New Delhi: The Supreme Court bench of Justices Rohinton Fali Nariman and Navin Sinha, on August 5, in Shor v State of Uttar Pradesh, has deplored the practice of prison officials denying the premature release of prisoners in accordance with the law on the ground that the crime they committed was heinous, and therefore, their premature release would send a negative message against the justice system in society.

Interpreting Section 2 of the United Provinces Prisoners Release on Probation Act, 1938 (UP Act), the bench held that it enables the state government to release a prisoner prematurely, if it appears from his antecedents and conduct in prison that he is likely to abstain from crime and lead a peaceable life.

Under this provision, the state government may by licence permit the prisoner 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 recognised by the state government for this purpose, provided such other person, institution or society is willing to take charge of him.

In the instant case, the state government rejected the plea of the petitioner for premature release first in 2011 without stating any reason. This order was set aside by the Supreme  Court in 2017, with a direction to consider it afresh and pass a reasoned order.

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In a reasoned order passed on January 22, 2018, the state government took the stand that the petitioner, having undergone imprisonment of more than 37 years (with remission), was not eligible for premature release under the law, as he, along with 20 co-accused, committed the murder of 11 persons with deadly weapons and injured others. The state government’s order, therefore, stated that “premature release of this kind of prisoner would send a negative message against the justice system in the society”.

It was then also mentioned in that order that the senior superintendent of police and the district magistrate had both confirmed that the prisoner was not incapacitated from committing crime.

The bench held that the joint secretary, government of Uttar Pradesh, has failed to apply his mind to the conditions of Section 2 of the UP 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,” the bench reasoned.

Given the long incarceration of 29 years (approximately) without remission, the bench said it did not wish to drive the petitioner to a further proceeding challenging the government’s order denying him premature release.  The bench found that the order had been passed mechanically and without application of mind to Section 2 of the UP Act.

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The bench set aside the order and set the petitioner free. “It will be open for the State Government to impose such conditions as are mentioned in Section 2 of the U.P. Act on the footing that the petitioners now stand released forthwith,” the bench concluded.

In debates on reconsideration of the death penalty imposed by lower courts, the Supreme Court is frequently confronted with the question whether to take into account the heinous nature of the crime, or the potential for reform of the criminal, while deciding whether a sentence of death can be commuted.

Wednesday’s order, therefore, is expected to come to the assistance of those arguing for commutation of death sentence to life imprisonment on the ground that the prisoner has a potential for reform, notwithstanding the heinous nature of the crime committed by him.

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