O R D E R
MISCELLANEOUS APPLICATION NO.764/2022 IN CRIMINAL APPEAL NO.491/2022 This separate application need not be continued and has now been subsumed in the directions which are now being made in the SMW [CRL] No.4/2021. The application stands disposed of.
WRIT PETITION (CRL.) NO.170/2022
The subject matter in issue is regarding fixed term sentences which have also been covered by directions passed in SMW [CRL] No.4/2021.
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The Writ Petition accordingly stands disposed of. ………………………………………..J.
[SANJAY KISHAN KAUL]
………………………………………..J.
[ABHAY S. OKA]
NEW DELHI;
SEPTEMBER 15, 2022.
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ITEM NO.31+32 COURT NO.3 SECTION II-C
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Item No.31
Petition(s) for Special Leave to Appeal (Crl.) No(s). 529/2021 (Arising out of impugned final judgment and order dated 19-10-2012 in CRA No. 118/2008 passed by the High Court Of Chhatisgarh At Bilaspur)
SONADHAR Petitioner(s)
VERSUS
THE STATE OF CHHATTISGARH Respondent(s)
([TO BE TAKEN UP ON TOP OF THE BOARD.].....FOR ADMISSION AND I.R
AND MR. NEERAJ KUMAR JAIN, SR. ADVOCATE (A.C.), MR. GAURAV AGRAWAL,
ADVOCATE FOR NATIONAL LEGAL SERVICES AUTHORITY, MR. DEVANSH A.
MOHTA, ADVOCATE (A.C.), MR. ABHIMANYU TEWARI, ADVOCATE FOR STATE OF
ARUNACHAL PRADESH, MR. YOGESH KANNA, ADVOCATE FOR STATE OF TAMIL
NADU, MR. CHANCHAL K. GANGULI, Advocate for STATE OF WEST BENGAL, MRS. NIRANJANA SINGH Advocate for State of Bihar, MR. MILIND KUMAR,
ADVOCATE FOR STATE OF RAJASTHAN, MR. NIKHIL GOEL, ADVOCATE FOR HIGH
COURT OF GUJRAT, MR. SARVESH SINGH BAGHEL, ADVOCATE FOR STATE OF
UTTAR PRADESH, MAHFOOZ A NAZKI FOR STATE OF ANDHRA PRADESH, MR.
SACHIN PATIL FOR STATE OF MAHARASHTRA,MR. SUBHRANSHU PADHI FOR
STATE OF KARNATAKA, MR. KABRA FOR STATE OF UP, MR. G.S MAKKER FOR
ANDAMAN AND NICOBAR ISLANDS, MR. HARSHAD V HAMEED FOR STATE OF
KERALA, MR. SHOVAN MISHRA, ADVOCATE FOR STATE OF ODISHA [FOR
FURTHER DIRECTIONS] )
Item No.32
SMW [CRL] No.4/2021
WITH
MA 764/2022 in Crl.A. No. 491/2022 (II)
([FOR DIRECTIONS])
W.P.(Crl.) No. 170/2022 (X) (FOR ADMISSION and IA No.65665/2022-GRANT OF BAIL) Date : 15-09-2022 These petitions were called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL HON'BLE MR. JUSTICE ABHAY S. OKA Mr. Neeraj Kumar Jain, Sr. Adv. (AC) Mr. Sanjay Singh, Adv.
Mr. Aniket Jain, Adv.
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Mr. Gaurav Agrawal, Adv. (A.C.) Mr. Devansh A. Mohta, Adv. (A.C.) For Petitioner(s) Ms. Liz Mathew, AOR Ms. Vasudha Jain, Adv.
Mr. Mohd. Irshad Hanif, AOR Mr. Aarif Ali, Adv.
Mr. Rizwan Ahmad, Adv.
Mr. Mujahid Ahmad, Adv.
Mr. Mohit Kumar, Adv.
Mr. Pankaj Tiwari, Adv.
Mr. Ahmed Parvez, Adv.
Mr. Mohd. Aslam, Adv.
Mr. Hira Singh Rawat, Adv. Mr. Rishi Malhotra, AOR
Mr. Jaydip Pati, Adv.
For Respondent(s) Mr. Gaurav Agrawal, AOR Ms. Prachi Mishra, AAG
Mr. Sumeer Sodhi, AOR
Mr. Dipesh Singhal, Adv.
Mr. Gaurav Arora, Adv.
Ms. Mridula Ray Bharadwaj, AOR Ms. Garima Prasad, Sr. Adv./AAG Mr. Ajay Vikram Singh, AOR
Ms. Priyanka Singh, Adv.
Mr. Sharjeel Ahmad, Adv.
Ms. Pranjali Goel, Adv.
Ms. Garima Prasad, Sr. Adv./AAG Mr. Sarvesh Singh Baghel, AOR Ms. Vanya Gupta, Adv.
Mr. Nikhil Goel, AOR
Mr. Manish Kumar, AOR
Mr. Abhinav Singh, Adv.
Mr. Tapesh Kumar Singh, AOR
Mr. Aditya Pratap Singh, Adv. Mr. Sukant Vikram, Adv.
Mr. Sahil Tagotra, AOR
Mr. Abhishek Pandey, Adv.
Ms. Abhivyakti Banerjee, Adv. Mr. Saket Singh, Adv.
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Ms. Sangeeta Singh, Adv. Mr. Divyakant Lahoti, AOR Mr. Parikshit Ahuja, Adv. Ms. Praveena Bisht, Adv. Ms. Vindhya Mehra, Adv. Ms. Madhur Jhavar, Adv. Mr. Kartik Lahoti, Adv. Mr. Amit Kumar Singh, Adv. Mrs. K. Enatoli Sema, Adv. Ms. Chubalemla Chang, Adv. Ms. Limayinla Jamir, Adv. Mr. Ashok Kumar Panda, Sr. Adv. Mr. Soumitra G. Chaudhuri, Adv. Ms. Vandana Tiwari, Adv. Mr. Chanchal Kumar Ganguli, Adv. Mrs. Garima Prasad, Sr. Adv./AAG Mr. Garvesh Kabra, Adv. Mr. Yogesh Kanna, AOR
Mr. P.I. Jose, AOR
Mr. Jenis Francis, Adv. Mr. Shubhranshu Padhi, AOR Mr. Vishal Bansal, Adv. Ms. Rajeshwari Sankar, Adv. Mr. Niroop Sukirthy Y., Adv. Mohd. Ovais, Adv.
Mr. Sameer Abhyankar, AOR Ms. Yeshi Rinchhen, Adv. Mr. Abhinav Mishra, Adv. Ms. Nishi Sangtani, Adv. Ms. Vani Vandana Chhetri, Adv. Mr. Avneesh Arputham, Adv. Ms. Anuradha Arputham, Adv. Mr. Praveen Kr. Singh, Adv. Mr. Ankit Sharma, Adv. For M/S. Arputham Aruna And Co, AOR Mr. Mukesh K. Giri, AOR
Mr. Sharan Thakur, Adv.
Mr. Mahesh Thakur, AOR
Mr. Siddharth Thakur, Adv. Ms. Vipasha Singh, Adv.
Mr. Ajay Kanojiya, Adv.
Ms. Shivani, Adv.
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Mr. Bishwendra Singh, Adv. Mr. Mustafa Sajad, Adv. Mr. Ajay Pal, AOR Mr. Mayank Dahiya, Adv. Mr. Piyush Beriwal, Adv. Mr. Bhuvan Kapoor, Adv. Mr. Krishna Kant Dubey, Adv. Mr. Prashant Rawat, Adv. Mr. Tathagat Sharma, Adv. Mr. Gurmeet Singh Makker, AOR Mr. Aravindh S., AOR Mr. Abbas B., Adv.
Mr. Sarthak Arora, Adv. Ms. Nidhi, AOR
Mr. Kedar Nath Tripathy, AOR Ms. Vanshaja Shukla, AOR Ms. Rachna Gandhi, Adv. Mr. Sajal Singhai, Adv. Mr. Siddhesh Kotwal, Adv. Ms. Ana Upadhyay, Adv. Ms. Manya Hasija, Adv. Mr. Akash Singh, Adv. Mr. Nihar Dharmadikari, Adv. Mr. Nirnimesh Dube, AOR Mr. V. Krishnamurthy, Sr. Adv./AAG Dr. Joseph Aristotle, AOR Ms. Nupur Sharma, Adv.
Mr. Shobhit Bhardwaj, Adv. Mr. Sanjeev Kumar Mahara, Adv. Ms. Richa Vishwakarma, Adv. Mr. Mahfooz A. Nazki, AOR Mr. Polanki Gowtham, Adv. Mr. Shaik Mohamad Haneef, Adv. Mr. T. Vijaya Bhaskar Reddy, Adv. Mr. K.V. Girish Chowdary, Adv. Ms. Rajeswari Mukherjee, Adv. Mr. Abhimanyu Tewari, AOR Ms. Eliza Bar, Adv. Mr. Shekhar Raj Sharma, Dy. A.G. Mr. Paras Dutta, Adv.
Dr. Monika Gusain, AOR
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Mr. Prashant Shrikant Kenjale, AOR Mr. Sanjai Kumar Pathak, AOR Mrs. Shashi Pathak, Adv. Mr. Sibo Sankar Mishra, AOR Mr. Niranjan Sahu, Adv. Mr. U.K. Mishra, Adv. Mr. Debabrata Dash, Adv. Mr. Kanhaiya Singhal, AOR Ms. Priyanka Raj Kaushik, Adv. Mr. Priyal Garg, Adv. Mr. Chetan Bharadwaj, Adv. Mr. Shovan Mishra, Adv. Ms. Bipasa Tripathy, Adv. Mr. Gopal Jha, AOR Mr. Nishad Verma, Adv. Mr. A. Hari Prasad, Sr. Adv. Mr. V.K. Biju, AOR
Ms. Swathi H Prasad, Adv. Ms. Ria Sachthey, Adv. Mr. Chetanya Singh, Adv. Mr. Amlendu Kumar Akhilesh Kumar Jha, Adv. Mr. Ranjeet Bharti, Adv.
Ms. Rubina Jawed, Adv.
Mr. Mukesh K. Giri, AOR
Mr. Basava Prabhu S. Patil, Sr. Adv. Mr. Raghavendra S. Srivatsa, AOR Mr. Venkita subramoniam T.R., Adv. Mr. Likhi Chand Bonsle, Adv. Mr. Rahat Bonsle, Adv. Mr. Partha Sil, AOR Mr. Tavish B. Prasad, Adv. Mr. V. Balachandran, Adv. Mr. Siddharth Naidu, Adv. For M/S. Ksn & Co., AOR Mr. Arjun Garg, AOR Mr. Shobhit Jain, Adv. Mr. Aakash Nandolia, Adv. Ms. Sagun Srivastava, Adv. Ms. Uttara Babbar, AOR Mr. Milind Kumar, AOR
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Mr. Avijit Mani Tripathi, AOR Mr. T.K. Nayak, Adv.
Mr. Shaurya Sahay, Adv. Mr. Siddharath Dharmadhikari, Adv. Mr. Aaditya A. Pande, AOR Mr. Bharat Bagla, Adv.
Mr. Harshad V Hameed, AOR Mr. Dileep Poolakkot, Adv. Mrs. Ashly Harshad, Adv. Mr. Pashupati Nath Razdan, AOR Mr. Prakhar Srivastav, Adv. Mr. Vipul Abhishek, Adv. UPON hearing the counsel the Court made the following
O R D E R
SMW [CRL] No.4/2021
LIFE CONVICTS IN JAIL WHOSE APPEALS ARE PENDING BEFORE THE HIGH
COURT
Mr. Gaurav Agrawal, learned Amicus Curiae has drawn our attention to the contents of the note dealing with the aforesaid aspect in the context of the orders passed by this Court including on 15.06.2022 whereby directions issued were qua six High Courts. Those six High Courts have filed affidavits and the endeavour as per this report is two fold in terms of the directions already passed i.e.:-
(1) convicts having undergone more than 10 years' imprisonment in life sentence cases, unless there are reasons to deny bail, should be granted bail;
(2) Identification of cases where the convicts have completed 14 years of custody in which
9
event their case can be referred to the Government for considering premature release in a fixed time irrespective of the fact whether the appeal is pending or not.
Learned Amicus Curiae thereafter proceeded to analyze the data and suggestions from the six High Courts. It appears that a comprehensive exercise was taken up by the Patna High Court in terms of the number of cases where the accused are in custody which is 5740 appeals, including Division Bench appeals and Single Judge appeals. It is suggested that the High Court may take the following steps:-
"Patna High Court:-
a) If the bail applications have already been filed, the same may be listed before the Hon'ble Court at the earliest.
b) The High Court Legal Services Committee may be tasked with moving appropriate bail applications in those cases which are filed through High Court Legal Services Committee.
c) In case the convict is represented through private lawyer, the High Court Legal Services Committee may contact the convict in jail and facilitate an interaction with the lawyer so that all necessary documents, including custody certificate are made available for the purposes
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of preferring an application for bail pending appeal.
d) List of all aforesaid criminal appeals may also be sent to the Law Secretary, Government of Bihar with a direction that the criminal antecedent of the convict, conduct in jail, may be ascertained and communicated to the Ld. Advocate dealing with the said appeals before the High Court so that the said aspect is considered by the High Court while dealing with the application for suspension of sentence." It is pointed out that in the State of Bihar, there are 363 convicts who have completed more than 14 years of custody. The norm for premature release is stated to be 14 years actual custody and 20 years with remission. There are also some convicts who may not be entitled to premature release. There are stated to be now 268 convicts whose cases are being considered for premature release. We consider appropriate to issue directions in terms of the aforesaid suggestions to the Patna High Court and on a pari materia basis to even the other High Courts. However, in order to carry out this exercise, the data would have to be compiled of such of the persons who have been in custody for more than 10 years and more than 14 years, with these persons being considered for grant of bail pending appeal, if there is no chance of
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hearing of the appeal in the near future, unless there are reasons for denial of bail. We can understand if any of the parties is delaying the appeal itself but short of that, we are of the view that all persons who have completed 10 years of sentence and appeal is not in proximity of hearing with no extenuating circumstances should be enlarged on bail.
We may note that the Odisha High Court has also carried out a comprehensive exercise identifying the exact number of cases of life sentence convicts and set out the details including the ones who would not be entitled to remission.
The Allahabad High Court where the pendency is the largest has also carried out an exercise showing 2853 appeals pending before the High Court where 3234 convicts are in jail for more than 10 years. Out of these, 385 convicts have undergone more than 14 years of custody. We have to keep in kind the objective of de-cluttering the jails where without hearing of the appeals, convicts are in custody.
The aforesaid exercise has to be undergone on an urgent basis so that a scenario should not prevail where the convict completes the minimum sentence for consideration for remission and their case is examined only for remission. That necessity has arisen only on account of the fact that the appeals are not being taken up for hearing.
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As suggested by learned Amicus Curiae, four months' time is granted to carry out the said exercise. The report be given after compilation from different States. List in the last week of January, 2023. MA 764/2022 in Crl.A. No.491/2022
This separate application need not be continued and has now been subsumed in the directions which are now being made in the SMW [CRL] No.4/2021. The application stands disposed of in terms of the signed order.
W.P.(Crl.) No.170/2022
The subject matter in issue is regarding fixed term sentences which have also been covered by directions passed in SMW [CRL] No.4/2021.
The Writ Petition accordingly stands disposed of in terms of the signed order.
SLP (Crl.) NO.529/2021
COMPLIANCE OF PREMATURE RELEASE DIRECTIONS BY STATES
The most aggravated problem is in the State of Uttar Pradesh where as of October, 2021, 4127 prisoners were eligible for premature release. However, orders have been passed in case of 26 persons who were released and 521 released under permanent policy. 2532 cases are pending for collection of documents/preparation of premature release applications. There seems to be some lack of
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coordination in this behalf as there are different kinds of incomplete documents. It is suggested and agreed to by Ms. Garima Prasad, learned AAG of the State of Uttar Pradesh that the State Government will nominate a senior officer as the Special Secretary who will act as a Nodal Officer to ensure that this task is completed well before the next date.
Other States where the problem may be less must ensure completion of the exercise within the same period of time.
Ms. Liz Mathew, learned Amicus seeks to flag an issue that there is lack of information post the recommendation of the advisory Board i.e. in how many cases States have acted upon it.
For illustration, on consideration of 332 cases, 106 cases were recommended in the State of Kerala but only 2 have been released.
Reference is also made to the case of West Bengal where 657 persons were eligible for premature release and recommendations were made for 578 cases, but only 173 were released in 2022. Learned Amicus submits that there is some anomaly in the manner of processing by the State Government as the requirement for obtaining the opinion of the concerned Judge is prior to the recommendation. Once the recommendation is made after due consideration, there is no need to again refer to the Court. This may be taken note by the State of West Bengal.
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Needless to re-emphasize that all States will follow the schedule as set out.
Learned Amicus Curiae may explore the possibility of implementing the same process in other States and we authorize the Amicus/ State Legal Services for the said purpose. The manner of such implementation now extended at the request of learned Amicus to four other States which have carried out the preliminary exercise i.e. Jharkhand, Telengana, Gujarat and Assam. One suggestion made by Mr. Devansh Mohta, learned Amicus Curiae is that while in terms of earlier orders, inter alia, dated 09.02.2022, we were looking to the aspects of a fixed term sentences of up to seven years, the same can be extended up to 10 years for collection of data and exploring the possibilities of alternative routes. We accept the suggestion and order accordingly. On this aspect, an earlier date is sought than what has been given in connected matter i.e. in the last week of January, 2023. It is stated that the matter will take about half an hour.
The matter be listed in the third week of November, 2022 while listing other matters, keeping the time factor in this matter in mind.
(ASHA SUNDRIYAL) (POONAM VAID)
ASTT. REGISTRAR-cum-PS COURT MASTER (NSH) [Common signed Order In Miscellaneous Application No.764/2022 & Writ Petition(Crl.) No. 170/2022 is placed on the file]