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The Delhi High Court has observed the Central Government should consider relevant factors while declining its consent for premature release of a convict.
Justice Vibhu Bakhru emphasized that "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".
In the present case, the petitioner filed a petition against the impugning orders dated 26.05.2016, 29.06.2018, and 30.10.2019 issued by the Central Government, declining to concur with the recommendation of the Sentence Review Board and the Government of NCT of Delhi for his premature release from imprisonment. The petitioner was apprehended in a joint operation conducted by the CBI and the State Police. Even the FIR was registered as well as the CBI investigated the case, and the petitioner was thereby sentenced to life sentence was convicted by the trial court under section 120B read with section 364A/365/368/324/506 of the Indian Penal Code, 1860 when he was aged about twenty-six years on 18.03.2005.
"Undisputedly, the petitioner has a right to be considered for premature release," the Bench observed while relying on State of Haryana v. Mahender Singh (2007) 13 SCC 606 , in which the Supreme Court observed that,
“38. A right to be considered for remission, keeping in view the constitutional safeguards of a convict under Articles 20 and 21 of India's Constitution, must be held to be a legal one. Such a legal right emanates from not only the Prisons Act but also from 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 have a right to be considered, therefore. Whether because 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] )”
The Court, while observing that the concurrence of the Central Government for commuting or remitting the sentence of the petitioner is mandatory when a case falls with the ambit of section 435 of the Code of Criminal Procedure,1973, relied on the Supreme Court's Judgement in Union of India v. V. Sriharan @ Murugan & Ors.: (2016) 7 SCC 1 in which it was observed that,
"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 will assume primacy and consequently the process of consultation should in reality be held as the requirement of concurrence."
Referring to a host of case laws laid down by the Supreme Court, the Bench observed that the Central Government's decision to not concur with the recommendation for the petitioner's premature release should be examined in the context of the petitioner's right to be so considered. The Court further noted that the sentence of a prisoner, who has been sentenced for an offense (i), was investigated by the CBI or by any other agency empowered to investigate into an offense under any Central Act other than the Cr.PC; or (ii) where the person has been convicted of an offense involving misappropriation or destruction or damage to any property belonging to the Central Government; or (iii) where any offense has been committed by the person in service of the Central Government while purporting to act in the discharge of his official duty, cannot be suspended, 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 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,1950.
The Bench relied on the Supreme Court's Judgement of Laxman Naskar v. Union of India & Ors. (2000) 2 SCC 595 to highlight relevant factors such as the conduct of the convict; the potential of the convict to commit a crime, existence of a purpose to confine the accused further and his socio-economic condition which should be considered for premature release of convicts.
"The Central Government's decision to not concur with Sentence Review Board's recommendation is without any application of mind, not informed by reason, arbitrary and has been decided without considering relevant factors. The Court further noted that the Sentence Review Board's recommendation to release the petitioner is a well reasoned one and the same should be accepted unless there is any relevant reason to dissent from the same", the Bench observed while allowing the petition.
Case Title: Kartik Subramaniam v. Union of India and Ors
Law Point/Statute Involved: Section 432 (Power to suspend or remit sentences), section 433 (Power to commute sentence), section 435 (State Government to act after consultation with Central Government in certain cases) of the Code of Criminal Procedure,1973
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