- (1.) MARIYAM, the detenue, who according to the State, suffers form cataract in both the eyes and from hypertension, has completed about 13 years and 11 month's detention and with remission completed 18 years, 5 months but has not been allowed to be released on licence for the reason that there existed apprehension of commission of certain grave offence.
(2.) WE have also perused the record from which it transpires that the application for release on license was rejected on the ground that the dispute persisted amongst parties and there would be possibility of commission of a grave offence. Record also shows that although the Board has rejected the application but indicated no reason for the rejection. Similar is the report of the District Magistrate. There appears to be no basis for such hypothetical averment in the counter-af fidavit and hence we are of the view that rejection of her application for release on licence is totally misconceived. It was vehemently argued by the learned Addl. Govt. Advocated that the U. P. Prisoner's Release on Probation Rules, 1938 has been amended from time to time and lastly it was amended on 29th June, 1992, wherein it was indicated that a person can be released on license after completion of 14 years actual sentence. Thus, according to the Addl. Govt. Advocate, the petitioner, who has not completed 14 year's actual detention, cannot be released. The said amendment was notified on 29th June, 1992. It is prospective in nature. Prior to this amendment a person could be released on licence if ne had completed more than ten years detention.
(3.) IN view of the aforesaid position, it was incumbent upon the authorities to have considered the application of this lady (Mariyam) in accordance with the prior Rules, but it was not done. IN the case of Maru Ram v. Union of INdia, 1980 Cr. LJ 1440, the Hon'ble Supreme Court observed: "now to the first point, it is trite law that civilised criminal jurisprudence interdicts retroactive impost of heavier suffering by a later law. Ordinarily, a criminal legislation must be so interpreted as to speak futuristically. We do not mean to enter the area of Article 20 (1) which has already been dealt with. What we mean to do is so to read the predicate used in Section 433-A as to yield a naturalresult, a human consequence, a just infliction. While there is no vested right for any convict who has received a judicial sentence to contend that the penalty should be softened and that the law which compels the penalty to be carried out in full cannot apply to him, it is the function of the Court to adopt a liberal construction when dealing with a criminal statute in the ordinary course of things. This humanely inspired canon, not applicable to certain terribly anti-social categories may legitimately be applied to Section 433-A (The sound rationale is that expectations of convicted citizens of regaining freedom on existing legal practices should not be frustrated by subsequent legislation or practice unless the language is beyond doubt ). Liberality in ascertaining the sense may ordinarily err on the side of liberty where the quantum of deprivation of freedom is in issue. IN short, the benefit of doubt, other things being equal, must go to the citizen in penal statute. With this prefatory caution, we may read the Section. "where a sentence of imprisonment for life is imposed on conviction of a person such person shall not be released from prison unless he had served at least fourteen years of imprisonment. " Strict conformity to tense applied by a precision gramarian may fault the draftman for using the past perfect tense. That apart, the plain meaning of this clause is that "is" means "is" and, therefore, if a person is sentenced to imprisonment for life after Section 433-A comes into force, such sentence shall not be released before the 14 year condition set out therein is fulfilled. Mere precisely, any person who has been convicted before Section 433-A conies into force goes out of the pale of the provision and will enjoy such benefits as accrued to him before Section 433-A entered Chapter XXXII. The other clause in the provision suggests the application of the mandatory minimum to cases of commutation which have already been perfected and read: "where a sentence of death. . . . . has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. " The draftsman, apparently, is not a gramarian. He uses the tenses without being finical. We are satisfied that even this latter clause merely means that if a sentence of death has been commuted after this section comes into force, such person shall not be released until the condition therein is complied with. 'is' and 'has' are not words which are weighed in the scales of grammar nicely enough in this Section and, therefore, overstress on the present tense and the overstress on the present tense and the present perfect tense may not be a clear indicator. The general rule bearing on ordinary pernal statutes in their construction must govern this case. IN another situation, interpreting the import of "has been sentenced" this Court held that "the language of the clause is neutral" regarding prosperity. Boucher Pierre Andre v. Suptd. Central Jail, Tihar, (1975) 1 SCR 192 at p. 195: AIR 1975 SC164. It inevitable follows that every person who has been convicted by the sentencing Court before December 18,1978, shall be entitled to the benefits accruing to him from the remission Scheme or short-sentencing project as is Section 433-A did not stand in his way. The section uses the word 'conviction' of a person and, in the context, it must mean 'conviction' by the sentencing Court, for that first quantified his deprivation of personal liberty. " It further declared; "section 433-A in both its limbs (i. e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial Court before the 18th December, 1978 when Section 433-A came into force. All liners whose conviction by the Court of first instance was entered prior to that date are entitled to consideration by the Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the Court of first instance was before Section 433-A was brought into effect. " From the dictum of the Hon'ble Supreme Court, indicated hereinabove, it is apparent that it was incumbent upon the authorities to have considered the application of the lady on the basis of the Rules, which existed at the relevant time. At the relevant time a person could be released on licence if he had completed 10 years actual sentence. There is no dispute that the petitioner at the relevant time had completed 10 years actual sentence. So she was entitled to be considered for release on licence. But, as it was not done, the opposite parties have committed a manifest error of law while rejecting the application of the petitioner by ignoring the golden principles laid down by the Hon'ble Supreme Court in the aforesaid case: "in our view, penal humanitarianism and rehabilitative desideraturm warrant liberal peroles, subject to security safeguards and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropid zoos. Human rights awareness must infuse institutional reform and search for alternatives. ";