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Orissa High Court
Nilu @ Tarkeswar Kumar Choudhury vs State Of Odisha on 20 August, 2025
ORISSA HIGH COURT : CUTTACK
WPCRL No.05 of 2025
In the matter of Applications under Articles 226 and 227 of
the Constitution of India
***
Nilu @ Tarkeswar Kumar Choudhury,
Aged about 55 years, S/O: Sidheswar
Prasad Choudhury, At:Kali Mandir,
Bangla, Tola, Panposh, Raghunath
Palli, Rourkela-4, Dist: Sundergarh … Petitioner
-VERSUS-
1. State of Odisha, Represented through
Secretary to Government in Home
Department, At/PO:Bhubaneswar, Dist:
Khurda.
2.The Director of Prisons and Correctional
Services, Odisha, At/PO:Bhubaneswar,
District: Khurda.
3. Superintendent, District Jail, Rourkela,
District: Rourkela … Opposite parties
Counsel appeared for the parties:
For the Petitioner : Ms. Saswata Pattanayak,
AdvocateFor the Opposite Parties : Mr.Debasish Tripathy,
Additional Government AdvocateP R E S E N T:
WPCRL No.05 of 2025 Page 1 of 16
HONOURABLE CHIEF JUSTICE
MR. HARISH TANDONAND
HONOURABLE JUSTICE
MR. MURAHARI SRI RAMANDate of Hearing : 20.08.2025 : Date of Judgment : 20.08.2025
J UDGMENT
HARISH TANDON, C.J.–
Undeniably, the petitioner was convicted for
committing a heinous crime, i.e., dacoity coupled with
the murder and was sentenced for life. As on date, he
has undergone 25 years of incarceration and has
approached the Court challenging the decision of the
State Sentence Review Board where the application for
premature release was rejected.
2. Indubitably, three applications filed by the
petitioner after undergoing a substantial period of
imprisonment were rejected by the State Sentence
Review Board and last of such rejection order is
assailed in the instant writ petition. The challenge is
thrown on multiple grounds, one of which appears to
have been taken a front seat that the said State
Sentence Review Board while considering an
application for premature release ought not to have
relied upon the policy taken in a Resolution of the LawWPCRL No.05 of 2025 Page 2 of 16
Department duly notified in an official gazette on 19th
April, 2022. An incidental plea is also taken that the
similarly circumstanced person was considered by the
said Board on the basis of the earlier policy and not on
the basis of the policy taken on 2022, and therefore,
the act of discrimination is manifestly evident
therefrom. We intend to give our anxious thought to
the pivotal issue raised by the petitioner touching
upon the applicability of a policy to be borne in mind
or to be applied at the time of considering the
application for premature release.
3. According to the counsel for the petitioner, the
law in this regard is somewhat settled that the policy
which was prevalent at the time of conviction shall be
the guiding factor in considering an application for
premature release. It is further submitted that there is
no absolute bar in taking into consideration the
subsequent policy provided such policy is more liberal
and enure to the benefit of the convict. To buttress the
said legal aspect, reliance is placed upon the
judgments of the Apex Court rendered in the case of
Joseph v. State of Kerala and others reported in
2023 SCC On Line SC 1211, Hitesh @ Bavko
Shivshankar Dave v. State of Gujarat reported in
(2024) 5 SCC 623 and Rajkumar v. State of Uttar
Pradesh reported in (2024) 9 SCC 598.
WPCRL No.05 of 2025 Page 3 of 16
4. It is thus submitted that the Board has not only
acted contrary to the law declared by the Apex Court,
but also ignored the vital documents produced before
it. It is lastly submitted that the decision of the Board
is unacceptable and liable to be interfered with as no
reasons were provided for discarding the favourable
report submitted by the authorities, who are in the
helm of such affairs.
5. The counsel for the State submits that the Board
has taken a conscious decision on the materials
available from the record and the policy framed by the
Government does not put any fetter on the Board to
take an independent decision de hors the other
recommendations given by the authority. In other
words, he submits that the Board is not bound by any
other recommendations as it is required to take an
independent and conscious decision whether the
applicant seeking release deserves to be released
prematurely and such decision based upon a policy of
the Government should seldom interfered by the Court
under Article 226 of the Constitution of India. He
further submits that the Writ Court should not expand
its horizon to find the fault in the decision of the
administrative authority but should confine its
consideration to a process by which such decision has
been arrived. If the entire process cannot be faulted
with, the writ court should not interfere with the
WPCRL No.05 of 2025 Page 4 of 16
decision of the Board being a constituent of high
officials of the Government solely on the ipse dixit of
the stand taken by the petitioner in the instant writ
petition.
6. On the conspectus of the aforesaid fact and the
submissions so advanced before us, it would be
profitable and relevant to recapitulate the policies
adopted by the State Government with regard to the
premature release of the convicts who have undergone
considerable period of incarceration.
6.1. The Law Department of the Government of
Odisha in its resolution dated 26th September, 2000
adopted a policy to streamline the uniform standard
and the criteria for determining the eligibility of the
prisoners undergoing life sentence for their premature
release. The significant feature of the said policy can
be seen from the stand of the State Government to
constitute a State Sentence Review Board as
recommended by the National Human Rights
Commission to review the sentence awarded to the
prisoners and to recommend his premature release.
The said policy contains an exhaustive provision
including the eligibility for premature release and
ineligibility in this regard in Paragraphs-3 and 4
thereof. The paragraph-4 of the said policy dated 26th
September, 2000 broadly engulfed within itself the
WPCRL No.05 of 2025 Page 5 of 16
convicts who are kept outside the purview of the said
policy which undeniably includes the convicted
prisoners of the offence such as rape, dacoity, the
terrorist crime etc.
7. For the purpose of clarity on the factual matrix, it
is recorded that the petitioner was convicted having
committed an offence of dacoity and murder, and,
therefore, comes within the ambit of the ineligibility
clause. The said policy though not directly under the
revisit by the National Human Rights Commission, but
the said Commission while considering the aspect of
humanity and the disparity in the policy adopted by
the State across the country recommended for
modification of paragraphs-3 and 4 of the guidelines
which in all such policy contained the provision
relating to eligibility and ineligibility of a convict for
premature release. The Human Rights Commission
made recommendation to all the States in its letter
dated 26th September, 2003 so that the
aforementioned paragraphs can be modified and/or
revisited by the respective States in the following:
“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.PC shall be
eligible to be considered for premature release from
the prison immediately after serving out the sentenceWPCRL No.05 of 2025 Page 6 of 16
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 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’s
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 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.
Section 433A was enacted to deny premature release
before completion of 14 years of actual incarceration
to such convicts as stand convicted of a capital
offence. The Commission is of the view that within
this category a reasonable classification can be made
on the basis of the magnitude, brutality and gravity of
the offence for which the convict was sentenced to life
imprisonment. Certain categories of convicted
prisoners undergoing life sentence would be entitled
WPCRL No.05 of 2025 Page 7 of 16
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. 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 cases 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 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.
3.2. All other convicted male prisoners not covered by
section 433A Cr.PC undergoing the sentence of life
imprisonment would be entitled to be considered for
premature release after they have served at least 14
WPCRL No.05 of 2025 Page 8 of 16
years of imprisonment inclusive of remission but only
after completion of 10 years actual imprisonment i.e.
without remissions.
3.3. The female prisoners not covered by section
433A Cr.PC undergoing the sentence of life
imprisonment would be entitled to be considered for
premature release after they have served at least 10
years of imprisonment inclusive of remissions but
only after completion of 7 years actual imprisonment
i.e. without remissions.
3.4. Cases of premature release of persons
undergoing life imprisonment before completion of 14
years of actual imprisonment on grounds of terminal
illness or old age etc. can be dealt with under the
provisions of Art. 161 of the Constitution and old
paras 3.4 and 3.5 are therefore redundant and are
omitted.
4. Inability for Premature Release
Deleted in view of new para 3
All the States/UTs are requested to review their
existing practice and procedure governing premature
release of life convicts and bring it in conformity with
the guidelines issued by the Commission.”
8. Pursuant to such recommendation of the
National Human Rights Commission, the Law
Department of the State in its Resolution dated 25th
May, 2005 modified the said policy dated 26th
September, 2000 by adopting such recommendation.
The cumulative effect of the recommendation by the
WPCRL No.05 of 2025 Page 9 of 16
National Human Rights Commission and the
amendment having brought by the State in the said
policy which was in vogue at the time of the conviction of
the petitioner is suggestive of the notion that the nature
of the crime cannot be a determinant factor for the
purpose of a premature release provided the convict has
undergone specified years of incarceration. However, a
further policy was adopted by the State Government as
reflected in the Resolution dated 5th May, 2010, it was
noticed that there are some confusion having a reason in
the policy dated 26th September, 2000 and the
amendment having brought by a resolution dated 25th
May, 2005. The said policy guideline is exhaustive and
the rigour of different parameters were lifted including
the year of sentence with an avowed object of adherence
to the right to liberty enshrined under Article 21 of the
Constitution of India. The cumulative effect of the
aforesaid policy is indicative of the intent of the
Government that the persons who have undergone a
substantial period behind the bar, may be released
prematurely and therefore, such welfare scheme or a
beneficial piece of the scheme is to be kept in mind at
the time of taking a decision by an authority constituted
under the said scheme.
9. We do not wish to delve into the nitty-gritty of
the further policy taken on 19th April 2022 as we find
WPCRL No.05 of 2025 Page 10 of 16
that the policies as succinctly narrated hereinabove are
more beneficial.
10. It, thus, takes us to the pivotal issue raised by
the petitioner whether the Board was justified in
rejecting the application filed by the petitioner taking aid
of the policy dated 19th April, 2022 or should have
decided the said application on the basis of the policy
prevalent at the time of conviction. There is no
dissenting view as of now on the applicability of the
policy framed by the Government for premature release
to be set in motion. At the time of considering an
application for premature release filed by the convict, the
policy which was prevalent at the time of conviction shall
be the primary guiding factor for consideration of the
said application. It also do not admit to ambiguity that if
subsequent policies are more liberal as well as enuring
to the benefit of the beneficiaries of the said policy, the
same may also be taken into consideration or borne in
mind by the Board.
11. In Joseph (supra), the identical issue was raised
where the Court was invited to consider the stringent
conditions imposed in the policy which kept the convict
outside the purview of such benevolent scheme. The
Apex Court took into consideration the provision
contained under Articles 72 and 162 of the Constitution
which relates to the remission, commutation etc. to be
WPCRL No.05 of 2025 Page 11 of 16
not caged or confined within the force of guidelines or a
policy. The Apex Court held that the person may have
committed a crime at one point of time and remained
incarcerated for a considerable period of time, but he
may not remain the same person nor be tainted to
remain so. The moment the reforms have come, there is
no obstacle to consider the prayer for premature release
in the following:-
“20. A reading of the observations of this court in State of
Haryana v. Jagdish, which was followed in State of
Haryana vs. Raj Kumar, makes the position of law clear:
the remission policy prevailing on the date of conviction, is
to be applied in a given case, and if a more liberal policy
exists on the day of consideration, then the latter would
apply. This approach was recently followed by this court in
Rajo v. State of Bihar as well.
37. Classifying- to use a better word, typecasting convicts,
through guidelines which are inflexible, based on their
crime committed in the distant past can result in the real
danger of overlooking the reformative potential of each
individual convict. Grouping types of convicts, based on the
offences they were found to have committed, as a starting
point, may be justified. However, the prison laws in India-
read with Articles 72 and 161- encapsulate a strong
underlying reformative purpose. The practical impact of a
guideline, which bars consideration of a premature release
request by a convict who has served over 20 or 25 years,
based entirely on the nature of crime committed in the
distant past, would be to crush the life force out of such
WPCRL No.05 of 2025 Page 12 of 16
individual, altogether. Thus, for instance, a 19 or 20 year
old individual convicted for a crime, which finds place in
the list which bars premature release, altogether, would
mean that such person would never see freedom, and
would die within the prison walls. There is a peculiarity of
continuing to imprison one who committed a crime years
earlier who might well have changed totally since that
time. This is the condition of many people serving very long
sentences. They may have killed someone (or done
something much less serious, such as commit a narcotic
drug related offences or be serving a life sentence for other
non-violent crimes) as young individuals and remain
incarcerated 20 or more years later. Regardless of the
morality of continued punishment, one may question its
rationality. The question is, what is achieved by continuing
to punish a person who recognises the wrongness of what
they have done, who no longer identified with it, and who
bears little resemblance to the person they were years
earlier? It is tempting to say that they are no longer the
same person. Yet, the insistence of guidelines, obdurately,
to not look beyond the red lines drawn by it and continue
in denial to consider the real impact of prison good
behavior, and other relevant factors (to ensure that such
individual has been rid of the likelihood of causing harm to
society) results in violation of Article 14 of the Constitution.
Excluding the relief of premature release to prisoners who
have served extremely long periods of incarceration, not
only crushes their spirit, and instils despair, but signifies
society’s resolve to be harsh and unforgiving. The idea of
rewarding, a prisoner for good conduct is entirely negated.”
WPCRL No.05 of 2025 Page 13 of 16
11.1. In Hitesh @ Bavko Shivshankar Dave vs.
State of Gujarat reported in (2024) 5 SCC 623, the
Apex Court in unequivocal term held that the grant of
premature release being an executive function, the policy
adopted should be considered in a pragmatic manner
and the application should be considered taking into the
account the policy prevalent at the time of conviction. It
further held that there is no absolute bar in not taking
into consideration the subsequent policy provided such
policy is more liberal enuring to the benefit of the convict
in the following:
“4. Following the law laid down by this Court, in
determining the entitlement of a convict for premature
release, the policy of the State Government on the date of
the conviction would have to be the determinative factor.
However, if the policy which was prevalent on the date of
the conviction is subsequently liberalised to provide more
beneficial terms, those should also be borne in mind.”
11.2. The principle of law as enunciated in the above
report is restated and reiterated in a subsequent Bench
decision rendered in Rajkumar vs. The State of Uttar
Pradesh reported in (2024) 9 SCC 598 in the following:
“13. The State having formulated Rules and a Standing
Policy for deciding cases of premature release, it is bound
by its own formulations of law. Since there are legal
provisions which hold the field, it is not open to the State to
adopt an arbitrary yardstick for picking up cases for
premature release. It must strictly abide by the terms of itsWPCRL No.05 of 2025 Page 14 of 16
policies bearing in mind the fundamental principle of law
that each case for premature release has to be decided on
the basis of the legal position as it stands on the date of
the conviction subject to a more beneficial regime being
provided in terms of a subsequent policy determination.
The provisions of the law must be applied equally to all
persons. Moreover, those provisions have to be applied
efficiently and transparently so as to obviate the grievance
that the policy is being applied unevenly to similarly
circumstanced persons. An arbitrary method adopted by
the State is liable to grave abuse and is liable to lead to a
situation where persons lacking resources, education and
awareness suffer the most.”
12. The law enunciated in the above reports
uniformly laid down that an application for premature
release should be considered on the basis of a policy
prevalent at the time of the conviction. The subsequent
policy may also be borne in mind provided it is more
liberal and enure to the benefit of the convict who has
undergone a sentence of the specified period provided in
the said policy. Since the decision taken for premature
release is an executive function, such decision should be
taken bearing in mind the materials available on record
or placed before the Board and must be supported by
some reasons. The Board has the exclusive authority to
decide whether a convict is entitled to a premature
release or not but the said decision must withstand on
the test of reasonability, rationality, devoid of
WPCRL No.05 of 2025 Page 15 of 16
arbitrariness, untainted with bias, whimsical and above
all ensure the uniformity in the said decision.
13. We could have interfered with the decision of the
Board as we found it contrary to the law declared by the
Supreme Court in the above noted decision but our
attention is drawn to the fact that the petitioner has
further applied for premature release on 5th June, 2025
which has not been considered by the Board as of now.
14. We, thus, feel that the justice would be sub-served
if the Board is mandated to consider the said application
in the light of the observation made hereinabove within a
period of two months from the date of the
communication of this order.
With these observations, the WPCRL is disposed
of. No order as to costs.
(HARISH TANDON)
CHIEF JUSTICE
Signature Not Verified
Digitally Signed
(MURAHARI SRI RAMAN)
Signed by: BICHITRANANDA SAHOO
Designation: Secretary JUDGE
Reason: Authentication
Location: High Court of Orissa, Cuttack
Date: 26-Aug-2025 18:06:08
High Court of Orissa, Cuttack
The 20th August, 2025/Bichi/Aswini
WPCRL No.05 of 2025 Page 16 of 16
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