Rakesh alias Dhanna v. State NCT of Delhi & Ors.

1. This hearing has been done through hybrid mode.

2. The present petition under Article 226 of the Constitution of India read with Section 528 of the BNSS has been filed seeking release of the Petitioner.

3. The Petitioner was arrested on 23rd September, 2006 in respect of FIR No. 348/2006 registered at PS Alipur. He was convicted, along with another co-convict, vide judgment of conviction dated 6th January, 2011 for offences punishable under Sections 302/201/379/120B/34 of the IPC. He was awarded life sentence vide order on sentence dated 19th January, 2011 by the Trial Court in Sessions Case No. 135/09, arising out of FIR No. 348/06, P.S. Alipur. Vide the said order on sentence, the Petitioner, was sentenced in the following terms: 14:49 “(4) In the present case, the convicts Gopal@Titu and Rakesh@Dhanna have already been convicted for committing the offences as punishable u/s 302/201/379/120B IPC r/w Section 34 IPC. Considering the totality of facts and circumstances of the case, the nature and gravity of offence and the manner in which the convicts have committed the said offences and had murdered the deceased Sushil and thereafter, they had tried to destroy the evidence also, Court is of the considered opinion that none of the convicts deserve any leniency & accordingly, it is directed that for committing offence punishable u/s 302 IPC, each of the convicts Gopa@ Titu and Rakesh@ Dhanna is sentenced to Imprisonment for life and further, a fine of Rs. 25,000/- is also imposed on each of them, in default of payment of which each of them, would further undergo simple imprisonment for a period of 10 months. It is further directed that for committing offence punishable u/s 120B IPC, each of the convicts Gopal@Titu and Rakesh@Dhanna is sentenced to imprisonment for life and further, a line of Rs. 25,000/is also imposed on each of them, as default of payment of which each of them, would further undergo simple imprisonment for a period of 10 months. It is further directed that each of the convicts for committing the offence u/s 379 IPC is sentenced to undergo rigorous imprisonment for a period of three years each and a fine of Rs. 2500/- is also imposed on each of them, in default of payment of which, each of them, would further undergo simple imprisonment for a period of 1 month.. It is further directed that benefit under the provisions of Section 428 Cr.P.C. is also extended to each convicts Gopal@ Tito and Rakesh@Dhanna as per rules. It is further directed that each of the convicts for committing the offence u/s 201 IPC is sentenced to undergo rigorous Imprisonment for a period of three 14:49 years each and a fine of Rs. 5000/- each is also imposed on each of them, in default of payment of which each of them, would further undergo simple imprisonment for a period of 2 months. It is further directed that benefit under the provisions of Section 428 Cr.P.C. is also extended to each convicts Gopal@Titu and Rakesh@Dhanna as per rules. (6) It is further directed that all the punishments shall run concurrently. None of the convicts has paid the fine. Custody warrants be prepared accordingly. Copy of the judgment and copy of the order on point of sentence be given to convicts Gopal @ Titu and Rakesh@Dhanna rules. Dhanna free of cost today itself immediately as per rules”

4. The said conviction and sentence was upheld by the Division Bench of this Court in Criminal Appeal No. 434 of 2011 vide judgment dated 16th January, 2013, and subsequently, by the Supreme Court in SLP (Crl.) 424/2014 vide Judgement dated 22nd January, 2015.

5. Subsequently, some convicts including one Mr. Chetan and others had filed W.P.(Crl.) 397/2023 before the Supreme Court, seeking their premature release in accordance with law. In the said case, vide order dated 6th September, 2023 the Supreme Court had directed that those petitioners who are at liberty on the basis of furlough granted to them, need not surrender. The relevant portion of the Supreme Court’s order reads as under:- “Those petitioners who are still at liberty on the basis of the furlough granted to them need not surrender till the next date. List on 28th November, 2023.”

6. The Petitioner was granted furlough on 9th April, 2024. Petitioner filed a writ petition along with three other Petitioners before the Hon’ble Supreme Court, i.e., W.P.(Crl). 195/2024 seeking benefit of the order granted to similar 14:49 life convicts such as Chetan. The above writ petition was filed by four convicts including the Petitioner herein. He was Petitioner No.4 in the said petition before the Supreme Court. In the said writ petition vide order dated 29th April, 2024, it was directed as under:- “Issue notice. To be heard along with Writ Petition (Crl.) NO. 397/2023. If the petitioners are on furlough/parole, time is granted to surrender till 24. 09. 2024.”

7. Thereafter, when the Petitioner’s case was taken up for hearing along with all the connected matters by the Hon’ble Supreme Court on 1st October, 2024, the Court noted that there were incorrect statements made on facts, and hence, the present Petitioner along with co-Petitioners therein, were permitted to withdraw the petition and approach the concerned High Court. The interim order dated 29th April, 2024 also stood vacated. The order dated 1st October, 2024 in the said writ petition reads as under: -

8. The Petitioner, thereafter, surrendered on 8th October, 2024. Parallelly, in view of the long period of incarceration of over 14 years, the Sentence Review Board (‘SRB’) had considered the case of the Petitioner in its meeting 14:49 dated 30th August, 2024 and 18th September, 2024. The minutes of the SRB meeting is reproduced under:- “RAKESH @ DHANNA S/O SH.

ASHOK KUMAR - AGE-48 YRS. Rakesh @ Dhanna S/o Sh. Ashok Kumar is undergoing life imprisonment in case FIR No. 348/2006, U/S 302/120-B/379/201/34 IPC, P.S. Alipur, Delhi for murder of the driver of the taxi. Eligibility for consideration of the case: 14 years of actual imprisonment i.e. without remission. The convict has undergone: Imprisonment of 17 years, 04 months and 27 days in actual and 21 years, 05 months and 22 day with remission. He has availed I. Bail 01 time, Parole 07 times and Furlough 21 times. This case has been considered under the policy/order dated 16.07.2004 issued by the Govt. of NCT of Delhi i.e. policy that was existing on the date of conviction. Conclusion: The Board considered the reports received from Police and Social Welfare Departments and took into account all the facts and circumstances of the case. Considering the fact that the convict maintained satisfactory jail conduct throughout his incarceration and also nothing adverse have been reported during interim bail, parole and furlough, having shown reformative attitude and has lost his potential to commit crime, the Board after discussion at length unanimously RECOMMENDS premature release of convict Rakesh @ Dhanna S/o Sh. Ashok Kumar.”

9. As can be seen from the above minutes, the SRB recommended premature release of the Petitioner. The Court is also informed that this recommendation has been approved by the Competent Authority on 4th December, 2024. In this background, the grievance of the Petitioner in the 14:49 present writ petition is that despite the said approval, the Petitioner is not being released.

10. On the last date of hearing i.e., 11th December, 2024 when this matter was taken up for hearing, Mr. Sanjay Lao, ld. Standing Counsel for the State had pointed out that the approval of the Competent Authority was subject to the conditions mentioned in the order of approval dated 4th December, 2024. The said condition is read as under:- “If any of the above mentioned convicts violate Delhi Prison Rules, i.e., jump furlough/parole granted by the Competent Authority or by any Court, he/she shall be treated as per remission/premature release rules.”

11. The Learned Standing Counsel reasoned that the impending detention was due to the punishment imposed on the Petitioner for the delay in his surrender on 1st October, 2024, following the order passed by the Supreme Court. After hearing the parties, the Court had directed that the minutes of the SRB meeting be produced before the Court. In addition, the Petitioner was directed to place on record a copy of the writ petition W.P.(CRL) 195/2024 filed before the Supreme Court by him along with three other petitioners seeking parity with the other similar life convicts who were prematurely released by the Supreme Court.

12. Today, pursuant to the above said directions the parties have placed on record the minutes of the meeting (extracted above), and a copy of the writ petition filed before the Supreme Court. In addition, the Counsel for the Petitioner has also placed on record an application i.e., Crl.M.P. No.213588/2024 in the W.P.(CRL) 195/2024. It is informed that this is an application filed by two of the co-petitioners in W.P.(CRL) 195/2024, 14:49 namely, Petitioner No. 1-Rajender and Petitioner No. 2- Nandu seeking withdrawal of the said petition. It is his submission that the facts relating to the said two Petitioners were distinct from that of Petitioner no. 4 - Rakesh@Dhanna and that concealment/suppression was made by Petitioners No 1 and 2. It is submitted that there was no concealment made by the present Petitioner-Rakesh@ Dhanna in the said writ petition. The application filed before the Supreme Court dated 17th September, 2024 is referred to and relied upon.

13. He, thus, submits that the Petitioner's delayed surrendering was due to a bonafide mis-understanding of the orders and in any event the Petitioner had surrendered on 8th October, 2024, immediately upon being informed of the order passed by the Supreme Court on 1st October, 2024 which according to him was uploaded and received by his counsel on 5th October 2024.