RAJKUMARversusTHE STATE OF UTTAR PRADESH

412                      [2023]REPORTS
               SUPREME COURT    6 S.C.R. 412                  [2023] 6 S.C.R.


A                                  RAJKUMAR
                                         v.
                      THE STATE OF UTTAR PRADESH
                   Miscellaneous Application No 2169 of 2022
B                                        In
                     (Writ Petition (Criminal) No 36 of 2022)
                              FEBRUARY 06, 2023
              [DR. DHANANJAYA Y CHANDRACHUD, CJI,
C              PAMIDIGHANTAM SRI NARASIMHA AND
                       J B PARDIWALA, JJ.]
            Uttar Pradesh Prisoners (Release on Probation) Act 1938 –
      Uttar Pradesh Prisoners (Release on Probation) Rules 1938 –
      Standing Policy formulated on 01.08.2018, amended on 27.05.2022
D     – Premature release of persons sentenced to suffer life imprisonment
      on conviction under IPC, directions issued by Supreme Court in
      Rashidul Jafar case – Despite the said judgment and the convicts
      having fulfilled the conditions of eligibility for the grant of premature
      release, cases were not being dealt with in terms of the policy –
      Held: The State having formulated Rules and a Standing Policy for
E     deciding cases of premature release, it is bound by its own
      formulations of law – 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 – Each case for premature release
      has to be decided on the basis of the legal position as it stands on
F     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 – Out
      of the 50 prisoners whose cases have been brought to the notice of
      Supreme Court, all the pending cases be disposed of on or before
      30.04.2023 in terms of the directions issued – Compliance report
G     be filed on affidavit by the Director General of Prisons –
      Miscellaneous Application be listed for verifying compliance – Code
      of Criminal Procedure 1973 – ss.433A, 423 – Constitution of India
      – Article 161.

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                                        412
           RAJKUMAR V. THE STATE OF UTTAR PRADESH                           413


          Rashidul Jafar @ Chota v. State of Uttar Pradesh &                A
          Anr. Writ Petition (Criminal) No 336 of 2019; State of
          Haryana v. Jagdish (2010) 4 SCC 216 : [2010] 3 SCR
          716; State of Haryana v. Raj Kumar (2021) 9 SCC 292
          – relied on.
                              Case Law Reference                            B
[2010] 3 SCR 716                               relied on     Para 5
(2021) 9 SCC 292                               relied on     Para 5
      CRIMINAL APPELLATE JURISDICTION: Miscellaneous
Application No. 2169 of 2022 in Writ Petition (Criminal) No. 36 of 2022.    C
      From the Judgment and Order dated 11.03.2022 in W.P. (Crl.)
No. 36 of 2022 of the Supreme Court of India.
      Nagendra Singh, Ms. Akansha, Ashish Pandey, Naman Raj Singh,
Dr. Amardeep Gaur, M/s V. Maheshwari & Co., Advs. for the Petitioner.
                                                                            D
          Vishnu Shankar Jain, Rishi Malhotra, Advs. for the Respondent.
          The Judgment of the Court was delivered by
          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             E
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        F
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 premature release of prisoners sentenced to
imprisonment for life and Writ Petition (Criminal) No 336 of 2019           G
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 :-
1
    Writ Petition (Criminal) No. 336 of 2019                                H
414             SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A            “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
B            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
C            (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.

D            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
E     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 Constitution are also considered by the Governor of the State. The
F     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
G
      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].
      2
         “CrPC”
      3
        (2010) 4 SCC 216
H     4
        (2021) 9 SCC 292
       RAJKUMAR V. THE STATE OF UTTAR PRADESH                                415
        [DR. DHANANJAYA Y CHANDRACHUD, CJI]

        6. The Standing Policy of the State of Uttar Pradesh as formulated   A
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
                                                                             B
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   C
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 despite the convict having fulfilled the conditions of
eligibility for the grant of premature release, cases were not being dealt   D
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            E
              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      F
              Pradesh;
      (iii)   How many cases have been considered for pre-mature
              release 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 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    H
416            SUPREME COURT REPORTS                           [2023] 6 S.C.R.


A     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
B
      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.
C




D




E            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 :
F
            “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
G           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
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        RAJKUMAR V. THE STATE OF UTTAR PRADESH                                   417
         [DR. DHANANJAYA Y CHANDRACHUD, CJI]

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




                                                                                 B




                                                                                 C




                                                                                 D




       12. Mr Rishi Malhotra, counsel has been requested by this Court
to assist as Amicus Curiae. The note submitted by the Amicus Curiae              E
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                  F
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           G
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
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418              SUPREME COURT REPORTS                          [2023] 6 S.C.R.


A     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
B
      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
C     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
D     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
E     Prisons.
           16. The Miscellaneous Application shall be listed for verifying
      compliance on 4 May 2023.

      Divya Pandey                                                 Directions issued.
F     (Assisted by : Roopanshi Virang, LCRA)




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