Dr Dhananjaya Y Chandrachud, J
1 The jurisdiction of this Court has been invoked under Article 32 of the
Constitution for the enforcement of the right under Article 21 of the
Constitution, following an order dated 30 July 2021 rejecting the application
of the petitioner for premature release.
Chetan Kumar
2 The petitioner has been convicted for an offence punishable under Section
302 read with Section 34 of the Indian Penal Code 18601 on 17 January 2005
and sentenced to life imprisonment. The judgment of the trial Judge was
affirmed in appeal by the High Court of Judicature at Allahabad on 3 June
2016. The Special Leave Petition under Article 136 of the Constitution was
dismissed by this Court on 20 April 2018.
3 The petitioner had undergone 17 years, 9 months and 26 days of
imprisonment and submitted an application for premature release. The
application for premature release was rejected on 30 July 2021. The order
communicating the rejection of the application which has been passed by the
State government records that the District Magistrate and the
Superintendent of Police Amethi had in their report stated that if the
petitioner is released prematurely, the possibility that this may cause
resentment among the side of the victim cannot be ruled out nor can the
possibility of an offence being committed again by the petitioner be
excluded. The order also states that the petitioner has an “extremist nature”
and the presence of bitterness among the parties cannot be denied.
4 Notice was issued in the petition on 8 November 2021, in pursuance of which
1 “IPC”
a counter affidavit has been filed on behalf of the State of Uttar Pradesh.
5 We have heard Mr K L Janjani, counsel for the petitioner and Mr Ardhendu
Mauli Kumar Prasad, Additional Advocate General for the State of Uttar
Pradesh.
6 The first principle which must be noted, while adjudicating upon the petition
is that the application for premature release has to be considered on the
basis of the policy as it stood on the date when the petitioner was convicted
of the offence. This principle finds reiteration in several judgments of this
Court such as State of Haryana & Ors. vs Jagdish2. The most recent of
them is the decision in State of Haryana and Others vs Raj Kumar @
Bitu3.
7 The order which has been passed by the State government in the present
case is bereft of an application of mind to relevant circumstances bearing on
whether the petitioner should be released prematurely. The order contains
general observations to the effect that the release may result in resentment
on the side of the victim, but this is a general consideration which would
govern virtually all criminal offences where a person stands convicted of a
serious offence, as in the present case under Section 302 read with Section
34 of the IPC. The order does not contain any reference whatsoever to
2 (2010) 4 SCC 216 3 (2021) 9 SCC 292
whether the petitioner possesses any prior criminal history, save and except
for the present case. Similarly, the order is completely silent on the conduct
and behavior of the petitioner in jail and after he was convicted of the
offence. The relevant considerations bearing upon whether the release of the
petitioner would pose a danger to society have not been adverted to. There
has to be a considered application of mind to the facts of each case.
8 In the circumstances, the order which has been passed rejecting the
application of the petitioner for premature release suffers from a complete
and patent non-application of mind.
9 For the above reasons, we allow the petition by setting aside the impugned
order dated 30 July 2021 passed by the Government of Uttar Pradesh. We
direct that the application of the petitioner for premature release shall be
reconsidered on the basis of the policy as it stood on 17 January 2005, when
the petitioner was convicted of an offence under Section 302 read with
Section 34 of the IPC. The application shall be considered afresh without the
petitioner being required to file any fresh application for premature release.
An order shall be passed after taking into account all relevant facts and
circumstances including those which have been adverted to above. This
exercise shall be completed within a period of two months from the date of
this order.
10 The petition is accordingly disposed of.
11 Pending applications, if any, stand disposed of.
[Dr Dhananjaya Y Chandrachud]
[Surya Kant]
[Vikram Nath]
New Delhi; 10 February , 2022 CKB