Allahabad High Court
Zubair vs State Of U.P. Thru. Secy. Home Lko. & Ors. on 4 October, 2021
Bench: Ramesh Sinha, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW BENCH, LUCKNOW
Court No. - 9 A.F.R.
Case :- MISC. BENCH No. - 15164 of 2021
Petitioner :- Zubair
Respondents :- 1. The State of Uttar Pradesh through Secretary, Home, Civil Secretariat, Lucknow.
2. Inspector General, Jail Administration and Reform Services, Uttar Pradesh.
3. Jail Superintendent, District Jail, Haridwar.
Counsel for Petitioner :- Sri Purnendu Chakravarty & Sri Anuuj Taandon
Counsel for Respondent :- Sri S.P. Singh, Additional Government Advocate
Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Saroj Yadav,J.
(Oral) (Per: Saroj Yadav, J.)
1. Heard Shri Purnendu Chakravarty, learned counsel for the petitioner and Shri S.P. Singh, learned A.G.A. for the State-respondents and perused the material available on record.
2. The present writ petition has been filed by the petitioner- Zubair with the prayer to issue a writ, order or direction in the nature of certiorari to quash the order dated 30.06.2021 passed by the Joint Secretary, Government of Uttar Pradesh whereby the 'Form A' of the petitioner for grant of remission of his consequent release has been rejected, with a further prayer to release the petitioner forthwith in the light of recommendations made by the District Magistrate, Muzaffar Nagar, Senior Superintendent of Police, Muzaffar Nagar and Senior Superintendent, District Jail Haridwar on remission and pre-mature release.
3. Learned counsel for the petitioner submitted that 'Form A' of the petitioner, who is aged about 72 years, for grant of remission of his consequent release has been rejected by the State Government vide its order dated 30.06.2021 without application of mind. He further submitted that the petitioner has already undergone sentence for more than 23 years with remission and more than 17 years without remission as per the calculation shown in the report sent by the Jail Authorities, Haridwar. He further submitted that plea of remission taken by the petitioner was rejected on the unreasonable grounds of nature and gravity of the offence committed, whereas the similarly situated co-convicts of the case were released by granting remission on the grounds of old age and good conduct. He further submitted that on the similar ground, petitioner had earlier filed a writ petition i.e. Misc. Bench No. 18216 of 2019 before this Court wherein this Court vide its order dated 21.01.2021 quashed the orders dated 13.01.2016 and 05.04.2018 passed by the State Government and disposed of the writ petition with a direction to the State Government to reconsider the case of the petitioner under the provisions of Section 2 of the Uttar Pradesh Prisoner's Release on Probation Act, 1938. Previous Form 'A' of the petitioner was rejected by the order dated 13.01.2016 passed by the Deputy Secretary, Government of Uttar Pradesh vide Government Order No. 181/2015/887/22-2-2015-17(204)/2012, wherein it had been mentioned that the plea was rejected on the grounds that the petitioner had jumped furlough when he was given home leave and that he remained absent for a period of 6 years 08 months and 27 days. However, the Deputy Secretary, Government of Uttar Pradesh, failed to take into consideration the fact that for this act of misconduct, the petitioner has already received the punishment of forfeiture of his total earned remission of 1087 days and with respect to such punishment, a certificate was issued on 17.02.2019, by the Jailer, District Jail, Haridwar. He further submitted that opposite party no. 1 failed to consider the recommendations made in the reports submitted by Senior Superintendent, District Jail, Haridwar, Senior Superintendent of Police, Muzaffar Nagar and District Magistrate, Muzaffar Nagar. He further submitted that respondent Authority committed a grave error in not appreciating that in terms of Rule 3 of the U.P. Prisoner's Release on Probation Rules, 1938, a prisoner may be eligible for consideration for release by the State Government if he has served imprisonment for a total period of fourteen years. Since the petitioner has already undergone a sentence of quite a long period, he deserves to be released forthwith.
4. On the contrary, learned A.G.A. appearing on behalf of the State has opposed the contention made by the learned counsel for the petitioner and stated that the Probation Board in its meeting dated 19.05.2021 had considered the case of the petitioner and given a finding that the petitioner was involved in murder of three persons and when he was detained in "Sampurnand Shivir Sitarganj Jail", he jumped from his home leave and absconded for a period of 6 years, 8 months and 27 days. Thereafter he was arrested on 29.01.2008 by the police and sent to jail on 31.01.2008. As the petitioner was involved in heinous crime and also jumped the furlough, therefore, 'Form A' of the petitioner has been rejected, as such, the present writ petition is liable to be dismissed. Learned A.G.A. also disputed the factum of age of the petitioner and submitted that petitioner is of 62 years instead of 72 years as mentioned by the petitioner.
5. Considered the rival submissions and perused the material available on recored.
In this regard, Rule 4 of the U.P. Prisoners' Release on Probation Rules, 1938 provides as under:
"4. Eligibility for release. - Any prisoner other than a prisoner specified in Rule 3, may be eligible for consideration by the State Government for release on licence,-
(i) if he is a prisoner to whom Section 433-A of the Code of Criminal Procedure, 1973 applies and has served imprisonment for a total period of fourteen years;
(ii) if he is a prisoner sentenced to imprisonment for life to whom Section 433-A of the Code of Criminal Procedure, 1973 does not apply and has served imprisonment for a total period of fourteen years with remissions; and
(iii) in any other case if he has served one-third without remissions of the period of imprisonment to which he was sentenced."
The provisions under which premature release of the convicted prisoners is to be considered are as under:
"432.Power to suspend or remit sentences.-
(1) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.
(2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which the conviction was had or confirmed, to state his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists.
(3) If any condition on which a sentence has been suspended or remitted is, in the opinion of the appropriate Government, not fulfilled, the appropriate Government may cancel the suspension or remission, and thereupon the person in whose favor the sentence has been suspended or remitted may, if at large, be arrested by any police officer, without warrant and remanded to undergo the unexpired portion of the sentence.
(4) The condition on which a sentence is suspended or remitted under this section may be one to be fulfilled by the person in whose favour the sentence is suspended or remitted, or one independent of his will.
(5) The appropriate Government may, by general rules or special orders, give directions as to the suspension of sentences and the conditions on which petitions should be presented and dealt with:
Provided that in the case of any sentence (other than a sentence of fine) passed on a male person above the age of eighteen years, no such petition by the person sentenced or by any other person on his behalf shall be entertained, unless the person sentenced is in jail, and-
(a) where such petition is made by the person sentenced, it is presented through the officer in charge of the jail; or
(b) where such petition is made by any other person, it contains a declaration that the person sentenced is in jail.
(6) The provisions of the above sub-sections shall also apply to any order passed by a Criminal Court under any section of this Code or of any other law which restricts the liberty of any person or imposes any liability upon him or his property.
(7) In this section and in section 433, the expression "appropriate Government" means,-
(a) in cases where the sentence is for an offence against, or the order referred to in sub-section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;
(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.
433. Power to commute sentence.-
The appropriate Government may, without the consent of the person sentenced, commute-
(a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860);
(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;
(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;
(d) a sentence of simple imprisonment, for fine.
433 A. Restriction on powers of remission or commutation in certain cases.-Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is imposed on conviction of the person for an offence for which death is one of the punishments provided by laws, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life such person shall not be released from prison unless he had served at least fourteen years of imprisonment."
6. Perusal of the record shows that on the previous occasion also, this Court in a Writ Petition i.e. Misc. Bench No. 18216 of 2019 (Zubair Versus State of U.P. & Others) directed the respondent no. 1 to reconsider the case of the petitioner under the provisions of Section 2 of the United Provinces Prisoners Release on Probation Act, 1938 after quashing the orders dated 13.01.2016 and 05.04.2018, whereby 'Form A' of the petitioner was rejected and communicated to the petitioner. The respondent no. 1 again rejected the 'Form A' of the petitioner vide order dated 30.06.2021, which is annexed as Annexure No. 2 to the writ petition. Learned counsel for the petitioner submitted that similarly situated co-convicts have been released accepting their 'Form A'. One co-convict was released on the ground of age of 65 years but the 'Form A' of the petitioner has been rejected arbitrarily without any reasonable basis. The Senior Superintendent, District Jail, Haridwar, Senior Superintendent of Police, Muzzafar Nagar and District Magistrate, Muzzafar Nagar have recommended the release of the petitioner. Their report shows that conduct of the petitioner remained good during his imprisonment in jail and nothing adverse has been recorded in their reports. The petitioner has undergone more than 23 years sentence with remission and more than 17 years of sentence without remission as per the calculation shown in the report by the Jail Authorities. In fact, the age of the petitioner is 72 years and he is very old and weak, so the order impugned rejecting the Form A of the petitioner be set aside and the petitioner be directed to be released forthwith.
7. Learned A.G.A. disputed the age of the petitioner and submitted that his age is 62 years only and the co-convict was released when he was of 65 years. Previously, Jail Authorities reported the age of the petitioner as 72 years but subsequently mentioned the age of the petitioner as 62 years. On his point, this Court on 21.09.2021 had passed the following order:-
"Heard Mr. Purnendu Chakravarty, learned counsel for the petitioner and Mr. S.P. Singh, learned A.G.A. for the State.
Learned counsel for the petitioner submitted the report of the Senior Superintendent of Police, Muzaffar Nagar dated 01.04.2021 wherein the S.S.P. has approved the premature release of the petitioner and in the said report, the age of the victim/petitioner is stated to be 73 years.
On the other hand, learned A.G.A. has disputed the said fact and stated that as per the jail record the age of the victim/petitioner is about 62 years, which has been stated in paragraph No.8 of his counter affidavit.
The learned A.G.A. is directed to file an affidavit verifying the exact age of the victim/petitioner by the next date.
List this case on 04.10.2021.
8. In pursuance of the aforesaid order, no affidavit has been filed by the learned A.G.A. Learned A.G.A submitted that on this discrepancy, enquiry was made and it came out that age of the petitioner had been mentioned as 19 years in his statement recorded under Section 313 Cr.P.C. during trial in the concerned case. When the query was made by this Court that if the petitioner was of 19 years on the date of recording of his statement under Section 313 Cr.P.C., then the petitioner would be minor on the date of incident. Upon it, learned A.G.A. submitted that he is not pressing this argument and he conceded about the age what has been mentioned by the Jail Authorities in the previous papers. In the impugned order no valid reason has been shown for the discrimination with co-convicts. So far as the reason that petitioner jumped the furlough granted to him and absconded for a period of 6 years 8 months and 27 days is concerned, he is continuously in jail after his arrest on 29.01.2008 and he sought/granted no parole thereafter. He has undergone more than 23 years of sentence and similarly situated co-convicts have already been released on the basis of Form A. Hon'ble Apex Court in the case of Beche Lal Versus State of Uttar Pradesh and Another, 2021 SCC Online SC 499 has observed in this regard as under:-
"5. The High Court on 16.04.2018, in Chandrasi v. State of Uttar Pradesh, Criminal Misc. Writ Petition No. 6041 of 2018, after noticing the lack of fairness and consistency in considering applications for premature release observed and directed as follows:
"13. The impugned orders ex facie appear to be lacking reason for rejection of such premature release particularly when there was recommendation made by the Committee headed by the District Magistrate as well as the opinion of the court was also not against the convicts and their conduct was reported to be satisfactory in jail. In these circumstances the impugned orders deserve to be set aside and are accordingly set aside with a direction that the Government shall reconsider their case for premature release in the light of fair and non-discriminatory principles by speaking order within a period of one month from the date a certified copy of this order is produced by the learned counsel for applicants. Needless to say that Government ought to lay down a transparent policy in regard to premature release of convicts who were lying in prison for a long time as has been directed on several occasions by this court in earlier writ petitions."
6. The State government then framed the policy dated 01.08.2018. Curiously, contrary to the direction of the High Court, the State Government, arbitrarily restricted it to premature release of prisoners sentenced to life imprisonment on the event of Republic day each year only. The restricted policy is patently bad for being in derogation of the orders of the High Court. Additionally, it is also discriminatory in nature as there is no nexus to be achieved by providing for premature release only on a specified date, when those eligible to be considered for premature release form a class of persons sentenced to life imprisonment. There is no criteria laid down on basis of which a convict shall be considered for release on the opportune date in contradistinction to another who may be relegated to consideration in normal course. Differentiation amongst this class of convicts on separate indicia based on specified parameters is an entirely different matter. The policy having statutory force under Article 161 of the Constitution will naturally apply to all persons sentenced to life imprisonment. Having been framed subsequent to the U.P. Jail Manual, 1956 and the U.P. Prisoners Release on Probation Rules, 1938 will take precedence over the latter. The fact that any application for premature release submitted before the formulation of the new policy may have been rejected, cannot be bar to fresh consideration without being prejudiced by the earlier rejection. If premature release of a convict can be denied on parity because a similar application of a co-accused had been rejected, conversely if a co-accused has been granted the benefit of premature release, it cannot be denied to another co-accused."
9. The impugned order does not reveal any sound ground of rejection of 'Form A' of the petitioner, particularly when there were recommendations made by the Jail Authority, S.S.P. and D.M. concerned and also the fact that similarly situated co-convicts have already been granted relief and released on the basis of 'Form A'. Previously before this Court in Writ Petition i.e. Misc. Bench No. 18216 of 2019 (Zubair Versus State of Uttar Pradesh through Secretary Home & Others), learned A.G.A. conceded the fact that on the over staying on the home visit parole, the remission period of 1087 days have been forfeited by the jail authority and he also does not raise any dispute in relation to good conduct of the petitioner and the recommendation of Superintendent of Police, Superintendent of Jail and District Magistrate, Muzaffar Nagar for premature release of the petitioner. Keeping in view this fact, this Court passed the following order on 21.01.2021:-
"12. Considering the arguments of the learned counsel for the parties and going through the records, it is evident that the petitioner was aged about 72 years on 08.04.2013 when the recommendation of Senior Superintendent of Police, Muzaffar Nagar was sent for his premature release. It is also undisputed that co-convicts namely, (i) Yasin s/o Alimuddin was released vide Government Order No.5101/22-2-98-18 (98) dated 22.01.1999, (ii) Meera @ Mirhasan s/o Karamat was released vide Government Order No. 631/22-2-2011-17 (132)/2011, dated 27.07.2011 and (iii) Javed @ Zahid s/o Sunda @ Hasan was released vide Government Order No.630/22-2-2011-17 (81)/2011, dated 27.07.2011 (release orders of the co-convicts have been mentioned in para-5 of the supplementary counter affidavit) and Form-A of petitioner was rejected by way of impugned order dated 13.01.2016. As it is also evident from the impugned orders itself that one co-convict was released on the ground that he was aged about 65 years and in the present case, admittedly the petitioner was aged about 72 years on 08.04.2013, as mentioned in the report of Senior Superintendent of Police, Muzaffar Nagar, therefore, the impugned orders dated 13.01.2016 and 05.04.2018 are hereby quashed.
13. The respondent No.1 is directed to reconsider the case of the petitioner under the provisions of Section 2 of the Uttar Pradesh Prisoner's Release on Probation Act, 1938, within a period of two months from the date of production of certified copy of this order in accordance with law.
14. With the aforesaid observations, the writ petition is disposed of."
10. The impugned order/communication dated 30.06.2021 denotes that Form "A" of the petitioner has been rejected giving reasons that the petitioner had jumped furlough when he was released on parole and remained absent for about 6 years 8 months and 27 days and also that the offence was very heinous. The similarly situated co-convicts namely Yasin son of Alimuddin, Meera @ Mirhasan son of Karamat and Javed @ Zahid son of Sunda @ Hasan were released on the basis of Form 'A' submitted by them, so reason given that offence was heinous in relation to Form 'A' of the petitioner shows the discriminatory attitude of the Authorities. As far as the fact of jumping furlough is concerned, it has also been mentioned in the report of jail authorities that the period for which the petitioner remained out of jail, has already been deducted from the total earned remission of 1087 days, and has also been mentioned by the petitioner in paragraph 15 of the writ petition. Hence, it appears that the impugned order/communication has been passed without considering the observations made in the Writ Petition i.e. Misc. Bench No. 18216 of 2019 and without application of mind.
11. Section 2 of the United Provinces Prisoners Release on Probation Act, 1938 lays down as under:-
2.Power of Government to release by licence on conditions imposed by them.- Notwithstanding anything contained in [Section 401] of the Code of Criminal Procedure, 1898 (Act V of 1898), where a person is confined in prison under a sentence of imprisonment and it appears to the State Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner,or such secular institution or such society belonging to the same religion as the prisoner as may be recognized by the State Government for this purpose,provided such other person, institution or society is willing to take charge of him.
Explanations.-The expression "sentence of imprisonment" in this Section shall include imprisonment in default of payment of fine and imprisonment for failure to furnish security under Chapter VIII of the [Code of Criminal Procedure, 1898 (Act V of 1898)].
12. In the light of the above discussions, the impugned order/communication dated 30.06.2021 and other consequential orders rejecting the Form 'A' of the petitioner are hereby set aside and the writ petition stands allowed.
13. Respondent-Authorities are directed to release the petitioner on licence as provided under the provisions of the United Provinces Prisoners Release on Probation Act, 1938 read with U.P. Prisoners' Release on Probation Rules, 1938, forthwith, if not required any other case.
(Saroj Yadav, J.) (Ramesh Sinha, J.)
Order Date :- 4.10.2021
Arun