(Per R.N. Laddha, J.)

1. Heard the learned counsel for the parties.

2. Rule. The rule is made returnable forthwith with the consent of and at the request of the learned counsel for the parties.

3. In all these matters, a common issue of law and fact arises. Therefore, with the consent of the learned counsel for the parties, these matters are disposed of by common judgment and order.

4. The Petitioners, the convicts sentenced to life imprisonment, question the State Government's order dated 10.05.2021 declining their premature release.

5. Though there was some variance between the submissions made by Mr. Shivraj Gaonkar and Mr. Nigel Da Costa Frias, both submitted that the Sentence Review Board (Board) had correctly recommended the premature release of the Petitioners. They submitted that the Convicting Court's opinion dated 05.03.2021 did not consider all the required parameters, including the reformative aspect. They submitted that the State Government incorrectly felt bound by the Convicting Court's opinion when the Hon'ble Supreme Court in Ram Chander Vs The State of Chhattisgarh & Anr (WP(Crl) No.49 of 2022 dated 22.04.2022) held that the appropriate Government should not mechanically follow the opinion of the Presiding Judge. Therefore, the impugned order is arbitrary and unreasonable because several relevant considerations have been ignored, and irrelevant considerations have been taken into account.

6. The learned counsel relied on (i) Sangeet and Anr. vs State of Haryana ((2013) 2 SCC 452) [LQ/SC/2012/1017] , (ii) Ravi Patil vs State of Goa and Ors. (WPCR No.110/2019 dt.24/11/2020) , (iii) Ravi Patil vs State of Goa and Ors. (WPCR No.110/2019 dt.13/09/2019) , (iv) Dilip S. Shetye vs State Sentence Review Board and Ors. (WPCR 225/2019 dt.06/11/2020) , (v) State (Govt. of NCT of Delhi) vs Prem Raj (2003) 7 SCC 121 , [LQ/SC/2003/746] (vi) State of Punjab vs Kesar Singh (1996) 5 SCC 495 , [LQ/SC/1996/1117] (vii) Yovehel s/o Vijaykumar Gouri vs State of Maharashtra and Ors. (2020 (6) Mh.L.J. 571 (FB)) , (viii) Tarachand Kapari vs State of Bihar (2016 SCC OnLine Pat 747) , (ix) N. Sukumaran Nair vs Food Inspector, Mavelikara (1997) 9 SCC 101 , [LQ/SC/1995/168] (x) Santosh Kumar vs Municipal Corporation and Anr. (2000) 9 SCC 151 , [LQ/SC/2000/204] (xi) Gopal Vinayak Godse vs State of Maharashtra and Ors. (1961) 3 SCR 440 [LQ/SC/1961/11 ;] , (xii) Ramesh Lallu Jakhra vs State of Gujarat (1989) 2 GLR 850 , (xiii) Ram Chander vs The State of Chhattisgarh & Anr. (WP (Crl) No. 49/2022) , (xiv) Laxman Naskar vs Union of India & Ors. (2000) 2 SCC 595 , [LQ/SC/2000/331] (xv) Satish alias Sabbe vs. State of Uttar Pradesh (2020 SCC OnLine SC 791) , (xvi)Nainaram & Anr. vs State of Madhya Pradesh and Anr. (1986 SCC OnLine MP 135) , (xvii) Rajan vs Home Secretary (2019 (14) SCC 114) [LQ/SC/2019/770] , (xviii) Destruction of Public & Private Properties, In Re. vs State of Andhra Pradesh & Ors. ((2009) 5 SCC 212) [LQ/SC/2009/886] , (xix) Sunil Fulchand Shah vs Union of India and Ors. (2000) 3 SCC 409 , [LQ/SC/2000/350] (xx) Avtar Singh vs State of Haryana & Anr. (2002) 3 SCC 18 , [LQ/SC/2002/245] (xxi) Mohd. Azam Aslam Butt vs State of Maharashtra (2016 SCC OnLine Bom 4947) , (xxii) Jaya Talakhsi Chheda vs State of Maharashtra (2016 SCC OnLine Bom 8907) and (xxiii) Gajja Ram @ Gajendra vs State of Rajasthan & Ors. (D.B. Crl. Ref. No.1/2021 dt.26-08-2021) , in support of their contentions.

7. Mr. Faldessai learned Additional Public Prosecutor and Mr. Deepak Gaonkar, appearing for the father of the victim who was kidnapped and murdered by the Petitioners, contested the contentions of the learned counsel for the Petitioners. They submitted that the records, in this case, clearly reveal that the Petitioners had not suffered 14 years of "actual imprisonment" and, therefore, in terms of Section 433-A of the Criminal Procedure Code, there was no question of their premature release.

8. They submitted that most of the Petitioners had spent a little over two years on Parole and around two months on furlough. Most of the Petitioners had also earned remission of about 18 to 20 months. They submitted that all these periods could not count for determining the actual imprisonment undergone by the Petitioners. Therefore, excluding this period, the Petitioners were yet to complete 14 years of actual imprisonment. Consequently, there was no question of their premature release, given the provisions of Section 433-A of the Criminal Procedure Code.

9. Mr. Faldessai and Mr. Gaonkar relied on several rulings that exclude the period of remission for determining the actual imprisonment. On this aspect, even the learned counsel for the Petitioners raised no serious dispute. However, the learned counsel for the Petitioners submitted that the periods spent on Parole and furlough count for determining the actual imprisonment. Additionally, they relied on Sunil Fulchand Shah Vs Union of India and others (2000) 3 SCC 409 , [LQ/SC/2000/350] Avtar Singh Vs State of Haryana and Anr. (2002) 3 SCC 18 , [LQ/SC/2002/245] Mohd. Azam Aslam Butt Vs State of Maharashtra (2016 SCC OnLine Bom 4947) , Jaya Talakhsi Chheda Vs State of Maharashtra (2016 SCC OnLine Bom 8907) and Gajja Ram Vs State of Rajasthan and others (Cri. Ref. No.1/2021 dated 26.08.2021) in support of their contentions.

10. Mr. Faldessai and Mr. Gaonkar, however, relied on State of Haryana and others Vs Mohinder Singh (2000) 3 SCC 394 , [LQ/SC/2000/270] Asfaq Vs State of Rajasthan and others (2017) 15 SCC 55 , [LQ/SC/2017/1342] State of Haryana and others Vs Raj Kumar alias Bittu (2021) 9 SCC 292 , [LQ/SC/2021/2897 ;] and Maru Ram Vs Union of India (1981 (1) SCC 107) [LQ/SC/1980/449] , Pavitar Singh Vs The State of Punjab and Another (1988 Cri.LJ 1052) , Naib Singh Vs State of Punjab and others (AIR 1983 SC 855 [LQ/SC/1983/113] ) , Pyarelal Vs State of Haryana (2020) 8 SCC 680 , State of Haryana Vs Nauratta Singh and others (2000) 3 SCC 514 [LQ/SC/2000/503] and Home Secretary (Prison) and others Vs H. Nilofer Nisha (2020) 14 SCC 161 [LQ/SC/2020/107 ;] to contend that the periods spent on at least Parole and remission can never count for determining the actual imprisonment. They submitted that unless a convict undergoes 14 years of actual imprisonment after excluding the period spent on Parole, furlough and remission, there is no question of his premature release.

11. We have given anxious consideration to the rival contentions and examined the record with reference to the applicable law.

12. In Laxman Naskar (supra), the Hon'ble Supreme Court has held that the authorities who are called upon to consider the issue of premature release of a convict must consider, amongst others following factors:-

"(i) Whether the offense affects the society at large;

(ii) the probability of the crime being repeated;

(iii) the potential of the convict to commit a crime in the future;

(iv) if any fruitful purpose is being served by keeping the convict in prison; and

(v) the socio-economic conditions of the convict's family."

13. In the present case, we think that neither the Sentence Review Board nor the Presiding Officer of the convicting Court has considered the above aspects cumulatively. The decisions relied upon by both parties refer to various factors, including the above-listed factors that the authorities are duty bound to consider before making any recommendation or taking any decision on the issue of premature release. Only some of these factors appear to have been evaluated by the Sentence Review Board and the Presiding Officer of the Convicting Court but not all such relevant aspects.

14. Besides, in this case, it does appear that the State Government went by the law laid down by the Court's Full Bench that the opinion of the Presiding Officer of the convicting Court was absolutely binding on it. Based upon the same, the State Government failed to apply its independent mind to the issue of premature release or otherwise of the Petitioners.

15. In Ram Chander (supra), the Hon'ble Supreme Court has made it clear that the opinion of the Presiding Judge should not be considered as just another factor that may be taken into consideration by the Government while deciding the application for remission. The purpose of the procedural safeguard under Section 432(2) of the Criminal Procedure Code would stand defeated if these were so. However, at the same time, this does not mean that the appropriate Government should mechanically follow the opinion of the Presiding Judge. The opinion accompanied by inadequate reasoning will also not satisfy the requirements of Section 432(2) of the Criminal Procedure Code.

16. Therefore, based on the aforesaid, we find it difficult to approve the recommendations made by the Sentence Review Board recommending the premature release of the Petitioners. At the same time, we also find it difficult to endorse the reasoning of the Presiding Judge of the convicting Court, on which the State has placed its reliance.

17. In the present matters, we have not discussed in too much detail our reasoning for the above conclusion, mainly because we are satisfied that none of the Petitioners had undergone mandatory minimum actual imprisonment of 14 years as contemplated by Section 433-A of the Criminal Procedure Code and Goa Prisons Rules, 2006. In the absence of such compliance, even the orders made by the Sentence Review Board or the Presiding Officer of the convicting Court, after due application of mind, and considering all relevant parameters cumulatively, would not suffice.

18. The main reason for our above conclusions is the non-consideration of parameters prescribed in Laxman Naskar (supra) and other decisions specifying relevant parameters. Such parameters were required to be considered cumulatively to strike an appropriate balance between the requirements of interest and welfare of the convicts on one hand and society on the other.

19. As noted above, the crucial aspect in this matter is whether at least the periods spent on Parole and remission can be counted towards the actual imprisonment undergone by the four Petitioners. If we hold such periods liable to be counted, then perhaps the four Petitioners can be said to have served at least 14 years of imprisonment. However, if these periods are to be excluded, then the Petitioners are yet to serve at least 14 years of imprisonment.

20. Section 433-A of the Criminal Procedure Code concerns restrictions on powers of remission or commutation in certain cases. Section 433-A of Cr.P.C. reads as follows:-

"[433-A. Restriction on powers of remission or commutation in certain cases. -Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment provided by law, or where a sentence of death imposed on a person 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.]"

21. Rule 398 of the Prisons Rules concerns the State Sentence Review Board meeting. Rule 398(1)(iv) reads as follows:-

"(iv) Life convicts (men and adolescent offenders) on completion of 10 years of imprisonment, including remission, except those covered under section 433-A of the Code of Criminal Procedure, 1973, whose cases will be considered after completing 14 years of actual imprisonment."

( Emphasis supplied)

22. Rule 399 deals with the procedure for holding meetings of the Board, Rule 400 deals with records of review of sentences and release, Rules 401, 402, and 403 deal with reports that the Board should call for and consider and the factors that are to be considered by the Board for reviewing the sentences.

23. Rule 404(1) requires the Superintendent of Prisons to submit the recommendations of the Board together with documents relating to prisoners recommended for premature release to the Government through the Inspector General. The Inspector General must also forward the papers to the Government with his remarks for orders.

24. Rule 404(2) is relevant; therefore, the same is transcribed below.

"(2) Decisions of the Government:- The Government may either accept or reject the recommendation of the State Sentence Review Board on the ground to be stated. In the case where the recommendation has been rejected, the Government may ask the State Sentence Review Board to reconsider the case. The decision of the Government shall be communicated to the concerned prisoner and in case the Government orders to grant remission and his premature release, the prisoner shall be released forthwith, with or without conditions."

25. Rule 404(2) suggests that the recommendation of the Board, together with remarks of the Inspector General of Prisons, is what the Government is expected to consider for granting remission and premature release of the prisoners. Therefore, Rule 404(2) refers to the grant of remission and premature release.

26. Chapter XVI of the Prisons Rules deals with "Furlough and Parole." Rule 335 from this Chapter is relevant and, therefore, transcribed below.

"335. Furlough and Parole to be counted as remission of sentence.— The period of release on furlough and Parole shall be counted as remission of sentence, provided that, in case of breach it shall not be counted."

27. Mr. Gaonkar and Mr. Costa Frias submitted that while Parole may be granted to a prisoner for events referred to in Rule 324 or for any other sufficient cause, furlough can be given, even without any consent from the prisoners or without prisoners having sought for such furlough. Therefore, they submitted that neither Parole nor furlough can ever be excluded from computing the actual imprisonment. They submitted that a prisoner out on Parole or furlough continues to be in the custody of the prison authorities.

28. In the present matter, we need not examine the issue as to whether the furlough period is to be excluded in determining the actual imprisonment. The furlough period, in this case, does not exceed two months. Therefore, even if the same is included or excluded, the same makes no difference in determining whether, on the date when the Sentence Review Board considered the cases of the Petitioners, the Petitioners had completed 14 years of actual imprisonment as contemplated by Section 433- A and Rule 398(1)(iv) of the Prisons Rules.

29. None of the counsel seriously disputed the proposition that the period of remission is not to be counted for computing the actual imprisonment. However, the learned counsel for the Petitioners submitted that the period spent on Parole differs from the remission. Therefore, this period has to be counted for computing the period of actual imprisonment. Considerable stress laid on Sunil Fulchand Shah (supra).

30. In Sunil Fulchand Shah (supra), the Hon'ble Supreme Court was concerned with the issue of whether the periods spent on Parole must be counted towards the total period of detention under the COFEPOSA Act 1974. The point of whether the periods spent on Parole must count towards determining the period of "actual imprisonment" as contemplated by Rule 398 (iv) or Section 433-A of the Criminal Procedure Code did not arise for determination in Sunil Fulchand Shah (supra).

31. The Hon'ble Supreme Court did hold in paragraph 30 that the periods spent on Parole are liable to be included as a part of the total period of detention because of the very nature of the Parole. However, Court added that such inclusion was because the order granting the Parole or rules and instructions did not contain any caveat to the contrary. This is evident upon reading paragraph 30 of Sunil Fulchand Shah (supra) in its entirety.

32. Paragraph 30 of Sunil Fulchand Shah (supra) reads as follows:-

"30. Since, release on Parole is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of Parole, prescribe otherwise. The period during which Parole is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on Parole, unless otherwise prescribed by the order granting Parole, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of Parole. An order made under Section 12 of temporary release of a detenu on Parole does not bring the detention to an end for any period - it does not interrupt the period of detention - it only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of Parole. The detenu is not a free man while out on Parole. Even while on Parole he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. Parole does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a parolee remains in legal custody of the State and under the control of its agents, subject at any time, for breach of condition, to be returned to custody. Thus, in cases which are covered by Section 12 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12, if the interruption of detention is by means not authorised by law, then the period during which the detenu has been at liberty, cannot be counted towards period of detention while computing the total period of detention and that period has to be excluded while computing the period of detention. The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of Parole granted to the detenu unless the order of Parole or rules or instructions specifically indicates as a term and condition of Parole, to the contrary. The period during which the detenu is on Parole, therefore, requires to be counted towards the total period of detention."

(Emphasis supplied)

33. In the State of Haryana and others Vs. Mohinder Singh (supra), the Hon'ble Supreme Court, in the context of laws framed by the State of Punjab and Haryana, held that when a prisoner is on Parole, his period of release does not count towards the total period of the sentence while he is on furlough, the period can be counted towards the total period of the sentence undergone by him.

34. In Asfaq Vs State of Rajasthan (supra), the Hon'ble Supreme Court observed the following in paragraph 16.

"16. This Court, through various pronouncements, has laid down the differences between Parole and furlough, few of which are as under:

(i) Both Parole and furlough are conditional release.

(ii) Parole can be granted in case of short-term imprisonment whereas in furlough it is granted in case of long -term imprisonment.

(iii) Duration of Parole extends to one month whereas in the case of furlough it extends to fourteen days maximum.

(iv) Parole is granted by Divisional Commissioner and furlough is granted by the Deputy Inspector General of Prisons.

(v) For Parole, specific reason is required, whereas furlough is meant for breaking the monotony of imprisonment.

(vi) The term of imprisonment is not included in the computation of the term of Parole, whereas it is vice versa in furlough.

(vii) Parole can be granted number of times whereas there is limitation in the case of furlough.

(viii) Since furlough is not granted for any particular reason, it can be denied in the interest of the society. {See State of Maharashtra and Another v. Suresh Pandurang Darvakar (2006) 4 SCC 776 [LQ/SC/2006/336] ; and State of Haryana and Others v. Mohinder Singh (2000) 3 SCC 394 [LQ/SC/2000/270] }."

35. In the State of Haryana Vs Raj Kumar alias Bittu (supra) made the following relevant observations in paragraph 19.

"19. Section 433-A of the Code starts with a nonobstante clause restricting the right of the appropriate Government, to suspend the sentence of imprisonment for life imposed on conviction of a person for an offence for which death is one of the punishments provided by law, that such person shall not be released from prison unless he has served at least 14 years of imprisonment. Therefore, the power of the appropriate Government to release a prisoner after serving 14 years of actual imprisonment is vested with the State Government. On the other hand, the power conferred on the Governor, though exercised on the aid and advice of the State, is without any restriction of the actual period of imprisonment undergone by the prisoner. Thus, if a prisoner has undergone more than 14 years of actual imprisonment, the State Government, as an appropriate Government, is competent to pass an order of premature release, but if the prisoner has not undergone 14 years or more of actual imprisonment, the Governor has a power to grant pardons, reprieves, respites and remissions of punishment or to suspend, remit or commute the sentence of any person de hors the restrictions imposed under Section 433-A of the Constitution. Such power is in exercise of the power of the sovereign, though the Governor is bound to act on the aid and advice of the State Government."

(Emphasis supplied)

36. In Raj Kumar alias Bittu (supra), the Hon'ble Supreme Court also emphasized that the prisoner has to undergo a minimum period of imprisonment of 14 years without remission in the case of an offense, the conviction of which carries the death sentence, to take benefit of the policy of remission framed by an appropriate Government under Section 432 of the Code given the overriding provision of Section 433- A of the Code.

37. The Hon'ble Supreme Court also took note of its decisions in Nauratta Singh (supra) and Maru Ram (supra), holding that the period of 14 years, as specified in Section 433-A of the Code, is the actual period of imprisonment undergone by the prisoners without including any period of remission. Based on the aforesaid, it is quite clear that before a prisoner can ask for premature release in a case where his conviction carries a death sentence though he may have been actually sentenced to life imprisonment, such a prisoner must have undergone the actual period of imprisonment of minimum 14 years. For determining this actual period of imprisonment of 14 years, there is no question of considering the remission that such a prisoner might have earned.

38. The above rulings are also authorities for the proposition that the policy of the State Government as reflected in the rules is a valid consideration for computing the period of actual imprisonment. In the Prisons Rules 2006, Rule 398(1)(iv) speaks of "actual imprisonment."

39. Rule 404(2) of the Prisons Rules requires the Government to either accept or reject the recommendation of the State Sentence Review Board. If the recommendation is accepted, grant remission and prematurely release the prisoners with or without conditions. Again, reference is to the grant of remission where the recommendations of the Sentence Review Board are proposed to be accepted.

40. Rule 335 of the 2006 Rules is quite clear since it provides that the period of release on furlough and parole "shall be counted as remission of sentence................" Though, in this case, we do not propose to examine the issue of furlough, Rule 335 does provide that the period of Parole is to be counted as remission. However, as noted above, the remission period is not to be counted for determining the actual imprisonment period of 14 years. The authorities referred to above also exclude the parole period for computing the actual period of imprisonment in terms of Rules. Therefore, upon due consideration of provisions in Section 433-A of the Criminal Procedure Code and the Goa Prisons Rules, 2006, we think that the period of remission and the period spent on Parole cannot be counted for determining the 14 years of actual imprisonment.

41. If the period of remission and the periods spent by the Petitioners on Parole are excluded from consideration, then there is no dispute whatsoever that the Petitioners had not completed 14 years of actual imprisonment on the date when the Sentence Review Board recommended their premature release.

42. The extract of the chart accompanying the affidavit of the Inspector General of Prisons filed on 18.07.2022 makes the above position clear.

43. Mr. Gaonkar urged that the above interpretation would prejudice the Petitioners and the cases of all other life convicts. This contention stands rejected in the case of Maru Ram (supra). The Constitution Bench affirmed the current supremacy of Section 433- A over the remission rules and the short sentencing statutes made by various States. The Court also held that the classification between prisoners covered under the ambit of Section 433- A and those left out was a reasonable classification having nexus with the objection for which the Legislature made such classification.

44. The Court also pointed out that Section 433- A was advisably enacted to apply to a very small sphere and includes within its ambit only certain specified offenses of the Indian Penal Code, that is to say, only those offenses where death or life imprisonment are the penalties but instead of death life imprisonment is given or where a sentence of death is commuted to that of life imprisonment. The Court emphasized to read out Section 433- A to give overriding effect to the remission rules of the State would render purposeful enactment of Section 433- A futility. Rules regarding remission of sentence may be a special law, but Section 433-A, a specific provision to the contrary, would prevail over that special law.

45. For all the above reasons, we hold that no relief is due to the Petitioners because the Petitioners, as on the date of consideration of their cases by the Sentence Review Board, had not completed 14 years of actual imprisonment, which is the mandatory minimum in terms of Section 433-A of the Criminal Procedure Code.

46. As and when the Petitioners complete mandatory minimum actual imprisonment of 14 years, their cases can be placed before the State Sentence Review Board in terms of Rules. As and when the occasion arises, the State Sentence Review Board, as also the Presiding Officer of the convicting Court, may have to consider the issues before them in accord with the Rules and decisions of the Hon'ble Supreme Court referred to above, without, in any manner being influenced by their earlier decisions in these matters. This is more so because, as noted earlier, we found that the State Sentence Review Board and the Presiding Officer of the convicting Court had not decided these matters by cumulatively adverting to all the relevant parameters prescribed in the Rules and explained by various decisions of the Hon'ble Supreme Court on the subject.

47. For all the above reasons, we dismiss these petitions. Accordingly, the rule is disposed of in the above terms. There shall be no order for costs.

48. The Misc. Civil Applications, if any, do not survive with the disposal of the petitions, and the same are disposed of accordingly.