Pawan Kumar @ Tamatar vs State Of U.P. And 4 Others
2018 Latest Caselaw 3136 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 27.9.2018
 
Judgment delivered on 09.10.2018 
 
Court No. - 1
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 19631 of 2018
 
Petitioner :- Pawan Kumar @ Tamatar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Deepak Kumar Jaiswal,Santosh Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Dinesh Kumar Singh-I,J.

(Delivered by Hon'ble Dinesh Kumar Singh-I, J)

1. Heard Sri Santosh Tripathi,learned counsel for the petitioner, Sri Irshad Husain, learned Brief Holder and the perused the record.

2. This Criminal Misc. Writ Petition has been preferred seeking quashing of the order dated 12/05/2018 passed by respondent no.1 refusing to release the petitioner under provisions of U.P. Prisoners Release On Probation Act, 1938 (in short to be referred as ''Act') simultaneously also praying to issue the mandamus commanding respondent no. 1 to reconsider the case of petitioner for release by licence as per the provisions of the Act by taking into consideration all the recommendations and opinions made available to the Government by different authorities keeping in mind the intent of the Act as well as direction of this Court contained in judgment and order dated 27/03/2018. Further it is prayed that a direction be issued in the nature of mandamus to the respondents to release the petitioner provisionally from jail having regard to the facts that he had already served a sentence for a period of more than 20 years with remission and about 17 years without remission, in the light of order passed by Hon'ble Supreme Court in identical cases of Laxman Nascar & Zahid Hussein (Annexure-9) and Munna and Chheda Singh (Annexure-10).

3. The facts as narrated in the petition are that the petitioner was convicted under sections 302/34 IPC in ST No. 936 of 2000 from the Court of Additional Sessions Judge, Court No. 1, Allahabad with life imprisonment and fine of Rs. 1000/- with default stipulation. Out of the said sentence, he had already served sentence for a period of 20 years 8 months and 4 days with remission and 16 years 3 months and 9 days without remission as on 20/06/2017. He has attained the age of 43 years and has no male member and has only an old mother, wife and a minor daughter in his family. His family is surviving on agriculture as he has some land being cultivated by his family with the help of labourers. As per certificate issued by the Jail Superintendent, Naini Jail, Allahabad he has served out 21 years 7 months and 25 days up to 13/03/2018. The petitioner had submitted an application before the competent authority in the prescribed proforma, that is , Form A proforma for being released under the provisions of the Act, whereon Senior Superintendent, Central Jail, Fatehgarh furnished information on 15/09/2015 to the effect that his conduct was satisfactory and recommended his premature release, in the light of which the District Probation Officer, Kaushambi also submitted his report dated 28/01/2016 on prescribed format recommending his release. The District Magistrate, Shamli made an endorsement dated 09/02/2016 on the reverse side of the Form A recommending for premature release by agreeing with the above-mentioned reports as well as on the basis of his good conduct. It is pleaded that the Government by impugned order disallowed the premature release of the petitioners solely on the ground that he had committed a heinous offence and that his premature release would send out an adverse message to society as well as undermine the public faith in judicial system. It is further mentioned that earlier a Writ Petition No. 7422 of 2018 was preferred by the petitioner for his premature release before this Court, which was allowed and the order of the Joint Secretary to the Government of U.P. dated 20/11/2017 was quashed by order dated 27/03/2018 with the direction that the Government would consider the case of the petitioner for premature release by licence as per provisions of the Act by taking into consideration all recommendations and opinion made available to it by different authorities and also keeping in mind the intent of the Act. The petitioner had got a copy of the said order forwarded to the Principal Secretary, Home on 01/04/2018 for compliance with a copy of the same to the Inspector General, Jail Administration and Reforms Services, U.P., Lucknow, but no compliance was made till the expiry of the stipulated period which compelled the petitioner to prefer Contempt Application No. 2593 of 2018, on which notices were issued by the Court to said officers impleading as the opposite party No. 2 Shri Arvind Kumar and opposite party No. 4 Shri PK Mishra by order dated 15/05/2018. An affidavit of compliance, enclosing a copy of order dated 12/05/2018 was filed in Contempt Court on 03/07/2018 by the learned Additional Chief Standing Counsel appearing for the Principal Secretary, Home, Government of U.P. but it is evident that in the narrative dated 18/06/2018, the concerned respondent specifically declined to comply with the order of the Writ Court dated 27/03/2018, as such an objection dated 07/07/2018 to the affidavit of compliance was filed on 17/07/2018 in Registry. Further it is mentioned that from a perusal of the impugned order dated 12/05/2018 it was evident that the said order was almost similar to the order dated 20/11/2017, which was quashed by the Division Bench of this Court. Though in the impugned order, the operative portion of the order dated 27/03/2018 of this Court has been quoted, but it is manifest that while rejecting the claim of the petitioner for premature release the directions contained in the said order were not taken into account and the same was passed arbitrarily and whimsically because the sole content of that order is that the petitioner was not found eligible for release by licence under the provisions of Section 3 of the Act without giving any justification and without quoting any supporting reports/opinion or material by the competent authority. This Court in its previous order had clearly observed that the intent of the provisions of the Act was to implement reformatory theory of criminal jurisprudence, underlying principle being that it should be the crime which should be abhorred and not the criminal. The earlier order dated 27/03/2018 was passed by this Court in Criminal Misc. Writ Petition No. 7422 of 2018 only because the State Government had not examined the recommendations of the authorities before denying the release to the petitioner by licence which led the Court to quash the same as a bad, unjust, arbitrary and improper order not sustainable under law. Even the impugned order does not reflect that the respondent no. 1 made any consideration of the intent of the Act nor does it show that all the necessary factors were taken into consideration which primarily included detention of the petitioner for approximately more than 20 years with remission.

4. The reliance is placed by the petitioner upon the judgment of Hon'ble Apex Court dated 02/02/2000 delivered in Laxman Nascar vs union of India and others, (2000) 7 SCC 626 in which in a similar situation where the life convict had remained in continued detention of about 20 years including remission earned but the release was refused by the Government, it was observed that the Court found that the Government had framed guidelines for the purposes of considering premature release of life convicts and in accordance with that police report was called for on the following points: 1) whether the offence is an individual act of crime without affecting the society at large; 2) whether there is any chance of future occurrence of committing crime; 3) whether the convict has lost his potentiality of committing crime: 4) whether there is any fruitful purpose of confining the convict anymore; 5) socio-economic condition of the convict's family. It was found by the Hon'ble Court that the police report did not cover all the above points and the prayer of the convict was rejected mainly on the ground of objection by police which only had to say that there were chances of petitioner committing crime again. It was found apparent from the record that the Government did not consider the prayer for premature release as per the rules. No sufficient attention was paid to the conduct-record of the petitioner while in jail nor did it consider as to whether they had lost the potentiality of committing crime. The relevant aspect, namely that no fruitful purpose would be served in confining the convict any further was also not considered nor socio-economic condition of the convict's family were taken into account and thus the impugned order was found to suffer from infirmities and was accordingly quashed.

5. The other case relied upon by the petitioner is a Writ Petition (Criminal) 274 - 277 of 2000 (Zahid Hussein and others vs State of West Bengal and another) decided by the Hon'ble Apex Court on 15/03/2001, in which it is observed that the Review Court refused to grant premature release to the petitioners on the following grounds: 1) police reported adverse; 2) the convicts are not over aged persons and as such have not lost the potentiality in committing crime; 3) since other co-convicts were trying to come out from jail there was a possibility of regrouping of anti-social activities; 4) the offence was not an individual act of crime but was affecting society at large; 5) convicts were antisocial and; 6) the witnesses who had deposed that the trial as well as local people were apprehensive of retaliation in the event of premature release. In case of one of the petitioners, namely Md. Talib it was noted that one of the co-accused who was granted premature release was murdered in an encounter after the release. After consideration of all this, the Hon'ble Apex Court has held that the jail authorities recommended premature release of the writ petitioners. In its opinion the conduct of the petitioners while in jail is an important factor to be considered as to whether they have lost the potentiality in committing crime due to long period of detention. The views of the witnesses, who were examined during the trial and the people of the locality could not determine whether petitioners would be a danger to the locality, if released prematurely. This has to be considered keeping in view the conduct of the petitioners during the period they were undergoing sentence. Age alone cannot be a factor while considering whether the petitioners have still potentiality of committing crime or not as it will depend on the changes in the mental attitude during incarceration. Further it was held that while coming to the conclusion for possibility of regrouping for anti-social activities, the Review Board did not take into account that the life convicts were in jail for more than 18 years. The Board also did not consider whether there would be any fruitful purpose served in confining the convicts anymore and also the socio-economic condition of their families. Regarding petitioner Md. Talib, the Review Board also noted that one co-convict was released prematurely and was murdered in the encounter with other criminals after his release. The learned Additional Solicitor General informed the Hon'ble Court that the said co-accused was released in the year 1991 and was murdered in the year 1998 and therefore, in opinion of the Hon'ble Court, the said fact had no nexus for consideration of premature release of the petitioner Md. Talib. Therefore the Hon'ble Apex Court held that the reasons given by the Review Board for rejecting the prayer for premature release of the petitioners were irrelevant and devoid of any substance, accordingly it quashed the impugned orders and remitted the matter to the Government for deciding it afresh within the stipulated time.

6. Further reliance is placed upon the judgment of Supreme Court in the case of Munna vs. State of U.P., Home Department Secretary, Writ Petition (Crl.) No.20 of 2017 in which the Apex Court in the case of petitioner who had already completed 18 years actual incarceration with remission and around 24 years in jail was released on bail on his executing personal bond to the satisfaction of the Superintendent of Jail. He has also placed reliance upon the judgment of Supreme Court in the case of Chhidda Singh vs. The State of U.P., Home Department Secretary, Writ Petition (Crl.) No.23 of 2017 and this case also the Supreme Court finding that the petitioner having completed 21 years actual incarceration with remission and around 28 years in jail in all, was released on bail on his executing a personal bond to the satisfaction of the Superintendent of Jail.

7. Therefore, the learned counsel for the petitioner has prayed that the impugned order be set aside because the same does not reflect consideration of relevant aspects as have been mentioned in the above two cases as well as the same not having been passed in accordance with the order of this Court dated 27/03/2015 passed in earlier filed Writ Petition No. 7422 of 2015.

8. Further, attention of this Court is drawn by the learned counsel for the petitioner that in compliance with the judgment of this Court passed in Criminal Misc. Writ Petition No. 6041 of 2018 Chandrasi and Another vs State of U.P. and 2 others, the Chief Secretary of the State of U.P. has issued fresh guidelines dated 01/08/2018 for release of the life convicts, which contains various clauses including a clause for release of such men convicts who have undergone 16 years without remission and 20 years imprisonment with remission and various other conditions and procedure to be adopted for consideration of representation for premature release of a life convict, therefore it is prayed that a direction may be issued to the Government for considering the case of the petitioner afresh in the light of those guidelines apart from the judgment of this Court mentioned above as well as in the light of the principles discussed above by the Hon'ble Apex Court.

9. On the other hand, the learned AGA has vehemently defended the propriety of the impugned order and prayed that the same does not suffer from any lacuna, hence the same deserves to be upheld and the petition deserves to be dismissed. In support of defending the impugned order a counter affidavit has been filed by him of Shri B.R. Verma, Deputy Inspector General, Jail, Allahabad Range, Allahabad who holds the charge of Senior Superintendent, Central Jail, Naini, Allahabad, wherein it is mentioned that the petitioner has undergone detention of 17 years, 0 months and 2 days without remission. Further it is mentioned that the petitioner has tried to mislead the Court by mentioning the endorsements made by the Probation Officer, Kaushambi, DM Kaushambi and Superintendent of police, Kaushambi, rather it is mentioned that on the basis of law laid down by Hon'ble Supreme Court in case of Lakshmana Bhaskar vs Union of India, 2000 Cr LJ 1471, for premature release of a convict, comments on five points have to be called for from the District Magistrate/S.P./Probation Officer and in the case on hand, the same process has been adopted and after considering the comments in detail and the fact that the petitioner had committed the murder of wife of a witness, his premature release would send a wrong message to the entire society. In fact on 31/10/2000, the petitioner and two other co-accused persons had committed gruesome murder of Hemalatha wife of Ram Prakash by assaulting with a firearm upon her at 2:30 PM. For the aforesaid offence the petitioner has been convicted with life imprisonment. It is further argued that consideration of premature release was made in the light of judgment passed by this Court in Writ Petition No. 7422 of 2018 (Pawan Kumar alias Tamatar vs State of U.P. and others) and accordingly the premature release was rejected which is perfectly in accordance with law.

10. We have gone through the impugned order as well as the record of the case and we find that it contains only a reference of the cases in which the punishment of life imprisonment was awarded to the petitioner as well as the period of his detention with remission and without remission, his age as of now and the facts of the case in brief regarding commission of murder by the petitioner along with his two companions. It does not contain as to why the reports of the Probation Officer, S.P and the District Magistrate, though recommend the premature release of the petitioner, but they were discarded. In the report of the Probation Officer it is mentioned that the convict had committed gruesome murder of one Hemalatha by firing upon her in association with two co-accused and thus if he was released prematurely, that would send a wrong signal to society as well as tarnish the image of judicial system of the country. It was further mentioned that the SP had submitted in its report that the petitioner could not be held to be incapable of committing offence although he did make recommendation for premature release. After considering these facts along with the judgment of this Court dated 27/03/2018, which is reproduced in the impugned order, it has been held that the accused was not entitled for being released prematurely under the provisions of the Act.

11. We do not find any reason having been assigned for refusing the premature release as to why the case of the petitioner was found to be not a genuine case for being released prematurely despite a favourable report of DM, Superintendent of Police and Jail Superintendent and why they were discarded only on the ground that his premature release would send the wrong signal to society and undermine the faith of people in judicial process. The intent of the Act which was also directed to be considered by this Court, is not reflected to have been considered. Apart from that the other relevant considerations such as chances of the petitioner committing crime again; conduct of the petitioner during detention in jail; whether he had lost potentiality to commit crime; whether any useful purpose would be served by confining him in jail for any further length of time; also social economic condition of the petitioner, do not appear to have been considered in the present case meticulously. It may also be pointed out that as it has been held by the Hon'ble Apex Court in Zahid Hussein's case that age alone cannot be a factor while considering premature release in assessing whether the petitioner still had potential of committing crime because that would depend upon change of mental attitude during his incarceration. Therefore it appears that no in-depth reports have been obtained in regard to these points nor their proper evaluation has not been made, moreover meanwhile new guidelines have also been framed as mentioned above, in this conspectus we find that the impugned order deserves to be set aside not being supported with adequate reasoning and is accordingly set aside.

12. We allow this petition and set aside the impugned order with the direction to the respondent no. 1 to decide the matter afresh in the light of the fresh guidelines laid down by the Government as well as in the light of observations made above within a period of three months positively.

(Dinesh Kumar Singh-I, J.)  (Ramesh Sinha, J.)

Order Date :- 09.10.2018

AU/h