No Blanket Ban On Premature Release Of Persons Convicted For Murder Of Woman Or Child: Kerala High Court

Discerning that such a blanket restriction against premature release was opposed to the concept of reformation in a welfare society, Justice Bechu Kurian Thomas held thus:

“A blanket stance that all persons who have murdered a woman or a child shall not be prematurely released de hors any other circumstances is not conducive to a welfare State. Such a stance will be contrary to the principles that govern the commutation of imprisonment. Commutation is based on the principles of reformation of the individual and intended to bring the convict back to society as a useful member. The supervening factors that are conducive to the convict must be taken into reckoning, while considering the issue of premature release.”

The court was hearing a petition filed by the mother of the convict seeking premature release of her son who was convicted for murdering a woman. The conviction was in the year 2000 and was upheld by the High Court in 2009.

The Counsel for the petitioner, Advocate Arun Krishnan submitted that the jail authorities had recommended the name of two persons for premature release. It was argued that the petitioner’s son was not released without giving any reason and the other convict was prematurely released. It was also contended that the petitioner has submitted a representation and was pending consideration.

Counsel for the respondents, Public Prosecutor, Advocate Noushad K A submitted that it was the specific policy decision of the government not to release prisoners prematurely if they are undergoing imprisonment for crimes involving the murder of women and children.

The Court observed that premature release of a prisoner was a policy decision of the government, however the exercise of such a plenary power cannot be left to the whims and fancies of the Government. Considering the power of pardon under Article 161 of the Constitution (power of Governor to grant pardon, suspend, remit, commute sentence) and various decisions of the Apex Court, Justice Thomas noted thus:

“Pardon or remission is an act of grace. The power to remit is a constitutional power and any legislation that seeks to curtail its scope must fail. The Supreme Court has observed that every civilised society recognises the power of pardon and provides pardoning to be exercised as an act of grace and humanity in appropriate cases. The Court has explained that the power of pardoning has been exercised in most States from time immemorial and has always been regarded as a necessary attribute of sovereignty. It is also an act of justice supported by wise public policy. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is vested in the Authority not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty.”

The Court further examined Section 77 of the Kerala Prisons & Correctional Services (Management) Act 2010 which deals with premature release of well-behaved and long-term convicts and Rule 462 of Chapter 36 of the Kerala Prisons & Correctional Services (Management) Rules 2014 which deals with creation of jail advisory body who has the power to recommend convicts for premature release.

The Court held that there was no order passed by the government after considering the recommendation made by jail advisory body and in the absence of an order, it cannot be said that the government has decided against the premature release of the petitioners son.

The Court found that during the term in jail, the convict graduated in English Literature obtained Post Graduation also in English Literature, took his Masters in Business Administration and even appeared for the preliminary examination for the Civil Services. The Court further noted that the petitioners son has completed over 22 years in jail.

Justice Thomas, held that blanket prohibition on commutation of sentence without considering other significant supervening factors such as convicts attitude, personality development, conduct, nature of reformation, age, imprisonment undergone, acquisition of educational qualification from prison etc. derogates from the very purpose and object of the commutation of a sentence.

“It was specifically mentioned in the report of the Jail Advisory Board that the convict could lead a normal life after reformation. The fact that the convict had acquired Graduation, Post Graduation and even a Master's Degree while in jail is remarkable and cannot be ignored. The murder was committed when he was only 21 years of age, and he is now around 40 years. Not a single adverse incident has been reported against him throughout his period of incarceration. As mentioned earlier, while considering the commutation of a sentence, these factors cannot go unnoticed. Apart from all the academic achievements and the various qualifications the convict has attained, it has been pointed out in Ext.P5 that the convict is genuinely repenting for the crime committed at an age when he was just out of his teens. The aforesaid factors that have a bearing on the concept of reformation cannot be shelved aside on the bare premise and blanket statement that persons who have committed the murder of women and children will not be given commutation of sentence.”

The Court held that there was nothing to indicate there was any policy of the government providing blanket ban on premature release of prisoners convicted for murder of woman or child, on the date of conviction of the petitioner’s son.

The Court disposed the petition by directing the government to consider the premature release of the petitioner’s son within a period of three months holding thus:

“As a welfare State, it was incumbent upon the Government to consider the case of the petitioner in the light of the above recommendations and grounds favouring premature release.”

Case title: Thressiamma Jose v State of Kerala

Citation: 2023 LiveLaw (Ker) 394

Case number: WP(Crl.) NO. 854 OF 2022

Counsel for petitioner: Advocates P K Varghese, K R Arun Krishnan, Jerry Mathew, Reghu Sreedharan, Rameez M Azeez, Aparna Anil

Counsel for respondent: Public Prosecutor Advocate Noushad K A