Nazir Khan v. The State of NCT of Delhi

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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 2 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 3 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 4 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 5 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 6 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 7 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 8 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 9 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 10 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 11 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 12 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 13 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 14 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 15 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 16 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 17 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 18 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 19 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:- 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 but not less than 14 years of actual imprisonment. The following categories are mentioned in this connection: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 or furlough, murder in a terrorist 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. 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 W.P CRL 1591/ 2019 NAZIR KHAN V THE STATE OF NCT OF DELHI 20 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.