Sushil Harkauli, Amar Saran - (1.) : Backdrop :-We had issued several directions by our order dated 19.4.2004. The original records of the cases related to 108 prisoners maintained at the Prisons Section of the secretariat at Lucknow and at the Varanasi Central Jail were also produced before us on 6.7.2004 and 8.7.2004. Thereafter on the previous hearing on 8.7.2004 we had orally directed the Secretary Legal Services Authority, and the Deputy Chief Probation Officer who were present to come out with concrete suggestions on how legal aid to convicts in prison who had served over 14 years could be made more effective and timely, and how the Probation Officer could ensure greater objectivity in the reports submitted by the District Probation Officers. Several affidavits and reports of different authorities have been filed on 6.7.2004 and 30.7.2004. The reports show that there are 510 prisoners in various prisons in U.P. who have undergone over 14 years in prison. These include 249 prisoners who were convicted prior to 18.12.1978, and 261 prisoners who were convicted after that date.
(2.) DISTURBING Findings : We must say that even on a cursory perusal of the material, records and affidavits before us, we are greatly disturbed with the approach adopted by the State Government in dealing with the cases of prisoners who have undergone over 14 years in prison and were eligible for consideration of their cases for pre-mature release under the Jail Manual and the Prisoners Release on Probation Act. The two most disturbing features are : 1. Delays and indefinite postponement of the cases of eligible prisoners.-Para 198 (a) of the Jail Manual requires the Jail Superintendent to submit the life-convict's nominal roll for consideration of the orders of the State Government "as soon as the term of imprisonment undergone by the convict together with any remission earned by him under the rules amounts to fourteen years". In the case of convicts to whom Section 433A of the Code of Criminal Procedure applies, i.e., convicts convicted by the trial court after 18.12.1978, the period of fourteen years is counted excluding the period of remission. Chatrapal son of Ram Kumar was sentenced by the Moradabad Sessions Court on 28.5.1973. While his nominal roll was eligible for forwarding in 1990, it was actually forwarded by the Superintendent Bareilly jail, after 12 years of the due date, on 24.7.2002. Thereafter it is languishing with the D.M., Moradabad. Kalakatar son of Jamuna, was convicted by the Sessions Court on 10.3.1977. His nominal roll was eligible for being forwarded by the Bareilly Jail Superintendent in June, 1995. It was actually forwarded 7 years after its due date on 24.7.2002, and it is lying with the D.M., Budaun, ever since. Ghanshyam son of Arjun Singh was convicted by the Sessions Court, Bareilly, on 22.12.1971. His nominal roll was forwarded by the Jail Supdt. on 24.9.1999 its due date by the Jail Supdt., Bareilly. But it is lying in ice with the D.M., Bareilly, for the last 5 years. These are just two or three illustrative cases. There are very many such cases where there have been unpardonable delays in forwarding the application by the Jail Supdts., or by the S.P., D.Ms., Probationary Officers, Advisory Boards or even by the State Government. The original record of Chandrabali son of Ram Kripal who had undergone 14 years sentence without remissions on 29.5.1997 shows that the D.M. and S.S.P., Gonda, and the Advisory Board recommended release of the convict in 1998, as the conduct of the prisoner in jail was good, there was no existing dispute with the family members of the deceased. Yet unbelievably, in the 6 years thereafter the file has not even been put up before the State Government for appropriate orders. 2. Predisposition to reject applications for premature release on flimsy, untenable grounds.-Convicts who have undergone 14 years in prison are unlikely to engage in further crimes, and have been punished adequately, and usually the relations of the victims have also been sufficiently assuaged by the extent of sentence undergone by the convict. It is noteworthy that virtually all the 510 prisoners are described as non-habitual prisoners who were involved in this single incident. The crimes were crimes arising out of land disputes or other momentary conflicts with particular individuals, and the convicts were not habitual criminals whose career was crime. (It is needed strange that there would not be more than one or two cases of a hardened criminal whose career and livelihood is crime who is detained in any prison in U.P. for over 14 years. We are unable to say whether this is due to absence of convictions of hardened criminals, or their uncanny success in securing early releases. However, in our over view of the records we did not come across a single case where the convict was described as a habitual criminal). Usually the enmity between the parties had also ended with lapse of time. Yet in a routine manner, the nominal rolls or Form A applications of virtually all the convicts are being rejected. Bald statements of the police authorities, D.Ms. or probationary authorities, unsubstantiated by any material for the conclusions that tension or enmity between the parties still exists, or there was danger to the lives and safety of the opposite party or the prisoner, or simply the ipse dixit of the D.M. or S.S.P. that they do not favour release, or that the convict is not likely to have a livelihood when he turns home, have been taken as sufficient grounds for refusing applications for premature release. Stay in jail for an indefinite length of time leads to irreparable break down of family life, absolute penury in the family, and exploitation of children and females.
(3.) THE cost to the State of keeping a prisoner who has lost the potentiality of committing a future crime is also a factor to be taken into account for not allowing prisoners to remain in jail unnecessarily for unlimited periods of time. Government officials are mistaken if they think that the safest course is either to reject or to postpone an application for premature release. Such a cavalier rejection of the application of the convict for premature release, ignoring the criteria contained in the jail manual, Prisoners Release on Probation Act or in decisions of the High Court or the Supreme Court apart from being a human rights violation of the convict, also violates, the convict's fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India. It may on occasion invite the censure of the Court against negligent authorities. It is too late in the day for the authorities to contend that these fundamental rights are shut out before the locked doors of the prison. Likewise, the fear of authorities that they would lay themselves open to charges of corruption if they were to allow any application for premature release is unfounded. If the orders are passed honestly on objective criteria laid down in the statutes, without discrimination between similarly placed prisoners, in line with the judicial dicta of this Court and the Apex Court, and decisions are based on concrete verifiable material, there is no reason for the authorities to apprehend that such decisions on individual cases on merit would be frowned upon by Courts. The suspicions of the Court are however aroused if the authorities single out just one or two cases for release, as the solitary two cases out of the 108 prisoners confined in Varansi Central Jail. Thus, in the case of one released prisoner Raj Bahadur son of Surya Baksh, who was involved in a double murder case, we find that the reports of the D.M. and S.S.P. did not favour Raj Bahadur's release as he had overstayed his home leave by a month and they feared that he would abscond. The Form 'A' had also been rejected earlier. This has left the Court wondering as to what was so special about the case of Raj Bahadur, compared to the many other prisoners whose releases were being refused on flimsy grounds. This is not to say that the Court is recommending putting Raj Bahadur back in prison. Raj Bahadur was involved in an individual and sudden dispute. He had undergone 14 years imprisonment, the jail report was favourable, he was not a habitual offender, and the disputes of the parties appear to have ended long back.;