Allahabad High Court
Aditya Narian Rai vs State Of U.P. And 3 Others on 29 May, 2017
Bench: Ramesh Sinha, Harsh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved On 03.04.2017
Delivered On 29.05.2017
Court No. - 36
Case :- CRIMINAL MISC. WRIT PETITION No. - 407 of 2017
Petitioner :- Aditya Narian Rai
Respondent :- State Of U.P. And 3 Others
Counsel for Petitioner :- Prakash Narayan Tirpathi,Kamal Krishna
Counsel for Respondent :- G.A.
Hon'ble Ramesh Sinha,J.
Hon'ble Harsh Kumar,J.
(Delivered by Hon'ble Ramesh Sinha,J.)
1. This petition has been filed by the petitioner with a prayer to quash the impugned order dated 15.12.2016 passed by the respondent no. 2 Principal Secretary (Home), U.P., Lucknow by which the petitioner's representation to discharge him from the conditions of licence under the U.P. Prisoners Release on Probation Act, 1938 as it was granted to the petitioner by the previous order dated 18.11.1985 passed by the State Government has been rejected.
2. The brief facts of the case are that the petitioner was facing trial in S.T. No. 161 of 1974 for offence under Section 302/34 I.P.C. and he was sentenced to life imprisonment by the learned District & Sessions Judge, Ghazipur vide judgement and order dated 13.3.1975. Aggrieved by the said order, the petitioner preferred a criminal appeal before this Court which was dismissed on 18.12.1978 and sentence awarded by the trial court was confirmed. The petitioner is stated to have served out more than 12 years of sentence with remission earned by him. While the petitioner was serving life sentence his Form-A was sent for its consideration to the State Government under the U.P. Prisoner Release on Probation Act, 1938 (hereinafter referred as the Probation Act) and Rules framed in the year, 1939, from the Central Jail, Varanasi. The conduct of the petitioner was found to be satisfactory and his release under the Probation Act was recommended by the Jail Authorities as well as District Magistrate and Probation Officer, Ghazipur. The premature release of the petitioner under the Probation Act was not considered by the respondents, hence, he preferred a Writ Petition No. 2792 of 1983 before the Apex Court which was finally disposed of by its judgment and order dated 11.7.1984. By virtue of the order of the Apex Court, the State Government failed to comply the order / direction given by the Apex Court within the time allowed by the Court, the petitioner was released on bail to the satisfaction of District and Sessions Judge, Ghazipur on 17.01.1985. In pursuance of the judgement and order of the Apex Court, the matter for premature release of the petitioner was considered by the State Government and the petitioner was found to be eligible, accordingly, he was released on licence by the State Government vide its order dated 18.11.1985 under the Probation Act, 1938. In view of the order dated 18.11.1985 passed by State Government, the petitioner was released on licence by the State Government in view of judgement and order dated 11th July, 1984 passed by the Apex Court and as such he was not required to surrender in jail.
3. A bail cancellation application was moved by D.G.C (Criminal), Ghazipur being Bail Cancellation Application No. 1239 of 1995 in the Court of District & Sessions Judge, Ghazipur stating that the petitioner be re-arrested and non-bailable warrant be issued against him to serve out the rest of the sentence. The District & Session Judge on 6.6.1996 issued non-bailable-warrant against the petitioner. Aggrieved by the same petitioner preferred a Writ Petition No. 2107 of 1996 before this Court against the order dated 6.6.1996 and he also moved an application on 3.8.1996 in the Court of Sessions Judge to recall the order dated 6.6.1996 and cancel the same. Learned Sessions Judge, Ghazipur by the impugned order dated 7.8.1996 rejecting the said application.
4. Aggrieved by the order dated 6.6.1996 and 7.8.1996, the petitioner preferred a Crl. Misc. Writ Petition No. 2924 of 1996 before this Court and this Court vide order dated 20.8.1996 staying the operation of the order dated 6.6.1996 passed by District & Sessions Judge, Ghazipur. The said writ petition was finally disposed of by this Court vide order dated 26.3.2003 by which petitioner was directed to make a fresh representation to the State Government and the State Government was directed to decide the same expeditiously within a reasonable time. In pursuance of the order of this Court dated 26.3.2003, the petitioner made a representation dated 16.6.2003 to the Home Secretary of the State through registered post. In the meanwhile, complainant moved an application before the District & Sessions Judge, Ghazipur on 21.4.2003 praying therein that the petitioner may be taken into custody for serving out the sentence and after receipt of the notice issued by the learned Session Judge upon the said application, the petitioner appeared before court and he filed his objection through counsel on 27.6.2003. The District & Session Judge, Ghazipur issued non-bailable-warrant against the petitioner on 7.2.2004. Aggrieved by the order dated 7.2.2004 passed by District & Sessions Judge, Ghazipur, the petitioner preferred a Writ Petition No. 1827 of 2004 before this Court which was finally disposed of vide order dated 17.3.2004 with an observation that unless the objection filed by the petitioner is not decided by the Court in accordance with law, no coercive process be adopted against him. On 26.10.2004, the Deputy Secretary of the State Government informed to D.G.C. (Criminal), Ghazipur that the representation dated 16.6.2003 made by the petitioner for his release in pursuance of the order dated 26.3.2003 is still pending. On 10.11.2004, the learned IInd Additional District & Sessions Judge, Ghazipur rejected the objection of the petitioner and issued non-bailable-warrant against him and aggrieved by the order of learned IInd Additional District & Sessions Judge, Ghazipur, petitioner preferred a Crl. Misc. Writ Petition No. 9439 of 2004 before this Court on 23.11.2004 in which an interim order was passed staying his arrest. During the pendency of the said writ petition, it appears that the AGA was directed to call for instructions from the State Government and action taken by the State Government in pursuance to the order dated 26.3.2003 passed by this Court in Crl. Misc. Writ Petition No. 2924 of 1996. In compliance of the order dated 26.3.2003 passed by this court, the respondent no. 2 has rejected the case for release of the petitioner on licence under the Probation Act vide impugned order dated 15.12.2016, Hence, the present petition before this Court challenging the impugned order dated 15.12.2016 passed by respondent no. 2 Principal Secretary Home, U.P., Lucknow.
5. Pleadings between the parties are exchanged.
6. Heard Sri P.N. Tripathi, learned counsel for the petitioner and Sri Ashish Pandey, learned AGA for the State and perused the material brought on record.
7. It has been contended by the learned counsel for the petitioner that the petitioner has already been served out more than 12 years of sentence with remission earned by him on the date when his case was considered for premature release after the judgement of the Apex Court in Crl. Misc. Writ Petition No. 2792 of 1983 which was disposed of vide order dated 11.7.1984 by the Apex Court. He further submitted that the case of the petitioner is not hit to Section 433-A Cr.P.C. He argued that section 433-A Cr.P.C. was inserted in Cr.P.C. on 18.12.1978. Moreover, it was held by the Apex Court in the case of Maru Ram Vs. Union of India (AIR 1980) S.C. Page 2147 that effect is prospective. He next submitted that by virtue of the order of the Apex Court, since the State Government failed to comply the order / direction issued by the Apex Court within the time allowed by the Court, the petitioner was released on bail to the satisfaction of District & Sessions Judge concerned on 17.1.1985. Moreover, in pursuance of the judgement and order of the Apex Court, the matter of premature release of the petitioner was considered by the State Government and the petitioner was found to be eligible accordingly, he was released on licence by the State Government vide its order dated 18.11.1985 and his Form-A was allowed. He further submitted that in view of order dated 18.11.1985 passed by the State Government, the petitioner was released on licence by the State Government in view of judgement and order dated 11.7.1984 passed by Apex Court as such he was not required to surrender in jail. He subsequently, argued that once Form-A of any convict is released and Form-D that is licence issued in favour of the petitioner by the State Government, unless the convict defiled the conditions laid down in the licence it cannot be revoked by the State Government. He submitted that in the instant case, the conditions laid down in the licence of the State Government dated 18th November, 1985 was not defied by the petitioner he is entitled to continue to lead peaceful life outside the jail in veiw of order dated 18th November, 1985. He has drawn drawn the attention of the Court towards the order dated 18.11.1985 of the State Government wherein nine conditions have been laid down which the petitioner has to follow the conditions under the guardianship of his father as he has not violated any such condition and period of licence expired on 13th March, 1996 then he has informed the licence holder that he has discharged from all the conditions of the licence and further return the same to the Jail Superintendent. He argued that the impugned order which has been passed by the respondent no. 2 considering the representation of the petitioner in pursuance of the order passed by this Court on 26.3.2003 in Crl. Misc. Writ Petition No. 2724 of 1996 by which his prayer for release has been rejected is contrary to the order dated 18.11.1985 passed by the State Government. He argued that the petitioner is leading peaceful life since last 30 years and he has not committed any offence though he is out of jail since 17th January, 1985. He submitted that at any point of time, the petitioner's Form-A was rejected by the State Government and moreover, the same was allowed, hence, the impugned order stating that the petitioner has already been released on 12.1.1985 by the District & Sessions Judge, Ghazipur, hence, his case is not covered by the Government Order dated 18.11.1985 as he has to surrender before the Court for his case to be considered is wholly arbitrary, illegal and liable to be quashed.
8. Per contra learned AGA on the other hand has submitted that the impugned order passed by the respondent no. 2 dated 15.12.2016 is absolutely legal and just in the eyes of law as the petitioner unless and until surrender before the court concerned for consideration of his premature release in view of Section 432(5) Cr.P.C. and his case cannot be considered by the State Government. He submitted that as the petitioner was already released on 12.1.1985 by the District & Sessions Judge, Ghazipur on bail, hence, he cannot take the benefit of the Government order dated 18.11.1985. The petitioner has to be in custody for his case being considered for premature release.
9. Considered the rival submissions of learned counsel for the parties and perused the impugned order and material brought on record.
10. It transpires from the record that the petitioner was convicted for life imprisonment in S.T. No. 161 of 1974 for offence under Section 302/34 I.P.C. by the District & Sessions Judge, Ghazipur vide order dated 13.3.1975 and sentenced for imprisonment of life. Aggrieved by the said order of the trial court, petitioner has preferred criminal appeal before this Court which was dismissed on 18.12.1978 and the conviction and sentence awarded by the trial court was confirmed by this Court. The petitioner was languishing in jail for more than 12 years and he had made an application for his premature released while he was serving sentence in Central Jail Naini to the respondent no. 1 but no action was taken by the State Government on his application for premature release. The petitioner preferred a Writ Petition No. 2792 of 1983 before the Apex Court which was finally disposed on 11.7.1984 and in pursuance of the order of the Apex Court, State Government has failed to comply the direction issued by the Apex Court within time allowed by it. The petitioner was released on bail to the satisfaction of District & Sessions Judge, Ghazipur on 17.1.1985. Moreover, it further appears that in pursuance of the judgement and order of the Apex Court, the matter of premature release of the petitioner was considered by the State Government and the petitioner was found to be entitled for the same relief accordingly, Form-A was issued by the State Government on 18.11.1985 under the Probation Act, 1938 on certain conditions on licence which lays down 9 conditions which was followed by the petitioner. It transpires from the record that the petitioner had not defied any of the nine conditions of the licence which was valid from 18.11.1985 to 13.3.1996.
11. From perusal of the order dated 18.11.1985 passed by the State Government imposing conditions which the petitioner had to follow under the guardianship of his father shows that if the petitioner had violated any of the condition during the said period it would have been revoked by the competent authority and further if the period of licence expired the petitioner was free from following the conditions which was to be informed by his guardian to him and to the concerned Superintendent Jail. In the meanwhile some applications were moved by the State Government as well as the complainant that the petitioner be taken into custody to serve out the sentence awarded by the trial court and orders were passed by the Court of Sessions Judge at regular intervals which was challenged by him in various writ petitions referred above before this Court and interim orders were also passed in his favour and his representation was directed to be decided by the respondent nos. 1 and 2 in pursuance of the order of this Court dated 26.3.2003 passed in Crl. Misc. Writ Petition No. 2924 of 2016 and State Government by the impugned order dated 15.12.2016 has rejected the representation of the petitioner on the ground that his case could not be considered by the State Government in view of the order dated 18.11.1985 as the petitioner has already been released on bail on 12.1.1985 as mentioned in the order but according to petitioner, he was released on 17.1.1985, hence, he cannot be given benefit of the order of the State Government dated 18.11.1985 in view of Section 432(5) Cr.P.C. As it is apparent from the record that the petitioner was released on 17.1.1985 in pursuance of the order dated 11.7.1984 of the Apex Court passed in Writ Petition No. 2792 of 1983 and further on 18.11.1985 the State Government released the petitioner on licence and the petitioner did not violated any conditions of the licence from 18.11.1985 to 13.3.1996 for which period of licence was granted and after expiry of the period of licence the petitioner was free from all the conditions of the licence and till date he is leading peaceful life for the last 30 years and there is no adverse report against him regarding his involvement in any criminal activities and disturbance of public peace. The contention of the petitioner that the case is not barred by Section 433(A) also appears to have substance as the said section has been inserted in Cr.P.C. On 18.12.1978 and the same is to be prospective in view of judgement of Apex Court in the case of Maru Ram Vs. Union of India (supra)
12. Hence, the impugned order which has been passed by respondent no. 2 Principal Secretary (Home), U.P., Lucknow rejecting his plea of release on the ground that his case cannot be considered in view of Government Order dated 18.11.1985 and he has to be first surrender as he has already been released on 17.1.1985 (mentioned in the order impugned as 12.1.1985) does not sound to reason, hence, the impugned order is hereby set aside.
13. In view of the foregoing discussions, the writ petition stands allowed.
(Harsh Kumar, J.) (Ramesh Sinha, J.)
Order Date :- 29.5.2017
Manoj
