A Blanket Stance That All Persons Who Murdered Woman Or Child Shall Not Be Prematurely Released Isn’t Conducive To Welfare State: Kerala HC

The Kerala High Court has held that 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.

A Single Bench of Justice Bechu Kurian Thomas said, “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 Bench was deciding a case in which the maternal anguish of a mother, whose son was a convict compelled her to approach the court seeking premature release of her son from life imprisonment. The mother claimed that her son thoroughly repents for his misdeed and has also transformed completely.

Advocate Arun Krishnan represented the petitioner while Public Prosecutor Noushad K.A. represented the State.

Brief Facts -

While studying for his graduation, the petitioner's son (hereinafter referred to as 'the convict') got embroiled in a murder case when he caused the death of a lady by the name in the year 2000. The Trial Court convicted him for life imprisonment, which was affirmed by the High Court in 2009. According to the petitioner, her son was in jail for the last 22 years and two months as on August 2022, and hence she pleaded for premature release of her son.

Concededly, the convict, while in prison, 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 counsel for the petitioner submitted that the Jail authority had recommended the release of the convict along with another life convict.

The High Court in the above context of the case noted, “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 observed that since the convict has already been recommended for release and the petitioner herself had also applied for premature release of her son, a decision must be taken by the Government based on the policy existing on the date of conviction.

“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”, said the Court.

The Court added that the murder was committed when he was only 21 years of age, and he is now around 40 years and that not a single adverse incident has been reported against him throughout his period of incarceration.

“… 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. Such blanket concepts derogate from the very purpose and object of the commutation of a sentence. There is also nothing to indicate the existence of such a policy on the date of conviction of the petitioner”, held the Court.

The Court further noted that as a welfare State, it was incumbent upon the Government to consider the case of the petitioner in the light of the recommendations and grounds favouring premature release. The Court, therefore, directed the State to consider the recommendation of the Jail Advisory Board relating to the premature release of petitioner's son as expeditiously as possible, at any rate, within a period of three months.

Accordingly, the High Court allowed the writ petition.

Cause Title- Thressiamma Jose v. State of Kerala & Ors. (Neutral Citation: 2023:KER:45052)

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