Calcutta High Court Orders State To Reconsider Gang Rape Convicts' Plea For Premature Release, Says Can't 'Blindly' Cite Heinous Nature Of Crime

The Calcutta High Court has directed the State Sentence Review Board (“SSRB”) to reconsider the case of two gang rape convicts for premature release after 22 years of incarceration, which had been denied by the Board on earlier occasions.

Petitioners, convicted in 2001, had applied for remission, and the Court noted that not only did the authorities have no complaints regarding their conduct during parole, but another co-accused had earlier been released by the Supreme Court.

In reprimanding the authorities for being unable to fittingly consider the petitioners plea for remission, a single-bench of Justice Sabyasachi Bhattacharya held:

The mere reference to the heinous nature of the crime committed and the vague remark that the age and potentiality of the convicts are against the grant of premature release are not sufficient from any legal perspective whatsoever. The mere gut feeling or doubt “in the mind of the committee” cannot be a relevant consideration to jump to the conclusion that it may instigate the petitioners to commit further crime. Thus, blindly citing the nature of the crime, the age and the perceived „potentiality‟ of the criminal without an objective assessment would frustrate the entire purpose behind reformation in prisons.

Petitioners counsel claimed that the refusal orders passed by the jail authorities were contrary to law, and that they did not consider the conduct of the petitioners in jail, which was the primary criterion for granting remission.

State argued that the potential of the petitioners to commit further similar crimes cannot be ruled out, since they were in their 40s. It was argued that since both were gang-rape convicts, releasing them would affect the welfare of society and that the authorities could not rule out their possibility to re-offend.

Upon hearing the parties, the Court considered the question whether the SSRB had exercised its discretionary power by adhering to the correct principles of law as laid down by the Supreme Court and the appropriate norms of a civilised society.

In perusing the refusal orders passed by the SSRB, the Court noted that the considerations made by the SSRB in denying remission were “cryptic” and that they had blindly added grounds such as “associations and economic conditions” of the convicts to the refusal order without basis.

The heinous nature of the crime is not doubted; but it occurred about two decades back. The petitioners are in incarceration since then. They do not have a life outside prison. It is as vague as possible to say that the crime left “a deep impact in the society, particularly in the locality”. Children who were born at the time of the crime have since attained adulthood and the locality must have evolved in structure much. The “social Impact in the locality” cited by the authorities, if the petitioners are released, has not been explained at all or substantiated, it was held.

In refuting the argument that the petitioners could not be released because they were in their 40s and the possibility to reoffend loomed large, the Court held that there was no explanation as to why the ages of the petitioners were “magic numbers due to which premature release should be refused.”

Court observed that, on the contrary, at their present ages, the petitioners could be rehabilitated into society and that the years they spent being incarcerated would lead to them being much more cautious in the future.

The presumption would rather be that a person who after the prolonged period of over two decades behind the bars seeks a remission would be extra careful not to repeat, not only the heinous crime for which he was incarcerated in the first place but any offence for that matter which would make him go behind the bars again, it held.

Accordingly in directing the SSRB to reconsider the petitioners plea, the Court directed it to exercise more caution in dealing with pleas for remission, and noted that in a penal system which aimed to be reformative and not retributive, authorities such as the SSRB were expected to act with more cautiousness. It concluded:

If the authorities, who are in charge of reforming the convicts, themselves give up on the latter and sit in judgment over them even after two decades of incarceration in „correctional homes‟, God-forsaken are the convicts. The penal law is not retributive but at best a deterrent and definitely reformative. Even the jails have been renamed in common parlance as “correctional homes” which implies the implicit purpose of punishment to be correctional/reformative.

Citation: 2023 LiveLaw (Cal) 316

Case: Kanchi @ Sanjit Makhal and Another Vs. The State of West Bengal and others

Case No: WPA 20731/2023

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