conditional premature release, subject to their continuing good conduct. - petitioners be released on probation in terms of Section 2 of the UP Prisoners Release on Probation Act, 1938
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 viewed through a prism of positivity. They retain the ability to reintegrate 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 as eight distancelearning 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 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. In the present case, considering how the petitioners 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 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.
CONCLUSION
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 Probation Act, 1938 within a period of two weeks. The respondentState shall be at liberty to impose conditions as it may deem fit to balance public safety with individual liberty.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (CRL.) NO. 7369 of 2019
Satish @ Sabbe ..... Petitioner(s)
VERSUS
The State of Uttar Pradesh .....Respondent(s)
WITH
SPECIAL LEAVE PETITION (CRL.) NO. 8326 of 2019
JUDGMENT
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 under Section 364A of the Indian Penal Code,
1860 (hereinafter, “IPC”) and consequential sentence of life
imprisonment, was turned down.
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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
meet a friend, he was stopped by an acquaintance Ramvir Rana who
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
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
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 and Rs.31.70 lakhs were recovered. Although the police
witnessed them talking to Ramvir and Vishal (victim); Ashok, Satish
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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
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 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 364A 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
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.
5. All four accused appealed against their convictions before the
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Allahabad High Court. After a detailed reappreciation 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
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 364A of IPC, but
conviction under Section 25 of the Arms Act was set aside.
PRESENT PROCEEDINGS
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 the respondentState, 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 respondentState of Uttar Pradesh to
know whether the petitioner is entitled for premature release from
the prison as per the Jail Manual”
7. Separate counteraffidavits have consequently been filed by the
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respondentState on 18.12.2019, interalia, 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
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 longperiod of incarceration
undergone by the petitioners and infirmities in consideration of their
prayers for premature release as highlighted by their counsels, this
Court 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 the case of
the petitioner (Satish @ Sabbe) in Special Leave Petition (Crl.)
No.7369 of 2019, which is stated to be pending 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 the orders before this Court.”
9. It was brought to the notice of this Court on the next date of
hearing that the respondentState 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
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on 29.01.2018. This was contended to be in contravention of the
directions 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 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 setaside the Orders
rejecting petitioner’s prayer for premature release.
10. Finding that earlier orders directing fresh consideration of
petitioners’ cases for premature release had not been faithfully
complied with, this Court on 25.08.2020, once more directed the
respondentState 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 aforestated 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
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considered afresh Satish’s case and has refused probation for the
reasons that – first, the crime is heinous, second, petitioner is hardly
5354 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 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
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
nonapplication 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.
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ANALYSIS
13. Whilst it is undoubtedly true that society has a right to lead a
peaceful and fearless life, without freeroaming criminals creating
havoc in the lives of ordinary peaceloving 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 be fostered. Thus, firsttime offenders
ought to be liberally accorded a chance to repent their past and lookforward 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
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
preconditions for release. The only embargo under Section 433A of
CrPC is against the release of persons sentenced to life imprisonment
till they have 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:
1
Maru Ram v. Union of India, 1981 (1) SCC 107.
Page | 8
“2. Power of Government to release by licence on conditions
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 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 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]
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
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
2
Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767.
Page | 9
judicial review 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
threefactor evaluation of (i) antecedents (ii) conduct 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 goby. These refusals are not based on facts or 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
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 still have substantial years of life remaining,
but that doesn’t prove that they retain a propensity for committing
3
Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750.
Page | 10
offences. The respondentState’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.
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 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 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 not wish to drive the petitioner to a further
proceeding challenging the order dated 22.01.2018 when we find
that the order has been passed mechanically and without
application of mind to Section 2 of the U.P. Act.”
[emphasis supplied]
4
2020 SCC OnLine SC 626, ¶ 6.
5
Order dated 21.08.2020 in WP (Crl) 4 of 2020.
Page | 11
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
viewed through a prism of positivity. They retain the ability to reintegrate 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 as eight distancelearning 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 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
consequences of their actions; a balance between individual and
societal welfare can be struck by granting the petitioners conditional
Page | 12
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 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
Probation Act, 1938 within a period of two weeks. The respondentState shall be at liberty to impose conditions as it may deem fit to
balance public safety with individual liberty.
…………………………….. J.
(N.V. RAMANA)
…………………………… J.
(SURYA KANT)
…………………………...J.
(HRISHIKESH ROY)
NEW DELHI
DATED : 30.09.2020
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