Dr Dhananjaya Y Chandrachud, CJI
1 On 6 September 2022, this Court in its judgment in Rashidul Jafar @ Chota Vs
State of Uttar Pradesh & Anr1 issued a slew of directions governing the
premature release of persons sentenced to suffer imprisonment for life
consequent upon their conviction under diverse provisions of the Indian Penal
Code.
2 Following the above decision, this Court has been repeatedly moved in petitions
under Article 32 of the Constitution of India for securing the premature release
of individual convicts because their cases for premature release have not been
considered.
3 Under the Uttar Pradesh Prisoners (Release on Probation) Act 1938, cases for
Digitally signed by premature release of prisoners sentenced to imprisonment for life andGULSHAN KUMAR ARORA
undergoing the sentence in the prisons of the State are considered under Form
‘A’. The State of Uttar Pradesh formulated the Uttar Pradesh Prisoners (Release
on Probation) Rules 1938. Rule 4 of the Rules is in the following terms :-
“4. Eligibility for release.—Any prisoner other than a prisoner
specified in Rule 3, may be eligible for consideration by the State
Government for release on licence--
(i) if he is a prisoner to whom Section 433-A of the Code of
Criminal Procedure, 1973 applies and has served imprisonment
for a total period of fourteen years;
(ii) if he is a prisoner sentenced to imprisonment for life to whom
Section 433-A of the Code of Criminal Procedure, 1973 does not
apply and has served imprisonment for a total period of fourteen
years with remissions; and
(iii) in any other case if he has served one-third without
remissions of the period of imprisonment to which he was
sentenced.”
The process of premature release was, thus, being considered in terms of the
above provision.
4 Apart from the above provisions, a ‘Nominal Roll’ of prisoners is prepared in
terms of Section 432 read with Section 433A of the Code of Criminal Procedure
19732 and paragraph 198 of the Uttar Pradesh Jail Manual (subsequently
replaced by Para 180 of the Jail Manual 2022). Moreover, an ‘Infirmity Roll’ of
prisoners is prepared in terms of Section 432 of the CrPC read with paragraphs
195, 196 and 197 of the Uttar Pradesh Jail Manual (replaced by paragraphs 177
to 179 of the Jail Manual 2022) governing the premature release of sick and
disabled persons detained in prisons in the State. Mercy petitions presented by
convicts or by their relatives, as the case may be, under Article 161 of the
2 “CrPC”
Constitution are also considered by the Governor of the State. The State of Uttar
Pradesh has formulated a Standing Policy for premature release of prisoners
sentenced to suffer imprisonment for life covered by Article 161 of the
Constitution of India. The State Government formulated a Standing Policy on 1
August 2018. The policy was subsequently amended on 27 May 2022.
5 In several decisions of this Court, it has been held that the case of a convict for
premature release is governed by the applicable policy on the date of conviction
[State of Haryana Vs Jagdish3 and State of Haryana Vs Raj Kumar4].
6 The Standing Policy of the State of Uttar Pradesh as formulated on 1 August
2018 (as amended in 2021) contained a prohibition on the grant of premature
release to convicts who had not completed the age of 60 years. The validity of
the restriction was challenged before this Court in a batch of cases under Article
32 of the Constitution which eventually led to the judgment of Rashidul Jafar
(supra). In the subsequent policy dated 27 May 2022, the bar on considering
cases for premature release before a convict attains the age of 60 years stand
lifted. This Court has hence directed that while, as a general principle, the policy
which was in existence on the date of the conviction would govern the
consideration of each case for premature release, in the event that a more
liberalized policy is instituted subsequently, the case should be considered on
the basis of the more liberalised provision.
7 Despite the judgment of this Court in Rashidul Jafar, cases were being
repeatedly brought to this Court under Article 32 of the Constitution where
3 (2010) 4 SCC 216 4 (2021) 9 SCC 292
despite the convict having fulfilled the conditions of eligibility for the grant of
premature release, cases were not being dealt with in terms of the policy.
8 On 5 January 2023, while entertaining the present case, this Court issued a
direction requiring the Director General of Police to file an affidavit explaining
the following :
“(i) The steps which have been taken in pursuance of the decision
of this Court in Rashidul Jafar @ Chota (supra) for considering
cases for pre-mature release and the institutional arrangements
which have been put into place;
(ii) How many convicts are eligible for being considered for pre-
mature release, district-wise, in the State of Uttar Pradesh;
(iii) How many cases have been considered for pre-mature release
since the decision of this Court in Rashidul Jafar @ Chota
(supra);
(iv) How many cases remain to be considered; and
(v) The time period within which the cases shall be considered.”
9 In pursuance of the above direction, an affidavit has been filed by the Director
General of Prisons. Besides adverting to the regime formulated in the State of
Uttar Pradesh (as noted in the earlier part of this order), the affidavit sets out
District-wise data of convicts eligible for being considered for premature release
and the number of cases pending consideration. As of 31 December 2022, there
are 1,15,163 prisoners in the State of Uttar Pradesh out of whom 88,429 are
under trial prisoners. There are 26,734 convicts of whom 16,262 are undergoing
a sentence of life imprisonment. The affidavit states that 2,228 convicted
prisoners have completed 14 years of actual imprisonment (in terms of the Rules
of 1938 which were prevalent on the date of the conviction) and are eligible for
being considered for premature release. The following statement indicates the
stage at which these cases are pending consideration for the grant of premature
release.
“S No Particulars of eligible cases under Number
consideration at different level
1 Cases pending under Form-A 1307
2 Cases pending under Nominal Roll 99
3 Cases pending under the Standing Policy 31
4 Cases pending under the Standing Policy 31
5 Cases pending consideration under more than 760
one *head: Form-A/Nominal Roll/Standing
Policy/ Mercy Petition
TOTAL 2228”
10 The affidavit filed by the Director General of Prisons indicates that in the
preceding five years, 3,729 prisoners have been released in the State of Uttar
Pradesh under various arrangements for premature release. Moreover, it has
been stated that in terms of the amended policy, prisoners eligible for
premature release are released on ten annual occasions, namely :
“Republic Day (26th January), Women's Day (08th March), World
Health Day (07th April), Labour Day (01st May), World Yoga Day
(21st June), Independence Day (15th August), Teacher's Day (05th
September), Gandhi Jayanti (02nd October), International Tolerance
Day (16th November) and International Human Rights Day (10th
December).”
Between 6 September 2022 and 31 December 2022, the cases of 731 convicts
were considered for premature release.
11 The specific grievance which has been brought before this Court pertains to 50
prisoners. In respect of these 50 prisoners, the tabulated statement annexed to
the affidavit indicates the status of the consideration of those cases :
“Sl No PARTICULARS IN NUMBVERS (For premature release)
1 Total No. of prisoners released 03
2 No. of cases pending District Magistrate Level 05
3 No. of cases pending at Headquarters, Prisons 25*
*(Out of these 25 prisoners, the Report for
premature release of 21 prisoners is being sent
to the State Government after being
considered by the meeting of the Probation
Board on 24/25.01.2023 and the Reports of 4
prisoners are pending consideration at the
Prisons Headquarter level)
4 No. of cases pending at the level of State 12
Government
5 No. of cases rejected by the State Government 02
6 No. of ineligible prisoners (14 years of 01
mandatory imprisonment not completed)
7 Acquitted by Apex Court 01
8 Release on Completing Sentence 01
TOTAL 50”
12 Mr Rishi Malhotra, counsel has been requested by this Court to assist as Amicus
Curiae. The note submitted by the Amicus Curiae indicates that the basic
problem lies in the State Government adopting a pick and choose policy. The
Amicus Curiae submits that though the conviction by the trial court is prior to 1
August 2018 (the date on which the Standing Policy was originally notified),
instead of applying the Uttar Pradesh Prisoners Act, 1938 in terms of which a
convict who has undergone 14 years actual sentence is eligible for premature
release, the authorities await the convict undergoing an actual sentence of 16
years so as to consider the case of premature release in terms of the
subsequent policy.
13 The State having formulated Rules and a Standing Policy for deciding cases of
premature release, it is bound by its own formulations of law. Since there are
legal provisions which hold the field, it is not open to the State to adopt an
arbitrary yardstick for picking up cases for premature release. It must strictly
abide by the terms of its policies bearing in mind the fundamental principle of
law that each case for premature release has to be decided on the basis of the
legal position as it stands on the date of the conviction subject to a more
beneficial regime being provided in terms of a subsequent policy determination.
The provisions of the law must be applied equally to all persons. Moreover,
those provisions have to be applied efficiently and transparently so as to obviate
the grievance that the policy is being applied unevenly to similarly
circumstanced persons. An arbitrary method adopted by the State is liable to
grave abuse and is liable to lead to a situation where persons lacking resources,
education and awareness suffer the most.
14 Out of the 50 persons whose cases have been brought to the notice of this
Court, as stated earlier, three have been released, one has been acquitted and
one has been released on completing the sentence. In the case of two persons,
their premature release has been rejected. One person is stated to be ineligible
for premature release not having completed fourteen years of mandatory
imprisonment. Of the remaining pending cases, five cases are pending at
District Magistrate level; twenty five are pending at the Headquarters (Prisons)
while twelve are pending with the State Government.
15 All the pending cases shall be disposed of on or before 30 April 2023 in terms of
the above directions and a report of compliance shall be filed before this Court
on affidavit by the Director General of Prisons.
16 The Miscellaneous Application shall be listed for verifying compliance on 4 May
2023.
[Dr Dhananjaya Y Chandrachud]
[Pamidighantam Sri Narasimha]
[J B Pardiwala] New Delhi; February 6, 2023. -GKA-
Miscellaneous Application No. 2169/2022 in W.P.(Crl.) No. 36/2022
(Arising out of impugned final judgment and order dated 11-03-2022 in W.P.(Crl.) No. No. 36/2022 passed by the Supreme Court Of India)
RAJKUMAR Petitioner(s)
VERSUS
THE STATE OF UTTAR PRADESH Respondent(s)
(IA No. 130844/2022 – CLARIFICATION/DIRECTION IA No. 179665/2022 GRANT OF BAIL)
Date : 06-02-2023 These matters were called on for hearing today.
For Petitioner(s) Mr. Nagendra Singh, Adv.
Ms. Akansha, Adv.
Mr. Ashish Pandey, Adv.
Mr. Naman Raj Singh, Adv.
Dr. Amardeep Gaur, Adv.
M/S. V. Maheshwari & Co., AOR
For Respondent(s) Mr. Vishnu Shankar Jain, AOR
Mr. Rishi Malhotra, AOR
UPON hearing the counsel the Court made the following
O R D E R
Operative part of the signed reportable judgment reads as under :
“12 Mr Rishi Malhotra, counsel has been requested by this Court to
assist as Amicus Curiae. The note submitted by the Amicus
Curiae indicates that the basic problem lies in the State
Government adopting a pick and choose policy. The Amicus
Curiae submits that though the conviction by the trial court is
prior to 1 August 2018 (the date on which the Standing Policy
was originally notified), instead of applying the Uttar Pradesh
Prisoners Act, 1938 in terms of which a convict who has
undergone 14 years actual sentence is eligible for premature
release, the authorities await the convict undergoing an actual
sentence of 16 years so as to consider the case of premature
release in terms of the subsequent policy.
13 The State having formulated Rules and a Standing Policy for
deciding cases of premature release, it is bound by its own
formulations of law. Since there are legal provisions which hold
the field, it is not open to the State to adopt an arbitrary
yardstick for picking up cases for premature release. It must
strictly abide by the terms of its policies bearing in mind the
fundamental principle of law that each case for premature
release has to be decided on the basis of the legal position as it
stands on the date of the conviction subject to a more beneficial
regime being provided in terms of a subsequent policy
determination. The provisions of the law must be applied
equally to all persons. Moreover, those provisions have to be
applied efficiently and transparently so as to obviate the
grievance that the policy is being applied unevenly to similarly
circumstanced persons. An arbitrary method adopted by the
State is liable to grave abuse and is liable to lead to a situation
where persons lacking resources, education and awareness
suffer the most.
14 Out of the 50 persons whose cases have been brought to the
notice of this Court, as stated earlier, three have been released,
one has been acquitted and one has been released on
completing the sentence. In the case of two persons, their
premature release has been rejected. One person is stated to be
ineligible for premature release not having completed fourteen
years of mandatory imprisonment. Of the remaining pending
cases, five cases are pending at District Magistrate level; twenty
five are pending at the Headquarters (Prisons) while twelve are
pending with the State Government.
15 All the pending cases shall be disposed of on or before 30 April
2023 in terms of the above directions and a report of compliance
shall be filed before this Court on affidavit by the Director
General of Prisons.
16 The Miscellaneous Application shall be listed for verifying
compliance on 4 May 2023.”
(Signed reportable judgment is placed on the file)