3 Feb 2021 2:28 PM GMT
The Delhi High Court has held that "consent" of the Central Government is a pre-requisite for premature release of a prisoner under Section 435 of CrPC. The provision prohibits the State Government to exercise powers conferred under Sections 432 (Power to suspend or remit sentences) and 433 (Power to commute sentence) of the CrPC in certain cases where the investigation was conducted...
The Delhi High Court has held that "consent" of the Central Government is a pre-requisite for premature release of a prisoner under Section 435 of CrPC.
The provision prohibits the State Government to exercise powers conferred under Sections 432 (Power to suspend or remit sentences) and 433 (Power to commute sentence) of the CrPC 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, except after 'consultation' with the Central Government.
A Single Bench of Justice Vibhu Bakhru has observed that the word 'consultation' as construed by the Supreme Court in Union of India v. V. Sriharan @ Murugan & Ors., (2016) 7 SCC 1, would mean consent.
The Judge also clarified that through that judgment, the Supreme Court merely interpreted the provisions of Section 435 of Cr.PC as enacted and it did not set down any law, which differs from that enacted by the Parliament.
Thus, it was held that the contention that the decision in V. Sriharan (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," the Bench held.
The order was passed while considering a writ petition filed by one Kartik Subramaniam, who was aggrieved by Central Government's refusal to commute his sentence.
The Petitioner was convicted by a Trial Court under Section 120-B read with Sections 364A/365/368/324/506 of IPC in 2005 and was sentenced to life imprisonment. His conviction was upheld by the superior Court in 2007.
In terms of the SRB Guidelines, the petitioner became eligible for premature release on May 7, 2017.
The petitioner's premature release was recommended by the SRB and approved by the Lt. Governor of NCT of Delhi on four occasions. However, the Central Government did not concur with the said decision on the first three occasions and was alleged to be sitting over the fourth recommendation.
The submissions made by the Advocate Warisha Farasat for the Petitioner were two-fold:
(i) The Central Government's consent for the petitioner's premature release is not mandatory. In this context, Petitioner's counsel submitted that prior to December 12, 2015, the expression 'consultation' as used in Section 435 of Cr.PC could not be construed to mean 'consent'. She stated that the Constitution Bench of the Supreme Court had in V. Sriharan 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 eligible for his premature release.
(ii) Petitioner complies with the conditions as set out in the SRB Guidelines for premature release; his conduct 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.
Addressing the first contention, the Bench held,
"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 expression as used in Section 435 of the Cr.PC. Thus, the concurrence of the Central Government for commuting or remitting the petitioner's sentence is mandatory."
So far as the second issue is concerned, the Court was of the opinion that 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.
"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," the Bench observed.
It concluded that the recommendation of the SRB for premature release of the petitioner is a well-considered one and unless there is any relevant reason to dissent from the same, the same is ought to be accepted.
In this case, the bench said, the impugned orders declining to consent for a premature release of the petitioner are unreasoned and there is no doubt that the petitioner has the relevant qualifications to become a productive member of society.
"Although the powers conferred under Sections 432 and 433 of the Cr.PC are discretionary, it is well settled that wherever discretion is conferred, the authority on which it is conferred must exercise it if the purposes for which such power is granted, are met. A statutory power is also coupled with a duty to exercise the same for the purpose for which it is conferred.
It is well settled that all State actions must be informed by reasons and cannot be arbitrary. Considering that such decisions 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," the Bench cautioned.
Lastly, it examined the counter affidavit filed by the CBI and the only objection for the petitioner's premature release as articulated therein reads was that the sentence awarded by a 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.
Dismissing the above line of argument, the Bench remarked,
"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 released 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."
"In view of the above, it is clear that the decision of the Central Government, to not concur with the recommendations of the SRB for premature release 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 sustained"
Case Title: Kartik Subramaniam v. Union of India
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