Orissa High Court
Case Details
ORISSA HIGH COURT : CUTTACK WPCRL No.05 of 2025 In the matter of Applications under Articles 226 and 227 of the Constitution of India *** Nilu @ Tarkeswar Kumar Choudhury, Aged about 55 years, S/O: Sidheswar Prasad Choudhury, At:Kali Mandir, Bangla, Tola, Panposh, Raghunath Palli, Rourkela-4, Dist: Sundergarh -VERSUS- 1. State of Odisha, Represented through Secretary to Government in Home Department, At/PO:Bhubaneswar, Dist: Khurda. 2.The Director of Prisons and Correctional Services, Odisha, At/PO:Bhubaneswar, District: Khurda. … Petitioner 3. Superintendent, District Jail, Rourkela, District: Rourkela … Opposite parties Counsel appeared for the parties: For the Petitioner : Ms. Saswata Pattanayak, Advocate For the Opposite Parties : Mr.Debasish Tripathy, Additional Government Advocate P R E S E N T: WPCRL No.05 of 2025 Page 1 of 16 HONOURABLE CHIEF JUSTICE MR. HARISH TANDON AND HONOURABLE JUSTICE MR. MURAHARI SRI RAMAN Date of Hearing : 20.08.2025 : Date of Judgment : 20.08.2025 HARISH TANDON, C.J.— J UDGMENT Undeniably, the petitioner was convicted for committing a heinous crime, i.e., dacoity coupled with the murder and was sentenced for life. As on date, he has undergone 25 years of incarceration and has approached the Court challenging the decision of the State Sentence Review Board where the application for premature release was rejected. 2. Indubitably, three applications filed by the petitioner after undergoing a substantial period of imprisonment were rejected by the State Sentence Review Board and last of such rejection order is assailed in the instant writ petition. The challenge is thrown on multiple grounds, one of which appears to have been taken a front seat that the said State Sentence Review Board while considering an application for premature release ought not to have relied upon the policy taken in a Resolution of the Law WPCRL No.05 of 2025 Page 2 of 16 Department duly notified in an official gazette on 19th April, 2022. An incidental plea is also taken that the similarly circumstanced person was considered by the said Board on the basis of the earlier policy and not on the basis of the policy taken on 2022, and therefore, the act of discrimination is manifestly evident therefrom. We intend to give our anxious thought to the pivotal issue raised by the petitioner touching upon the applicability of a policy to be borne in mind or to be applied at the time of considering the application for premature release. 3. According to the counsel for the petitioner, the law in this regard is somewhat settled that the policy which was prevalent at the time of conviction shall be the guiding factor in considering an application for premature release. It is further submitted that there is no absolute bar in taking into consideration the subsequent policy provided such policy is more liberal and enure to the benefit of the convict. To buttress the said legal aspect, reliance is placed upon the judgments of the Apex Court rendered in the case of Joseph v. State of Kerala and others reported in 2023 SCC On Line SC 1211, Hitesh @ Bavko Shivshankar Dave v. State of Gujarat reported in (2024) 5 SCC 623 and Rajkumar v. State of Uttar Pradesh reported in (2024) 9 SCC 598. WPCRL No.05 of 2025 Page 3 of 16 4. It is thus submitted that the Board has not only acted contrary to the law declared by the Apex Court, but also ignored the vital documents produced before it. It is lastly submitted that the decision of the Board is unacceptable and liable to be interfered with as no reasons were provided for discarding the favourable report submitted by the authorities, who are in the helm of such affairs. 5. The counsel for the State submits that the Board has taken a conscious decision on the materials available from the record and the policy framed by the Government does not put any fetter on the Board to take an independent decision de hors the other recommendations given by the authority. In other words, he submits that the Board is not bound by any other recommendations as it is required to take an independent and conscious decision whether the applicant seeking release deserves to be released prematurely and such decision based upon a policy of the Government should seldom interfered by the Court under Article 226 of the Constitution of India. He further submits that the Writ Court should not expand its horizon to find the fault in the decision of the administrative authority but should confine its consideration to a process by which such decision has been arrived. If the entire process cannot be faulted with, the writ court should not interfere with the Page 4 of 16 WPCRL No.05 of 2025 decision of the Board being a constituent of high officials of the Government solely on the ipse dixit of the stand taken by the petitioner in the instant writ petition. 6. On the conspectus of the aforesaid fact and the submissions so advanced before us, it would be profitable and relevant to recapitulate the policies adopted by the State Government with regard to the premature release of the convicts who have undergone considerable period of incarceration. 6.1. The Law Department of the Government of Odisha in its resolution dated 26th September, 2000 adopted a policy to streamline the uniform standard and the criteria for determining the eligibility of the prisoners undergoing life sentence for their premature release. The significant feature of the said policy can be seen from the stand of the State Government to constitute a State Sentence Review Board as recommended by the National Human Rights Commission to review the sentence awarded to the prisoners and to recommend his premature release. The said policy contains an exhaustive provision including the eligibility for premature release and ineligibility in this regard in Paragraphs-3 and 4 thereof. The paragraph-4 of the said policy dated 26th September, 2000 broadly engulfed within itself the WPCRL No.05 of 2025 Page 5 of 16 convicts who are kept outside the purview of the said policy which undeniably includes the convicted prisoners of the offence such as rape, dacoity, the terrorist crime etc. 7. For the purpose of clarity on the factual matrix, it is recorded that the petitioner was convicted having committed an offence of dacoity and murder, and, therefore, comes within the ambit of the ineligibility clause. The said policy though not directly under the revisit by the National Human Rights Commission, but the said Commission while considering the aspect of humanity and the disparity in the policy adopted by the State across the country recommended for modification of paragraphs-3 and 4 of the guidelines which in all such policy contained the provision relating to eligibility and ineligibility of a convict for premature release. The Human Rights Commission made recommendation to all the States in its letter dated 26th September, 2003 so that the aforementioned paragraphs can be modified and/or revisited by the respective States in the following: “3. Eligibility for premature release 3.1. Every convicted prisoner whether male or female undergoing sentence of life imprisonment and covered by the provisions of Section 433A Cr.PC shall be eligible to be considered for premature release from the prison immediately after serving out the sentence WPCRL No.05 of 2025 Page 6 of 16 of 14 years of actual imprisonment i.e. without the remissions. It is, however, clarified that completion of 14 years in prison by itself would not entitle a convict to automatic release from the prison and the Sentence Review Board shall have the discretion to release a convict, at an appropriate time in all cases considering the circumstances in which the crime was committed and other relevant factors like; a) whether the convict has lost his potential for committing crime considering his overall the 14 year’s conduct incarceration; jail during in b) the possibility of reclaiming the convict as a useful member of the society; and c) Socio-economic condition of the convict’s family. With a view to bring about uniformity, the State/UT Governments are, therefore, advised to prescribe the total period of imprisonment to be undergone including remissions, subject to a minimum of 14 years of actual imprisonment before the convict prisoner is released. The Commission is of the view that total period of incarceration including remissions in such cases should ordinarily not exceed 20 years. Section 433A was enacted to deny premature release before completion of 14 years of actual incarceration to such convicts as stand convicted of a capital offence. The Commission is of the view that within this category a reasonable classification can be made on the basis of the magnitude, brutality and gravity of the offence for which the convict was sentenced to life imprisonment. Certain categories of convicted prisoners undergoing life sentence would be entitled WPCRL No.05 of 2025 Page 7 of 16 to be considered for premature release only after undergoing imprisonment for 20 years including remissions. The period of incarceration inclusive of remissions even in such cases should not exceed 25 years. Following categories are mentioned in this connection by way of illustration and are not to be taken as an exhaustive list of such categories: a) Convicts who have been imprisoned for life for murder in heinous cases such as murder with rape, murder with dacoity, murder involving an offence under the Protection of Civil Rights Act 1955, murder for dowry, murder of a child below 14 years of age, multiple murder, murder committed after conviction while inside the jail, murder during parole, murder in a terrorist incident, murder in smuggling operation, murder of a public servant on duty. b) Gangsters, contract killers, smugglers, drug traffickers, racketeers awarded life imprisonment for committing murders as also the perpetrators of murder committed with pre-meditation and with exceptional violence or perversity. c) Convicts whose death sentence has been commuted to life imprisonment. 3.2. All other convicted male prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 14 WPCRL No.05 of 2025 Page 8 of 16 years of imprisonment inclusive of remission but only after completion of 10 years actual imprisonment i.e. without remissions. 3.3. The female prisoners not covered by section 433A Cr.PC undergoing the sentence of life imprisonment would be entitled to be considered for premature release after they have served at least 10 years of imprisonment inclusive of remissions but only after completion of 7 years actual imprisonment i.e. without remissions. 3.4. Cases of premature release of persons undergoing life imprisonment before completion of 14 years of actual imprisonment on grounds of terminal illness or old age etc. can be dealt with under the provisions of Art. 161 of the Constitution and old paras 3.4 and 3.5 are therefore redundant and are omitted. 4. Inability for Premature Release Deleted in view of new para 3 All the States/UTs are requested to review their existing practice and procedure governing premature release of life convicts and bring it in conformity with the guidelines issued by the Commission.” 8. Pursuant to such recommendation of the National Human Rights Commission, the Law Department of the State in its Resolution dated 25th May, 2005 modified the said policy dated 26th September, 2000 by adopting such recommendation. The cumulative effect of the recommendation by the WPCRL No.05 of 2025 Page 9 of 16 National Human Rights Commission and the amendment having brought by the State in the said policy which was in vogue at the time of the conviction of the petitioner is suggestive of the notion that the nature of the crime cannot be a determinant factor for the purpose of a premature release provided the convict has undergone specified years of incarceration. However, a further policy was adopted by the State Government as reflected in the Resolution dated 5th May, 2010, it was noticed that there are some confusion having a reason in the policy dated 26th September, 2000 and the amendment having brought by a resolution dated 25th May, 2005. The said policy guideline is exhaustive and the rigour of different parameters were lifted including the year of sentence with an avowed object of adherence
Legal Reasoning
apply. This approach was recently followed by this court in Rajo v. State of Bihar as well. 37. Classifying- to use a better word, typecasting convicts, through guidelines which are inflexible, based on their crime committed in the distant past can result in the real danger of overlooking the reformative potential of each individual convict. Grouping types of convicts, based on the offences they were found to have committed, as a starting point, may be justified. However, the prison laws in India- read with Articles 72 and 161– encapsulate a strong underlying reformative purpose. The practical impact of a guideline, which bars consideration of a premature release request by a convict who has served over 20 or 25 years, based entirely on the nature of crime committed in the distant past, would be to crush the life force out of such WPCRL No.05 of 2025 Page 12 of 16 individual, altogether. Thus, for instance, a 19 or 20 year old individual convicted for a crime, which finds place in the list which bars premature release, altogether, would mean that such person would never see freedom, and would die within the prison walls. There is a peculiarity of continuing to imprison one who committed a crime years earlier who might well have changed totally since that time. This is the condition of many people serving very long sentences. They may have killed someone (or done something much less serious, such as commit a narcotic drug related offences or be serving a life sentence for other non-violent crimes) as young individuals and remain incarcerated 20 or more years later. Regardless of the morality of continued punishment, one may question its rationality. The question is, what is achieved by continuing to punish a person who recognises the wrongness of what they have done, who no longer identified with it, and who bears little resemblance to the person they were years earlier? It is tempting to say that they are no longer the same person. Yet, the insistence of guidelines, obdurately, to not look beyond the red lines drawn by it and continue in denial to consider the real impact of prison good behavior, and other relevant factors (to ensure that such individual has been rid of the likelihood of causing harm to society) results in violation of Article 14 of the Constitution. Excluding the relief of premature release to prisoners who have served extremely long periods of incarceration, not only crushes their spirit, and instils despair, but signifies society’s resolve to be harsh and unforgiving. The idea of rewarding, a prisoner for good conduct is entirely negated.” WPCRL No.05 of 2025 Page 13 of 16 11.1. In Hitesh @ Bavko Shivshankar Dave vs. State of Gujarat reported in (2024) 5 SCC 623, the Apex Court in unequivocal term held that the grant of premature release being an executive function, the policy adopted should be considered in a pragmatic manner and the application should be considered taking into the account the policy prevalent at the time of conviction. It further held that there is no absolute bar in not taking into consideration the subsequent policy provided such policy is more liberal enuring to the benefit of the convict in the following: “4. Following the law laid down by this Court, in determining the entitlement of a convict for premature release, the policy of the State Government on the date of the conviction would have to be the determinative factor. However, if the policy which was prevalent on the date of the conviction is subsequently liberalised to provide more beneficial terms, those should also be borne in mind.” 11.2. The principle of law as enunciated in the above report is restated and reiterated in a subsequent Bench decision rendered in Rajkumar vs. The State of Uttar Pradesh reported in (2024) 9 SCC 598 in the following: “13. The State having formulated Rules and a Standing Policy for deciding cases of premature release, it is bound by its own formulations of law. Since there are legal provisions which hold the field, it is not open to the State to adopt an arbitrary yardstick for picking up cases for premature release. It must strictly abide by the terms of its WPCRL No.05 of 2025 Page 14 of 16 policies bearing in mind the fundamental principle of law that each case for premature release has to be decided on the basis of the legal position as it stands on the date of the conviction subject to a more beneficial regime being provided in terms of a subsequent policy determination. The provisions of the law must be applied equally to all persons. Moreover, those provisions have to be applied efficiently and transparently so as to obviate the grievance that the policy is being applied unevenly to similarly circumstanced persons. An arbitrary method adopted by the State is liable to grave abuse and is liable to lead to a situation where persons lacking resources, education and awareness suffer the most.” 12. The law enunciated in the above reports uniformly laid down that an application for premature release should be considered on the basis of a policy prevalent at the time of the conviction. The subsequent policy may also be borne in mind provided it is more liberal and enure to the benefit of the convict who has undergone a sentence of the specified period provided in the said policy. Since the decision taken for premature release is an executive function, such decision should be taken bearing in mind the materials available on record or placed before the Board and must be supported by some reasons. The Board has the exclusive authority to decide whether a convict is entitled to a premature release or not but the said decision must withstand on the test of reasonability, rationality, devoid of WPCRL No.05 of 2025 Page 15 of 16 arbitrariness, untainted with bias, whimsical and above all ensure the uniformity in the said decision. 13. We could have interfered with the decision of the Board as we found it contrary to the law declared by the Supreme Court in the above noted decision but our attention is drawn to the fact that the petitioner has further applied for premature release on 5th June, 2025 which has not been considered by the Board as of now. 14. We, thus, feel that the justice would be sub-served if the Board is mandated to consider the said application in the light of the observation made hereinabove within a period of two months from the date of the communication of this order. With these observations, the WPCRL is disposed
Arguments
to the right to liberty enshrined under Article 21 of the Constitution of India. The cumulative effect of the aforesaid policy is indicative of the intent of the Government that the persons who have undergone a substantial period behind the bar, may be released prematurely and therefore, such welfare scheme or a beneficial piece of the scheme is to be kept in mind at the time of taking a decision by an authority constituted under the said scheme. 9. We do not wish to delve into the nitty-gritty of the further policy taken on 19th April 2022 as we find WPCRL No.05 of 2025 Page 10 of 16 that the policies as succinctly narrated hereinabove are more beneficial. 10. It, thus, takes us to the pivotal issue raised by the petitioner whether the Board was justified in rejecting the application filed by the petitioner taking aid of the policy dated 19th April, 2022 or should have decided the said application on the basis of the policy prevalent at the time of conviction. There is no dissenting view as of now on the applicability of the policy framed by the Government for premature release to be set in motion. At the time of considering an application for premature release filed by the convict, the policy which was prevalent at the time of conviction shall be the primary guiding factor for consideration of the said application. It also do not admit to ambiguity that if subsequent policies are more liberal as well as enuring to the benefit of the beneficiaries of the said policy, the same may also be taken into consideration or borne in mind by the Board. 11. In Joseph (supra), the identical issue was raised where the Court was invited to consider the stringent conditions imposed in the policy which kept the convict outside the purview of such benevolent scheme. The Apex Court took into consideration the provision contained under Articles 72 and 162 of the Constitution which relates to the remission, commutation etc. to be WPCRL No.05 of 2025 Page 11 of 16 not caged or confined within the force of guidelines or a policy. The Apex Court held that the person may have committed a crime at one point of time and remained incarcerated for a considerable period of time, but he may not remain the same person nor be tainted to remain so. The moment the reforms have come, there is no obstacle to consider the prayer for premature release in the following:- “20. A reading of the observations of this court in State of Haryana v. Jagdish, which was followed in State of Haryana vs. Raj Kumar, makes the position of law clear: the remission policy prevailing on the date of conviction, is to be applied in a given case, and if a more liberal policy exists on the day of consideration, then the latter would
Decision
of. No order as to costs. (HARISH TANDON) CHIEF JUSTICE (MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: BICHITRANANDA SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Aug-2025 18:06:08 High Court of Orissa, Cuttack The 20th August, 2025/Bichi/Aswini WPCRL No.05 of 2025 Page 16 of 16