1. Convict sentenced to life imprisonment seeks premature release under state policy via Article 32 petition, despite a pending appeal against conviction. (Para 2 , 3 , 5 )
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2022 Supreme(SC) 1326
SUPREME COURT OF INDIA
Sanjay Kishan Kaul, M.M. Sundresh, JJ.
Mata Prasad – Appellant
Versus
The State of U.P. & Anr. – Respondents
Writ Petition (Criminal) No. 256 of 2021
Decided On : 31-01-2022
Important Points
The policy prevalent at the time of conviction should be considered for premature release. Furthermore, the pendency of an appeal before the High Court does not preclude the State Government from examining a prisoner's case for remission.
Subject
Criminal Law - Remission and Premature Release
Act Referred
Headnote
Article 32 - Premature Release from Prison - U.P. Prisoners' Release on Probation Act, 1938 - Section 302/307/323/34 of the IPC - Article 161 of the Constitution of India - 2021 (9) SCC 292
Fact of the Case:
The petitioner sought premature release from prison under a policy dated 01.8.2018. The petitioner, along with his family members, was convicted under Section 302/307/323/34 of the IPC and sentenced to life imprisonment. The appeal against the conviction has been pending for 17 years. The petitioner claimed eligibility for release under the U.P. Prisoners' Release on Probation Act, 1938, but his request was rejected. The petitioner's release was recommended under the 2018 policy, but he was not released. The 2021 policy introduced a minimum age requirement of 60 years for release, which the petitioner did not meet. The court expressed doubt about the validity of this clause and directed the State Government to re-examine it. The court also directed the Competent Authority to consider the petitioner's case for remission within three months and to consider the 2021 policy amendment within four months. The petitioner was granted bail in the meantime.
Finding of the Court:
The court found that the petitioner's case should be considered for remission and directed the Competent Authority to do so within three months. The court also directed the State Government to re-examine the 2021 policy amendment within four months. The petitioner was granted bail pending consideration of these directions.
Issues: The issues involved the petitioner's eligibility for premature release under the U.P. Prisoners' Release on Probation Act, 1938, and the validity of the 2021 policy amendment introducing a minimum age requirement of 60 years for release.
Ratio Decidendi: The court held that the policy prevalent at the time of conviction should be considered for the premature release of a prisoner. The court expressed doubt about the validity of the clause prescribing a minimum age of 60 years for release and directed the State Government to re-examine it. The court also emphasized that the State Government is not precluded from examining the case of a petitioner for remission if an appeal is pending before the High Court.
Final Decision: The writ petition was allowed, and the Competent Authority was directed to consider the petitioner's case for remission within three months. The State Government was directed to re-examine the 2021 policy amendment within four months. The petitioner was granted bail in the meantime, and each party was left to bear their own costs.
Legal Category Hierarchy
Advocates appeared:
Mr. Mohd. Irshad Hanif, Advocate, Mr. Aarif Ali Khan, Advocate, Mr. Rizwan Ahmad, Advocate, Mr. Mujahid Ahmad, Advocate, For the Appellant / Mr. Ardhendhumauli Kumar Prasad, AAG, Mr. Rohit K. Singh, Advocate, Mr. Uday N. Tiwary, Advocate, Ms. Subhali Pathak, Advocate, For the Respondent.
Mr. Mohd. Irshad Hanif, Advocate, Mr. Aarif Ali Khan, Advocate, Mr. Rizwan Ahmad, Advocate, Mr. Mujahid Ahmad, Advocate, For the Appellant / Mr. Ardhendhumauli Kumar Prasad, AAG, Mr. Rohit K. Singh, Advocate, Mr. Uday N. Tiwary, Advocate, Ms. Subhali Pathak, Advocate, For the Respondent.
Table of Contents
2. Petitioner claims eligibility under 2018 policy; State argues 2021 policy requirements apply and suggests seeking suspension of sentence. (Para 5 , 6 , 8 , 10 )
3. Remission and suspension of sentence are distinct remedies; pending appeals do not preclude remission consideration; age-based restrictions for remission may be unsustainable. (Para 9 , 10 , 11 )
4. The remission policy prevalent at the time of eligibility should be considered, and pending appeals do not bar the state from granting remission. (Para 8 , 11 )
5. Petition allowed; directions to consider remission within three months, re-examine the 2021 policy amendment within four months, and grant interim bail. (Para 12 , 13 , 14 , 15 )
6. Which remission policy applies to a prisoner seeking premature release?
The policy prevalent at the time of conviction or eligibility should be taken into consideration for considering the premature release of a prisoner. (Para 8 )
7. Does a pending appeal against conviction preclude the state from granting remission?
No, the state government is not precluded from examining a prisoner's case for remission even if an appeal is pending before the High Court. (Para 11 )
8. Is the remedy for suspension of sentence the same as remission?
No, the remedy of seeking suspension of sentence and the grant of remission based on long incarceration are different forms of release. (Para 10 )
9. Is a minimum age requirement for premature release legally sustainable?
The court expressed doubt on the validity of clauses prescribing a minimum age for remission, as it could unfairly prolong the incarceration of young offenders. (Para 9 )
ORDER
1. Admit.
2. The petitioner has taken recourse to Article 32 of the Constitution of India for a direction for consideration of his case for premature release from prison as per the policy dated 01.8.2018 and consequently to release the petitioner forthwith.
3. The petitioner along with his younger brother and father were tried for offences under Section 302/307/323/34 of the IPC and post-trial were convicted in sentence to maximum imprisonment for life with a judgment dated 30.9.2004 passed in Session Trial No.208 of 1999 arising from FIR No.380/1999 at P.S. Gosaiganj, Sultanpur. The petitioner aggrieved by the said judgment filed the appeal before the High Court of Judicature at Allahabad in Criminal Appeal No.2247/2004. 17 years hence the appeal is still pending adjudication.
4. The appellant on completion of 14 years of imprisonment claimed eligibility for release under the provisions of the U.P. Prisoners' Release on Probation Act, 1938 and submitted the duly filled Form-A but the same was rejected on 28.4.2017.
5. It is the case of the petitioner that the Governor of Uttar Pradesh exercising powers under Article 161 of the Constitution of India issued a G.O dated 01.8.2018, a policy for prisoners in respect of pre-mature release on occasion of Republic Day every year. One of the categories of such prisoners is all male convicted prisoners sentenced to suffer life-imprisonment whose crime is not covered by any sub-rule or restricted category pointed out at Section 3 and who have served 16 years of actual imprisonment without remission and 20 years of imprisonment inclusive of remission along with the pending period. However, this petition of the petitioner was also rejected on 04.11.2019.
6. It is the case of the petitioner, that the Government in the years 2018-2021 released 1000 of prisoners from the various jails of U.P. under the aforesaid policy and the petitioner despite having satisfied all terms and conditions for pre-mature release under the said policy, his proposal for release was recommended on the occasion of 26.1.2020 i.e., two years back but he has still not been released. The fate of the petitioner is stated to have been same even on 26.1.2021 without assigning any reasons.
7. In the conspectus of the aforesaid facts, we had issued notice and counter affidavit has been filed by the State.
8. One of the aspects pointed out in the counter affidavit is by annexing the Policy for pre-mature release by submitting that the same stands amended on 28.7.2021. The significant change as applicable in the case of the petitioner is that all such convicts are required to be considered "who have completed age of 60 years" and have undergone custody of 20 years without remission and 25 years with remission. In this behalf learned counsel for the respondent fairly states that as per the policy of the 2018 the case of the petitioner would be covered though as per the 2021 policy he is not of the requisite age of 60 years. However, he also accepts that in terms of a recent judgment of this Court in State of Haryana &Ors. V. Raj Kumar @ Bittu reported as 2021 (9) SCC 292 it has been clearly opined taking note of the consistent view of this Court that the policy prevalent at time of conviction shall be taken into consideration for considering the pre-mature release of a prisoner. He, thus, submits that 2021 policy prescribing the age of 60 years as the minimum age could not apply to the case of the petitioner.
9. We are really not required to go into this aspect in view of the aforesaid but would like to express a great doubt on the validity of this clause prescribing a minimum age of 60 years which would imply that a young offender of 20 years will have to serve 40 years before his case for remission can be considered. Though we are not required to test this aspect, we call upon the State Government to re-examine this part of the Policy which prima-facie does not seems to be sustainable more so in view of the illustration we have
