We have taken a note of Stateof Haryana and others v. Jagdish
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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD15 CRIMINAL WRIT PETITION NO.109 OF 2025Rahul Kaniram Jadhav (C-8959),Age 50 yrs., Occ. Nil,R/o at present Central Prison, Harsool,Dist. Chhatrapati Sambhajinagar. … Petitioner… Versus …1The State of MaharashtraThrough it’s Secretary,Home Department, Mantralaya,Mumbai – 400 032. 2Additional Director General of Police,Prisons and Correctional Services,Maharashtra. 3The Superintendent,Central Prison at Harsool,Dist. Chhatrapati Sambhajinagar. … Respondents...Mrs. Sharda P. Chate, Advocate for petitionerMrs. Priya R. Bharaswadkar, APP for respondent Nos.1 to 3...CORAM :SMT. VIBHA KANKANWADI &SANJAY A. DESHMUKH, JJ.DATE:17th MARCH, 2025 215_Cri.WP_109_2025ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Petitioner is a life convict, who had filed present writ petition forfollowing prayer - “(B)This Hon’ble High Court may be pleased to issue appropriatewrit, order or directions to the respondent No.1 to decide thePremature Release Proposal of the petitioner pending before therespondent No.1 from 30.03.2022 within two weeks from today.”2The proposal for premature release of petitioner was pendingwith respondent No.1 since 30.03.2022 and, therefore, by order dated07.02.2025 we had called upon respondents to file affidavit of higherappropriate authority of respondent No.1 – State to file affidavit on the point(i) what is the procedure that is presently adopted when there would beproposal for premature release of a convict. This should include the stagefrom which the proposal is taken/submitted and through how manyauthorities it would reach to respondent No.1. We have taken a note of Stateof Haryana and others vs. Jagdish [(2010) 4 SCC 216]. We had also taken anote that the State is duty bound to collect the opinion of Superintendent ofJail, the convicting Court/Sessions Judge and the opinion of the DistrictMagistrate/Collector. We, therefore, wanted to know that in order to getthose opinion when the appropriate authority starts collecting opinion and
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315_Cri.WP_109_2025whether there is any time frame that is imposed upon itself by the State,wherein the proposal would reach to it and then the decision is taken. Thesecond point on which we wanted respondent No.1 to respond was, asregards present matter as to why the proposal is pending with it since30.03.2022 and the third point was, whether each and every step that istaken in the entire process is informed to the convict or not. Fourth pointwas, how many proposals were pending before the State. Fifth point was,how many proposals were pending since more than a year and sixth point is,how the State is planning to clear the pendency. In response to the said orderpassed by this Court affidavit of Mr. Sugriv Dhapate, the Joint Secretary,Home Department, Mantralaya, Mumbai has been filed, wherein apart fromthe facts in the present case the questions or points on which the affidavitwas called have been answered. We would like to deal with them at a laterpoint of time, however, the learned Advocate appearing for petitioner andlearned APP for respondents submitted on the day of hearing i.e. on17.03.2025 that the proposal for premature release of petitioner has beendecided on 10.03.2025. Taking into consideration the said order it wasstated that since petitioner has committed murder of his wife and four minorchildren i.e. in all five murders with an intention to perform second marriage,he was put in category No.9 of Guidelines dated 11.04.2008 and in categoryNo.8 of Guidelines dated 15.03.2010 and, therefore, it has been decided that 415_Cri.WP_109_2025he will not be released prematurely, taking into consideration the crime asexceptional and heinous in nature. Petitioner would be at liberty to takeappropriate action in respect of said order. Therefore, prayer clause ‘B’ hasnow become infructuous. 3However, taking into consideration the fact that the prematureproposal of petitioner was pending since 30.03.2022 and in view of our orderdated 07.02.2025 we take this case to set right the procedure adopted by theGovernment. In order and as per the decisions of Hon’ble Supreme Courtalong with affidavit respondent No.1 has filed a circular issued by AdditionalSecretary, Home Department, Government of Maharashtra given on02.08.2004 and in the affidavit it is stated that the prisoners undergoingimprisonment for life are not insisted to submit applications to PrisonAdministration for their premature release, instead the concerned officials inthe respective prisons, suo motu, take the case for premature release aftercompletion of 12 years of actual imprisonment. The Government ofMaharashtra by letter dated 16.11.1978, 11.05.1992, 11.04.2008,13.06.2008 and 15.03.2010 has issued comprehensive guidelines forpremature release of prisoners sentence to undergo imprisonment for life.The entire procedure is taken in four stages. The first stage is – Identificationof life convicts for premature release, the second stage is – Collection of all 515_Cri.WP_109_2025documents required for the proposal of premature release, the third stage is –Organization of meeting of Prison Advisory Board and the fourth stage is –Issuance of final orders by Government. In respect of the first stage it isstated that Superintendent of Central/District Prisons are duty bound tomake a list of life convicts after every four months viz. in January, May andSeptember, who have going to complete 12 years of actual imprisonment.The list is also required to be forwarded to District Legal Services Authority,who shall assist the eligible prisoners for the legal assistance, if any, required.Then in the second stage the collection of documents which includesopinions/reports would be taken up, that is, District Magistrate,Superintendent/Commissioner of Police and convicting Court. The opinionswould then be put in the third stage before the Prison Advisory Board and allthe opinions and reports would then be forwarded to the Government. It isthen stated in the affidavit that the entire process has to be completed beforethe completion of 13 years of actual imprisonment and then the forth stagewould come regarding the decision to be taken by the Government beforecompletion of 14 years of actual implementation and issue the final orders. 4Thus, the affidavit gives an overview of the procedure that iscontemplated, however, the question is, as to whether actually the things arehappening or not ? In the affidavit it is stated that around 196 proposals are 615_Cri.WP_109_2025pending with Government since more than one year, wherein we presumethat each of those proposals have cleared the three earlier stages, asaforesaid. To the last point i.e. How the State is planning to clear thependency, it has been stated that Government is proposing a special driveafter the Budget Session of 2025 and would clear the backlog soon. Wecould get that the State is aware about the guidelines given by Hon’ble ApexCourt in Sonadhar vs. State of Chhattisgarh in Special Leave to Appeal (Cri.)No.529/2021 decided on 07.07.2021, wherein the above four stages arementioned. At the cost of repetition, then we would say that when theGovernment is aware about the decisions of the Supreme Court and theirown duty, then there ought not to have such pendency of the proposals forpremature release. Recently in Suo Motu Writ Petition (Criminal) No.4/2021with Special Leave Petition (Criminal) No.529 of 2021 [i.e. Sonadhar vs.State of Chhattisgarh (supra)] further order has been passed on 18.02.2025,wherein it has been held that - “State must consider all eligible convicts for premature release underits policy without requiring an application, with reasonableconditions, and provide reasoned orders, ensuring fairness andtransparency. Necessity to have exhaustive policy has been harpedupon.”It is also observed -
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715_Cri.WP_109_2025“The Standard Operating Procedure issued by National Legal ServicesAuthority (NALSA) on the subject of premature release is veryexhaustive and needs to be implemented in its true letter and spirit.More often than not, we have noticed that the convicts whose prayerfor premature release is rejected are not well informed. Writ petitionsare being filed in this court wherein either the facts are not fullystated, or there is suppression of facts. The reason is that most of theconvicts are placed in such a position that they find it difficult to givecorrect information to their advocates. Clause 4.3 of the NALSA SOPis of utmost importance and needs strict implementation.”Following conclusions have been made - “21.We, therefore, record the following conclusions :(a)Where there is a policy of the appropriate Government layingdown guidelines for consideration of the grant of premature releaseunder Section 432 of the Code of Criminal Procedure or Section 473of the BNSS, it is the obligation of the appropriate Government toconsider cases of all convicts for grant of premature release as andwhen they become eligible for consideration in terms of the policy. Insuch a case, it is not necessary for the convict or his relatives to makea specific application for grant of permanent remission. When the jailmanual or any other departmental instruction issued by theappropriate Government contains such policy guidelines, the aforesaiddirection will apply; (b)We direct those States and Union Territories that do not have apolicy dealing with the grant of remission in terms of Section 432 ofthe Code of Criminal Procedure or Section 473 of the BNSS toformulate a policy within two months from today; 815_Cri.WP_109_2025(c)Appropriate Government has the power to incorporate suitableconditions in an order granting permanent remission. Considerationof various factors, which are mentioned in the paragraph 13 above byway of illustration, is necessary before finalizing the conditions. Theconditions must aim at ensuring that the criminal tendencies, if any, ofthe convict remain in check and that the convict rehabilitates himselfin the society. The conditions should not be so oppressive or stringentthat the convict is not able to take advantage of the order grantingpermanent remission. The conditions cannot be vague and should becapable of being performed; (d)Order granting or refusing the relief of permanent remissionmust contain brief reasons. The order containing reasons should beimmediately communicated to the convict through the office of theconcerned prison. The copies thereof should be forwarded to theSecretaries of the concerned District Legal Services Authorities. It isthe duty of the prison authorities to inform the convict that he has theright to challenge the order of rejection of the prayer for the grant ofremission. (e)As held in the case of Mafabhai Motibhai Sagar, an ordergranting permanent remission cannot be withdrawn or cancelledwithout giving an opportunity of being heard to the convict. An orderof cancellation of permanent remission must contain brief reasons; (f)The District Legal Services Authorities shall endeavour toimplement NALSA SOP in its true letter and spirit. (g)Further, the District Legal Services Authorities shall alsomonitor implementation of conclusion (a) as recorded above. For thispurpose, the District Legal Services Authorities shall maintain therelevant date of the convicts and as and when they become eligible to 915_Cri.WP_109_2025a consideration for grant of premature release, they shall do theneedful in terms of conclusion (a). The State Legal ServicesAuthorities shall endeavour to create a portal on which the data asaforesaid can be uploaded on real time basis.”These conclusions should be taken as directions and, therefore,we direct respondent No.1 to implement said directions in Suo Motu WritPetition (Criminal) No.4 of 2021 decided on 18.02.2025 by Hon’ble SupremeCourt. As regards the special drive which is proposed in the affidavit-in-replyto be held by respondent No.1 between 02.05.2025 and to clear the saidpendency of 196 proposals by the end of June, 2025, we hope thathenceforth all the four stages as stated in Sonadhar (supra) and Suo MotuWrit Petition would be followed by respondent No.1 within the time limits. 5With these directions, we dispose of the writ petition. 6Copy of this order be given to Maharashtra State Legal ServicesAuthority (MALSA) to consider the guidelines given in paragraph Nos.21(f)and 21(g) of Suo Motu Writ Petition (Criminal) No.4 of 2021 decided on18.02.2025. ( SANJAY A. DESHMUKH, J. )( SMT. VIBHA KANKANWADI, J. )agd