Allahabad High Court
Chandrasi And Another vs State Of U.P. And 2 Others on 16 April, 2018
Equivalent citations: AIRONLINE 2018 ALL 187
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 1 Case :- CRIMINAL MISC. WRIT PETITION No. - 6041 of 2018 Petitioner :- Chandrasi And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Charlie Prakash,Kamal Krishna Roy Counsel for Respondent :- G.A. Hon'ble Ramesh Sinha,J.
Hon'ble Dinesh Kumar Singh-I,J.
(Delivered by Dinesh Kumar Singh-I, J)
1. Heard Sri Kamal Krishna Roy, learned counsel for the petitioner, Sri N.K. Verma, learned A.G.A. Appearing for the State.
2. The present writ petition has been filed seeking quashing of order dated 01/06/2017 passed by the State Government rejecting the application of the petitioners for their premature release and for issuing direction to respondent no. 1 to consider the application of the petitioners for premature release as per the provisions contained in Cr.P.C. and the Prisoners Release on Probation Act on the basis of their longest stay and good conduct. Further, a direction is prayed to be issued to the respondent No. 1 to frame policy for premature release of the prisoners undergoing sentence in jails of the State of Uttar Pradesh.
3. It is pleaded by the petitioners that on 18/10/1977 the petitioners had been convicted in ST No. 372 of 1977 under sections 147, 148, 307/149 and 302/149 IPC vide judgment dated 30/01/1980 and were sentenced with life imprisonment, against which an Appeal No. 271 of 1980 was preferred before High Court, wherein the sentence awarded was upheld. Consequently both the convicted prisoner/petitioners had undergone an interrupted imprisonment of 20 years 11 months and 2 days and uninterrupted imprisonment of 27 years 8 months and 25 days till 04/09/2016. The jail authorities had prepared the report in respect of the petitioners for the premature release in terms of the provisions contained in section 432 Cr. P.C. whereafter on 05/08/2016 the Senior Superintendent of Police, Central Jail, Naini, Allahabad had sent a letter to the Fourth Additional District and Sessions Judge, Allahabad requesting the Court to send its recommendation in respect of premature release of the petitioners to be sent to the Government which was communicated by the Court on 20/08/2016 to the effect that it had no objection to the release of the petitioners on the basis of their age and the period of sentence undergone. Even the District Probation Board and the Committee of the Inspector General, Prisons recommended the release of the petitioners under section 432 (2) of Cr.P.C. in the light of G.O. dated 06/09/2004 and the judgment of the Hon'ble Supreme Court in Lakshman Naskar vs Union of India and Others. Finally the matter was transmitted to the State Government where it was discussed and a letter was issued by the Joint Secretary, Government of U.P. to the Inspector General of Police of Prisons mentioning therein that the premature release of the petitioner was not proper because co-accused of the petitioners were still in jail. Thus, the applications of the petitioners for premature release were rejected vide impugned order dated 01/06/2017.
4. The submission of learned counsel for the petitioners is that there is no provision under section 432 (1) Cr. P.C. for rejection of an application for premature release on the ground of the co-accused being in jail. The impugned order has been passed mechanically without application of mind by the competent authority in arbitrary manner. Similarly situated convicted prisoners namely, Rajuya had been released prematurely vide G.O. dated 17/08/2016 from the Central Jail Naini despite the fact that his co-accused were lying in prison. Similarly two other convicted prisoners namely, Faujdar and Jagdish were also released by the State Government vide order dated 04/04/2011 and 24/11/2011 on the ground of long detention in prison, therefore the impugned order was discriminatory. Further, reliance is placed upon the provisions of Chapter VIII of U.P. Jail Manual in particular on sections 195 , 196 , 197 and 198 of the said Manual besides section 432 and 433 of Cr. P.C.. Further, reliance is placed upon Probation Act, 1938, section 75 of the Government of India Act. Further it is mentioned that the major roadblock in the matters of premature release of the prisoners is attributable to non-framing of a clear policy in this regard despite several directions to the State Government by the High Court. It was apprised that the Human Rights Commission had framed model policy draft which was circulated to all the States and union Territories with the direction to frame a specific guideline, but no State except the State of Haryana and Maharashtra framed policy. Further, it is mentioned that the High Court in Public Interest Litigation No. 17224 of 2016, Luvkush Vs State Of U.P. and 3 Others had passed order to the following effect "however, we are not inclined to treat this as an isolated case, since we are of the view that it is necessary for the State to apprise the Court on whether the State Government has any policy in regard to the premature release of convicts who were languishing in jail for long years and whose age or physical conditions make it inhuman to allow them to remain incarcerated in jail. The State must formulate a policy, if there is no policy already in existence and there must be a periodical monitoring of such cases by the setting up of a mechanism to review the cases of such persons." Similarly in Criminal Appeal No. 209 of 1993 Mewa Lal vs State of U.P. also the High Court issued a direction to the State Government to frame policy vide order dated 05/02/2014 in this matter. Thereafter in PIL No. 2357 of 1997, Bachchey Lal vs State of U.P. displeasure was shown by the High Court regarding non-implementation of order and non-framing of the policy regarding premature release of the convicts, pursuant to which an in camera discussion had taken place with IG, Prisons and the officers of the State Legal Services Authority on 27/11/2013, whereafter a letter dated 05/12/2013 was issued by the Inspector General, Prisons to the Secretary, State of U.P., Prison Administration Dept, where-with a policy document was attached regarding the premature release of the petitioners which contained 4 conditions for such release. It is further mentioned that G.O. dated 06/09/2004 also contains the procedure for such release which provides that the convict after having undergone 14 years of sentence becomes eligible for such benefit and has to fill up Form-A which is forwarded to the District Magistrate, Superintendent of Police and District Probation Officer and the final decision is taken by the Governor. The letter dated 05/12/2013 has also referred in writ No. 396 of 2006, Abdul Rahim vs State of U.P., in which High Court (Lucknow Bench) had issued directions for premature release of the prisoners. The said letter also contained the G.O. dated 02/11/2012 by which a direction was issued to make a Committee in each District under the chairmanship of District Magistrate comprising SSP/SP, District Probation Officer and Superintendent Jail. It is further mentioned that the National Human Rights Commission while dealing with Case No. 233/10/1997 - 98 (FC) had circulated a framed Procedure/Guidelines on premature release of prisoners which were drafted after considering a large number of representations received from different State Governments which were applying different standards and tried to ensure to bring uniformity.
5. From the side of the State Government counter affidavit has been filed stating therein that the nominal role for premature release of petitioner No. 2 and petitioner No. 1 were rejected vide Government Order No. 382 2017/1993/22-22001-17 (37)/2003 and vide Government Order No. 381 2017/1994/22-22016-17) (38)/2003 both dated 01.06.2017 and that the petitioners had failed to raise any good ground for interference by this Court, however the period of detention and the recommendations for their premature release made by the Court concerned, District Probation Board and the Allahabad Committee have not been denied.
6. It would be pertinent to refer to the relevant provisions under which premature release of the convicted prisoners is required to be considered.
"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."
7. The Hon'ble Supreme Court has made interpretation of the aforesaid provisions in Union of India vs V. Sriharan alias Murugan and others, (2016) 7 SCC 1 :
"112. The first part of the said question pertains to the power of appropriate Government to grant remission after the parallel power is exercised under Article 72 and 161 of the Constitution by the President and the Governor of the State respectively. In this context, a reference to Article 72 and 161 of the Constitution on the one hand and section 432 and 433 of the Criminal Procedure Code on the other needs to be noted.
112.1. When we refer to Article 72, necessarily a reference will have to be made to Articles 53 and 74 as well. Under Article 53 of the Constitution the Executive Power of Union vests in the President and such power should be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Under Article 74, the exercise of functions of the President should always be based on the aid and advice of the Council of Ministers headed by the Prime Minister. Under the proviso to the said Article, the President can at best seek for reconsideration of any such advice and should act based on such reconsidered advice. Article 74 (2) in fact, has insulated any such advice being enquired into by any Court. Identical provisions are contained in Articles 154, 161 and 163 of the Constitution relating to Governor of the State. Reading the above provisions, it is clear that the President of the Union and the Governor of the State while functioning as executive head of the respective bodies, only have to act based on the advice of the council of Ministers of the Union or the State.
112.2. While so, when we look into the statutory prescription contained in sections 432 and 433 of the Criminal Procedure Code, though the exercise of the power under both the provisions vests with the appropriate Government either State or the Centre, it can only be exercised by the executive authorities headed by the President or the Governor as the case may be. In the first blush though it may appear that exercise of such power under sections 432 and 433 Cr. P.C. is nothing but the one exercis- able by the same authority as the Executive Head, it must be noted that the real position is different.
112.3. For instance, when we refer to Section 432 Cr. P.C., the power is restricted to either suspend the execution of sentence or remit the whole or any part of the punishment. Further, when under sub-section (2) of Section 432, it is stipulated that exercise of power of suspension or remission may require the opinion of the Presiding Judge of the court before or by which the conviction was held or confirmed. There is also provision for imposing conditions while deciding to suspend or remit any sentence or punishment. There are other stipulations contained in Section 432. Likewise, when we refer to Section 433 Cr. P.C. it is provided therein that the appropriate Government may without consent of the persons sentenced commute any of the sentences to any other sentence which ranges from death sentence to fine.
112. 4. One significant feature in the constitutional power which is apparent is that the President is empowered under Article 72 of the Constitution to grant pardons, reprieves, respites or remission, suspend or commute the sentence. Similar such power is also vested with the Governor of the State. Whereas under sections 432 and 433 of the Criminal Procedure Code the power is restricted to suspension, remission and commutation. It can also be noted that there is no specific provision prohibiting the execution of the power under Section 432 and 433 of the Criminal Procedure Code when once similar such power was exercised by the constitutional authorities under Articles 72 and 161 of the Constitution. There is also no such implied prohibition to that effect.
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114. Therefore, it must be held that there is every scope and ambit for the appropriate Government to consider and grant remission under sections 432 and 433 of the Criminal Procedure Code even if such consideration was earlier made and exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution by this court is concerned, we have already held that the power under sections 432 and 433 is to be exercised by the appropriate Government statutorily, it is not for this court to exercise the said power and it is always left to be decided by the appropriate Government, even if someone approaches this court under article 32 of the Constitution. We answer the said question on the above terms."
8. Therefore, it is apparent from the above provisions that the State Government is well within its power to commute the sentence of the petitioners who have been convicted under the aforementioned sections of Cr. P.C. It is apparent that so far no distinct policy has been laid down by the State Government as to in which kind of Cases the remission would be granted in sentence awarded to the convicts, although a number of directions have been issued through various judgements of the High Court. Some guidelines also appear to have been issued by the National Human Rights Commission which may be followed by the State Government till they lay down clear-cut criteria or guidelines for releasing such convicts who are lying in jails for a very long time. It is also very clear from the above interpretation that the High Court can at the most make a direction for consideration by the Government for release of a convict prematurely and not direct the release of any such convict.
9. It would be pertinent to mention here that it is not the case that in the past the State Government of U.P. has not been releasing the convicts who were lying in jail since long. Several Cases have been quoted by the applicants in the affidavit in which the convicts have been released prematurely which discloses that the non-release of the petitioners - convicts in the present case may point to the arbitrariness on the part of the Government, in case the order is not found supported with good sound reasoning.
10. Now we would like to analyse as to whether the impugned order has been passed in accordance with law and the well laid down principles.
11. The communication No. 381/2017/1994/22-2-1996-17 (38) /2003 dated 1 June 2017 made by the joint Secretary to the Government of U.P. to the IG, Prisons contains that the said communication was made in response to the letter of IG, Prisons dated 13/10/2016 whereby the case of convicted accused Chandrasi (one of the petitioners) was forwarded for being considered for premature release. The said letter contains that the case of the convict was that in a dispute relating to running of an illegal shop of liquor near the village, the above convict along with 9 co-convicts had murdered one person and injured another on 18/10/1997 in the afternoon at about 12.00 hours by causing injuries with spear and farsa as a result of which vide judgment and order dated 30/01/1980 passed by the fourth Additional Sessions Judge, Allahabad in ST No. 372 of 1977 he was awarded life imprisonment under sections 147, 148, 307/149 and 302/149 IPC, against which an Appeal No. 271/1980 was instituted before High Court in which by order dated 14/03/1996 the said punishment was upheld. The convict had been in prison for 20 years 11 months and 2 days uninterrupted imprisonment till 4/9/2016 while till that date he had remained in uninterrupted incarceration for a period of 27 years 8 months and 25 days. His conduct was satisfactory. The Committee headed by District Magistrate had recommended for his premature release, but after consideration of the matter at appropriate level it was held that the co-convicts were arrested and detained in prison, therefore there was no justification for premature release of the accused applicant. Thus, it was mentioned that he was directed to communicate that the Government had refused premature release of the said convict under nominal role of 14 years. Similarly the other communication No. 382/2017/1993/22 - 2 - 2016 - 17 (37)/2003 was made with regard to the co-convict petitioner Tillu being refused premature release for the same reasons.
12. The said communications/orders have been assailed by the learned counsel for the petitioners on the ground that there was no such provision/guideline laid down that in case the co-convicts are lying in jail, the convicts who have moved for premature release would be refused such release on that sole ground. The learned AGA on the other hand buttressed the impugned order of the Government saying that after consideration, their premature release was not found justifiable and that there is no infirmity in the impugned orders.
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.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date :- 16.4.2018 AU/h