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2010 DIGILAW 495 (ALL)

BACHCHE LAL v. GOVERNMENT OF U. P.

2010-02-05

AMAR SARAN, S.C.NIGAM

body2010
JUDGMENT AMAR SARAN and S.C. NIGAM, JJ. – Heard Sri Patanjali Misra, learned AGA. 2. This is a matter in which mainly this Court is monitoring the cases of convicted prisoners who have actually undergone more than 14 years and are still in Jail. 3. In pursuance of our last order dated 2.9.2009, a supplementary affidavit was filed on behalf of the I.G. (Prisons) dated 22.10.2009 and a compilation dated 5.2.2010 has been filed today by the learned AGA. The compilation shows that there are 267 prisoners who have undergone 14-16 years imprisonment, 103 prisoners who have undergone 16-18 years imprisonment, 93 prisoners who have undergone 18-20 years imprisonment, 61 prisoners have undergone 20-22 years imprisonment, 41 prisoners have undergone 22-24 years imprisonment, 10 prisoners have undergone 24-26 years imprisonment, 3 prisoners have undergone 26-28 years imprisonment, 3 prisoners have undergone 28-30 years imprisonment and 4 prisoners who are in jail for more than 30-32 years, meaning thereby if' that there is a total of 585 such prisoners. No doubt the supplementary affidavit shows that in the cases of 230 prisoners out of 585, the Form-A have been refused/rejected. The nominal roles of 456 cases were disposed of by rejection or as ineligible and only in three cases were the prisoners released. Looking to the chronic over crowding in the prisons, we think that the release of only 5 prisoners amongst these cases, who have undergone more than 14 years appears to be an unduly small number. 4. We also find that the supplementary affidavit on behalf of the I.G. (Prisons) shows that there is delay in disposal of Form-A and nominal roles especially at the level of District Magistrates and the Government level, and so far as consideration of releases on licence on Form A, also at the jail level. 5. These delays are in contravention of the Government Order dated 6.9.2004 issued in pursuance of our earlier order dated 16.8.2004, which provides that as soon as the prisoner became eligible for premature release, within a week of his eligibility for consideration of his Form A or nominal role, the jail authorities were to forward the same after completing necessary formalities to the S.P., D.M. and Probation Officer alongwith the copy of the judgment. After obtaining nominal roles or Form-A, the SPs and Probation Officers were directed to forward their comments within 15 days to the District Magistrates. After obtaining nominal roles or Form-A, the SPs and Probation Officers were directed to forward their comments within 15 days to the District Magistrates. Within one week thereafter, the District Magistrates were to submit the nominal roles/Form A to the Advisory Board headed by the I.G. Prisons which was to consider the nominal roles/Form-A, within 15 days. The Advisory Board was to forward the same immediately thereafter to the State Government. Time schedules have also been fixed for dealing with cases relating to sick or terminally sick prisoners in the G.O. dated 6.9.2004. 6. The State Government may consider the appropriateness of two suggestions in the compilation given by the AGA. One, that if the concerned authorities fail to give their reports within the periods mentioned above, the higher authorities and the State which are required to deal in the matter may take the next step, without keeping the matter unnecessarily pending as has happened with many of the pending ,matters, and may proceed further and decide whether the prisoner is eligible for premature release in lifer matters. This decision could be taken if there is material on record to form an opinion that a prisoner under life sentence who has undergone more than 14 years actual imprisonment could be released in the light of the guidelines laid down in the decisions of this Court, the Apex Court and the National Human Rights Commission. The I.G. (Prisons) could also call for any further information from any subordinate authority, that could furnish information in the matter for helping the advisor board headed by him to decide a prisoners case. The consideration of the case will not be unduly postponed simply be cause one authority neglects to perform his duties in considering the matter as prescribed by the Government Orders. In this context we find that this direction contained in our order dated 16.8.2004 and the Government Order dated 6.9.2004 have been observed more in their breach and that is the reason for the extreme delay in pendency of these applications as indicated above. Two, the compilation filed by the AGA suggested that once nominal role is rejected, the fresh nominal role is issued only after three years. Two, the compilation filed by the AGA suggested that once nominal role is rejected, the fresh nominal role is issued only after three years. We also agree with the suggestion that the period for again forwarding the nominal role be reduced from three years to one year, and that appropriate orders be passed by the State Government in this regard. 7. Good suggestions have also been made by the National Human Rights Commission in its directions' dated 26.9.2003 modifying its earlier directions dated 8.11.1999 suggesting guidelines for appropriate periods in prison for different categories of lifers, and fixing norms for consideration of applications for release. The relevant extract reads as follows. “Eligibility for premature release. (3) Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of section 433-A, Cr.P.C. shall be eligible to be considered for premature release from the prison immediately after serving out the sentence of 14 years of actual imprisonment i.e. without remissions. It is, however, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the Sentence Review Board shall have the discretion to release a convict, at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant factors like: (a) whether the convict has lost his potential for committing crime considering his overall conduct in jail during the 14 years incarceration; (b) the possibility of reclaiming the convict as a useful member of the society; and . (c) socio-economic condition of the convict's family. With a view to bring about uniformity the State/D.T. Governments are, therefore, advised to prescribe the total period of imprisonment to be undergone including remissions, subject to a minimum of 14 years of actual imprisonment before the convict prisoner is released. The Commission is of the view that total period of incarceration including remissions in such cases should ordinarily not exceed 20 years. Section 433-A was enacted to deny premature release before completion of 14 years of actual incarceration to such convicts as stand convicted of a capital offence. The commission is of the view that within this category a reasonable classification can be made on the basis of the magnitude, brutality and gravity of the offence for which the convict was sentenced to life imprisonment. The commission is of the view that within this category a reasonable classification can be made on the basis of the magnitude, brutality and gravity of the offence for which the convict was sentenced to life imprisonment. Certain categories of convicted prisoners undergoing life sentence would be entitled to be considered for premature release only after undergoing imprisonment for 20 years including remissions. The period of incarceration inclusive of remissions even in such cases should not exceed 25 years. Following categories are mentioned in this connection by way of illustration and are not to be taken as an exhaustive list of such categories: (a) Convicts who have been imprisoned for life for murder in heinous cases such as murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act, 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the jail, murder during parole, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty. (b) Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with premeditation and with exceptional violence or perversity. (c) Convicts whose death sentence has been commuted to life imprisonment. (3.2) All other convicted male prisoners not covered by section 433-A, Cr.P.C. undergoing the sentence of life imprisonment would be, entitled to be considered for premature release after, they have served at least 14 years of imprisonment inclusive of remissions but only after completion of 10 years actual imprisonment i.e. without remissions. (3.3) The female prisoners not covered by section 433-A, Cr.P.C. undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions. (3.4) Cases of premature release of persons undergoing life imprisonment before completion of 14 years of actual imprisonment on grounds of terminal illness or old age etc., can be dealt with under the provisions of Article 161 of the Constitution and old paras 3.4 and 3.5 are therefore redundant and are omitted.’ 8. (3.4) Cases of premature release of persons undergoing life imprisonment before completion of 14 years of actual imprisonment on grounds of terminal illness or old age etc., can be dealt with under the provisions of Article 161 of the Constitution and old paras 3.4 and 3.5 are therefore redundant and are omitted.’ 8. Another important' point has been made in the Division Bench decision in Mehandi Hasan v. State of U.P. that the recommendations of the S.P., District Magistrate, Probation Officer and Advisory Board must be based on objective considerations and they must pass an order recording reasons why on release on licence in particular cases the prisoner may not lead a peaceable life, or for some other reasons the release may prove counter-productive. The opinion must be based on antecedents and conduct in prison and other relevant factors and not be the mere ipse dixit of the authority concerned. We therefore issue the following directions: . (1) The authorities concerned and the Government shall reconsider the cases dealing with nominal roles for premature release on licence in Form-A, in respect of the 585 life imprisonment prisoners who have undergone actual imprisonment of more than 14 years at the earliest and submit its progress report regarding such re-consideration on the next listing. The re consideration shall be in the light of the criteria set out hereinabove. (2) The prison authorities, OMs, S.P./SSPs, Probation Officers, Advisory Board headed by the I.G. Prisons and the Government will follow the time imperatives as far as possible as laid down in the G.O. dated 6.9.2004 for the pending matters and in the exercise of reconsideration of the cases that we have directed above. (3) Even with respect to infirm or terminally ill prisoners the concerned authorities and the State Governments shall consider their cases in future in accordance with the time schedules laid down in the G.O. dated. 6.9.2004. (4) In case one of the intermediary authorities OM, S.Ps., Probation Officers, etc. fail to accord the due consideration at the earliest as directed by the G.O. dated 6.9.2004, the Government may consider empowering the higher authorities to consider the matter for premature release or release on licence even without waiting for the report if sufficient material for taking the decision is available. The Inspector General (Prisons) is directed to issue reminders also to the concerned authorities who are acting with delay in. The Inspector General (Prisons) is directed to issue reminders also to the concerned authorities who are acting with delay in. expeditiously furnishing their reports in accordance with the G.O., the IG (Prisons) could also call for any further information from any subordinate authority, that could furnish information in the matter for helping the advisory board headed by him to decide a prisoner's case and the said authorities are directed to scrupulously conform with the directions. (5) The State Government may also consider reducing the period for reconsideration of nominal roles, Form-A from 3 years to 1 year after an earlier rejection of the same in the case of prisoners who have undergone actual imprisonment of over 14 years. (6) We also dired the Member Secretary (Legal Services Authority) Lucknow to ensure that effective legal aid, is given especially in the case of 58.5 prisoners who are in jail for more than 14 years and have no person to do Pairavi on their behalf. (7) The Member Secretary (Legal Services Authority) is also directed to oversee that the on-line computerized record set up regarding the status of disposal of cases of prisoners eligible for premature release or release on licence is being maintained efficiently, and that time schedules are being scrupulously observed. 9. List this case on 12.3.2010. On the said date, the State respondent and the Member Secretary (Legal Services Authority), Lucknow shall submit their compliance reports. 10. Copy of this order be given to learned AGA for communication to the DG/IG (Prisons), and Home Secretary within a week for compliance. Directions Issued.