Allahabad High Court
Zubair vs State Of U.P. Thru. Secy. Home & ... on 21 January, 2021
Bench: Ramesh Sinha, Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
1. Heard, Sri Purendra Chakarwati, learned counsel for the petitioner and Sri Anurag Verma, learned A.G.A. for the State.
2. The present petition is filed by the petitioner for the following prayers:-
(a) issue a writ, order or direction in the nature of certiorari for quashing the order dated 05.04.2018 communicated by Joint Secretary, Government of Uttar Pradesh whereby the clemency petition filed by the petitioner has been rejected by Hon'ble His Excellency Governor of Uttar Pradesh.
(b) issue a writ, order or direction in the nature of certiorari for quashing the order dated 13.01.2016 passed by Dy. Secretary, Government of Uttar Pradesh whereby the Form-A of the petitioner for grant of remission and his consequent release has been rejected.
(c) issue a writ, order or direction in the nature of mandamus commanding the opposite parties to release the petitioner forthwith in the light of recommendations made by the District Magistrate, Muzaffar Nagar, Senior Superintendent of Police Muzaffar Nagar and District Jailor, Haridwar on remission and pre-mature release in the interest of justice.
3. Learned counsel for the petitioner submits that the petitioner filed a writ petition criminal No.65 of 2019 (Zubair Vs. State of U.P. and another) for the aforesaid prayers before the Hon'ble Supreme Court and the aforesaid petition was disposed of vide order dated 08.03.2019 with a view that it would be appropriate for the petitioner to approach the High Court for the same prayers.
4. Learned counsel for the petitioner submits that Form-A of the petitioner for grant of remission and his consequent release in the light of having undergone imprisonment of 20 years, 10 months and 27 days (with the remission) and 16 years, 00 months and 18 days (without remission) as calculated by the Jail Authority till 15th May, 2019 (contained as Annexure-2) was recommended by I.G. Prison.
5. Learned counsel for the petitioner submits that the petitioner was put for trial along with 27 co-accused persons in S.T. No.98 of 1977 before 3rd Additional Sessions Judge, Muzaffar Nagar, on conclusion of trial, 15 were acquitted, and 13 were found guilty and they were sentenced for life imprisonment, vide judgment and order dated 21.11.1978. Aggrieved by the aforesaid decision of the 3rd Additions Sessions Judge, Muzaffar Nagar, the petitioner and other convicted persons filed Criminal Appeal No.3286 of 1978 before the Hon'ble High Court at Allahabad which was decided by the judgment and order dated 27.03.1996, out of 13 convicted persons, 6 were acquitted and the other seven (including petitioner of the present case) were sentenced for life.
6. Learned counsel for the petitioner submits that out of seven co-convict persons (including petitioner of the present case) who were sentenced for life imprisonment, Ashraf, Yasin and Shabbir were died and the other four co-convict persons namely Meera, Zubair (petitioner), Javed and Yasin were sentenced to serve for life. The co-convict namely, Yasin s/o Alimuddin has been released by the State Government from the prison on the basis of old age and physical disability on 12.02.1999, and co-convict Meera and Javed were also released from prison on the basis of old age and good conduct under the order of the State Government.
7. Learned counsel for the petitioner submits that the report was sought from the Superintendent of Police Muzaffar Nagar, in response to the same, a report on 08.04.2013 was sent in which it was categorically mentioned that the petitioner is aged about 72 years and there is no resentment in relation to the alleged incident of 28.09.1976 and there is no opposition of petitioner in his village, therefore, he has no objection on his release (report of Senior Superintendent of Police, Muzaffar Nagar is appended at page 30 of the petition). A report dated 25.01.2014 was also submitted by the Superintendent District, Jail Haridwar and recommended that the case of petitioner is fit for premature release and it is also observed that the conduct and behaviour of the petitioner is normal and he is feeling guilty on the alleged incident and that there is no possibility for repetition of such incident and he is aged about 73 years and physically weak.
8. Learned counsel for the petitioner submits that except the petitioner all other living co-convicts have been released by the State Government under the Provision of U.P. Prisoner's Release of Probation Act, 1938. He further submits that the impugned order dated 13.01.2016 clearly reveals that two co-convicts have already been released under the aforesaid Act and one co-convict was released on the basis of attaining the age of 65 years, but in the most mechanical manner, application of the petitioner was rejected on the ground that the petitioner was allowed to go on leave for 15 days and he stayed home for the period of 6 years 8 month and 27 days unauthorizedly and thereafter, he was arrested and sent back to jail.
9. Learned counsel for the petitioner submits that Form-A of the petitioner under the provisions of Section 2 of the Uttar Pradesh Prisoner's Release on Probation Act, 1938 for grant of remission and release of which was rejected vide order dated 13.01.2016 and his application under Article 161 of Constitution of India was also denied, vide order dated 05.04.2018 without considering the parity with others co-convict.
10. Learned counsel for the petitioner has relied on the decision of Co-ordinate Bench in the case of Chandrasi and Another Vs. State of U.P. and 2 Others, decided on 16.04.2018 with the observation that it is obligatory on the part of the authority to consider the recommendation made by the Committee, at the time of taking decision of premature release, therefore, the impugned orders are liable to be quashed.
11. Learned A.G.A. opposes the prayer of applicant and submits that the Form-A of petitioner under Section 2 of the Probation Act, 1938 was rejected on the ground that the petitioner had misused the liberty of leave granted by the Authority, but he conceded that fact that on the over staying on the home visit parole, the remission period of 1087 days have been forfeited by the jail authority and he also does not dispute in relation to good conduct of the petitioner and recommendation of Superintendent of Police, Superintendent of Jail and District Magistrate, Muzaffar Nagar for premature release of the petitioner.
12. Considering the arguments of the learned counsel for the parties and going through the records, it is evident that the petitioner was aged about 72 years on 08.04.2013 when the recommendation of Senior Superintendent of Police, Muzaffar Nagar was sent for his premature release. It is also undisputed that co-convicts namely, (i) Yasin s/o Alimuddin was released vide Government Order No.5101/22-2-98-18 (98) dated 22.01.1999, (ii) Meera @ Mirhasan s/o Karamat was released vide Government Order No. 631/22-2-2011-17 (132)/2011, dated 27.07.2011 and (iii) Javed @ Zahid s/o Sunda @ Hasan was released vide Government Order No.630/22-2-2011-17 (81)/2011, dated 27.07.2011 (release orders of the co-convicts have been mentioned in para-5 of the supplementary counter affidavit) and Form-A of petitioner was rejected by way of impugned order dated 13.01.2016. As it is also evident from the impugned orders itself that one co-convict was released on the ground that he was aged about 65 years and in the present case, admittedly the petitioner was aged about 72 years on 08.04.2013, as mentioned in the report of Senior Superintendent of Police, Muzaffar Nagar, therefore, the impugned orders dated 13.01.2016 and 05.04.2018 are hereby quashed.
13. The respondent No.1 is directed to reconsider the case of the petitioner under the provisions of Section 2 of the Uttar Pradesh Prisoner's Release on Probation Act, 1938, within a period of two months from the date of production of certified copy of this order in accordance with law.
14. With the aforesaid observations, the writ petition is disposed of.
(Rajeev Singh, J.) (Ramesh Sinha, J.)
