Repatriation Arrangement Does Not Stand In Way Of Relief: Delhi High Court Sets Aside "Mechanical" Rejection Of Premature Release Plea Of Bangladeshi Convict
The Court noted that bilateral treaties and international arrangements recognize this jurisdictional split.
The Delhi High Court has held that the repatriation of a foreign national to their home country does not diminish the Indian Government's power to grant premature release.
It was clarified that under the Repatriation of Prisoners Act, 2003, the authority to suspend, remit, or commute a sentence remains vested with the "transferring State"—in this case, India—regardless of where the sentence is physically being served.
The Court set aside the Sentence Review Board (SRB) decision for its "mechanical rejection" of the petitioner’s plea, noting that a clean custodial record of over 21 years of actual incarceration must outweigh vague, evidence-free apprehensions of recidivism.
The Bench of Justice Sanjeev Narula observed, “The repatriation arrangement does not stand in the way of relief. The governing statute preserves the operation of the law relating to suspension, remission and commutation, and the bilateral framework recognizes that the power to grant remission or commutation vests with the transferring State. The enforcement of the sentence may be carried out in the receiving State, but the decision to remit the unexpired portion, once taken in accordance with the applicable policy, is capable of being communicated through the designated governmental channels for implementation.”
Advocate Sarthak Maggon appeared for the Petitioner, while CGSC Amit Tiwari appeared for the Respondents.
A petition under Article 226 of the Constitution was filed assailing the decision of the Sentence Review Board (“SRB”) recorded in the minutes of its meeting, declining the Petitioner’s request for premature release. The Petitioner also challenged the consequential approval/communication issued on behalf of the Government of NCT of Delhi founded on those minutes.
The case originates from FIR No. 284/2004 registered at Police Station Mansarovar Park, Delhi. The Petitioner, Asif @ Naeem, a national of Bangladesh, was accused of participating in a dacoity where a murder was committed. The Trial Court convicted him for offences under Sections 396 and 449 of the Indian Penal Code, 1860, read with Section 34. While he was initially charged with other offences under the Arms Act, a Division Bench of the High Court later acquitted him of those specific charges in February 2014, while upholding the primary conviction for dacoity and murder.
Under the framework of the Repatriation of Prisoners Act, 2003, the Petitioner was transferred to his home country on December 1, 2021, to serve the remainder of his life sentence in a Bangladeshi prison. Despite this transfer, the legal power to remit or commute his sentence remained with the "transferring State" (the Government of NCT of Delhi). Documentation received through official diplomatic channels from the Bangladeshi jail authorities confirmed that his rehabilitative progress continued to be positive following his repatriation.
The Court said, “The policy dated 16th July, 2004, makes two features explicit. First, eligibility after the stipulated period of actual incarceration does not translate into automatic release, and the SRB retains discretion. Second, the discretion must be exercised by weighing the circumstances of the crime together with other relevant factors, including whether the convict has lost the potential for committing crime, the possibility of rehabilitation, and the socio-economic condition of the family. The policy also requires a comprehensive note dealing with the family and social background, the circumstances of the offence, prison conduct, and a reasoned recommendation. Thus, eligibility triggers consideration. It does not guarantee release. At the same time, the policy does not permit the SRB to treat the label of the offence as a veto that makes the rest of the inquiry redundant.”
It was clarified that while the State has the power to grant or refuse remission, this discretion is not "unstructured." Once a policy—such as the 2004 Premature Release Policy—is framed, the State must act within that framework. The Court emphasized that the "label of the offence" (murder during dacoity) cannot serve as a permanent veto against a prisoner who has demonstrated significant rehabilitative progress. The Court noted that the 2004 Policy specifically suggests that even for heinous crimes, the total period of incarceration should generally not exceed 25 years. By holding the Petitioner beyond 27 years without evidence of misconduct, the SRB had acted arbitrarily.
The Court said that the Delhi Prison Rules, 2018, reinforced the same approach. It said that Rule 1244 stated that premature release is anchored in reformation, rehabilitation, and reintegration, while ensuring protection of society, and it recognizes that conduct and performance in prison bear directly on rehabilitative potential. The Rules also contemplated that the SRB decision should be a speaking one, and cautioned against treating the police view as determinative in isolation.
“This insistence on reasons is not a cosmetic requirement. The Supreme Court has repeatedly held that recording reasons is an essential component of fairness in administrative and quasi-judicial decision-making. A conclusion without an intelligible rationale disables scrutiny and breeds arbitrariness. In matters of premature release, the relevant considerations, such as the circumstances of the offence, antecedents, conduct in custody, and the likelihood of reoffending, are not mere formalities to be mechanically recorded. They constitute the foundation of the evaluative exercise”, it added.
The Court affirmed that transferring a prisoner to their home country does not dilute the Indian government's power to remit or commute their sentence. Section 11 of the Act preserves this authority, ensuring that the "Transferring State" (India) remains the ultimate arbiter of mercy. The Court held that the SRB failed to engage with the "commutation roll" provided by the Bangladeshi authorities, which confirmed the Petitioner's satisfactory conduct, choosing instead to rely on speculative fears of "propensity to commit crime" that were unsupported by any institutional record.
The Court observed that the minutes recorded by the Sentence Review Board (SRB) fail to meet the required legal standards. Instead of conducting a rigorous analysis, the SRB simply recited the nature of the Petitioner’s original offence and immediately leaped to the conclusion that his release would harm the "public interest." The Court pointed out a absence of a "bridge" between the crime committed decades ago and the Petitioner’s current status. There was no meaningful discussion regarding his custodial record, no evaluation of rehabilitative indicators, and a total failure to engage with the positive recommendations contained in the official commutation rolls.
“Considering the material placed before the Court, the Petitioner satisfies the eligibility threshold for consideration under the applicable framework, and there is no adverse material of conduct or antecedents which would justify continued incarceration on the ground of future risk. The SRB’s refusal is therefore unsustainable as an arbitrary exercise of discretion, resting on conjecture and the gravity of the offence alone, contrary to the policy and the Rules”, the Court said.
Accordingly, the Court allowed the writ petition, set aside the minutes of the SRB Meeting and released the Petitioner.
Cause Title: Asif@ Naeem v. State (Govt. of NCT Delhi) [Neutral Citation: 2026:DHC:1399]
Appearances:
Petitioner: Advocate Sarthak Maggon
Respondents: Central Government Standing Counsel Amit Tiwari, Advocate Ayushi Srivastava, Advocate Ayush Tanwar, Advocate Kushagra Malik, Advocate Arpan Narwal, Advocate Kamakshi Sehgal.