SATISH @ SABBE versus THE STATE OF UTTAR PRADESH on 30 September 2020

SATISH @ SABBE

v.

THE STATE OF UTTAR PRADESH

(Special Leave Petition (Crl.) No. 7369 of 2019)

SEPTEMBER 30, 2020

[N. V. RAMANA, SURYA KANT ANDHRISHIKESH ROY, JJ.]

Uttar Pradesh Prisoners Release on Probation Act, 1938:

s.2 – Pre-mature release – Entitlement – Criteria – Held: Lengthof sentence or gravity of the original crime can’t be the sole basisfor refusing pre-mature release – First-time offenders ought to beliberally accorded a chance – Any assessment regarding predilectionto commit crime after release must be based on antecedents as wellas conduct of the prisoners in jail and not on his age orapprehensions of the victims and witnesses – In the present casethree-factor evaluation of (i) antecedents (ii) conduct duringincarceration and (iii) likelihood to abstain from crime have beengiven a complete go-by – The prisoners are directed to be releasedon probation in terms of s.2, subject to their continuing goodconduct – The State shall be at liberty to impose conditions – Theorder of pre-mature release can be recalled in the event of any futuremisconduct or breach.

Sentence/Sentencing:

Reformative principles – A civilised society cannot beachieved only through punitive attitude and vindictiveness – Firsttime offenders ought to be accorded chance to repent their pastand look-forward to a bright future.

Disposing of the Special Leave Petitions, the Court HELD: 1. Whilst it is true that society has a right to leada peaceful and fearless life, without free-roaming criminalscreating havoc in the lives of ordinary peace-loving citizens. Butequally strong is the foundation of reformative theory whichpropounds that a civilised society cannot be achieved onlythrough punitive attitudes and vindictiveness; and that insteadpublic harmony, brotherhood and mutual acceptability ought to

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Abe fostered. Thus, first-time offenders ought to be liberallyaccorded a chance to repent their past and look-forward to abright future. [Para 13][28-D-E]

Maru Ram v. Union of India (1981) 1 SCC 107 :[1981] 1 SCR 1196 – relied on.

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2. The Constitution of India through Articles 72 and 161,embody these reformative principles by allowing the Presidentof India and the Governor of a State to suspend, remit orcommute sentences of convicts. Further, Section 432 of theCode of Criminal Procedure, 1973 streamlines such powers byClaying down procedure and pre-conditions for release. The onlyembargo under Section 433-A of CrPC is against the release ofpersons sentenced to life imprisonment till they have served atleast fourteen years of their actual sentence. The UP PrisonersRelease on Probation Act, 1938 also lays down the principlesupon which such decisions to release on probation are required Dto be taken. [Paras 14 and 15][28-F-G]

3. It is no doubt trite law that no convict can claimremission as a matter of right. However, in the present case,the circumstances are different. What had been sought anddirected by this Court through repeated orders was notEpremature release itself, but due application of mind and areasoned decision by executive authorities in terms of existingprovisions regarding premature release. Once a law has beenmade by the appropriate legislature, then it is not open forexecutive authorities to surreptitiously subvert its mandate.FWhere the authorities are found to have failed to discharge theirstatutory obligations despite judicial directions, it would then notbe inappropriate for a Constitutional Court while exercising itspowers of judicial review to assume such task onto itself anddirect compliance through a writ of mandamus. [Para 16][29-D- F]G

Swamy Sahraddanada v. State of Karnataka (2008) 13SCC 767 : [2008] 11 SCR 93 – relied on.

4. In the present case, the three-factor evaluation of (i)antecedents (ii) conduct during incarceration and (iii) likelihoodto abstain from crime, under Section 2 of the UP PrisonersH

Release on Probation Act, 1938, have been given a completego-by. These refusals are not based on facts or evidence, andare vague, cursory, and merely unsubstantiated opinions of Stateauthorities. [Para 17][29-G; 30-A]

5. Length of the sentence or the gravity of the originalcrime can’t be the sole basis for refusing premature release. Anyassessment regarding predilection to commit crime upon releasemust be based on antecedents as well as conduct of the prisonerwhile in jail, and not merely on his age or apprehensions of thevictims and witnesses. As per the State’s own affidavit, theconduct of both petitioners has been more than satisfactory.They have no material criminal antecedents, and have servedalmost 16 years in jail (22 years including remission). Althoughbeing about 54 and 43 years old, they still have substantial yearsof life remaining, but that doesn’t prove that they retain apropensity for committing offences. The respondent-State’srepeated and circuitous reliance on age does nothing but defeatthe purpose of remission and probation, despite the petitionershaving met all statutory requirements for premature release.[Para 18][31-B-C]

Zahid Hussain v. State of West Bengal (2001) 3 SCC750 : [2001] 2 SCR 442 ; Shor v. State of UttarPradesh (2020) SCC OnLine SC 626 ; Munna v. Stateof Uttar Pradesh (Order dated 21.08.2020 in WP(Crl) 4 of 2020) – relied on.

6. In view of the offence of the Appellant and given theirage, their case ought to be viewed through a prism of positivity.They retain the ability to re-integrate with society and can spendmany years leading a peaceful, disciplined, and normal humanlife. Such a hopeful expectation is further concritised by theirconduct in jail. [Para 20][31-B-C]

7. In the present case, considering how the petitionershave served nearly two decades of incarceration and have thussuffered the consequences of their actions; a balance betweenindividual and societal welfare can be struck by granting thepetitioners conditional premature release, subject to theircontinuing good conduct. This would both ensure that liberty of A

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Athe petitioners is not curtailed, nor that there is any increasedthreat to society. Suffice to say that this order is not irreversibleand can always be recalled in the event of any future misconductor breach by the petitioners. The petitioners be released onprobation in terms of Section 2 of the UP Prisoners Release onProbation Act, 1938. The respondent-State shall be at liberty toBimpose conditions as it may deem fit to balance public safety withindividual liberty. [Paras 21 and 22][31-E-G]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Special LeavePetition (Criminal) No. 7369 of 2019

DFrom the Judgment and Order dated 28.04.2017 of the HighCourt of Allahabad in Criminal Appeal No. 99 of 2005.

With

Special Leave Petition (Crl.) No. 8326 of 2019

EVinod Diwakar, AAG, Talha Abdul Rahman, Kushagra Pandey,Mohd. Shaz Khan, Udit Atul Konkanthankar, Rohit Kumar Singh,Sarvesh Singh Baghel, B.N. Dubey, Ms. Pooja Singh, Ms. ShivranjaniRalawata, Advs. for the appearing parties.

The Judgment of the Court was delivered by FSURYA KANT, J.

1. These petitions, which were heard through video conferencing,have been filed by Satish and Vikky @ Vikendra alias Virendra, seekingspecial leave to appeal against a common order dated 28.04.2017 ofthe Allahabad High Court through which their appeal against convictionGunder Section 364-A of the Indian Penal Code, 1860 (hereinafter, “IPC”)and consequential sentence of life imprisonment, was turned down.

FACTS

2. The undisputable facts of the case are that on the evening of12.06.2002, when one Vishal Sarawat (the victim) was on his way toH

Facts

meet a friend, he was stopped by an acquaintance - Ramvir Rana whoasked him for a lift to his house. The unsuspecting victim walked intoRamvir’s house where he was threatened with a pistol and forciblyadministered tablets by the present petitioners and one Ashok. Vishalwas subsequently coerced to write a letter dated 04.07.2002 to hisfather, seeking a ransom of Rs 2 crores. In the meanwhile, the victim’sfather - Nepal Singh (the complainant) filed a missing report with thepolice regarding his son. Vikky telephoned the victim’s father on10.07.2002, pretending to be one ‘Shekhar’. He exhorted him to seekhelp of Ramvir as an intermediary and cautioned him againstapproaching the police. After a series of correspondences, the ransomwas renegotiated to Rs 32 lakhs, which was physically brought by thecomplainant to Ramvir’s home on 14.07.2002. Both the petitioners werepresent in the house, with Vikky having counted the ransom money.Upon assurance that his son would be safely sent back home by thatevening, the complainant passed on information to the police whoimmediately raided the house. Ramvir was arrested, Vishal was rescuedand Rs.31.70 lakhs were recovered. Although the police witnessed themtalking to Ramvir and Vishal (victim); Ashok, Satish and Vikky managedto escape from the spot. They were, however, subsequently arrestedon 16.07.2002 and charged for the offence of kidnapping for ransom.

3. The case was, after investigation, committed to the AdditionalSessions Judge, Fast Track Court – I, Ghaziabad. Eleven witnessesdeposed on behalf of the prosecution, which included the victim,complainant, bystanders, and various police officers. In addition, onewitness was called by the Court itself. Incriminating voice recordings,Call Detail Records, seized ransom money, and a revolver recoveredat the instance of Vikky were also brought on record. The accuseddenied all charges and examined three defence witnesses.

4. Placing reliance on a wealth of electronic evidence, the trialCourt held that the charge under Section 364-A IPC had been provedbeyond reasonable doubt against all accused, and additionally chargeunder Section 25 of the Arms Act, 1959 was also held to have beenestablished against Ashok and Vikky. Life imprisonment and fine of Rs10,000 (or six months imprisonment in lieu thereof) was awarded toeach accused for the crime of kidnapping for ransom, besidesconcurrent sentence of two years to Vikky and Ashok under the ArmsAct.

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A5. All four accused appealed against their convictions before theAllahabad High Court. After a detailed re-appreciation of evidence anddiscussion of various case laws, the High Court found as a matter offact that all elements required to constitute the offence of kidnappingfor ransom, have been proved beyond doubt. But the High Courtobserved that failure to record disclosure statement under Section 27Bof the Evidence Act, 1872 was fatal in proving recovery of the revolver.The High Court thus dismissed the appeals and confirmed the sentenceof life imprisonment under Section 364-A of IPC, but conviction underSection 25 of the Arms Act was set aside.

PRESENT PROCEEDINGSC

6. The aggrieved petitioners, Vikky and Satish, have filedseparate Special Leave Petitions before us, which have been heard atconsiderable length. On 06.09.2019, this Court tacitly declined tointerfere with their conviction for kidnapping, and accordingly refrainedfrom granting leave to appeal. However, limited notice was issued toDthe respondent-State, calling upon them to furnish details regarding thepetitioners’ entitlement to premature release. The aforementioned orderreads as follows:

“Limited notice be issued to the respondent-State of UttarPradesh to know whether the petitioner is entitled forEpremature release from the prison as per the Jail Manual”

7. Separate counter-affidavits have consequently been filed bythe respondent-State on 18.12.2019, inter-alia, informing that Satish’sproposal for premature release under Section 2 of the UP PrisonersRelease on Probation Act, 1938 was still under consideration; whereasFthat of Vikky was duly considered and rejected by a Committee headedby the District Magistrate, Ghaziabad on 26.02.2018.

8. Nevertheless, keeping in mind the long-period of incarcerationundergone by the petitioners and infirmities in consideration of theirprayers for premature release as highlighted by their counsels, this CourtGon 08.06.2020 directed fresh consideration of their cases for prematurerelease and passed the following order:

“Taking into consideration the submissions made by thelearned counsel appearing for the parties, we direct thelearned counsel appearing for the State of U.P. to considerHthe case of the petitioner (Satish @ Sabbe) in Special Leave Petition (Crl.) No.7369 of 2019, which is stated to be pendingbefore the State, as also the case of the petitioner(Vikky Alias Vikendra Alias Virendra) in Special LeavePetition (Crl.) No.8326 of 2019, which was earlier rejectedby the said State, for their premature release as per the JailManual, within a period of four weeks from today and placethe orders before this Court.”

9. It was brought to the notice of this Court on the next date ofhearing that the respondent-State had, without due application of mind,passed an unreasoned Order dated 13.07.2020 rejecting prematurerelease of Satish based on an earlier evaluation conducted on29.01.2018. This was contended to be in contravention of the directionsissued by this Court as well as on a misconceived notion of individualdignity. Similar allegations of evasive compliance and mechanicalrejection of Vikky’s case for premature release vide Government Orderdated 29.07.2020, despite his long incarceration and good conduct, werereiterated. Restricting their prayer(s) in terms of the order dated06.09.2019 of this Court, learned counsel(s) for Satish and Vikky havecited some judgments, and relied upon various remission guidelines; tosubstantiate their plea to set-aside the Orders rejecting petitioner’sprayer for premature release.

10. Finding that earlier orders directing fresh consideration ofpetitioners’ cases for premature release had not been faithfully compliedwith, this Court on 25.08.2020, once more directed the respondent-Stateto consider both cases afresh and pass appropriate reasoned orderswithin a week. Since the petitioner’s prayer for premature release hasagain been declined vide Government Orders dated 01.09.2020, hencelearned counsel for the parties have been heard on the afore-statedlimited issue.

CONTENTIONS OF PARTIES

11. Over the course of the final hearing on 08.09.2020, it hasbeen submitted by learned State counsel that the Probation Boardconsidered afresh Satish’s case and has refused probation for thereasons that – first, the crime is heinous, second, petitioner is hardly53-54 years old and can repeat the crime, third, informant has seriousapprehensions against his release, and fourth, governmental authoritieshave adversely commented upon his release considering its directadverse effect on the society. Likewise, for Vikky, on grounds of his AB

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Aage of 43 years, healthy physical condition, apprehensions of informantand nature of crime; his mercy petition had not been recommended.

12. Counsel for the petitioners have very eruditely controvertedthe rationale and reasons embodied in both the Government Orders. Itwas argued that although the impugned orders have been purportedlyBpassed under the Jail Manual and UP Prisoners Release on ProbationAct, 1938; but, the mandatory factors of ‘antecedents’ and ‘conduct inprison’ have totally been overlooked, and instead various extraneousfactors have been relied upon to justify the mechanical action. Theyurged that no attempt was made to meet the petitioners to ascertaintheir proclivity for committing crimes in the future, thus evidencing non-Capplication of mind. The lengthy imprisonment, lack of antecedents andgood conduct in jail were again underscored by counsel for thepetitioners to drive home their prayers for premature release.

ANALYSIS

D13. Whilst it is undoubtedly true that society has a right to leada peaceful and fearless life, without free-roaming criminals creatinghavoc in the lives of ordinary peace-loving citizens. But equally strongis the foundation of reformative theory which propounds that a civilisedsociety cannot be achieved only through punitive attitudes andvindictiveness; and that instead public harmony, brotherhood and mutualEacceptability ought to be fostered. Thus, first-time offenders ought tobe liberally accorded a chance to repent their past and look-forward toa bright future.[1]

14. The Constitution of India through Articles 72 and 161, embodythese reformative principles by allowing the President of India and theFGovernor of a State to suspend, remit or commute sentences of convicts.Further, Section 432 of the Code of Criminal Procedure, 1973 (“CrPC”)streamlines such powers by laying down procedure and pre-conditionsfor release. The only embargo under Section 433-A of CrPC is againstthe release of persons sentenced to life imprisonment till they haveGserved at least fourteen years of their actual sentence.

15. The UP Prisoners Release on Probation Act, 1938 also laysdown the principles upon which such decisions to release on probationare required to be taken. Its Section 2 says that:

H1 Maru Ram v. Union of India, 1981 (1) SCC 107.

“2. Power of Government to release by licence on conditionsimposed by them – Notwithstanding anything contained inSection 401 of the Code of Criminal Procedure, 1898 (ActV of 1898), where a person is confined in prison under asentence of imprisonment and it appears to the StateGovernment from his antecedents and his conduct in theprison that he is likely to abstain from crime and lead apeaceable life, if he is released from prison, the StateGovernment may by licence permit him to be released oncondition that he be placed under the supervision orauthority of a Government Officer or of a person professingthe same religion as the prisoner, or such secular institutionor such society belonging to the same religion as theprisoner as may be recognized by the State Government forthis purpose, provided such other person, institution orsociety is willing to take charge of him.”

16. It is no doubt trite law that no convict can claim remissionas a matter of right.[2] However, in the present case, the circumstancesare different. What had been sought and directed by this Court throughrepeated orders was not premature release itself, but due applicationof mind and a reasoned decision by executive authorities in terms ofexisting provisions regarding premature release. Clearly, once a law hasbeen made by the appropriate legislature, then it is not open forexecutive authorities to surreptitiously subvert its mandate. Where theauthorities are found to have failed to discharge their statutoryobligations despite judicial directions, it would then not be inappropriatefor a Constitutional Court while exercising its powers of judicial reviewto assume such task onto itself and direct compliance through a writof mandamus.

17. A perusal of the Government Orders displays that thestatutory mandate on premature release has been completelyoverlooked. The three-factor evaluation of (i) antecedents (ii) conductduring incarceration and (iii) likelihood to abstain from crime, underSection 2 of the UP Prisoners Release on Probation Act, 1938, havebeen given a complete go-by. These refusals are not based on facts or 2 Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767.

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Aevidence, and are vague, cursory, and merely unsubstantiated opinionsof state authorities.

18. It would be gainsaid that length of the sentence or the gravityof the original crime can’t be the sole basis for refusing prematurerelease. Any assessment regarding predilection to commit crime uponBrelease must be based on antecedents as well as conduct of the prisonerwhile in jail, and not merely on his age or apprehensions of the victimsand witnesses.[3] As per the State’s own affidavit, the conduct of bothpetitioners has been more than satisfactory. They have no materialcriminal antecedents, and have served almost 16 years in jail (22 yearsincluding remission). Although being about 54 and 43 years old, theyCstill have substantial years of life remaining, but that doesn’t prove thatthey retain a propensity for committing offences. The respondent-State’srepeated and circuitous reliance on age does nothing but defeat thepurpose of remission and probation, despite the petitioners having metall statutory requirements for premature release.

D19. Indeed, the petitioners’ case is squarely covered by the ratiolaid down by this Court in Shor v. State of Uttar Pradesh[4], which haslater been followed in Munna v. State of Uttar Pradesh[5], the relevantextract of which is reproduced as under:

“A reading of the order dated 22.01.2018 shows that theJoint Secretary, Government of U.P. has failed to apply hisEmind to the conditions of Section 2 of the U.P. Act. Merelyrepeating the fact that the crime is heinous and that releaseof such a person would send a negative message against thejustice system in the society are factors de hors Section 2.Conduct in prison has not been referred to at all and theFSenior Superintendent of Police and the District Magistrateconfirming that the prisoner is not “incapacitated” fromcommitting the crime is not tantamount to stating that he islikely to abstain from crime and lead a peaceable life ifreleased from prison. Also having regard to the longincarceration of 29 years (approx.) without remission, we doGnot wish to drive the petitioner to a further proceedingchallenging the order dated 22.01.2018 when we find that H

3 Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750.

4 2020 SCC OnLine SC 626, ¶ 6.

5 Order dated 21.08.2020 in WP (Crl) 4 of 2020.

the order has been passed mechanically and withoutapplication of mind to Section 2 of the U.P. Act.”

20. It seems to us that the petitioners’ action of kidnapping wasnothing but a fanciful attempt to procure easy money, for which theyhave learnt a painful life lesson. Given their age, their case ought to beviewed through a prism of positivity. They retain the ability to re-integrate with society and can spend many years leading a peaceful,disciplined, and normal human life. Such a hopeful expectation is furtherconcritised by their conduct in jail. It is revealed from the additionalaffidavit dated 05.09.2020 filed by Anita @ Varnika (wife of Vikky)that during the course of his incarceration in jail he has pursued as manyas eight distance-learning courses, which include (i) passing hisIntermediate Examination, (ii) learning computer hardware, (iii) obtaininga degree in Bachelor of Arts; as well as numerous certificates in (iv)food and nutrition, (v) human rights, (vi) environmental studies. Vikky’sconduct shines as a bright light of hope and redemption for many otherincarcerated prisoners. Compounded by their roots and familialobligations, we believe it is extremely unlikely that the petitioners wouldcommit any act which could shatter or shame their familial dreams.

21. In the present case, considering how the petitioners haveserved nearly two decades of incarceration and have thus suffered theconsequences of their actions; a balance between individual and societalwelfare can be struck by granting the petitioners conditional prematurerelease, subject to their continuing good conduct. This would both ensurethat liberty of the petitioners is not curtailed, nor that there is anyincreased threat to society. Suffice to say that this order is notirreversible and can always be recalled in the event of any futuremisconduct or breach by the petitioners.

CONCLUSION

22. For the reasons stated above, the Special Leave Petitionsare disposed of with a direction that the petitioners be released onprobation in terms of Section 2 of the UP Prisoners Release onProbation Act, 1938 within a period of two weeks. The respondent-State shall be at liberty to impose conditions as it may deem fit tobalance public safety with individual liberty.

Petitions disposed of.

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