Supreme Court Rebukes UP Officers For Blaming State's Advocate For Delay In Processing Remission; Seeks Chief Secretary's Personal Affidavit

The Supreme Court on Monday (September 9) issued notice to the former Principal Secretary of the Prison Administration and Reforms Department of Uttar Pradesh asking him to show cause why proceedings for criminal contempt and perjury should not be initiated against him for filing a false affidavit to explain the delay in considering a remission application.

The Court also asked the Chief Secretary of the State Government to file a personal affidavit to explain the conduct of the State and its officers for delaying the file. The Court also recorded its dissatisfaction that the officers attempted to shift the blame on the advocates appearing for the State.

From the last several proceedings, a bench of Justices Abhay S. Ok and Augustine George Masih observed that the affidavits filed by the Principal Secretary contained contradictory statements from his earlier stance in which he stated that the Chief Minister's Secretariat did not accept the file of the convict for remission since Model Code of Conduct on the occasion of Lok Sabha election was applicable. 

Brief facts on the issue 

As per the brief facts, the issue arose after the Supreme Court had directed the Uttar Pradesh government on April 1 to consider the grant of permanent remission to the convict as per its policy. Subsequently, on May 13, the Court clarified that the Code of Conduct should not come in the way of deciding the issue of remission. However, the State authorities made no efforts in deciding the issue attracting the court's wrath for violating its orders.

The Court subsequently directed the Principal Secretary of the Prisons Department to appear before the Court via video conference to explain the Government's failure to timely decide the remission plea of the convict. On August 12, the Principal Secretary appearing via video conference claimed that the Chief Minister's Secretariat did not accept the files because the Model Code of Conduct was in place. However, subsequently, he took a stand that the order dated May 13 was not communicated to him by the Standing Council. 

Today, the bench again reiterated that the Principal Secretary has taken contradictory stands and stated that the court will go into the issue of who exactly is in breach of the Court's order dated May 13.

What has transpired so far?

Summarising what has transpired so far, Justice Oka stated: "Go to the affidavit filed by this officer on August 25, for the first time, order dated May 13 was communicated. For the first time, on May 25, it was communicated by the Jail Superintendent, Ghaziabad..June 6, the section officer did not open the mail. They waited till the Code of Conduct was over."

ASG KM Nataraj, appearing for the State of UP, informed the Court that the officer has been transferred and disciplinary action has been initiated against him and the Section Officer in this regard.

However, the Court stated that it would initiate criminal contempt unless the officer came clean. 

Justice Oka said: "Still if you want to file correct affidavit, as an officer of the court we will give him the opportunity. You have to tell the truth...We will issue a notice of criminal contempt and we will order full-fledged inquiry that when the advocate communicated the order to the Government, why Section Officer was sleeping from 25 May to 6 June and coincidently he wakes up after the Code of Conduct is over."

This is a pure violation of the order of this court, Justice Oka remarked. 

When ASG Nataraj tried reiterating that due action had been taken against the concerned officer, Justice Oka added that the entire State machinery was responsible. 

He said: "All this is done deliberately. The whole moment the file was paused till June 6 because there was a Code of Conduct. This is in defiance of the order of this Court...He [Principal Secretary] is being made scapegoat by the Government." 

Justice Oka added that a change of stand by the officer will not make him innocuous.

ASG Nataraj pleaded that the Court may not take action this time and it will be ensured that the files are properly communicated to the Government for all future purposes. 

However, the Court rejected any sort of apology. 

What did the Supreme Court order? 

On false affidavit 

Justice Oka dictating the order said: " We have perused the affidavits of Shri Rajesh Kumar Singh dated 14 August, 2024 and 26 August 2024. Prima facie, it appears to us that the stand taken by him in the affidavit is completely contrary to statements made by him through the video conference on 12 August 2024. The statements have been recorded in the said order. Therefore it appears to us that this officer filed a false affidavit and therefore issue notice to him calling upon to show cause why action or criminal contempt should not be initiated against him and why action should not be initiated against him for perjury. 

On May 13, this court passed a specific order. On April 1, the court directed UP to consider the case of the petitioner for grant of permanent remission in accordance with applicable policy and pass appropriate order on or before 10 May, 2024. On 13 May, 2024 this Court clarified Code of Conduct on account of Lok Sabha election does not come in the way of considering the prayer by the petitioner for the grant of remission.

Though there was no application made by the State, this Court extended time till 15 July, 2024 to decide the prayer for permanent remission. On 15 July, when the petitioner appeared before this Court, an application was tendered for an extension of time. That application is on record. The only ground given for seeking extension of time was that the case of the petitioner for considering remission has been forward to concerned authorities...and a decision is awaited.

Now, in subsequent affidavits, filed by Rakesh Kumar Singh, Principal Secretary of Prison Administration and Reforms Department on behalf of the State, the stand has undergone change. In para 5(g) of affidavit dated 14 August 2024, he stated that the order dated 13 May was not officially communicated to the Depondent (Secretary) by the standing counsel and that said order was communicated to the office of the secretary on May 25, 2024 through an email.

What is stated by State Government is an afterthought 

The Court noted: "It is further stated that the note of the same was taken by the Section officer on June 6. The same stand has been reiterated in an affidavit dated 25 August, 2024. Entire blame is shifted on advocate on record representing the State Government by stating the order dated May 13 was not communicated till 25 May, 2024."

As stated earlier in an application for the extension of time dated 13 July 2024, there is not even a word that order dated 13 May was not communicated till 25 May, 2024 and that the Section Officer noted the said order for the time first on 6 June, 2024. Therefore, what is stated by the State Government in both affidavits is clearly an afterthought. The officers of the State were aware that by virtue of order dated 13 May, 2024, this writ petition was listed on July 15, 2024.

"Therefore, it was the duty of the concerned officer of the State to ascertain from the advocate on record for the State of UP what transpired on July 15. We make note here that the jail Superintendent District Jail Gaziababd was fully aware of the order dated 13 May as he is affirmed in affidavit in support of application dated 13 July, 2024. Therefore, it was duty of the Jail Superintendent or any other concerned officer of the State Government to ascertain from the advocate on record to see exactly what transpired on 15 July, 2024. Therefore, it is very unfortunate that the officers of the State now shifted the entire blame on the advocate on record representing the State of UP in this court"

File deliberately kept pending till MCC is over

The Court further stated: "Matter does not rest here as the Jail Superintendent was aware that the case was fixed on 15 July, 2024. Obviously, he must be aware of the order passed on 15 July 2024 and 13 May 2024. In the case that the Jail Superintendent did not receive the order dated 13 May, 2024, till 25 May 2024, that would have been the first averment in the application dated 13 July, 2024.

Prima facie, this case is made out the jail officer was not being aware of order till 25 May, 2024 is completely false. Now, the blame is shifted on Section Officer for not opening email till Jue 6, 2024 sent by jail authorities on May 25, 2025. It is not a coincidence that the date of June 6 has been mentioned. The reason is Code of Conduct came to end on June 6 as noted in order 20 August, 2024."

"As observed in the order dated 20 August, 2024, the affidavit dated 25 August, 2024 lays credence to the fact that indeed, the file was kept pending till Code of Conduct was over. We direct the Chief Secretary of the State of UP to look into the entire episode and file personal affidavit explaining the conduct of State and its officers. The affidavit shall be filed by 24 September and it shall be dealt by this Court on 27 September."

The Court concluded by stating that due to this unfortunate episode, the convict will suffer because his case may not be considered under Section 432 CrPC. However, ASG Nataraj informed the Court that proceedings under Section 432 have been initiated by the State.

The Supreme Court last year noted that UP's inconsistent application of its remission policy was problematic and held that the State must adhere to its established statutes, rules, and policies for remission as any deviation could disadvantage prisoners who lack resources or awareness. In 2022, the Court had directed that the authorities must consider remission once a convict becomes eligible without a formal application from the prisoner for considering remission.

Case Details: Ashok Kumar v. State of Uttar Pradesh & Anr., Writ Petition (Criminal) No. 134/2022

Appearances: Advocates CK Rai (AOR) and Arvind Tewari represented the petitioner and ASG KM Nataraj for Uttar Pradesh Government.