SATISH @ SABBEversusTHE STATE OF UTTAR PRADESH

                         [2020] 9 S.C.R. 21                               21


                         SATISH @ SABBE                                   A
                                  v.
                THE STATE OF UTTAR PRADESH
           (Special Leave Petition (Crl.) No. 7369 of 2019)
                       SEPTEMBER 30, 2020                                 B
              [N. V. RAMANA, SURYA KANT AND
                     HRISHIKESH ROY, JJ.]
      Uttar Pradesh Prisoners Release on Probation Act, 1938:
       s.2 – Pre-mature release – Entitlement – Criteria – Held: Length   C
of sentence or gravity of the original crime can’t be the sole basis
for refusing pre-mature release – First-time offenders ought to be
liberally accorded a chance – Any assessment regarding predilection
to commit crime after release must be based on antecedents as well
as conduct of the prisoners in jail and not on his age or
                                                                          D
apprehensions of the victims and witnesses – In the present case
three-factor evaluation of (i) antecedents (ii) conduct during
incarceration and (iii) likelihood to abstain from crime have been
given a complete go-by – The prisoners are directed to be released
on probation in terms of s.2, subject to their continuing good
conduct – The State shall be at liberty to impose conditions – The        E
order of pre-mature release can be recalled in the event of any future
misconduct or breach.
      Sentence/Sentencing:
      Reformative principles – A civilised society cannot be
achieved only through punitive attitude and vindictiveness – First        F
time offenders ought to be accorded chance to repent their past
and 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 lead         G
a peaceful and fearless life, without free-roaming criminals
creating havoc in the lives of ordinary peace-loving citizens. But
equally strong is the foundation of reformative theory which
propounds that a civilised society cannot be achieved only
through punitive attitudes and vindictiveness; and that instead
public harmony, brotherhood and mutual acceptability ought to             H
                                21
22            SUPREME COURT REPORTS                      [2020] 9 S.C.R.


A    be fostered. Thus, first-time offenders ought to be liberally
     accorded a chance to repent their past and look-forward to a
     bright future. [Para 13][28-D-E]
           Maru Ram v. Union of India (1981) 1 SCC 107 :
           [1981] 1 SCR 1196 – relied on.
B           2. The Constitution of India through Articles 72 and 161,
     embody these reformative principles by allowing the President
     of India and the Governor of a State to suspend, remit or
     commute sentences of convicts. Further, Section 432 of the
     Code of Criminal Procedure, 1973 streamlines such powers by
C    laying down procedure and pre-conditions for release. The only
     embargo under Section 433-A of CrPC is against the release of
     persons sentenced to life imprisonment till they have served at
     least fourteen years of their actual sentence. The UP Prisoners
     Release on Probation Act, 1938 also lays down the principles
     upon which such decisions to release on probation are required
D    to be taken. [Paras 14 and 15][28-F-G]
           3. It is no doubt trite law that no convict can claim
     remission as a matter of right. However, in the present case,
     the circumstances are different. What had been sought and
     directed by this Court through repeated orders was not
E    premature release itself, but due application of mind and a
     reasoned decision by executive authorities in terms of existing
     provisions regarding premature release. Once a law has been
     made by the appropriate legislature, then it is not open for
     executive authorities to surreptitiously subvert its mandate.
F    Where the authorities are found to have failed to discharge their
     statutory obligations despite judicial directions, it would then not
     be inappropriate for a Constitutional Court while exercising its
     powers of judicial review to assume such task onto itself and
     direct compliance through a writ of mandamus. [Para 16][29-D-
     F]
G
           Swamy Sahraddanada v. State of Karnataka (2008) 13
           SCC 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) likelihood
     to abstain from crime, under Section 2 of the UP Prisoners
H
      SATISH @ SABBE v. STATE OF UTTAR PRADESH                       23


Release on Probation Act, 1938, have been given a complete           A
go-by. These refusals are not based on facts or evidence, and
are vague, cursory, and merely unsubstantiated opinions of State
authorities. [Para 17][29-G; 30-A]
      5. Length of the sentence or the gravity of the original
crime can’t be the sole basis for refusing premature release. Any    B
assessment regarding predilection to commit crime upon release
must be based on antecedents as well as conduct of the prisoner
while in jail, and not merely on his age or apprehensions of the
victims and witnesses. As per the State’s own affidavit, the
conduct of both petitioners has been more than satisfactory.
They have no material criminal antecedents, and have served          C
almost 16 years in jail (22 years including remission). Although
being about 54 and 43 years old, they still have substantial years
of life remaining, but that doesn’t prove that they retain a
propensity for committing offences. The respondent-State’s
repeated and circuitous reliance on age does nothing but defeat      D
the purpose of remission and probation, despite the petitioners
having met all statutory requirements for premature release.
[Para 18][31-B-C]
     Zahid Hussain v. State of West Bengal (2001) 3 SCC
     750 : [2001] 2 SCR 442 ; Shor v. State of Uttar                 E
     Pradesh (2020) SCC OnLine SC 626 ; Munna v. State
     of 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 their
age, their case ought to be viewed through a prism of positivity.    F
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 further concritised by their
conduct in jail. [Para 20][31-B-C]
      7. In the present case, considering how the petitioners        G
have served nearly two decades of incarceration and have thus
suffered the consequences of their actions; a balance between
individual and societal welfare can be struck by granting the
petitioners conditional premature release, subject to their
continuing good conduct. This would both ensure that liberty of
                                                                     H
24            SUPREME COURT REPORTS                        [2020] 9 S.C.R.


A    the petitioners is not curtailed, nor that there is any increased
     threat to society. Suffice to say that this order is not irreversible
     and can always be recalled in the event of any future misconduct
     or breach by the petitioners. The petitioners be released on
     probation in terms of Section 2 of the UP Prisoners Release on
     Probation Act, 1938. The respondent-State shall be at liberty to
B
     impose conditions as it may deem fit to balance public safety with
     individual liberty. [Paras 21 and 22][31-E-G]
                            Case Law Reference
     [1981] 1 SCR 1196                  relied on             Para 13
C    [2008] 11 SCR 93                   relied on             Para 16
     [2001] 2 SCR 442                   relied on             Para 18
            CRIMINAL APPELLATE JURISDICTION : Special Leave
     Petition (Criminal) No. 7369 of 2019
D          From the Judgment and Order dated 28.04.2017 of the High
     Court of Allahabad in Criminal Appeal No. 99 of 2005.
           With
           Special Leave Petition (Crl.) No. 8326 of 2019
E          Vinod 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. Shivranjani
     Ralawata, Advs. for the appearing parties.
           The Judgment of the Court was delivered by
F          SURYA KANT, J.
            1. These petitions, which were heard through video conferencing,
     have been filed by Satish and Vikky @ Vikendra alias Virendra, seeking
     special leave to appeal against a common order dated 28.04.2017 of
     the Allahabad High Court through which their appeal against conviction
G    under 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 of
     12.06.2002, when one Vishal Sarawat (the victim) was on his way to
H
       SATISH @ SABBE v. STATE OF UTTAR PRADESH                            25
                   [SURYA KANT, J.]

meet a friend, he was stopped by an acquaintance - Ramvir Rana who         A
asked him for a lift to his house. The unsuspecting victim walked into
Ramvir’s house where he was threatened with a pistol and forcibly
administered tablets by the present petitioners and one Ashok. Vishal
was subsequently coerced to write a letter dated 04.07.2002 to his
father, seeking a ransom of Rs 2 crores. In the meanwhile, the victim’s
                                                                           B
father - Nepal Singh (the complainant) filed a missing report with the
police regarding his son. Vikky telephoned the victim’s father on
10.07.2002, pretending to be one ‘Shekhar’. He exhorted him to seek
help of Ramvir as an intermediary and cautioned him against
approaching the police. After a series of correspondences, the ransom
was renegotiated to Rs 32 lakhs, which was physically brought by the       C
complainant to Ramvir’s home on 14.07.2002. Both the petitioners were
present in the house, with Vikky having counted the ransom money.
Upon assurance that his son would be safely sent back home by that
evening, the complainant passed on information to the police who
immediately raided the house. Ramvir was arrested, Vishal was rescued
                                                                           D
and Rs.31.70 lakhs were recovered. Although the police witnessed them
talking to Ramvir and Vishal (victim); Ashok, Satish and Vikky managed
to escape from the spot. They were, however, subsequently arrested
on 16.07.2002 and charged for the offence of kidnapping for ransom.
       3. The case was, after investigation, committed to the Additional
Sessions Judge, Fast Track Court – I, Ghaziabad. Eleven witnesses          E
deposed on behalf of the prosecution, which included the victim,
complainant, bystanders, and various police officers. In addition, one
witness was called by the Court itself. Incriminating voice recordings,
Call Detail Records, seized ransom money, and a revolver recovered
at the instance of Vikky were also brought on record. The accused          F
denied all charges and examined three defence witnesses.
       4. Placing reliance on a wealth of electronic evidence, the trial
Court held that the charge under Section 364-A IPC had been proved
beyond reasonable doubt against all accused, and additionally charge
under Section 25 of the Arms Act, 1959 was also held to have been          G
established against Ashok and Vikky. Life imprisonment and fine of Rs
10,000 (or six months imprisonment in lieu thereof) was awarded to
each accused for the crime of kidnapping for ransom, besides
concurrent sentence of two years to Vikky and Ashok under the Arms
Act.
                                                                           H
26            SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A            5. All four accused appealed against their convictions before the
     Allahabad High Court. After a detailed re-appreciation of evidence and
     discussion of various case laws, the High Court found as a matter of
     fact that all elements required to constitute the offence of kidnapping
     for ransom, have been proved beyond doubt. But the High Court
     observed that failure to record disclosure statement under Section 27
B
     of the Evidence Act, 1872 was fatal in proving recovery of the revolver.
     The High Court thus dismissed the appeals and confirmed the sentence
     of life imprisonment under Section 364-A of IPC, but conviction under
     Section 25 of the Arms Act was set aside.
           PRESENT PROCEEDINGS
C
            6. The aggrieved petitioners, Vikky and Satish, have filed
     separate Special Leave Petitions before us, which have been heard at
     considerable length. On 06.09.2019, this Court tacitly declined to
     interfere with their conviction for kidnapping, and accordingly refrained
     from granting leave to appeal. However, limited notice was issued to
D    the respondent-State, calling upon them to furnish details regarding the
     petitioners’ entitlement to premature release. The aforementioned order
     reads as follows:
           “Limited notice be issued to the respondent-State of Uttar
           Pradesh to know whether the petitioner is entitled for
E          premature release from the prison as per the Jail Manual”
            7. Separate counter-affidavits have consequently been filed by
     the respondent-State on 18.12.2019, inter-alia, informing that Satish’s
     proposal for premature release under Section 2 of the UP Prisoners
     Release on Probation Act, 1938 was still under consideration; whereas
F    that of Vikky was duly considered and rejected by a Committee headed
     by the District Magistrate, Ghaziabad on 26.02.2018.
           8. Nevertheless, keeping in mind the long-period of incarceration
     undergone by the petitioners and infirmities in consideration of their
     prayers for premature release as highlighted by their counsels, this Court
G    on 08.06.2020 directed fresh consideration of their cases for premature
     release and passed the following order:
           “Taking into consideration the submissions made by the
           learned counsel appearing for the parties, we direct the
           learned counsel appearing for the State of U.P. to consider
H          the case of the petitioner (Satish @ Sabbe) in Special Leave
       SATISH @ SABBE v. STATE OF UTTAR PRADESH                             27
                   [SURYA KANT, J.]

      Petition (Crl.) No.7369 of 2019, which is stated to be pending        A
      before the State, as also the case of the petitioner
      (Vikky Alias Vikendra Alias Virendra) in Special Leave
      Petition (Crl.) No.8326 of 2019, which was earlier rejected
      by the said State, for their premature release as per the Jail
      Manual, within a period of four weeks from today and place
                                                                            B
      the orders before this Court.”
       9. It was brought to the notice of this Court on the next date of
hearing that the respondent-State had, without due application of mind,
passed an unreasoned Order dated 13.07.2020 rejecting premature
release of Satish based on an earlier evaluation conducted on
29.01.2018. This was contended to be in contravention of the directions     C
issued by this Court as well as on a misconceived notion of individual
dignity. Similar allegations of evasive compliance and mechanical
rejection of Vikky’s case for premature release vide Government Order
dated 29.07.2020, despite his long incarceration and good conduct, were
reiterated. Restricting their prayer(s) in terms of the order dated         D
06.09.2019 of this Court, learned counsel(s) for Satish and Vikky have
cited some judgments, and relied upon various remission guidelines; to
substantiate their plea to set-aside the Orders rejecting petitioner’s
prayer for premature release.
       10. Finding that earlier orders directing fresh consideration of     E
petitioners’ cases for premature release had not been faithfully complied
with, this Court on 25.08.2020, once more directed the respondent-State
to consider both cases afresh and pass appropriate reasoned orders
within a week. Since the petitioner’s prayer for premature release has
again been declined vide Government Orders dated 01.09.2020, hence
learned counsel for the parties have been heard on the afore-stated         F
limited issue.
      CONTENTIONS OF PARTIES
      11. Over the course of the final hearing on 08.09.2020, it has
been submitted by learned State counsel that the Probation Board            G
considered afresh Satish’s case and has refused probation for the
reasons that – first, the crime is heinous, second, petitioner is hardly
53-54 years old and can repeat the crime, third, informant has serious
apprehensions against his release, and fourth, governmental authorities
have adversely commented upon his release considering its direct
adverse effect on the society. Likewise, for Vikky, on grounds of his       H
28               SUPREME COURT REPORTS                       [2020] 9 S.C.R.


A    age of 43 years, healthy physical condition, apprehensions of informant
     and nature of crime; his mercy petition had not been recommended.
            12. Counsel for the petitioners have very eruditely controverted
     the rationale and reasons embodied in both the Government Orders. It
     was argued that although the impugned orders have been purportedly
B    passed under the Jail Manual and UP Prisoners Release on Probation
     Act, 1938; but, the mandatory factors of ‘antecedents’ and ‘conduct in
     prison’ have totally been overlooked, and instead various extraneous
     factors have been relied upon to justify the mechanical action. They
     urged that no attempt was made to meet the petitioners to ascertain
     their proclivity for committing crimes in the future, thus evidencing non-
C    application of mind. The lengthy imprisonment, lack of antecedents and
     good conduct in jail were again underscored by counsel for the
     petitioners to drive home their prayers for premature release.
              ANALYSIS
D            13. Whilst it is undoubtedly true that society has a right to lead
     a peaceful and fearless life, without free-roaming criminals creating
     havoc in the lives of ordinary peace-loving citizens. But equally strong
     is the foundation of reformative theory which propounds that a civilised
     society cannot be achieved only through punitive attitudes and
     vindictiveness; and that instead public harmony, brotherhood and mutual
E    acceptability ought to be fostered. Thus, first-time offenders ought to
     be liberally accorded a chance to repent their past and look-forward to
     a bright future.1
            14. The Constitution of India through Articles 72 and 161, embody
     these reformative principles by allowing the President of India and the
F    Governor 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-conditions
     for release. The only embargo under Section 433-A of CrPC is against
     the release of persons sentenced to life imprisonment till they have
G    served at least fourteen years of their actual sentence.
           15. The UP Prisoners Release on Probation Act, 1938 also lays
     down the principles upon which such decisions to release on probation
     are required to be taken. Its Section 2 says that:

H    1
         Maru Ram v. Union of India, 1981 (1) SCC 107.
          SATISH @ SABBE v. STATE OF UTTAR PRADESH                              29
                      [SURYA KANT, J.]

          “2. Power of Government to release by licence on conditions           A
          imposed by them – Notwithstanding anything contained in
          Section 401 of the Code of Criminal Procedure, 1898 (Act
          V of 1898), where a person is confined in prison under a
          sentence of imprisonment and it appears to the State
          Government from his antecedents and his conduct in the
                                                                                B
          prison that he is likely to abstain from crime and lead a
          peaceable life, if he is released from prison, the State
          Government may by licence permit him to be released on
          condition that he be placed under the supervision or
          authority of a Government Officer or of a person professing
          the same religion as the prisoner, or such secular institution        C
          or such society belonging to the same religion as the
          prisoner as may be recognized by the State Government for
          this purpose, provided such other person, institution or
          society is willing to take charge of him.”
                                                          [emphasis supplied]   D
       16. It is no doubt trite law that no convict can claim remission
as a matter of right.2 However, in the present case, the circumstances
are different. What had been sought and directed by this Court through
repeated orders was not premature release itself, but due application
of mind and a reasoned decision by executive authorities in terms of            E
existing provisions regarding premature release. Clearly, once a law has
been made by the appropriate legislature, then it is not open for
executive authorities to surreptitiously subvert its mandate. Where the
authorities are found to have failed to discharge their statutory
obligations despite judicial directions, it would then not be inappropriate
for a Constitutional Court while exercising its powers of judicial review       F
to assume such task onto itself and direct compliance through a writ
of mandamus.
      17. A perusal of the Government Orders displays that the
statutory mandate on premature release has been completely
overlooked. The three-factor evaluation of (i) antecedents (ii) conduct         G
during incarceration and (iii) likelihood to abstain from crime, under
Section 2 of the UP Prisoners Release on Probation Act, 1938, have
been given a complete go-by. These refusals are not based on facts or

2
    Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767.                H
30             SUPREME COURT REPORTS                              [2020] 9 S.C.R.


A    evidence, and are vague, cursory, and merely unsubstantiated opinions
     of state authorities.
             18. It would be gainsaid that length of the sentence or the gravity
     of the original crime can’t be the sole basis for refusing premature
     release. Any assessment regarding predilection to commit crime upon
B    release must be based on antecedents as well as conduct of the prisoner
     while in jail, and not merely on his age or apprehensions of the victims
     and witnesses.3 As per the State’s own affidavit, the conduct of both
     petitioners has been more than satisfactory. They have no material
     criminal antecedents, and have served almost 16 years in jail (22 years
     including remission). Although being about 54 and 43 years old, they
C    still have substantial years of life remaining, but that doesn’t prove that
     they retain a propensity for committing offences. The respondent-State’s
     repeated and circuitous reliance on age does nothing but defeat the
     purpose of remission and probation, despite the petitioners having met
     all statutory requirements for premature release.
D           19. Indeed, the petitioners’ case is squarely covered by the ratio
     laid down by this Court in Shor v. State of Uttar Pradesh4, which has
     later been followed in Munna v. State of Uttar Pradesh5, the relevant
     extract of which is reproduced as under:
            “A reading of the order dated 22.01.2018 shows that the
            Joint Secretary, Government of U.P. has failed to apply his
E
            mind to the conditions of Section 2 of the U.P. Act. Merely
            repeating the fact that the crime is heinous and that release
            of such a person would send a negative message against the
            justice system in the society are factors de hors Section 2.
            Conduct in prison has not been referred to at all and the
F           Senior Superintendent of Police and the District Magistrate
            confirming that the prisoner is not “incapacitated” from
            committing the crime is not tantamount to stating that he is
            likely to abstain from crime and lead a peaceable life if
            released from prison. Also having regard to the long
            incarceration of 29 years (approx.) without remission, we do
G           not wish to drive the petitioner to a further proceeding
            challenging the order dated 22.01.2018 when we find that

     3
       Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750.
     4
       2020 SCC OnLine SC 626, ¶ 6.
     5
H      Order dated 21.08.2020 in WP (Crl) 4 of 2020.
       SATISH @ SABBE v. STATE OF UTTAR PRADESH                                  31
                   [SURYA KANT, J.]

       the order has been passed mechanically and without                        A
       application of mind to Section 2 of the U.P. Act.”
                                                     [emphasis supplied]
       20. It seems to us that the petitioners’ action of kidnapping was
nothing but a fanciful attempt to procure easy money, for which they
have learnt a painful life lesson. Given their age, their case ought to be       B
viewed 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 further
concritised by their conduct in jail. It is revealed from the additional
affidavit dated 05.09.2020 filed by Anita @ Varnika (wife of Vikky)
that during the course of his incarceration in jail he has pursued as many       C
as eight distance-learning courses, which include (i) passing his
Intermediate Examination, (ii) learning computer hardware, (iii) obtaining
a degree in Bachelor of Arts; as well as numerous certificates in (iv)
food and nutrition, (v) human rights, (vi) environmental studies. Vikky’s
conduct shines as a bright light of hope and redemption for many other           D
incarcerated prisoners. Compounded by their roots and familial
obligations, we believe it is extremely unlikely that the petitioners would
commit any act which could shatter or shame their familial dreams.
       21. In the present case, considering how the petitioners have
served nearly two decades of incarceration and have thus suffered the
                                                                                 E
consequences of their actions; a balance between individual and societal
welfare can be struck by granting the petitioners conditional premature
release, subject to their continuing good conduct. This would both ensure
that liberty of the petitioners is not curtailed, nor that there is any
increased threat to society. Suffice to say that this order is not
irreversible and can always be recalled in the event of any future               F
misconduct or breach by the petitioners.
       CONCLUSION
       22. For the reasons stated above, the Special Leave Petitions
are disposed of with a direction that the petitioners be released on
probation in terms of Section 2 of the UP Prisoners Release on                   G
Probation Act, 1938 within a period of two weeks. The respondent-
State shall be at liberty to impose conditions as it may deem fit to
balance public safety with individual liberty.

Kalpana K. Tripathy                                     Petitions disposed of.
                                                                                 H