Sharafat Ali vs State Of U.P.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

Writ Petition (Criminal) No 439 of 2021

Sharafat Ali Petitioner

Versus

State of Uttar Pradesh and Another Respondents

JUDGMENT

Dr Dhananjaya Y Chandrachud, J

1 The jurisdiction of this Court has been invoked under Article 32 of the

Constitution for the enforcement of the right under Article 21 of the

Constitution, following an order dated 30 July 2021 rejecting the application

of the petitioner for premature release.

Signature Not Verified Digitally signed by Chetan Kumar Date: 2022.02.17 16:11:17 IST Reason: WP(Crl) 439/2021

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2 The petitioner has been convicted for an offence punishable under Section

302 read with Section 34 of the Indian Penal Code 1860 1 on 17 January 2005

and sentenced to life imprisonment. The judgment of the trial Judge was

affirmed in appeal by the High Court of Judicature at Allahabad on 3 June

2016. The Special Leave Petition under Article 136 of the Constitution was

dismissed by this Court on 20 April 2018.

3 The petitioner had undergone 17 years, 9 months and 26 days of

imprisonment and submitted an application for premature release. The

application for premature release was rejected on 30 July 2021. The order

communicating the rejection of the application which has been passed by the

State government records that the District Magistrate and the

Superintendent of Police Amethi had in their report stated that if the

petitioner is released prematurely, the possibility that this may cause

resentment among the side of the victim cannot be ruled out nor can the

possibility of an offence being committed again by the petitioner be

excluded. The order also states that the petitioner has an “extremist nature”

and the presence of bitterness among the parties cannot be denied.

4 Notice was issued in the petition on 8 November 2021, in pursuance of which

1 “IPC” WP(Crl) 439/2021

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a counter affidavit has been filed on behalf of the State of Uttar Pradesh.

5 We have heard Mr K L Janjani, counsel for the petitioner and Mr Ardhendu

Mauli Kumar Prasad, Additional Advocate General for the State of Uttar

Pradesh.

6 The first principle which must be noted, while adjudicating upon the petition

is that the application for premature release has to be considered on the

basis of the policy as it stood on the date when the petitioner was convicted

of the offence. This principle finds reiteration in several judgments of this

Court such as State of Haryana & Ors. vs Jagdish 2. The most recent of

them is the decision in State of Haryana and Others vs Raj Kumar @

Bitu3.

7 The order which has been passed by the State government in the present

case is bereft of an application of mind to relevant circumstances bearing on

whether the petitioner should be released prematurely. The order contains

general observations to the effect that the release may result in resentment

on the side of the victim, but this is a general consideration which would

govern virtually all criminal offences where a person stands convicted of a

serious offence, as in the present case under Section 302 read with Section

34 of the IPC. The order does not contain any reference whatsoever to 2 (2010) 4 SCC 216 3 (2021) 9 SCC 292 WP(Crl) 439/2021

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whether the petitioner possesses any prior criminal history, save and except

for the present case. Similarly, the order is completely silent on the conduct

and behavior of the petitioner in jail and after he was convicted of the

offence. The relevant considerations bearing upon whether the release of the

petitioner would pose a danger to society have not been adverted to. There

has to be a considered application of mind to the facts of each case.

8 In the circumstances, the order which has been passed rejecting the

application of the petitioner for premature release suffers from a complete

and patent non-application of mind.

9 For the above reasons, we allow the petition by setting aside the impugned

order dated 30 July 2021 passed by the Government of Uttar Pradesh. We

direct that the application of the petitioner for premature release shall be

reconsidered on the basis of the policy as it stood on 17 January 2005, when

the petitioner was convicted of an offence under Section 302 read with

Section 34 of the IPC. The application shall be considered afresh without the

petitioner being required to file any fresh application for premature release.

An order shall be passed after taking into account all relevant facts and

circumstances including those which have been adverted to above. This

exercise shall be completed within a period of two months from the date of

this order.

WP(Crl) 439/2021

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10 The petition is accordingly disposed of.

11 Pending applications, if any, stand disposed of.

….....…...….......………………........J. [Dr Dhananjaya Y Chandrachud]

..…....…........……………….…........J. [Surya Kant]

..…....…........……………….…........J. [Vikram Nath]

New Delhi;

10 February , 2022 CKB