1. Writ applications seeking premature release of persons sentenced to life imprisonment under Section 302 and 302/149 of the Penal Code after serving substantial incarceration. (Para 1 )
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2021 Supreme(SC) 402
SUPREME COURT OF INDIA
NAVIN SINHA, V. RAMASUBRAMANIAN, JJ.
BECHE LAL - PETITIONER
Vs.
THE STATE OF UTTAR PRADESH AND ANR. - RESPONDENT
WRIT PETITION (Crl.) NO. 155, 161, 168, 183, 195, 172, 177 OF 2021
Decided On : 04-05-2021
Important Points
The Court held that restricting premature release of life convicts to Republic Day is arbitrary and discriminatory. Eligible convicts must be considered under the 01.08.2018 policy, regardless of previous rejections or whether they formally applied, ensuring fair, non-discriminatory treatment and parity with co-accused.
Subject
Criminal Law - Premature Release of Prisoners
Act Referred
Headnote
Constitution of India, 1950 - Article 32, 161, 226 - Penal Code, 1860 - Section 302, 302/149 – Offence of Murder – Punishment for rioting – Power of High court to issue of Writs - U.P. Prisoners Release on Probation Rules,1938 - Batch of writ applications, common relief is sought for premature release of persons sentenced to life imprisonment, after completion of over 14 years of imprisonment. petitioners have remained incarcerated for actual periods ranging from 16 years to 24 years without remission and 20 years to 31 years with remission – Held, State government then framed policy - Curiously, contrary to direction of High Court, State Government, arbitrarily restricted it to premature release of prisoners sentenced to life imprisonment on event of Republic day each year only - Restricted policy is patently bad for being in derogation of orders of High Court. Additionally, it is also discriminatory in nature as there is no nexus to be achieved by providing for premature release only on a specified date, when those eligible to be considered for premature release form a class of persons sentenced to life imprisonment - There is no criteria laid down on basis of which a convict shall be considered for release on opportune date in contradistinction to another who may be relegated to consideration in normal course. Differentiation amongst this class of convicts on separate indicia based on specified parameters is an entirely different matter. policy having statutory force under Article 161 of Constitution will naturally apply to all persons sentenced to life imprisonment. Having been framed subsequent to U.P. Jail Manual,1956 and U.P. Prisoners Release on Probation Rules,1938 will take precedence over latter. fact that any application for premature release submitted before formulation of new policy may have been rejected, cannot be bar to fresh consideration without being prejudiced by earlier rejection - If premature release of a convict can be denied on parity because a similar application of a co-accused had been rejected, conversely if a co-accused has been granted benefit of premature release, it cannot be denied to another co-accused - Writ petition disposed of.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner: Mr. Z.U. Khan, Adv. Mr. Yunus Malik, kAdv. Mr. Anish Maheshwari, Adv. Mr. Aman Malik, Adv. Mr. Samir Malik, AOR Mr. Jetendra Singh, Adv. Mr. Vijendra Kumar Kaushik, Adv. Ms. Kalpana Sabharwal, Adv. Ms. Priyanka Singh, Adv. Mr. Varun Punia, AOR Mr. Z.U. Khan, Adv. Mr. Sulaiman Mohd Khan, Adv. Mr. Ashish Choudhary, Adv. Mrs. Taiba Khan, Adv. Mr. Rohit Amit Sthalekar, AOR Mr. Rishi Malhotra, AOR
For the Respondent: Mr. Vinod Diwakar, AAG Mr. Sarvesh Singh Baghel, AOR Mr. B.N. Dubey, Adv. Ms. Pooja Singh, Adv. Mr. Amir Khan, Adv. Ms. Shivranjani Ralawata, Adv.
For the Petitioner: Mr. Z.U. Khan, Adv. Mr. Yunus Malik, kAdv. Mr. Anish Maheshwari, Adv. Mr. Aman Malik, Adv. Mr. Samir Malik, AOR Mr. Jetendra Singh, Adv. Mr. Vijendra Kumar Kaushik, Adv. Ms. Kalpana Sabharwal, Adv. Ms. Priyanka Singh, Adv. Mr. Varun Punia, AOR Mr. Z.U. Khan, Adv. Mr. Sulaiman Mohd Khan, Adv. Mr. Ashish Choudhary, Adv. Mrs. Taiba Khan, Adv. Mr. Rohit Amit Sthalekar, AOR Mr. Rishi Malhotra, AOR
For the Respondent: Mr. Vinod Diwakar, AAG Mr. Sarvesh Singh Baghel, AOR Mr. B.N. Dubey, Adv. Ms. Pooja Singh, Adv. Mr. Amir Khan, Adv. Ms. Shivranjani Ralawata, Adv.
Table of Contents
2. Petitioners seek premature release based on long incarceration and parity with co-accused, challenging a state policy that restricts such release to specific annual dates. (Para 1 )
ORDER :
1. In this batch of writ applications, common relief is sought for premature release of persons sentenced to life imprisonment, after completion of over 14 years of imprisonment. The petitioners have remained incarcerated for actual periods ranging from 16 years to 24 years without remission and 20 years to 31 years with remission. The convictions are primarily under Section 302, 302/149 of the Penal Code. This Court under Article 32 of the Constitution has been passing orders from time to time for premature release of persons convicted either by setting aside the orders refusing grant of premature release on erroneous grounds as well as passing orders for release directly even though the person sentenced had not approached the authorities before institution of the writ petition.
In State of Haryana v. Jagdish, (2010) 4 SCC 216 explaining the manner for consideration of applications for premature release this Court observed as follows:
“54. The State authority is under an obligation to at least exercise its discretion in relation to an honest expectation perceived by the convict, at the time of his conviction that his case for premature release would be considered after serving the sentence, prescribed in the short-sentencing policy existing on that date. The State has to exercise its power of remission also keeping in view any such benefit to be construed liberally in favour of a convict which may depend upon case to case and for that purpose, in our opinion, it should relate to a policy which, in the instant case, was in favour of the respondent. In case a liberal policy prevails on the date of consideration of the case of a “lifer” for premature release, he should be given benefit thereof.”
(emphasis added by us)In Union of India v. V. Sriharan, (2016) 7 SCC 1 it was observed as follows :
“114….. As far as the implication of Article 32 of the Constitution by this Court is concerned, we have already held that the power under Sections 432 and 433 is to be exercised by the appropriate Government statutorily, it is not for this Court to exercise the said power and it is always left to be decided by the appropriate Government, even if someone approaches this Court under Article 32 of the Constitution…”
On 15.04.2021, even after noticing the earlier orders for premature release passed by this court under Article 32 of the Constitution, and after our attention was invited to a policy of the State of Uttar Pradesh dated 01.08.2018, framed under Article 161 of the Constitution, we observed that “there appears to be a virtual deluge of such writ petitions from the State of Uttar Pradesh seeking premature release notwithstanding judicial pronouncements of this court.”
The High Court on 16.04.2018, in Chandrasi & Ors Vs. State of Uttar Pradesh, Criminal Misc. Writ Petition No.6041 of 2018, after noticing the lack of fairness and consistency in considering applications for premature release observed and directed as follows:
“13. The impugned orders ex facie appear to be lacking reason for rejection of such premature release particularly when there was recommendation made by the Committee headed by the District Magistrate as well as the opinion of the court was also not against the convicts and their conduct was reported to be satisfactory in jail. In these circumstances the impugned orders deserve to be set aside and are accordingly set aside with a direction that the Government shall reconsider their case for premature release in the light of fair and non-discriminatory principles by speaking order within a period of one month from the date a certified copy of this order is produced by the learned counsel for applicants. Needless to say that Government ought to lay down a transparent policy in regard to premature release of convicts who were lying in prison for a long time as has been directed on several occasions by this court in earlier writ petitions.”
The State government then framed the policy dated 01.08.2018. Curiously, c
