the discretion whether to remit
either whole or part of the sentence.

Allowing the petitions, the Court

HELD : 1. A sent•nce of imprisonment for life does not automati- c
cally 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. [445-C-D]

Gopal Vinayak Godse v. The State of Maharashtra and Ors., (1961) 3
D
SCR 440; State of Madhya Pradesh v. Ratan Singh and Ors., [1976] 3 SCC
470; Sohan I.al v. Asha Ram and Ors., [1981] 1 SCC 106 and Bhagirath v.
Delhi Administration, [1985] 2 SCC 580, relied on.

2. Rules 591(29)(4) of the West Bengal Rules for Superintendence E
and Management of Jails do not provide for automatic release of a life
"" convict after he has completed 20 years of detention including remission.
Under these sub-rules and the explanation to Section 61 of the West Bengal
Correctional Services Act, 1992 the only right which a life convict can be
said to have acquired is a right to have his case put up by prison authorities
in time to the State Government for consideration for premature release F
and in doing so the government would follow the guidelines mentioned
therein. (444-H; 445-A; BJ

I.axman Naskar (l.ife Convict) v. State of WB. and Anr., [2000) 7 SCC
626, relied on.
G
3. The conduct of the petitioners while in jail is an important factor
to he considered as to whether they have lost their potentiality in commit-
ting 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 prema- H
444 SUPREME COURT REPORTS (2001] 2 S.C.R.
A turely. This has to be considered keeping in view the conduct of the Peti-
tioners during the period they were undergoing sentence. Age alone cannot
-f
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. (448-A; BJ

·B 4. The Review Board rud 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. The reason• given by it
for rejecting the prayers for premature release of the petitioners are irrel-
C evaut and devoid of any substance and the impugned orders of the Gov-
ernment are quashed, the matter is remitted again for deeirung it afresh
within the period of 3 months. [448-C; E-F]

CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Cr!.) Nos.
274-277 of 2000. . .~
D Under Article 32 of the Constitution of India.

B.S. Malik and Mrs. Santosh Singh for tl1e Petitioners.

Mukul Rohatgi, Additional Solicitor General, Tara Chandra Sharma,
Ajay Sharma, Rajeev Sharma and Ms. Ncelam Sharma for the Respondents.
E
The Judgment of the Court was delivered by

PHUKAN, J. Four life convicts have filed the !'resent Petitions under
Article 32 of the Constitution challenging the orders of the State Government
rejectiog their prayer for premature release.
F Four petition~.rs were convicted under Section 302/34 !PC and sen-
tenced to suffer rigqrous imprisonment for life. They are in Central Correc-
tional Home, Alip0te~ Kolkota and have served actual imprisonment of more
than 18 years and the total period ofimp1isonment including remission being
more than 24 ye<trs.· They had approached tills court earlier as their prayer.
G 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.

Mr. Malik, learned senior counsel for the petitioners has urged that in
view of sub-mies (4) and (29) of Rule 591 of the West Bengal Rules for the
H Superintendence and Management of Jails (for short 'the Rules') relating to
ZA!IlD HUSSEIN v. STATE [Pf\UKAN, J.] 445
premature release of the life convict and Explanation to Section 61 of the A
~
West Bengal Correctional Services Act, 1992 (hereinafter referred to as 'the
t Act') all the petitioners are entitled to be released as of right as their total
· period of imp1isonment 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 conrt, as sentence for impris-
B
onment 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. c
This court after examining the provisions of Article 161 of the Con-
stitution, Cr.P.C. and I.P.C. has consistently heJd that a sentence of impris-
onment 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 D
government chooses to exercise its discretion to remit either the. whole or part
of the sentence. [See Gopal Vinayak Godse v. The State of Maharashtra and
Others, [1961] 3 SCR 440; Stale of Madhya Pradesh v. Ratan Singh and
Others, [1976] 3 SCC 470; Sohan Lal v. Asha Ram and Other.<, (1981] 1 SCC
106 and; Bhagirath v. Delhi Administration, [1985] 2 SCC 580. E
We extract below sub-rules (4) and (29) of Rule .591 of the Rules:

"(4) In considering the cases of prisoners submitted to it under sub-
rules (I) and (2), the State Government shall take into consideration '
.. (i) the circumstances in each car.e, (ii) the character of the convict' s F
crime, (iii) his conduct in prison, and (iv) the probability of his
reverting .to criminal habits or instigating others to ccimrnit crime. If·
the 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
G
Criminal Procednres, 1898.

(29) 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 H
446 SUPREME COURT REPORTS [2001] 2 S.C.R.
A 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
convict' s jail records during the last three years of his detentions are
found to be satisfactory the State Government may remit the remain-
1 -
der of his sentence."

B These 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
C government would follow the guidelines mentioned in sub-rule (4).

The explanation to Section 61 of the Act is as follows:

· "Explanation - 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
D
years.n

This Explanation came for consideration by this court in Laxman
Naskar (Life Convict) v. Stale of WB. and Anr., (2000] 7 SCC 626 and this
Court held that the said Explanation is only for the purpose of calculation
E 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. We, therefore, find no substance in the submission made
by Mr. Malik, the learned senior counsel.

F 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.

From the conuter filed on behalf of .the Government, we find that the
G State Government constituted a Review Board to consider the cases of
premature release of the petitioners. The said Review Board consists of the
following:

(1) Home Secretary Chairman

H (2) Judicial Secretary Convenor
ZAHID HUSSEIN v. STATE [PHUKAN, J.) 447
(3) l.G. of Prison, West Bengal Member A

T (4) Secretary Home (Jails) Member
Department .

(5) Director General & l.G. of Police, Member
West Bengal B
(6) .Commissioner of Police, Calcutta Member

(7) Chief Probation Officer Member

Following guidelines were famed by the Government for the premature C
release of life convicts, namely:

(i) Whether the offence is an individual act of crime withont
affecting the society at large;

i (ii) Whether there is any chance of future recurrence of committing D
crime;

(iii) Whether there is aoy fruitful pmpose of confining of these
convicts any more;

(iv) Whether the convicts have lost potentiality in committing E
crime;

(v) Socio economic condition of the convicts' families.

The Review Board refused to grant premature release of the pcititioners
on the following grounds: (I) Police report is adverse; (2) the convicts are F
not over aged person and as such have not lost the potentiality in committing
crime; (3) since other co-convicts were trying to come out from jail, there
was a possibility of re-grouping for anti-social activities; (4) the offence was
not an individual act of crime but was affecting society at a large; (5) convicts
were anti-social and; (6) the witnesses who had deposed at the trial as well G
as local people were apprehensive of retaliation in the event of premature
release.

In case of one of the petitioners~namely, Md. Talib, Review Board also
noted one of the co-convicts was granted premature release who was mur-
dered in an encounter after the release. H
448 SUPREME COURT REPORTS [2001] 2 S.C.R.
A We may 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 f
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
B
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.
c
While 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
D 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 considera-
E lion of premature release of the petitioner, Md. Talib.

We 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 devoid of any substance. Accordingly, we quash the impugned
orders of the government and remit the matter again for deciding it afresh
F within the period of 3 months from today.

In the result the Writ Petitions are allowed. After issuance of the Rule,
..
the same is made absolute. ~

AQ. Petitions allowed.