Premature release allowed on the basis of good conduct in jail: Re-iterates SC
In the case of Satish @ Sabbe Vs State of UP [Special Leave Petition (CRL.) NO. 7369 of 2019] Supreme Court while releasing 2 convicts on probation held that 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 apprehension of the victims and witnesses. The appeal has been filed by the convicts Satish and Vikky against the order of Allahabad High Court through which their appeal against conviction under Section 364A of the Indian Penal Code, 1860 and consequential sentence of life imprisonment, was turned down. In 2002 the Appellants had kidnapped Vishal Sarawat (the victim) by threating with pistol and administering tablets. After negotiation with the victims’ father ransom of 32 Lakh was agreed. The victims’ father had informed the police who successfully raided the house and subsequently arrested the Appellants. After examining all the evidences on record, it was established beyond doubt the crime was committed by the Appellants for which they were sentenced to life imprisonment and a fine of Rs 10,000/- along with two years imprisonment under the Arms Act. On further appeal, the High Court upheld the life sentence but dismissed the conviction under the Arms Act. The Appellants had applied for a premature release in 2019 under Section 2 of the UP Prisoners Release on Probation Act, 1938 which was rejected by the District Magistrate. Nevertheless, keeping in mind the long period of incarceration undergone by the petitioners and infirmities in consideration of their prayers for premature release as highlighted by their counsels, Supreme Court had directed fresh consideration of their cases for premature release. It was noted that the Respondent-state had rejected the premature release application in view of earlier evaluation done. It was submitted by the Respondent that the Probation Board considered afresh Satish’s case and has refused probation for the reasons that – first, the crime is heinous, second, petitioner is hardly 53-54 years old and can repeat the crime, third, informant has serious apprehensions against his release, and fourth, governmental authorities have adversely commented upon his release considering its direct adverse effect on the society. Likewise, for Vikky, on grounds of his age of 43 years, healthy physical condition, apprehensions of informant and nature of crime; his mercy petition had not been recommended. It was argued by the Appellant that although the impugned orders have been purportedly passed under the Jail Manual and UP Prisoners Release on Probation Act, 1938; but, the mandatory factors of ‘antecedents’ and ‘conduct in prison’ have totally been overlooked, and instead various extraneous factors have been relied upon to justify the mechanical action. The court held that there is no doubt trite law that no convict can claim remission as a matter of right. What had been sought and directed by this Court through repeated orders was not premature release itself, but due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for executive authorities to surreptitiously subvert its mandate. Where the authorities are found to have failed to discharge their statutory obligations despite judicial directions, it would then not be inappropriate for a Constitutional Court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus.
These petitions which were heard through video conferencing have been filed by Satish and Vikky @ Vikendra alias Virendra seeking special leave to appeal against a common order dated against conviction under Section 364­A of the Indian Penal Code 1860 and consequential sentence of life The undisputable facts of the case are that on the evening of 12.06.2002 when one Vishal Sarawatwas on his way to Ramvir’s house where he was threatened with a pistol and forcibly was subsequently coerced to write a letter dated 04.07.2002 to his father seeking a ransom of Rs 2 crores. In the meanwhile the victim’s police regarding his son. Vikky telephoned the victim’s father on help of Ramvir as an intermediary and cautioned him against complainant to Ramvir’s home on 14.07.2002. Both the petitioners were present in the house with Vikky having counted the ransom rescued and Rs.31.70 lakhs were recovered. Although the police witnessed them talking to Ramvir and VishalAshok Satish and Vikky managed to escape from the spot. They were however The case was after investigation committed to the Additional Sessions Judge Fast Track Court I Ghaziabad. Eleven witnesses deposed on behalf of the prosecution which included the victim complainant bystanders and various police officers. In addition one Call Detail Records seized ransom money and a revolver recovered at Placing reliance on a wealth of electronic evidence the trial each accused for the crime of kidnapping for ransom besides All four accused appealed against their convictions before the for ransom have been proved beyond doubt. But the High Court The High Court thus dismissed the appeals and confirmed the sentence of life imprisonment under Section 364­A of IPC but The aggrieved petitioners Vikky and Satish have filed separate Special Leave Petitions before us which have been heard at considerable length. On 06.09.2019 this Court tacitly declined to interfere with their conviction for kidnapping and accordingly regarding the petitioners’ entitlement to premature release. The respondent­State on 18.12.2019 inter­alia informing that Satish’s proposal for premature release under Section 2 of the UP Prisoners Release on Probation Act 1938 was still under consideration whereas Nevertheless keeping in mind the long­period of incarceration prayers for premature release as highlighted by their counsels this Court on 08.06.2020 directed fresh consideration of their cases for “Taking into consideration the submissions made by the learned counsel appearing for the parties we direct the learned counsel No.73619 which is stated to be pending before the State as Virendra) in Special Leave Petition No.8326 of 2019 which It was brought to the notice of this Court on the next date of hearing that the respondent­State had without due application of mind passed an unreasoned Order dated 13.07.2020 rejecting on 29.01.2018. This was contended to be in contravention of the individual dignity. Similar allegations of evasive compliance and mechanical rejection of Vikky’s case for premature release vide Government Order dated 29.07.2020 despite his long incarceration of the order dated 06.09.2019 of this Court learned counsel(s) for 10. Finding that earlier orders directing fresh consideration of petitioners’ cases for premature release had not been faithfully complied with this Court on 25.08.2020 once more directed the reasoned orders within a week. Since the petitioner’s prayer for premature release has again been declined vide Government Orders dated 01.09.2020 hence learned counsel for the parties have been 11. Over the course of the final hearing on 08.09.2020 it has been submitted by learned State counsel that the Probation Board considered afresh Satish’s case and has refused probation for the reasons that first the crime is heinous second petitioner is hardly 53­54 years old and can repeat the crime third informant has serious apprehensions against his release and fourth governmental direct adverse effect on the society. Likewise for Vikky on grounds of his age of 43 years healthy physical condition apprehensions of informant and nature of crime his mercy petition had not been rationale and reasons embodied in both the Government Orders. It Act 1938 but the mandatory factors of ‘antecedents’ and ‘conduct in non­application of mind. The lengthy imprisonment lack of antecedents and good conduct in jail were again underscored by peaceful and fearless life without free­roaming criminals creating is the foundation of reformative theory which propounds that a civilised society cannot be achieved only through punitive attitudes and vindictiveness and that instead public harmony brotherhood and mutual acceptability ought to be fostered. Thus first­time offenders 14. The Constitution of India through Articles 72 and 161 embody Governor of a State to suspend remit or commute sentences of convicts. Further Section 432 of the Code of Criminal Procedure 15. The UP Prisoners Release on Probation Act 1938 also lays down 401 of the Code of Criminal Procedure 1898where his conduct in the prison that he is likely to abstain from crime and lead a peaceable life if he is released from prison Government for this purpose provided such other person institution matter of right.2 However in the present case the circumstances are existing provisions regarding premature release. Clearly once a law authorities are found to have failed to discharge their statutory obligations despite judicial directions it would then not be three­factor evaluation of antecedents conduct during 2 of the UP Prisoners Release on Probation Act 1938 have been given and are vague cursory and merely unsubstantiated opinions of state the original crime can’t be the sole basis for refusing premature release must be based on antecedents as well as conduct of the 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 and 43 years old they still have substantial years of life remaining but that doesn’t prove that they retain a propensity for committing despite the petitioners having met all statutory requirements for down by this Court in Shor v. State of Uttar Pradesh4 which has “A reading of the order dated 22.01.2018 shows that the Joint of Police and the District Magistrate confirming that the 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 It seems to us that the petitioners’ action of kidnapping was viewed through a prism of positivity. They retain the ability to re­ disciplined and normal human life. Such a hopeful expectation is further concritised by their conduct in jail. It is revealed from the Vikky) that during the course of his incarceration in jail he has passing his Intermediate Examination learning computer hardware obtaining a degree in Bachelor of Arts as well as numerous certificates infood and nutrition human rights (vi environmental studies. Vikky’s conduct shines as a bright light of hope and redemption for many other incarcerated prisoners nearly two decades of incarceration and have thus suffered the consequences of their actions a balance between individual and premature release subject to their continuing good conduct. This 22. For the reasons stated above the Special Leave Petitions are disposed of with a direction that the petitioners be released on probation in terms of Section 2 of the UP Prisoners Release on Probation Act 1938 within a period of two weeks. The respondent­ State shall be at liberty to impose conditions as it may deem fit to