Satya Prakash Tiwari vs State Of U.P. And 7 Others
2023 Latest Caselaw 8891 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?(AFR)
 
Reserved on 29.09.2022
 
Delivered on 27.03.2023 
 
Court No. - 46
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 11743 of 2022
 
Petitioner :- Satya Prakash Tiwari
 
Respondent :- State Of U.P. And 7 Others
 
Counsel for Petitioner :- V.K. Baranwal,Akhilesh Chandra Shukla,Saurabh Chaturvedi,Sr. Advocate
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Rajiv Gupta,J.

Heard Shri I. K. Chaturvedi, assisted by Shri V. K. Baranwal, for the petitioner, Shri Akhilesh Chandra Shukla, learned counsel for the respondent No. 8 and Mr. Pankaj Saxena, learned A.G.A. for the State.

The instant writ petition seeks a writ of certiorari for quashing of the order dated 28.05.2022 passed by respondent no.2, which has granted remission to respondent no.8 and has ordered for his release.

The 8th respondent, a life convict, was convicted in Sessions Trial No. 807 of 2000 under Section 304/34 and 307/34 IPC arising out of Case Crime No. 158 of 2000, Police Station-Sarai Inayat, District-Allahabad and was sentenced to life imprisonment for the offence under Section 302/34 IPC and for three years rigorous imprisonment for the offence under Section 307/34 IPC.

The remission granted to the 8th respondent has been challenged by the petitioner on the ground that the respondent is a hardened criminal and that a history-sheet was opened in his name being No. 7A at Police Station-Sarai Inayat, District- Allahabad.

It is also contended that the 8th respondent was brought from Fatehgarh Central Jail, District-Farrukhabad on 26.07.2010 for being produced in Court. He, however, fled from custody and a First Information Report was lodged on the same day at Police Station- Colonelganj, District-Allahabad, giving rise to Case Crime No. 319 of 2010 under Sections 223/224 of IPC. He was, arrested on the same day from Prayag Railway Station. After investigation, a charge-sheet was filed by the Police.

It is next contended that apart from the fact that the 8th respondent is a hardened criminal, he has been repeatedly transferred from one jail to another on account of his bad behaviour. It is averred in the writ petition that initially he was lodged in Central Jail Naini, from where he was transferred to Central Jail Fatehgarh, District Farrukhabad and from there to District Jail Bareilly and finally he was transferred to District Jail, Rampur.

The next contention is that remission/premature release has been obtained by the 8th respondent by concealing material facts in connivance with his brothers. One brother, namely Pawan Mishra is Head Jail Warden, in District-Bagpat while another brother, Vimal Mishra, is a Jail Warden in District Agra.

It is lastly submitted by learned counsel for the petitioner that remission has been granted to the 8th respondent placing reliance upon a Government Order 564/218/1106/22.02.2018-07G/2018 dated 01.08.2018. In view of Clauses 2(b) and 3(ix) of the GO, the 8th respondent could not have been granted remission. Clause 3(ix) provides that a convict who has absconded from custody is not entitled to remission. The order dated 28.05.2022, whereby the Governor is stated to have granted remission/commutation in exercise of power under Section 160 of Constitution of India is, therefore, clearly vitiated and is liable to be set aside.

The contention of Shri Akhilesh Chandra Shukla, learned counsel appearing for the 8th respondent is that the writ petition itself is not maintainable and that the petitioner has no locus to challenge the order impugned. He is not the first informant and is only the nephew of the first informant and a practising lawyer. The immediate relatives of first informant and the deceased in the crime for which the 8th respondent has been convicted have not come forward. The writ petition is based on mala fides. After the 8th respondent was released, illegal gratification to the tune of Rs. 5,00,000/- was demanded by the petitioner and on non-payment of the same, the instant writ petition has been filed.

On the merits of the writ petition, it has been stated that the remission granted to the 8th respondent is not hit by Clause 3(ix) of the policy framed by the Government for granting premature release/remission as he did not abscond from jail. He has at best absconded from judicial custody, even if the case of the petitioner is to be accepted in toto. Therefore, the guidelines framed by the Supreme Court and the State Government have been followed fully.

Moreover, the 8th respondent has already undergone 16 years of incarceration without remission which period with remission comes to almost 21 years.

It is next contended that there is no material on record to show that the contesting respondent was transferred from one jail to the other on account of bad conduct or behaviour. It is reiterated that the conduct of the 8th respondent has always been above board.

It is lastly submitted that the case of the petitioner having absconded when he was brought to the Civil Court Allahabad to be produced before the Court is a false and fabricated case which has been manipulated by the petitioner in connivance with the police. The contesting respondent did not abscond. On the contrary, the police personnel accompanying him left him unattended and thereafter, filed the false FIR against him.

In the counter affidavit filed, it has additionally been averred that the criminal appeal filed by the petitioner against his conviction and sentence was rendered infructuous after remission/commutation was granted to the contesting respondent.

In rejoinder, the contention of the learned counsel for the petitioner is that the petitioner is the nephew of the first informant. After the death of the first informant, it is the petitioner who has been doing pairavi in all the cases pertaining to the murder of the Jay Prakash Tiwari, the deceased in Case Crime No. 158 of 2000 and has continued to do pairavi even in the criminal appeals filed by the convicts against their conviction. It is also stated that the son of the deceased was a minor at the time of incident.

In any case, the rejoinder affidavit in the instant writ petition has been sworn by the son of the first informant and therefore, the objection regarding the maintainability of the writ petition is liable to be rejected.

It is additionally submitted that the relevant material regarding at least 09 other cases having been registered against the contesting respondent and the fact that he absconded from judicial custody have not been mentioned in the records that were placed before the concerned authority while the application for the remission/commutation was being considered.

He has also placed reliance upon paragraph 138 of the Jail Manual which provides for transfer of a prisoner from one Jail to another. The said paragraph provides that the reason for transfer should always be communicated to the District Magistrate and the Superintendent of the District Jail to which the prisoner is transferred and should also be recorded on the history ticket of the prisoner concerned. Relying upon this provision, it has been submitted that no history ticket was prepared in the case of the petitioner which also shows the mala fides and the connivance of the brothers of the 8th respondent who are themselves Jail Wardens.

Learned AGA has produced the original record of the proceedings wherein remission/commutation has been granted to the 8th respondent, pursuant to the direction issued by this Court vide order dated 20.09.2022.

We have considered the submissions of the learned counsel for the parties and have perused the record and also perused the original record produced by the learned AGA.

Perusal of the GO of 2018, where under remission has been granted, provides that all prisoners who do not fall within the prohibited categories, as provided under Clause 3 and its sub-clauses, and who have completed 16 years of incarceration without remission, and 20 years of incarceration including remission are liable to be granted remission.

Clause 3(ix) provides that prisoners who are life convicts or are convicts and have absconded during their period of incarceration fall under the prohibited category meaning thereby, that they are not entitled for remission/commutation.

The issue which arises for consideration is whether 8th respondent absconded from Jail or whether the term jail would also include within it, the period when a prisoner is being transported for whatever reason.

It is not in dispute that the contesting respondent at the relevant point of time was a life convict and was serving out his sentence. He was brought to Allahabad from Fatehgarh Central Jail, Farrukhabad to be produced in Court in a case, where-from he is alleged to have absconded. In this regard, it is relevant to refer to Section 55 of the Prisons Act, 1894, which reads as follows:-

"55. Extramural custody, control and employment of prisoners. - A prisoner, when being taken to or from any prison in which he may be lawfully confined, or whenever he is working outside or is otherwise beyond the limits of any such prison in or under the lawful custody or control of a prison officer belonging to such prison, shall be deemed to be in prison and shall be subject to all the same incidents as if he were actually in prison."

This provision is a complete answer to the submission made by learned counsel for the respondents as according to it, the 8th respondent would still to be deemed to be in jail at the moment he absconded. The submission of learned counsel for the petitioner is, therefore, without substance and is specifically repelled.

We have closely examined the original record produced by learned AGA.

The fact which emerges from the perusal of this original record is that the Jail Report, signed by the Medical Officer, District Jail, Rampur and the Chairman of the District Prisoners Committee, in column 10, mentions that that no other case is pending against the contesting respondent. The information provided in column 10 is, therefore, patently incorrect because it is admitted by the 8th respondent that as many as 09 other cases are registered against him and are pending before various Courts. In his counter affidavit, the 8th respondent has averred that these cases are fabricated and have remained pending over a long period as no one has come forward to depose in favour of the prosecution.

It would also be relevant to note that no history ticket appears to have been prepared, as is provided under Paragraph 138 of the Jail Manual. There is also no mention thereof in the original record produced before us. In fact, the Jail Report on record states that the contesting respondent is entitled to remission in view of para 2(b) of the Government Order dated 01.08.2018.

There is yet another report in Tabular form which purports to be a list of convicts entitled to be released on the occasion of Republic Day in pursuance of Government Order 564/218/1106/22.02.2018-07G/2018 dated 01.08.2018. Even this report states that the contesting respondent is entitled for remission in view of Clause 2(b) of the GO concerned. This report requires signature of 04 persons including the Deputy Inspector General of Prisons apart from junior officials. However, this document has not been signed by the Deputy Inspector General of Prisons.

There is also a certificate issued by the Superintendent District Jail Rampur in the original record produced which is undated. Column 6 of this Certificate is revealing. This column, in effect, seeks information regarding the restriction contained in Clause 3(ix) of the GO. The certificate states that the prisoner Kamal Mishra did not abscond during the period of his incarceration. The facts available on the record of this petition render this report, patently false.

Therefore, remission has been granted to 8th respondent, a life convict, on the basis of incomplete and false material having been placed for consideration. The fact that as many as 09 other cases were pending against the contesting respondent and also the fact that he has been charge-sheeted in a case under Section 223/224 of IPC, do not find mention in the jail reports. The failure to report these two aspects in the Jail reports can only be said to be purposive concealment.

There is yet another aspect of this issue. As already observed, the remission/commutation has been granted by the State Government on account of false information insofar as the 8th respondent having absconded is concerned and also the fact that report states that no criminal case is pending against the contesting respondent, contrary to the averment in the writ petition and admitted in the counter affidavit and also because information which was relevant had been withheld by the jail authorities. At least one of the documents that has been relied upon for granting remission to the contesting respondent has not been signed by the Deputy Inspector General of Prisons, although, the form in which the information has been submitted clearly requires him to be one of the co-signatories. It cannot be said that the Deputy Inspector General of Prisons was not required to sign the document. The Jail Certificate which has been relied upon to grant remission to the contesting respondent also furnishes false information insofar as it mentions that the contesting respondent, the convict, never absconded during the period of his incarceration.

Under the circumstances, we are constrained to hold that remission has been granted to the contesting respondent on the basis of incomplete and false information provided by the various jail authorities. The State Government has manifestly granted remission/commutation to the 8th respondent relying upon the reports which state that the 8th respondent is entitled to said release under Clause 2(b) of the relevant GO of 2018.

We would also like to refer to the decision of the Apex Court in Ram Chander Vs. State of Chhattisgarh & Another, AIR 2022 SC 2017. Paragraph 12 of this judgmet reads as follows:-

"12. While a discretion vests with the government to suspend or remit the sentence, the executive power cannot be exercised arbitrarily. 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 Mohinder Singh (supra), this Court has held that the power of remission cannot be exercised arbitrarily. The decision to grant remission should be informed, fair and reasonable. The 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."

We also do not find any substance in the submission made by counsel for the respondent on the question of locus of the petitioner to maintain the writ petition. The petitioner is definitely a close relative of the deceased and the nephew of the first informant in Case Crime No. 158 of 2000. He has also appeared in the witness box as PW No.2 during trial. He is also said to have been doing pairavi in the criminal cases even up to the High Court even in pending appeal which fact is not denied.

There is substance in the contention of learned counsel for the petitioner that it cannot be said that the petitioner alone is challenging the impugned order because even the son of the deceased who was minor at the time of incident has supported the writ petition having sworn the rejoinder affidavit which is filed on record.

For the foregoing reasons, in our considered opinion, the impugned order granting remission/commutation to the 8th respondent cannot be sustained.

The writ petition is liable to be allowed and is hereby allowed. The impugned order dated 28.05.2022 is hereby set aside.

No order as to costs.

The original record produced by learned AGA be returned to him forthwith after obtaining his signatures on the order-sheet evidencing receipt thereof.

In the body of the judgment, we have observed that wrong and incomplete information was provided by the jail authorities, on the basis whereof, remission was granted to the contesting respondent, Kamal Mishra, although he was not entitled for the same, and this act of concealment and falsehood appears to be manifestly purposive.

It, therefore, appears fit and proper to direct the respondent no.1, Principal Secretary, Prison Administration and Reform, Section 2, U.P. Government, Lucknow, to institute an enquiry to identify and to take appropriate action against the person(s) responsible for such falsehood and concealment. This is being directed as the Apex Court has held that: "Decision to grant remission has to be well-informed, reasonable and fair to all concerned."

Order Date :- 27.3.2023

Aditya Tripathi