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Consent of the Central Government is a pre-requisite u/s 435 of CrPC, if given wisely: Delhi High Court

In section 435 of CrPC where Central Government has the power to remit or suspend sentences. Delhi High Court stated that the consent u/s 432 and 433 of CrPC mandatory to be taken from the Central Govt. only if the center considers and doesn’t deny it without application of mind. The Decision was taken by the single bench of Hon’ble Justice Vibhu Bakhru in the case of Kartik Subramaniam vs. Union of India [W.P.(CRL) 1642/2020 & CRL.M.A. 13947/2020].

In the instant case, Petitioner (convict for life sentence) had filed a petition for declining the orders dt.26.05.2016, 29.06.2018, and 30.10.2019 which dismissed his premature release from imprisonment with the recommendation of Sentence Review Board and Govt. of NCT on 4 occasions. The petitioner claimed that the decision of the Central Government to not concur with his premature release is arbitrary and unreasonable and contrary to the guidelines framed for the aforesaid purpose. His conduct during the period of his incarceration had been exemplary and had been recognized as such by the concerned authorities. The SRB had also found that he had lost his propensity to commit a crime. It was submitted that in the given circumstances, there could be no possible objection to the petitioner’s premature release.

In the present case, a complaint had been lodged against 4 accused including the petitioner in the CBI and was tried for the charges framed against them. The petitioner was sentenced to life imprisonment along with a fine of ₹5,000/- for committing the offences punishable under Section 120-B read with Sections 364A/365/368/324/506 of the IPC. As of 20.02.2020, the petitioner had served actual custody for a period of eighteen years, seven months, and one day. During this period, he had also earned remission of six years, eleven months, and fourteen days. As of date, the petitioner had already served more than twenty-six years of his prison sentence. This includes over nineteen years of actual incarceration.

 In terms of the SRB Guidelines, the petitioner became eligible for premature release on 07.05.2017. In view of the above, the petitioner approached this Court by filing a Writ, praying that he be directed to be released prematurely. The said petition was disposed of by an order dated 16.11.2015, whereby the Court directed the respondents to consider the petitioner’s case for premature release.

The SRB also noted that at the relevant time, the petitioner had served a prison sentence of nineteen years, seven months, and twenty-one days including the remissions earned by him. He had availed parole on ten prior occasions and was granted furlough on four occasions. He had not misused his liberty and nothing adverse had been reported against him. Considering the above, the SRB recommended the petitioner’s premature release.

SRB forwarded the same to the Central Government. However, by a letter dated 26.05.2016, the Central Government communicated its decision not to concur with the proposal of the Government of NCT for prematurely releasing the petitioner u/s 435 of the CrPC. SRB recommended the premature release of the petitioner thrice but was dismissed every time. The arguments were held that the consent of the Central Govt. is not required for such release by the petitioner’s counsel referring to the case of Home Secretary (Prison) and Ors. vs H. Nilofer Nisha.

Hence, the HC bench concluded that the recommendation of the SRB for pre-mature release was well-considered and unless there is any relevant reason to dissent from the same, the same should be accepted. HC stated that “Plainly, the above reason is, ex-facie, untenable. This is so for the simple reason that if the said reason is to be followed then no convict, who had been awarded life imprisonment, can be released prematurely. And, it is not the Central Government’s stand that powers under Section 435 of the Cr.PC should not be exercised in any case”.

“It is clear that the decision of the Central Government, to not concur with the recommendations of the SRB for premature release of the petitioner, is arbitrary and without considering any relevant factors”.

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