Consider Deletion Of Condition Prohibiting Consideration Of Premature Release, If No Application/Request Presented: Allahabad HC To UP Govt.

Having perused the Policy framed by UP Government, the bench of Justice Pankaj Naqvi and Justice Vivek Agarwal observed that the policy dated 01^st August 2018 contains a clause that prohibits the consideration of premature release, if the same is not accompanied by any application / request.

"The said condition is in teeth of the statute", observed the Court.

Further, the Court also remarked,

"We could have quashed the said condition but as the same was neither noticed by us nor was an issue involved, we deem appropriate to direct the State Government to consider the deletion of the said condition."

The matter before the Court

The Court was hearing the plea of a petitioner who sought quashing of an order dated 2^nd March 2020 passed by the State refusing to release the petitioner under Section 433 of the Code and also sought quashing of the order dated 29^th January 2021, whereby request for release was again declined.

[NOTE: Section 433 of CrPC confers power on the State Government to commute a sentence of death for any other punishment under the IPC; a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; a sentence of simple imprisonment, for fine.]

He was sentenced to life imprisonment on 16^th June 2007 in connection with offences under Sections 302/34/504/506 IPC and he is presently in jail and has undergone incarceration of more than 17 years.

Upon completing 16 years of custody, the mother of the petitioner staked a claim for release of her son under Section 433 of the Code on 27^th July 2019 before the State Government.

But as the claim was not decided, the petitioner preferred a Criminal Misc. Writ Petition, which came to be disposed on 30^th September 2019 with a direction to decide the claim within 3 months.

Pursuant thereto, the claim came to be rejected on 2^nd March 2020, impugned in the present petition.

The claim was rejected by the State Government on the sole ground that the total detention period of the petitioner was only 12 years 10 months 29 days as against the requisite period of 16 years (without remission) under the policy framed by the Government.

However, the period was wrongly calculated on account of an error committed by the C.J.M. concerned as he did not enclose the custodial warrant dated 18^th March 998 in his records.

This issue came to be resolved finally on 15^th December 2020, calculating the detention as more than 17 years.

Subsequently, the impugned order dated 29^th January 2021 by the State Government had rejected the claim on the ground of criminal history and on allegations of threat perception.

It was argued before the Court that he had served more than 17 years of incarceration with no appeal either by State or by the family of the victim.

In so far apprehension of the family of the victim was concerned that they would be at potential risk if the petitioner is released, it was argued that the same was not a prescribed parameter for rejection of the claim under the G.O. dated 1^st August 2018.

Court's observations

In this backdrop, the Court analyzed the Case Record and did not find any conviction of the petitioner as a hired assassin for contract killing.

Further, the Court also rejected the allegations of threat perception for the reason that it was not enlisted as a prohibition under Clause 3 of the Government policy from consideration under Section 433 of the Code

Moreover, the Court remarked,

"Even though the power under Section 433 of the Code may be a discretionary/sovereign, yet once the State has conceived a policy to release convicts then it is obliged to consider a request for premature release on the basis of the policy."

Importantly, the Court also remarked,

"Once the State in its wisdom has framed a policy to confer the benefit of premature release to either a class of convicts or an individual convict, provided their cases do not fall within the prescribed prohibited category as laid in the policy, then it is expected of the State to consider such cases in a manner known to law within the prescribed parameters."

Lastly, the order dated 29^th January 2021 was set aside/quashed and the matter was remanded to the Competent Authority to consider the release of the petitioner afresh under Section 433 of the Code, positively within a month.

Case title - Satyavrat Rai v. State of U.P. and others [Crl. M.W.P. No.8418 of 2020]

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