Delhi High Court
Vijay Kumar Shukla vs State Nct Of Delhi & Anr. on 11 November, 2024
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on : 27th August, 2024
Pronounced on: 11th November, 2024
+ W.P.(CRL) 1485/2024, CRL.M.A. 14519/2024 &
CRL.M.A. 14521/2024.
VIJAY KUMAR SHUKLA .....Petitioner
Through: Ms. Vrinda Bhandari, Advocate
(DHCLSC) and Ms. Anandita
Rana,, Ms.Shrutika Pandey,
Ms. Yamina Rizvi, Advocates
with petitioner in-person.
versus
STATE NCT OF DELHI & ANR. .....Respondents
Through: Mr. Sanjeev Bhandari, ASC for
State with Ms. Spriha Bhandari,
Ms. Charu Sharma, Mr. Arijit
Sharma, Mr. Vaibhav Vats, Mr.
Sushant Bali, Mr. Ishan Swarna
Sharma, Advs. with SI
Dharmendra Sharma, PS Rajinder
Nagar.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
ANISH DAYAL, J.
“Every saint has a past, every sinner has a future”
– Justice V.R Krishna Iyer.
These words resonate deeply in the assessment by this Court of the plea
of premature release after 26 years of incarceration.
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1. The petitioner seeks directions for setting aside the Minutes of
Meeting of the Sentence Review Board (“SRB”) held on 30th June 2023
rejecting the premature release of the petitioner and order dated 21 st
November 2023 by which the Minutes of SRB were approved by the
Hon’ble Lieutenant Governor, Delhi; (“LG”). Petitioner, therefore, seeks
directions for premature release in FIR No.48/2001, PS Rajender Nagar
for offences under Sections 302/186/353/34 of the Indian Penal Code,
1860 (‘IPC’), Sections 25/27 of the Arms Act, 1959 and Section 68 of the
Excise Act, 2009. Additionally, the petitioner prays that this Court frames
guidelines to ensure that all decisions taken by the SRB are in consonance
with the Delhi Prisons Rules, 2018 (“DPR”).
Factual Background
2. Petitioner was convicted on 22nd September 2009, sentenced by
order dated 24th September 2009 and was awarded life imprisonment. The
appeal to this Court was dismissed on 17th December 2012. Petitioner had
been in judicial custody since 2001 and the period undergone in custody
is about 23 years and 5 months without remission and 26 years 11 months
with remission. As per the Nominal Roll, his jail conduct had been
satisfactory and parole was granted to petitioner from 24th May 2016 for a
period of 1 month; from 23rd June 2017 for a period of 1 month; from 25th
April 2020 for 8 weeks during the COVID-19 pandemic extended till
February 2021; emergency parole from 06th June 2021 for 90 days during
COVID-19 pandemic, extended till 05th April 2023. Petitioner
surrendered on time, even during the COVID-19 pandemic, subsequent to
the extension of emergency parole.
3. Aside from this, furlough had been granted from 23rd August 2016
for 3 weeks; on 07th December 2016 for 3 weeks; on 01st September 2017
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for 2 weeks; on 01st February 2018 for 3 weeks; on 1st April 2019 for 3
weeks; on 25th August 2023 for 3 weeks and on 08th August 2024 for 2
weeks. There is no record that he misused the liberty granted when
released either on parole or furlough.
4. Petitioner was awarded Certificates of Recognition by the Jail
Superintendent on 26th January 2015 for “good quality of work”; on 26th
January 2017 for “good conduct, hard work and excellent services with
sincerity in this jail” and on 15th August 2017 for “good conduct, hard
work and excellent services”
5. On 4th September 2017, petitioner was transferred from Regular
Prison to Semi-Open Prison by an order of the Director General of Prisons,
Tihar under the DPR and on 11th March 2020, was re-located to Open
Prison within the Central Jail, Tihar Complex, as per the DPR.
6. Petitioner was successfully employed for duties in the Jail inter alia
in 2015 worked at the storeroom, in 2018 in Semi-Open Office for 3
months and Semi-Open Jail Canteen for 7 to 8 months, in 2019 at Tihar
Emporium for 5 to 6 months for maintenance and overall working of the
emporium, in 2019-20 at SCOPE Plus, an NGO in Tihar Prisons in Tewa
Hostels/Baraat Ghars and undertook press and ironing activities, in April
2023 at Semi-Open Office and finally in December 2023 at Tihar Jail’s
outlet established at Indian Oil Corporation Ltd. at J.B. Tito Marg, Masjid
Moth, New Delhi outside jail from 8 A.M. to 8 P.M.
7. In July 2019, petitioner applied for premature release. The SRB
rejected the request on the basis – (a) ‘the facts and circumstances of the
case,’ (b) ‘not having lost the propensity of crime yet’ and (c) ‘perversity
of the crime.’ Consequently, in September 2019, basis this
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recommendation, the release was rejected by the LG (first rejection). In
February 2020, SRB rejected premature release yet again however,
documents pertaining to such rejection were not made available to
petitioner.
8. In August 2020, the SRB rejected the application yet again basis (a)
‘the facts and circumstances of the case’ and (b) ‘gravity and perversity
of the crime’, consequent to which in October 2020, it was rejected by the
LG (second rejection).
9. In December 2020, SRB rejected his release on the basis of factors
of (a) ‘the facts and circumstances of the case’, (b) ‘gravity and perversity
of the crime’ and (c) ‘strong opposition by the police department’
consequent to which LG rejected the request for premature release (third
rejection).
10. In June 2021, SRB rejected the request for premature release basis
(a) ‘the facts and circumstances of the case’, (b) ‘gravity and perversity
of the crime’ and (c) ‘strong opposition by the police department’
consequent to which LG rejected the request for premature release (fourth
rejection).
11. In October 2021, SRB rejected the request for premature release
basis (a) ‘the facts and circumstances of the case’, (b) ‘gravity and
perversity of the crime’ and (c) ‘strong opposition by the police
department’ consequent to which LG rejected the pre-mature release (fifth
rejection).
12. Petitioner’s counsel contended that he could not challenge any of
his five rejection orders since petitioner was not even aware of orders
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passed in the third, fourth and fifth rejections and became aware only
during the process of filing the present petition.
13. What is impugned now is the sixth rejection on 21st November 2023
based on SRB report dated 20th June 2023 which based its rejection on (a)
‘reports received from Police and Social Welfare Departments’ and (b)
‘the facts and circumstances of the case i.e, nature of crime, gravity and
perversity of the crime, opposition by police, the possibility of committing
of crime’. For the purpose of reference, extracts from the Minutes of the
SRB, impugned herein, are reproduced as under:
14. It is noted that petitioner was permitted to work at Tihar Jail’s outlet
established at Indian Oil Corporation Ltd. at J.B. Tito Marg, Masjid Moth,
New Delhi which was outside the jail, after the impugned order dated 21st
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November 2023, bearing out that petitioner’s conduct was satisfactory and
there was no apprehension in the minds of prison authorities that he was a
flight risk. Petitioner’s counsel further contended that when petitioner was
out on parole, he was gainfully employed as a rickshaw driver; saved a
total sum of Rs. 1,76,000/-, which he would use to buy a rickshaw and
sustain himself once he was released. There had been a total of 10
occasions when he was released on parole and furlough. Petitioner’s
name, as noted above, was sent to SRB on six occasions, mechanically
rejected all six times, without application of mind, and in complete
disregard to his socio-economic background, good conduct, and potential
to reform and lead a meaningful life.
Submissions on behalf of Petitioner
15. Ms. Vrinda Bhandari, Advocate nominated by the Delhi High Court
Legal Services Committee (DHCLSC) appearing for the petitioner made
extensive arguments in support of petitioner’s premature release. She
based her arguments essentially on the following points:
i. Petitioner had been in prolonged custody for the last about 26 years
with remission;
ii. Petitioner’s jail conduct was sterling and satisfactory;
iii. Petitioner was released at least 10 times on parole and furlough and
had never misused his liberty;
iv. Rejection by SRB was purely on mechanical grounds without
application of mind and completely overlooking the facts on record;
v. Petitioner had been consistently granted certificates of good
conduct and good work in jail;
vi. Not only had he worked in Semi-Open Prisons, but also in Open
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Prison and was allotted a duty in Tihar Jail outlet at Indian Oil
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Corporation Ltd. at J.B. Tito Marg, Masjid Moth, New Delhi which
was outside jail where he was completely in an unsecured space
from 8 A.M. to 8 P.M.;
16. Further, she essentially contended that SRB ought to follow rules
and guidelines which are crystallised and prescribed in DPR, which they
have completely disregarded in rejecting petitioner’s plea for premature
release six times.
17. For this purpose, she pointed out to the relevant Rules of the DPR,
2018, promulgated in the exercise of power conferred by Sections 71 of
the Delhi Prisons Act, 2000 by the Government of India, NCT of Delhi.
They are in force since 1st October 2018. Chapter XX relates to
“premature release”. Relevant provisions, to which petitioner’s counsel
has adverted to, are extracted hereunder for ease of reference:
“(i) Premature Release
1244. The primary objective underlying premature
release is reformation of offenders and their
rehabilitation and integration into the society,
while at the same time ensuring the protection of
society from criminal activities. These two aspects
are closely interlinked. Incidental to the same is the
conduct, behavior and performance of prisoners
while in prison. These have a bearing on their
rehabilitative potential and the possibility of their
being released by virtue of remission earned by
them, or by an order granting them premature
release. The most important consideration for
premature release of prisoners is that they have
become harmless and now have become eligible as
useful member of a civilized society.
(emphasis added)
………
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(ii) Composition of the Sentence Review Board
(SRB)
1247. The Government shall constitute a Sentence
Review Board (SRB) to recommend premature
release of life convicts in appropriate cases. This
should be recommended by body having following
members and may be reconstituted as per the
orders of the Government from time to time:
a) Minister In-charge of Prisons – Chairman
b) Principal Secretary (Home), – Member Govt. of
NCT of Delhi
c) Principal Secretary, Law, Justice & – Member
Legislative Affairs, Govt. of NCT of Delhi
d) District and Sessions Judge, Delhi – Member
e) Inspector General of Prisons, Delhi – Member
Secretary
f) Director of Social Welfare along with the Report
of Chief Probation Officer, Govt. of NCT of Delhi-
Member
g) A senior Police Officer not below the – Member
Rank of Special Commissioner of Police,
nominated by the Commissioner of Police
In case minister in charge of prisons is not
available then Principal Secretary (Home) may
Chair the meeting.
………
1249. SRB should meet at least once in three
months at the notified place on a date to be noticed
to its members at least 10 days in advance by the
Member Secretary. The notice of such meeting
shall be accompanied by complete agenda papers.
(emphasis added)
1250. However, the Chairman of the SRB can
convene a meeting of the Committee more
frequently, even at short notices, if necessary.
(iii) Eligibility for premature release
1251. Every convicted prisoner whether male or
female undergoing sentence of life imprisonment
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Cr.P.C shall be eligible to be considered for
premature release from the prison immediately
after serving out the sentence of 14 years of actual
imprisonment i.e. without the remissions. It is,
however, clarified that completion of 14 years in
prison by itself would not entitle a convict to
automatic release from the prison and the Sentence
Review Board shall have the discretion to
recommend to release a convict, at an appropriate
time in all cases considering the circumstances in
which the crime was committed and other relevant
factors like: –
a) Whether the convict has lost his potential for
committing crime considering his overall conduct
in Jail during the 14-year incarceration.
b) The possibility of reclaiming the convict as a
useful member of the society and
c) Socio-Economic condition of the Convict’s
family.
(emphasis added)
1252. Certain categories of convicted prisoners
undergoing life sentence would be entitled to be
considered for premature release only after
undergoing imprisonment for 20 years including
remissions but not less than 14 years of actual
imprisonment. The following categories are
mentioned in this connection:
a) Convicts who have been imprisoned for life for
murder in heinous crimes such as murder with
rape, murder with dacoity, murder involving an
offence under the Protection of Civil Rights Act
1955, murder for dowry, murder of a child below
14 years of age, multiple murder, murder
committed after conviction while inside the Jail,
murder during parole or furlough, murder in a
terrorist incident, murder in smuggling operation,
murder of a public servant on duty.
b) Gangsters contract killers smugglers, drug
traffickers, racketeers awarded life imprisonment
for committing murders as also the perpetrators of
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murder committed with pre-meditation and with
exceptional violence or perversity.
c) Convicts whose death sentence has been
commuted to life imprisonment.
(emphasis added)
………
(iv) Procedure
1256. The Procedure to be followed for eventual
consideration by the SRB under the rules for every
life convict eligible shall be as follows:-
i. Every Superintendent in charge of a prison shall
initiate the case of a prisoner at least three months
in advance of his/her becoming eligible for
consideration for premature release as per the
criteria laid down for eligibility of premature
release of life convicts.
ii. The Superintendent prison shall prepare a
comprehensive note for each prisoner, giving his
family and societal background as per the record
of the case, the offence for which he was convicted
and sentenced and the circumstances under which
the offence was committed. The Superintendent
shall also reflect fully on the conduct and behavior
of the prisoner in the prison during the period of
his incarceration, and during his/release on
probation/ leave, change in his/behavioral pattern,
and prison offences, if any, committed by him/and
punishment awarded to him for such offences. A
report shall also be made about his physical and
mental health or any serious ailment with which
the prisoner is suffering, entitling him for
premature release as a special case. The note shall
contain recommendation of the Superintendent i.e.,
whether he favors the premature release of the
prisoner or not. In either case such
recommendation shall be supported by adequate
reasons.
iii. The Superintendent of the jail shall make a
reference to the Deputy Commissioner of Police/
Superintendent of Police of the district, where the
Signature Not Verified prisoner was ordinarily residing at the time of the
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commission of the offence for which he was
convicted and sentenced or where he is likely to
resettle after his release from the Jail. However, in
case the place where the prisoner was ordinarily
residing at the time of commission of the offence is
different from the place where he committed the
offence, a reference shall also be made to the
Deputy Commissioner of Police/ Superintendent of
Police of the district in which the offence was
committed in either case, he shall forward a copy
of the note prepared by him to enable the Deputy
Commissioner of Police/ Superintendent of Police
to express his views in regard to the desirability of
the premature release of the prisoner.
iv. On receipt of the reference, the concerned
Deputy Commissioner of Police/ Superintendent of
Police shall cause an inquiry to be made in the
matter through a senior police officer of
appropriate rank and based on his own assessment
shall make his recommendations. While making the
recommendations the Deputy Commissioner of
Police/Superintendent of Police shall not act
mechanically and oppose the premature release of
the prisoner on untenable and hypothetical
grounds/ apprehensions. In case the concerned
Deputy Commissioner of Police/ Superintendent of
Police is not in favor of the premature release of
the prisoner, he shall justify the same with cogent
reasons and material. He shall return the reference
to the Superintendent of the concerned Jail not
later than 30 days from the receipt of the reference.
v. The Superintendent of Jail shall also make a
reference to the Chief Probation Officer and shall
forward a copy of his note. On receipt of the
reference, the Chief Probation Officer shall either
hold or cause to be held an inquiry through a
Probation Officer in regard to the desirability of
premature release of the prisoner having regard to
his family and social background, his acceptability
by his family members and the society, prospects of
the prisoner for rehabilitation and leading a
Signature Not Verified meaningful life as a good citizen. He will not act
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mechanically and recommend each and every case
for premature release. In either case he should
justify his recommendation by reasoned material.
The Chief Probation Officer shall furnish his
report with recommendations to the
Superintendent of the Jail not later than 30 days
from the receipt of the reference.
vi. On receipt of the report/ recommendations of
the Deputy Commissioner of Police/
Superintendent of Police and Chief Probation
Officer, the Superintendent of Jail shall put up the
case to the Inspector General of Prisons at least
one month in advance of the proposed meeting of
the Sentence Review Board. The Inspector General
of Prisons shall examine the case, bearing in mind
the report/ recommendations of the Superintendent
of Jail. Deputy Commissioner of Police/
Superintendent of Police and Chief Probation
Officer shall make his own recommendations with
regard to the premature release of the prisoner or
otherwise keeping in view the general or special
guidelines laid down by the Government for the
Sentence Review Board. Regard shall also be had
to various norms laid down and guidelines given
by the Apex Court and various High Courts in the
matter of premature release of prisoners.
(emphasis added)
1257. The Board shall follow the following
Procedure and Guidelines while reviewing the
cases and making its recommendations to the
competent authority.
a) The Inspector General of Prisons with the prior
approval of chairman shall convene a meeting of
the Sentence Review Board on a date and time
advance notice of which shall be given to the
Chairman and Members of the Board at least ten
days before the scheduled meeting and it shall
accompany the complete agenda papers i.e. the
note of the Superintendent of Jail
recommendations of the Deputy Commissioner of
Police/ Superintendent of Police, Chief Probation
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Officer and Inspector General of Prisons along
with the copies of documents, if any.
b) A meeting shall ordinarily be chaired by the
Chairman and if for some reasons he is unable to
be present in the meeting, it shall be chaired by the
Principal Secretary (Home). The Member
Secretary (Inspector General of Prisons) shall
present the case of each prisoner under
consideration before the Sentence Review Board.
The board shall consider the case and take a view.
As far as practicable, the Sentence Review Board
shall endeavor to make unanimous
recommendation. However, in case of a dissent, the
majority view shall prevail and will be deemed to
be decision of the Board. If equal numbers of
members are of opposing views, the decision of the
chairman will be final. However, the views of the
opposing members should be recorded.
c) While considering the case of premature release
of a particular prisoner, the Board shall keep in
view the general principles of amnesty/ remission
of the sentence as laid down by the Government or
by Courts as also the earlier precedents in the
matter. The paramount consideration before the
Sentence Review Board being the welfare of the
prisoner and the society at large. The Board shall
not ordinarily decline a premature release of a
prisoner merely on the ground that the police have
not recommended his release. The Board shall take
into account the circumstances in which the
offence was committed by the prisoner and whether
he has the propensity and is likely to commit
similar or other offence again.
d) Rejection of the case of a prisoner for premature
release on one or more occasions by the Sentence
Review Board will not be a bar for reconsideration
of his case. However, the reconsideration of the
case of a convict already rejected shall be after the
expiry of a period of Six months from the date of
last consideration of his case. It is prescribed that
decision of the case of a convict of premature
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release should be through speaking order in
writing.
e) The recommendation of the Sentence Review
Board shall be placed before the competent
authority without delay for consideration. The
competent authority may either accept the
recommendations of the Sentence Review Board or
reject the same on grounds to be stated or may ask
the SRB to reconsider a particular case. The
decision of the competent authority shall be
communicated to the concerned prisoner and in
case the competent authority has ordered grant of
remission and ordered his premature release, the
prisoner shall be released forthwith with or
without conditions.”
(emphasis added)
18. Additionally, Chapter XXIII of DPR relates to Semi-Open and
Open Prisons is relevant since the petitioner was allotted Semi-Open and
Open Prisons duties at various points of time. The definitions of Semi-
Open and Open Prisons and relevant rules under this Chapter, to which
petitioner’s counsel has referred, are extracted hereunder for ease of
reference:
“36) OPEN PRISON means any place within the
prison complex so declared by the Government for
temporary or permanent use for the detention of
prisoners in which the prisoners are trusted to
serve their sentences with minimal supervision and
perimeter security and are not locked up in prison
cells. Prisoners may be permitted to take up
employment outside the prison complex while
serving their sentence.
(emphasis added)
………
49) SEMI-OPEN PRISON means any place
within the prison complex so declared by the
Government for temporary or permanent use for
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the detention of prisoners in which the prisoners
are trusted to serve their sentences with minimal
supervision and perimeter security and are not
locked up in prison cells and do the work within the
area demarcated by the Inspector General inside
the prison complex as assigned to them from time
to time while serving their sentence.
(emphasis added)
………
1323. Procedure for selection
(i) Superintendents of Prisons shall prepare a list
of prisoners eligible as per selection criteria and
who are willing to be confined in semi-open Prison.
(ii) The Superintendent shall prepare case histories
of such prisoners in the Form provided in Appendix
13 and then forward such lists together with case
histories to the Selection Committee.
(iii) The Selection committee shall examine the
said lists along with the case histories and files of
the prisoners at the Prison Head Quarters.
(iv) The case of each prisoner shall be screened,
keeping in view of the following factors, namely:-
(a) Health, physical and mental, to withstand
confinement in a semi-open prison and certificate
in this regard that he is fit to work.
(b) Behavior and conduct in prison and sense of
responsibility displayed.
(c) Progress in work, vocational training,
education and in other like matters.
(d) Group adjustability.
(e) Character and self discipline.
(f) Extent of institutional impacts (whether has
reached peak point of training and treatment).
(g) Whether he is fit for being trusted for
confinement in semi- open prison.
(v) The Selection Committee shall select prisoners
as are eligible for being confined in semi-open
prison as per selection criteria and submit a list of
selected prisoners for the approval of the Inspector
General of Prisons. On the list being approved, the
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transferred for confinement in the semi-open
prison.
(vi) The complete record/files shall be kept by the
In charge, Semi-Open Jail for record/reference.
(vii) The Prisoner whose Name was included in the
list and the prisoners satisfying the Selection
Criteria who are not shifted to Semi open shall be
communicated the reasons for rejection of their
case for being shifted to Semi open or open prison.
Further, before rejecting the case, the prisoner
should be given an opportunity to be heard/ to
make a representation provided that his case was
not covered in 1322.
(emphasis added)
………
1325. Criteria for selection
I. The following convicted prisoners may be
selected for confinement in Open prison who –
a) are found to be of good behavior and are
physically and mentally fit.
b) have maintained excellent conduct inside the
semi open prison and have performed labour
allotted to them with due devotion and diligence
and
i. the convict who have been sentenced for more
than 3 years and upto 5 years and have completed
six months in Semi open Jail.
ii. the convict who have been sentenced for more
than 5 years and have completed one year in Semi-
open Jail.
Provided that the convict must have served,
including under trial period, at least 3/4th of his
total punishment awarded including remission.
(c) Having good character and maintaining self-
discipline.
(d) Have strong group adjustability and sense of
responsibility.
(emphasis added)
………
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1330. The convicts in open prisons may be
allocated work at Tihar outlets within the
territorial limits of Delhi. However, Prison
Authority or Government will not be in any way
bound to find employment for any prisoner lodged
in Open Prison.”
(emphasis added)
19. On the basis of these relevant provisions of the DPR, petitioner’s
counsel submitted as under:
a. Considering petitioner was initially in a Semi-Open Prison,
he must have met with qualification/eligibility which is required
as per Rule 1323. For such a selection, a list is prepared by the
Superintendent of Prisons after screening each case, taking into
account the physical and mental health, behaviour and conduct in
prison, progress in work, vocational training, education, group
adjustability, character and discipline, extent of institutional
impacts and fitness for entrusting to semi-open prison. All these
factors are counterintuitive to the potential and possibility of
propensity to crime of any convict. Therefore, for the SRB to reach
a conclusion that the petitioner was having a propensity for crime,
was belied completely by selection for the semi-open Prison;
b. Considering that petitioner was thereafter allotted to Open
Prison, for which the eligibility criteria under Rule 1325 applies,
which is even more stringent, and involves good behaviour,
physical and mental fitness, excellent conduct inside the semi-
open prison, performance of labour with due devotion and
diligence, good character and self-discipline, strong group
adjustability and sense of responsibility; and having successfully
completed more than one year in semi-open jail. Having passed
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muster on all these factors, SRB’s conclusion was, therefore,
untenable, or illogical and without any basis;
c. Allocation of a prisoner to a Tihar outlet within Delhi is
under Rule 1330 which is a special provision exercised at the
discretion of the prison authorities. This allocation would certainly
put aside any doubt on petitioner’s conduct, reliability,
responsibility, and eventual reformation;
20. Petitioner’s counsel focussed heavily on Chapter XX for premature
release to contend that they are essential aspects that imbue premature
release of offenders. In this regard, she made the following submissions:
a. As per Rule 1244, the primary objective of premature release
is ‘reformation, rehabilitation, integration into society, balancing
it out with protection of society from criminal activities’, incidental
to that is conduct, behaviour and performance of prisoners. This
is said to have a bearing on ‘rehabilitative potential’ and possibility
of being released prematurely. The primary consideration is that
they have become ‘harmless’ and ‘eligible as useful members of
civilised society.’b. The constitution of SRB under Rule 1247 involves not only
the Minister but also the Principal Secretary of Home, Law and
Justice, District & Sessions Judge, Inspector General of Prisons,
Director of Social Welfare and Senior Police Officer. It is a robust
composition which ought to perform its role in taking a broad-
based assessment on objective criteria. As per Rule 1249, SRB
should meet at least once in three months; however, a Chairman
can convene a meeting more frequently as per Rule 1250.
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c. The eligibility for premature release involves having served
a sentence of 14 years of actual imprisonment, without the
remission, subject to discretion of SRB recommending release.
Relevant factors for such eligibility are for SRB to assess whether
the convict has ‘lost his potential for committing crime’, ‘overall
conduct in jail during incarceration’, ‘possibility of reclaiming the
convict as a useful member of society’, ‘social-economic condition
of the convict’s parents’.
d. As per Rule 1252 (a), for convicts who are imprisoned for
life, inter alia for murder of a public servant on duty (which was
the case in this matter, petitioner being convicted for having
murdered a police constable), it is prescribed that after 20 years,
including remission, premature release can be considered. The
petitioner has undergone 26 years plus.
e. The procedure to be followed by SRB is prescribed under
Rule 1256 with the Jail Superintendent initiating the case three
months in advance of eligibility for consideration for premature
release, preparing a comprehensive note for the prisoner, including
his family and societal background, offence for which he was
convicted and sentenced, circumstances under which offence was
committed. Most importantly, the Superintendent is to reflect fully
on the conduct and behaviour of convict in prison and during his
release on probation/leave and any prison offences committed by
him. Recommendation of the Superintendent would be supported
by adequate reasons.
f. Procedure to be followed by SRB is as per Rule 1257 and
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Sub Rule (c); SRB has to keep in view, the ‘general principles of
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amnesty/remission’, the paramount consideration being the
welfare of the prisoner and the society at large. Most importantly,
the Rules say that SRB shall not ordinarily decline a premature
release of a prisoner merely on the ground that the police have not
recommended his release. This, the petitioner’s counsel states, is
extremely important since even if there is negative
recommendation by the police, the SRB is still empowered to
affirm the premature release.
g. As per Sub Rule (d), repeated rejections would not be a bar
for reconsideration, however, each reconsideration shall be spaced
by a minimum period of 6 months. As per Sub Rule (e), the
recommendation of SRB has to be placed before the competent
authority without delay which may either accept or reject the
recommendation or ask the SRB to reconsider. Most importantly,
the decision of competent authority shall be communicated to
concerned prisoner. Petitioner’s counsel states that information of
SRB’s rejection, and recommendation and that by Govt.
authorities at times does not reach petitioners at all while the
proforma procedure is followed at SRB and competent authority.
21. In support of her contentions, petitioner’s counsel relies on the
following decisions:
a. Sushil Sharma v. State 2018:DHC:8159:DB, where the
Court’s observations and opinion are evident. The Special Leave
Petition was dismissed in the challenge against the High Court’s
judgement. Relevant paragraphs are extracted as under:
“18. From the facts and circumstances of the
Signature Not Verified present habeas corpus petition, two issues arise for
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the consideration of this Court, which are struck as
follows:
a. Whether the Sentence Reviewing Board (for
short ‘SRB’) is bound by the guidelines contained
in the order No. F.18/5/94/Home(Genl.), dated
16.07.2004, formulated by the Government of
National Capital Territory of Delhi (hereinafter
referred to as ‘guidelines’) and;
b. Whether the rejection of Sushil Kumar Sharma’s
representation for premature release is violative of
his vested rights under the guidelines.
………
23. What we are, therefore, called upon to decide
in the present proceedings is whether the SRB,
which is a recommendatory body, made its
recommendation qua Sushil Kumar Sharma, in
accordance with the guidelines formulated for the
said purpose and whether the SRB can deviate
from the guidelines formulated in accordance with
law by the Competent Authority for the
consideration of representations made by ‘lifers’
for premature release.
………
27. In view of the foregoing requirements
prescribed by the guidelines, the SRB cannot be
heard to state that, they are not bound by them
particularly, in view of the circumstance that they
owe their existence to the guidelines. The SRB, is
required to exercise its recommendatory function
strictly in accordance with the binding principles
enunciated in the guidelines, from where their
discretion emanates. The policy formulated by the
Competent Authority is binding on the SRB and has
to be scrupulously observed, adhered to and
followed.
………
29. At this juncture, we must record our
appreciation for Mr. Rahul Mehra, learned
Standing Counsel (Criminal) for his submission
that the SRB being a recommendatory body owing
its existence to the guidelines, is bound by them
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who is the competent authority is, in turn, not
bound by the recommendations of the SRB. The
issue, therefore, rests there.
………
32. In Laxman Naskar vs. Union Of India reported
as AIR 2000 SC 986, the Hon’ble Supreme Court
of India promulgated that if the Government had
framed any rule or made a scheme for early release
of convicts, then those rules or schemes would have
to be treated as guidelines for exercising its power
under Article 161 of the Constitution. The Apex
Court further observed that, the Government
orders rejecting the prayer for premature release
of convicts without considering the conduct-record
of the convicts in jail, as well as, their potential to
further commit crime and the socio economic
conditions of the convicts’ family, suffered from
gross infirmities.
………
36. It must, however, be stated that, the SRB
recorded the strong opposition of the Delhi Police
to Sushil Kumar Sharma’s premature release on
the ground “that such release may create
resentment in the society.
………
38. Inexplicably therefore, in the very next meeting
of the SRB, held on 04.10.2018, after having once
again recorded the positive recommendations of
the Social Welfare Department, Government of
NCT of Delhi, the Chief Probation Officer and the
Prison Department and further recording the
opposition of the Delhi Police, as above stated; the
SRB cryptically observed that, “however, rest of
the members have opposed the case for premature
release in view of perversity of the crime and the
circumstances under which the crime was
committed”, and that “the convict has committed
the murder of his wife, brutality of the case; and
thereby rejected his representation for premature
release by a majority of 5:2.
………
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39. A perusal of the above recommendations of the
SRB clearly reflect that, the same are cryptic,
unreasoned, contrary to the material on record and
non-speaking.
……
47. A plain reading of the above guidelines clearly
reflects that, a convicted prisoner undergoing
sentence of life imprisonment is eligible to be
considered for premature release from prison,
immediately after serving 14 years of actual
imprisonment, without accounting for remissions.
Although, the release of a ‘lifer’ is not automatic,
the SRB is required in all cases to consider the
circumstances in which the crime for which the
‘lifer’ has been convicted was committed, and
other relevant factors including the lifer’s potential
for committing crime; considering the lifer’s
overall conduct in jail during the period of
incarceration; the possibility of the convict
becoming a useful member of the society; and the
socio-economic condition of the lifer’s family.
48. The categories of convicted prisoners, who
stand convicted of a capital offence and whose
death sentence has been commuted to life
imprisonment; as in Sushil Kumar Sharma’s case,
are entitled to be considered for premature release
after undergoing imprisonment for 20 years
including remission.
49. The said condition is further qualified by a cap
in the period of incarceration of such lifer,
inclusive of remissions, to a total period of 25
years.
………
51. In the present case, these reasons are
conspicuous by their absence. Even, accepting the
submission made on behalf of the State, to the effect
that, the cap of 25 years in the guidelines do not
warrant automatic release of a person sentenced to
imprisonment for life, we are of the view that,
Signature Not Verified Sushil Kumar Sharma’s further incarceration by
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the State beyond the 29 years’ incarceration with
remissions, already undergone by him, does not
admit of legal justification and lawful sanction, in
the facts and circumstances elaborated
hereinbefore.
52. In view of the foregoing discussion, we are of
the view that, the SRB rejected Sushil Kumar
Sharma’s representation for premature release
arbitrarily and without due or proper application
of mind, to the facts and circumstances of his case
and in contravention of the express mandate of the
State policy as contained in the extant guidelines.
………
55. The recommendations of the SRB in its meeting
held on 04.10.2018 with respect to Sushil Kumar
Sharma, that are called into question in the present
case are hereby set aside and quashed as is the
non-speaking affirmation, of those
recommendations by the Competent Authority.”
(emphasis added)
b. Satish @ Sabbe v. The State of Uttar Pradesh 2020 SCC
OnLine SC 811, in life imprisonment having been granted to
prisoners, details regarding the petitioner’s entitlement for
premature release were considered by Supreme Court; relevant
extracts from said decision are as under:
“18. A perusal of the Government Orders displays
that the statutory mandate on premature release
has been completely overlooked. The three factors
evaluation of (i) antecedents (ii) conduct during
incarceration and (iii)likelihood to abstain from
crime, under Section 2 of the UP Prisoners Release
on Probation Act, 1938, have been given a
complete go by. These refusals are not based on
facts or evidence, and are vague, cursory, and
merely unsubstantiated opinions of state
authorities.
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19. It would be gainsaid that length of the sentence
or the gravity of the original crime can’t be the sole
basis for refusing premature release. Any
assessment regarding predilection to commit crime
upon release must be based on antecedents as well
as conduct of the prisoner while in jail, and not
merely on his age or apprehensions of the victims
and witnesses.3 As per the State’s own affidavit,
the conduct of both petitioners has been more than
satisfactory. They have no material criminal
antecedents, and have served almost 16 years in
jail (22 years including remission). Although being
about 54 and 43 years old, they still have
substantial years of life remaining, but that doesn’t
prove that they retain a propensity for committing
offences. The respondent State’s repeated and
circuitous reliance on age does nothing but defeat
the purpose of remission and probation, despite the
petitioners having met all statutory requirements
for premature release.
20. Indeed, the petitioners’ case is squarely
covered by the ratio laid down by this Court in
Shor v. State of Uttar Pradesh, which has later
been followed in Munna v. State of Uttar Pradesh,
the relevant extract of which is reproduced as
under:
“A reading of the order dated 22.01.2018
shows that the Joint Secretary, Government of
U.P. has failed to apply his mind to the
conditions of Section 2 of the U.P. Act. Merely
repeating the fact that the crime is heinous
and that release of such a person would send
a negative message against the justice system
in the society are factors de hors Section 2.
Conduct in prison has not been referred to at
all and the Senior Superintendent of Police
and the District Magistrate confirming that
the prisoner is not “incapacitated” from
committing the crime is not tantamount to
stating that he is likely to abstain from crime
and lead a peaceable life if released from
Signature Not Verified prison. Also having regard to the long
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incarceration of 29 years (approx.) without
remission, we do not wish to drive the
petitioner to a further proceeding challenging
the order dated 22.01.2018 when we find that
the order has been passed mechanically and
without application of mind to Section 2 of the
U.P. Act.”
[emphasis supplied]
21. It seems to us that the petitioners’ action of
kidnapping was nothing but a fanciful attempt to
procure easy money, for which they have learnt a
painful life lesson. Given their age, their case
ought to be viewed through a prism of positivity.
They retain the ability to reintegrate with society
and can spend many years leading a peaceful,
disciplined, and normal human life. Such a hopeful
expectation is further concritised by their conduct
in jail. It is revealed from the additional affidavit
dated 05.09.2020 filed by Anita @ Varnika (wife of
Vikky) that during the course of his incarceration
in jail he has pursued as many as eight distance
learning courses, which include (i) passing his
Intermediate Examination, (ii) learning computer
hardware, (iii) obtaining a degree in Bachelor of
Arts; as well as numerous certificates in (iv) food
and nutrition, (v) human rights, (vi) environmental
studies. Vikky’s conduct shines as a bright light of
hope and redemption for many other incarcerated
prisoners. Compounded by their roots and familial
obligations, we believe it is extremely unlikely that
the petitioners would commit any act which could
shatter or shame their familial dreams.
22. In the present case, considering how the
petitioners have served nearly two decades of
incarceration and have thus suffered the
consequences of their actions; a balance between
individual and societal welfare can be struck by
granting the petitioners conditional premature
release, subject to their continuing good conduct.
This would both ensure that liberty of the
Signature Not Verified petitioners is not curtailed, nor that there is any
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increased threat to society. Suffice to say that this
order is not irreversible and can always be
recalled in the event of any future misconduct or
breach by the petitioners.”
(emphasis added)
c. In Joseph v. State of Kerala 2023 SCC OnLine SC 1211, the
Supreme Court was dealing with premature release of a life-
sentence convict having served about 35 years in custody,
including remission. The SRB had recommended release however,
the State Government had rejected on three occasions.
“20. A reading of the observations of this court in
State of Haryana v. Jagdish, which was followed in
State of Haryana v. Raj Kumar, makes the position
of law clear: the remission policy prevailing on the
date of conviction, is to be applied in a given case,
and if a more liberal policy exists on the day of
consideration, then the latter would apply. This
approach was recently followed by this court in
Rajo v. State of Bihar as well.
………
32. To issue a policy directive, or guidelines, over
and above the Act and Rules framed (where the
latter forms part and parcel of the former), and
undermine what they encapsulate, cannot be
countenanced. Blanket exclusion of certain
offences, from the scope of grant of remission,
especially by way of an executive policy, is not only
arbitrary, but turns the ideals of reformation that
run through our criminal justice system, on its
head. Numerous judgments of this court, have
elaborated on the penological goal of reformation
and rehabilitation, being the cornerstone of our
criminal justice system, rather than retribution.
The impact of applying such an executive
instruction/guideline to guide the executive’s
discretion would be that routinely, any progress
made by a long-term convict would be rendered
naught, leaving them feeling hopeless, and
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condemned to an indefinite period of
incarceration. While the sentencing courts may, in
light of this court’s majority judgment in Sriharan
(supra), now impose term sentences (in excess of
14 or 20 years) for crimes that are specially
heinous, but not reaching the level of ‘rarest of
rare’ (warranting the death penalty), the state
government cannot – especially by way of
executive instruction, take on such a role, for
crimes as it deems fit.
………
37. Classifying – to use a better word, typecasting
convicts, through guidelines which are inflexible,
based on their crime committed in the distant past
can result in the real danger of overlooking the
reformative potential of each individual convict.
Grouping types of convicts, based on the offences
they were found to have committed, as a starting
point, may be justified. However, the prison laws
in India – read with Articles 72 and 161 –
encapsulate a strong underlying reformative
purpose. The practical impact of a guideline,
which bars consideration of a premature release
request by a convict who has served over 20 or 25
years, based entirely on the nature of crime
committed in the distant past, would be to crush the
life force out of such individual, altogether. Thus,
for instance, a 19 or 20 year old individual
convicted for a crime, which finds place in the list
which bars premature release, altogether, would
mean that such person would never see freedom,
and would die within the prison walls. There is a
peculiarity of continuing to imprison one who
committed a crime years earlier who might well
have changed totally since that time. This is the
condition of many people serving very long
sentences. They may have killed someone (or done
something much less serious, such as commit a
narcotic drug related offences or be serving a life
sentence for other nonviolent crimes) as young
individuals and remain incarcerated 20 or more
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punishment, one may question its rationality. The
question is, what is achieved by continuing to
punish a person who recognizes the wrongness of
what they have done, who no longer identifies with
it, and who bears little resemblance to the person
they were years earlier? It is tempting to say that
they are no longer the same person. Yet, the
insistence of guidelines, obdurately, to not look
beyond the red lines drawn by it and continue in
denial to consider the real impact of prison good
behavior, and other relevant factors (to ensure that
such individual has been rid of the likelihood of
causing harm to society) results in violation of
Article 14 of the Constitution. Excluding the relief
of premature release to prisoners who have served
extremely long periods of incarceration, not only
crushes their spirit, and instils despair, but
signifies society’s resolve to be harsh and
unforgiving. The idea of rewarding, a prisoner for
good conduct is entirely negated.
………
38. In the petitioner’s case, the 1958 Rules are
clear – a life sentence, is deemed to be 20 years of
incarceration. After this, the prisoner is entitled to
premature release.28 The guidelines issued by the
NHRC pointed out to us by the counsel for the
petitioner, are also relevant to consider – that of
mandating release, after serving 25 years as
sentence (even in heinous crimes). At this juncture,
redirecting the petitioner who has already
undergone over 26 years of incarceration (and
over 35 years of punishment with remission),
before us to undergo, yet again, consideration
before the Advisory Board, and thereafter, the state
government for premature release – would be a
cruel outcome, like being granted only a salve to
fight a raging fire, in the name of procedure. The
grand vision of the rule of law and the idea of
fairness is then swept away, at the altar of
procedure – which this court has repeatedly held to
be a “handmaiden of justice”.
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39. Rule 376 of the 2014 Rules prescribes that
prisoners shall be granted remission for keeping
peace and good behaviour in jail. As per the
records produced by the State, the petitioner has
earned over 8 years of remission, thus
demonstrating his good conduct in jail. The
discussions in the minutes of the meetings of the
Jail Advisory Board are also positive and find that
he is hardworking, disciplined, and a reformed
inmate. Therefore, in the interest of justice, this
court is of the opinion, that it would be appropriate
to direct the release of the petitioner, with
immediate effect. It is ordered accordingly.”
(emphasis added)
d. In Wahid Ahmed v. State of NCT of Delhi & Ors. 2022 SCC
OnLine Del 2948, while dealing with premature release, this Court
noted as under:
“70. The submission of the petitioner that he is 77
years of age, as brought through the Nominal Roll,
is not refuted by the State. That there are no
previous adverse antecedents against him, and that
he is not involved in the commission of any other
offence is also brought forth, as also his Jail
conduct as being satisfactory as also reflected
through the Nominal Roll. His non surrender on
the date 13.05.2021 has not been acted upon by the
Prison Authorities in view of the receipt of his mail
dated 23.04.2022 and on account of the second
wave of Covid-19 in 2021. Thus, it is brought forth
that there is no misconduct attributed to the
petitioner even in relation to his over-stay from
28.04.2021 to 13.05.2021 after release on furlough
for three weeks from 06.04.2021 to 28.04.2021.
71. The petitioner submits that he is now wholly
harmless and has even been educating the Jail
inmates having retired as a teacher from a
Government School, that he is a useful member of
a civilized society, and that in similar
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circumstances there have been several other
inmates released before a period of 14 years of
incarceration. The petitioner submits that there is
nothing to indicate that the petitioner has any
propensity towards crime left.
………
73. A series of cases has been relied upon on behalf
of the petitioner in the cases of Narender Kumar
Sharma S/o Shri Purushtottam Das, Mohd. Raees
S/o Late Shri Mohd. Syed and Veer Singh S/o Shri
Ram Singh to submit that all these persons have
been allowed to be released before the period of 14
years of imprisonment, and that in the instant case,
the Social Welfare Department had recommended
the premature release of the petitioner but vide the
minutes of the SRB meeting on 21.10.2021 and
25.06.2021, though the Delhi Police neither
recommended nor opposed the same, the SRB did
not consider the case of the petitioner in
contravention to Rule 1257 of the Delhi Prison
Rules, 2018.
………
79. Taking thus the totality of the circumstances of
the case into account, the age of the petitioner
being 77 years, there being nothing to indicate his
misconduct in the Jail, the lack of any propensity
towards crime now and the factum that three other
convicts in virtually identical situations have been
granted the benefit of a premature release, it is
considered appropriate to grant permission for
release of the petitioner in relation to FIR
No.615/2005, PS Seelampur, under Section 302
read with Section 34 of the Indian Penal Code,
1860, and the petitioner Wahid Ahmed is thus
allowed to be released only on payment of the fine
imposed of Rs.2,000/-, in as much as, a convict is
not entitled to remission whilst undergoing
sentence in default of payment of the fine, and thus,
in the event of fine being paid, the petitioner is
directed to be released forthwith.”
(emphasis added)
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22. Petitioner’s counsel additionally relies on a few other materials,
inter alia as under:
a. Model Prison Manual for the Superintendence and
Management of Prisons in India, issued with the approval of the
Ministry of Home Affairs, where premature release is dealt with
in Chapter XVIII which provides a legal framework that is similar
to that in DPR.
b. Guidelines issued for premature release by NHRC on 26th
September 2003, prescribe mandatory release after 25 years of
incarceration including remission.
23. Petitioner’s counsel therefore states that for considering premature
release, applicable rules at the time of conviction ought to be considered
or alternatively more liberal dispensation which had existed, or extremely
liberal rule /guideline envisaged by NHRC. In any event, by application
of either of these, petitioner’s case should pass muster.
Submissions by the ASC for the State
24. Additional Standing Counsel (‘ASC’) did not wholly refute the
contentions raised by petitioner’s counsel particularly in that DPR should
be applicable. He additionally contended that the Report by SRB should
be indicative, especially when convicts have served more than 24 years.
Proper reasons in SRB report should be judicially reviewable and
therefore, a non-speaking order may not be in order. He relied on the
following decisions to assist the Court in this assessment:
a. In Union of India v. V. Sriharan (2016) 7 SCC 1, which was
decided by the Constitutional Bench, reference was made to the
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aspect that the ability of a Court to review requires reasons and
even if there is power to Government to exercise its executive
powers, particularly for power for remission, the Court has scope
of reviewing such orders except for exceptional circumstances. In
this regard following paras may be instructive which are extracted
as under:
“110. While stoutly resisting the said submission
made on behalf of the Union of India, Mr Dwivedi,
learned Senior Counsel, who appeared for the
State of Tamil Nadu contended that in the case on
hand, this Court while commuting the death
sentence of some of the convicts did not exercise
the Executive Power of the State, and that it only
exercised its judicial power in the context of breach
of Article 21 of the Constitution. It was further
contended that if the stand of the Union of India is
accepted then in every case where this Court
thought it fit to commute sentence for breach of
Article 21 of the Constitution, that would foreclose
even the right of a convict to seek for further
commutation or remission before the appropriate
Government irrespective of any precarious
situation of the convict i.e. even if the physical
condition of the convict may be such that he may
be vegetable by virtue of his old age or terminal
illness. It was also pointed out that in V.
Sriharan v. Union of India [V. Sriharan v. Union
of India, (2014) 4 SCC 242 : (2014) 2 SCC (Cri)
282] , order dated 18-2-2014, this Court while
commuting the sentence of death into one of life
also specifically observed that such commutation
was independent of the power of remission under
the Constitution, as well as, the statute. In this
context, when we refer to the power of
commutation/remission as provided under the
Criminal Procedure Code, namely, Sections 432,
433, 433-A, 434 and 435, it is quite apparent that
the exercise of power under Article 32 of the
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Constitution by this Court is independent of the
Executive Power of the State under the statute. As
rightly pointed out by Mr Dwivedi, learned Senior
Counsel in his submissions made earlier, such
exercise of power was in the context of breach of
Article 21 of the Constitution. In the present case,
it was so exercised to commute the sentence of
death into one of life imprisonment. It may also
arise while considering wrongful exercise or
perverted exercise of power of remission by the
statutory or constitutional authority. Certainly
there would have been no scope for this Court to
consider a case of claim for remission to be
ordered under Article 32 of the Constitution. In
other words, it has been consistently held by this
Court that when it comes to the question of
reviewing an order of remission passed which is
patently illegal or fraught with stark illegality on
constitutional violation or rejection of a claim for
remission, without any justification or colourful
exercise of power, in either case by the executive
authority of the State, there may be scope for
reviewing such orders passed by adducing
adequate reasons. Barring such exceptional
circumstances, this Court has noted in numerous
occasions, the power of remission always vests
with the State executive and this Court at best can
only give a direction to consider any claim for
remission and cannot grant any remission and
provide for premature release. It was time and
again reiterated that the power of commutation
exclusively rests with the appropriate Government.
………
114. Therefore, it must be held that there is every
scope and ambit for the appropriate Government
to consider and grant remission under Sections
432 and 433 of the Criminal Procedure Code even
if such consideration was earlier made and
exercised under Article 72 by the President and
under Article 161 by the Governor. As far as the
implication of Article 32 of the Constitution by this
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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. We answer the said question on the
above terms.”
(emphasis added)
b. In Ram Chander v. State of Chhatisgarh & Anr. (2022) 12
SCC 52, where the Supreme Court held that the government has
discretion to remit or suspend sentences but its power is not
absolute and must be exercised in accordance with the rule of law
under Article 14 of the Constitution and should not be arbitrary
and in any case the Court has the power to direct reconsideration.
Relevant paragraphs are extracted as under:
“13. While a discretion vests with the Government
to suspend or remit the sentence, the executive
power cannot be exercised arbitrarily. The
prerogative of the executive is subject to the rule of
law and fairness in State action embodied in
Article 14 of the Constitution. In Mohinder
Singh[State of Haryana v. Mohinder Singh, (2000)
3 SCC 394 : 2000 SCC (Cri) 645] , this Court has
held that the power of remission cannot be
exercised arbitrarily. The decision to grant
remission should be informed, fair and reasonable.
The Court held thus : (SCC pp. 400-01, para 9)
“9. The circular granting remission is
authorised under the law. It prescribes
limitations both as regards the prisoners
who are eligible and those who have been
excluded. Conditions for remission of
sentence to the prisoners who are eligible
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are also prescribed by the circular.
Prisoners have no absolute right for
remission of their sentence unless except
what is prescribed by law and the circular
issued thereunder. That special remission
shall not apply to a prisoner convicted of a
particular offence can certainly be a
relevant consideration for the State
Government not to exercise power of
remission in that case. Power of remission,
however, cannot be exercised arbitrarily.
Decision to grant remission has to be well
informed, reasonable and fair to all
concerned.”
In Sangeet [Sangeet v. State of Haryana,
(2013) 2 SCC 452 : (2013) 2 SCC (Cri)
611] , this Court reiterated the principle
that the power of remission cannot be
exercised arbitrarily by relying on the
decision in Mohinder [State of
Haryana v. Mohinder Singh, (2000) 3 SCC
394 : 2000 SCC (Cri) 645] .
………
15. In Laxman Naskar v. State of W.B. [Laxman
Naskar v. State of W.B., (2000) 7 SCC 626 : 2000
SCC (Cri) 1431] , while the jail authorities were in
favour of releasing the petitioner, the review
committee constituted by the Government
recommended the rejection of the claim for
premature release on the grounds that : (i) the two
witnesses who had deposed during the trial and
people of the locality were apprehensive that the
release of the petitioner will disrupt the peace in
the locality; (ii) the petitioner was 43 years old and
had the potential of committing a crime; and (iii)
the crime had occurred in relation to a political
feud which affected the society at large. The Court
while placing reliance on Laxman Naskar v. Union
of India [Laxman Naskar v. Union of India, (2000)
2 SCC 595 : 2000 SCC (Cri) 509] stipulated the
factors that govern the grant of remission, namely
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: (Laxman Naskar case [Laxman Naskar v. State of
W.B., (2000) 7 SCC 626 : 2000 SCC (Cri) 1431] ,
SCC p. 598, para 6)……”
(emphasis added)
c. The Supreme Court while dealing with premature release of
petitioner in Laxman Nascar v. State of W.B and Anr. (2000) 2
SCC 595, laid down the factors to be considered while passing an
order, which are extracted as under:
“6. From the counter filed by the State, we find that
the Government has also framed guidelines for this
purpose. To consider the prayer for premature
release of the “life convicts”, a police report was
called for on the following points:
(i) Whether the offence is an individual act of crime
without affecting the society at large.
(ii) Whether there is any chance of future
recurrence of committing crime.
(iii) Whether the convict has lost his potentiality in
committing crime.
(iv) Whether there is any fruitful purpose of
confining this convict any more.
(v) Socio-economic condition of the convict’s
family.”
(emphasis added)
d. Shashi Shekhar @ Neeraj v. State of NCT of Delhi 2016
SCC OnLine Del 6284, where Single Judge of Delhi High Court
noted as to what entails within the meaning of life imprisonment;
relevant paragraphs are extracted as under:
“18. Having considered the aforesaid submissions,
and the several decisions relied upon by the
learned counsel on both sides, it is, firstly, clear
that life sentence is not limited to either 14 years,
or 20 years, or even 25 years. A life sentence means
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the actual life imprisonment for the entire life of the
convict. The same may be curtailed by the State by
premature release. However, that is the discretion
of the State Government to be exercised on the
advice of the SRB. The SRB itself has to arrive at
its opinion on the aspect of premature release on
sound principles. It should have good reasons for
allowing or disallowing the application for
premature release made by a convict. The Courts
cannot substitute the discretion of the State/SRB
with its own discretion. If the Court finds that the
said discretion has not been properly exercised
with due application of mind, the Court may set
aside the order rejecting the application seeking
grant of premature release and may remit the case
back for reconsideration. However, the Court
would not, on its own, undertake the exercise of
considering whether or not to grant premature
release to a convict.
19. It is also well settled that the guidelines that
may be framed for consideration of a case by the
SRB cannot override the statutory scheme
contained in the IPC. The said guidelines are to be
taken into consideration by the SRB while
considering any case placed before it. The SRB
guidelines themselves show that the SRB has to
exercise its discretion by considering the
circumstance of each case placed before it –
irrespective of the number of years that a convict
may have spent behind the bars. Thus, the reliance
placed by learned counsel for the petitioner on the
guidelines, which provides that the period of
incarceration (including remission) should not
exceed 25 years cannot have the effect of effacing
the life sentence awarded to the petitioner in the
aforesaid three independent cases, where he stands
convicted for dacoity and murder.”
(emphasis added)
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e. Gurvinder Singh v. State (Govt. of NCT) of Delhi & Anr
2024:DHC:5035, where Single Judge of Delhi High Court notes
petitioner’s case for premature release to be reconsidered, relevant
paragraphs are extracted as under:
“14. However, the petitioner is always at liberty to
apply to the competent authority for grant of
parole/furlough in accordance with Delhi Prison
Rules, 2018. In the event any such application is
made by the petitioner, it is directed that the
competent authority shall consider it on its own
merits and dispose of the same within the period
stipulated under the said Rules.”
Analysis
25. Petitioner seeks premature release after having served 26 years 11
months custody (including remission), the jail conduct being satisfactory,
paroles and furloughs have been granted successively since 2016 onwards,
certificates of good work have been issued by the Jail Superintendent on
multiple occasions, qualified to be allocated semi-open office, semi-open
jail canteen, semi-open prison, open prison and also finally at Jail’s outlet
established at Indian Oil Corporation Ltd. at J.B. Tito Marg, Masjid Moth,
New Delhi outside jail from 8 A.M to 8 P.M.
26. This, succinctly encapsulates the journey of a convict from being
an offender in a heinous crime towards reformation and rehabilitation,
having successfully gone through the grist of jail procedures, in order to
achieve, what can be metaphorically termed as a ‘podium finish’.
27. This journey, exemplified by his jail resume, however, has not
appealed to the Sentence Review Board, for which his case was qualified
to be presented, essentially because of the gravity and perversity of the
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crime that he committed 27 years back. The petitioner was convicted in
FIR No. 48 of 2001 under Sections 302, 186 and 34 of Indian Penal Code
1860, Section 68 of the Excise Act, 1958 and Section 27 of the Arms Act,
1959. Petitioner was found guilty of murdering a police constable who
had apprehended him for consuming liquor in a public place. At the time
of the incident, the petitioner was found in possession of a loaded pistol
and cartridges. In an attempt to escape, the petitioner fired at the constable,
causing his death, and then fled the scene.
28. Since August 2020, almost every 6 months, his case has been
rejected by the SRB noting the strong opposition by the Police
Department, ‘in the facts and circumstances of the case, ‘gravity and
perversity of the crime’.
29. Each time the SRB rejects the plea, in a pithily drafted, cursorily
articulated proforma paragraph, not only is each of the rejections almost a
copy-paste of an earlier rejection, but it lacks any embellishment or
modicum of assessment or reasoning beyond the proforma factors on
which SRB has right to reject. What is, therefore, before this Court are a
set of previous rejections and the impugned rejection of 2023 parroting
the same reasons.
30. The Court, therefore, faces two options: either to be persuaded by
these repeated rejections and conclude that there must be a rationale
underlying the SRB’s consistent stance, or to evaluate whether the SRB
has genuinely applied logic, rationality, reasonableness, and proper
application of mind in accordance with the rules and guidelines it is bound
to follow. The second option is prompted by the petitioner’s 26-year-long
journey being incarcerated, as noted above, which reveals an apparent and
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significant discrepancy between that journey and the reasons cited by the
SRB for its rejections. There seems to be an apparent and obvious
mismatch between the elements of that journey and the reasons for the
rejection by the SRB.
31. The underlying theme, fulcrum and raison d’être of premature
release are fortunately well articulated in Rule 1244 Chapter XX, of DPR
(which is extracted in paragraph 17 above). Premature release is achieving
a balance in ensuring ‘reformation, rehabilitation, and integration into
society of an offender on one hand and protection of society on the other’.
For the purposes of this assessment, as stated by the Rule, is the conduct
behaviour and performance of prisoners while in prison. The SRB is
undoubtedly a recommendary body as per Rule 1247 (as extracted in
paragraph 17 above). The body is constituted by Members of the
Executive, District Judiciary, Police and Prison Authorities. The SRB, in
achieving this recommendation, exercises ‘discretion’.
32. However, the exercise of this discretion is to be based on relevant
factors, which inter alia are whether the convict has lost his propensity for
committing crime considering his overall conduct, possibility of
reclaiming the convict as a useful member of society; and socio-economic
condition of the convict’s family.
33. These aspects form part of a comprehensive note prepared by the
Superintendent of Prisons as per Rule 1256 (ii) (extracted in paragraph 17
above), recommendation by Deputy Commissioner of Police.
Superintendent of Police, as per Rule 1256 (iv); report of Chief Probation
Officer as per Rule 1256 (v). On the basis of these three reports, the
Inspector General (Prisons) is to make his recommendation. All this is
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finally funnelled to the SRB, which has to apply guidelines, general or
special, laid down by the Government or by the Courts. A cautionary note
has been ensconced in Rule 1257 (c) for the SRB to not decline premature
release ‘merely on the ground that the police have not recommended this
release”, as also not rejecting it merely because it has been rejected on one
or more occasions earlier. The decision of the SRB is mandated to be
through ‘speaking order in writing’.
34. Subsequent to the recommendation, the competent authority can
either accept or reject the same and that decision is to be communicated
to the prisoner.
35. From a perusal of the impugned Minutes of SRB (extracted in
paragraph 13 above), none of these aspects can be gleaned or ascertained.
Ex facie reading of the impugned order bears out that only three aspects
have been stated in the so-called speaking order. i.e. the original crime,
gravity and perversity of it, strong opposition by police. This is further
embellished by an open-ended ‘etcetera’, which in its own right is
dispositive of non-application of mind. Rejecting premature release of a
26-year-old convict with an ‘etcetera’ is an unfortunate short-cut,
perfectly opaque and a disservice to the rules and guidelines which the
SRB is mandated to follow.
36. Latin maxim Nemo debet esse judex in propria causa (no one
should be a judge in their own cause) and Audi alteram partem (hear the
other side) are foundational principles of natural justice. A “speaking
order” or “reasoned order” is regarded as the third pillar of natural justice.
An order is termed “reasoned” when it contains the rationale supporting
it. The adjudicating body’s duty to provide reasons ensures that such a
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decision qualifies as a “reasoned order”. The Supreme Court has
consistently held that a “speaking order” must clearly state the grounds on
which it is based. In Siemens Engineering & Manufacturing Co. of India
Ltd. v. Union of India (1976) 2 SCC 981, the Supreme Court underscored
that providing reasons for an order is not merely a formality but a
fundamental principle of natural justice, ensuring that quasi-judicial
bodies demonstrate transparency and fairness in their decision-making
process. Relevant paragraph is extracted as under:
“6. Before we part with this appeal, we must
express our regret at the manner in which the
Assistant Collector, the Collector and the
Government of India disposed of the proceedings
before them. It is incontrovertible that the
proceedings before the Assistant Collector arising
from the notices demanding differential duty were
quasi-judicial proceedings and so also were the
proceedings in revision before the Collector and
the Government of India. Indeed, this was not
disputed by the learned Counsel appearing on
behalf of the respondents. It is now settled law that
where an authority makes an order in exercise of a
quasi-judicial function, it must record its reasons
in support of the order it makes. Every quasi-
judicial order must be supported by reasons. That
has been laid down by a long line of decisions of
this Court ending with N.M. Desai v. Testeels Ltd.
[ C. A. No. 245 of 1970, decided on December 17,
1975] . But, unfortunately, the Assistant Collector
did not choose to give any reasons in support of the
order made by him confirming the demand for
differential duty. This was in plain disregard of the
requirement of law. The Collector in revision did
give some sort of reason but it was hardly
satisfactory. He did not deal in his order with the
arguments advanced by the appellants in their
representation dated December 8, 1961 which
were repeated in the subsequent representation
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dated June 4, 1965. It is not suggested that the
Collector should have made an elaborate order
discussing the arguments of the appellants in the
manner of a Court of law. But the order of the
Collector could have been a little more explicit and
articulate so as to lend assurance that the case of
the appellants had been properly considered by
him. If courts of law are to be replaced by a
administrative authorities and tribunals, as indeed,
in some kinds of cases, with the proliferation of
Administrative Law, they may have to be so
replaced, it is essential that administrative
authorities and tribunals should accord fair and
proper hearing to the persons sought to be affected
by their orders and give sufficiently clear and
explicit reasons in support of the orders made by
them. Then alone administrative authorities and
tribunals exercising quasi-judicial function will be
able to justify their existence and carry credibility
with the people by inspiring confidence in the
adjudicatory process. The rule requiring reasons
to be given in support of an order is, like the
principle of audi alteram partem, a basic principle
of natural justice which must inform every quasi-
judicial process and this rule must be observed in
its proper spirit and mere pretence of compliance
with it would not satisfy the requirement of law.
The Government of India also failed to give any
reasons in support of its order rejecting the
revision application. But we may presume that in
rejecting the revision application, it adopted the
same reason which prevailed with the Collector.
The reason given by the Collector was, as already
pointed out, hardly satisfactory and it would,
therefore, have been better if the Government of
India had given proper and adequate reasons
dealing with the arguments advanced on behalf of
the appellants while rejecting the revision
application. We hope and trust that in future the
customs authorities will be more careful in
adjudicating upon the proceedings which come
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that those who are affected by such orders are
assured that their case has received proper
consideration at the hands of the Customs
Authorities and the validity of the adjudication
made by the Customs Authorities can also be
satisfactorily tested in a superior tribunal or court.
In fact, it would be desirable that in cases arising
under customs and excise laws an independent
quasi-judicial tribunal, like the Income Tax
Appellate Tribunal or the Foreign Exchange
Regulation Appellate Board, is set up which would
finally dispose of appeals and revision applications
under these laws instead of leaving the
determination of such appeals and revision
applications to the Government of India. An
independent quasi-judicial tribunal would
definitely inspire greater confidence in the public
mind.”
(emphasis added)
37. Even if one were to ignore the brevity of articulation by the SRB,
as merely for administrative convenience, there’s complete opacity in
whether the cautionary elements of Rule 1257 (c) which ought to stare in
the face of SRB, previous rejections, lack of police recommendation and
welfare of the prisoner were considered and used as reasons ultimately
leading to a negative recommendation.
38. The record and jail resume of the petitioner is not disputed by the
State. It is an admitted fact that the petitioner has had continuously
satisfactory jail conduct, has been awarded certificate of recognition on
three occasions, has been on parole on five occasions, furlough on seven
occasions, no record of having misused his liberty, and more importantly,
having served in the semi-open prison, the open prison, and finally at the
Tihar Jail outlet, where he was outside jail from 8 A.M. to 8 P.M., in
December 2023.
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39. It is ironical that even despite the impugned rejection on 30 th June
2023, and approval by the competent authority on 21st November 2023,
the petitioner was allocated at the Indian Oil Corporation outlet in a
completely open space from 8 A.M. to 8 P.M. in December 2020.
40. Clearly, pure and simple logic has got lost in the bureaucratic
miasma. The very qualification for being in semi-open prison and open
prison, as per Rules 1323 and 1325, involves an assessment of factors like
physical and mental health, behaviour and conduct, progress in work,
vocational training, education, group adjustability, character and
discipline, fitness for being entrusted to responsibility, performance of
labour with devotion and diligence, and various other connected factors.
Having passed muster on all these stringent factors and establishing his
grades consistently, it is a mystery as to why these did not appeal to the
SRB or any of the authorities giving their input reports, i.e. Police,
Probation Officer, the Inspector General of Police and the prison
authorities.
41. It could possibly be that the case of the petitioner, which was one
among a multitude of cases considered in the impugned minutes, was just
another serial number which had to be addressed and not accorded an
individualised assessment.
42. The State has not placed anything on record countering this
assertion of petitioner’s counsel and, in fact, has fairly reiterated the
reviewability of such assertions; relying on V. Sriharan (supra), Ram
Chander (supra), Laxman Nascar, (supra) and Shashi Shekhar (supra).
43. In Sushil Sharma (supra), Division Bench of this Court
categorically held that SRB cannot state that they are not bound by the
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rules and guidelines to which they themselves owe their existence.
Therefore, there is a necessity for due and proper application of mind,
legal justification and lawful sanction.
44. The Supreme Court in Joseph (supra) highlighted “typecasting
convicts through guidelines which are too flexible based crime committed
in distant past resulting in a danger of overlooking the reformative
potential of each individual convict”. In this regard, the Court noted that
insisting on continued punishment without considering the transformation
of a prisoner undermines rationality and fairness. Persistence in penalizing
someone who has reformed and no longer aligns with their past actions
disregards the reality of personal change and violates Article 14 of the
Constitution. A rigid adherence to guidelines that ignore positive conduct
and rehabilitation perpetuates despair, denies the value of good behaviour,
and reflects an unyielding societal harshness, negating the very principle
of reformative justice. Relevant paragraph is extracted as under:
“37. Classifying – to use a better word, typecasting
convicts, through inflexible guidelines, based on
their crime committed in the distant past can result
in the real danger of overlooking the reformative
potential of each individual convict. Grouping
types of convicts, based on the offences they were
found to have committed, as a starting point, may
be justified. However, the prison laws in India –
read with Articles 72 and 161 – encapsulate a
strong underlying reformative purpose. The
practical impact of a guideline, which bars
consideration of a premature release request by a
convict who has served over 20 or 25 years, based
entirely on the nature of crime committed in the
distant past, would be to crush the life force out of
such individual, altogether. Thus, for instance, a
19 or 20 year old individual convicted for a crime,
which finds place in the list which bars premature
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release, altogether, would mean that such person
would never see freedom, and would die within the
prison walls. There is a peculiarity of continuing to
imprison one who committed a crime years earlier
who might well have changed totally since that
time. This is the condition of many people serving
very long sentences. They may have killed someone
(or done something much less serious, such as
commit a narcotic drug related offences or be
serving a life sentence for other nonviolent crimes)
as young individuals and remain incarcerated 20
or more years later. Regardless of the morality of
continued punishment, one may question its
rationality. The question is, what is achieved by
continuing to punish a person who recognizes the
wrongness of what they have done, who no longer
identifies with it, and who bears little resemblance
to the person they were years earlier? It is tempting
to say that they are no longer the same person. Yet,
the insistence of guidelines, obdurately, to not look
beyond the red lines drawn by it and continue in
denial to consider the real impact of prison good
behavior, and other relevant factors (to ensure that
such individual has been rid of the likelihood of
causing harm to society) results in violation of
Article 14 of the Constitution. Excluding the relief
of premature release to prisoners who have served
extremely long periods of incarceration, not only
crushes their spirit, and instils despair, but
signifies society’s resolve to be harsh and
unforgiving. The idea of rewarding, a prisoner for
good conduct is entirely negated.”
(emphasis added)
45. As rightly pointed out, the petitioner’s counsel’s “propensity for
crime” cannot be a random subjective assessment but has to be based on
objective factors. The objective factors are quite well ensconced in the
eligibility conditions, of a convict being in a semi-open prison and even
more stringent requirements to qualify for an open prison. If those factors
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are met in this case, the committing to a semi-open /open prison is done,
and the ‘report card’ of the convict continues to be good, in the opinion of
the Court would be supremely critical factors that ought to imbue any
assessment for premature release.
46. In Khudiram Das v. State of W.B. (1975) 2 SCC 81, the Supreme
Court observed that “the human mind does not function in compartments.”
The Court emphasized that when multiple impressions influence a
decision, they collectively shape the decision-making process, making it
impractical to separate which impressions contributed and which did not.
Thus, when evidence before an authority is likely to impact the outcome,
the Court is disinclined to accept assertions that such material was
excluded from consideration. Relevant paragraph is extracted under:
“15. Now, the proposition can hardly be disputed
that if there is before the District Magistrate
material against the detenu which is of a highly
damaging character and having nexus and
relevancy with the object of detention, and
proximity with the time when the subjective
satisfaction forming the basis of the detention
order was arrived at, it would be legitimate for the
Court to infer that such material must have
influenced the District Magistrate in arriving at
his subjective satisfaction and in such a case the
Court would refuse to accept the bald statement of
the District Magistrate that he did not take such
material into account and excluded it from
consideration. It is elementary that the human
mind does not function in compartments. When it
receives impressions from different sources, it is
the totality of the impressions which goes into the
making of the decision and it is not possible to
analyse and dissect the impressions and predicate
which impressions went into the making of the
decision and which did not. Nor is it an easy
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exercise to erase the impression created by
particular circumstances so as to exclude the
influence of such impression in the decision
making process. Therefore, in a case where the
material before the District Magistrate is of a
character which would in all reasonable
probability be likely to influence the decision of
any reasonable human being, the Court would be
most reluctant to accept the ipse dixit of the
District Magistrate that he was not so influenced
and a fortiori, if such material is not disclosed to
the detenu, the order of detention would be
vitiated, both on the ground that all the basic facts
and materials which influenced the subjective
satisfaction of the District Magistrate were not
communicated to the detenu as also on the ground
that the detenu was denied an opportunity of
making an effective representation against the
order of detention.”
(emphasis added)
47. The petitioner’s counsel relies on the guidelines by the National
Human Rights Commission of September 2003 prescribing mandatory
release after 25 years of incarceration, including remission, being a policy
more beneficial to the accused is also taken into account.
48. In State of Haryana and Ors. v Jagdish (2010) 4 SCC 216, the
Supreme Court underscored the foundational principles of criminal
jurisprudence centred around human dignity, rehabilitation, and the
reformative approach to punishment. It emphasised that while justice
necessitates that the guilty be held accountable, punishment must be
tempered by a humane and socially constructive outlook. The Court
highlighted that the objectives of punishment should focus on reformation
and reintegration, ensuring that clemency and remission policies align
with modern penological theories that view punishment not as retributive
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but as a means to foster rehabilitation and prevent recidivism, taking into
account the convict’s potential for reintegration and the circumstances
surrounding their offence. Relevant paragraphs are extracted as under:
“44. Liberty is one of the most precious and
cherished possessions of a human being and he
would resist forcefully any attempt to diminish it.
Similarly, rehabilitation and social reconstruction
of a life convict, as objective of punishment become
of paramount importance in a welfare State.
“Society without crime is a utopian theory.” The
State has to achieve the goal of protecting the
society from the convict and also to rehabilitate the
offender. There is a very real risk of revenge attack
upon the convict from others. Punishment enables
the convict to expiate his crime and assist his
rehabilitation. The remission policy manifests a
process of reshaping a person who, under certain
circumstances, has indulged in criminal activity
and is required to be rehabilitated. Objectives of
the punishment are wholly or predominantly
reformative and preventive.
45. The basic principle of punishment that “guilty
must pay for his crime” should not be extended to
the extent that punishment becomes brutal. The
matter is required to be examined keeping in view
modern reformative concept of punishment. The
concept of “savage justice” is not to be applied at
all. The sentence softening schemes have to be
viewed from a more human and social science
oriented approach. Punishment should not be
regarded as the end but as only the means to an
end. The object of punishment must not be to wreak
vengeance but to reform and rehabilitate the
criminal. More so, relevancy of the circumstances
of the offence and the state of mind of the convict,
when the offence was committed, are the factors, to
be taken note of.
46. At the time of considering the case of premature
release of a life convict, the authorities may require
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to consider his case mainly taking into
consideration whether the offence was an
individual act of crime without affecting the society
at large; whether there was any chance of future
recurrence of committing a crime; whether the
convict had lost his potentiality in committing the
crime; whether there was any fruitful purpose of
confining the convict any more; the socio-
economic condition of the convict’s family and
other similar circumstances.
47. Considerations of public policy and
humanitarian impulses–supports the concept of
executive power of clemency. If clemency power is
exercised and sentence is remitted, it does not
erase the fact that an individual was convicted of a
crime. It merely gives an opportunity to the convict
to reintegrate into the society. The modern
penology with its correctional and rehabilitative
basis emphasises that exercise of such power be
made as a means of infusing mercy into the justice
system. Power of clemency is required to be
pressed in service in an appropriate case.
Exceptional circumstances e.g. suffering of a
convict from an incurable disease at the last stage,
may warrant his release even at a much early
stage. Vana est illa potentia quae nun quam venit
in actum means–vain is that power which never
comes into play.”
(emphasis added)
49. Salmond, on Jurisprudence1, deliberates on the objectives of
criminal justice, distinguishing between deterrence and reformation. It is
articulated therein that reformation seeks to alter the offender’s character
to reintegrate them as a constructive member of society, focusing on the
individual before the court rather than potential offenders at large. Modern
justice increasingly values this reformative approach, seen in practices
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such as reduced imprisonment, the end of short sentences, and the use of
probation and parole. However, while reform must be considered, its
emphasis must remain balanced. The fundamental principle underlying
the reformative theory emphasizes the rehabilitation of the offender and
the commencement of a new chapter in his life.
50. In Narotam Singh v State of Punjab (1979) 4 SCC 505, the
Supreme Court opined that the reformative approach to punishment
should be an objective of criminal jurisprudence, aiming to foster
rehabilitation without affronting the conscience of the community and
ensuring social justice.
51. The issue between retributive and reformation justice has engaged
the attention of many legal, social, and political scholars. Thomas L.
Pangle the American political scientist in his revisitation of the Laws of
Plato states:
“The punishment is to be inflicted, not for the sake of
vengeance, for what is done cannot be undone, but
for the sake of prevention and reformation.”
Conclusion
52. Considering these facts and circumstances as articulated above, this
Court is therefore of the opinion that the impugned rejection by the SRB
and its approval by the competent authority was not in consonance with
the rules or guidelines applicable to that process, the impugned rejection
order being arbitrary, irrational, illogical and disproportionate, ignoring
relevant material which was there before the SRB.
53. This Court therefore directs that petitioner be released from custody
forthwith.
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54. Copy of this order be sent to the Jail Superintendent for information
and compliance.
55. Accordingly, the petition is disposed of. Pending applications are
disposed of as infructuous.
56. Judgment be uploaded on the website of this Court.
Further Directions
57. A few more aspects which have troubled the Court in the process
adopted by SRB are:
a. The SRB does not meet with the frequency mandated as per
Rules i.e. at least once in three months as per Rule 1249; (extracted
in paragraph 17 above);
b. Recommendation of the SRB along with the decision of the
competent authority is not communicated to prisoner;
58. It is expected that the authorities in question shall ensure that there
is no dilation or omission in this regard in order to not violate the rights of
prisoners. The constitutional safeguards enshrined under Articles 14 and
21 of the Constitution of India must be adhered to with utmost
commitment. Article 14 guarantees equality before the law and the equal
protection of the laws, mandating that no individual shall be discriminated
against or subjected to arbitrary treatment. This foundational right
underscore the principle of fairness, obligating the State to act in a just and
non-discriminatory manner towards all, including those deprived of their
liberty. Article 21, on the other hand, enshrines the right to life and
personal liberty, ensuring that no person shall be deprived of these rights
except according to procedures established by law. These provisions have
been expansively interpreted by the Supreme Court to encompass the right
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to live with dignity, humane treatment of prisoners, and procedural
fairness. In the context of prison administration, any deviation or omission
that compromises these constitutional mandates risks violating the
prisoners’ rights and undermines the rule of law. Therefore, strict
compliance with these principles is essential to uphold justice and the
fundamental human rights of those incarcerated.
59. This aspect has been earlier adverted to by the decision of Division
Bench of this Court in Sushil Sharma v. State (supra), in particular to
paragraph 27, which is extracted in paragraph 21 (a) above.
Post Script
The assistance of Ms. Vrinda Bhandari, counsel for petitioner
and Mr. Sanjeev Bhandari, Standing Counsel for the State, is
well appreciated. SRB procedures require better compliance
and deeper consideration, keeping into account the principles of
reformation and rehabilitation, which form part of criminal
jurisprudence.
Ms.Vrinda Bhandari has handed up a very useful checklist for
the Sentence Review Board to assess the various factors. Since
it is a bona fide, well-intended exercise done by the counsel, the
Court is reproducing the same without modification, as under,
with the hope that this (in some form) can be usefully utilised
by the SRB and the other authorities for assessment of a
premature release case. The checklist is pegged on various
Rules of DPR, as well as case precedents where the Courts have
suggested and mandated certain additional factors. Checklist is
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“The way things are does not determine the way they ought to be”-
Michael J. Sandel, Justice: What’s the Right Thing to Do?
(ANISH DAYAL)
JUDGE
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