Appellate Court Can't Order Re-Imprisonment Of Prematurely Released Convict Unless Vires Of Such Release Challenged: Orissa High Court

Clarifying a significant anomaly, the Orissa High Court has held that the executive authorities have unhindered power to consider the case of life convicts for premature release even when their appeal is pending before the Appellate Court.

The Division Bench of Justice Sangam Kumar Sahoo and Justice Chittaranjan Dash also held that the Appellate Court, after deciding the appeal and upholding the guilt, cannot order the convict to surrender to serve out the remaining portion of the sentence once he is released prematurely by the appropriate government.

Brief Background

The Court, in November last year, heard a jail criminal appeal and upon conclusion of hearing, found the appellant Lajara Chhatria guilty under Section 302 of the IPC and upheld the conviction and sentence of life imprisonment imposed on him.

The Bench had also ordered the appellant, who was on bail since 2014, to surrender before the trial Court to serve out the remaining part of his sentence. It also clarified that in case he fails to surrender within fifteen days, the trial Court shall take immediate steps to arrest him.

After receiving the order of the Court, the Additional Sessions Judge -cum- Special Judge (Vigilance), Bolangir informed that while the appeal was pending for consideration, the Governor has remitted the sentence of the convict and has ordered his premature release. The Court also received instructions to that effect from the prison authorities.

Question for Consideration

Against the said backdrop, the question arose before the Court as to what shall be the effect of the order passed by the High Court, which directed the convict-appellant to surrender to serve out the remaining portion of his sentence.

The Court found a direct inconsistency between the judicial order of the Appellate Court and the order of the executive, which was passed when the appeal was pending for consideration and decision.

Court's Observations

The Court called for affidavits from the Principal Secretary (Law), Government of Odisha as well as Director General (Prisons). Upon perusing their affidavits, it came to the knowledge of the Court that there is a void in the existing guidelines and no prevalent rule clarifies as to whether the executive shall be authorized to exercise its power to grant remission when the appeal is pending.

To answer the question, the Division Bench referred to the observations made by the Punjab & Haryana High Court in Ravdeep Kaur v. State of Punjab & Ors., wherein it was held that mere pendency of the appeal is not enough for the authorities concerned not to consider for premature release.

The Court also referred to the dictum laid down by the Apex Court in Maru Ram v. Union of India and held that remission merely impacts the execution of the sentence but the conviction and the sentence imposed by the Court remain intact and unaltered.

“The Appellant's release does not equate to an acquittal or a reduction in the sentence. This Court retains the authority to adjudicate the appeal, including the power to confirm, alter, or set aside the conviction and sentence based on the merits of the case,” it added.

To ensure consistency and clarity in handling cases of this nature and to avoid any possible conflict between the orders of the executive and the judiciary, the Court laid down the following guidelines.

1. Upon being notified of the premature release of a convict by the trial Court or executive authorities, the appellate Court shall formally acknowledge the action;

2. The order of premature release should be recorded in the case file;

3. The appeal against the conviction and sentence shall continue to be adjudicated on its merits, unaffected by the premature release;

4. The Court retains full authority to confirm, alter, or set aside the conviction and sentence based on the appeal's merits;

5. Both the prosecution and the defence should be clearly informed that the premature release pertains only to the execution of the sentence;

6. The conviction and original sentence remain legally effective until modified by judicial order;

7. The Court should ensure that the convict complies with any conditions imposed by the executive authority as part of the premature release;

8. The registry of the Court must ensure that cases involving premature release are prioritized and listed for hearing at the earliest possible date;

9. A separate in-house mechanism may be maintained for such cases to monitor compliance and expedite proceedings;

10. Detailed records of the premature release, including the executive order and any conditions imposed, should be maintained in the Court's records;

11. Any subsequent orders or actions by the Court related to the appeal shall have no effect on the premature release unless its merit is under challenge in a judicial review.

Taking into consideration the above position, the Court modified its earlier order and withdrew the direction whereby the appellant was required to surrender for undergoing the remaining part of his imprisonment.

“Since the function of execution of the sentence rests with the executive and the Hon'ble Governor in exercise of the power conferred under Article 161 of the Constitution has been pleased to extend the benefit of premature release to the Appellant, respecting the said decision of the appropriate Government which is not under challenge, this Court modifies its order dated 15.11.2023 and withdraws its direction calling upon the Appellant before the learned trial Court to serve out the sentence,” it said.

Case Title: Lajara Chhatria v. State of Odisha

Case No: JCRLA No. 49 of 2008

Date of Order: June 20, 2024

Counsel for the Appellant: Mr. J.K. Panda, Advocate

Counsel for the State: Mr. Arupananda Das, Addl. Govt. Advocate

Citation: 2024 LiveLaw (Ori) 47

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