RAJKUMAR versus THE STATE OF UTTAR PRADESH on 6 February 2023

1. On 6 September 2022, this Court in its judgment in RashidulJafar @ Chota Vs State of Uttar Pradesh & Anr[1]issued a slew ofdirections governing the premature release of persons sentenced to sufferimprisonment for life consequent upon their conviction under diverseprovisions of the Indian Penal Code.

2. Following the above decision, this Court has been repeatedlymoved in petitions under Article 32 of the Constitution of India forsecuring the premature release of individual convicts because their casesfor premature release have not been considered.

3. Under the Uttar Pradesh Prisoners (Release on Probation)Act 1938, cases for premature release of prisoners sentenced toimprisonment for life and Writ Petition (Criminal) No 336 of 2019undergoing the sentence in the prisons of the State are considered underForm ‘A’. The State of Uttar Pradesh formulated the Uttar PradeshPrisoners (Release on Probation) Rules 1938. Rule 4 of the Rules is inthe following terms :- 1 Writ Petition (Criminal) No. 336 of 2019

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A“4. Eligibility for release.—Any prisoner other than a prisonerspecified in Rule 3, may be eligible for consideration by the StateGovernment for release on licence—

(i) if he is a prisoner to whom Section 433-A of the Code ofCriminal Procedure, 1973 applies and has served imprisonmentBfor a total period of fourteen years;

(ii) if he is a prisoner sentenced to imprisonment for life to whomSection 433-A of the Code of Criminal Procedure, 1973 does notapply and has served imprisonment for a total period of fourteenyears with remissions; andC

(iii) in any other case if he has served one-third without remissionsof the period of imprisonment to which he was sentenced.”

The process of premature release was, thus, being considered interms of the above provision.

D4. Apart from the above provisions, a ‘Nominal Roll’ of prisonersis prepared in terms of Section 432 read with Section 433A of the Codeof Criminal Procedure 1973[2] and paragraph 198 of the Uttar PradeshJail Manual (subsequently replaced by Para 180 of the Jail Manual 2022).Moreover, an ‘Infirmity Roll’ of prisoners is prepared in terms of Section432 of the CrPC read with paragraphs 195, 196 and 197 of the UttarEPradesh Jail Manual (replaced by paragraphs 177 to 179 of the JailManual 2022) governing the premature release of sick and disabledpersons detained in prisons in the State. Mercy petitions presented byconvicts or by their relatives, as the case may be, under Article 161 ofthe Constitution are also considered by the Governor of the State. TheFState of Uttar Pradesh has formulated a Standing Policy for prematurerelease of prisoners sentenced to suffer imprisonment for life coveredby Article 161 of the Constitution of India. The State Governmentformulated a Standing Policy on 1 August 2018. The policy wassubsequently amended on 27 May 2022.

5. In several decisions of this Court, it has been held that the caseGof a convict for premature release is governed by the applicable policyon the date of conviction [State of Haryana Vs Jagdish[3]and State ofHaryana Vs Raj Kumar[4]].

2 “CrPC”3 (2010) 4 SCC 216H4 (2021) 9 SCC 292

6. The Standing Policy of the State of Uttar Pradesh as formulatedon 1 August 2018 (as amended in 2021) contained a prohibition on thegrant of premature release to convicts who had not completed the ageof 60 years. The validity of the restriction was challenged before thisCourt in a batch of cases under Article 32 of the Constitution whicheventually led to the judgment of Rashidul Jafar (supra). In thesubsequent policy dated 27 May 2022, the bar on considering cases forpremature release before a convict attains the age of 60 years standlifted. This Court has hence directed that while, as a general principle,the policy which was in existence on the date of the conviction wouldgovern the consideration of each case for premature release, in the eventthat a more liberalized policy is instituted subsequently, the case shouldbe considered on the basis of the more liberalised provision.

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7. Despite the judgment of this Court in Rashidul Jafar, caseswere being repeatedly brought to this Court under Article 32 of theConstitution where despite the convict having fulfilled the conditions ofeligibility for the grant of premature release, cases were not being dealtwith in terms of the policy.

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8. On 5 January 2023, while entertaining the present case, thisCourt issued a direction requiring the Director General of Police to filean affidavit explaining the following :

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“(i)The steps which have been taken in pursuance of thedecision of this Court in Rashidul Jafar @ Chota (supra)for considering cases for pre-mature release and theinstitutional arrangements which have been put into place;

(ii) How many convicts are eligible for being considered forpre- mature release, district-wise, in the State of UttarFPradesh;

(iii) How many cases have been considered for pre-maturerelease since the decision of this Court in Rashidul Jafar @Chota (supra); G

(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 filedby the Director General of Prisons. Besides adverting to the regimeformulated in the State of Uttar Pradesh (as noted in the earlier part of H

Athis order), the affidavit sets out District-wise data of convicts eligiblefor being considered for premature release and the number of casespending consideration. As of 31 December 2022, there are 1,15,163prisoners in the State of Uttar Pradesh out of whom 88,429 are undertrial prisoners. There are 26,734 convicts of whom 16,262 are undergoinga sentence of life imprisonment. The affidavit states that 2,228 convictedBprisoners have completed 14 years of actual imprisonment (in terms ofthe Rules of 1938 which were prevalent on the date of the conviction)and are eligible for being considered for premature release. The followingstatement indicates the stage at which these cases are pendingconsideration for the grant of premature release.C

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E10. The affidavit filed by the Director General of Prisons indicatesthat in the preceding five years, 3,729 prisoners have been released inthe State of Uttar Pradesh under various arrangements for prematurerelease. Moreover, it has been stated that in terms of the amended policy,prisoners eligible for premature release are released on ten annualoccasions, namely :F

“Republic Day (26[th] January), Women’s Day (08[th] March), WorldHealth Day (07[th] April), Labour Day (01[st] May), World Yoga Day(21[st] June), Independence Day (15[th] August), Teacher’s Day (05[th]September), Gandhi Jayanti (02[nd] October), International ToleranceDay (16[th] November) and International Human Rights Day (10[th]GDecember).”

Between 6 September 2022 and 31 December 2022, the cases of731 convicts were considered for premature release.

11. The specific grievance which has been brought before thisCourt pertains to 50 prisoners. In respect of these 50 prisoners, theH

RAJKUMAR V. THE STATE OF UTTAR PRADESH[DR. DHANANJAYA Y CHANDRACHUD, CJI]

tabulated statement annexed to the affidavit indicates the status of theAconsideration of those cases :

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12. Mr Rishi Malhotra, counsel has been requested by this Courtto assist as Amicus Curiae. The note submitted by the Amicus Curiaeindicates that the basic problem lies in the State Government adopting apick and choose policy. The Amicus Curiae submits that though theconviction by the trial court is prior to 1 August 2018 (the date on whichthe Standing Policy was originally notified), instead of applying the UttarPradesh Prisoners Act, 1938 in terms of which a convict who hasundergone 14 years actual sentence is eligible for premature release,the authorities await the convict undergoing an actual sentence of 16years so as to consider the case of premature release in terms of thesubsequent policy.

13. The State having formulated Rules and a Standing Policy fordeciding cases of premature release, it is bound by its own formulationsof law. Since there are legal provisions which hold the field, it is not opento the State to adopt an arbitrary yardstick for picking up cases forpremature release. It must strictly abide by the terms of its policies bearingin mind the fundamental principle of law that each case for premature E

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Arelease has to be decided on the basis of the legal position as it stands onthe date of the conviction subject to a more beneficial regime beingprovided in terms of a subsequent policy determination. The provisionsof the law must be applied equally to all persons. Moreover, thoseprovisions have to be applied efficiently and transparently so as to obviatethe grievance that the policy is being applied unevenly to similarlyBcircumstanced persons. An arbitrary method adopted by the State isliable to grave abuse and is liable to lead to a situation where personslacking resources, education and awareness suffer the most.

14. Out of the 50 persons whose cases have been brought to thenotice of this Court, as stated earlier, three have been released, one hasCbeen 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 havingcompleted fourteen years of mandatory imprisonment. Of the remainingpending cases, five cases are pending at District Magistrate level; twenty Dfive are pending at the Headquarters (Prisons) while twelve are pendingwith the State Government.

15. All the pending cases shall be disposed of on or before 30April 2023 in terms of the above directions and a report of complianceshall be filed before this Court on affidavit by the Director General ofEPrisons.

16. The Miscellaneous Application shall be listed for verifyingcompliance on 4 May 2023.

Divya PandeyF(Assisted by : Roopanshi Virang, LCRA)

Directions issued.

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