'Absolute Certainty' That Convict Won't Reoffend Impossible; Such Requirement Would Bar Premature Release: Bombay High Court

A condition mandating the State Sentence Review Board (SSRB) to opine with 'absolute certainty' on a prisoner's potential to not re-offend if releases from jail would result in a situation wherein a convicted person would never see freedom and would rather die within the prison walls, held the Bombay High Court while quashing Goa Government's order refusing to allow premature release of a law student, who was convicted in a kidnapping and murder case dating back to 2006. Sitting at the Goa seat, a division bench of Justice Dr Neela Gokhale and Justice Amit Jamsandekar said that the prison laws in Indian embody a strong reformative purpose rather than having a punitive approach. The bench while granting relief to Rohan Dhungat (38) noted that his request for premature release and also the recommendation of the SSRB was rejected twice by the State government, majorly relying on the opinion of the convicting court. However, in the latest order of the Goa Government passed in December last year, the bench noted that one of the objections was that the SSRB was unable to predict with 'absolute certainty' that the Petitioner would not commit such a crime again. It noted that the State contended that the prisoner's behaviour in prison, under the control of the Jail authorities, cannot be taken as evidence of his future behaviour in society. Criticising the State for its approach, the judges in the August 6 order, stated that the State's objection was irrational, as applying such criteria is bound to negate the entire concept of the reformative theory. The SSRB has, in fact, assessed certain key predictors to determine re-offence risk. Historical data that cannot be changed, such as age at the time of conviction, prior convictions, dynamic factors such as anti-social behaviour patterns, financial instability and protective factors such as positive variables that reduce the probability of re-offending, including stable family or social support networks and participation in jail rehabilitation or education courses, etc., have been considered by the SSRB while recommending premature release, the bench noted. "The prison laws in India embody a strong underlying reformative purpose. A criterion that requires the SSRB to opine with absolute certainty on the Petitioner's potential to repeat such a crime in the future would operate as an absolute bar to considering a premature release request by a convict who is eligible under the relevant Rules. This would altogether rule out the possibility of any prisoner being considered for and prematurely released. This would mean that a convicted person would never see freedom and would die within the prison walls. It is nigh impossible for any authority to opine with 'absolute certainty' that the convicted person will not reoffend. The SSRB can only opine on the probability of such potentiality," the bench held. Probability, the bench explained, is the mathematical likelihood that an event will occur and Certainty, on the other hand, is the absolute, unquestionable state in which an outcome is guaranteed to occur. The Board has, in fact, based on the material before it, opined that the likelihood of the Petitioner repeating the offence is minimal, the judges noted. The bench further considered the SSRB's report which stated that both the parents of the petitioner were physicians and were ready to accept it. It noted that the petitioner completed various courses and has completed his diploma, graduation, and postgraduate studies, while in prison. The judgment penned by Justice Dr Gokhale notes, "While in prison, he completed his BA in English, a postgraduate diploma in labour and administrative law, an advanced computer application course, a post-graduation course in communication and IT skills and other courses. He is currently studying in the second year of LLB. He has also been writing poems and is involved in art and painting in the prison. He has received a National Award for art and literature. He has also written and published a book of poetry, 'For Better or Verse', and participated in painting exhibitions. He is working in the candle-making section in the prison and is appointed as Convict Warden and has also rendered good service towards the work assigned to him in jail. The District Magistrate reported that Petitioner's conduct was satisfactory when he was released on parole earlier. The Inspector General of Prisons also informed the Board that nothing adverse was reported while the Petitioner was on parole."The bench further noted that the report indicated that the Petitioner's conduct and rehabilitation have been found satisfactory by the authorities, who are members of the SSRB. The judges therefore opined that continued incarceration of the petitioner would run contrary to the reformative object underlying remission and premature release policies. It further opined that premising on the report and conduct of the petitioner, there is a very low likelihood of the...

'Absolute Certainty' That Convict Won't Reoffend Impossible; Such Requirement Would Bar Premature Release: Bombay High Court

Narsi Benwal

This would mean that a convicted person would never see freedom and would die within the prison walls, Court remarked.

This is a premium content
Available exclusively to
Our subscribers

INR 1099+GST

Tags

Narsi Benwal

'Absolute Certainty' That Convict Won't Reoffend Impossible; Such Requirement Would Bar Premature Release: Bombay High Court

Narsi Benwal

This would mean that a convicted person would never see freedom and would die within the prison walls, Court remarked.

This is a premium content Available exclusively to Our subscribers

INR 1099+GST

Tags

Narsi Benwal

This is a premium content
Available exclusively to
Our subscribers