KARTIK SUBRAMANIAM Vs UNION OF INDIA & ANR.
W.P. (Crl .) No. 1642/2020 Page 1 of 37
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 25.01.2021
+ W.P.(CRL) 1642/2020 & CRL.M.A. 13947/2020
KARTIK SUBRAMANIAM ….. Petitioner
versus
UNION OF INDIA & ANR. ….. Respondents
Advocates who appeared in this case:
For the Petitioner : Ms. Warisha Farasat, Mr. Shourya Dasgupta,
Mr. Bharat Gupta and Ms. Hafsa Khan,
Advocates.
For the Respondent s : Ms. Kamna Vohra, ASC for State .
Mr. Nawal Kishore Jha, Advocate for UOI/
R-1.
Mr. Ripudaman Bhardwaj, SPP for R -3/CBI
with Mr . Kushagra Kumar , Advocate.
CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The petitioner – a convict serving life sentence – has filed the
present petition impugning orders dated 26.05.2016, 29.06.2018 and
30.10.2019 issued by respondent no.1 declining to concur with the
recommendation of the Sentence Review Board (here inafter the
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‘SRB’) and the Government of NCT of Delhi for his premature releas e
from imprisonment.
2. The petitioner’s premature release was recommended by the
SRB and approved by the Lt. Governor of NCT of Delhi on four
occasions. However, respondent no.1 did not concur with the said
decision on the first three occasions and its decision on the
recommendation made for the fourth time is pending consideration.
3. The petitioner claims that the decision of the Central
Government to not concur with his premature release is arbitrary and
unreasonable and contrary to the guidelines framed for the aforesaid
purpose . It is contended that the impugned orders passed by the
Central Government are unreasoned and therefore, liable to be set
aside . The petitioner submits that he complies with the conditions as
set out in the SRB Guidelines for premature release. H is cond uct
during the period of his incarceration has been exemplary and has
been recognized as such by the concerned authorities . The SRB had
also found that he had lost his propensity to commit crime. It is
submitted that in the given circumstances , there could be no possible
objection to the petitioner’s premature release. In addition, it is also
submitted that the Central Government’s consent for the petitioner’s
premature release is not mandatory.
Factual Context
4. On 16.03.2001, RC 4(E)/2001/SIU -VII/EOU -IV/EO -II was
registered with the Central Bureau of Investigation (CBI) , pursuant to
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a complaint lodged by one Mrs. Rehamat Siddiqui, which was
forwarded to the Central Bureau of Investigation ( CBI) by the Indian
Ambassador to the United Arab Emirates (UAE) .
5. Upon the investigation being concluded , the charge sheet was
filed on 14.06.2001 against four persons including the petitioner. On
01.07.2002, c harges were framed against the accused . And, they were
tried for the charges framed against them.
6. By a judgment dated 18.03.2005, t he Trial Court convicted the
petitioner under Section 120 -B read with Section s
364A/365/368/324/506 of the In dian Penal Code, 1860 ( hereinafter
the ‘IPC’). By an order on sentence dated 19.03.2005, the petitioner
was sentenced to life imprisonment along with a fine of ₹5,000/ – for
committing the offence s punishable under Section 120 -B read with
Section s 364A/365/368/324/506 of the IPC; (ii) imprisonment for l ife
along with a fine of ₹5,000/ – for the offence punishable under Section
364A of the IPC read with Section 120 -B of the IPC; (iii) rigorous
imprisonment for a period of five years along with a fine of ₹2,000/ –
for the offence punishable under Section 365 read with Section 120 -B
of the IPC; (iv) rigorous imprisonment for a period of five years along
with a fine of ₹2,000/ – for committing an offence punishable under
Section 368 read with Section 120 -B of the IPC; (v) rigorous
imprisonment for a period of one year for committing an offence
punishable under Section 324 read with Section 120 -B of the IPC; and
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(vi) rigorous impri sonment for six months for commission of an
offence under Section 506 read with Section 120 -B of the IPC.
7. The petitioner appealed against his conviction and the sentence
awarded to him by filing an appeal before this Court ( Crl. A. No.
355/2005 ). By a judgment dated 14.12.2007, this Court upheld the
petition er’s conviction for committing an offence punishable under
Section 120-B of the IPC read with Section 364 of the IPC and
Section 364A of the IPC read with Section 120 -B of the IPC.
However, the peti tioner’s conviction for committing offence s
punishable under Section s 365/368/324/506 of the IPC read with
Section 120 -B of the IPC w as set aside.
8. It is relevant to note that the petitioner was aged about twenty –
six years at the time of committing the offence. As on 20.02.2020, the
petitioner has served actual custody for a period of eight een years ,
seven months and one day. During this period, he had also earned
remission of six years , eleven months and fourtee n days. As of date ,
the petitioner has already served more than twenty -six years of his
prison sentence. This includes over nineteen years of actual
incarceration .
9. In terms of the SRB Guidelin es, the petitioner became eligible
for premature release on 07.05.2017. In view of the above, the
petitioner approached this Court by filing a Writ Petition ( W. P. (Crl.)
2646/2015 ), inter alia, praying that he be directed to be released
prematurely. The said petition was disposed of by an order dated
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16.11.2015, whereby this Court directed the respondents to consider
the petitioner’s case for premature release.
10. Pursuant to the aforesaid order, the petitione r’s case for
premature release was considered by the SRB at it s meeting held on
06.01.2016. T he minutes of the said meeting indicate that the CBI as
well as the police opposed the petitioner’s premature relea se. In
addition, the learned Sessions Judge, w ho was also a member of the
SRB, opposed the petitioner’s premature release. However, the Home
Town Polic e and Chief Probation Officer , Delhi recommended the
petitioner’s premature release. The SRB also noted that at the relevant
time, the petitioner had served prison sentence of nineteen years,
seven months and twenty -one days including the remission s earned by
him. He had availed parol e on ten prior occasions and was granted
furlough on four occasions. He had not misused his liberty and
nothing adverse had been reported against him. The meeting had also
noted that the petitioner had participated in educational, vocational
and spiritual courses as well as welfare activities in jail. Considering
the above, the SRB recommended the petitioner’s premature release .
The recommendation of the SRB was forwarded to the Central
Government . However, by a letter dated 26.05.2016, the Central
Government communicated its decision not to concur with the
proposal of the Government of NCT for prematurely releasing the
petitioner under Section 435 of the Cr.PC. The said letter is
reproduced below: –
“By speed post
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F.No.15/07/2016 -Judl
Ministry of Home Affairs
Judicial Division
4th Floor, NDCC Building
Jai Singh Road, New Delhi -110001
Dated 26 May, 2016
To
The Deputy Director (Home)
Home (General) Department
Govt. of National Capital Territory of Delhi
5th Level, Delhi Secretariat
I.P. Estate, Delhi -110002
Subject: Premature release of two lifer convicts
(investigated by CBI) namely Rakesh
Saroha S/o Shri Raghubir Singh and Kartik
Subramanian s/o Shri S. Krishna n,
presently lodged c onfirmed at Tihar Central
Jail, Delhi
Sir,
I am directed to refer to the letter of Home
(General) Department, Government of National Capital
Territory of Delhi No.F.18/102/2003/HG/PT -2016 –
III/022 dated 29.2.2016 on the subject mentioned above
and to say that having regard to all facts and material
placed on record by the Government of NCT of Delhi,
including the objection to the premature release of the
convicts by the CBI, Delhi police and Ld. Addl. Session
Judge mentioned in the minutes of the Sentence
Reviewing Board Meeting, the Central Government does
not consider it to be a fit case for according concurrence
to the proposal of the Govt. of NCT of Delhi under
Section 435 of the Cr.PC.
2. This issues with the approval of the Competent
Authority
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Yours faithfully,
Sd/-
Manas Mandal
Under Secretary (Judicial)”
11. The said decision was communicated to the petitioner on
01.02.201 7, pursuant to the directions issued by this Court in
W.P.(CRL.) 2646/2015 .
12. While the said petition was pending, the SRB once again
considered the petitioner’s case and recommended him for premature
release. The relevant extracts of the meeting of the SRB held on
06.09.2017 reads as under: –
“01.KARTIK SUBRAMANIAM S/O SH. S.
KRISHNAN — AGE –43 Yrs.
Sentence : Kartik Subramanian s/o S. Krishn an is
undergoing life imprisonment in case RC
NO.SIB/2001 -E-0004, U/S 120B r/w 364A IPC, P.S.
CBI/SPE/SIV/VIII/New Delhi, for kidnapping of a
person for ranso m.
Sentence undergone excluding remission as on
30.06.17 : 16 years, 01 month and 23 days.
Sentence undergone including remission : 21 years,
11 month and 21 days.
Release on Parole/Furlough : I. Bail 03, Parole 08
times and Furlough 12 times.
Propensity for committing crime : Nil
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Police Report :
The police opposed his premature release in its report
without any cogent reason, despite the fact that he
remained out of jail on 23 occasions on
parole/furlough.
Probation officer’s Report :
The Probation Officer, Delhi has recommended his
premature relea se as he has to take care of his family.
His conduct in jail is satisfactory. He has Bakery work
and Computer Applications in the jail.
After taking into account all the facts and
circumstances of the case, the Board
RECOMMENDS premature release of conv ict Kartik
Subramaniam s/o S. Krishnan.”
13. The aforesaid recommendation was approved by the Hon’ble
Lt. Governor of Delhi on 12.01.2018. In view of the above, by an
order dated 13.02.2018 , this Court disposed of the aforesaid Writ
Petition [W.P.( CRL.) 2646/2015 ] on the ground that it had become
infructuous. However, t his Court directed respondent no.1 ( the Union
of India) to consider the SRB’s recommendation dated 06.09.2017 on
its merits. It also granted liberty to the petitioner to make a
repre sentation and directed respondent no.1 to consider the same as
well.
14. Pursuant to the aforesaid directions, the petitioner filed his
representation dated 21.02.2018 before the Central Government .
Thereafter, on 10.04.2018, the petitioner once again appro ached this
Court by filing a Writ Petition (W.P. (CRL.) 10 61/2018 ), impugning
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an order dated 25.06.2015. It was petitioner’s case that the said order
was unreasoned and arbitrary and was , therefore , liable to be quashed.
15. Whil st the said petition was pending, respondent no.1 rejected
the second recommendation made by the SRB/Government of NCT of
Delhi by an order (Office Memorandum) dated 29.06.2018. The said
Office Memorandum dated 29.06.2018 is set out below: –
F.No.15/07/2016 -Judl. Cell -II
Government of India/Bharat Sarkar
Ministry of Home Affai rs/Grih Mantralaya
*******
17, Major Dhyanchand National Stadium,
India Gate, New Delhi -110002
Dated: June 29, 2018
OFFICE MEMORANDUM
Subject: Premature release of life convicts Kartik
Subramaniam S/o Shri Krishnan and
Rakesh Saroha S/o Sh. Raghubir Singh
presently confined at Tihar Jail, Delhi
*****
The undersigned is directed to refer to the letter of
House (General) Dept., Govt. of NC T of Del hi
No.F.18/102/2003 -HOME (G)/Pt -2016 -III/3889 dated
21.07.2016 on the above subject and to say that having
regard to facts and material placed on record by the Govt.
of NCT Delhi, the Central Government does not consider
it to be a fit case for according c oncurrence to the
proposal of the Government of NCT Delhi u/s 435 of the
Cr.PC.
2. This issues with the approval of the Competent
Authority.
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Yours faithfully
Sd/-
(Manas Mondal)
Under Secretary (Judicial)
Tel-23094422
16. The petitioner sought to impugn the aforesaid Office
Memorandum dated 29.06.2018 , by seeking to amend the pending
Writ Pet ition ( W.P.(Crl.) 1061/2018 ). However, the said Writ Petition
was withdrawn on 20.08.2018. The petitioner had served more than
twenty -five years of his prison sentence. The petitioner claimed that
his custody beyond the said period was illegal and therefore, withdrew
the said Writ Petition in order to file a petition seeking a writ of
habeas corpus.
17. Thereafter, on 27.05.2019, the petitioner filed a petition [W.P.
(Crl.) 1606/2019] seeking the writ of habeas corpus. While the said
petition was pending, the petitioner also secured an order dated
06.09.2018 from the Hon’ble Supreme Court in W.P. (CRL.)
326/2018 captioned ‘ Kartik Subramanium v. Union of India ’, allowing
the petitioner to be moved to a semi -open jail.
18. In the meanwhile, on 19.07.2019, the SRB once again
recommended the petitioner’s case for premature release. The same
was approved by the Hon’ble Lt. Governor of Delhi on 11.0 9.2019.
The said decision was also forwarded to the Central Government.
And, by an order dated 13.09.2019 passed in W.P.(Crl.)1606/2019 ,
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this Court once again directed the Central Government to consider the
said recommendation.
19. By an order 30.10.2019 ( which is impugned herein), respondent
no.1 once again rejected the said recommendation and declined to
concur with the decision of the Government of NCT of Delhi to
prematurely release the petitioner. The said order is reproduced
below: –
“F.No.15/07/2016 -Judl.Cell -II
Government of India
Ministry of Home Affairs
(Judicial Wing, CS Division)
Major Dhyan Chand Stadium
2nd Floor, India Gate, New Delhi
Dated 30th October, 2019
ORDER
“WHEREAS , the Government of NCT of Delhi
forwarded the case of remission of sentence under
section 435 of the Cr.P.C. in respect of two life convicts
namely Rakesh Saraha S/o Shri Raghubir Singh and
Kartik Subramanian S/o Shri Krishnan to the Ministry
of Home Affa irs vide letter No.18/102/2003 HG/PT –
2016 -III/5267 dated 11.09.2019;
AND WHEREAS , the Hon’ble High Court of Delhi
vide order dated 13.09.2019 in W.P.(Crl.) No.1606/2019
has directed the Ministry of Home Affairs to place a
copy of the order proposed to be p assed by them on
record, before the next date of hearing;
AND WHEREAS , the convicts are undergoing
sentence of life imprisonment for the offence of
kidnapping a man for ransom;
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AND WHEREAS , the case has been forwarded to the
Ministry of Home Affairs by the Government of NCT of
Delhi under Section 435 of the Cr.P.C.
AND WHEREAS , the instant case was investigated by
the CBI and the CBI vide letter no.1621/RC SIU -8/2001
E-0004/EOU -IV dated -01.03.2017 recommended that
the sentence awarded by the competent cour t to both the
convicts is required to be completed in any case and
purpose of award of sentence for life will be fruitless
due to premature release of both the convicts.
AND WHEREAS , the Ministry of Home Affairs again
examined the case of premature relea se of convicts
Rakesh Saraha and Kartik Subramaniam and it was
noted that no new facts have emerged in the proposal of
the Government of NCT of Delhi warranting
reconsideration of its earlier decision;
NOW THEREFORE , the Central Government, in
pursuance of section 435 of the Code of Criminal
Procedure, 1973, do not concur with the proposal for
premature release of the two life convicts namely,
Rakesh Saraha S/o Shri Raghubir Singh and Kartik
Subramanian S/o Shri S. Krishnan.
Sd/-
NITA ARYA)
Under Secretary (Judicial)
Tele: 23075106
The Deputy Secretary
Home (General) Department
Government of NCT of Delhi
5th Level, Delhi Secretariat
I.P. Estate, Delhi”
20. The petitioner amended his Writ Petition (W.P.(CRL.)
1606/2019) to impugn the said order dated 30.10.2019. While the
matter was pending before the Division Bench of this Court , the
Hon’ble Supreme Court rendered a decision on 23.01.2020 in The
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Home Secretary (Prison) and Ors. v. H. Nilofer Nisha : Crl. A. No.
144 of 2020 holding that a petition seeking a writ of habeas corpus
would not be an appropriate remedy for seeking premature/early
release of a convicted prisoner. The Supreme C ourt held th at a relief
in this regard would be in the nature of seeking a writ of certiorari for
quashing the orders rejecting the premature release of a prisoner.
21. In view of the aforesaid decision, the petitioner withdrew his
Writ Petiti on – W.P.(Crl.) 1606/2019 – on 20.03.2020 with liberty to
file an appropriate petition.
22. Prior to that , the SRB once again (now , for the fourth time)
considered the petitioner’s case for his premature release and on
20.02.2020 recommended the same. The said recommendation was
also approved by the Hon’ble Lt. Governor of Delhi on 08.04.2020
and the matter was once again forwarded t o the Central Government.
23. This Court is informed that as of yet no decision has been
rendered by the Central Government in this regard.
Submissions
24. Ms. Warisha Farasat , learned counsel appearing for the
petitioner assailed the impugned orders, essentia lly, on three fronts.
First, she submitted that the impugned orders were unreasoned and
therefore, were liable to be set aside. She relied upon the decision of
the Supreme Court in The Home Secretary (Prison) and Ors. v. H.
Nilofer Nisha (supra ), in support of her contention that the concerned
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authorities must pass a reasoned order in case they refuse to grant a
prisoner the benefit under a scheme for a premature release. Second,
she submitted that the Central Government’s consent was not requir ed
in the present case. She submitted that in certain cases where the
investigation was conducted by the Delhi Special Police Establishment
constituted under the Delhi Special Police Establishment Act, 1946, or
by any other agency empowered to investigate into an offence under
any Central Act other than the Code of Criminal Procedure, 1973
(hereafter the ‘ Cr.PC ’), an order commuting the sentence could not be
passed without consultation with the Central Government. She
submitted that prior to 02.12.2015, the expression ‘consultation’ as
used in Section 435 of the Cr.PC could not be construed to mean
‘consent’ . She stated that the Constitution Bench of the Supreme
Court had in Union of India v. V. Sriharan @ Murugan and Ors. :
(2016) 7 SCC 1 , construed the expression “consultation” as used in
Section 435 of the Cr.PC to mean “consent” but the said decision was
rendered on 02.12.2015 and could not be applied retrospectively . She
reasoned that the said decision was rendered after the petitioner had
become elig ible for his premature release. And, since the said
decision had the effect of adversely affecting his substantive rights, it
could not be applied retrospectively. She relied on the decisions of the
Supreme Court in State of Haryana & Ors. v. Balwan : (1999) 7 SCC
355; State of Haryana v. Mahender Singh & Ors. : (2007) 13 SCC
606; State of Haryana v. Bhup Singh & Ors. : (2009) 2 SCC 268 ; and
Gurmeet Singh v. State of Punjab & Ors .: Crl. W.P. 1281/ 2016
decided on 15.02.2018 .
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25. Next, she submitted that even if the concurrence of the Central
Government is held to be necessary, the Central Government is a lso
required to follow the SRB G uidelines as the same had been lifted
from the guidelines set out by the National Human Rights
Commission in its proceedings dated 20.10.1999.
26. Next, she submitted that the impugned decision of the Central
Government to not concur with the SRB ’s recommendation for
premature release of the petitioner is contrary to the decision of the
Supreme Court in Laxman Naskar v. Union of India & Ors : (2000) 2
SCC 595 .
27. Ms. Farasat also referred to the various decisions of the
Supreme Court including in Zahid Hussein & Ors. v. State of West
Bengal & Anr.: (2001) 3 SCC 750 and State of Haryana & Ors. v.
Jagdish : (2010) 4 SCC 21 6, in support of her contentions as to the
parameters required to be considered by the concerned authorities for
deciding the question of premature release of the petitioner
Reasons and Conclusion
28. The first and foremost question to be addressed is whether the
consent of the Central Government is mandatory for commuting the
sentence awarded to the petitioner.
29. Section 432 of the Cr.PC empowers the appropriate government
to suspend the execution of a sentence or remit whole or any part of
the punishment awarded to any person. Section 433 of the Cr.PC
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empowers the appropriate government to c ommute the sentence
awarded to any person. Sub -section (7) of Section 432 of the Cr.PC
provides that the expression ‘appropriate government ’ as us ed in
Section s 432 and 433 of the Cr.PC would be the Central Government
in case the sentence is for an offence against any law relating to a
matter to which the executive power of the union extend s. In other
cases, the State Government would be the appropriate government .
Section 434 of the Cr.PC provides that the powers conferred by
Section 432 and 433 of the Cr.PC upon the State Government may, in
the case of a sentence of death , also be exercised by the Central
Government.
30. Section 435 of the Cr.PC prohibits the State Government to
exercise powers conferred under Section s 432 and 433 of the Cr.PC in
certain cases , except after ‘consultation ’ with the Central Government.
31. Section 435 of Cr.PC is relevant and is set out below: –
“435. State Government to act after consultation with
Central Government in certain cases.
(1) The powers conferred by sections 432 and 433 upon
the Stat e Government to remit or commute a sentence,
in any case where the sentence Is for an offence –
(a) which was investigated by the Delhi Special
Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of
1946 ), or by any other agency empowered to
make investigation into an offence under any
Central Act other than this Code, or
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(b) which involved the misappr opriation or
destruction of, or damage to, any property
belonging to the Central Government, or
(c) which was committed by a person in the
service of the Central Government while acting or
purporting to act in the discharge of his official
duty, shall not be exercised by the State
Government except after consultation with the
Central Government.
(2) No order of suspension, remission or commutation
of sentences passed by the State Government in relation
to a person, who has been convicted of offences, some
of which relate to matters to which the executive power
of the Union extends, and who has been sentenced to
separate terms of imprisonment which are to run
concurrently, shall have effect unless an order for the
suspension, remission or commutation, as the case may
be, of such sentences has also been made by the Central
Government in relation to the offences committed by
such person with regard to matt ers to which the
executive power of the Union extends.”
32. In the present case, the petitioner was apprehend ed in a joint
operation conducted by the CBI and the State P olice. It is admitted
that the FIR in question was registered with the CBI and the case was
also investigated by the CBI. Thus, undisputedly, the provisions of
Section 435 of the Cr.PC are applicable. The question whether the
concurrence of the Central Governme nt is required in such cases is no
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longer res integra . The Supreme Court in Union of India v. V.
Sriharan @ Murugan & Ors.: (2016) 7 SCC 1 has held as under :-
“174. …….it is , therefore , imperative that it is always
safe and appropriate to hold that in those situations
covered by clauses (a) to (c) of Section 435(1) falling
within the jurisdiction of the Central Government, it w ill
assume primacy and consequently the process of
“consultat ion” should in reality be held as the
requirement of “concurrence .”
33. It is apparent from the above that the Supreme Court has merely
interpreted the provisions of Section 435 of the Cr.PC as enacted; it
has not set down any law , which differs from that enacted by the
Parliament . Thus, the contention that the decision in Union of India
v. Sriharan @ Murugan (supra ) would be applicable prospectively
from the date on which the said decision was rendered is without any
merit. A statute does not become operative from the date on which it
is interpreted. It comes into force on the date of its enactment, unless
otherwise specified.
34. The reliance placed by the learned counsel for the petitioner on
the decisions of the Supreme Court in State of Harya na & Ors. v.
Balwan (supra ), State of Haryana v. Mahender Singh (supra ), and
State of Haryana v. Bhup Singh & Ors. (supra ), are misplaced.
35. In State of Haryana & Ors. v. Balwan (supra) and other
connected matters, the Supreme Court rejected the contention that the
case of a convict for premature release is to be considered on the basis
of the government policy/ instruction , which was in force on the date ,
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when the convict was convicted. The Supreme Court reiterated that
by earning remissions , a life convict does not acquire a right to be
released prematurely. However, if a government has framed any rule
or made any scheme for an early release of such a convict then those
rules and schemes have to be treated as guidelines for exercising
powers under Article 161 of the Constitution of India. It is in this
context , that the Supreme Court held that since the convict had
acquired a right to have his case put up by the prison authorities to the
concerned authority for considering his release in exercise of powers
under Article 161 of the Constitution of India ; it was apposite to treat
the case of such convicts under the government decision/instructions ,
which were prevalent at the time when the case of the convict was
required to be put up before the Governor , under Article 161 of the
Constitution of India. This case is not an authority for the proposition
that the decision of a court interpreting a statuto ry provision would
necessarily have to be applied prospectively.
36. In State of Haryana v. Mahender Singh (supra ), the Supreme
Court once again reiterated that a convict does not have any
constitutional right for obtaining remission in a sentence. However,
he ha s a legal right if it emanates from any statutory acts or rules made
thereunder. The Court further observed that whenever a policy
decision is made, the persons must be treated equally in terms thereof.
It was further observed that the appli cable policy decision would be
the policy as was prevalent at the time of conviction. Plainly, this is
also not a decision which supports the contention that a statutory
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interpretation of a statute must be applied prospectively. The decision
in the case of Union of India v. Sriharan @ Murugan (supra ) did not
result in any change of policy. The said decision merely interpreted
the statutory express ion as used in Section 435 of the Cr.PC.
37. In Bhup Singh (supra ), the Supreme C ourt held that the right to
seek remission of sentence would be under the law as prevailing on
the date of the judgment of conviction. This case is of little relevan ce
in the facts of the present case.
38. Thus, the concurrence of the Central Government for
commuting or remitting the petitioner’s sentence is mandatory.
39. The next question to be examined is whether the decision of the
Central Government in declining to concur with the State Government
of NCT of Delhi and the recommendations of the SRB to prematurely
release the petitioner , is arbitrary and unreasonable.
40. Undisputedly, the petitioner has a right to be considered for
premature release. In State of Haryana v. Mahender Singh (supra ),
the Supreme Court had observed as under: –
“38. A right to be considered for remission, keeping in
view the constitutional safeguards of a convict
under Articles 20 and 21 of the Constitution of
India, must be held to be a legal one. Such a legal
right emanates from not only the Prisons Act but
also fr om the Rules framed thereunder. Although
no convict can be said to have any constitutional
right for obtaining remission in his sentence, he in
view of the policy decision itself must be held to
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have a right to be considered therefor. Whether by
reason of a statutory rule or otherwise if a policy
decision has been laid down, the persons who
come within the purview thereof are entitled to be
treated equally. ( State of Mysore v. H.
Srinivasmurthy [(1976) 1 SCC 817: 1976 SCC
(L&S) 126] ) ”.
41. The decision of the Central Government to not concur with the
recommendation for the premature release of the petitioner must be
examined in the context of the petitioner’s right to be so considered .
As noticed above, the appropriate government has the pow er to
suspend o r remit the sentence under Section 432 of the Cr.PC and to
commute the sentence under Section 433 of the Cr.PC.
42. Although the power s conferred under Section s 432 and 433 of
the Cr.PC are discretionary, i t is well settled that wherever discr etion
is conferred, the authority on which it is confer red must exercise it if
the purposes for which such power is granted , are met . A statutory
power is als o coupled with a duty to exercise the same for the purpose
for which it is conferred .
43. In terms of Section 435 of the Cr.PC, a State Government is
prohibited from exercising powers conferred under Section s 432 and
433 of the Cr.PC to remit or commute a sentence in certain cases ,
except after cons ultation with the Central Government. As noticed
above, the requirement of consultation with a Central Government has
been interpreted to mean with its consent. Therefore, the sentence of a
prisoner , who has been sentenced for an offence (i) which was
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investigated by the CBI or by any other agency empowered to
investigat e into an offence under any Central A ct other than the
Cr.PC ; or (ii) where the person has been convicted of an offence
involving misappropri ation or destruction or damage to any property
belonging to the Central Government ; or (iii) where any offence has
been committed by the person in s ervice of the Central Government
while purporting to act in discharge of his official duty, cannot be
suspen ded, remitted or commuted without the consent of the Central
Government. However, it is implicit that the said consent cannot be
arbitrarily or unreasonably withheld. It is well settled that all State
actions must be informed by reasons and cannot be arbi trary.
Considering that such decision s of the Central Government concern
the right to life and liberty, it is imperative that such a decision also
stand the test of reasonableness on the anvil of Article 14 of the
Constitution of India .
44. In Kasturi Lal Lakshmi Reddy v. State of J&K: (1980) 4 SCC
1, the Supreme Court has observed as under: –
“12….The concept of reasonableness in fact pervades
the entire constitutional scheme. The interaction of
Articles 14, 19 and 21 analysed by this Court in Maneka
Gand hi v. Union of India [(1978) 1 SCC 248 : (1978) 2
SCR 621] clearly demonstrates that the requirement of
reasonableness runs like a golden thread through the
entire fabric of fundamental rights and, as several
decisions of this Court show, this concept of
reasonableness finds its positive manifestation and
expression in the lofty ideal of social and economic
justice which inspires and animates the directive
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principles. It has been laid down by this Court in E. P.
Royappa v. State of Tamil Nadu [(1974) 4 SCC 3 :
(1974) 2 SCR 348 ] and Maneka Gandhi case [(1978) 1
SCC 248 : (1978) 2 SCR 621] that Article 14 strikes at
arbitrariness in State action and since the principle of
reasonableness and rationality, which is legally as well
as philosophically an essential element of equality or
non-arbitrariness, is projected by this Article, it must
characterise every governmental action, whether it be
under the authority of law or in exercise of executive
power without making of law. So also the concept of
reasonableness runs through the tot ality of Article 19
and requires that restrictions on the freedoms of the
citizen, in order to be permissible, must at the best be
reasonable. Similarly Article 21 in the full plenitude of
its activist magnitude as discovered by Maneka Gandhi
case [(1978) 1 SCC 248 : (1978) 2 SCR 621] insists that
no one shall be deprived of his life or personal liberty
except in accordance with procedure established by law
and such procedure must be reasonable , fair and just”.
45. In Maru Ram v. U nion of India & Ors. : (1981) 1 SCC 107, the
Supreme Court considered a challenge to the enactment of Section
433-A of the Cr.PC, inter alia, on the ground it is violative of Article s
72 and 161 of the Constitution of India. The Court rejected the said
challenge while observing that “the source is different, the substance
is different, the strength is different, although the stream may be
flowing along the same bed. We see the two pow ers as far from being
identical, and, obviously, the constitutional power is “untouchable”
and “unapproachable” and cannot suffer the vicissitudes of simple
legislative processes. ”.
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46. Even though the Supreme Court noticed t hat the powers of the
State under Article s 72 and 161 of the Constitution of India stand on a
much higher footing ; it emphasized that the said power too could not
be exercised arbitrarily and must m eet the discipline of Article 14 of
the Const itution of Ind ia. The relevant extract of the said decision is
as under: –
“62. An issue of deeper import demands our
consideration at this stage of the discussion. Wide
as the power of pardon, commutation and release
(Articles 72 and 161) is, it cannot run riot; for no
legal power can run unruly like John Gilpin on
the horse but must keep sensibly to a steady
course. Here, we come upon the second
constitutional fundamental which underlies the
submissions of counsel. It is that all public power ,
including constitut ional power, shall never be
exercisable arbitrarily or mala fide and,
ordinarily, guidelines for fair and equal execution
are guarantors of the valid play of power. We
proceed on the basis that these axioms are valid in
our constitutional order.
63. The j urisprudence of constitutionally canalised
power as spelt out in the second proposition also
did not meet with serious resistance from the
learned Solicitor -General and, if we may say so
rightly. Article 14 is an expression of the
egalitarian spirit of the Constitution and is a clear
pointer that arbitrariness is anathema under our
system. It necessarily follows that the power to
pardon, grant remission and commutation, being
of the greatest moment for the liberty of the
citizen, cannot be a law unto itself but must be
informed by the finer canons of constitutionalism.
In the International Airport Authority case [RD
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Shetty v. International Airport Authority , (1979) 3
SCC 489, 511 -512] this Court stated: (SCC pp.
511-12, paras 20 -21)
“The rule inhibiting arbi trary action by
Government which we have discussed
above must apply equally where such
corporation is dealing with the public,
whether by way of giving jobs or entering
into contracts or otherwise, and it cannot
act arbitrarily and enter into relationship
with any person it likes at its sweet will,
but its action must be in conformity with
some principle which meets the test of
reason and relevance.
This rule also flows directly from the
doctrine of equality embodied in Article 14.
It is now well settled as a result of the
decisions of this Court in E.P.
Royappa v. State of Tamil Nadu [(1974) 4
SCC 3 : 1974 SCC (L&S) 165 : (1974) 2
SCR 348] and Maneka Gandhi v. Union of
India [ Stroud’s Judicial Dictionary Vol 4,
3rd Edn., p. 2836] that Article 14 strikes at
arbitrariness in State action and ensures
fairness and equality of treatment. It
requires that State action must not be
arbitrary but must be based on some
rational and relevant principle which is
non-discriminatory; it must not be guided
by any extraneou s or irrelevant
considerations, because that would be,
denial of equality. The principle of
reasonableness and rationality which is
legally as well as philosophically an
essential element of equality or non –
arbitrariness is projected by Article 14 and
it m ust characterise every State action,
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whether it be under authority of law or in
exercise of executive power without
making of law.”
Mathew, J. in V. Punnen Thomas v. State of
Kerala [AIR 1969 Ker 81 : 1968 Ker LJ 619 : 1968 Ker
LT 800] observed:
“The Gover nment, is not and should not be as free
as an individual in selecting the recipients for its
largesse. Whatever its activity, the government is
still the Government and will be subject to
restraints, inherent in its position in a democratic
society. A demo cratic Government cannot lay
down arbitrary and capricious standards for the
choice of persons with whom alone it will deal.”
If we excerpt again from the Airport Authority
case [(1979) 3 SCC 489, 504, 505] : (SCC pp. 504 &
505 paras 10 & 11)
“Whatever be the concept of the rule of law,
whether it be the meaning given by Dicey in
his The Law of the Constitution or the definition
given by Hayek in his Road to Serfdom and
Constitution of Liberty or the exposition set forth
by Harry Jones in his The Rule of La w and the
Welfare State , there is as pointed out by Mathew,
J., in his article on The Welfare State, Rule of Law
and Natural Justice in Democracy, Equality and
Freedom [ Upendra Baxi, Edn : Eastern Book
Co., Lucknow (1978), p. 28] “substantial
agreement in juristic thought that the great
purpose of the rule of law notion is the protection
of the individual against arbitrary exercise of
power, wherever it is found”. It is indeed
unthinkable that in a democracy governed by the
rule of law the executive Govern ment or any of
its officers should possess arbitrary power over
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the interests of the individual. Every action of the
executive Government must be informed with
reason and should be free from arbitrariness. That
is the very essence of the rule of law and it s bare
minimal requirement. And to the application of
this principle it makes no difference whether the
exercise of the power involves affectation of
some right or denial of some privilege.
… The discretion of the Government has been
held to be not unlim ited in that the Government
cannot give or withhold largesse in its arbitrary
discretion or at its sweet will. It is insisted, as
pointed out by Prof Reich in an especially
stimulating article on The New Property in 73
Yale Law Journal 733, “that Governmen t action
be based on standards that are not arbitrary or
unauthorised”. The Government cannot be
permitted to say that it will give jobs or enter into
contracts or issue quotas or licences only in
favour of those having grey hair or belonging to a
particul ar political party or professing a particular
religious faith. The Government is still the
Government when it acts in the matter of granting
largesse and it cannot act arbitrarily. It does not
stand in the same position as a private
individual.”
It is the pride of our constitutional order that all power,
whatever its source, must, in its exercise, anathematise
arbitrariness and obey standards and guidelines
intelligible and intelligent and integrated with the
manifest purpose of the power. From this angle e ven the
power to pardon, commute or remit is subject to the
wholesome creed that guidelines should govern the
exercise even of presidential power. ”
47. Plainly, in view of the above, the impugned orders passed by
the Central Government must be informed by reason . In cases where
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the Central Government declines its consent , it must be on
consideration of relevant factors . Ms . Farasat had earnestly contende d
that the G uidelines issued by the Government of NCT of Delhi for the
SRB to make recommendations for the premature release of the
prisoners undergoing life sentence would be binding on the Central
Government. Undeniably, the consider ations referred to i n the said
Guidelines are relevant for the purposes of deciding whether a n
eligible prisoner ought to be released prematurely. The said
Guidelines also have the imprimatur of the National Human Rights
Commission as is apparent from the opening paragraph of the Order
dated 16.07.2004 issued by the Government of N CT of Delhi (SRB
Guidelines), which provides for constitution of the SRB and embodies
the scheme for remission of sent ences .
48. In terms of the SRB Guidelines , every convicted prisoner, who
is sentenced to life imprisonment and is covered under the provisions
of Section 433 -A of the Cr.PC , would be eligible for being considered
for premature release from prison immediately after serving sentence
of fourteen years of actual imprisonment (without remission) and the
SRB would take an appropriate decision in this regard after
considering “the c ircumstances in which the crime was commi tted and
other relevant factors such as : (a) whether the convict has lost his
potential for committing crime considering his overall conduct in jail
during the 14 -year incarceration; (b) the possibility of reclaimin g the
convict as a useful member of the society; and (c) socio -economic
condition of the convict’s family ”.
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49. As is apparent from its plain language , the said factors are
relevant but are not exhaustive. Thus, it is also open for the SRB to
take into account other factors , which it considers relevant. Plainly,
the said guidelines would not be binding on the Central Government.
However, as noticed above, the Central Government cannot withhold
its consent arbitrarily and its decision must be informed b y reason.
Thus, it is open for the Central Government to take into account
factors that it considers relevant in deciding whether the prisoner who
has been sentenced to life , ought to be released prematurely .
50. There is no dispute that factors as mentioned in the said order
dated 16.07.2004 (the SRB Guidelines) are duly satisfied in the case
of the petitioner.
51. At this stage , it is relevant to note that the petitioner was placed
in judicial custody on 18.03.2001. Prior to that he had completed his
degree course as a Bachelor of Science from the Delhi University. He
had obtained his Post Graduate Diploma in Advertising Management
from the National Institute of Advertising Society for Education and
Development of Advertising and Communi cation in the year 1997.
Prior to his arrest, he had trained with Ammirati Puris Lintas, Delhi as
an Executive Trainee for a period of two months. Thereafter, he had
worked as a Management Trainee with Rediffusion -Dentsu Young and
Rubicam Limited, Delhi for a period of over one year and three
months. At the time of arrest, he was employed with Hindustan
Thompson, Delhi as an Accounts Representative. Thus, there is no
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doubt that the petitioner has the relevant qualifications to become a
productive member of society.
52. Undisputedly, the petitioner’s conduct in the jail has been
exemplary. During the petitioner’s incarceration, his conduct has been
appreciated by various jail authorities, who have certified that his
conduct in jail has been exemplary. He has been issued numerous
certificates for his conduct and work in jail. On 06.10.2008, the
Superintendent of Jail had awarded him a certificate, which reads as
under: –
“This CERTIFICATE is awar ded to CONVICT Kartik
S/o Sh S. Krishnan for exemplary conduct and integrity
of the highest order. His Faithfulness to the Jail
Administration has earned the admission of Staff and
prisoners alike.”
53. On 24.08.2011, the petitioner was once again awarded a
certificate of recognition by the Jail Superintendent appreciating his
excellent work as a sewadar in the Literacy Programme “ Padho aur
Padhao ”. On 24.09.2011, the Jail Superintendent issued another
certificate in appreciation of his “ excellent contribution in jail factory
and reformation and rehabilitation of other convicts ”. On 30.01.2012,
the petitioner was awarded a certificate for in “ appreciation of
outstanding conduct and contribution towards working of jail
factory ”. On 15.08.2012, the petitioner was awarded another
certificate in “ appreciation of commendable work in office and factory
administration ”. He was also awarded a cash prize of ₹350/-. On
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26.01.2013, the petitioner was awarded a certificate in “ appreciation
of excellent contr ibution in Bakery Unit of jail factory ”.
54. On 15.06.2013, the petitioner was awarded a letter of
appreciation by the Jail Superintendent, which reads as under: –
“I would like to convey my appreciation to Kartik
Subramaniam for his efforts, and assistance i n the
running of Bakery unit of Jail Factory and contribution
in the day -to-day functioning in office as well. Jail
Factory including Bakery has shown tremendous
improvement in all spheres and the sales this year i.e.
2012 -2013 has reached exponential heig hts. The inputs
provided by him,his counselling to fellow inmates to
work and perform better and guiding them towards the
path of reformation and rehabilitation have been
commendable and noteworthy.
He also assists in the administrative works of convict
office and Line office. He also draws attention to the
genuine problems faced by fellow inmates such as delay
in the verification process of sureties through wireless
messaging and other legitimate pro blems. He acts as the
interface between the Jail administration and fellow
inmates.
His excellence conduct in jail deserves special mention.
I would like him to keep up the good work in future and
wish him success in his endeavors.”
55. On 15.08.2013, he was awarded yet another certificate in
“appreciation of exemplary conduct and outstanding work in bakery
unit of jail factory ”. On 23.09.2013, he w as awarded another
certificate in “appreciation of commendable work during the visit of
delegates of APCCA 2013 on 23.09.2013 ”. He was also issued a letter
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of appreciation dated 25.09.2013 for his assistance in the successful
culmination of the visit of the delegates of Asia Pacific Conference for
Correctional Administrators (APCCA) in 2013.
56. On 04.11.2013, the p etitioner was granted special remission
under Rule 80(2)(B), Part VI of Delhi Jail Manual by the Deputy
Inspector General of Prisons for a period of forty -five days. The
relevant extract of the letter granting him special remission for a
period of forty -five days reads as under: –
“The applicant has been appreciated for his efforts and
assistance in the running of Bakery Unit in Jail Factory
and contribution in the day -to-day functioning in office
as well Jail factory including Bakery has shown
tremendous improvement in all spheres and the sales
this year i.e. 2012 -13 has reached exponential heights.
The inputs provided by the applicant, counselling to
fellow inmates to work and perform better and guiding
them towards the path of reformation and rehabilitation
have been recognized.
The Applicant also assists in the administrative works of
Convict Office and Line Office.
The Applicant was recently awarded an appreciation
letter by SCJ -2 for his handing and contribution towards
the successful hosting of delegates of Asian Pacific
Conf erence or Correctional Administration (APCCA),
2013 in this Jail, held on 23.09.2013. this aforesaid
contribution was also appreciated by the worthy DIG(P).
In view of his “Special Excellence and Work of Good
Quality” and for his continuous and uniform go od work
over the years, his work needs to be recognized by
granting Special Remission for a period of 45 days /
annum. Considering his good conduct and work, file is
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submitted for consideration of grant of “Special
Remission” (SR) of 45 days / annum for th e period
mentioned below (last two convict years).”
57. On 26.01.2014, the petitioner was awarded a certificate of
recognition from the Jail Superintendent, in “ appreciation of good
conduct and hard work on the occasion of Republic Day, 2014 ”.
58. On 19.10.2014 , the petitioner was granted a special remission of
forty -five days under Rule 80(2)(B), Part VI of the Delhi Jail Manual.
59. In addition to the above, the petitioner has also been issued
several letters/certificates in appreciation of his conduct. The
petitioner had also participated in various programs including quiz zes,
organized on three occasions. In addition to the certificates/letters of
appreciation, as noted above, the pet itioner was also issued several
other certificates. It is not necessary to refer to them in any detail .
However, suffice it to state that the petitioner’s conduct in jail has
been exemplary and his conduct and participation in various activities
has been a ppreciated by the concerned jail authorities.
60. As noticed above, his conduct in the jail premises has been
exemplary. Apart from that he has also proved himself useful in
running the bakery unit in the jail factory and has also assisted in
organizing va rious events. The letter s of appreciation issued to the
petitioner by the jail authorities as well as the special remission
granted to him on t wo occasions clearly establishe the same.
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61. It is also relevant to note that as per the directions of the Jail
Superintendent , enquiries (social investigation) were made from the
petitioner’s family and neighbo urs. The relevant extract of his social
investigation report dated 04.04.2015 , is set out below: –
“In connection with the inquiry only the convict father
and four neighbours came forwarded to give their
statement regarding the nature and habits of the convict.
The following is the summary of the investigation:
1. Convict Kartik (Now aged 41 y ears) B.Sc.
& M.B.A. and is now life Convict under
custody in Central Jail No. -2, Tihar -Delhi.
2. As per the statement of father he has 01 son
and 01 daughter convict Kartik is the elder
son in his family.
3. As per the statement of his father and the
neighbour that behavior of convict is fine.
His father stated that there is no previous
complaint in this regard except above FIR.
4. Four neighbours came forward to record
their statement about the nature and habits
of the convict. They stated that the conv ict
nature and habits are fine and there has
been no previous compliant.
5. As per the father statement that that convict
Kartik wants to work in any private
company in future.
In view of the investigation and based on the
statement of the convict’s father and four neighbours, it
appears that the nature and habits of the convict Kartik
is fine.”
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62. The petitio ner’s father is now aged about eighty -one years and
it has also been verified that he is being treated for gallbladder cancer.
63. In the given facts and circumstances of the case, the
recommendation of the SRB for premature release of the petitioner is
a well-considered one and unless there is any r elevant reason to
dissent from the same, the same is ought to be accepted.
64. In this case, the impugned orders declining to consent for a
premature release of the petitioner are unreasoned. In the impugned
order dated 26.05.2016, the Central Government had stated that it did
not consider the petitioner’s case to be a fit case for according
concurrence as the petitioner’s premature release ha d been objected to
by the CBI as well as the learned Additional Sessions Judge, who was
a part of the SRB . As stated a bove, SRB had recommended the
petitioner’s release on three occasions thereafter. However , the
CBI/police opposed the petitioner ’s release.
65. It is important to note that CBI ha s not provided any cogent
reason for opposing the petitioner’s premature release. The only
reason provided by them is that the petitioner had been sentenced to
life imprisonment and the Supreme Court ha s in a number of
decisions, explained that the life sentence would mean the natural l ife
of the convict. This Court has also examined the counter affidavit filed
by the CBI and the only objection for the petitioner’s premature
release as articulated therein reads as under: –
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“The sentence awarded by the competent court to
convict/petitioner is required to be completed and
purpose of award of sentence for life will be fruitless
due to premature release of convict/petitioner.”
66. Plainly, the above reason is , ex-facie , untenable. This is so for
the simple reason that if the said reason is to be followed then no
convict, who had been awarded life imprisonment , can be release d
prematurely. And, it is not the Central Government’s stand that
powers under Section 435 of the Cr.PC should not be exercised in any
case.
67. In Laxman Naskar v . Union of India & Ors . (supra ), the
Supreme Court highlighted the conduct of the convict; whether the
convict has lost the potential for committing a crime; whether there is
any fruitful purpose in confining him any further; and his socio –
economic condition as the relevant factors for considering the
convict’s premature release. There is no dispute that the SRB had
considered the aforesaid factors in making its recommendation. And,
it is apparent that neither responde nt no. 1 nor the CBI had taken these
factors into account in arriving at their decision to oppose the
petitioner’s premature release.
68. It is also relevant to note that the CBI ha d also consistently
opposed the petitioner’s release on parole on the ground t hat a co –
convict had absconded after being released on parole. However, the
petitioner was released on parole and furlough on several occasions
and there has been no report that he had misused his liberty.
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69. It is clear from the above that CBI has opposed the petitioner’s
release without examining the petitioner’s conduct and other relevant
facts, which clearly indicate that the petitioner has accepted the
reformative proce ss as is reflected by his exemplary c onduct. There is
also no doubt that he also has a propensity to serve as a useful member
of society .
70. In view of the above, it is clear that the decision of the Central
Govern ment , to not concur with the recommendations of the SRB for
premature relea se of the petitioner , is arbitrary and without
considering any relevant factors. It is without application of mind and
is not informed by reason. Plainly, the impugned orders cannot be
sustain ed.
71. Accordingly, the impugned orders are set aside.
72. Since this Court is unable to find any cogent reasons for
respondent no. 1 to dissent from the recommendation of the SRB, this
Court directs the respondents to forthwith process the petitioner’s
premature release in terms of the recommendations of the SRB and a s
approved the Hon’ble L t. Governor of Delhi.
73. The petition is allowed in the aforesaid terms. The pending
application is also disposed of.
VIBHU BAKHRU, J
JANUARY 25, 2021
MK
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