Umesh Dixit vs State Of U.P. ...
2022 Latest Caselaw 4022 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

							                               A.F.R.
 

 
					  
 
   RESERVED  ON      11.05.2022
 
						  DELIVERED ON     25.05.2022                  
 
Court No. - 1
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 24795 of 2020
 

 
Petitioner :- Umesh Dixit
 
Respondent :- State Of U.P. Thru.Prin.Secy.Home And Ors.
 
Counsel for Petitioner :- Girish Kumar Pandey
 
Counsel for Respondent :- G.A.,Arun Sinha,Mohammad Zeeshan Lari,Siddhartha Sinha
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Mrs. Saroj Yadav,J.

(Per Ramesh Sinha, J. for the Bench)

(1) The petition under Article 226 of the Constitution has been instituted by Umesh Dixit, whose brother Gyanendra Kumar alias Tinku was said to be murdered by the convict/respondent no.6-Hari Shankar, with the following reliefs :-

i. Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 29.11.2019 passed by the opposite party no.1 contained in Annexure No.1 to this writ petition.

ii. Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite parties no. 1, 2 and 3 to re-arrest the opposite party no.6 so that he serves out the life imprisonment imposed upon him by the Learned Additional Sessions Judge/F.T.C., Court No.3, Sitapur in Sessions Trial No. 78 of 2003, in the interest of justice.

iii. Issue any other writ, order or direction in the nature which this Hon'ble Court may deem fit and proper under the circumstances of the case and in the interest of justice.

iv. Allow the writ petition with costs in favour of the petitioner."

(A) Factual Background

(2) The respondent no.6-Hari Shankar and co-accused were tried by V Additional Sessions Judge, Sitapur in Sessions Trial No. 187 of 1991 arising out of Case Crime No. 171 of 1990, under Sections 147, 148, 452, 149, 302 I.P.C., Police Station Machhrehta, District Sitapur, wherein vide judgment and order dated 19.03.1996 (Annexure No. 3), the learned V Additional Sessions Judge, Sitapur, convicted and sentenced the respondent no.6-Hari Shanker and co-accused under Section 302 read with Section 149 I.P.C. to undergo life imprisonment; under Section 452 read with Section 149 I.P.C. to undergo three years R.I.; and under Section 148 I.P.C. to undergo two years R.I.

(3) According to the petitioner, aggrieved by their conviction and sentence vide judgment and order dated 19.03.1996, respondent no.6-Hari Shanker preferred Criminal Appeal No. 117 of 1996 : Hari Shanker Vs. State of U.P., wherein respondent no.6-Hari Shanker was granted bail by a Co-ordinate Bench of this Court and the same is still pending final adjudication.

(4) During pendency of the aforesaid criminal appeal and after release on bail in the aforesaid criminal appeal, convict/respondent no.6-Hari Shanker and co-accused Sanju, Nanhu (real nephew of the respondent no.6), Chailu, Shatrughan and Pramanand, murdered the brother of the petitioner, namely, Gyanedra Kumar alias Tinku. In this regard, the petitioner's father Ram Naresh Dixit had lodged an F.I.R. against the aforesaid accused persons including respondent no.6-Hari Shanker, which was registered as Case Crime No. 267 of 2002 under Sections 147, 148, 302/149 I.P.C. at Police Station Machhrehta, District Sitapur. This case was committed to the Additional Sessions Judge/Fast Track Court No.3, Sitapur, wherein respondent no.6-Hari Shanker and co-accused were tried in Sessions Trial No. 78 of 2003 : State Vs. Sanju and 5 others, for committing the offence of murder of the petitioner's brother. Co-accused Sanju was also tried in Sessions Trial No. 222 of 2003 : State Vs. Sanju, arising out of Case Crime No. 277 of 2002, under Section 25 (1-B) of the Arms Act, Police Station Machhrehta, District Sitapur.

(5) The learned Additional Sessions Judge/Fast Track Court No.3 , Sitapur, heard both the aforesaid appeals i.e. Sessions Trial Nos. 78 of 2003 and 222 of 2003 together and vide judgment and order dated 09.07.2004 (Annexure No.5), convicted and sentenced Hari Shanker (respondent no.6) and co-accused persons under section 302 read with section 149 I.P.C. to undergo life imprisonment and fine of Rs.5000/-, in default, to undergo additional one year imprisonment; under Section 147 I.P.C. to undergo six month R.I.; and under Section 148 I.P.C. to undergo one year R.I., whereas co-convict Sanju was convicted and sentenced under Section 25 (1-B) of the Arms Act to undergo one year's R.I. and fine of Rs.1000/-, in default, to undergo additional three months imprisonment.

(6) Feeling aggrieved by their convictions and sentenced vide judgment and order dated 09.07.2004, convict/respondent no.6-Hari Shanker preferred Criminal Appeal No. 1917 of 2004 : Hari Shanker Vs. State of U.P., whereas co-convicts Sanju, Nanu, Chailu, Shatrughan and Parmanand preferred Criminal Appeal No. 1578 of 2004 : Sanju and 4 others Vs. State, before this Court and the same are pending adjudication before this Court.

(7) According to the petitioner, vide orders dated 13.07.2005 (Annexure No. 6), 30.08.2005 (Annexure No. 7) and 22.05.2006 (Annexure No.8), the bail applications preferred by the respondent no.6-Hari Shanker in Criminal Appeal No. 1917 of 2004 were rejected. However, co-convict Sanju, Nanhu (real nephew of the respondent no.6), Chailu, Shatrughan and Parmanand were released on bail vide order dated 13.07.2005 passed by a Co-ordinate Bench of this Court. After released on bail, nephew of the respondent no.6 (Sanju, Nanhu) and co-accused Chailu attacked the brother of the petitioner, hence petitioner's father had lodged an F.I.R. in this regard, which was registered as Case Crime No. 42 of 2007, under Sections 379, 338, 307 I.P.C. on 11.01.2007; and case crime No. 56 of 2007 under Sections 307, 504 I.P.C. at police station Machhrehta, District Sitapur. According to him, in case crime No. 56 of 2007, the trial Court convicted and sentenced the accused persons to undergo ten years imprisonment, against which, criminal appeal has been filed before this Court, wherein the nephew of respondent no.6, Sanju and Chailu, were released on bail in Case Crime No. 56 of 2007, under Sections 307/504 I.P.C. on 17.01.2007. Thereafter, nephew of respondent no.6 murdered the father of the petitioner, hence the brother of petitioner, namely, Mukesh Dixit, lodged an F.I.R. in this regard, which was registered as Case Crime No. 1137 of 2009, under Sections 302, 149, 120-B I.P.C., Police Station Machhrehta, District Sitapur. This case was committed to Sessions Court and the Sessions Court had also awarded life imprisonment in Sessions Trial No. 1137 of 2009 to the nephew of the respondent no.6, namely, Sanju and Chailu.

(8) It has also been stated by the petitioner that when respondent no.6 and other co-accused were confined in District Jail, Sitapur, they were continuously threatening the petitioner and his family members, hence he filed a writ petition, bearing No. 563 (M/B) of 2017, before this Court, which was disposed of vide order dated 11.01.2017 with a direction to the Principal Secretary (Home), U.P., Lucknow to consider a copy of the petition as a representation and take appropriate decision/action within two months. In compliance of the order dated 11.01.2017, the Principal Secretary (Home), Government of U.P., vide office memorandum dated 09.03.2017 (Annexure No. 14), recommended to transfer the respondent no.6-Hari Shanker and co-accused Sanju, Chailu, Parmanand and Shatrohan from District Jail, Sitapur to District Jail, Barelly. Thereafter, the petitioner came to know that the respondent no.6-Hari Shanker was trying to be released prematurely, hence the petitioner had preferred a representation dated 12.12.2018 (Annexure No.15) but without paying any heed on the petitioner's representation, the respondent no.6-Hari Shanker was released prematurely vide order dated 29.11.2019.

(9) Aggrieved by the aforesaid order of premature release dated 29.11.2019, the petitioner has filed the instant writ petition.

(B) Submissions

B.1 Submission on behalf of the petitioner

(10) Shri Girish Kumar Pandey, learned Counsel appearing on behalf of the petitioner, made the following submissions:-

I. Respondent no.6-Hari Shanker has been released prematurely by the impugned order dated 29.11.2019 in absolute contravention of the provisions contained in the Government Order dated 01.08.2018, which inter alia provides that a convict, who has been sentenced to undergo life imprisonment, shall not be eligible for release in case he has been convicted for some offence said to have been committed by him during parole and further such convicts sentenced for life imprisonment are also not liable to be released, who have been sentenced for life for more than one offence.

II. Sub-clause (x) of Para-3 of Government Order dated 01.08.2018 clearly provides that the person, who is convicted for life two times, will not be entitled to be released in light of the provisions of Government Order dated 01.108.2018 but while passing the impugned order of premature release dated 29.11.2019, the respondent no.6-Hari Shanker has been granted the benefit of Section 2 of U.P. Prisoners Release on Probation Act, 1938 (hereinafter referred to as "Act, 1938") ignoring the Government Order dated 01.08.2018 by the State Government.

III. The convict/respondent no.6-Hari Shanker was convicted and sentenced to undergo life imprisonment in two separate murder cases and he is a habitual/notorious criminal, hence he is not entitled to be extended the benefit of Section 2 of the Act, 1938.

IV. Hence the impugned order of premature release is liable to be quashed.

B.2 Submissions on behalf of Respondent no.6-Hari Shanker

(11) Shri Siddharth Sinha, learned Counsel appearing on behalf of the respondent no.6-Hari Shanker, made the following submissions :-

I. The respondent no.6 had moved an application of his premature release on the prescribed Form ''A'. His Excellency, the Governor of U.P. had accepted the application of the respondent no.6 after satisfying that respondent no.6 fulfills the conditions enumerated under Section 8 of the Act, 1938.

II. In Sessions Trial Nos. 187 of 1991 and 78 of 2003, the respondent no.6 was wrongly convicted by the trial Court, therefore, against his conviction and sentence, he preferred Criminal Appeal Nos. 117 of 1996 and 1917 of 2004, respectively, before this Court, wherein the respondent no.6 was granted bail by this Court.

III. In Criminal Appeal No. 1917 of 2004, the role of firing was actually assigned to co-accused Sanju, resulting into the death of deceased. The cause of death as spelt out in the post-mortem report was ante-mortem firearm injury alleged to have been caused by co-accused Sanju. The respondent no.6 has no role in commission of the murder of the deceased.

IV. The respondent no.6 has neither threatened the petitioner nor his family members. There is a long standing enmity between the family of respondent no.6 and the family of petitioner.

V. The respondent no.6 was released as per the provisions of Government Order No. 1658/22-02-2004-25 (94)/97 dated 06.09.2004 by the competent authorities with the consent of His Excellency the Governor of U.P. Furthermore, the impugned order of release is based on the subjective satisfaction of the releasing authority.

VI. The Government Order dated 06.09.2004 was issued as per the guidelines issued by the Apex Court in Laksman Naskar Vs. Union of India : 2000 Crl.L.J. 1471. The respondent no.6 was released by means of impugned order by the authorities as all the guidelines issued by the Apex Court in Laksman Naskar (supra) have been fulfilled by the respondent no.6.

VII. In Maru Ram Vs. Union of India : 1981 (1) SCC 107, the Apex Court has held that Section 433-A Cr.P.C. does not and cannot even wee bit the pardon power of Governor or President. The necessary sequel to this logic is that notwithstanding section 433-A Cr.P.C., the President or Governor continues to exercise the power of commutation and release under Articles 72 and 161 of the Constitution. Hence the impugned premature release of the respondent no.6 was as per the guidelines of the Government Order dated 06.09.2004.

VIII. Hence, the instant writ petition is liable to be dismissed.

B.3 Submissions on behalf of the State/respondents no.1 to 5

(12) Shri S.P. Singh, learned Additional Government Advocate appearing on behalf of the State/respondents no. 1 to 5, made the following submissions :-

I. Convict/respondent no.6-Hari Shankar was released after his application under Form ''A' was accepted by the State Government, with the consent of His Excellency of Governor under Section 432 Cr.P.C., under the conditions mentioned in Section 8 of the Act, 1938 on 21.12.2019.

II. Vide Government Order dated 01.08.2018, the policy has been framed for releasing the convicted prisoner prematurely. However, in the present case, no benefit of the Government Order dated 01.08.2018 has been provided to the respondent no.6 but he has been released under the license as provided to Form ''A'.

III. The State, while taking decision to release the respondent no.6, had considered the objection moved by the petitioner and after adopting the due process as provided under Government Order dated 06.09.2004, released the respondent no.6 prematurely.

IV. Respondent no.6 was released as per the Government Order dated 06.09.2004, which was issued by the State Government under the provisions of Section 432 Cr.P.C. read with paragraphs 195, 196, 197 and 198 of the U.P. Jail Manual and under the provisions of Act, 1938.

V. The concerned Superintendent of Police and the District Magistrate gave positive report in favour of respondent no.6. However, any breach of the conditions of the license by the respondent no.6, the order for release be cancelled.

VI. Hence, the instant writ petition is liable to be dismissed.

(C) Analysis

(13) The Governor of Uttar Pradesh, while exercising powers under Article 161 of the Constitution of India, issued a Government Order dated 01.08.2018, which relates to a policy for prisoners in respect of pre-mature release on occasion of Republic Day every year. Section 3 of the Government Order dated 01.08.2018 deals with ''Reserved Category'. Sub-section (viii) and (x) of Section 3 of the Government Order dated 01.08.2018 are reproduced as under :-

"(viii) vkthou dkjkokl ls nfZZ.Mr ,sls fl)nks"k cUnh ftUgs [email protected]`g vodk'k ds nkSjku fdlh vijk/k ds fy;s nks"kh Bgjk;k x;k gksA

(x) ,sls fl)nks"k canh ftUgs ,d ls vf/kd vijkf/kd izdj.kks esa vkthou djkokl ds n.M ls nf.Mr fd;k x;k gSA

(14) From perusal of the aforesaid provisions, it is crystal clear that Sub-section (viii) and (x) of Section 3 of the Government Order dated 01.08.2018 restricted to release such life-imprisonment prisoners prematurely, who has been held guilty/convicted for any offence during the period of parole/home leave and also restricted to release such life-imprisonment prisoners prematurely, who have been convicted and sentenced to more than one criminal offences for life imprisonment.

(15) The contention of the learned Counsel for the petitioner is that since the respondent No.6-Hari Shanker was convicted and sentenced for life imprisonment twice, hence he was not entitled to be released prematurely as per sub-section (viii) and (x) of Section 3 of the Government Order dated 01.08.2018 but contrary to the aforesaid Government Order dated 01.08.2018, the respondent no.6-Hari Shanker was released prematurely by means of the impugned order without considering the aforesaid Government Order dated 01.08.2018.

(16) Per contra, learned Counsel for the respondents has supported the impugned order and have contended that respondent no.6 was released as per the Government Order dated 06.09.2004, which was prevalent at the time of conviction of the respondent no.6, hence the contention of the petitioner that Government Order dated 01.08.2018 has not been considered while passing the impugned order of release of the respondent no.6 prematurely has no substance and the same is liable to be rejected.

(17) This Court has perused the photocopy of the record produced by the learned Additional Government Advocate during the course of final hearing of the case. It transpires from perusal of the records that release of the convict/respondent no.6 prematurely was commenced on the application of the convict/respondent no.6, which is reproduced as under :-

Lksok esa]

Jh eku ofj"B vf/k{kd

dsUnzh; dkjkxkj cjsyhA

}kjk& pdzkf/kdkjhA

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lfou; fuosnu djuk gS fd izkFkhZ gjh'kadj iq= jktkjke] fuoklh&HknsHkj gky&jktiqj [kxZ Fkkuk& eNjsgVk] tuin&lhrkiqj ekuuh; U;k;ky; vij l= U;k;k/kh'[email protected] Vzz~Sd dkVZ la[;k&3] lhrkiqj }kjk fnukad &09-07-2004 dks v0la0&[email protected]] ,l-Vh-ua0&[email protected]] /kkjk&147] 148] [email protected] vkbZ-ih-lh- ds okn esa vkthou dkjkokl ds n.M ls nf.Mr fd;k x;k gSA esjs }kjk lh0vkj0ih0lh0 dh /kkjk &433, ds vUrxZr 14 o"kZ vifjgkj ltk ls vf/kd ltk Hkksx yh x;h gSA eS le;iwoZ fjgkbZ dk ik= gks x;k gwWA esjk dksbZ vfHkHkkod ugha gSA

vr% Jheku th ls djc) izkFkZuk gS fd esjk vfHkHkkod ftyk izkcs'ku vf/kdkjh] lhrkiqj dks fu;qDr dj esjk QkWeZ , izsf"kr djus dh d`ik djsaA

ftyk izkscs'ku vf/kdkjh

lhrkiqj dks

fu'kkuh vaxqBk IkzkFkhZ

Ikzekf.kr

vxzlkfjr gjh'kadj iq= jktkjke

ofj"B vf/k{kd tsyj lh0Vh0 ua0& 47572

dsUnzh; djkxkj dsUnzh; dkjkxkj dsUnzh; dkjkxkj

cjsyh cjsyh cjsyh

(18) It appears that on the aforesaid application of the convict/ respondent no.6 showing his conviction in Sessions Trial No. 78/2003, Form ''A' was issued by the competent authority to the respondent no.6, wherein at page no.2 also the Senior Superintendent, Central Jail, Bareilly showed the conviction of the respondent no.6 in Sessions Trial No. 78 of 2003. In Jail Report dated 07.12.2017, the Senior Superintendent, Central Jail, Bareilly also showed the conviction of the respondent no.6 in Sessions Trial No. 78 of 2003.

(19) It also transpires from the record that the Superintendent of Police, Sitapur, on the basis of the following report of its subordinate authority dated 11.05.2018, had not recommended to release the respondent no.6 prematurely.

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fuosnu gS fd vfHk- eq-v-la- [email protected] /kkjk 147] 148] 149] 452] 302 I.P.C. esa cUnh tks isjksy ij NqVdj ?kj vk;k Fkk vfHk- }kjk iqu% vijk/k dkfjr fd;k x;k tks eq-v-l- [email protected] /kkjk 147] 148]149] 302 I.P.C. esa iathd`r gSA vfHk- tsy esa gSA le; iwoZ fjgkbZ gksus ij iqu% vijk/k dkfjr dj ldrk gSA vr% fjgkbZ dk ?kksj fojks/k fd;k tkrk gSA lLrqfr ugh dh tkrh gSA

(20) The record further reveals that the Committee so constituted under the Chairmanship of District Magistrate, Sitapur to consider the issue of release of the respondent no.6 prematurely had only considered the life imprisonment awarded to the respondent no.6 in Sessions Trial No. 78 of 2003 arising out of Case Crime No. 267 of 2002, under Sections 147, 148, 302/149 I.P.C. and had not considered the conviction and sentence of life imprisonment granted to the convict/respondent no.6 in Sessions Trial No. 187 of 1991. After considering the life imprisonment awarded in Sessions Trial No. 78 of 2003 to respondent no.6, the aforesaid Committee recommended the release of the respondent no.6 prematurely vide report dated 20.06.2018. The Probation Board, vide its resolution dated 26.06.2019, while considering the fact that the respondent no.6 was convicted and sentenced in Sessions Trial No. 78 of 2003 and considering the recommendation of the Committee headed by District Magistrate dated 20.06.2018, recommended to release the respondent no.6. Thereafter, on 19.09.2019, the Probation Board had again considered the issue of release of the respondent no.6 prematurely and after due consideration, recommended to release the respondent no.6 prematurely. Thereafter, impugned order dated 29.11.2019 has been passed for releasing the respondent no.6 prematurely.

(21) In National Highways Authority of India and others Vs. Madhukar Kumar and others (Civil Appeal No (s) 11141 of 2018, decided on 23.09.2021), the Apex Court observed that undoubtedly, in India, every State action must be fair, failing which, it will fall foul of the mandate of Article 14 of the Constitution of India.

(22) In the instant case, from perusal of the series of events, as mentioned hereinabove, in regard to consideration of the prayer of the respondent no.6 for premature release, it transpires that although the convict/respondent no.6 was convicted and sentenced to undergo life imprisonment in two murder cases i.e. Sessions Trial No. 187 of 1991 and Sessions Trial No. 78 of 2003, against which separate criminal appeal has been preferred by the respondent no.6 and the same are still pending before this Court but while passing the impugned order dated 29.11.2019, it appears that the factum of conviction and sentence of the respondent no.6 in the the aforesaid two murder cases have not been considered by the State Government and only the factum of conviction and sentence of respondent no.6 in Sessions Trial No. 78 of 2003 has been considered by the State Government.

(23) At this juncture, it is trite law that the prerogative of the executive is subject to the rule of law and fairness in state action embodied in Article 14 of the Constitution. In State of Haryana v. Mohinder Singh : (2000) 3 SCC 394, the Apex Court has held that the power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. The Apex Court held thus:

"9. The circular granting remission is authorized under the law. It prescribes limitations both as regards the prisoners who are eligible and those who have been excluded. Conditions for remission of sentence to the prisoners who are eligible are also prescribed by the circular. Prisoners have no absolute right for remission of their sentence unless except what is prescribed by law and the circular issued thereunder. That special remission shall not apply to a prisoner convicted of a particular offence can certainly be a relevant consideration for the State Government not to exercise power of remission in that case. Power of remission, however, cannot be exercised arbitrarily. Decision to grant remission has to be well informed, reasonable and fair to all concerned."

(24) In Sangeet v. State of Haryana : (2013) 2 SCC 452, the Apex Court reiterated the principle that the power of remission cannot be exercised arbitrarily by relying on the decision in Mohinder (supra).

(25) In Rajan v. Home Secretary, Home Department of Tamil Nadu : (2019) 14 SCC 114, the Apex Court has made the following observations:

"18. The petitioner would, however, rely on the unreported decision of this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018 SCC OnLine SC 2012] , to contend that this Court may direct the authorities to release the petitioner forthwith and that there is no point in directing further consideration by the State as the petitioner had already undergone over 30 years of sentence and with remission, over 36 years. The order passed by this Court in Ram Sewak [Ram Sewak v. State of U.P., 2018 SCC OnLine SC 2012] , is obviously in the facts of that case. As a matter of fact, it is well settled by now that grant or non-grant of remission is the prerogative to be exercised by the competent authority and it is not for the court to supplant that procedure. Indeed, grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate Government in terms of Sections 432 and 433 CrPC, to be exercised by the competent authority after taking into account all the relevant factors, such as it would not undermine the nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government.

.....

20. Thus understood, we cannot countenance the relief claimed by the petitioner to direct the respondents to release the petitioner forthwith or to direct the respondents to remit the remaining sentence and release the petitioner. The petitioner, at best, is entitled to the relief of having directions issued to the respondents to consider his representation dated 5-2-2018, expeditiously, on its own merits and in accordance with law. We may not be understood to have expressed any opinion either way on the merits of the claim of the petitioner. The fact that the petitioner's request for premature release was already considered once and rejected by the Advisory Board of the State Government, in our opinion, ought not to come in the way of the petitioner for consideration of his fresh representation made on 5-2-2018. We say so because the opinion of the Advisory Board merely refers to the negative recommendation of the Probation Officer, Madurai and the District Collector, Madurai. The additional reason stated by the State Government seems to be as follows:

"(4) The proceedings of the Advisory Board held on 20-1- 2010 is as follows:

(i) The case is heard and examined the relevant records. The accused is a Srilankan National and lodged at Special 13 Camp at Chengalpet before the commission of this grave offence.

(ii) The Probation Officer, Madurai and the District Collector, Madurai have not recommended the premature release.

(iii) Also this prisoner has not repented for his act.

(iv) The plea for premature release is ''Not Recommended'.

(5) The Government after careful examination accept the recommendation of the Advisory Board, Vellore and the premature release of Life Convict No. 23736, Rajan, s/o Robin, confined in Central Prison, Vellore is hereby rejected."

With the passage of time, however, the situation may have undergone a change and, particularly, because now the claim of the petitioner for premature release will have to be considered only in reference to the sentence of life imprisonment awarded to him for the offences under Section 302 (3 counts) and Section 307 (4 counts) of IPC, respectively."

(emphasis supplied)

(26) Recently, in Ram Chander Vs. The State of Chhattisgarh & Anr (Writ Petition (Crl) No 49 of 2022, decided on 22.04.2022), the Apex Court, after taking note of the aforesaid dictum as well as Laxman Naskar v. State of West Bengal : (2000) 7 SCC 626, observed that it makes clear that the Court has the power to review the decision of the government regarding the acceptance or rejection of an application for remission under Section 432 of the Cr.P.C. to determine whether the decision is arbitrary in nature. The Court is empowered to direct the government to reconsider its decision.

(27) Keeping in mind the aforesaid ratio laid down by the Apex Court, this Court finds that while passing the impugned order of premature release of the respondent no.6 dated 29.11.2019, the factum of conviction and sentence of life imprisonment awarded to respondent no.6 by the trial Court in Sessions Trial No. 187 of 1991 arising out of Case Crime No. 171 of 1990, under Sections 147, 148, 452, 149, 302 I.P.C., Police Station Machhrehta, District Sitapur, has not at all been considered by the State. Moreso, the report of the Superintendent of Police, Sitapur, as referred to hereinabove, has also not been considered. Hence, this Court is of the opinion that as the aforesaid action in not considering the life imprisonment awarded to the respondent no.6 in Sessions Trial No. 187 of 1991 arising out of Case Crime No. 171 of 1990, under Sections 147, 148, 452, 149, 302 I.P.C., Police Station Machhrehta, District Sitapur, on the part of the State appears to be arbitrary, therefore, it is a fit case to remit the case of the respondent no.6 for premature release to the State Government for re-consideration.

(D) Conclusion

(28) Resultantly, the instant writ petition is allowed in part. The impugned order dated 29.11.2019 is hereby quashed. The issue of premature release of the respondent no.6 is remitted to the State Government for re-consideration, on its own merits and in accordance with law, after considering all the relevant factors, such as nature of crime committed and the impact of the remission that may be the concern of the society as well as the concern of the State Government and also life imprisonment awarded by the trial Court in two murder cases i.e. in Sessions Trial No. 187 of 1991 and Sessions Trial No. 78 of 2003, expeditiously, preferably, within a period of three months from today.

(29) For the period of three months or till fresh decision on remand, whichever is earlier, the respondent no.6-Hari Shanker shall not be taken into custody to serve the sentence as ordered by the trial Court.

(30) It is clarified that this Court has not expressed any opinion either way on the merits of the claim of the respondent no.6.

(31) For the facts and circumstances of the case, there is no order as to costs.

(32) The petitioner as well as the learned Additional Government Advocate shall produce/sent a certified copy of this order to respondent no.1-Principal Secretary (Home), Government of U.P., Lucknow, for necessary information and its compliance forthwith.

(Mrs. Saroj Yadav, J.)        (Ramesh Sinha, J.)
 

 
       Order Date :  25th May, 2022
 
       Ajit/-