DATE: 17/02/2026
COURT: High Court of Delhi
BENCH: Justice Sanjeev Narula
FACTS:
The petitioner, Asif @ Naeem, a Bangladeshi
national aged 41, was convicted by a Delhi trial court on January 25, 2010,
under Sections 396 (dacoity with murder) and 449 (house-trespass in order to
commit dacoity) read with Section 34 of the Indian Penal Code, 1860, for his
role in a heinous crime involving murder during dacoity, and sentenced to life
imprisonment. The conviction was upheld by the Delhi High Court's Division
Bench on February 19, 2014, after acquitting him of lesser charges under
Section 412 IPC and Section 27 of the Arms Act, 1959. Further appeals failed.
On December 1, 2021, he was repatriated to Bangladesh under the Repatriation of
Prisoners Act, 2003, to serve the remainder of his sentence there, where his
conduct has been consistently rated satisfactory and law-abiding by prison
authorities.
In 2024, the Sentence Review Board (SRB) of
the Government of NCT of Delhi rejected his initial application for premature
release. The petitioner challenged this via writ petition (W.P.(CRL) 1/2025),
leading the Delhi High Court on May 23, 2025, to set aside the rejection and
direct the SRB to reconsider under the Delhi Premature Release Policy dated
July 16, 2004, and Delhi Prison Rules, 2018, with a reasoned decision. Upon
reconsideration, the SRB's minutes dated July 30, 2025, again denied release,
citing the gravity and "perversity" of the offense, an unverified
Delhi address per police report, and a speculative risk of recidivism, despite
the petitioner's 21 years and 5 months of actual incarceration (27 years with
remission) and positive commutation roll from Bangladesh authorities. This
prompted the current writ petition (W.P.(CRL) 4309/2025) under Article 226,
challenging the SRB's decision and the government's consequential approval.
ISSUES:
The primary issue was whether the SRB's
rejection of the petitioner's premature release application, despite his eligibility
under the 2004 policy and satisfactory prison conduct, constituted a reasoned
and non-arbitrary exercise of discretion as mandated by the Delhi Prison Rules,
2018, or reflected a mechanical denial overly reliant on the offense's gravity
and unsubstantiated future risk assessments, thereby violating principles of
fairness and rehabilitation under the governing framework.
JUDGEMENT WITH REASONING:
The Delhi High Court allowed the writ
petition on (date implied from context) in W.P.(CRL) 4309/2025, setting aside
the SRB's minutes dated July 30, 2025, and the government's approval thereon,
declaring the petitioner fit for premature release based on the record,
including his extended incarceration and satisfactory conduct. The court
directed the Government of NCT of Delhi to process release orders within two
weeks and communicate the decision via the Ministries of Home Affairs and
External Affairs to Bangladesh authorities for immediate implementation, with a
copy of the order forwarded to relevant departments.
The court's reasoning centered on the SRB's
failure to adhere to the structured evaluative framework under the 2004 policy
and Delhi Prison Rules, 2018, which mandate a comprehensive, reasoned
assessment balancing the offense's gravity against rehabilitative factors like
prison conduct, family background, health, and potential for reintegration,
with societal protection as the ultimate objective. The impugned minutes
mechanically emphasized the crime's "heinous" nature and a
conjectural "propensity to reoffend" without linking it to evidence, such
as adverse antecedents, prison infractions, or parole issues (none existed) or
engaging the positive commutation roll showing 21+ years of actual custody and
satisfactory behavior. Reliance on a mere unverified Delhi address was deemed
irrelevant for a repatriated prisoner, where rehabilitation in Bangladesh (the
receiving state) should be the focus, not an outdated Indian link. The court
invoked Supreme Court precedents like Joseph v. State of Kerala
(2023 SCC OnLine SC 1211) and Satish @ Sabbe v. State of Uttar Pradesh (2021) 14 SCC 580, holding that while
remission is not a right, eligibility triggers a non-arbitrary consideration;
treating the offense label as a veto renders the process arbitrary, as gravity
alone cannot override policy thresholds once crossed, and future risk must be
material-based, not speculative.
Further, the judgement rejected a further
remand, noting the prior judicial intervention had already prompted
reconsideration yet yielded the same flaws, prolonging incarceration unjustly
absent countervailing evidence. Drawing from Zahid Hussein v. State of W.B.
(2001) 3 SCC 750, the court clarified that executive discretion, though broad,
is confined by policy and rules requiring a "speaking order" to
enable scrutiny and prevent arbitrariness; here, the SRB's non-engagement with
mandatory factors like rehabilitation potential violated natural justice and
Article 21's reformative justice ethos. Repatriation under the 2003 Act
preserves the transferring state's remission power (Section 11), allowing
communication through official channels for enforcement. Thus, with no adverse
material undermining eligibility, exceeding 20 years (heinous category) and
25-year cap under Clause 3.1, the court issued a writ of mandamus for release,
balancing retribution with reformation while upholding the BNSS, 2023 (Section
473) framework for executive clemency.
ANALYSIS:
The Delhi High Court's decision represents
a robust affirmation of structured executive discretion in premature release
matters, underscoring that while remission or commutation remains a prerogative
of the executive under Section 473 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (formerly Section 432 CrPC), such power is not unfettered once a policy framework
and prison rules govern the process. The court firmly rejected the Sentence
Review Board's (SRB) mechanical reliance on the offense's gravity and a
speculative risk of recidivism as sole grounds for denial, emphasizing that the
2004 Delhi Premature Release Policy and Delhi Prison Rules, 2018, demand a
holistic, evidence-based evaluation that balances retributive considerations
with rehabilitative potential. By highlighting the absence of any adverse
custodial record, the petitioner's prolonged incarceration exceeding policy
thresholds (21+ years actual, 27+ with remission), and positive reports from
Bangladeshi authorities, the judgment reinforced that eligibility for
consideration, once met triggers a meaningful, non-arbitrary assessment rather
than a de facto veto based on the crime's label. The ruling aligns with Supreme
Court precedents like Satish @ Sabbe v. State of Uttar Pradesh
(2021) and Joseph v. State of Kerala (2023), which caution against
treating gravity as an absolute bar and insist on reasoned orders capable of
judicial scrutiny to prevent arbitrariness.
Equally significant is the court's
pragmatic handling of the repatriation dimension under the Repatriation of
Prisoners Act, 2003. Recognizing that Section 11 preserves the transferring
state's (India's) remission powers despite enforcement in the receiving state
(Bangladesh), the High Court issued a writ of mandamus directing immediate
processing and inter-governmental communication, thereby ensuring
enforceability without unnecessary procedural hurdles. By refusing a second
remand, given the SRB's repeated failure to cure defects despite prior
directions the court prevented indefinite prolongation of incarceration in the
face of unchallenged rehabilitative indicators. This approach not only upholds
Article 21's reformative justice ethos but also serves as a deterrent against
perfunctory executive decisions in cross-border prisoner cases, where
rehabilitation must be assessed in the context of the receiving jurisdiction
rather than outdated domestic linkages (e.g., an unverifiable Delhi address).
Overall, the judgment strikes a careful balance between societal protection and
individual reformation, reinforcing accountability in clemency processes while
preserving executive discretion within lawful bounds.
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