Hitesh @ Bavko Shivshankar Dave vs State of Gujarat

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(SC) 1324

SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, C.J.I., PAMIDIGHANTAM SRI NARASIMHA, J.B. PARDIWALA, JJ.
Hitesh @ Bavko Shivshankar Dave – Petitioner
Versus
State of Gujarat – Respondent
Writ Petition (Criminal) No. 467 of 2022
Decided On : 24-01-2023

Advocates:
Advocate Appeared:
For the Petitioner: Rishi Malhotra.
For the Respondents: Swati Ghildiyal, Devyani Bhatt.

Headnote:(A) Indian Penal Code, 1860 - Section 302 - The policy for premature release of prisoners convicted of life imprisonment as established by the State Government policy dated 9 July 1992 - Premature release applications must consider both present policies and those in effect at the time of conviction. (Paras 4, 5, 11, 15)

(B) Executive function under Article 161 - The decision to grant premature release requires the competent authority to take into account the convict's behavior, length of imprisonment, and any comparable cases of co-accused. (Paras 12, 15)

Facts of the case:
The petitioner was convicted of murder under Section 302 IPC and sought premature release after serving over 15 years. His request was denied despite positive recommendations from the Jail Advisory Board, citing his previous absconding and nature of the crime.

Findings of Court:
The court ruled that the previous decisions by the State must be re-evaluated with regard to all relevant circumstances since it is essential to ensure equitable treatment of convicts for similar offenses.

Issues: The court focused on whether it was appropriate for the State to deny premature release solely based on the nature of the crime when a co-accused was granted such release.

Ratio Decidendi: The court emphasized that prior convictions and crimes should not perpetually bar a convict from seeking premature release, especially when co-accused received more favorable treatment.

Result: The court directed the State Government to reconsider the petitioner's application for premature release within two months.

Table of Content
1. conviction and interim bail history. (Para 1 , 2 , 3)
2. factors for determining premature release. (Para 4 , 5 , 6 , 11)
3. state's rejection of premature release. (Para 7 , 8 , 10)
4. arguments for reconsideration of release. (Para 12 , 13 , 14)
5. court's directive for reconsideration. (Para 15 , 16)
6. conclusion of proceedings. (Para 17 , 18)

ORDER :

1. On 16 July 2002, the petitioner was convicted, with the co-accused, of an offence punishable under Section 302 of the Indian Penal Code 1860 and sentenced to suffer rigorous imprisonment for life.

2. During the pendency of the criminal appeal before the High Court, he was granted interim bail for a period of three weeks on 19 January 2005. The petitioner, however, absconded and was arrested on 30 March 2010. The petitioner was thereupon punished by forfeiting four furloughs on 9 August 2011. The appeal against the conviction was dismissed on 21 August 2009. Of the three co-accused, one was released prematurely in 2017.

3. The petitioner has sought premature release.

4. Following the law laid down by this Court, in determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind.

5. On 9 July 1992, the Government of Gujarat formulated a policy for premature release of prisoners convicted and sentenced to life imprisonment on or after 18 December 1978, after completing fourteen years of actual imprisonment provided the behaviour of the prisoner has been satisfactory.

6. On 19 September 2020, the Jail Advisory Board recommended the premature release of the petitioner, taking note of the fact that his behaviour in the jail had been satisfactory, the petitioner had undertaken skill development training and had also prevented a jail break by some prisoners. The Welfare Officer also arrived at the conclusion that the petitioner would not commit any crime in the future.

7. The State Government rejected the case for premature release by an order dated 4 November 2020 on the ground that the petitioner was involved in a case involving a murder over a money dispute and it was not in the interest of the society to release the petitioner.

8. In an earlier writ petition under Article 32 of the Constitution of India taken up by this Court, by an order dated 18 April 2022, the Court directed that the case of the petitioner for premature release should be considered in terms of the policy dated 9 July 1992. The State Government has once again rejected the application of the petitioner for premature release, by an order dated 6 September 2022.

9. We have heard Mr. Rishi Malhotra, counsel appearing on behalf of the petitioner, and Ms Swati Ghildiyal, counsel appearing on behalf of the State of Gujarat.

10. The State Government has filed a counter affidavit. The principal objection to the premature release of the petitioner is that, while he was released on interim bail for a period of three weeks on 19 January 2005, he absconded for a period of five years until he was arrested on 30 March 2010. This, it is urged, indicates a lack of respect for the law. However, it also emerges from the record that the petitioner was punished for his conduct by depriving him four furloughs.

11. The facts which are not in dispute in the Court are as follows:

(ii) The petitioner has undergone fifteen years and six months of actual sentence (nineteen years with remission).

(iii) A co-accused was granted premature release in 2017.

(iv) The Jail Advisory Board has issued a positive report on 1

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