Satish @ Sabbe vs The State Of Uttar Pradesh on 30 September, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Satish @ Sabbe vs The State Of Uttar Pradesh on 30 September, 2020

Author: Surya Kant

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

                                                                              REPORTABLE


                                   IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION



                          SPECIAL LEAVE PETITION (CRL.) NO. 7369 of 2019



      Satish @ Sabbe                                                      ..... Petitioner(s)
                                                   VERSUS
      The State of Uttar Pradesh                                         .....Respondent(s)


                                                     WITH

                          SPECIAL LEAVE PETITION (CRL.) NO. 8326 of 2019




                                                   JUDGMENT

Surya Kant, J:

1. These petitions, which were heard through video conferencing,

have been filed by Satish and Vikky @ Vikendra alias Virendra,

seeking special leave to appeal against a common order dated

28.04.2017 of the Allahabad High Court through which their appeal

against conviction under Section 364­A of the Indian Penal Code,

1860
Signature Not Verified
(hereinafter, “IPC”) and consequential sentence of life
Digitally signed by
SATISH KUMAR YADAV
Date: 2020.09.30
18:46:09 IST

imprisonment, was turned down.

Reason:

Page | 1
FACTS

2. The undisputable facts of the case are that on the evening of

12.06.2002, when one Vishal Sarawat (the victim) was on his way to

meet a friend, he was stopped by an acquaintance ­ Ramvir Rana who

asked him for a lift to his house. The unsuspecting victim walked into

Ramvir’s house where he was threatened with a pistol and forcibly

administered tablets by the present petitioners and one Ashok. Vishal

was subsequently coerced to write a letter dated 04.07.2002 to his

father, seeking a ransom of Rs 2 crores. In the meanwhile, the victim’s

father ­ Nepal Singh (the complainant) filed a missing report with the

police regarding his son. Vikky telephoned the victim’s father on

10.07.2002, pretending to be one ‘Shekhar’. He exhorted him to seek

help of Ramvir as an intermediary and cautioned him against

approaching the police. After a series of correspondences, the ransom

was renegotiated to Rs 32 lakhs, which was physically brought by the

complainant to Ramvir’s home on 14.07.2002. Both the petitioners

were present in the house, with Vikky having counted the ransom

money. Upon assurance that his son would be safely sent back home

by that evening, the complainant passed on information to the police

who immediately raided the house. Ramvir was arrested, Vishal was

rescued and Rs.31.70 lakhs were recovered. Although the police

witnessed them talking to Ramvir and Vishal (victim); Ashok, Satish

Page | 2
and Vikky managed to escape from the spot. They were, however,

subsequently arrested on 16.07.2002 and charged for the offence of

kidnapping for ransom.

3. The case was, after investigation, committed to the Additional

Sessions Judge, Fast Track Court – I, Ghaziabad. Eleven witnesses

deposed on behalf of the prosecution, which included the victim,

complainant, bystanders, and various police officers. In addition, one

witness was called by the Court itself. Incriminating voice recordings,

Call Detail Records, seized ransom money, and a revolver recovered at

the instance of Vikky were also brought on record. The accused denied

all charges and examined three defence witnesses.

4. Placing reliance on a wealth of electronic evidence, the trial

Court held that the charge under Section 364­A IPC had been proved

beyond reasonable doubt against all accused, and additionally charge

under Section 25 of the Arms Act, 1959 was also held to have been

established against Ashok and Vikky. Life imprisonment and fine of Rs

10,000 (or six months imprisonment in lieu thereof) was awarded to

each accused for the crime of kidnapping for ransom, besides

concurrent sentence of two years to Vikky and Ashok under the Arms

Act.

5. All four accused appealed against their convictions before the

Page | 3
Allahabad High Court. After a detailed re­appreciation of evidence and

discussion of various case laws, the High Court found as a matter of

fact that all elements required to constitute the offence of kidnapping

for ransom, have been proved beyond doubt. But the High Court

observed that failure to record disclosure statement under Section 27

of the Evidence Act, 1872 was fatal in proving recovery of the revolver.

The High Court thus dismissed the appeals and confirmed the

sentence of life imprisonment under Section 364­A of IPC, but

conviction under Section 25 of the Arms Act was set aside.

PRESENT PROCEEDINGS

6. The aggrieved petitioners, Vikky and Satish, have filed separate

Special Leave Petitions before us, which have been heard at

considerable length. On 06.09.2019, this Court tacitly declined to

interfere with their conviction for kidnapping, and accordingly

refrained from granting leave to appeal. However, limited notice was

issued to the respondent­State, calling upon them to furnish details

regarding the petitioners’ entitlement to premature release. The

aforementioned order reads as follows:

“Limited notice be issued to the respondent­State of Uttar Pradesh to
know whether the petitioner is entitled for premature release from
the prison as per the Jail Manual”

7. Separate counter­affidavits have consequently been filed by the

Page | 4
respondent­State on 18.12.2019, inter­alia, informing that Satish’s

proposal for premature release under Section 2 of the UP Prisoners

Release on Probation Act, 1938 was still under consideration; whereas

that of Vikky was duly considered and rejected by a Committee headed

by the District Magistrate, Ghaziabad on 26.02.2018.

8. Nevertheless, keeping in mind the long­period of incarceration

undergone by the petitioners and infirmities in consideration of their

prayers for premature release as highlighted by their counsels, this

Court on 08.06.2020 directed fresh consideration of their cases for

premature release and passed the following order:

“Taking into consideration the submissions made by the learned
counsel appearing for the parties, we direct the learned counsel
appearing for the State of U.P. to consider the case of
the petitioner (Satish @ Sabbe) in Special Leave Petition (Crl.)
No.7369 of 2019, which is stated to be pending before the State, as
also the case of the petitioner (Vikky Alias Vikendra Alias
Virendra) in Special Leave Petition (Crl.) No.8326 of 2019, which
was earlier rejected by the said State, for their premature release as
per the Jail Manual, within a period of four weeks from today and
place the orders before this Court.”

9. It was brought to the notice of this Court on the next date of

hearing that the respondent­State had, without due application of

mind, passed an unreasoned Order dated 13.07.2020 rejecting

premature release of Satish based on an earlier evaluation conducted

Page | 5
on 29.01.2018. This was contended to be in contravention of the

directions issued by this Court as well as on a misconceived notion of

individual dignity. Similar allegations of evasive compliance and

mechanical rejection of Vikky’s case for premature release vide

Government Order dated 29.07.2020, despite his long incarceration

and good conduct, were reiterated. Restricting their prayer(s) in terms

of the order dated 06.09.2019 of this Court, learned counsel(s) for

Satish and Vikky have cited some judgments, and relied upon various

remission guidelines; to substantiate their plea to set­aside the Orders

rejecting petitioner’s prayer for premature release.

10. Finding that earlier orders directing fresh consideration of

petitioners’ cases for premature release had not been faithfully

complied with, this Court on 25.08.2020, once more directed the

respondent­State to consider both cases afresh and pass appropriate

reasoned orders within a week. Since the petitioner’s prayer for

premature release has again been declined vide Government Orders

dated 01.09.2020, hence learned counsel for the parties have been

heard on the afore­stated limited issue.

CONTENTIONS OF PARTIES

11. Over the course of the final hearing on 08.09.2020, it has been

submitted by learned State counsel that the Probation Board

Page | 6
considered afresh Satish’s case and has refused probation for the

reasons that – first, the crime is heinous, second, petitioner is hardly

53­54 years old and can repeat the crime, third, informant has serious

apprehensions against his release, and fourth, governmental

authorities have adversely commented upon his release considering its

direct adverse effect on the society. Likewise, for Vikky, on grounds of

his age of 43 years, healthy physical condition, apprehensions of

informant and nature of crime; his mercy petition had not been

recommended.

12. Counsel for the petitioners have very eruditely controverted the

rationale and reasons embodied in both the Government Orders. It

was argued that although the impugned orders have been purportedly

passed under the Jail Manual and UP Prisoners Release on Probation

Act, 1938; but, the mandatory factors of ‘antecedents’ and ‘conduct in

prison’ have totally been overlooked, and instead various extraneous

factors have been relied upon to justify the mechanical action. They

urged that no attempt was made to meet the petitioners to ascertain

their proclivity for committing crimes in the future, thus evidencing

non­application of mind. The lengthy imprisonment, lack of

antecedents and good conduct in jail were again underscored by

counsel for the petitioners to drive home their prayers for premature

release.

Page | 7
ANALYSIS

13. Whilst it is undoubtedly true that society has a right to lead a

peaceful and fearless life, without free­roaming criminals creating

havoc in the lives of ordinary peace­loving citizens. But equally strong

is the foundation of reformative theory which propounds that a

civilised society cannot be achieved only through punitive attitudes

and vindictiveness; and that instead public harmony, brotherhood and

mutual acceptability ought to be fostered. Thus, first­time offenders

ought to be liberally accorded a chance to repent their past and look­

forward to a bright future.1

14. The Constitution of India through Articles 72 and 161, embody

these reformative principles by allowing the President of India and the

Governor of a State to suspend, remit or commute sentences of

convicts. Further, Section 432 of the Code of Criminal Procedure,

1973 (“CrPC”) streamlines such powers by laying down procedure and

pre­conditions for release. The only embargo under Section 433­A of

CrPC is against the release of persons sentenced to life imprisonment

till they have served at least fourteen years of their actual sentence.

15. The UP Prisoners Release on Probation Act, 1938 also lays down

the principles upon which such decisions to release on probation are

required to be taken. Its Section 2 says that:

1

Maru Ram v. Union of India, 1981 (1) SCC 107.

Page | 8
“2. Power of Government to release by licence on conditions
imposed by them – Notwithstanding anything contained in Section
401
of the Code of Criminal Procedure, 1898 (Act V of 1898), where
a person is confined in prison under a sentence of imprisonment and
it appears to the State Government from his antecedents and
his conduct in the prison that he is likely to abstain from
crime and lead a peaceable life, if he is released from prison,
the State Government may by licence permit him 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 recognized by the State
Government for this purpose, provided such other person, institution
or society is willing to take charge of him.”
[emphasis supplied]

16. It is no doubt trite law that no convict can claim remission as a

matter of right.2 However, in the present case, the circumstances are

different. What had been sought and directed by this Court through

repeated orders was not premature release itself, but due application

of mind and a reasoned decision by executive authorities in terms of

existing provisions regarding premature release. Clearly, once a law

has been made by the appropriate legislature, then it is not open for

executive authorities to surreptitiously subvert its mandate. Where the

authorities are found to have failed to discharge their statutory

obligations despite judicial directions, it would then not be

inappropriate for a Constitutional Court while exercising its powers of
2
Swamy Sahraddanada v. State of Karnataka, (2008) 13 SCC 767.

Page | 9
judicial review to assume such task onto itself and direct compliance

through a writ of mandamus.

17. A perusal of the Government Orders displays that the statutory

mandate on premature release has been completely overlooked. The

three­factor evaluation of (i) antecedents (ii) conduct during

incarceration and (iii) likelihood to abstain from crime, under Section

2 of the UP Prisoners Release on Probation Act, 1938, have been given

a complete go­by. These refusals are not based on facts or evidence,

and are vague, cursory, and merely unsubstantiated opinions of state

authorities.

18. It would be gainsaid that length of the sentence or the gravity of

the original crime can’t be the sole basis for refusing premature

release. Any assessment regarding predilection to commit crime upon

release must be based on antecedents as well as conduct of the

prisoner while in jail, and not merely on his age or apprehensions of

the victims and witnesses.3 As per the State’s own affidavit, the

conduct of both petitioners has been more than satisfactory. They

have no material criminal antecedents, and have served almost 16

years in jail (22 years including remission). Although being about 54

and 43 years old, they still have substantial years of life remaining,

but that doesn’t prove that they retain a propensity for committing

3
Zahid Hussain v. State of West Bengal, 2001 (3) SCC 750.

Page | 10
offences. The respondent­State’s repeated and circuitous reliance on

age does nothing but defeat the purpose of remission and probation,

despite the petitioners having met all statutory requirements for

premature release.

19. Indeed, the petitioners’ case is squarely covered by the ratio laid

down by this Court in Shor v. State of Uttar Pradesh4, which has

later been followed in Munna v. State of Uttar Pradesh5, the relevant

extract of which is reproduced as under:

“A reading of the order dated 22.01.2018 shows that the Joint
Secretary, Government of U.P. has failed to apply his mind to the
conditions of Section 2 of the U.P. 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. Also
having regard to the long incarceration of 29 years (approx.) without
remission, we do not wish to drive the petitioner to a further
proceeding challenging the order dated 22.01.2018 when we find
that the order has been passed mechanically and without
application of mind to Section 2 of the U.P. Act.”
[emphasis supplied]
4
2020 SCC OnLine SC 626, ¶ 6.

5

Order dated 21.08.2020 in WP (Crl) 4 of 2020.

Page | 11

20. It seems to us that the petitioners’ action of kidnapping was

nothing but a fanciful attempt to procure easy money, for which they

have learnt a painful life lesson. Given their age, their case ought to be

viewed through a prism of positivity. They retain the ability to re­

integrate with society and can spend many years leading a peaceful,

disciplined, and normal human life. Such a hopeful expectation is

further concritised by their conduct in jail. It is revealed from the

additional affidavit dated 05.09.2020 filed by Anita @ Varnika (wife of

Vikky) that during the course of his incarceration in jail he has

pursued as many as eight distance­learning courses, which include (i)

passing his Intermediate Examination, (ii) learning computer

hardware, (iii) obtaining a degree in Bachelor of Arts; as well as

numerous certificates in (iv) food and nutrition, (v) human rights, (vi)

environmental studies. Vikky’s conduct shines as a bright light of

hope and redemption for many other incarcerated prisoners.

Compounded by their roots and familial obligations, we believe it is

extremely unlikely that the petitioners would commit any act which

could shatter or shame their familial dreams.

21. In the present case, considering how the petitioners have served

nearly two decades of incarceration and have thus suffered the

consequences of their actions; a balance between individual and

societal welfare can be struck by granting the petitioners conditional

Page | 12
premature release, subject to their continuing good conduct. This

would both ensure that liberty of the petitioners is not curtailed, nor

that there is any increased threat to society. Suffice to say that this

order is not irreversible and can always be recalled in the event of any

future misconduct or breach by the petitioners.

CONCLUSION

22. For the reasons stated above, the Special Leave Petitions are

disposed of with a direction that the petitioners be released on

probation in terms of Section 2 of the UP Prisoners Release on

Probation Act, 1938 within a period of two weeks. The respondent­

State shall be at liberty to impose conditions as it may deem fit to

balance public safety with individual liberty.

…………………………….. J.

(N.V. RAMANA)

…………………………… J.

(SURYA KANT)

……………………………J.

(HRISHIKESH ROY)

NEW DELHI
DATED : 30.09.2020

Page | 13



Source link