MATA PRASADversusTHE STATE OF U.P. & ANR.

1052            SUPREME COURT
                          [2022]REPORTS
                                 1 S.C.R. 1052              [2022] 1 S.C.R.


 A                               MATA PRASAD
                                         v.
                          THE STATE OF U.P. & ANR.
                     (Writ Petition (Criminal) No. 256 of 2021)
 B                             JANUARY 31, 2022
          [SANJAY KISHAN KAUL AND M.M.SUNDRESH, JJ.]
              Sentence / Sentencing – Remission of Sentence – Petitioner
       convicted by Sessions Judge u/ss. 302, 307, 323, 34 IPC and
       sentenced to life imprisonment – Appeal of petitioner pending in
 C
       High Court – Governor of Uttar Pradesh issued G.O / policy dated
       01.8.2018 u/Art. 161 of the Constitution for pre-mature release of
       prisoners on occasion of Republic Day every year – Petitioner filed
       writ petition u/Art.32 of the Constitution – His case, that despite
       having satisfied all terms and conditions for pre-mature release
 D     under the said policy, and his proposal for release being
       recommended on occasion of 26.1.2020 i.e., two years back he
       had still not been released – However, counter-affidavit filed by
       State pointing out that the policy for pre-mature release stood
       amended on 28.7.2021 in terms of which all such convicts were
       required to be considered “who have completed age of 60 years”
 E
       and have undergone custody of 20 years without remission and 25
       years with remission – Held: There is great doubt on validity of the
       clause in Policy of 2021 prescribing minimum age of 60 years which
       would imply that a young offender of 20 years will have to serve 40
       years before his case for remission can be considered – State
 F     Government to re-examine this part of the Policy which prima-facie
       does not seem to be sustainable – Further, it cannot be said that the
       State Government is precluded from examining the case of the
       petitioner for remission if an appeal is pending before the High
       Court – Dual directions issued– one for consideration of the case
       of the petitioner for remission within three months and the other for
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       consideration of amendment to the Policy of 2021 within four months
       – Constitution of India, 1950 – Art. 161 – U.P. Prisoners’ Release
       on Probation Act, 1938.
             State of Haryana & Ors. v. Raj Kumar @ Bittu 2021 (9)
             SCC 292 – referred to.
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                                       1052
            MATA PRASAD v. THE STATE OF U.P. & ANR.                             1053


                         Case Law Reference                                     A
(2021) 9 SCC 292                  referred to                 Para 8
      CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 256 of 2021.
      [UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA]                           B
    Mohd. Irshad Hanif, Aarif Ali Khan, Rizwan Ahmad, Mujahid
Ahmad, Advs. for the petitioner.
     Ardhendhumauli Kumar Prasad, AAG, Rohit K. Singh, Uday N.
Tiwary, Ms. Subhali Pathak, Advs. for the Respondents.
                                                                                C
      The following Order of the Court was passed:
                                 ORDER
      1. Admit.
       2. The petitioner has taken recourse to Article 32 of the Constitution
of India for a direction for consideration of his case for premature release    D
from prison as per the policy dated 01.8.2018 and consequently to release
the petitioner forthwith.
       3. The petitioner along with his younger brother and father were
tried for offences under Section 302/307/323/34 of the IPC and
post-trial were convicted in sentence to maximum imprisonment for life          E
with a judgment dated 30.9.2004 passed in Session Trial No.208 of 1999
arising from FIR No.380/1999 at P.S. Gosaiganj, Sultanpur. The petitioner
aggrieved by the said judgment filed the appeal before the High Court of
Judicature at Allahabad in Crl. Appeal No.2247/2004. 17 years hence
the appeal is still pending adjudication.                                       F
       4. The appellant on completion of 14 years of imprisonment claimed
eligibility for release under the provisions of the U.P. Prisoners’ Release
on Probation Act, 1938 and submitted the duly filled Form-A but the
same was rejected on 28.4.2017.
       5. It is the case of the petitioner that the Governor of Uttar Pradesh   G
exercising powers under Article 161 of the Constitution of India issued a
G.O dated 01.8.2018, a policy for prisoners in respect of pre-mature
release on occasion of Republic Day every year. One of the categories
of such prisoners is all male convicted prisoners sentenced to suffer
life-imprisonment whose crime is not covered by any sub-rule or restricted
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1054             SUPREME COURT REPORTS                           [2022] 1 S.C.R.


 A     category pointed out at Section 3 and who have served 16 years of
       actual imprisonment without remission and 20 years of imprisonment
       inclusive of remission along with the pending period. However, this petition
       of the petitioner was also rejected on 04.11.2019.
              6. It is the case of the petitioner, that the Government in the years
 B     2018-2021 released 1000 of prisoners from the various jails of U.P. under
       the aforesaid policy and the petitioner despite having satisfied all terms
       and conditions for pre-mature release under the said policy, his proposal
       for release was recommended on the occasion of 26.1.2020 i.e., two
       years back but he has still not been released. The fate of the petitioner is
       stated to have been same even on 26.1.2021 without assigning any
 C     reasons.
             7. In the conspectus of the aforesaid facts, we had issued notice
       and counter affidavit has been filed by the State.
              8. One of the aspects pointed out in the counter affidavit is by
 D     annexing the Policy for pre-mature release by submitting that the same
       stands amended on 28.7.2021. The significant change as applicable in
       the case of the petitioner is that all such convicts are required to be
       considered “who have completed age of 60 years” and have undergone
       custody of 20 years without remission and 25 years with remission. In
       this behalf learned counsel for the respondent fairly states that as per
 E     the policy of the 2018 the case of the petitioner would be covered though
       as per the 2021 policy he is not of the requisite age of 60 years. However,
       he also accepts that in terms of a recent judgment of this Court in State
       of Haryana & Ors. V. Raj Kumar @ Bittu reported as 2021 (9) SCC
       292 it has been clearly opined taking note of the consistent view of this
 F     Court that the policy prevalent at time of conviction shall be taken into
       consideration for considering the pre-mature release of a prisoner. He,
       thus, submits that 2021 policy prescribing the age of 60 years as the
       minimum age could not apply to the case of the petitioner.
              9. We are really not required to go into this aspect in view of the
 G     aforesaid but would like to express a great doubt on the validity of this
       clause prescribing a minimum age of 60 years which would imply that a
       young offender of 20 years will have to serve 40 years before his case
       for remission can be considered. Though we are not required to test this
       aspect, we call upon the State Government to re-examine this part of
       the Policy which prima-facie does not seems to be sustainable more so
 H     in view of the illustration we have just noted above and thus we call
             MATA PRASAD v. THE STATE OF U.P. & ANR.                              1055


upon the State Government to take a fresh look at the insertion of this           A
clause. The needful be done within four months from today.
       10. Now once again coming to the facts of the present case,
learned counsel for the respondent submits that the appeal of the petitioner
pending before the High Court, in view of the long incarceration, he
could have moved the High Court for suspension of sentence. We have               B
no doubt about this proposition but the remedy of seeking suspension of
sentence and that in view of long incarceration remission is provided,
are different release.
       11. It cannot be said that the State Government is precluded from
examining the case of the petitioner for remission if an appeal is pending        C
before the High Court and from the submissions of the learned counsel
for the petitioner it does appear that petitioner seems to have lost interest
even in possibly prosecuting the appeal.
       12. We are, thus, of the view that it would be in fitness of things
that the case of the petitioner be considered for remission in view of our        D
aforesaid observations by the Competent Authority within a period of
three months from today.
       13. We, thus, issue a dual direction i.e. of consideration of the
case of the petitioner for remission within three months and for
consideration of the amendment to the Policy of 2021 within a period of           E
four months from today. We may note that according to the learned
counsel for the State the remission policy is also under challenge before
this Court but then that cannot preclude the State itself from re-visiting
the issue.
      14. In view of the fact that the petitioner as on date has already          F
served about 22½ years without remission and almost 28 years with
remission, we are inclined to grant bail to the petitioner in the meantime
pending consideration in pursuance to our aforesaid directions.
      15. Writ Petition accordingly stands allowed in the terms aforesaid
leaving parties to bear their own costs.
                                                                                  G

Bibhuti Bhushan Bose                                     Writ Petition allowed.
(Assisted by : Neha Sharma, LCRA)



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