Delhi High Court

Nazir Khan vs The State Of Nct Of Delhi on 14 December, 2022

Neutral Citation Number:2022/DHC/005611

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 27th September, 2022
Decided on: 14thDecember, 2022
+ W.P CRL 1591/ 2019
NAZIR KHAN ..... PETITIONER

Through: Mr. Prashant Mehta and
Mr. Charanpreet Singh,
Advocates.
V
THE STATE OF NCT OF DELHI ..... RESPONDENT

Through: Mr. Sachin Mittal ASC, with
Mr. Nishant Chauhan
Mr. Alok Sharma and
Mr. Abhisehek Tyagi
Advocates for the State
along with Insp. Sanjeev
Kumar, Special Cell.
%
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT

1. The present writ petition is filed under article 226 of the

Constitution read with section 482 of the Code of Criminal

Procedure, 1973(hereinafter referred to as "the Code") for seeking

direction to the respondent to release Nazir Khan (hereinafter referred

to as the "the petitioner") after setting aside and quashing the order

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dated 25.09.2018 qua the petitioner passed by Sentence Reviewing

Board along with recommendations passed by the competent

authority in its meeting held on 26.07.2018.

2. The relevant facts as reflecting from the record are that the

petitioner along with other accused was put to trial arising out of FIR

bearing no. 658/1994 registered at P.S. Connaught Place for the

offences punishable under sections 147/148/149/342/365/384/34 IPC

and sections 3/4 of the Terrorist and Disruptive Activities

(Prevention) Act, 1987 (hereinafter referred to as "TADA").

2.1 The Court of Designated Judge, TADA, New Delhi vide

judgment dated 26.04.2002 passed in Session Case bearing no.

43/2001 convicted the petitioner and other co-accused for the

offences punishable under sections 364 and 364A read with section

120B IPC; under section 3(4) TADA Act; under sections 121A, 122

and 124A IPC and under section 14 of the Foreigners Act, 1946.

2.2 The petitioner along with other convicts vide order on sentence

dated 27.04.2002 was sentenced to death for offences punishable

under section 364A IPC read with section 120B IPC besides

awarding of other sentences and imposition of fine for different

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offences as detailed in order on sentence dated 27.04.2022. The death

sentence awarded to the petitioner was ordered to be subjected to the

confirmation of the Supreme Court. The petitioner was also given

benefit under section 428 of the Code. The sentences awarded to the

petitioner under different provisions of IPC and TADA Act were

ordered to be run concurrently.

2.3 The Supreme Court vide judgment dated 28.08.2003 passed in

Criminal Appeal bearing no. 734/2003 titled as Nazir Khan and

others V State of Delhi has altered the conviction of the petitioner

under section 3(1)(i) TADA to section 3(1)(ii) TADA and further

held that the incarceration for life sentence for the period of 20 years

would be appropriate. It was further ordered that the petitioner and

others would not be entitled to any remission for the period of 20

years. It was also observed that the imprisonment of life means

imprisonment for the full span of life. The relevant part of the

judgment dated 28.08.2003 reads as under:-

In the case at hand, the entire planning for commission of offence punishable under Section, 364A was masterminded and executed by Umar Sheikh who has managed presently to go out of net of law. In his case, death sentence may have been appropriate. But in case of the co-conspirators (the present six accused appellants) similar approach is not

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warranted on the peculiar facts found/established. No distinctive feature has been indicated to impose two different sentences i.e. death sentence for three and life sentence for three others. There, is no appeal by the prosecution to enhance the sentence in those cases where life sentence has been imposed. It would be therefore appropriate to impose life sentence on all the six accused appellants.

In the ultimate, convictions of A-1, A-3 and 'A-8 under Section 3(l)(i) of TADA Act is altered to Section 3(l)(ii) of TADA Act. Their convictions under Sections 121A, 122 and 124 IPC and sentences imposed are maintained. The conviction under Section 364-A read with Section 120B IPC is maintained, as it is the conviction under Section 3(4) of the TADA Act and Section 14 of the Foreigners Act for the concerned accused appellant along with sentence imposed.

However, considering the gravity of the offence and the dastardly nature of the acts and consequences which have flown out and would have flown in respect of the life sentence, incarceration for the period of 20 years would be appropriate. The accused appellants would not be entitled to any remission from the aforesaid period of 20 years. As observed by this Court in Ashok Kumar v. Union of India (AIR 1991 SC 1792 and Satpal V. State of Haryana and Anr. (1992(4) SCC 172). "imprisonment for life" means imprisonment for the full span of life.

3. Home (General) Department), the Government of National Capital

Territory of Delhi in its meeting held on 26.07.2018 regarding

premature release of convicts through Sentence Reviewing Board

(hereinafter referred to as "SRB") considered cases of 154 convicts

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including case of the petitioner for premature release and out of 154

cases, 25 cases were recommended for pre-mature release but case of

petitioner was rejected as reflecting from office circular bearing no.

F.18/102/2003-HOME(G)/Pt-1/2018/5827 dated 25.09.2018. The

minutes were duly approved by the Competent Authority.

3.1 The case of the petitioner for premature release subsequent to

filing of present petition was also considered in the meeting of SRB

held on 21.10.2021 and as per the minutes, the case of the petitioner

for premature release was rejected by SRB.

4. The petitioner being aggrieved by decision of SRB taken in its

meeting held on 26.07.2018 filed present petition wherein it is stated

that the petitioner has already completed incarceration of 20 years

without remission in December 2014. The petitioner is still

incarcerated and has completed more than 25 years without any

remission till date. The petitioner had applied to SRB for premature

release which was rejected as reflected from order dated 25.09.2018

without assigning any reason and in violation of rules governing the

premature release of a convict. The petitioner prayed as under:-

1. This Hon'ble Court may kindly allow this Writ Petition by issuing a writ in the nature of mandamus directing

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release of the petitioner after setting aside and quashing the order dated 25/09/18 qua the petitioner, of the sentence reviewing board along with the non-speaking affirmation, of those recommendations by the competent authority, recommended vide its meeting held on 26/07/2018.

2. Pass any other order or orders as this Hon'ble Court may deem fit or proper in the circumstances of the case on favour of the applicant.

5. The respondent filed Status Report wherein besides narrating

factual position stated that the petitioner has already undergone

actual sentence of 27 years, 09 months and 15 days and earned

remission of 01 year 06 months and 26 days as on 15.09.2022. The

case of the petitioner had been placed 11 times before SRB for

consideration of his case for premature release but was rejected by

SRB in view of gravity of crime including kidnapping of foreign

nationals to pressurise the Govt. of India to release 10 hard core

terrorists. There was no arbitrariness in decisions and were rational.

The case of the petitioner was also considered in the meeting of SRB

held on21.10.2021 and was rejected by SRB.

5.1 The Prison Department, Govt. of Delhi use to prepare cases of the

life convicts to be placed before the SRB in terms of applicable SRB

Guidelines dated 16.07.2004 and Delhi Prisons Rules, 2018 and cases

of life convicts for premature release used to be discussed at length

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by SRB. There are always appropriate reasons for recommendation

or rejection of premature release so it cannot be said that no plausible

reasons are assigned for recommendations and rejections. There is no

arbitrariness in decision taken by SRB for premature release. The

case of the petitioner is always timely prepared by the Prison

Department and placed before SRB for consideration of his

premature release but on each occasion after considering all factors,

the case of the petitioner for premature release was not recommended

by SRB. The respondent prayed for dismissal of petition.

6. The petitioner is primarily seeking judicial review of decision

taken by SRB in its meeting held on 26.07.2018 whereby case of the

petitioner for premature release was rejected and alleged that it was

rejected without assigning any reason.

7. In a social welfare State like India large numbers of

administrative/local authorities are being created to carry out

welfare activities and these authorities are vested with discretion. The

discretion when coupled with word „Administrative‟ reflects that

choosing from various available alternatives but reference to the rules

of reasons and justice and not according to personal whims and

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exercise of discretion should not be arbitrary, vague and fanciful. The

suitable control over exercise of discretion is necessary otherwise

administrative authority may abuse or misuse conferred power and

may convert in arbitrary body. The discretionary power conferred on

an administrative authority is not absolute and must be exercised

within legal parameters. The judicial review is a tool by which

legality or lack of it can be examined in exercise of administrative

discretionary power or any administrative action. The judicial review

ensures that an individual is given fair treatment by the authority and

is designed to prevent excess and abuse of power by any

administrative authority and any probability of favouritism.

7.1 It was held in case of Chief Constable of North Wales Police V

Evans, (1982) 3 All E R141 that the purpose of judicial review is to

ensure that the individual receives fair treatment. In Laker Airways

Ltd. V Department of Trade, (1977) 2 All E R 182, it was observed

that discretionary power is to be exercised for the public goods and

this exercise can be examined by the Courts. Lord Diplock in

Council of Civil Service Unions V Minister for the Civil Service,

(1984) 3 WLR 1174 observed that administrative action is subject to

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judicial review on the grounds which are "Illegality‟, "Irrationality"

and "Procedural Impropriety".

7.2 In India, negation of arbitrariness in the exercise of public power

is considered to be cardinal component of the rule of law. The Courts

in India have invalidated arbitrary exercise of administrative power.

Article 14 of the Constitution strikes at arbitrariness in State action

and ensures fairness and equality of treatment. The Supreme Court in

E. P. Royappa V State of Tamil Nadu, AIR 1978 SC 555 observed

that Article 14 embodied a guarantee against arbitrariness. The

Supreme Court in Maneka Gandhi V Union of India, AIR 1978 SC

597observed that Article 14 strikes at arbitrariness in State action and

ensure fairness and equality of treatment. It was also observed in S.

R. Bommai V Union of India, AIR 1994 SC 1917 that the purpose

of judicial review is to ensure that the individual is given fair

treatment by the authority and is basic feature of the Constitution.

7.3 The power of judicial review is not without limitation and

unrestricted. Judicial review is concerned with legality rather than

merit of the case. The courts cannot substitute its own view in

exercise of power of judicial review. The judicial review is not an

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appeal against the decision taken by the concerned authority. Judicial

review is stated to be protection and not a weapon. In Tata Cellular

V Union of India, (1994) 6SCC651 observed that judicial review is

concerned with reviewing and not with merits of the decision. The

Supreme Court in State of N.C.T. of Delhi & another V Sanjeev @

Bittoo, Appeal Criminal bearing no 498/2005 decided on 04.04.2005

also observed that the scope of judicial review of administrative

orders is limited to the legality of decision making process and not

legality of the order and mere possibility of another view cannot be

ground for interference.

8. The administrative authority which is vested with power to

determine questions affecting the rights of individuals must exercise

power in conformity with the rules of natural Justice requirement of

passing reasoned orders by the administrative authorities is one of the

important aspects of natural justice. Due to expanding horizon of

judicial review, requirement to give reasons has become an

indispensable part of judicial review. The Privy Council in Minister

of Natural Revenue V Wright's. Vanadian Ropes Ltd., (1947) AC

109 held that a Minister who had failed to give reasons for a special

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tax assessment had not shown that it was correct and that the

taxpayer's appeal must be allowed. In R V Civil Service Appeal

Board exp Cunningham, (1991) 4 A AIIER 310 an award of

abnormally low compensation to an unfairly dismissed prison officer

by the Civil Service Appeal Board, which made it a rule not to give

reasons was quashed by the court of Appeal by holding that natural

justice demanded the giving of reasons both in deciding whether

dismissal was unfair and in assessing compensation. In England, in a

series of cases it has been held that statutory tribunals must give

satisfactory reasons in order that the losing party may know whether

he should exercise his right of appeal on a point of law. (See also

Nortan Tool Co. Ltd. V Tewson, [1973] WLR 234.

8.1 It is suitably established in India that an adjudicatory authority is

required to give reasons for its decision. The Supreme Court in

Siemens Engineer and Manufacturing Co. V Union of India, AIR

1976 SC 1785 reiterated the principle with an emphasis that the rule

requiring reasons to be given in support of an order is a basic

principle of natural justice which must inform the quasi-judicial

process. It should be observed in its proper spirit and "mere pretence

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of compliance with it would not satisfy the requirement of law". It

was observed in Maneka Gandhi V Union of India, AIR 1990 SC

1984 that giving of reasons is a healthy check against abuse or

misuse of power. The requirement of duty to give reasons was further

crystallized in S.N. Mukherjee V Union of India, AIR 1990 SC

1984 and reasons due to which a reasoned decision must be passed

were discussed. It was observed that reasoned decision: (i) guarantee

consideration by the authority; (ii) introduce clarity in decisions; and

(iii) minimize chances of arbitrariness in decision-making thereby

ensuring fairness in the process. It was observed as under:

In our opinion, therefore, the requirement that reason must be recorded must be recorded should govern the decisions of govern the an administrative authority exercising quasi-judicial functions irrespective of fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clean and explicit so as to indicate that the authority has given due consideration to the points in controversy.

8.1.1 The Supreme Court in Rani Lakshmi Bai Kshetriya Gramin

Bank V Jagdish Sharan Varshney& others, (2009)4SCC496 held

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that the purpose of disclosure of reasons is that people should have

confidence in judicial and quasi-judicial authorities and minimize

chances of arbitrariness. It was held as under:-

The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union of India reported in (1990) 4 SCC 594, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation.

8.1.2 The Supreme Court in The Supreme Court in the case of Namit

Sharma V Union of India, (2013) (1) SCC 745 regarding duty to

give reasons held as under:-

It is not only appropriate but is a solemn duty of every adjudicatory body, including the tribunals, to state the reasons in support of its decisions. Reasoning is the soul of a judgment and embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests. It is informative to the claimant of the basis for rejection of his claim, as well as provides the grounds for challenging the order before the higher authority/constitutional court. The reasons, therefore, enable the authorities, before whom an order is challenged, to test the veracity and correctness of the impugned order. In the present times, since the fine line of distinction between the functioning of the administrative and quasi- judicial bodies is gradually becoming faint, even the administrative bodies are required to pass reasoned orders. In this regard, reference can be

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made to the judgments of this Court in the cases of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India &Anr. [(1976) 2 SCC 981]; and Assistant Commissioner, Commercial Tax Department Works Contract and Leasing, Kota v. Shukla & Brothers [(2010) 4 SCC 785].

9. The counsel for the petitioner advanced oral arguments and also

submitted written arguments. The counsel for the petitioner besides

mentioning the factual position as mentioned hereinabove argued that

the incarceration of 20 years of the petitioner has already been

completed without any remission in the month of December, 2014

and the petitioner has already completed more than 27 years and 10

months of incarceration without any remission. The petitioner had

applied to SRB for premature release which was rejected without

assigning any reason.

9.1 The counsel for the petitioner during arguments referred Circular

dated 26.09.2003 vide letter no. 233/10/97-98 (FC) issued by

National Human Rights Commission (NHRC) pertaining to prisoners

undergoing life imprisonment for consideration of premature release.

He argued that these Guidelines segregate prisoners undergoing life

imprisonment in various categories which are prisoners completed 14

years in prison; completed 20 years in prison; completed 25 years in

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prison and the prisoners are categorized in the these categories as per

the offences committed. He further argued that as per these NHRC

guidelines, the petitioner has become eligible for release within the

category of 25 years as these guidelines specifically mentioned that

the period of incarceration in such cases should not exceed 25 years.

9.2 The relevant extract of the NHRC guidelines are reproduced

below:

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.P.C shall be eligible to be considered for premature release from the prison immediately after serving out the sentence 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 recommend 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 conduct in Jail during the 14 year incarceration.

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

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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.

He by referring above Guidelines further argued that as per this

category, the prisoner is entitled to apply for premature release to the

Sentence Review Board after completion of 14 years of

imprisonment and it is recommended that total period of

incarceration including remission in such cases should ordinarily not

exceed 20 years. The counsel for the petitioner further referred

Guideline 3.1 which reads as under:-

Certain categories of convicted prisoners undergoing life sentence would be entitled 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. The 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 crimes 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

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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.

The counsel for the petitioner also argued that bare perusal

of above extract of NHRC guidelines clearly show that the petitioner

falls in the categories (a) murder in a terrorist incident and (c)

convicts whose death sentence has been commuted to life

imprisonment and as such after completion of incarceration of 20

years, the petitioner would be eligible to apply for pre-mature release.

The petitioner has been incarcerated for more than 25 years and as

the petitioner falls in the category wherein the period of incarceration

inclusive of remissions should not exceed 25 years. The petitioner as

per NHRC guidelines is eligible to be released.

9.3 The counsel for the petitioner also referred decision given by

Division Bench of this court in Sushil Sharma V State, W.P.(Crl.)

bearing no 3798/2018 decided on 21.12.2018 and argued that in said

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decision aforesaid guidelines have been recognised and on the basis

of these guidelines, the petitioner therein was released by this Court.

9.4 The constitutional right of the petitioner as guaranteed under

Article 21 of the constitution cannot be suspended due to

incarceration. SRB has declined the premature release of the

petitioner on the ground that the police has not recommended his

release. SRB is required to function strictly in accordance with the

guidelines. The Supreme Court vide judgment dated 28.03.2003

passed in Criminal Appeal Bearing no.734/2003 titled as Nazir

Khan V State has commuted the death sentence of the petitioner to

the life imprisonment. It is argued that the respondent be directed to

release the petitioner and the order dated 25.09.02018 passed by the

SRB be set aside. The counsel for the petitioner relied upon the

decision of the Division Bench of this Court passed in Sushil

Sharma V State, WP (CRL) 3798/2018 decided on 21.12.2018.

10. The Additional Standing Counsel for the respondent primarily

argued on basis of averments as mentioned in Status Report. He

argued that the case of the petitioner was placed 11 times before SRB

for consideration of his premature release but was rejected by SRB in

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view of gravity of offences proved against the petitioner. The case of

the petitioner was also considered in the meeting of SRB held on

21.10.2021 but was rejected by SRB.

10.1 The Additional Standing Counsel during arguments referred

Delhi Prison Rules. Rule 1252 related to premature release of a life

convict which is as under:-

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.

10.1.1 As per Rule 1257(d), Rejection of the case of a prisoner for

premature release on one or more occasions by the Sentence Review

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Board will not be a bar for reconsideration of his case. However, the

reconsideration of the case of a convict already rejected shall be after

the expiry of a period of Six months from the date of last

consideration of his case. It is prescribed that decision of the case of a

convict of premature release should be through speaking order in

writing.

10.1.2 As per Rule 1257(e), the recommendation of the Sentence

Review Board shall be placed before the Competent Authority

without delay for consideration. The competent authority may either

accept the recommendations of the SRB or reject the same on

grounds to be stated or may ask the SRB to reconsider a particular

case. The decision of the competent authority shall be communicated

to the concerned prisoner and in case the competent authority has

ordered grant of remission and ordered his premature release, the

prisoner shall be released forthwith with or without conditions.

10.2 The Additional Standing Counsel for the respondent in view of

above submissions argued that petition is liable to be dismissed.

11. It is reflecting that the petitioner is a foreign national and was

put to trial arising out of FIR bearing no.658/1994 registered at PS

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Connaught Place. The petitioner and other co-accused vide judgment

dated 26.04.2002 were convicted for the offences punishable under

sections 364 and 364A IPC read with section 120B IPC; under

section 3(4) TADA Act; under section 121A, 122 and l24A IPC and

under section 14 of the Foreigners Act, 1946 passed by the

Designated Court, TADA. The petitioner was awarded death

sentence besides other sentences vide order on sentence dated

27.04.2002 passed by the Designated Court TADA. The death

penalty of the petitioner was commuted to the life sentence by the

Supreme Court vide judgment dated 22.08.2003 passed in Nazir

Khan and Ors V State Of Delhi in Criminal Appeal bearing no.

734/2003 by the Supreme Court. The petitioner has completed

incarceration of 20 years in the month of December, 2014 and as per

the Nominal Role pertaining to the petitioner, he has already

undergone actual sentence of 27 years, 09 months and 15 days and

earned remission of 01 year 06 months and 26 days as on 15.09.2022.

SRB in its meeting held on 26.07.2018 considered cases of 154

convicts including the petitioner for premature release and out of 154

cases, 25 cases were recommended for premature release but case of

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petitioner was rejected as reflecting from office order bearing no.

F.18/102/2003-HOME(G)/Pt-1/2018/5827 dated 25.09.2018. The

minutes were approved by the competent authority. The case of the

petitioner subsequent to filing of present petition was also considered

by SRB in the meeting held on 21.10.2021 and was rejected.

12. Issue which needs judicial considerations is that whether the

petitioner is entitled for premature release and SRB had rejected

request of the petitioner for premature release in its meetings held on

26.07.2018 and subsequent to filing of present petition on 21.10.2021

without assigning suitable and adequate reasons.

13. The perusal of Guidelines issued by NHRC dated 26.09.2003

reflects that certain categories of convicted prisoners undergoing life

sentence would be entitled to be considered for premature release

only after undergoing imprisonment for 20 years including

remissions and the period of incarceration inclusive of remissions

even in such cases should not exceed 25 years.

13.1 Section 432 of the Code deals with the power of appropriate

government to suspend or remit sentences. Section 433 of the Code

deals with power of appropriate government to commute sentence

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even without consent of the person sentenced. Section 433A of the

Code put restriction on powers of remission or commutation in

certain cases. The Lt. Governor of National Capital Territory of

Delhi in pursuance of Guidelines dated 26.09.2003 and on similar

lines, has constituted "the National Capital Territory of Delhi

Sentence Review Board" to review the sentence awarded to a

prisoner undergoing life sentence and to make recommendations to

him about cases of premature release in appropriate cases. The

procedure was also devised for consideration of suitable cases for

premature release. The relevant clause 5(iii) is reproduced as under:-

While considering the case of premature release of a particular prisoner, the Board shall keep in view the general principles of amnesty/remission of the sentence as laid down by the Government or by Courts as also the earlier precedents in the matter. The paramount consideration before the Sentence Review Board being the welfare of the prisoner and society at large. The Board shall not ordinarily decline a premature release of a prisoner merely on the ground that the police have not recommended his release. The Board shall take into account the circumstances in which the offence was committed by the prisoner and whether he has the propensity and is likely to commit similar or other offence again.

13.2 The Division Bench of this Court in Sushil Sharma observed

that the Lieutenant Governor of Government of NCT of Delhi in

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view of communication sent by National Human Rights Commission

(NHRC) dated 26.09.2003 constituted the National Capital Territory

of Delhi Sentencing Reviewing Board to review the sentences

awarded to a prisoner undergoing life sentence and to make

recommendations about appropriate cases of premature release. The

Guidelines require SRB to strictly observe the general principles of

amnesty and remission of sentence as laid down by the Government

or by the Courts after considering welfare of the prisoner and society

at large. SRB was further directed not to decline a premature release

of prisoner merely on the ground that the police has not

recommended his release and was required to take into account not

only the circumstances in which the offence was committed by the

prisoner but also whether he had the propensity and could stated to be

likely to commit a similar other offence again. SRB is required to

exercise its recommendatory function strictly in accordance with the

binding principles enunciated in the guidelines. The policy

formulated by the Competent Authority is binding on SRB and has to

be scrupulously observed, adhered to and followed. The Lieutenant

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Governor i.e. the competent authority is not bound by the

recommendations of the SRB.

14. The perusal of office order dated 25.09.2018 reflects that SRB in

its meeting held on 26.07.2018 also considered case of the petitioner

for premature release but case of petitioner was rejected. The office

order dated 25.09.2018 reflects that SRB did not assign any reason

for rejecting case of the petitioner for premature release. If any

reason or reasons had been given by SRB at time of rejection of

claim of the petitioner for premature release but those reasons were

never communicated to the petitioner. As narrated hereinabove

reasoned decision guarantee consideration by the authority, introduce

clarity in decisions and minimize chances of arbitrariness in decision-

making thereby ensuring fairness in the process. The disclosure of

reasons generates confidence in decision making process of

administrative authorities and minimizes chances of arbitrariness.

The reasoning is soul of a decision and informed effected person

regarding basis for rejection of claim and provides platform to

challenge impugned order before the higher authority/constitutional

court. The decision of SRB in rejecting premature release of the

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petitioner without assigning any reason may not be legally

sustainable.

15. The case of the petitioner subsequent to filing of present petition

as reflected from Status Report filed by the respondent, was also

considered by SRB in the meeting held on 21.10.2021 and was

rejected. The relevant minutes of meeting held on 21.10.2021 are

reproduced verbatim as under:-

79. NAZIR KHAN @ SAIFULLA @ MOHD. AKRAM @ NAZRU S/O SH. HAZI LAL KHAN -- AGE-51 YRS.

(PAKISTAN NATIONAL) Nazir Khan @ Saifulla @ Mohd. Akram @ Nazru S/o Sh. Hazi Lal Khan is undergoing life imprisonment in case FIR No. 658/1994, U/S 364/364-A r/w 120-B/121A/122/124A IPC & 14 F. Act, 3 (2) (1) TADA (P) Act, P.S. Connaught Place, Delhi for committing Kidnapping with conspiracy and terrorist activities (Kidnapped 04 Foreign Nationals to build pressure over Indian Govt. to release some dreaded militants from Indian jails. All these people were associated with Harquat-Ul-Ansar terrorist outfit). The convict has undergone:

Imprisonment of 26 years, 10 months and 01 day in actual and 28 years, 04 months with remission. He has not availed any I. Bail, Parole or Furlough (Being Pakistan National). Recommendation by Police:

The Delhi Police has strongly opposed his premature release in its report. Addl. Commissioner of Delhi Police (Crime) has also opposed his premature release in the meeting.

Recommendation by Social Welfare Department: The Social Welfare Department, Delhi has recommended his premature release in its report. However, the Special

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Secretary cum Director, Social Welfare Department, Delhi, has not supported for his premature release in the meeting. Hometown has verified nationality and submitted for favourable action in its report (By High Commission of Pakistan, New Delhi).

Conclusion:

After taking into account all the facts and circumstances of the case i.e. the crime was committed in a terrorist act (kidnapped 04 Foreign Nationals to build pressure over Indian Government to release dreaded militants from jails), gravity, perversity and nature of the crime, strongly opposed by police, the Board REJECTS premature release of Nazir Khan @ Saifulla @ Mohd. Akram @ Nazru S/o Sh. Hazi Lal Khan at this stage.

15.1 The perusal of minutes of meeting held on 21.10.2021 reflects

that by that time, the petitioner has already undergone imprisonment

of 26 years, 10 months and 01 day in actual and 28 years, 04 months

with remission. The petitioner has not availed any interim bail, parole

or furlough being national of Pakistan. The Delhi Police has strongly

opposed premature release of the petitioner. The Additional

Commissioner (Crime), Delhi Police has also opposed premature

release of the petitioner in the meeting. The Social Welfare

Department, Delhi has recommended premature release of the

petitioner in its Report but the Special Secretary cum Director, Social

Welfare Department, Delhi has not supported premature release of

the petitioner in the meeting. Thereafter after taking into account

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entire the facts and circumstances of the case i.e. the crime was

committed in a terrorist act i.e. kidnapping of 04 foreign nationals to

build pressure over Indian Government to release dreaded militants

from jails, gravity, perversity and nature of the crime, strongly

opposed by police, SRB rejected premature release of the petitioner.

SRB as such while rejecting claim of the petitioner for his premature

release has considered and deliberated all relevant facts and

circumstances pertaining to the petitioner. SRB has properly

considered gravity of offences committed by the petitioner which

included kidnapping of 04 foreign nationals for release of dreaded

militants, waging war against India etc. SRB has taken into account

relevant considerations in rejecting premature release of the

petitioner and decision is based on suitable and adequate reasons. The

claim of the petitioner for premature release was not rejected merely

on opposition of Delhi Police. The decision was taken considering

national interest and welfare of the society at large. No prejudice

shall cause to the petitioner if reasons were not given by SRB in its

meeting held on 26.07.2018 while rejecting claim of the petitioner for

premature release as SRB has given adequate and suitable reasons

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while rejecting claim of the petitioner for premature release in its

meeting held on 21.10.2021 subsequent to filing of present case. The

case of the petitioner was considered by SRB in right perspective and

after considering relevant factors. The premature release of a prisoner

undergoing life sentence is within domain of SRB and court under

judicial review cannot substitute its own view. There is much scope

for the court in exercise of power of judicial review to interfere in

decision taken by SRB in rejecting premature release of the petitioner

as SRB has considered relevant factors and took a reasoned decision.

SRB has arrived at a sensible decision after due application of mind

and not arbitrary.

15.2 The Supreme Court in State of Haryana V Mohinder Singh,

2000 SCC (Cri) 645 held that prisoners have no absolute right for

remission of their sentence unless except what is prescribed by law

and the circular issued there under. Power of remission, however,

cannot be exercised arbitrarily. Decision to grant remission has to be

well informed, reasonable and fair to all concerned. The Supreme

Court inLife Convict Bengal @ Khoka @ Prasanta Sen V B. K.

Srivastava & others, (2013) 3 SCC 425 after taking into

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consideration several earlier decisions, upheld the decision of the

State Government rejecting the application for premature release

premised on the decision taken by the Sentence Review Board.

Acoordinate Bench of this court in Shashi Shekhar @ Neeraj V

State of NCT of Delhi & others, Writ Petition (Crl.) No.1311/16

decided on 09.11.2016 relied on by the Additional Standing Counsel

for the respondent also observed as under:-

18. Having considered the aforesaid submissions, and the several decisions relied upon by the learned counsel on both sides, it is, firstly, clear that life sentence is not limited to either 14 years, or 20 years, or even 25 years. A life sentence means the actual life imprisonment for the entire life of the convict. The same may be curtailed by the State by premature release. However, that is the discretion of the State Government to be exercised on the advice of the SRB. The SRB itself has to arrive at its opinion on the aspect of premature release on sound principles. It should have good reasons for allowing or disallowing the application for premature release made by a convict. The Courts cannot substitute the discretion of the State/ SRB with its own discretion. If the Court finds that the said discretion has not been properly exercised with due application of mind, the Court may set aside the order rejecting the application seeking grant of premature release and may remit the case back for reconsideration. However, the Court would not, on its own, undertake the exercise of considering whether or not to grant premature release to a convict.

16. The counsel for the petitioner during arguments relied on Sushil

Sharma V State decided by Division Bench of this court and argued

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that in view of decision in Sushil Sharma case, the petitioner be

granted pre-mature release.

16.1 In Sushil Sharma case, the petitioner was tried for offences

punishable under sections 302/120-B IPC read with section 201 IPC.

The trial court vide judgment dated 03.11.2003 convicted the

petitioner therein under sections 302/120-BIPC read with section 201

IPC. The petitioner was sentenced to capital punishment. The death

sentence awarded to the petitioner was confirmed by this court

on19.02.2007. The Supreme Court commuted the death sentence to

life sentence vide order dated 08.10.2013 passed in Crl. A. 693/2007

titled as Sushil Sharma V The State of NCT of Delhi.

16.1.1 The Division Bench after referring relevant part of judgment

dated 08.10.2013 observed that the Supreme Court found that it

would be difficult to state that the petitioner was remorseless. It was

further referred that the Supreme Court also observed that medical

evidence in the case did not establish that the dead body of the

deceased was cut. There was no recovery of any weapon like chopper

that could suggest that the petitioner had cut the dead body. The

Supreme Court also observed that murder was outcome of strained

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personal relationship and that therefore it was an offence against

society. The petitioner neither had criminal antecedents nor was he a

confirmed criminal and no evidence was led by the State to indicate

that the petitioner was likely to revert to such crimes in future. The

Supreme Court also expressed its considered view that it was not

possible in the facts and circumstances of the case to state that there

was no chance of the petitioner being reformed and rehabilitated. In

view of these mitigating circumstances, the Supreme Court

commuted the death sentence awarded to the petitioner to life

imprisonment. The life sentence awarded was for the whole of the

remaining life subject to the remission granted by the appropriate

Government under Section 432 of the Code which in turn would be

subject to the procedural checks mentioned in the said provision and

further substantive checks stipulated in Section 433-A of the Code.

16.1.2 The Division Bench also observed that the petitioner has

remained incarcerated admittedly for a period of over 29 years

including remission. The petitioner has old aged infirm parents and in

need of attention and support from the petitioner. The probationary

officer also repeatedly recommended for his pre-mature release.

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16.1.3 The Division Bench deliberated two issues which are whether

SRB is bound by the Guidelines contained in the order

noF.18/5/94/Home(Genl.) dated 16.07.2004 formulated by the

Government of National Capital Territory of Delhi and whether the

rejection of the petitioner representation for premature release is

violative of his vested rights under the Guidelines. The Division

Bench also observed that imprisonment for life in terms of the

relevant provisions only means imprisonment for the rest of the life

of the prisoner but subject to the right of the prisoner to claim

remission etc. as provided under Article 72 and 161 of the

Constitution of India to be exercisable by the President and the

Governor of the State and also as provided under section432 of the

Code.

16.1.4 The Division Bench further analysed recommendation of SRB

and observed that it was apparent from minutes of the meeting held

on 26.07.2018 from the record that the Social Welfare Department,

Government of NCT of Delhi had recommended release of the

petitioner in terms of the report of the Chief Probation Officer. The

Superintendent Central Jail No.2, Tihar, New Delhi had also

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recommended premature release of the petitioner due to his good jail

conduct for the entire duration of his incarceration. However SRB

recorded strong opposition of Delhi Police for premature release of

the petitioner on ground that such release may create resentment in

the society. SRB also observed that the convict has no previous

criminal history, good aptitude for reforms, good conduct in jail and

on parole/furlough, recommendation of Welfare Department but SRB

unanimously deferred premature release of the petitioner. However

SRB in next meeting of the SRB after recording the positive

recommendations of the Social Welfare Department, Government of

NCT of Delhi, the Chief Probation Officer and the Prison

Department and opposition of the Delhi Police observed that rest of

the members have opposed case for premature release in view of

perversity of the crime and the circumstances under which the crime

was committed and that the convict has committed murder of his

wife, brutality of the case rejected premature release of the petitioner.

The Division Bench observed that recommendations of SRB are

cryptic, unreasoned and contrary to the material on record and non-

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speaking and suffer from the vice of arbitrariness, whimsicality and

illegality.

16.1.5 The Division Bench observed that rejection of representation

of the petitioner for premature release was arbitrarily and without due

or proper application of mind and in contravention of the express

mandate of the State policy as contained in the Guidelines The

incarceration of a convicted prisoner like the petitioner did not result

in the suspension of his constitutional rights and he is not denuded of

the rights enshrined in every person including the convict within the

mandate of the guarantee of liberty protected and emphasized under

Article 21 of the Constitution of India. The recommendations of SRB

with respect to the petitioner were set aside and quashed. The

petitioner was ordered to be released.

17. The facts related to the present petitioner are absolutely different

from the petitioner in Sushil Sharma which is apparent from order

on sentence dated 27.04.2002 pronounced by the Designated Judge,

TADA, New Delhi, the relevant portion is reproduced verbatim as

under:-

1. I have heard accused persons on the question of sentence. The accused persons instead of arguing on the question of

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sentence have repeatedly stated that they were innocent and have been falsely implicated. They did not want to say anything on the question of sentence. Accused Nazir Khan @ Khan @ Saifulla @ Mohd. Khan @Mohd Akarm @ Nazir Abdul Rahim and Nasar Mehmood Sodgzy @Aftab Ahmed @ Abdullah are Pakistani Nationals and had receive training in terrorism in Khost, Afganistan. Accused Mohd Sayeed Mahood @ Ayub @ Topiwala and Nurul Amin are the three Indian terrorists. Accused Nurul Amin had received training in Dhakain a camp, accused Mahmood @ Aub @ Topiwala had also been to Pakistan and while working as Mauzin in Jama Masjid, he actively helped the terrorists in preparing the hideouts, acted as information conduit and went to Pakistan Embassy for affixing visas of other person as at the instance of one Farooq. Accused Mohd. Sayeed for greed of money and having one Maruli Van After the operation had decided to co-operate the terrorists in the crime of kidnapping of foreigners and keeping them hostage. It is he show drove the van with foreigners to the hide- outs, where foreigners were chained. He has also arranged house at Hapur Road, U.P.

3. Anti India literature of Harqat U1 Ansar, a terrorist outfit, to which these accuse persons and Ahmed Umar Syed Sheikh belonged was recovered from one of the hide- outs belonging to them Accused Nazir Khan, Abdul Rahim and Nasar Mehmood Sodozy having been brain-washed by terrorist training and after receiving the training, they entered India. All the terrorists had been trained to indulge an destructive activities they are will trained in firing rocket-launchers hand-grenades, AK- 47 Rifles, Mortar guns. For them life of innocent persons has no value taking life to innocent persons amount to fulfilling of their object to creating terror. They had entered India with the intention "of dismembering the Indian territory of Kashmir and with the intention of getting other terrorist liberated, so that their object of waging an unholy war against India is fulfilled.

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4. I consider that these there accused persons do not deserve leniency of any king. Misplaced sympathy encourages more persons to enter into this filed. One of the object of punishment must be given so that other foreign mercenaries do not dare to enter India and create chaos here and before thinking of entering India for fulfilling their nefarious designs, they must know, what end they can meet. These terrorists by distribution literaue of malicious propaganda against India, create hatred in the mind of section of people whose sympathy they want to again. They act at the instance of foreign powers and role of ISI has been stated clearly by them in their disclosure statement. If such parsons are to be prevented from entering India for flaring up communal riots and from exiting the sentiments of a community the punishment to be awarded to them must be deterrent.

17.1 The petitioner is a foreign national i.e. national of Pakistan and

had received training in terrorism activities in another country. Anti

India literature of a terrorist outfit was also recovered from one of the

hide-outs belonging to the convicts. The petitioner was brain-washed

by terrorist training and entered in India after receiving the training

with intention to attack national integrity and to get other terrorist

liberated so that object of waging war against India is fulfilled. The

convicts kidnapped foreign nationals to pressurize government for

release of dreaded terrorists. After considering totality of

circumstances and manner in which offences were committed and

executed, the petitioner cannot be put at par with Sushil Sharma

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who committed murder of his wife. The decision delivered by the

Division Bench of this court does not provide any help to the case of

the petitioner.

18. India is a democratic country governed by rule of law under

aegis of written constitution which embodied certain fundamental

rights available to all and infringement of which is corrected and

cured by judicial system and process. Article 21 of Constitution

provides that no person shall be deprived of his life or personal

liberty except according to a procedure established by law. Article 21

is at the heart and soul of the Constitution. It is the most organic and

progressive provision in our living Constitution. The fundamental

right to personal liberty is extended natural persons and is

fundamental to very existence and living as human beings. It makes a

man‟s life meaningful, complete, and worth living. The right to

personal liberty can only be deprived except according to procedure

established by law. The petitioner in present case was always treated

with procedure established by law and his request for premature

release was rejected in accordance with law.

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19. The present petition is devoid of any merit, hence dismissed.

However the petitioner shall be at liberty to summit fresh

representation for his premature release in altered circumstances. The

respondent through SRB shall also be at liberty to reconsider

premature release of the petitioner in accordance with law.

20. Copy of this judgment be sent to the petitioner through

concerned jail superintendent for information and further necessary

action if any.

SUDHIR KUMAR JAIN, J.

DECEMBER 14, 2022/sk/sd

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