Courts can't order interim release of convict whose remission plea is pending with State: Allahabad High Court

The Allahabad High Court recently said the courts have no power to decide the question of grant of remission to a prisoner till a decision on the same is taken by the government or the concerned State authority [Ambrish Kumar Verma vs State of UP]..The Full Bench of Justice Vivek Chaudhary, Justice Abdul Moin and Justice Saurabh Lavania held so while answering whether a Division Bench was right in directing Chief Judicial Magistrates to release convicts as an interim measure when their applications for remission or premature release had remained pending beyond a particular period.Another Division Bench in March this year disagreed with the order passed on January 10 and referred the matter for a decision by a Full Bench. The Full Bench on May 25 said the power of remission can be exercised by the appropriate authority only and not the courts. “The Division Bench in Ganesh [vs. State of U.P.] could not have issued any direction for granting the general directions of bail commanding the Chief Judicial Magistrates to release convicts whose applications for remission/premature release have remained pending beyond a particular period, as interim measure, till disposal of the said applications," the Court said..The Full Bench explained that remission of a convict is permissible under Articles 72 and 161 of the Constitution of India and also under Section 432 and 433 of the Code of Criminal Procedure (CrPC).In this regard, the Court noted that a policy was framed by the State of Uttar Pradesh in 2018 and the same was amended in 2021 and 2022.It also found that the Supreme Court in Home Secretary (prison) and others vs. H. Nilofer Nisha had encountered a similar question regarding premature release of convicts sentenced to life imprisonment.“The Court clarified that such determinations fall within the realm of governmental authority rather than judicial purview. Parole or remission is regarded as a privilege subject to specific conditions, not an inherent right. While the Court can step in if authorities unduly delay decisions on a detainee's representation, it lacks the direct power to grant release. Its intervention is limited to compelling the competent authority to promptly adjudicate,” the Full Bench noted..The Court also found that State of UP’s remission was also considered by Supreme Court in the case of Rashidul Jafar @ Chota and there was no such direction that if a decision on premature release of convicts is delayed, the prisoners should be released on bail.“The Supreme Court did not find any requirement to apply the principle of reverse burden on the State,” it said, adding that decision of premature release or remission has to be taken by the concerned competent authority.The Court further observed that the top court in other cases has held that constitutional courts can only direct consideration of cases of remission in a time bound manner and thereafter, exercise the power to judicially review such decisions. “In view of aforesaid, it can be safely held that the Courts have no power to decide the question of remission till decision is taken by the appropriate Government or concerned authority or State Government.”.On the general directions passed by the Division Bench in January, the Full Bench held there is no power under Article 226 of the Constitution of India or under Section 482 of CrPC with the High Court to direct release of convicts en masse on bail, or without their filing any application for bail, only because their applications for remission are not decided on time.“It is apparent that the Division Bench has tried to exercise the power of remission of releasing an accused in the garb of bail, without there being any bail application on behalf of such a person and without applying its mind with regard to entitlement of any such bail, on merits, to such a person. Since the power of remission could not have been exercised by the Division Bench there is no question of exercising such a power in the garb of a bail order,” the judgment said.Advocate Yogeshwar Sharan Srivastava represented the petitioner.Advocates Dr VK Singh, SN Tilhari, Bipul Kumar Singh and Shivendra Shivam represented the State.Advocate Pranjal Krishna served as Amicus Curiae. Advocate Prashant Kumar Singh also appeared in the matter.Advocates Ravi Kant Pandey and Abhilasha Singh appeared for other respondents.[Read Judgment]