W.P.(CRL)/3798/2018 of SUSHIL SHARMA Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(CRL) 3798/2018

Judgment delivered on: 21.12.2018

SUSHIL SHARMA

..... Petitioner

Versus

STATE

..... Respondent

Advocates who appeared in this case:

For the Petitioner: Mr. N. Hariharan, Senior Advocate with Mr. Amit Sahni, Mr.Anshul Bajaj, Ms. Anamika, Mr. Vaibhav Mishra, Mr. Priyank, Ms.Anju Vaid, Mr. Sharang Dhulia, Mr. Aditya Vaibhav, Mr. SiddharthYadav, Mr. Akhil Kumar Gola and Mr. Prateek Bhalla, AdvocatesAnshul Bajaj, Ms. Anamika, Mr. Vaibhav Mishra, Mr. Priyank, Ms.Anju Vaid, Mr. Sharang Dhulia, Mr. Aditya Vaibhav, Mr. SiddharthYadav, Mr. Akhil Kumar Gola and Mr. Prateek Bhalla, Advocates

For the Respondent: Mr. Rahul Mehra, Standing Counsel (Criminal) with Mr. ChaitanyaGosain, AdvocateMr. Abhishek Pandey, OSD (Legal), GNCTD with Mr. Prashant Kr.Verma, OIC (Legal) PrisonsGosain, AdvocateMr. Abhishek Pandey, OSD (Legal), GNCTD with Mr. Prashant Kr.Verma, OIC (Legal) Prisons

CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDULHON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

J U M N T

SIDDHARTH MRIDUL, J (ORAL)

1. The constitutional courts have often reiterated the principle thatthose who feel called upon to deprive other persons of theirpersonal liberty in the discharge of what they conceive to be theirduty, must strictly and scrupulously observe the forms and rules ofthose who feel called upon to deprive other persons of theirpersonal liberty in the discharge of what they conceive to be theirduty, must strictly and scrupulously observe the forms and rules of

law. [Ref: Ram Narayan Singh vs. State of Delhi reported as 1953AIR 277].

2. Predicated on the above doctrine and in the facts and circumstancesof the case as elaborated hereafter, we are of the considered viewthat, the continued incarceration of the petitioner before us, doesnot admit of legal justification and lawful sanction.of the case as elaborated hereafter, we are of the considered viewthat, the continued incarceration of the petitioner before us, doesnot admit of legal justification and lawful sanction.

3. We are, therefore, directing that he be set at liberty forthwith.

4. Sushil Kumar Sharma was tried for offences punishable underSection 302/120-B, read with Section 201 of the Indian PenalCode, 1860 (hereinafter referred to as ‘IPC’).Section 302/120-B, read with Section 201 of the Indian PenalCode, 1860 (hereinafter referred to as ‘IPC’).

5. The Trial Court, by way of judgment and order dated 03.11.2003,was pleased to convict Sushil Kumar Sharma under Sections 302,120-B, read with Section 201 IPC.was pleased to convict Sushil Kumar Sharma under Sections 302,120-B, read with Section 201 IPC.

6. Sushil Kumar Sharma was sentenced to capital punishment. Thedeath sentence awarded to him was confirmed by this Court on19.02.2007.death sentence awarded to him was confirmed by this Court on19.02.2007.

7. Sushil Kumar Sharma assailed the confirmation of death sentenceawarded to him before the Hon’ble Supreme Court of India and thesame was commuted by the latter to life sentence vide order dated08.10.2013 in Crl. A. 693/2007, titled as ‘Sushil Sharma v. TheState of NCT of Delhi’.awarded to him before the Hon’ble Supreme Court of India and thesame was commuted by the latter to life sentence vide order dated08.10.2013 in Crl. A. 693/2007, titled as ‘Sushil Sharma v. TheState of NCT of Delhi’.

8. Before we proceed further, it would be profitable, relevant andgermane to extract the observations of the Hon’ble Supreme Courtof India in the said judgment and order dated 08.10.2013 and wedo so as follows:germane to extract the observations of the Hon’ble Supreme Courtof India in the said judgment and order dated 08.10.2013 and wedo so as follows:

“83. We must now examine the present case inlightofourobservationsintheprecedingparagraphs. The appellant was the State Presidentof the Youth Congress in Delhi. The deceased wasa qualified pilot and she was also the State GeneralSecretary of Youth Congress (Girls Wing), Delhi.She was an independent lady, who was capable oftaking her own decisions.From the evidence onrecord, it cannot be said that she was not in touchwith people residing outside the four walls of herhouse. Evidence discloses that even on the date ofincident at around 4.00 p.m. she had contacted PW-12 Matloob Karim. She was not poor illiteratehapless woman.Considering the social status ofthe deceased, it would be difficult to come to theconclusion that the appellant was in dominantposition qua her. The appellant was deeply in lovewith the deceased and knowing fully well that thedeceased was very close to PW-12 Matloob Karim,he married her hoping that the deceased wouldsettle down with him and lead happy life. Theevidence on record establishes that they were livingtogether and were married but unfortunately, itappears that the deceased was still in touch withPW-12 Matloob Karim.It appears that theappellantwasextremelypossessiveofthedeceased. The evidence on record shows that theappellant suspected her fidelity and the murder wasresult of this possessiveness. We have noted thatwhen the appellant was taken to Lady HardingeMortuary and when the dead body was shown tohim, he started weeping.It would be difficult,

therefore, to say that he was remorseless. The factthat he absconded is undoubtedly circumstancewhich will have to be taken against him, but thesame, in our considered view, would be morerelevant to the issue of culpability of the accusedwhich we have already decided against him ratherthan the question of what would be the appropriatesentence to be awarded which is presently underconsideration.The medical evidence does notestablish that the dead body of the deceased was-cut. The second postmortem report states thatno opinion could be given as to whether thedead body was cut as dislocation could be due toburning of the dead body. There is no recoveryof any weapon like chopper which could suggestthat the appellant had cut the dead body. It ispertinent to note that no member of the familyof the deceased came forward to depose againstthe appellant.In fact, in his evidence, PW-81IO Niranjan Singh stated that the brother andsister-in-law of the deceased stated that theywere under the obligation of the appellant andthey would not like to depose against him.Murder was the outcome of strained personalrelationship. It was not an offence against theSociety.Theappellanthasnocriminalantecedents. He is not confirmed criminal andno evidence is led by the State to indicate that heis likely to revert to such crimes in future. It is,therefore, not possible in the facts of the case tosay that there is no chance of the appellantbeing reformed and rehabilitated.We do notthink that option is closed. Though it may notbe strictly relevant, we may mention that theappellant is the only son of his parents, who areold and infirm. As of today, the appellant hasspentmorethan10yearsindeathcell.Undoubtedly, the offence is brutal but thebrutality alone would not justify death sentenceinthiscase.Theabovemitigatingcircumstances persuade us to commute thedeath sentence to life imprisonment. In severaljudgments, some of which, we have referred tohereinabove, this Court has made it clear thatlife sentence is for the whole of remaining lifesubjecttotheremissiongrantedbytheappropriate Government under Section 432 ofthe Cr.P.C., which, in turn, is subject to theproceduralchecksmentionedinthesaidprovision and further substantive checks inSection 433-A of the Cr.P.C. We are inclined toissue the same direction.84. We have already confirmed the conviction ofthe appellant for offence punishable under Section302 of the IPC and for offence punishable underSection 120-B read with Section 201 of the IPC. Inview of the above discussion, we commute thedeath sentence awarded to appellant-Sushil Sharmato life sentence. We make it clear that life sentenceis for the whole of remaining life of the appellantsubject to the remission granted by the appropriateGovernment under Section 432 of the Cr.P.C.,which, in turn, is subject to the procedural checksmentionedinthesaidprovisionandfurthersubstantivechecksinSection433-AoftheCr.P.C.”

(emphasis supplied)

9. plain reading of the above extracted paragraphs clearly andunequivocally postulate that, the Hon’ble Supreme Court of Indiafound that it would be difficult to state that Sushil Kumar Sharmawas remorseless.unequivocally postulate that, the Hon’ble Supreme Court of Indiafound that it would be difficult to state that Sushil Kumar Sharmawas remorseless.

10. The Hon’ble Supreme Court further observed that, the medicalevidence in the case did not establish that the dead body of thedeceased was cut. In this behalf, it was also found that, in view ofthe second postmortem report, no opinion could be given as towhether the dead body was cut as dislocation could be due toburning of the dead body. It was also observed that, there was norecovery of any weapon like chopper that could suggest that SushilKumar Sharma had cut the dead body.evidence in the case did not establish that the dead body of thedeceased was cut. In this behalf, it was also found that, in view ofthe second postmortem report, no opinion could be given as towhether the dead body was cut as dislocation could be due toburning of the dead body. It was also observed that, there was norecovery of any weapon like chopper that could suggest that SushilKumar Sharma had cut the dead body.

11. Lastly, the Hon’ble Supreme Court of India was pleased toobserve that, murder was the outcome of strained personalrelationship and that therefore it was not an offence against society,since Sushil Kumar Sharma neither had criminal antecedents norwas he confirmed criminal and that no evidence had been led bythe State to indicate that he was likely to revert to such crimes infuture.observe that, murder was the outcome of strained personalrelationship and that therefore it was not an offence against society,since Sushil Kumar Sharma neither had criminal antecedents norwas he confirmed criminal and that no evidence had been led bythe State to indicate that he was likely to revert to such crimes infuture.

12. The Hon’ble Supreme Court of India, therefore, expressed itsconsidered view that it was not possible in the facts andcircumstances of the case to state that there was no chance ofSushil Kumar Sharma being reformed and rehabilitated.considered view that it was not possible in the facts andcircumstances of the case to state that there was no chance ofSushil Kumar Sharma being reformed and rehabilitated.

13. In view of the above mitigating circumstances, the Hon’bleSupreme Court of India commuted the death sentence awarded toSushil Kumar Sharma to life imprisonment.Supreme Court of India commuted the death sentence awarded toSushil Kumar Sharma to life imprisonment.

14. It was clearly expostulated, however, that the life sentenceawarded was for the whole of the remaining life subject to theremission granted by the appropriate Government under Section432 of the Code of Criminal Procedure, 1973 (hereinafter referredto as ‘Cr.P.C.’), which in turn would be subject to the proceduralchecks mentioned in the said provision and further substantivechecks stipulated in Section 433-A of the Cr.P.C.awarded was for the whole of the remaining life subject to theremission granted by the appropriate Government under Section432 of the Code of Criminal Procedure, 1973 (hereinafter referredto as ‘Cr.P.C.’), which in turn would be subject to the proceduralchecks mentioned in the said provision and further substantivechecks stipulated in Section 433-A of the Cr.P.C.

15. Sushil Kumar Sharma has remained incarcerated admittedly for aperiod of over 29 years, including remission till date.period of over 29 years, including remission till date.

16. It is further an admitted position that, Sushil Kumar Sharma hasold aged infirm parents, well into their 80 years and in need ofsuccor attention and support from him in their twilight years.old aged infirm parents, well into their 80 years and in need ofsuccor attention and support from him in their twilight years.

17. Lastly, from comprehensive perusal of the official record, whichhas been produced before us, it is evident that the ProbationOfficer, as well as, the Jail Authorities; who are admittedly in closepersonal contact with Sushil Kumar Sharma, have repeatedlyrecommended his premature release from detention.has been produced before us, it is evident that the ProbationOfficer, as well as, the Jail Authorities; who are admittedly in closepersonal contact with Sushil Kumar Sharma, have repeatedlyrecommended his premature release from detention.

18. From the facts and circumstances of the present habeas corpuspetition, two issues arise for the consideration of this Court, whichare struck as follows:petition, two issues arise for the consideration of this Court, whichare struck as follows:

a. Whether the Sentence Reviewing Board (for short ‘SRB’) isbound by the guidelines contained in the order No.bound by the guidelines contained in the order No.

F.18/5/94/Home(Genl.), dated 16.07.2004, formulated by theGovernmentofNationalCapitalTerritoryofDelhi(hereinafter referred to as ‘guidelines’) and;

b. WhethertherejectionofSushilKumarSharma’srepresentation for premature release is violative of his vestedrights under the guidelines.representation for premature release is violative of his vestedrights under the guidelines.

19. At the outset, it is relevant to observe that, Mr. Rahul Mehra,learned Standing Counsel appearing on behalf of the Governmentof NCT of Delhi, has fairly stated that, the proceedings for grant ofpremature release of convicts is not beyond the pale of judicialreview, although, the scope and ambit of judicial review is narrow.learned Standing Counsel appearing on behalf of the Governmentof NCT of Delhi, has fairly stated that, the proceedings for grant ofpremature release of convicts is not beyond the pale of judicialreview, although, the scope and ambit of judicial review is narrow.

20. In this behalf, it is trite to observe that once the State hasformulated guidelines for the consideration of premature release ofconvicts, in accordance with law, any challenge in relation to thearbitrary, capricious and whimsical application thereof, is open tojudicial review. There can, in our considered view, be no quarrelwith this established legal position.formulated guidelines for the consideration of premature release ofconvicts, in accordance with law, any challenge in relation to thearbitrary, capricious and whimsical application thereof, is open tojudicial review. There can, in our considered view, be no quarrelwith this established legal position.

21.A collateral issue relating to the question whether sentence forthe remainder of convict’s life requires him to be incarcerated forthe remainder of his natural life or is subject to the power ofremission vested in the appropriate Government, in terms of themandate of the provisions of Section 432, 433 and 433-A of thethe remainder of convict’s life requires him to be incarcerated forthe remainder of his natural life or is subject to the power ofremission vested in the appropriate Government, in terms of themandate of the provisions of Section 432, 433 and 433-A of the

Cr.P.C., does not warrant or need de novo determination by us,since the same is no longer res integra.

22. Constitution Bench of the Hon’ble Supreme Court of India in V.Sriharan alias Murugan vs. Union of India & Ors. reported as2014 (4) SCC 242, having noted the two earlier constitution Benchdecisions in Gopal Vinayak Godse vs. The State of Maharashtraand Ors reported as AIR 1961 SC 600, and Maru Ram vs. Unionof India and Ors. reported as 1981 (1) SCC 107, which wereconsistently followed in the subsequent decisions inSambha JiKrishan Ji vs. State of Maharashtra reported as AIR 1974 SC 147, State of Madhya Pradesh vs. Ratan Singh & Ors. reported as1976 (3) SCC 470 and Ranjit Singh alias Roda vs. UnionTerritory of Chandigarh reported as 1984 (1) SCC 31, AshokKumar alias Golu vs. Union of India & Ors. reported as JT 1991(3) SC 46 and Subhash Chander vs. Krishan Lal & Ors. reportedas JT 2001 (4) SC 444, observed that, imprisonment for life, interms of the relevant provisions only means imprisonment for therest of the life of the prisoner, subject, however, to the right of theprisoner to claim remission etc. as provided under Article 72 and161 of the Constitution of India to be exercisable by the Presidentand the Governor of the State and also as provided under Section432 of the Code of Criminal Procedure, 1973.

23. What we are, therefore, called upon to decide in the presentproceedings is whether the SRB, which is recommendatory body,madeitsrecommendationquaSushilKumarSharma,inaccordance with the guidelines formulated for the said purpose andwhether the SRB can deviate from the guidelines formulated inaccordancewithlawby theCompetentAuthority for theconsideration of representations made by ‘lifers’ for prematurerelease.proceedings is whether the SRB, which is recommendatory body,madeitsrecommendationquaSushilKumarSharma,inaccordance with the guidelines formulated for the said purpose andwhether the SRB can deviate from the guidelines formulated inaccordancewithlawby theCompetentAuthority for theconsideration of representations made by ‘lifers’ for prematurerelease.

24. In this behalf, it is relevant to observe that, after carefullyconsidering the communication addressed by the National HumanRights Commission dated 26.09.2003, Lieutenant Governor ofGovernment of NCT of Delhi (hereinafter referred to as the‘Competent Authority’) was pleased to constitute the NationalCapital Territory of Delhi Sentence Reviewing Board, to reviewthe sentences awarded to prisoner undergoing life sentence andmake recommendations in that behalf about cases of prematurerelease as appropriate.considering the communication addressed by the National HumanRights Commission dated 26.09.2003, Lieutenant Governor ofGovernment of NCT of Delhi (hereinafter referred to as the‘Competent Authority’) was pleased to constitute the NationalCapital Territory of Delhi Sentence Reviewing Board, to reviewthe sentences awarded to prisoner undergoing life sentence andmake recommendations in that behalf about cases of prematurerelease as appropriate.

25. The guidelines, inter alia, required the SRB to strictly observe thegeneral principles of amnesty and remission of sentence as laiddown by the Government or by the Courts; the cardinalconsideration being the welfare of the prisoner and society at large.general principles of amnesty and remission of sentence as laiddown by the Government or by the Courts; the cardinalconsideration being the welfare of the prisoner and society at large.

26. The SRB was further directed, not to decline premature releaseof prisoner, merely on the ground that the police have notof prisoner, merely on the ground that the police have not

recommended his release; and were required to take into accountnot only the circumstances in which the offence was committed bythe prisoner, but also whether he had the propensity and could bestated to be likely to commit similar or other offence again.

27. Inviewoftheforegoingrequirementsprescribedby theguidelines, the SRB cannot be heard to state that, they are notbound by them particularly, in view of the circumstance that theyowe their existence to the guidelines.The SRB, is required toexercise its recommendatory function strictly in accordance withthe binding principles enunciated in the guidelines, from wheretheir discretion emanates. The policy formulated by the CompetentAuthority is binding on the SRB and has to be scrupulouslyobserved, adhered to and followed.guidelines, the SRB cannot be heard to state that, they are notbound by them particularly, in view of the circumstance that theyowe their existence to the guidelines.The SRB, is required toexercise its recommendatory function strictly in accordance withthe binding principles enunciated in the guidelines, from wheretheir discretion emanates. The policy formulated by the CompetentAuthority is binding on the SRB and has to be scrupulouslyobserved, adhered to and followed.

28. In this behalf, it would be trite to observe that, an authority mustbe strictly held to the standards, by which it professes its conduct tobe judged.be strictly held to the standards, by which it professes its conduct tobe judged.

29. At this juncture, we must record our appreciation for Mr. RahulMehra, learned Standing Counsel (Criminal) for his submissionthat the SRB being recommendatory body owing its existence tothe guidelines, is bound by them absolutely, although, theLieutenant Governor, who is the competent authority is, in turn, notbound by the recommendations of the SRB. The issue, therefore,rests there.Mehra, learned Standing Counsel (Criminal) for his submissionthat the SRB being recommendatory body owing its existence tothe guidelines, is bound by them absolutely, although, theLieutenant Governor, who is the competent authority is, in turn, notbound by the recommendations of the SRB. The issue, therefore,rests there.

30. The SRB is consequently bound by law, to strictly adhere to theguidelines, in the discharge of their recommendatory function, toreview the sentences awarded to prisoner and refer them forrelease, if so warranted by the guidelines, to the CompetentAuthority. The discretion to formulate policy and to frameguidelines for premature release of prisoners, undoubtedly vests inthe State, but once made, the same have to be followed withoutexception.guidelines, in the discharge of their recommendatory function, toreview the sentences awarded to prisoner and refer them forrelease, if so warranted by the guidelines, to the CompetentAuthority. The discretion to formulate policy and to frameguidelines for premature release of prisoners, undoubtedly vests inthe State, but once made, the same have to be followed withoutexception.

31. That brings us to the more important issue of, whether the SRB inrejecting Sushil Kumar Sharma’s representation for prematurerelease, has acted contrary to the canons of law, as well as, theguidelines.rejecting Sushil Kumar Sharma’s representation for prematurerelease, has acted contrary to the canons of law, as well as, theguidelines.

32. InLaxman Naskar vs. Union Of Indiareported as AIR 2000 SC986, the Hon’ble Supreme Court of India promulgated that if theGovernment had framed any rule or made scheme for earlyrelease of convicts, then those rules or schemes would have to betreated as guidelines for exercising its power under Article 161 ofthe Constitution. The Apex Court further observed that, theGovernment orders rejecting the prayer for premature release ofconvicts without considering the conduct-record of the convicts injail, as well as, their potential to further commit crime and thesocio economic conditions of the convicts’ family, suffered fromgross infirmities.986, the Hon’ble Supreme Court of India promulgated that if theGovernment had framed any rule or made scheme for earlyrelease of convicts, then those rules or schemes would have to betreated as guidelines for exercising its power under Article 161 ofthe Constitution. The Apex Court further observed that, theGovernment orders rejecting the prayer for premature release ofconvicts without considering the conduct-record of the convicts injail, as well as, their potential to further commit crime and thesocio economic conditions of the convicts’ family, suffered fromgross infirmities.

33. In the present case, in order to better appreciate and adjudicate theinstant issue, it would be just, proper and necessary to examine theminutes of the meetings held by the SRB, relating to theconsideration of the premature release of Sushil Kumar Sharma.instant issue, it would be just, proper and necessary to examine theminutes of the meetings held by the SRB, relating to theconsideration of the premature release of Sushil Kumar Sharma.

34. In its meeting held on 26.07.2018, the minutes of the SRB disclosethat, the Social Welfare Department, Government of NCT of Delhihad recommended his release, in terms of the report of the ChiefProbation Officer.that, the Social Welfare Department, Government of NCT of Delhihad recommended his release, in terms of the report of the ChiefProbation Officer.

35. In addition, it is observed that, the Superintendent Central JailNo.2, Tihar, New Delhi, had also recommended Sushil KumarSharma’s premature release based on his good jail conduct for theentire duration of his incarceration.No.2, Tihar, New Delhi, had also recommended Sushil KumarSharma’s premature release based on his good jail conduct for theentire duration of his incarceration.

36. It must, however, be stated that, the SRB recorded the strongopposition of the Delhi Police to Sushil Kumar Sharma’spremature release on the ground “that such release may createresentment in the society”.opposition of the Delhi Police to Sushil Kumar Sharma’spremature release on the ground “that such release may createresentment in the society”.

37. After considering the relevant inputs and taking into account thefacts and circumstances of the case, the SRB then went on toobserve that “as the convict has no previous criminal history, goodaptitude for reforms, good conduct in jail and on parole/furlough,recommendation of Welfare Department; the Board unanimouslydefers premature release of Sushil Kumar Sharma”.facts and circumstances of the case, the SRB then went on toobserve that “as the convict has no previous criminal history, goodaptitude for reforms, good conduct in jail and on parole/furlough,recommendation of Welfare Department; the Board unanimouslydefers premature release of Sushil Kumar Sharma”.

38. Inexplicably therefore, in the very next meeting of the SRB, heldon 04.10.2018, after having once again recorded the positiverecommendations of the Social Welfare Department, Governmentof NCT of Delhi, the Chief Probation Officer and the PrisonDepartment and further recording the opposition of the DelhiPolice, as above stated; the SRB cryptically observed that,“however, rest of the members have opposed the case forpremature release in view of perversity of the crime and thecircumstances under which the crime was committed”, and that“the convict has committed the murder of his wife, brutality of thecase; and thereby rejected his representation for premature releaseby majority of 5:2.”on 04.10.2018, after having once again recorded the positiverecommendations of the Social Welfare Department, Governmentof NCT of Delhi, the Chief Probation Officer and the PrisonDepartment and further recording the opposition of the DelhiPolice, as above stated; the SRB cryptically observed that,“however, rest of the members have opposed the case forpremature release in view of perversity of the crime and thecircumstances under which the crime was committed”, and that“the convict has committed the murder of his wife, brutality of thecase; and thereby rejected his representation for premature releaseby majority of 5:2.”

39. perusal of the above recommendations of the SRB clearlyreflect that, the same are cryptic, unreasoned, contrary to thematerial on record and non-speaking.reflect that, the same are cryptic, unreasoned, contrary to thematerial on record and non-speaking.

40. Although, there can be no quarrel with the proposition that theSRB has been vested with discretion under the extant guidelines,the same has to be exercised in just and reasonable manner, afterdue and proper consideration of all the relevant material.SRB has been vested with discretion under the extant guidelines,the same has to be exercised in just and reasonable manner, afterdue and proper consideration of all the relevant material.

41. Consequently, there is no manner of doubt in our minds, that therecommendation of the SRB, rejecting Sushil Kumar Sharma’srepresentation for premature release, suffers from the vice ofarbitrariness, whimsicality and illegality.recommendation of the SRB, rejecting Sushil Kumar Sharma’srepresentation for premature release, suffers from the vice ofarbitrariness, whimsicality and illegality.

42. It is incumbent upon us in this regard to observe that, therecommendations of the Social Welfare Department, the ProbationOfficerandthePrisonAuthorities,whichclearlyandunequivocally allude to the reformation of Sushil Kumar Sharma,have not been accorded due weightage, whilst determining hisrepresentation.recommendations of the Social Welfare Department, the ProbationOfficerandthePrisonAuthorities,whichclearlyandunequivocally allude to the reformation of Sushil Kumar Sharma,have not been accorded due weightage, whilst determining hisrepresentation.

43. The positive recommendations clearly underline and emphasizeSushil Kumar Sharma’s readiness to be reintegrated in the society.Sushil Kumar Sharma’s readiness to be reintegrated in the society.

44. The records clearly and unequivocally reflect that, Sushil KumarSharma is in semi-open jail and participating in the work ofconstruction. It further analyses and evaluates Sushil KumarSharma’s incarceration in the following manner:Sharma is in semi-open jail and participating in the work ofconstruction. It further analyses and evaluates Sushil KumarSharma’s incarceration in the following manner:

“As per judgment of Hon’ble court that the convictSushil Kumar Sharma was deeply in love with thedeceased and knowing full well that deceased was veryclose to Matloob Karim, He married her hoping thatdeceased would settle down with him and lead happylife.They living together and were married butunfortunately it appears that deceased was still in touchwith Matloob Karim.The convict suspected herfidelity and murder was result of his possessiveness.Murderwastheoutcomeofstrainedpersonalrelationship.”Sushil Kumar Sharma was deeply in love with thedeceased and knowing full well that deceased was veryclose to Matloob Karim, He married her hoping thatdeceased would settle down with him and lead happylife.They living together and were married butunfortunately it appears that deceased was still in touchwith Matloob Karim.The convict suspected herfidelity and murder was result of his possessiveness.Murderwastheoutcomeofstrainedpersonalrelationship.”

45.Further the Social Investigation Report of the Welfare Officer,Department of Social Welfare, GNCTD dated 31.05.2017 records theevaluation of the jail term of Sushil Kumar Sharma as follows:Department of Social Welfare, GNCTD dated 31.05.2017 records theevaluation of the jail term of Sushil Kumar Sharma as follows:

“SOCIAL INVESTIGATION REPORT

This is with reference to the letter received fromCentral Jail No.2 for Social Investigation Report of theconvict Sushil Sharma s/o Indermani Sharma R/o MP-27, Murya Enclave Pritampura Delhi for grantingpremature release by Sentence Reviewing Board. Thedetails after conducting interview with the convict inthe jail are as under:-

Health StatusOverall conduct in Jail

Normal

Satisfactory

Criminal History

As per jail records there is no other casepending against the convict.

Bail/Parole/Furlough

Convict availed 4 times Parole and 8 timesfurlough.

Work in jail

He is in semi open jail and doing work of construction.

Family Detail

FatherIndermani83yrs. Retired govt job (Bank)Mother prem lata78yrs. House wifeSisterSumanMarriedSisterAnjuMarriedFamily Economic Status

Economic condition is average.

Family Attitude towards convict

Attitude of family members found positive towardsthe convict.As per the statement of familymembers he is being falsely implicated in this case.They are waiting desperately of the convict.

Neighbour’s Attitude:

There is no any adverse report has been foundtowards the convict from neighborhood any of hisfamily members.They stated that convict livespeacefully at his home during parole and furlough.They are in favor in release of convict.

Details of the Incident

As per the statement of the convict he wasdeeply in love with girl but during that time hegot to know that she was involved with otherperson. Convict was extremely possessive towardsthe girl and due to his possessiveness he murderedthat girl.

Future Planning

After release from the jail he would settle withhis family and will look after his old aged Parents.They are too old even they are not been able towalk without the help of stick side by side he willbe engaged in his construction work again.

Co-accused

Nil.

Analysis and Evaluation

The convict spent most of the time in prison indisciplinary norms.He availed parole/furlough 8times but he never tried to jump it.No criminalcase is pending against him.No punishment wasgiven to him during incarceration. He is nothabitual offender by chance he became victim of theabove mentioned incident. He has responsibility ofhis old aged parents.Economic condition of theaccused is average.

On the basis of the above facts and statementgiven by the convicts and as per the jail records hisbehavior is found satisfactory. No negative remarksgiven by the jail authority during his convictionperiod. Convict wants to be settled with his familyafter release from the jail.

Onthebasisoftheabovefactsandcircumstances convict may be granted prematurerelease.Therefore Social Investigation Report is

submitted before Hon’ble Members of SRB forfurther necessary action please.”

(emphasis supplied)

46. In this regard, it is incumbent upon us to consider the guidelines

framed by the State in consultation with National Human RightsCommission, which provide for the eligibility criteria for the grantof premature relief to convicts and the factors to be taken intoaccount, whilst making recommendations of appropriate cases forpremature release.Clause 3.1 of the guidelines for prematurerelease reads as follows:

“3.1“Every convicted prisoner whether male or femaleundergoing sentence of life imprisonment and coveredby the provisions of Section 433 Cr.PC shall beeligible to be considered for premature release from theprison immediately after serving out the sentence of 14yearsofactualimprisonmenti.e.withouttheremissions. It is, however, clarified that completion of14 years in prison by itself would not entitle convictto automatic release from the prison and the SentenceReview Board shall have the discretion to release aconvict, at an appropriate time in all cases consideringthe circumstances in which the crime was committedand other relevant factors like:

a)Whether the convict has lost his potential forcommitting crime considering his overall conduct injail during the 14 year incarceration;

b)The Possibility of reclaiming the convict as auseful member of the society; and

c)Socio-economic condition of the convict’s family.

Such convict as stand convicted of capitaloffence are prescribed the total period of imprisonmentto be undergone including remission, subject to aminimum of 14 years of actual imprisonment beforethe convict prisoner is released.Total period ofincarceration including remission in such casesshould ordinarily not exceed 20 years.

Certaincategoriesofconvictedprisonersundergoing life sentence would be entitled to beconsidered for premature release only after undergoingimprisonment for 20 years including remissions. Theperiod of incarceration inclusive of remissions even insuch cases should not exceed 25 years. Followingcategories are mentioned in his connection.

a)Convicts who have been imprisoned for life formurder in heinous crimes such as murder with rape,murder with dacoity, murder involving an offenceunder the Protection of Civil Rights Act 1955, murderfor dowry, murder of child below 14 years of age,multiple murder, murder committed after convictionwhile inside the jail, murder during parole, murder in aterrorist incident; murder in smuggling operation,murder of public servant on duty.murder in heinous crimes such as murder with rape,murder with dacoity, murder involving an offenceunder the Protection of Civil Rights Act 1955, murderfor dowry, murder of child below 14 years of age,multiple murder, murder committed after convictionwhile inside the jail, murder during parole, murder in aterrorist incident; murder in smuggling operation,murder of public servant on duty.

b)Gangsters,contractkillerssmugglers,drugtraffickers, racketeers awarded life imprisonment forcommitting murders as also the perpetrators of murdercommitted with pre-mediation and with exceptionalviolence or perversity.

c)Convictswhosedeathsentencehasbeencommuted to life imprisonment.”

47. plain reading of the above guidelines clearly reflects that, aconvicted prisoner undergoing sentence of life imprisonment iseligible to be considered for premature release from prison,immediately after serving 14 years of actual imprisonment, withoutaccounting for remissions. Although, the release of ‘lifer’ is notautomatic, the SRB is required in all cases to consider thecircumstances in which the crime for which the ‘lifer’ has beenconvicted was committed, and other relevant factors including thelifer’s potential for committing crime; considering the lifer’soverall conduct in jail during the period of incarceration; thepossibility of the convict becoming useful member of the society;and the socio-economic condition of the lifer’s family.convicted prisoner undergoing sentence of life imprisonment iseligible to be considered for premature release from prison,immediately after serving 14 years of actual imprisonment, withoutaccounting for remissions. Although, the release of ‘lifer’ is notautomatic, the SRB is required in all cases to consider thecircumstances in which the crime for which the ‘lifer’ has beenconvicted was committed, and other relevant factors including thelifer’s potential for committing crime; considering the lifer’soverall conduct in jail during the period of incarceration; thepossibility of the convict becoming useful member of the society;and the socio-economic condition of the lifer’s family.

48. The categories of convicted prisoners, who stand convicted of acapital offence and whose death sentence has been commuted tolife imprisonment; as in Sushil Kumar Sharma’s case, are entitledtobeconsideredforprematurereleaseafterundergoingimprisonment for 20 years including remission.capital offence and whose death sentence has been commuted tolife imprisonment; as in Sushil Kumar Sharma’s case, are entitledtobeconsideredforprematurereleaseafterundergoingimprisonment for 20 years including remission.

49. The said condition is further qualified by cap in the period ofincarceration of such lifer, inclusive of remissions, to total periodof 25 years.incarceration of such lifer, inclusive of remissions, to total periodof 25 years.

50. In view of the foregoing, in order to justifiably continue theincarceration of Sushil Kumar Sharma, beyond the maximumperiod stipulated in the guidelines, it is incumbent upon the State toprovide cogent and compelling reasons for his further detention.incarceration of Sushil Kumar Sharma, beyond the maximumperiod stipulated in the guidelines, it is incumbent upon the State toprovide cogent and compelling reasons for his further detention.

51. In the present case, these reasons are conspicuous by theirabsence.Even, accepting the submission made on behalf of theState, to the effect that, the cap of 25 years in the guidelines do notwarrant automatic release of person sentenced to imprisonmentfor life, we are of the view that, Sushil Kumar Sharma’s furtherincarceration by the State beyond the 29 years’ incarceration withremissions, already undergone by him, does not admit of legaljustification and lawful sanction, in the facts and circumstanceselaborated hereinbefore.absence.Even, accepting the submission made on behalf of theState, to the effect that, the cap of 25 years in the guidelines do notwarrant automatic release of person sentenced to imprisonmentfor life, we are of the view that, Sushil Kumar Sharma’s furtherincarceration by the State beyond the 29 years’ incarceration withremissions, already undergone by him, does not admit of legaljustification and lawful sanction, in the facts and circumstanceselaborated hereinbefore.

52. In view of the foregoing discussion, we are of the view that, the

SRB rejected Sushil Kumar Sharma’s representation for prematurerelease arbitrarily and without due or proper application of mind, tothe facts and circumstances of his case and in contravention of theexpress mandate of the State policy as contained in the extantguidelines.release arbitrarily and without due or proper application of mind, tothe facts and circumstances of his case and in contravention of theexpress mandate of the State policy as contained in the extantguidelines.

53. We are further of the view that, the incarceration of convictedprisoner such as Sushil Kumar Sharma does not result in thesuspension of all his constitutional rights and he is not denuded ofthe rights enshrined in every person including convict, within themandate of the guarantee of Liberty protected and emphasizedunder Article 21 of the Constitution of India.prisoner such as Sushil Kumar Sharma does not result in thesuspension of all his constitutional rights and he is not denuded ofthe rights enshrined in every person including convict, within themandate of the guarantee of Liberty protected and emphasizedunder Article 21 of the Constitution of India.

54. The issues struck hereinabove are, therefore, decided in favour ofSushil Kumar Sharma and against the State.Sushil Kumar Sharma and against the State.

55. The recommendations of the SRB in its meeting held on04.10.2018 with respect to Sushil Kumar Sharma, that are calledinto question in the present case are hereby set aside and quashedas is the non-speaking affirmation, of those recommendations bythe Competent Authority.04.10.2018 with respect to Sushil Kumar Sharma, that are calledinto question in the present case are hereby set aside and quashedas is the non-speaking affirmation, of those recommendations bythe Competent Authority.

56. This only leaves us to the directions that are warranted in the facts

and circumstances of the case.

57. In this behalf, it is observed that, Division Bench of this Court in

N.S. Jain vs. the Superintendent Central Jail Authorityreported

as 1985 (9) DRJ 349, followed by another Division Bench of thisCourt inRakesh Kaushik vs. Delhi Administration and Ors.reported as 1986 Cri LJ 566, in similar circumstances, directed theimmediate release of the ‘lifer’ from jail.

58. We accordingly direct that, the State release Sushil Kumar Sharma

forthwith.

59. The writ petition is accordingly allowed and disposed of.

SIDDHARTH MRIDUL(JUDGE)

DECEMBER 21, 2018as/ns

SANGITA DHINGRA SEHGAL(JUDGE)