Release of convicts no child's play

Successive prisons ministers in the State have been showing ‘sympathy’ to convicts. But the reasons for their efforts to “somehow” get some select convicts out of jail prematurely are not specified, at least on record.

Come January 26 and August 15, prisons ministers begin talking about efforts to set jailbirds free. ut the fact remains that since 2006, there has been no en masse release of lifers in the State.

In 2006, when H D Kumaraswamy was the chief minister, 309 convicts were released. This excessive generosity was shown on the occasion of Suvarna Karnataka Rajyotsava, the 50th anniversary of the State’s formation.



Harsha, who had killed a four-year-old student of St Lord’s School at Mathikere in Bangalore, was sanctioned remission by then governor. But, a special public prosecutor, on behalf of the Yeshwantpur police station, had filed a petition in the court seeking enhancement of his sentence.

A division bench of the High Court of Karnataka, while disposing of the criminal appeal by Harsha challenging the conviction and trial by the lower court, had set aside the remission granted by the governor. The bench comprising Justice K Sreedhar Rao and Justice C R Kumaraswamy had observed that “only in exceptional cases for public welfare and public good, the prerogative power is to be exercised. The celebration of golden jubilee of the formation of the State may be a laudable step, but letting off the criminals who have committed gruesome and heinous offences on the pretext of Suvarna Karnataka celebrations is a misplaced sympathy. The present order of blanket remission in a heinous crime of this nature is a clear case of arbitrary exercise of power without application of the mind and anti-thesis to rule of law. The order of remission is not only illegal, but blatantly immoral to show legal sympathies to the accused who has committed a loathsome and macabre act of kidnapping and killing a minor child. Any leniency shown to the accused, guilty of offence of this nature, would give wrong signals.”

References
The HC bench, in its order, had also referred to the Supreme Court judgment in the Maru Ram Vs Union of India (1981) case, where it had referred to Article 72 (executive power to pardon by President) and Article 161 (executive power to pardon by Governor). The apex court had observed that all public power, including Constitutional power, shall never be exercised arbitrarily or mala fide.

The apex court, while adjudicating the Kehar Singh Vs Union of India (1989) case, had held that the President’s power under Article 71 is subject to judicial review.

In the case of Epuru Sudhakar Vs Government of Andhra Pradesh (2006), Justice S H Kapadia, had opined that “pardons, reprieves and remissions are manifestation of the exercise of prerogative power. When a pardon is granted, it is the determination of the ultimate authority that public welfare will be better served by inflicting less than what the judgement has fixed. The exercise of prerogative power is subject to judicial review. An undue exercise of power is to be deplored. Every prerogative has to be subject to rule of law. That rule cannot be compromised on the grounds of political expediency.”

Another landmark judgment by the Supreme Court was in the case of Narayana Dutt Vs State Of Punjab, of February 2011. The court had ruled that the following relevant materials are required to be placed before the Governor along with request for grant of pardon/remission:

* About any other case involving serious offence pending against the convict
* Earlier clemency petition, if any, filed by the convict
* Whether any appeal against conviction and sentence is pending before HC or SC
* Period of sentence undergone by the convict
* Conduct and behaviour of the convict while undergoing sentence.
* Effect of the decision of grant of pardon on the family of the victim and society as a whole.

Following all these historical judgments, Governor H R Bhardwaj’s office gave specific instructions as to how the proposal should be submitted to his office while seeking premature release of convicts.

However, on perusal, many of the files did not contain basic and relevant materials such as:

* Clemency petition of the convict.
* Copy of the report of Advisory Committee for Central Prison regarding the conduct of convict.
* Judgment copies of the High Court or Supreme Court.
* Report of Superintendent of Police regarding effect of release of convict on victim’s family and society as a whole.


Fact file
* Governor, under Article 161 of the Constitution, has executive powers to grant pardon and reduce jail term of a convict. Pardoning will erase the guilt as well as reduce jail term. But in case of remission, convict will be released from jail, but his guilt (conviction and sentence) will stay.
* But governor has to go by relevant documents before exercising his power and it cannot be arbitrary.
* Government too has power to reduce jail term of convicts under Section 432 of CrPC, provided convict has completed 14 years of imprisonment. But government can do so provided it has set guidelines. In Karnataka, at present, there are no guidelines.
* On June 15, 2009, government seeks governor’s permission to release 84 convicts  premature.
* Governor convenes meeting on June 19, 2009 of then prisons minister Umesh Katti and officials of law, home, and DIG (Prisons).
n The then Additional Advocate General says HC has struck down rules and guidelines of the State pertaining to release of prisoners. In the absence of guidelines, it is not proper to put a proposal before Governor for premature release of convicts.
* On October 24, 2009, govt resubmits proposal to governor for premature release of 594 convicts, though not mentioning action taken to frame guidelines.
n Governor observes that files do not give details of convicts, directs to examine individual cases and explain mitigating circumstances, if any. File returned to government on November 3, 2009.
* On February 18, 2010, govt resubmits proposal seeking premature release of 594 convicts.
n Governor returns files to government on March 3, 2010 for detailed examination, as previous instructions given by him were not followed. He also directs government not to send files in a casual manner. A letter is sent to the chief minister also.
* Government resubmits file on July 20, 2010. Governor observers that full facts of circumstances which warrant premature release of prisoners not furnished.
* On September 19, 2011, government submits files of each convict separately to governor. About 99 proposals are received by governor’s office.
* Keeping three court judgements in view, governor examines each case and finds relevant information not provided by government and returns 84 files.

The lucky one
One convict, who had served 14 years in prison, to be released recently was Puttaraju (convict no. 784). He was sentenced to life. A native of Kodagu, Puttaraju was an inmate of Koramangala open jail in Bangalore. In his case, both the jurisdictional Superintendent of Police and Deputy Commissioner had submitted favourable reports. The Advisory Committee of the prisons had stated that he was a reformed person.

Official reports stated that people of Puttaraju’s village, where he had committed the crime, had given good opinion about him. Hence, the governor agreed for his premature release.