Rajkumar v. the State of Uttar Pradesh
DR. DHANANJAYA Y CHANDRACHUD, CJI
1. On 6 September 2022, this Court in its judgment in Rashidul
Jafar @ Chota Vs State of Uttar Pradesh & Anr 1 issued a slew of
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 Ind ia for
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
undergoing the sentence in the prisons of the State are considered under
Form ‘A’. The State of Uttar Pradesh formulated the Utt ar Pradesh
Prisoners (Release on Probation) Rules 1938. Rule 4 of the Rul es is in
the following terms :-
1 Writ Petition (Criminal) No. 336 of 2019
RAJKUMAR V. THE STATE OF UTTAR PRADESH
“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
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
(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.
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 1973 2 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 Utta r
Pradesh Jail Manual (replaced by paragraphs 177 to 179 of the Jail
Manual 2022) governing the premature release of sick and disab led
persons detained in prisons in the State. Mercy petitions presented by
convicts or by their relatives, as the case may be, under Artic le 161 of
the Constitution are also considered by the Governor of the Stat e. The
State of Uttar Pradesh has formulated a Standing Policy for prem ature
release of prisoners sentenced to suffer imprisonment for life covered
by Article 161 of the Constitution of India. The State Gover nment
formulated a Standing Policy on 1 August 2018. The po licy was
subsequently amended on 27 May 2022.
5. In several decisions of this Court, it has been held that the case
of a convict for premature release is governed by the applicable policy
on the date of conviction [State of Haryana Vs Jagdish 3 and State of
Haryana Vs Raj Kumar 4].
2 “CrPC”
3 (2010) 4 SCC 216
4 (2021) 9 SCC 292
415
6. The Standing Policy of the State of Uttar Pradesh as formulated
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
subsequent policy dated 27 May 2022, the bar on considering cases for
premature release before a convict attains the age of 60 year s stand
lifted. This Court has hence directed that while, as a general principle,
the policy which was in existence on the date of the convic tion would
govern the consideration of each case for premature release, in the event
that a more liberalized policy is instituted subsequently, the case should
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
with in terms of the policy.
8. On 5 January 2023, while entertaining the present case, th is
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
decision of this Court in Rashidul Jafar @ Chota (supra)
for considering cases for pre-mature release and th e
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 Ut tar
Pradesh;
(iii) How many cases have been considered for pre-mature
release since the decision of this Court in Rashidul Jafar @
Chota (supra);
(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 earl ier part of
RAJKUMAR V. THE STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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
prisoners have completed 14 years of actual imprisonment (in terms of
the Rules of 1938 which were prevalent on the date of the convict ion)
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.
10. The affidavit filed by the Director General of Prisons indicates
that in the preceding five years, 3,729 prisoners have been r eleased in
the State of Uttar Pradesh under various arrangements for prem ature
release. Moreover, it has been stated that in terms of the amended policy,
prisoners eligible for premature release are release d on ten annual
occasions, namely :
“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 (10 th
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 pris oners, the
417
tabulated statement annexed to the affidavit indicates the stat us of the
consideration of those cases :
12. Mr Rishi Malhotra, counsel has been requested by this Court
to assist as Amicus Curiae. The note submitted by the Amicus Curiae
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 convi ct who has
undergone 14 years actual sentence is eligible for premature release,
the authorities await the convict undergoing an actual sentenc e 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
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 pr emature
RAJKUMAR V. THE STATE OF UTTAR PRADESH
[DR. DHANANJAYA Y CHANDRACHUD, CJI]
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 re gime being
provided in terms of a subsequent policy determination. The provisions
of the law must be applied equally to all persons. Moreov er, those
provisions have to be applied efficiently and transparently so as to obviate
the grievance that the policy is being applied unevenl y to similarly
circumstanced persons. An arbitrary method adopted by the Stat e 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
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 re lease not having
completed fourteen years of mandatory imprisonment. Of the remaining
pending cases, five cases are pending at District Magistrate level; twenty
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
Prisons.
16. The Miscellaneous Application shall be listed for ve rifying
compliance on 4 May 2023.
Divya Pandey Directions issued.
(Assisted by : Roopanshi Virang, LCRA)