Shamshul Kanwar @ Shamshul Quamar vs State Of U.P. And 4 Others
2017 Latest Caselaw 639 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 

 
Court No. - 36
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 24251 of 2016
 

 
Petitioner :- Shamshul Kanwar @ Shamshul Quamar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Desh Ratan Chaudhary
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Umesh Chandra Srivastava,J.

(Delivered by Hon'ble Umesh Chandra Srivastava,J.)

The present writ petition has been filed with the prayer to issue order or direction in the nature of -

"(a) Mandamus directing the respondents to release the petitioner forthwith considering his old age, chronic illness and long detention in jail.

(b) Certiorari quashing the order dated 12.11.2012 (the rejection of his premature release on license i.e. Form-A), the order dated 22.04.2016 ( the rejection of his Nominal Roll under section 432 of Cr.P.C.), the order dated 01.01.2014 (the rejection of his mercy petition) passed by respondent no.1 rejecting the matters of premature release of the petitioner.

(c) Any other writ, order or direction which this Hon'ble Court may deemed fit and proper in the facts and circumstances of the case.

(d) To award the cost of this writ petition to the petitioner."

2. Facts giving rise to writ petition in brief are that on 01.02.1989 an incident of grave rioting took place in village Shakhni within the limits of P.S. Jahangirabad, District Bulandshahar in which 11 people lost their life and many others including a police constable injured. Twenty one accused persons including the petitioner were tried for the said incident for the offences punishable under sections 148/302/149/307/149 and 332/149 I.P.C. and section 25 Arms Act. In the said Sessions Trial, 04 accused persons were acquitted and the remaining 17 accused persons including petitioner were connected and out of them while 11 accused persons were awarded with life imprisonment, the remaining 06 accused persons including petitioner were awarded the death penalty by the trial court. The convicted accused persons preferred criminal appeals against the judgement and order of conviction and sentence to this Court. The trial Judge had also made a reference to this court for confirmation of capital sentence awarded to six accused persons. The State had also filed two appeals, one against the order of acquittal of 04 accused persons and the other for the enhancement of life imprisonment of 11 accused persons to the death sentence. In the said criminal appeals while two accused persons namely Vilayat Hussain and Ali were acquitted, the conviction of remaining 15 accused persons, including the petitioner was confirmed, however the capital sentence of 05 accused persons was modified to the life imprisonment, but the capital sentence of the petitioner was upheld. Petitioner had preferred a Criminal Appeal being Criminal Appeal No. 887 of 1994, against the order of this Court in the Apex Court titled as Shamshul Kunwar vs. State of U.P. This appeal was decided on 04.05.1995 by the Apex Court and while the order of conviction was upheld the capital sentence of the petitioner was reduced to imprisonment for life.

3. After having served about 20 years in jail, petitioner applied for his premature release on Form -A under section 2 of the U.P. Prisoners Release On Probation Act, 1938. When his representation for premature release was not decided by the respondents he filed a Criminal Misc. Writ Petition no. 21417 of 2010 for his premature release which was disposed of by this Court vide order dated 19.11.2013 and respondents were directed to decide the petitioner's representation for his premature release under the various provisions of law. However, when despite the aforesaid direction of this Court the premature release was not considered by the respondent, petitioner filed another writ petition (criminal) no. 187 of 2015 before the Apex Court which was decided on 06.11.2015 by the Apex Court and respondents were directed to decide the petitioner's representation for his premature release within a period of three months treating the writ petition filed in the Apex Court as his representation. Copies of order dated 19.11.2013 of this Court passed in criminal misc. writ petition no. 21417 of 2010 and order dated 06.11.2015 of the Hon'ble Apex Court passed in writ petition (Criminal) no. 187 of 2015 are annexed as Annexure nos. 1 and 2 to the writ petition.

4. The petitioner was informed by the respondent no. 4 vide letter dated 22.04.2016, that his nominal role for premature release has been rejected by the Government. The petitioner was also informed by respondent no. 4 by letters dated 29.04.2016 and 22.11.2016 that his mercy petition and premature release on license i.e. Form-A have also been dismissed by the Government. Petitioner was also informed by respondent no. 4 vide letter dated 01.01.2014 that his Infirmity Roll under section 432 of Cr.P.C. has also been dismissed. The copies of letters dated 22.04.2016, 29.04.2016, 22.11.2016 and 01.01.2014 have been annexed as Annexure nos. 4, 5, 6 and 7 to the writ petition.

5. Thereafter, petitioner filed writ petition (criminal) No. 100 of 2016 before the Apex Court and vide order dated 22.07.2016 the Hon'ble Apex Court was pleased to direct the petitioner to avail his remedy before the High Court. Copy of order passed by the Apex Court in writ petition (Criminal)no. 100 of 2016 has been annexed as Annexure No. 8 to the writ petition.

6. Aggrieved by the letters dated 22.04.2016, 29.04.2016, 22.11.2016 and 01.01.2014 of the respondent no. 4 by which the petitioner's representations for Nominal Role, premature release on license an Infirmity Role have been rejected, the present writ petition has been filed.

7. We have heard Shri Desh Ratan Chaudhary, learned counsel for the petitioner, Shri Ashish Pandey, learned AGA for the State and have perused the material brought on record.

8 Learned counsel for the petitioner has submitted that petitioner is in jail since 10.03.1989 and his conduct in jail has always been good and satisfactory. He has been kept in open jail Sitarganj, District Udham Singh Nagar, Uttarakhand and he has earned several remissions of good conduct. He has been granted parole by State Government on three occasions i.e. from 01.01.1998 to 30.01.1998, 10.05.1998 to 25.05.1998 and 24.08.2004 to 25.10.2004 and during the aforesaid periods petitioner remained in the village Sakhani very peacefully.

9. Learned counsel for the petitioner has submitted that though during the period of one such parole, the petitioner was falsely implicated by the first informant in case crime no. 143 of 1998, under section 307 I.P.C., but he has been acquitted in the said case by 10th Additional Sessions Judge, Bulandshahar in Sessions Trial No. 25 of 1999.

10. Learned counsel for the petitioner has further submitted that petitioner has been suffering from various old age ailments and other chronic illness. He is the patient of Hypertensive Heart Disease, coronary heart disease with left ventricular dysfunction along with arthritis and polyarthralgia with exfoliative dermatitis. He has also been operated for cataracts in the year 2010. The Senior Medical Consultant of District Hospital Meerut has submitted report that recovery of petitioner is not possible in District Jail.

11. He has further submitted that daughters of the petitioner are of marriageable ages but due to his non-release from jail, the petitioner is unable to settle their marriage.

12. Learned counsel for the petitioner has further submitted that petitioner's premature release has been rejected on a vague report of local Police Station that there is fraction and tension in the village and the incident in question which resulted in conviction of the petitioner was a heinous offence. The reasons given by the local police and administration in its report are biased and appear to be influenced by other considerations. Petitioner has completed more than 27 years of detention in jail without remission and more than 36 years with remission as is evident from Annexure no. 13. He has further submitted that petitioner family members and other relatives and acquitted accused persons are peacefully living and have lived in village Sakhani and no such other incident has taken place. Since the date of incident two accused persons namely Ballo and Munna were released under the Government policy in pursuance of Government Order dated 25.01.2000, and they remained in the village for about two years and, thereafter, surrendered on 06.04.2002 under the order of the Hon'ble Supreme Court and no untoward incident took place during the period they remained in the village.

13. He has further submitted that due to old age and illness, the petitioner has lost the capacity/potentiality to commit any criminal offence in future. He is bed ridden, crippled and is dependent on others even for his day to day needs. He has also submitted that there is absolutely no material to support the adverse reports submitted by the local police and administration and the rejection of the petitioner's premature release on vague and irrelevant material is vitiated in law and is violative of petitioner's fundamental rights. He has lastly submitted that the alleged offence for which the petitioner has been convicted was not because of alleged criminality of the petitioner but in peculiar circumstances of the case when the first Informant side, who were accused in the murder case of the petitioner's brother, came to the village on the pretext of cremation of a female member of their family in large number along with gunmen and armed police party and after the burial they attacked the men on the side of the petitioner with knives triggering off the riot and the first informant side suffered huge loss only because of the fact that they were outsiders and the entire village stood against them, the only inimical persons were nominated in the F.I.R.

14. Per contra, learned Additional Government Advocate appearing for the respondent has submitted that it is not disputed that petitioner had been convicted and sentenced with capital punishment for having committed the murder of 11 persons and the capital punishment awarded to him has been reduced to life imprisonment by the Apex Court in Criminal Appeal No. 887 of 1994, titled as Shamshul Kunwar vs. State of U.P., and in pursuance of the punishment so awarded petitioner is confined in jail since 10.03.1989, and has thus served more than 27 years imprisonment without remission. But, this could not be ground for premature release of petitioner under section 432 (1) of the Cr.P.C. The learned AGA has further submitted that good conduct of petitioner during his detention in jail could also not be ground for his premature release. This could only be a ground of consideration but not the decisive factor for his premature release. He has submitted that it is evident from the facts of the case that 11 persons lost their life and many others were injured in the incident caused by the petitioner and his associate and for which the petitioner has been convicted with life imprisonment only and is confined in jail. Petitioner is the prime accused of the incident as the appeal filed by him in this Court against the order of capital punishment had not only been dismissed, but the capital sentence was also confirmed. Thus, learned AGA has submitted that looking to the peculiar facts and circumstances of the case that 11 innocent persons lost their life in the incident which was caused by the petitioner and his associates and petitioner was the prime accused of the incident and this was an important aspect to be taken into consideration while dealing with the premature release of the petitioner, and this aspect could not be lost sight saying gravity of the offence allegedly committed by the petitioner could not be looked into while dealing with premature release under section 432 (1) Cr.P.C., the premature release of the petitioner has been rightly rejected. His submission is that this was one of the most important aspect which was taken into consideration and the premature release of the petitioner was rejected.

15. The learned AGA has further submitted that the prayer of premature release of the petitioner was properly considered by the State Government and being not found a fit case of premature release, it was turned down by order dated 29.04.2016. He has submitted that before rejecting the prayer of premature release of petitioner, the State Government had taken into account the reports of Senior Superintendent of Police, Bulandshahr as well as District Magistrate, Bulandshahr also in which they have stated that premature release of the petitioner is not in the interest of the public at large as fraction and tension is still prevalent in the village where incident in question had taken place. He has further submitted that since tension is still prevailing in the village due to incident having taken place long ago and the said tension may be increased due to premature release of the petitioner, as the Senior Superintendent of Police has reported in his report, and this was the important aspect taken into consideration by the State Government while rejecting the prayer of premature release of the petitioner, the impugned order of the State Government rejecting the prayer of premature release of the petitioner is not the violative of any constitutional rights of the petitioner so that this Court may invoke the jurisdiction vested in it under Article 226 of the Constitution of India.

16. The learned AGA has further submitted that it is incorrect on the part of the petitioner to submit that he is suffering from chronic diseases and the said diseases are such which cannot be treated in District Jail. He has submitted that before deciding the representation of the petitioner for his premature release as directed by the Hon'ble Apex Court in writ petition no. 100 of 2016 by order dated 22.07.2016, the report of the Doctor of the District Jail was called and taken into account in which it has been said that petitioner is not suffering from any such disease which cannot be treated in District Jail. He has submitted that alleged diseases of the petitioner are on account of his old age and not for any other reason so that the same could be said to be not curable in District Jail. He has submitted that since the petitioner does not have any serious ailment which could be treated out of jail and for that premature release of the petitioner is necessary, the order passed by the State Government rejecting the Prayer of premature release of the petitioner is fully justified and proper.

17. The learned AGA has also submitted that power of granting remission under sections 432 and 433 of the Code of Criminal Procedure is vested in the appropriate Government statutorily and the said power cannot be exercised by the High Court under Article 226 of the Constitution of India and the Apex Court under Article 32. He has further submitted that the Apex Court in the case of State of Gujarat and Another vs. Lal Singh @ Manjit Singh and Others reported in (2016) 8 Supreme Court Cases 370, has held in para 29 of the judgement as under:

"29. After so stating the court referred to a series of Judgments, analysed the scope of constitutional provisions and the statutory provisions and opined thus:(V. Sriharan Case, SCC P. 108, para 114)

114. Therefore, it must be held that there is every scope and ambit for the appropriate Government to consider and grant remission under Section 432 and 433 of the Code of Criminal Procedure 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."

18. After having heard the respective submissions of learned counsel of both sides, the admitted factual possession that has been so emerging is that in a riot that had taken place in village Sakhani within the area of P.S. Jahangirabad in District Bulandshahar on 01.02.1989, in which 11 people died and many others injured, appellant was tried along with 20 accused persons for the offences punishable under section 148, 302/149, 307/149 and 332 I.P.C. vide Sessions Trial no. 245 of 1989, and while 4 accused persons were acquitted of the charge, appellant along with 16 accused persons were convicted, and out of them while 11 were sentenced with life imprisonment, appellant and 5 others were sentenced with death penalty. Appellant along with other accused persons had filed a criminal appeal no. 1492 of 1992 in this Court against the Judgement and order of conviction and sentence of the trial court which was partly allowed vide judgement and order dated 20.05.1994 of this Court and while two accused persons were acquitted of the charges, the death penalty of 5 was reduced to simple imprisonment, but the conviction and sentence of appellant remained upheld. Appellant had then preferred a criminal appeal no. 887 of 1994 before the Apex Court against the judgement and order dated 20.05.1994 of this Court which was decided on 04.05.1995, and while conviction of the appellant was upheld his death penalty was also reduced to life imprisonment.

19. From the letter dated 29.04.2016 of Under Secretary, Govt. of Uttar Pradesh by which the rejection of premature release of the petitioner has been communicated to him, it appears that petitioner had served 26 years 6 months and 5 days imprisonment without remission and 35 years 2 months and 25 days with remission on 15.12.2015.

20. It also appears that petitioner has never been on bail during his detention and the conduct of the petitioner in jail has always been good and he has earned annual good conduct of remission also. It further appears that petitioner has been granted Parole by the State Government on three occasions i.e. 01.01.1998 to 30.01.1998, 10.05.1998 to 25.05.1998 and 24.08.2004 to 25.10.2004, but in the last Parole he was lodged in jail on 26.10.2004 after the delay of two days.

21. On perusal of letter dated 29.04.2016 of Under Secretary, Government of U.P., it appears that premature release of the petitioner under section 432(1) of the Code of Criminal Procedure was thoroughly considered by the State Government having taken into account that petitioner has already served 26 years 6 months 5 days in jail without remission and during that period he has never been granted bail and his conduct has always been good. However, taking into account the reports of Senior Superintendent of Police, Bulandshahar as well as District Magistrate, Bulandshahar who vehemently opposed the release of the petitioner, and also the nature of offence committed by the petitioner, his request for premature release has been turned down. The letter dated 29.04.2016 of the Under Secretary is reproduced as below:

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mi;qZDr fo"k;d vius i= la[;k&[email protected]&5n;k0&vU;&[email protected] 22-12-2015 fnukad 25-01-2016 dk d`i;k lanHkZ xzg.k djsaA

2- vkids mDr i= }kjk miyC/k djk;s x;s izLrkokuqlkj cUnh 'ke'kqy daoj iq= Jh mEesn gqlSu] fuoklh xzke&lka[kuh] Fkkuk&tgkWxhjkckn] tuin&cqyUn'kgj dk fuoklh gSA cUnh }kjk iqjkuh jaft'k dks ysdj fnukad 01-02-1989 dks vius 20 vU; glvfHk;qDrksa ds lkFk feydj vkXus; vL=ksa o /kkjnkj gfFk;kjksa ls 11 O;fDr;ksa dh gR;k dj vijk/k dkfjr fd;k x;k gSA canh dks l= ijh{k.k la[;k [email protected] esa Hkk0n0fo0 dh /kkjk&148]149]332]307 o 302 vkbZ0ih0lh0 ds vUrxZZr ek0 vij ftyk ,oa l= U;k;k/kh'k] "k"Ve] cqyUn'kgj }kjk fnukad 10-08-1992 dks e`R;q n.M ls nf.Mr fd;k x;kA mDr e`R;qn.M dks ek0 mPp U;k;ky;] bykgkckn }kjk cgky j[kk x;kA mDr n.M ds fo:) cUnh }kjk ek0 mPpre U;k;ky; esa fdzfeuy vihy la[;k&[email protected] ;ksftr dh x;h ftlesa ek0 mPpre U;k;ky; us vius vkns'k fnukad 04-05-1995 }kjk cUnh dh e`R;qn.M dh ltk dks vkthou dkjkokl esa ifjofrZr fd;k x;kA cUnh dks tsy eas fn;s x;s vkB vijk/kksa ds n`f"Vxr N% tsy n.M fn;s x;sA cUnh ds 02 lgvfHk;qDRkksa dh e`R;q gks pqdh gS] 01 lgvfHk;qDr x`g vodk'k ij vkus ds ckn ls Qjkj gS] 04 lgvfHk;qDr ek0 l= U;k;ky; }kjk nks"keqDr] 02 lgvfHk;qDr ek0 mPp U;k;ky; }kjk nks"keqDr] 01 lgvfHk;qDr ek0 mPp U;k;ky; ds vkns'kkuqlkj tekur ij fjgk gksus ds mijkUr iqu% dkjkxkj esa nkf[ky ugh gqvk] 10 lgvfHk;qDr dkjkxkj esa fu:) gSaA cUnh }kjk fnukad 15-12-2015 rd 26 o"kZ 06 ekg 05 fnu dh vifjgkj ,oa 35 o"kZ 02 ekg 25 fnu dh lifjgkj ltk Hkksxh x;h gSA ofj"B iqfyl v/kh{kd }kjk viuh vk[;k esa dgk x;k gS fd bl ?kVuk dks ysdj xzke lka[kuh esa ruko gSA cUnh }kjk vius lkfFk;ksa ds lkFk feydj funksZ"k O;fDRk;ksa dh gR;k dh Fkh] tks fd ,d xEHkhj vijk/k dh Js.kh esa vkrk gS cUnh fjgk gksus ij iqu% ?kVuk ?kfVr dj ldrk gSA cUnh dks ;fn 'kklu }kjk NksM+k x;k rks xzke lka[kuh esa iqu% lkewfgd gR;k gks ldrh gS ;k cUnh dh Hkh gR;k gks ldrh gSA ofj"B iqfyl v/kh{kd] }kjk cUnh dh le;iwoZ fjgkbZ dk ?kksj fojks/k fd;k x;k gSA ftyk eftLVªsV] cqyUn'kgj }kjk viuh vk[;k esa dgk x;k gSS fd orZeku esa nksuksa i{kksa ds e/; fookn lekIr ugha gqvk gSA xkao esa iwoZ dh jaft'k ds dkj.k cnys dh Hkkouk ls fdlh vfiz; ?kVuk ds ?kfVr gksus dh lEHkkouk ls bUdkj ugha fd;k tk ldrk gSA ftyk eftLVªsV }kjk cUnh dh le;iwoZ fjgkbZ dh laLrqfr ugha dh x;h gSA n;k ;kfpdk lfefr }kjk cUnh dh dkVh x;h ltk] dkfjr vijk/k dh izd`fr] ftyk eftLVªsV rFkk ofj"B iqfyl v/kh{kd dh vk[;k ds n`f"Vxr lE;d fopkjksijkUr le;iwoZ eqfDr dh laLrqfr ugha dh x;h gSA

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"Having considered the merits of the controversy raised in the instant petition, we consider it just and appropriate of dispose of the instant petition by directing respondent No.1 to consider the claim of the petitioner by treating the instant petition as the representation of the petitioner for his premature release in consonance with law. The petitioner shall forward a copy of the instant writ petition, as also a certified copy of the instant order, to respondent No.1 within three weeks from today. The representation shall be disposed of by respondent No. 1, by passing a speaking order, within three months thereafter."

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22. A perusal of the aforesaid letter shows that the Senior Superintendent of Police, Bulandshahar has opposed the matter of premature release of the petitioner and has stated that "There is tension in village Sakhni due to the incident. Petitioner and his associates killed the innocent people which is a heinous offence and, on being released, he may repeat the same act. If released, there could be repetition of the incident in the village and even petitioner himself may be killed".

23. The District Magistrate, Bulandshahar has also vehemently oposed the premature release of the petitioner on the ground that "even at present the dispute between two groups has not ended, it is still subsisting. The possibility of untoward happening in village in retaliation to the incident in question cannot be ruled out".

24. Taking these two reports and the gravity of the offence committed into consideration the State Government has rejected the premature release of the petitioner, which the petitioner has challenged mainly on following three grounds:-

(1) During the period of detention in jail the conduct of petitioner has always been good. He has been granted Parole of considerable period by the State Government on three occasions and during the period of parole he remained in the village peacefully, no untoward incident has taken place after the incident.

(2) Petitioner has been suffering from various old age ailments and other chronic illness. He is the patient of Hypertensive Heart Disease, coronary heart disease with left ventricular dysfunction along with arthritis and polyarthralgia with exfoliative dermatitis. He has also been operated for cataracts and the Senior Medical Consultant of District Hospital Meerut has submitted report that recovery of petitioner is not possible in District Jail.

(3) Due to old age and illness the petitioner has no capacity/potentiality to commit any criminal offence. He is bed ridden, crippled and dependent on others even for his day to day needs.

25. The power of suspension and remission of sentence is vested in the President of Union of India under Article 72 and the Governor of the State under Article 161 of the Constitution of India. Such power is also vested in the "Appropriate Government" under section 432 of the Cr.P.C. subject to certain restrictions contained in section 433A Cr.P.C. The provisions of sections 432 and 433A of the Cr.P.C. are reproduced here in below for the ready reference:

"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 favour 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.

433A. 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 a person for an offence for which death is one of the punishments provided by law, 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."

26. On having a glance of section 432 Cr.P.C. it appears that power of suspension and remission of sentence so vested in the appropriate Government is independent to what has been vested in President of Union of India under Article 72 and the Governor of the State Under Article 161 of the Constitution of India. It further appears that the State Government can exercise the power vested in it under section 432 with or without conditions after having taken into consideration the nature of the offence committed by the convict, period of detention in jail and also the conduct of convict in jail during the period of detention. It also appears that while exercising the power so vested the appropriate Government may also 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 premature release should be granted or refused together with his reason of such opinion.

27. On reading of section 433A of the Cr.P.C., it appears that where a sentence of imprisonment for life is imposed on conviction of a person for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, then notwithstanding any thing contained in section 432, such person shall not be released from prison unless he had served at least 14 years of imprisonment.

28. Regarding premature release of a life convict, the Apex Court in the case of Laxman Naskar vs. Union of India, 2000 Law Suit (SC) 331 has held that :

"Settled position of law is that life sentence is nothing less than lifelong imprisonment and by earning remissions a life convict does not acquire a right to be released prematurely, but if the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution".

29. The Apex Court in the case of Zahid Hussein and others vs. State of West Bengal and another reported in (2001) 3 Supreme Court Cases 750 has further held that :

"A sentence of imprisonment for life does not automatically expire at the end of 20 years of imprisonment including remission, as a sentence of imprisonment for life means a sentence for the entire life of the prisoner unless the appropriate Government chooses to exercise its discretion to remit either the whole or part of the sentence. Therefore, a positive order of release has to be passed by the Government after due consideration."

30. In case of Union of India vs. V. Sriharan @ Murgan and Others, reported in (2016) 2 Supreme Court Cases (Cri) 695, the Apex Court has held in para nos. 224 & 226 and 259 & 260 of the judgement as under:

"Remissions are of two kinds. The first category is of remissions under the relevant Jail Manual which depend upon the good conduct or behavior of a convict while undergoing sentence awarded to him. These are generally referred to as ''earned remissions' and are not referable to Section 432 of Cr.P.C. but have their genesis in the Jail Manual or any such Guidelines holding the field. The difference between earned remissions "for good behaviour" and the remission of sentence under Section 432 is clear. The first depends upon the Jail Manual or the Policy in question and normally accrues and accumulates to the credit of the prisoner without there being any specific order by the appropriate Government in an individual case while the one under Section 432 requires specific assessment in an individual matter and is case specific.

The convict undergoing the life imprisonment can always apply to the concerned authority for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 Cr.P.C. and the authority would be obliged to consider the same reasonably. The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the concerned authorities, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner."

31. On a careful reading of section 432 of Code of Criminal Procedure as well as relevant case laws of the Hon'ble Apex Court stated hereinabove, it is manifestly clear that a convict undergoing the life imprisonment can apply to the authority concerned for obtaining remission of the sentence under section 432 Cr.P.C. and the authority to whom the application is made would be obliged to consider the same reasonably, however, the right to apply and invoke the powers does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation. At the most, he can claim that his case may be considered, but the decision whether remission be granted or not would be of the authorities concerned, which is to be exercised in accordance with law. It is the prerogative of the authority concerned to consider the request of the convict within the four corners of the guidelines, if framed, and while doing so he can make a specific assessment in the individual matter depending upon the facts and circumstances of the case.

32. It is apparent from the facts of the case in hand that petitioner was tried along with 20 other persons for having committed the grave offence of rioting in the village in which 11 innocent persons lost their life and many other were injured. He was convicted along with 16 others and sentenced with capital punishment. His conviction and sentence were confirmed by this Court also in the criminal appeal preferred against the judgement and order of the trial court, while the capital punishment of other accused persons was reduced to life imprisonment. The sentence of petitioner has been reduced to life imprisonment by the Apex Court in the Criminal Appeal preferred against the judgement and order of this Court. This shows that a lenient view has already been taken by the Apex Court in the matter of petitioner by reducing his capital punishment to life imprisonment.

33. Petitioner had served 26 years 6 months and 5 days in jail when his request for premature release was considered and rejected by the State Government. The State Government while rejecting the request of premature release of the petitioner had taken into account the period of his detention in jail, the gravity of the offence and its after effect and also the reports of Senior Superintendent of Police, Bulandshahar and District Magistrate, Bulandshahar, who have vehemently opposed the prayer of premature release. The report of Senior Superintendent of Police states that tension is still prevailing in the village Sakhni due to incident in question. He has specifically stated in the report that petitioner and his associates killed the innocent people which is a heinous offence, and, on being released, petitioner can repeat the same act. The Senior superintendent of Police has also reported that, if released, there could be repetition of incident in the village and even petitioner may be killed.

34. The District Magistrate, Bulandshahar has also vehemently opposed the release of the petitioner ans has stated that dispute between two groups has not yet ended, it is still subsisting. He has further stated that the possibility of untoward incident in the village in retaliation to the incident in question cannot be ruled out. Thus, the State Government while rejecting the prayer of premature release of the petitioner has not only taken the gravity of the offence committed by the petitioner into account but it has also taken the reports of the Senior Superintendent of Police, Bulandshahar and District Magistrate, Bulandshahar into account who have specifically stated that tension is still prevailing in the village due to incident in question, and, if released, petitioner may commit the same incident again and he may be even killed as dispute between the two groups has not ended.

35. Thus it is apparent that the State Government has considered the different aspects of the case while rejecting the prayer of premature release of the petitioner. The plea of the petitioner that authority concerned cannot consider the gravity of the offence committed by the convict while deciding the prayer of premature release under section 432 of the Code of Criminal Procedure, but it can only see the conduct of the convict in jail does not appeal to logic. The Apex Court has already held in the case of V. Sriharan @ Murgan (Supra) that authorities are only obliged to consider the prayer of remission reasonably and petitioner cannot claim the benefit of premature release as a matter of right based on any arithmetical calculation, decision whether remission be granted or not is entirely left to the discretion of the authority concerned and what is required from the authorities is that the discretion vested in them should be exercised in the manner known to the law. The manner known to law does not mean that only the conduct of petitioner in jail would be looked into for taking decision in the matter of remission, but the past antecedents of the convict and also the gravity of offence and the manner in which the offence was committed would also be looked into.

36. Since in the present case all these factors have been taken into consideration and the report of Senior Superintendent of Police, Bulandshahar as well as District Magistrate, Bulandshahar are adverse, the decision taken by the State Government rejecting the prayer of premature release of the petitioner cannot be said to be in accordance with procedure not known to law.

37. The decision of the State Government rejecting the prayer of premature release of the petitioner is not bad in law on this reason also that petitioner has been suffering from various old age ailments and chronic illness, he is patient of Hypertensive Heart Disease, coronary heart disease with left ventricular dysfunction along with arthritis and polyarthralgia with exfoliative dermatitis and his ailments are not possible to be treated in District Jail. Respondent no. 4 has specifically stated in sub-para-D of para-6 of the counter affidavit that as per the report of Senior Doctor of the District Jail Meerut, the petitioner is not suffering from any critical disease and his health condition is satisfactory.

38. The report of Senior consultant, District Jail, Meerut has been filed as Annexure-A to the counter affidavit and on its perusal it appears that left eye of the petitioner has already been operated on 15.09.2015 for cataract and his further treatment and follow up action is being taken in the District Jail. It has been specifically mentioned in the report that presently the petitioner is being treated by the Doctors of Medical College, Meerut and S.G.P.G.I., Lucknow and petitioner's condition is satisfactory and he is competent to do his day to day work and he is not suffering from any incurable disease. Thus, from the medical reports also it is manifestly clear that petitioner is not suffering from any such disease which is not curable in District Jail.

39. Petitioner cannot claim his premature release on the ground that due to old age and illness he has no capacity/potentiality to commit any criminal offence in future. Presently petitioner is 68 years old and at this age it would not be proper to say that petitioner has lost his capacity/potentiality to commit offence more so when he has already committed a heinous crime.

40. The State has taken all necessary factors such as period of detention, conduct of petitioner in jail during detention, gravity of the offences committed, ailments of petitioner and also the safety and security of not only the public at large but also of the petitioner while rejecting the prayer of premature release of the petitioner. We do not see any illegality in the discretion exercised by the State Government in rejecting the prayer so that we may invoke the jurisdiction of this Court under article 226 of the Constitution.

41. In the result, petition lacks merit and is dismissed accordingly.

(Umesh Chandra Srivastava, J.) (Ramesh Sinha, J.)

Order Date :- 15.5.2017

Bhanu