SHARAFAT ALIversusSTATE OF UTTAR PRADESH AND ANOTHER

696                      [2022]REPORTS
               SUPREME COURT    1 S.C.R. 696                [2022] 1 S.C.R.


A                               SHARAFAT ALI
                                        v.
               STATE OF UTTAR PRADESH AND ANOTHER
                    (Writ Petition (Criminal) No. 439 of 2021)
B                             FEBRUARY 10, 2022
        [DR. DHANANJAYA Y CHANDRACHUD, SURYA KANT
                   AND VIKRAM NATH, JJ.]
             Premature release – Relevant considerations – Held:
      Application for premature release has to be considered on the basis
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      of the policy as it stood on the date when the petitioner was convicted
      of the offence – Applicant’s prior criminal history, his conduct and
      behavior in jail, and possible danger to the society on his release
      are to be adverted to – There has to be a considered application of
      mind to the facts of each case – On facts, petitioner convicted u/s.
D     302/34 IPC and sentenced to life imprisonment, had undergone 17
      years, 9 months and 26 days of imprisonment and submitted an
      application for premature release which was rejected – Said order
      by the State government is bereft of an application of mind to relevant
      circumstances bearing on whether the petitioner should be released
      prematurely – Order contains general observations to the effect
E
      that the release may result in resentment on the side of the victim,
      but this is a general consideration – Order rejecting the application
      for premature release suffers from a complete and patent non-
      application of mind – Issuance of direction to reconsider the
      application of the petitioner for premature release afresh, on basis
F     of the policy as it stood when the petitioner was convicted of the
      offence – Constitution of India – Arts. 21, 32.
            State of Haryana & Ors. vs Jagdish (2010) 4 SCC 216
            : [2010] (3) SCR 716; State of Haryana and Others vs
            Raj Kumar @ Bitu (2021) 9 SCC 292 – relied on.
G                            Case Law Reference
      [2010] (3) SCR 716             relied on                   Para 6
      (2021) 9 SCC 292               relied on                   Para 6

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                                       696
    SHARAFAT ALI v. STATE OF UTTAR PRADESH AND ANOTHER                        697


      CRIMINAL ORIGINAL JURISDICTION: Writ Petition                           A
(Criminal) No. 439 of 2021.
        Under Article 32 of The Constitution of India.
        K. L. Janjani, Anil Kumar Pandey, Advs. for the Petitioner.
    Ardhendhumauli K. Prasad, AAG, Vikas Bansal, Shashi Shekhar
Kumar Prasad, Rohit Kumar Singh, Advs. for the Respondents.                   B

        The Judgment of the Court was delivered by
        DR. DHANANJAYA Y CHANDRACHUD, J.
        1. The jurisdiction of this Court has been invoked under Article 32
of the Constitution for the enforcement of the right under Article 21 of      C
the Constitution, following an order dated 30 July 2021 rejecting the
application of the petitioner for premature release.
        2. The petitioner has been convicted for an offence punishable
under Section 302 read with Section 34 of the Indian Penal Code 18601
on 17 January 2005 and sentenced to life imprisonment. The judgment
of the trial Judge was affirmed in appeal by the High Court of Judicature     D
at Allahabad on 3 June 2016. The Special Leave Petition under Article
136 of the Constitution was dismissed by this Court on 20 April 2018.
        3. The petitioner had undergone 17 years, 9 months and 26 days
of imprisonment and submitted an application for premature release.
The application for premature release was rejected on 30 July 2021.           E
The order communicating the rejection of the application which has been
passed by the State government records that the District Magistrate and
the Superintendent of Police Amethi had in their report stated that if the
petitioner is released prematurely, the possibility that this may cause
resentment among the side of the victim cannot be ruled out nor can the
                                                                              F
possibility of an offence being committed again by the petitioner be
excluded. The order also states that the petitioner has an “extremist
nature” and the presence of bitterness among the parties cannot be
denied.
        4. Notice was issued in the petition on 8 November 2021, in
pursuance of which a counter affidavit has been filed on behalf of the        G
State of Uttar Pradesh.
        5. We have heard Mr K L Janjani, counsel for the petitioner and
Mr Ardhendu Mauli Kumar Prasad, Additional Advocate General for
the State of Uttar Pradesh.
1
    “IPC“                                                                     H
698               SUPREME COURT REPORTS                         [2022] 1 S.C.R.


A            6. The first principle which must be noted, while adjudicating upon
      the petition is that the application for premature release has to be
      considered on the basis of the policy as it stood on the date when the
      petitioner was convicted of the offence. This principle finds reiteration
      in several judgments of this Court such as State of Haryana & Ors. vs
      Jagdish2. The most recent of them is the decision in State of Haryana
B
      and Others vs Raj Kumar @ Bitu3.
             7. The order which has been passed by the State government in
      the present case is bereft of an application of mind to relevant
      circumstances bearing on whether the petitioner should be released
      prematurely. The order contains general observations to the effect that
C     the release may result in resentment on the side of the victim, but this is
      a general consideration which would govern virtually all criminal offences
      where a person stands convicted of a serious offence, as in the present
      case under Section 302 read with Section 34 of the IPC. The order does
      not contain any reference whatsoever to whether the petitioner possesses
D     any prior criminal history, save and except for the present case. Similarly,
      the order is completely silent on the conduct and behavior of the petitioner
      in jail and after he was convicted of the offence. The relevant
      considerations bearing upon whether the release of the petitioner would
      pose a danger to society have not been adverted to. There has to be a
      considered application of mind to the facts of each case.
E
            8. In the circumstances, the order which has been passed rejecting
      the application of the petitioner for premature release suffers from a
      complete and patent non-application of mind.
             9. For the above reasons, we allow the petition by setting aside
      the impugned order dated 30 July 2021 passed by the Government of
F     Uttar Pradesh. We direct that the application of the petitioner for
      premature release shall be reconsidered on the basis of the policy as it
      stood on 17 January 2005, when the petitioner was convicted of an offence
      under Section 302 read with Section 34 of the IPC. The application shall
      be considered afresh without the petitioner being required to file any
G     fresh application for premature release. An order shall be passed after
      taking into account all relevant facts and circumstances including those
      which have been adverted to above. This exercise shall be completed
      within a period of two months from the date of this order.
      2
          (2010) 4 SCC 216
H     3
          (2021) 9 SCC 292
   SHARAFAT ALI v. STATE OF UTTAR PRADESH AND ANOTHER                            699
          [DR. DHANANJAYA Y CHANDRACHUD, J.]

        10. The petition is accordingly disposed of.                             A
        11. Pending applications, if any, stand disposed of.


Nidhi Jain                                               Petition disposed of.

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