To Consider Premature Release Of Convict, State Policy Prevailing On Date Of Conviction Is Relevant : Supreme Court

The Supreme Court on Tuesday held that in determining the entitlement of a convict to premature release, the policy of the State government on the date of the conviction would have to be the determinative factor. The matter was heard by bench comprising Chief Justice DY Chandrachud, Justice PS Narasimha, and Justice JB Pardiwala. 

The case concerned a man who was convicted for murder in 2002 and sentenced to life imprisonment. Due to the pendency of his trial before the High Court, he was granted an interim bail for 3 weeks. However, in January 2005, the petitioner absconded and was later arrested on 30th March 2010. The petitioner was punished by forfeiting four furloughs on 9th August 2011. Thereafter, in 2017, one of co-accused was released prematurely prompting the petitioner to seek the same. The petitioner submitted that he had undergone 15.6 years of actual sentence and the same came upto 19 years with remission.

The bench, reiterating its finding, stated–

"In determining the entitlement of a convict to premature release, the policy of the state government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide for more beneficial terms, the same should also be borne into mind."

The court found that since the petitioner was in custody since 9th July 1992, the policy applicable would be that of 1992, through which the government of Gujarat made rules for the premature release of prisoners convicted and sentenced to life imprisonment on and after 18 December 1978 after completing 14 years of actual sentence so long as the behaviour of the prisoner has been satisfactory.

As per the facts, on 19 September 2020, the jail advisory board recommended the premature release of the petitioner, taking note of the fact that his behaviour in the jail was good and satisfactory, and that the petitioner had taken skill development training and had also prevented a jailbreak by certain prisoners. The welfare officer also arrived at the conclusion that the petitioner would not commit any crime in the future. The state government rejected the application of premature release on the ground that the petitioner was involved in a murder case over a money dispute and it was not in the interest of society to release him. 

Advocate Rishi Malhotra appeared for the petitioner and Advocate Swati Ghildiyal, standing counsel for the State of Gujarat, appeared for the state. 

The principal objection to the premature release of the petitioner by the state was that while he was released on interim bail for the period of three weeks, he absconded for a period of five years until he was arrested. The court found that the petitioner was punished for his conduct by depriving him of four furloughs. The bench also noted that –

1. The policy of the state government dated 9 July 1992, which was prevalent on the date of the conviction, facilitates the consideration of the case of life convict for grant of premature release after the completion of 14 years of actual sentence;

2. The petitioner has undergone 15.6 years of actual imprisonment (19 years with remission);

3. The co-accused was granted premature release in 2017;

4. The jail advisory board has issued a positive report in spite of which the petitioner has not been released;

Accordingly, CJI DY Chandrachud while dictating the order stated –

"There is no reason why the petitioner should not be considered on the same basis as the co-accused. We are of the considered view that the state government shall freshly consider the application. Since the grant of premature release is an executive function related to Article 162 of the Constitution, we are of the view that it is appropriate for the government to re-evaluate the matter by bearing in mind all the relevant circumstances which have been noted. There is merit in the submission of the petitioner that the fact that the petitioner was involved in a murder involving money dispute is held to be a ground for the rejection of the application of premature release. This would effectively debar him from seeking premature release at any time in the future...After duly applying its mind to all the relevant facts and circumstances, application shall be considered in accordance with the policy of 1992."

Case Title: Hitesh v State of Gujarat | W.P.(Crl.) No. 467/2022 

Citation : 2023 LiveLaw (SC) 72

For Petitioner(s) Mr. Rishi Malhotra, AOR

For Respondent(s) Ms. Swati Ghildiyal, AOR Ms. Devyani Bhatt, Adv. 

Code of Criminal Procedure 1973 - Section 432- Remission- In determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind - Para 4

Remission- Court directs State to consider application in accordance with the policy which held the field on the date of the conviction. 

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