ANALYSIS

13. Whilst it is undoubtedly true that society has a right to lead a peaceful   and   fearless   life,   without   free roaming   criminals   creating havoc in the lives of ordinary peace loving citizens. But equally strong is the   foundation   of   reformative   theory   which   propounds   that   a civilised society cannot be achieved only through punitive attitudes and vindictiveness; and that instead public harmony, brotherhood and mutual acceptability ought to be fostered. Thus, first time offenders ought to be liberally accorded a chance to repent their past and look-forward to a bright future. [Maru Ram v. Union of India, 1981 (1) SCC 107]

14. The Constitution of India through Articles 72 and 161, embody these reformative principles by allowing the President of India and the Governor of a State to suspend, remit or commute   sentences   of convicts. Further, Section 432 of the Code of Criminal Procedure, 1973 (“CrPC”) streamlines such powers by laying down procedure and pre­conditions for release. The only embargo under Section 433­A of CrPC is against the release of persons sentenced to life imprisonment till they have served at least fourteen years of their actual sentence.

15. The UP Prisoners Release on Probation Act, 1938 also lays down the principles upon which such decisions to release on probation are required to be taken. Its Section 2 says that:

“2. Power of Government to release by licence on  conditions imposed by them –  Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), where a person is confined in prison under a sentence of imprisonment and it appears to the State Government from his antecedents and his  conduct   in  the  prison  that  he   is   likely  to  abstain  from the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner, or such secular institution or such society belonging to the same religion as the prisoner as may be recognized by the State Government for this purpose, provided such other person, institution or society is willing to take charge of him.” [emphasis supplied]

16. It is no doubt trite law that no convict can claim remission as a matter of right. [Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767] However, in the present case, the circumstances are different. What had been sought and directed by this Court through repeated orders was not premature release itself, but due application of mind and a reasoned decision by executive authorities in terms of existing provisions regarding premature release. Clearly, once a law has been made by the appropriate legislature, then it is not open for executive authorities to surreptitiously subvert its mandate. Where the authorities   are   found   to   have   failed   to   discharge   their   statutory obligations   despite   judicial   directions,   it   would   then   not   be inappropriate for a Constitutional Court while exercising its powers of judicial review to assume such task onto itself and direct compliance through a writ of mandamus.

17. A perusal of the Government Orders displays that the statutory mandate on premature release has been completely overlooked. The three­factor   evaluation   of   (i)   antecedents   (ii)   conduct   during incarceration and (iii) likelihood to abstain from crime, under Section 2 of the UP Prisoners Release on Probation Act, 1938, have been given a complete go­by. These refusals are not based on facts or evidence, and are vague, cursory, and merely unsubstantiated opinions of state authorities.

18. It would be gainsaid that length of the sentence or the gravity of the   original   crime   can’t   be   the   sole   basis   for   refusing   premature release. Any assessment regarding predilection to commit crime upon release   must   be   based   on   antecedents   as   well   as   conduct   of   the prisoner while in jail, and not merely on his age or apprehensions of the   victims   and   witnesses [Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750]. As   per   the   State’s   own   affidavit,   the conduct of both petitioners has been more than satisfactory. They have no material criminal antecedents, and have served almost 16 years in jail (22 years including remission). Although being about 54 and 43 years old, they still have substantial years of life remaining, but that doesn’t prove that they retain a propensity for committing offences. The respondent­-State’s repeated and circuitous reliance on age does nothing but defeat the purpose of remission and probation, despite   the   petitioners   having   met   all   statutory   requirements   for premature release.

19. Indeed, the petitioners’ case is squarely covered by the ratio laid down by this Court in Shor v. State of Uttar Pradesh [2020 SCC OnLine SC 626, ¶ 6], which has later been followed in Munna v. State of Uttar Pradesh [Order dated 21.08.2020 in WP (Crl) 4 of 2020], the relevant extract of which is reproduced as under:

“A reading of the   order dated   22.01.2018 shows   that   the Joint Secretary, Government of U.P. has failed to apply his mind to the conditions of Section 2 of the U.P. Act. Merely repeating the fact that the crime is heinous and that release of such a person would send a negative message against the justice system in the society are factors de hors Section 2. Conduct in prison has not been referred to at all and the Senior Superintendent of   Police   and   the   District   Magistrate   confirming   that   the prisoner is not “incapacitated” from committing the crime is not tantamount to stating that he is likely to abstain from crime and lead a peaceable life if released from prison. Also having regard to the long incarceration of 29 years (approx.) without remission,   we   do   not   wish   to   drive   the   petitioner   to   a   further proceeding challenging the order dated 22.01.2018 when we find that   the   order   has   been   passed   mechanically   and   without application of mind to Section 2 of the U.P. Act.” [Emphasis supplied].

20. It seems to us that the petitioners’ action of kidnapping was nothing but a fanciful attempt to procure easy money, for which they have learnt a painful life lesson. Given their age, their case ought to be viewed through a prism of positivity. They retain the ability to reintegrate with society and can spend many years leading a peaceful, disciplined, and normal human life. Such a hopeful expectation is further concritised by their conduct in jail. It is revealed from the additional affidavit dated 05.09.2020 filed by Anita @ Varnika (wife of Vikky)   that   during   the   course   of   his   incarceration   in   jail   he   has pursued as many as eight distance ­learning courses, which include (i) passing   his   Intermediate   Examination,   (ii)   learning   computer hardware, (iii) obtaining a degree in Bachelor of Arts; as well as numerous certificates in (iv) food and nutrition, (v) human rights, (vi) environmental studies. Vikky’s conduct shines as a bright light of hope   and   redemption   for   many   other   incarcerated   prisoners. Compounded by their roots and familial obligations, we believe it is extremely unlikely that the petitioners would commit any act which could shatter or shame their familial dreams.

21. In the present case, considering how the petitioners have served nearly   two   decades   of   incarceration and have thus suffered   the consequences   of   their   actions; a balance   between   individual   and societal welfare can be struck by granting the petitioners conditional premature   release, subject to their continuing good conduct. This would both ensure that liberty of the petitioners is not curtailed, nor that there is any increased threat to society. Suffice to say that this order is not irreversible and can always be recalled in the event of any future misconduct or breach by the petitioners.