Dharmendra vs State Of Uttarakhand And Others

G. Narendar, CJ

The instant Writ Petition (Crl) is preferred by the convict-Dharmendra, aged about 38 years, S/o Dhruv Singh, R/o Chakferi, P.S. Pantnagar, District Udham Singh Nagar, who came to be convicted by the judgment and order dated 30.04.2010 passed by the learned Additional Sessions Judge/ First Fast Track Court, Roorkee District Haridwar in Session Trial No. 92/ 2008, for the offences punishable under Sections 364A, 302 & 201 I PC.

It is the case of the petitioner that he has been incarcerated for the last 17 years, thereby implying that he has been languishing in jail from the age of 20; that a policy has been framed by the State known as “The Uttarakhand State (for sentence Pardon/ Premature release of convicted prisoners punished with sentence of imprisonment for life by the court) Permanent Policy, 2022; that the petitioner has undergone an actual sentence of 16 years 09 months and 05 days, i.e. almost 17 years as on today, yet his case has not been considered by the Competent Authority for premature release.

The issue is no more res integra. The Hon’ble Apex Court in IN RE: POLICY STRATEGY FOR GRANT OF BAIL, Suo Motu Writ Petition (Crl.) No. 04 of 2021 with Special Leave Petition (Crl.) 529 of 2021 has been pleased to issue certain directions. Paragraph nos. 21 & 22 reads as under :

21) We, therefore, record the following conclusions:

a) Where there is a policy of the appropriate Government laying down guidelines for consideration of the grant of premature release under Section 432 of the CrPC or Section 473 of the BNSS, it is the obligation of the appropriate Government to consider cases of all convicts for grant of premature release as and when they become eligible for consideration in terms of the policy. In such a case, it is not necessary for the convict or his relatives to make a specific application for grant of permanent remission. When the jail manual or any other departmental instruction issued by the appropriate Government contains such policy guidelines, the aforesaid direction will apply;

b) We direct those States and Union Territories that do not have a policy dealing with the grant of remission in terms of Section 432 of the CrPC or Section 473 of the BNSS to formulate a policy within two months from today;

c) Appropriate Government has the power to incorporate suitable conditions in an order granting permanent remission. Consideration of various factors, which are mentioned in the paragraph 13 above by way of illustration, is necessary before finalizing the conditions. The conditions must aim at ensuring that the criminal tendencies, if any, of the convict remain in check and that the convict rehabilitates himself in the society. The conditions should not be so oppressive or stringent that the convict is not able to take advantage of the order granting permanent remission. The conditions cannot be vague and should be capable of being performed;

d) Order granting or refusing the relief of permanent remission must contain brief reasons. The order containing reasons should be immediately communicated to the convict through the office of the concerned prison. The copies thereof should be forwarded to the Secretaries of the concerned District Legal Services Authorities. It is the duty of the prison authorities to inform the convict that he has the right to challenge the order of rejection of the prayer for the grant of remission.

e) As held in the case of Mafabhai Motibhai Sagar, an order granting permanent remission cannot be withdrawn or cancelled without giving an opportunity of being heard to the convict. An order of cancellation of permanent remission must contain brief reasons;

f) The District Legal Services Authorities shall endeavour to implement NALSA SOP in its true letter and spirit.

g) Further, the District Legal Services Authorities shall also monitor implementation of conclusion (a) as recorded above. For this purpose, the District Legal Services Authorities shall maintain the relevant date of the convicts and as and when they become eligible to a consideration for grant of premature release, they shall do the needful in terms of conclusion

(a). The State Legal Services Authorities shall endeavour to create a portal on which the data as aforesaid can be uploaded on real time basis.

22) In terms of what we have held earlier, various issues raised regarding the grant of permanent remission stand answered on the above terms. Other issues will be considered on the dates already fixed.”

In that view of the matter, the non-consideration of the petitioner’s case appears to be unjustified. In the light of the directions issued by the Hon’ble Apex Court noted supra, there shall a direction to the respondent/ State to refer the case of the petitioner to the Competent Authority for consideration of his premature release, in accordance with the policy noted supra. The respondents shall place the case of the petitioner before the Competent Authority for reconsideration of his case within six weeks. We direct the reconsideration of the petitioner’s case, in view of the law laid down by the Hon’ble Apex Court, as noted supra, wherein it has been held in paragraph no. 22 that there cannot be rejection of any application for remission or premature release, without affording an opportunity of hearing.

With the aforesaid directions, the Writ Petition (Crl) stands disposed off.