MOHD. HANIF v. STATE OF UTTAR PRADESH — 1984 DIGILAW 136 (ALL)

R. A. MISRA, J. ( 1 ) THIS writ in the nature of Habeas Corpus has been moved by Mohd. Manif for his release. ( 2 ) THE petitioner Mohd, Hanif was convicted under Section 302 of I. P. C. and sentenced to undergo imprisonment for life on 31st of July 1968. The State Government in exercise of its powers under Section 2 of U. P. Prisoners Release on Probation Act, 1938, (hereinafter called the Act) permitted the petitioner to be released under a license and in pursuance of the State Governments order under Section 2 of the Act, the petitioner was actually released on 7th of January 1978. The District Magistrate, Barabanki, vide his letter dated 22nd of February 1978 (Annexure-CA-l) requested the State Government to withdraw its order dated 7. 8. 1978 and revoke the license for the release of the petitioner. The District Magistrate thereafter received letter No. 1396pj22- 800:77 dated March 1978 from the Deputy Secretary, Homes, U. P. Government, and in compliance thereof he issued notices to the petitioner under rule 10 of D. P. Prisoners Release on Probation Rules (hereinafter called the Rules ). The petitioner failed to appear in response to the notice under rule 10 of the Rules. The District Magistrate then vide his letter dated 5th of December 1978 (Annexure-3 to the counter affidavit) recommended the revocation of the license. The State Government has vide. its order dated 29th of May 1980 revoked the license on the ground that the licences has breached condition no. 5 of the license. The aforesaid order has been communicated to the District Magistrate vide letter dated 30th May 1980 (Annexure-l to the counter affidavit ). The petitioner has been arrested on 22nd of November 1982 and since then he is in jail. The petitioner then moved Writ Petition No. 1919 of 1983 in this court which was dismissed as it was not pressed. Hence the present petition. ( 3 ) SECTION 2 of the Act empowers the Government to release a convict by license on conditions to be imposed by it. It reads as below: S. 2. The petitioner then moved Writ Petition No. 1919 of 1983 in this court which was dismissed as it was not pressed. Hence the present petition. ( 3 ) SECTION 2 of the Act empowers the Government to release a convict by license on conditions to be imposed by it. It reads as below: S. 2. POWER OF GOVERNMENT OF RELEASE BY LICENCE ON CONDITIONS IMPOSED BY ":-Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure 1898, where a person is confined in prison under a sentence of imprisonment, and it appears to the State Government from his antecedents and his conduct in the prison. that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner or such secular institution or such society belonging to the same religion as the prisoner as may be recognized by the State Government for the purpose, provided such other person, institution or society is willing to take charge of him. Section 6 of the Act empowers the State Government to revoke a license. It says as under: - S. 6-POWER TO REVOKE LICENCE: (1) The State Government may at any time for reasons to be recorded in writing revoke a licence granted under the provisions of Section 2: Provided that no licence shall be revoked on the ground of the breach of a condition of the licence without giving an opportunity to the person concerned to represent his case before the District Magistrate of the district in which he is residing at the time. (2) An order of revocation passed under the provision of sub-section (1) shall specify the date-with effect froth which the licence shall cease to be in force, and shall be served, in such manner as the State Government may by rule prescribe, upon the person whose, licence has been revoked. Rule 10 of the Rules Jays down the procedure which is to be followed by the District Magistrate for recommending revocation of a licence. Rule 10 of the Rules Jays down the procedure which is to be followed by the District Magistrate for recommending revocation of a licence. It can fruitfully be extracted hereunder: R. 10-REVOCATION:(1) The District Magistrate on receiving information from the guardian or any other source, of breach by the licensee of the conditions of the licence, shall cause a notice to be served on the Licence to show cause why his licence should not be revoked. If the licensee presents himself in response to the notice, then after hearing him personally, and, if he does not present himself then without hearing him, the District Magistrate shall consider whether or not to recommend to the State. Government for the revocation of the prisoners licence and shall act accordingly. While making his recommendations to Government for revocation of the licence, the District Magistrate shall state the condition or conditions which, in his opinion, have been breached by the licensee and how they have been breached. (2) In case the District Magistrate decides to recommend the revocation of the licence, he may, at the same time if he considers that the licensee is unfit to be allowed to remain at large under the licence, order his arrest and detention in the prison pending the receipt of the orders of the State Government. (3) The State Government shall on receipt of the District Magistrates recommendation pass such orders as it may deem proper. (4) An order of revocation of licensee shall be in Form E and should be served upon the licensee if detained in prison by the Superintendent of the Prison, and, if not detained in prison, by the officer in charge of police station. (5) The order of revocation shall be noted on the licence and in the register maintained by the District Magistrate and the Superintendent. (5) The order of revocation shall be noted on the licence and in the register maintained by the District Magistrate and the Superintendent. (6) If a prisoner released on licence under the Act escapes from the supervision or authority of a guardian or fails to return to person on revocation of his licence, the guardian shall immediately inform the District Magistrate and the Superintendent and report to the nearest police station, and action shall be taken against the prisoner as in a cognizable case ( 4 ) IN the instant case the petitioner was admittedly released under a licence by the State Government in exercise of its power under section 2 of the Act and the licence so granted has admittedly been revoked in exercise of State Governments power under Section 6 of the Act. Section 6 of the Act empowers the State Government to revoke a licence at any time for reasons to be recorded in writing. The only reason given by the State Government in its order dated 29th May 1980 for revoking the petitioners licence is that he has committed breach of condition no. 5 of the licence granted to him Condition No. 5 of the licence as given in Form D of the rules is He shall not commit whether Part A States or Part B States any criminal offence punishable by any law for the time being in force in Part A State or any part thereof. So licence of a licensee can be revoked if he commits any criminal offence punishable by any law for the time being in force because by doing so he would be committing breach of condition no. 5 of the licence. ( 5 ) THE District Magistrate has sent two letters-one dated 22nd February 1978 and second dated 5th December 1978 recommending the revocation of the petitioners licence. In the first letter dated 22nd February 1978 he has referred the incidents which took place prior to the release of the petitioner on licence and so they were not material for considering whether the petitioner committed breach of condition no. 5 of the licence. Moreover no notice as contemplated under rule 10 was given to the petitioner before making the recommendation for revocation of licence on 22nd February 1978. 5 of the licence. Moreover no notice as contemplated under rule 10 was given to the petitioner before making the recommendation for revocation of licence on 22nd February 1978. The State Government, therefore, rightly refused to act on the aforesaid recommendation and the State Government appears to have asked the District Magistrate. to comply with the mandatory provisions of Rule 10 before making a recommendation for revocation of the licence, and as mentioned by the District Magistrate in his letter dated 5. 12. 1978, he in compliance to the direction of the State Government issued notices to the petitioner under Rule 10 of the Rules. The District Magistrate in his letter dated 5th of December 1978 says that in compliance to the State Governments directions be sent notice under rule 10 to the petitioner but he failed to appear. Two cases under section 25 of Arms Act and Section 5 of the Explosive Act were registered on 1. 2. 78 against the petitioner after his release on licence. The District Magistrate recommended the revocation of petitioners licence vide his letter dated 5th of December 78. To sum up in his letter dated 5th of December 7 the District Magistrate has recommended the revocation of the petitioners licence on two grounds: 1. That in compliance to the State Governments direction the District Magistrate issued notices under rule 10 of the rules to the petitioner but he failed to appear. 2. That two cases one under section 25 of Arms Act and the other under section 5 of Indian Explosive Act have been registered against the petitioner in Katwah Barabaji on 1. 2. 1978 after his release on probation. ( 6 ) A copy of the notice so issued by the District Magistrate to the petitioner is Annexure-2 in Writ Petition No. 1919 of 83. This notice also says that two cases-one under Section 25 Arms Act and the other under section 5 of Indian Explosive Act have been registered against the licence, so he was required to show cause why the licence granted to him be not revoked. In compliance to the aforesaid notice the petitioners father submitted his reply and the petitioner also sent his reply by post. The letter dated 5. 12. In compliance to the aforesaid notice the petitioners father submitted his reply and the petitioner also sent his reply by post. The letter dated 5. 12. 78 of the District Magistrate shows that the explanations offered by the petitioner (received by post) as well as the explanations offered be the petitioners father have not at all been considered. The District Magistrate simply says in his letter dated 5. 12. 78 that the petitioner has failed to appear in response to the notice. Rule 10 of the Rules clearly provides that if the licensee presents himself in response to the notice then after hearing him personally, and, if he does not present himself, then without hearing him, the District Magistrate shall consider whether or not to recommend to the State Government for the revocation of the prisoners licence and shall act accordingly. So in all fairness the District Magistrate was required to consider the explanations offered by the petitioner and his father before making the recommendation. The rule further says that while making his recommendation the District Magistrate shall state the condition or conditions which in his opinion have been breached by the licensee and how they have been breached. In his letter dated 5. 12. 78 the District Magistrate does not say that the petitioner has committed breach of any condition of licence and as to how any such condition has been breached. So the District Magistrate has not complied with the provisions of rule 10 of the rules. Moreover if we assume that. by saying that two criminal cases have been registered against the prisoner the District Magistrate meant to say that condition No. 5 has been breached, then simply registration of two criminal cases would not amount to breach of condition No. 5 of the licence, until and unless the District Magistrate on the basis of some material believes that the prisoner has committed criminal offence after his release on licence. As discussed above the District Magistrate does not say in his letter of recommendation dated, 5. 12. 78 that the petitioner has committed any criminal offence. He simply says that two criminal cases have been registered against the petitioner. Registration of crime alone does not amount to commission of criminal offence by the petitioner. As discussed above the District Magistrate does not say in his letter of recommendation dated, 5. 12. 78 that the petitioner has committed any criminal offence. He simply says that two criminal cases have been registered against the petitioner. Registration of crime alone does not amount to commission of criminal offence by the petitioner. Admittedly in this case a final report has been submitted by the Investigating Officer after investigation of the aforesaid two cases which were registered against the petitioner. The respondents version is that the Investigating Officers were in collusion with the petitioner and did not investigate the cases, so a Revision has been filed and admitted in the court of Sessions against the order of Magistrate concerned accepting the final reports. The fact that a Revision has been admitted does not in any way improve the respondents case. The fact remains that final reports have been submitted and admittedly the. cases have not been properly investigated. The learned counsel for the State has failed to produce any material before us which could have been considered by the District Magistrate to satisfy himself that the petitioner committed the criminal offences on 1. 2. 78. The only material is the registration of two criminal cases in Police Station Kotwali Barabanki and as observed above mere registration of criminal cases at the Police Station does not amount to commission of offence by the person against whom the cases are registered. The cases are to be investigated according to law and the District Magistrate was required to apply his mind on the subject whether the criminal offences have been committed by the licensee. It is obvious that the District Magistrate has not applied his mind on the subject whether the licensee has committed criminal offences and thereby breached condition No 5 of the licence. He simply proceeded on the assumption that mere registration of the criminal cases amounts to breach of a condition of licence and there he has grievously erred. In the result the District Magistrate has not complied with the mandatory provisions of rule 10. He has not applied his mind whether the licensee has committed criminal offences and breached condition No. 5. There was no material before the State Government to believe that the licensee committed breach of condition No. 5. In the result the District Magistrate has not complied with the mandatory provisions of rule 10. He has not applied his mind whether the licensee has committed criminal offences and breached condition No. 5. There was no material before the State Government to believe that the licensee committed breach of condition No. 5. So the revocation of the petitioners licence is bad in law and shall be quashed and the petitioner shall not further be detained in pursuance of the revocation order. ( 7 ) THE petition is allowed. The order dated 29. 5. 1980 passed by the State Government under Section 6 of the D. P. Prisoners Release on Probation Act is hereby quashed. The respondents are directed not to detain him in custody in pursuance of the aforesaid revocation order and to release him forthwith if not wanted in any other case. ( 8 ) WE would, however, like to make it clear that it would be open to the District Magistrate and the State Government to consider afresh after complying with the provisions of Act and Rules whether the petitioners licence is liable to be revoked. Petition allowed .