Ram Das v. State of U. P. — 1992 DIGILAW 1605 (ALL)

JUDGMENT H.N. Tilhari, J. - By this petition the petitioner has prayed for the issuance of a writ or order or direction in the nature of mandamus directing the respondents to forthwith dispose of the petitioner's application in Form A in compliance with the judgment and order of this court dated 1871989. The brief facts of the case are that the petitioner who is undergoing the life imprisonment had approached this court for his release by filing a writ petition (W.P. No. 3981 of 88 Ram Das v. State of U.P.) for issuance of a writ of habeas corpus which had been disposed of by a Division Bench of this court consisting of Hon'ble Mr. Justice S.C. Mathur and Hon'ble Mr. Justice D.K. Trivedi by judgment and order dated 18789 whereby this court while allowing the petition quashed the order dated 22487 referred to in paragraph 6 of the counteraffidavit dated 13788 filed in that writ petition (W.P. No. 3981 of 88). This court had further directed the State Government to obtain fresh report from the district authorities including the District Magistrate and to decide afresh. This court further clarified that the report of district authorities if they recommended against the release of petitioner they should indicate the reasons therefore. The order dated 18789 further provided for the fresh orders on the petitioner's application shall be passed within a period of there months from the date of communication of that order. The present petition has been filed by the petitioner with the averments to the effect that inspite of clear directions of this court dated 18789 to the effect that petitioner's application in FormA be decided afresh within a period of three months, no action has been taken by the oppositeparties for the disposal of petitioner's application in FormA although approximately one and half years had elapsed since the passing of the order and upto the date of the filing of the writ petition dated 2311991. The petitioner at a later stage i.e. after the service of the counteraffidavit moved an amendment application on 11292 and the same was allowed by this court by order dated 10792. The petitioner incorporated the amendments on 17792. The petitioner at a later stage i.e. after the service of the counteraffidavit moved an amendment application on 11292 and the same was allowed by this court by order dated 10792. The petitioner incorporated the amendments on 17792. As per amendment it was averred that order dated 201089 passed by oppositeparties rejecting petitioner's application for release by licence in FormA was never communicated to the petitioner nor any information regarding the same was given to the petitioner and that petitioner for the first time got the information of the rejection of his application in FormA from the perusal of the counteraffidavit dated 7292. The petitioner challenged the said order dated 201089 referred to above on the ground that the same has been passed in an illegal and arbitrary manner as well as without complete application of mind. It has further been stated in paragraph 10D that the order dated 201089 would per se indicate that the same has been passed rejecting the petitioner's FormA application on extremely extraneous considerations and factors. In the counteraffidavit sworn by Shri V.P. Tiwari, Deputy Jailor, Model Jail, it has been stated that the petitioner has served 26 years 11 months 28 days of his sentence with remission as on 31191. In the writ petition the petitioner has averred in paragraph 3 that petitioner completed 27 years of imprisonment i.e. (completing over 18 years imprisonment with remission). Thus, the petitioner's averment has been that he has completed 27 years imprisonment while the allegation in the counteraffidavit also gives support to the same as according to the oppositeparties petitioner has served 26 years 11 months 28 days of his sentence with remission. In paragraph 6 of the counteraffidavit the oppositeparties have stated that application in FormA of the petitioner was sent from jail to District Magistrate Jhansi on 1889 by special messenger which was received in his office on 2889. The District Magistrate Jhansi, according to the allegation made in the counteraffidavit submitted his report afresh indicating that there was likelihood of the petitioner committing fresh offence in case he is released on licence and the petitioner is of criminal inclination and that he has committed faults or jail offence in jail also and there is no source of his livelihood. On this basis the premature release of petitioner was not recommended. On this basis the premature release of petitioner was not recommended. In the counteraffidavit it has further been stated that the Probation Board also did not recommend the premature release of the petitioner. The case of the petitioner was thereafter considered by the State Government and FormA Application of the petitioner was rejected by the government by order dated 201089 and in the counteraffidavit paragraph 6 the said order had been quoted as under: Matter in Hindi and on this basis the oppositeparties have asserted to have complied with the order dated 18789 passed by this court. In the order dated 18789 this court had observed as under: Indeed, while recommending against release, the District Magistrate should give some reasons otherwise it will not be possible for the State Government to exercise appropriate jurisdiction under section 2 of the Act. When the report of the District Magistrate is vitiated, the order of the State is bound to be vitiated. These observations have been made while allowing Writ Petition No. 3981 of 88 Ram Das v. State of U.P. 2. Section 2 of the Uttar Pradesh Prisoners' Release on Probation Act, 1938 confers power on the State Government to release a person confined in prison under a sentence of imprisonment on conditions imposed by it Section 2 reads as under: Power of Government to release by licence on conditions imposed by it 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 recognised by the State Government for the purpose, provided such other person, institution or society is willing to take charge of him. Explanation The expression ''sentence of imprisonment in this section shall include imprisonment in default of payment of fine and imprisonment for failure to furnish security under Chapter VIII of the Code of Criminal Procedure 1898. The material conditions for the grant of release by licence as a reading of the section indicates are as under: (a) that the person concerned is confined in prison under a sentence of imprisonment; ; (b) that it appears to the governmentfrom antecedents and his conduct in the prisonthat he is likely to abstain from crime, and lead peaceable life if released from prison. If the above two conditions stand satisfied in a case the government may by licence permit the person imprisoned to be released on the conditions mentioned in the section. It means that the State Government has been empowered to direct the release of a person imprisoned, by way of licence if the two conditions mentioned above are satisfied. This further indicates that antecedents, and conduct of the person in prison should be placed before the State Government with proper and complete facts relating to his antecedents and his conduct by the authorities concerned to enable the State Government to form an opinion if the person confined in prison under the sentence of imprisonment is likely to lead a peaceable life and is likely to abstain from crime and the government then has to take decision. A reading of the section further discloses that there must be a nexus or proximity between the date when the person concerned applies for being released by iicence under section 2 of the Act and his conduct in the prison. In other words the conduct of the person concerned in prison is of adverse nature and entries in regard thereto are to be taken into consideration for arriving at a decision or to form an opinion on the subject i.e. if the person imprisoned is likely to abstain from crime and to lead a peaceable life. The illustrations of conduct of the person concerned in the prison must have a nexus with reference to the proximity of time and date of application, FormA as well as the date of passing of the order one way or the other. The illustrations of conduct of the person concerned in the prison must have a nexus with reference to the proximity of time and date of application, FormA as well as the date of passing of the order one way or the other. This interpretation that I am placing is for the reason that it is one of the settled principles of law that when a power is given to be exercised in certain conditions the power may be exercised from time to time as and when occasion arises, in the case of a person sentenced for a term of life imprisonment such a life imprisonment and the powers may be required to be exercised times again to release a person by licence. Then in that case what has to be looked into is really his antecedents, and conduct in prison i.e. conduct since after his imprisonment, and having nexus and proximity with time in order to form the opinion if the person concerned who is in prison on account of his having been sentenced to term of imprisonment is likely to lead a peaceable life full of abstinence from crime and criminal activities. The antecedents, and the conduct in jail furnish the material to arrive at a conclusion or to form an opinion on the subject, which is sine qua non for exercise of power to grant release by way of licence or to refuse the same. If the opinion is in negative, FormA application for release by way of licence may be refused. A question arisesWhat is meant by the expression Antecedent'' used in section 2 of the Act. What does it connote. Antecedents of Prisoner is to form the material element apart from the conduct of Prisoner in Jail that is to be taken into consideration by, and on the basis of which, the State Government has to form its opinion. The rules also provide for and point out the material or documents referred to therein in regard to Antecedents and the conduct of Prisoner in fact to arrive at a just and proper opinion on material points, namely, (a) the likelihood of prisoner's abstaining from crime, and (b) likelihood of prisoner's leading a peaceable life, in order to enable it to grant release by licence, 3. The expression Antecedent is a term of wide connotation. The expression Antecedent is a term of wide connotation. It means and refers to something such as conduct and activities of or pertaining to prisoner who has been sentenced to imprisonment on being convicted for some offence and which was in existence when or before the date of his conviction & his entering the prison even including the incident or occurrence on account of which the prisoner was convicted as well as causes thereof & events conditioning or influencing the occurrence. 4. In Strouds Judicial Dictionary Vth Ed. Vol. I at page 138 the expression Antecedents is described and defined as under: Antecedents is an ambiguous word which refers to either previous history or to parents of offender. It refers primarily to offenders' previous history and past record. 5. In Webster's IIIrd New International Dictionary and Seven Languages Dictionary Vol. I at page 91 the meaning of expression Antecedent is given as under: 'Antecedents means significant events, conditions traits and activities of one's earlier life. Events conditionssituations, circumstances and complex preceding and often influencing or conditioning occurrence or issue. Thus these definitions per se show that the expression Antecedents primarily refers to the offenders' previous history and past record i.e. previous to occurrence leading his conviction and sentence to imprisonment or confinement in jail and includes within itself events and activities of one's earlier life i.e. earlier in point of time to the occurrence in question leading to conviction etc. and influencing the conditions of mind, its development as well as influencing or conditioning the occurrence that lead to the conviction and imprisonment as well. 6. Occurrence leading to conviction no doubt may be and also is taken as one of conducts previous to offender being imprisoned but that by itself does not constitute something that may be called past record or antecedents of offender. 7. The State Government has in exercise of its Rule making powers under section 9 of U.P. Prisoners' Release on Probation Act, 1938 has framed the Rules known by name to be Uttar Pradesh Prisoners' Release on Probation Rules, 1938. 8. The material Rules are Rules 4 and 6 of aforementioned Rules and read as under: Rule 4. 7. The State Government has in exercise of its Rule making powers under section 9 of U.P. Prisoners' Release on Probation Act, 1938 has framed the Rules known by name to be Uttar Pradesh Prisoners' Release on Probation Rules, 1938. 8. The material Rules are Rules 4 and 6 of aforementioned Rules and read as under: Rule 4. Eligibility for release Save the prisoners specified in Rule 3, any prisoner who has served one third of his sentence of imprisonment or a total period of five years with remission, whichever is less, may be released by the State Government on a licence. 9, It is to be taken note of that by amendment of 1987 for the expression five years expression ten years has been substituted. 10. Rule 6, Procedure, (1) Any prisoner eligible for release under section 2 of the Act may make an application in Form A to the Superintendent. Such form shall be printed at the cost of the Government and supplied free of charge to the prisoners, to their relatives and to persons offering themselves as their guardians. (2) On the receipt of the application, the Superintendent shall examine the application to see if the prisoner and his proposed guardian have duly filled in the columns of the application meant to be filled in by them. If the application is in order, the Superintendent shall entertain it and cause it to be entered in a register maintained in Form B. If the prisoner is ineligible under Rule 3, he shall reject the application and inform the prisoner of his order. If the prisoner is eligible for release under Rule 4, he shall fill in the columns in the application meant to be filed in by him and forward the same as soon as may be, to the District Magistrate of the district in which the prisoner was convicted. If the application is not in order, the Superintendent shall return it to the prisoner for necessary correction or supplying the omissions. (3) In cases where there is Probation Officer, the Superintendent of the jail shall forward the application to the Probation Officer, sending a copy thereof to that Superintendent of Police who shall send his rtport to the Probation Officer. (3) In cases where there is Probation Officer, the Superintendent of the jail shall forward the application to the Probation Officer, sending a copy thereof to that Superintendent of Police who shall send his rtport to the Probation Officer. The Probation Officer shall make his independent inquiry and then submit his report direct to the District Magistrate in the following form after incorporating therein the report of the Superintendent of Police: (1) Name of convict............... (2) Convicted under section ....... (3) Sentence........................ ... (4) Relationship of guardian......... (5) Opinion about suitability of guardian (together with reasons in case of nonsuitability: (a) Police............... (b) Probation Officer............ (6) Recommendation regarding release (state reasons when release opposed): (a) Jail........................... (b) Police.................... (c) Probation Officer......... (7) District Magistrate's order........... Immediately on receipt of an application under subrule (2) and this rule, the District Magistrate shall move the courts concerned for supplying him with the certified copies of the relevant judgments in the case, free of cost, and shall, if necessary, simultaneously consult, through the Superintendent of Police concerned, the District Magistrate of the district in which the prisoner ordinarily resides. On receipt of the copies of the judgments, and report of the District Magistrate of the district of residence of the prisoner, he shall attach the copies of the judgments to the application, fill in the entries therein meant to be filled in by him, and shall without delay forward the same to the InspectorGeneral of prisons. (3A) On receipt of an intimation about the death of his guardian along with the proposal for appointment of another guardian from a licence, the District Magistrate, of the district in which the licensee resides, shall refer the case to State Government for appointment of a fresh guardian in place of the deceased one along his opinion about the suitability of the proposed guardian. In case the licensee does not send his proposal for appointment of another guardian, the District Magistrate shall require the licensee to do so before making a reference to Government. If no guardian in place of the deceased one is proposed within fifteen days of the receipt of the District Magistrate's order by the licensee the case would be reported by the District Magistrate to Government for orders. If no guardian in place of the deceased one is proposed within fifteen days of the receipt of the District Magistrate's order by the licensee the case would be reported by the District Magistrate to Government for orders. (4) The District Magistrate shall maintain a register in Form 'C' in which all applications received from the Superintendent, under subrule (2) shall be duly entered. (5) The application received from the districts by the Inspector General of Prisons shall be considered by a Board consisting of the Home Secretary to the Uttar Pradesh Government or any other officer empowerd in this behalf by the State Government, the InspectorGeneral of Prisons as the case maybe, and the Parliamentary Secretary to the Hon'ble Minister of Jails, if there is one. If there is no Parliamentary Secretary, a nonofficial may by appointed to work on the Board for a term of one year, provided that he shall cease to function as such in the event of a Parliamentary Secretary being appointed in the meantime. The Parliamentary Secretary or, in his absence, the Home Secretary or the officer empowered by the State Government as above shall be the Chairman of the Board. Meetings of the Board shall be held at least once every month to make necessary recommendations. (6) The State Government shall on receipt of recommendations of the Board pass such orders as it may deem proper. (7) The State Government shall, on receipt of the report of the District Magistrate regarding appointment of a fresh guardian of a licensee in place of the deceased one, pass such orders as it may deem proper. 12. A perusal of material sub rules i.e. subrules 1, 3, 5 and 6 indicates that it is provided that on the receipt of application in FormA by Superintendent of Jail, where the prisoner is lodged or imprisoned, the said Superintendent, if the prisoner is eligible for release under Rule 4 above, shall fill in the columns in the application meant for him and shall forward the same at the earliest possible to District Magistrate of district in which the prisoner was convicted and in cases where there is a Probation Officer the Superintendent of Jail shall forward the application to District Probation Officer. 13. 13. The District Probation Officer is required to make his independent inquiry and to submit his recommendations and report to District Magistrate, after incorporating therein the report of Superintendent of Police. 14. The Probation Officer is 10 give report in the form appended to sub rule (3) of Rule 6 and apart from other thing he has to make recommendation for release and in cases where Probation Officer opposes the release he is required to state reasons therefor, Expression 'reason' here means grounds for opposition and the facts with particulars forming the basis for grounds of opposition. We do so interpret it as it is to form as a basis for higher authorities to consider the material and opine. 15. Sub Rule (3) of Rule 6 ordains that immediately after receipt of application by District Magistrate, the District Magistrate shall obtain certified copies of relevant judgments in the case from the court concerned and then shall consult (if necessary) through Superintendent of Police concerned, the District Magistrate of the district of residence of prisoner & obtain his report as well and thereafter shall attach the copies of judgment and report to the application he shall fill in the entries in application meant for him and then he shall without any delay forward the same to InspectorGenera Prisons. 16. On receipt of application from District Magistrate the InspectorGeneral, Prison is required to place the same for consideration of Board consisting Home Secretary of Government or his representative. InspectorGeneral, Prison or Deputy InspectorGeneral, Prisons and Parliamentary Secretary to Hon'ble Minister for Jail i.e the Board is to make its recommendations and on receipt of recommendations of Board the State Government is to pass such order as it may deem proper. 17. The expression as it may deem proper used in rule 6(6) of Prisoners Release on Probation Rules is of importance and in particular when it is read along with Rule 6(3). The expression deems in Black's Law Dictionary Vth Ed. at page 374 has been defined to mean 'consider', holds, adjudge or determine. 17. The expression as it may deem proper used in rule 6(6) of Prisoners Release on Probation Rules is of importance and in particular when it is read along with Rule 6(3). The expression deems in Black's Law Dictionary Vth Ed. at page 374 has been defined to mean 'consider', holds, adjudge or determine. The expression implies element of application of mind in rational manner keeping in view the letters and spirit of the Act and section 2 of the Act and particularly the basic question required to be considered i.e. If the prisoner is released by grant of licence he is likely to abstain from crime and is likely to lead peaceable life. The decision or determination of State Government is to be based on the consideration of antecedents of the prisoner as well as the conduct in prison. Rule 4 further points out his conduct in jail during last ten years or at least one third of his sentence whichever is less will be material so as to render a prisoner eligible to apply for release by grant of licence only when prisoner has served atleast one third of imprisonment or ten years in prison whichever, is less. If on consideration of material placed and required to be placed before State Government relating to antecedents of Prisoner & his conduct in prison the State Government opines that relevant requirement i.e. if prisoner'' is released under licence he is likely to abstain from crime and is likely to lead a peaceable life then that power to grant or permit by licence the release of prisoner is to be exercised by State Government in favour of the prisoner. 18. If it considers, on the basis of the material furnishing antecedents of prisoner and his conduct in jail otherwise on the material question it may refuse. 19. We, for our view to the effect that expression as it may deem proper herein Rule 6(6) means as the State Government thinks and considers and adjudges proper and reasonable in the context of facts of the case i.e. antecedents of prisoner and his conduct in jail emerging from there documents or reports & the law i e. provision of the Act and rule etc. finds support from decision of the Supreme Court in the case R. M. Paranjype v. R.M. Mali (AIR 1962 SC 757) where Hon'ble Supreme Court has interpreted the expression shall pass such order as he deems fit and observed as under: 20. We are however, unable to agree that the provision warrants the making of any order that the authority concerned thinks in his individual opinion that justice of the case requires. 21. The Supreme Court further referred with approval the following observations of Cockburn C. J., made in the case R. v. Boteler (1864) 33 LMC 101 at 103) where a statute conferred power on justices to issue distress warrant if they shall think fit. In that case justices refused to issue the distress warrant and Cockburn C.J. observed: They went upon the ground that the introduction of the extraparchial place into the union a thing unjust in itself, in other words operation of act of Parliament was unjust....... .........I think therefore it amounts virtually saying we know that we ought upon all other grounds issue the warrant but we will take upon ourselves to say that law is unjust and we will not carry out. That is not such an exercise of discretion as this court will hold in accordance with the authorities cited, to be one upon which it will act. The justices must not omit or decline to discharge a duty according to law. 21. This is as much true of State Government and its authorities as it is with reference to justices while exercising power of passing orders having civil consequences that they must not omit or decline to discharge a duty according to law as Rule of law and discipline is the soul of democracy. 23. Thus considering it comes out to be the position under Section 2 of U.P. Prisoners Release on Probation Act, 1938 and Rules framed there under: (a) That subject to Rule 3 a person imprisoned in prison under a sentence of imprisonment if he has served one third of sentence or at least 10 years in jail whichever is less may apply in FormA for grant, by licence, of his release. (b) The State Government, if it appears to it on a consideration of the antecedents of prisoner as well of the conduct of prisoner in prison that: (i) He is likely to abstain from crime and (ii) He is likely to lead peaceable life if he is released from prison may release him (prisoner) by licence with the condition; (iii) that he shall be placed under the supervision of or authority a government officer or person of the faith or religion or prisoner or secular institution as specified in sub section (2) and (iv) such person or institution or society is willing to take charge. (c) That material to be furnished before the government for consideration must consist of report and recommendation of Jail Superintendent it must indicate his conduct in prison and throw light on the point i.e. material point, the form report of District Probation Officer it must throw light to relevant point one way or the other. If Probation Officer is opposed to release then it must indicate reasons for opposition, as well as the report Superintendent of Police to Probation Officer as to antecedents of prisoner earlier to point of occurrence. The question indicating the material and psychological condition and history of person concerned and lastly the District Magistrate's Reports (Report of District Magistrate of the District of Residence of prisoner as well as of District Magistrate of district in which prisoner was convicted) and the recommendations of the Board referred in sub rule (6). (d) It is the material referred to above relating to antecedents of prisoner and conduct of prisoner in prison which the State Government has to consider and adjudge or determine the question of the likelihood of prisoner's abstaining from crime and his likelihood to lead peaceable life and then to pass orders it considers proper in the light of the material available. 24. The order quoted in paragraph 6 of the counteraffidavit appears to us to be vague and to be based on nonapplication of mind to the facts. 24. The order quoted in paragraph 6 of the counteraffidavit appears to us to be vague and to be based on nonapplication of mind to the facts. It did not disclose the reason and material particulars on the basis of which the opinion was formed and reported by the District Magistrate, Board and State Government that the prisoner is of criminal mentality or nature, nor did it disclose the particulars of jail offence or their period or time when those jail offences were done or when for the same he was mentioned to have been punished etc. Thus material particulars of antecedents and conduct in jail not having been indicated in the order of State Government dated 201089 we called upon the learned Government Advocate to produce the full relevant record relating the petitioner before us on the date fixed by us and same was produced before us for perusal by us. 25. We having perused the record find that order of State Government quoted in para 6 of the counteraffidavit is result of nonapplication of its mind by State Government to the report of Superintendent of Prison (Jail) and also to the report of District Probation Officer 'App. B' on record. 26. The government say in its order that as per District Magistrate's report the prisoner is of criminal mentality and nature and has been punished for jail offences and that in District Magistrate's opinion there are bleak hopes of prisoner's leading peaceable life on being released, as well as the Probation Board has not recommended the grant of release on probation licence of the prisoner and release application in FormA is rejected. 27. The recommendation of the Probation Board when perused, it per se shows as per entry 8 of item 'head, recommendations of Board' reads as below: '8. Rejected on the basis of comments of District Magistrate. 28. Thus the order of government and recommendations of Probationary Board show that neither of them did apply their mind to the reports of conduct of prisoner in jail made by Superintendent of Jail nor to the report of enquiry and recommendations of Probation Officer and material about antecedents and conduct of prisoner in jail as furnished by two reports and recommendations of Superintendent of jail and District Probation Officer. The State Government based its order on negative recommendation of Board quoted above which is based on no reason, but on the District Magistrate's comments and the Probationary Board simply refers to District Magistrate's comments as its basis for negative recommendations without indicating its contents and without applying its minds to those comments in context of the report of Superintendent, Prison and District Probation Officer regarding the antecedents and conduct of prisoner in jail. We perused the report of District Magistrate, Jhansi dated 16989 under the head to be filed by District Magistrate. 29. The brief history of the case as mentioned therein that on account of money matter i.e. on its 'Lain Dain' the dispute did take place between the prisoner and deceased, and prisoner (Ram Das) gave a knife blow to Chhadami (deceased) who died on spot and so Sessions Judge, Jhansi convicted the prisoner under Section 302/309 of the Indian Penal Code and sentenced him to imprisonment for life vide order dated 13271. That under item 3 it is stated in affirmative i.e. the proposed guardian is a fit person to act as such. That under item in query 4 Having regard to prisoner's antecedents and his conduct in prison is he likely to abstain from crime and lead peaceable life if released is NAH1 BANDI KO POORVA MUKTA KARNE KI SANSTUT1 NAHI KI JATI HAL 30. The reasons are required to be recorded if there is negative recommendations i.e. objection to release of prisoner on licence, the record shows the reasons recorded are not in District Magistrate's writing instead they are typed and stereotyped and without any indication of particulars or facts leading to those grounds of objections or reasons. (1) Punah Apradh Hone Ki Sambhawana hai. (2) Bandi Apradhi Praviti Ka hai. Use Jail Men Dand Diya Gaye Hain. (3) Bandi Ke Jivika Hatu Sadhan Nahin Hai. The District Magistrate's report does not indicate on the basis of which facts and circumstances or reports the District Magistrate has come to the said conclusion that there is possibility of crime being committed again or that prisoner is of criminal mentality or nature. 31. Use Jail Men Dand Diya Gaye Hain. (3) Bandi Ke Jivika Hatu Sadhan Nahin Hai. The District Magistrate's report does not indicate on the basis of which facts and circumstances or reports the District Magistrate has come to the said conclusion that there is possibility of crime being committed again or that prisoner is of criminal mentality or nature. 31. Reasons to be stated must be based on some facts or material the particulars of which should he indicated to make reasons rational It is no reason if it is mostly arbitrary, whimsical, and is based on no data of facts or is one based on something antique having no nexus or proximity of time with the date when reasons are required. 32. The reports and recommendation of Superintendent of Prison relating to prisoner's conduct in jail disclose the prisoner's conduct in jail to be satisfactory vide entries nos. 11, 12, 13 and his release being recommended. It further disclosed that since after 18278 the prisoner neither did commit any act which may be called jail offence and that more than ten years span of his life in jail in 1989/90 has been free from criminal activities and no jail offence has been reported or alleged to have been committed by prisoner and this period of more than ten years on 16989 has been unblemished one in jail and free from clouds of criminality and indicated improvement in prisoner towards a life free from criminality and towards his likelihood to lead peaceable life. This aspect and the recommendations of Jail Superintendent does not appear to have been noted or taken into consideration by District Magistrate or Probation Board or the State Government. 33. Apart from it the enquiry report as well as recommendations of District Probation Officer dated 16989 and in particular the reports regarding antecedents of prisoner and his conduct in jail as contained therein and reporting things relating to antecedents of prisoner to be satisfactory as well give indications of the likelihood of prisoner's leading a peaceable life. 33. Apart from it the enquiry report as well as recommendations of District Probation Officer dated 16989 and in particular the reports regarding antecedents of prisoner and his conduct in jail as contained therein and reporting things relating to antecedents of prisoner to be satisfactory as well give indications of the likelihood of prisoner's leading a peaceable life. The report further indicates that occurrence in question was not preplanned but was the result of sudden altercation and sudden heat on money matter when the prisoner and deceased both attacked each other while prisoner was injured and the deceased got fatal blow and died, and that there was no criminal past history of prisoner to indicate if he was a man of criminal mentality or nature. 34. The District Probation Officer further on the basis of facts and circumstances referred to in Appendix 'B' 'Preliminary Enquiry' report recommended that prisoner be released by licence on probation under Section 2 of U.P Prisoner's Release on Probation Act, 1938. 35. Thus having perused and examined the record supplied and produced by the learned counsel for the State we almost find no material on record which may substantiate the reason given by District Magistrate in support of his opposition or objection or negative recommendation i. e. recommendation against the release nor does District Magistrate's order indicate any material and as such reasons or opposition to the prisoners' release are based on whims and not on material of antecedents, and conduct of prisoner in jail having nexus with time making recommendations and so are not reasons in the eye of law. The District Magistrate's recommendations or report appears to be based on no material and the reasons given therein have been one without applying the mind to the reports of Jail Superintendent and District Probation Officer as well as to important fact and circumstances that for more than ten or eleven years period commencing from 17278 to 16989 the date District Magistrate passed order and no activity of prisoner was alleged or reported to be of criminal nature or amounting to jail crime by Superintendent of Jail against him which was an encouraging sign of improvement in prisoner to indicate his likelihood to lead peaceable life. 36. 36. Thus District Magistrate report and recommendation or comments being based on no reasons in the eye of law as well as no reasons having been recorded by him while making and recording recommendations in negative are by themselves illegal. The Probationary Board and the State Government while recording their respective orders not having taken into consideration the enquiry report of District Probation Officer and the report of Superintendent of Jail, regarding the antecedents and conduct of prisoner in jail, and the two i.e. Probation Board and State Government simply having based on the comments and report of District Magistrate (which is illegal and is based on no reasons or data) acted illegally and contrary to law in passing the order on the basis of District Magistrate's comments without applying their own mind to material relating to antecedents and conduct of prisoner as reported by Jail Superintendent and District Probation Officer. The order of the State Government dated 201089 is not the order passed by the Government as it considered proper after application of its mind and is not one based on reasons. 37. Thus order dated 201089 of State Government quoted in paragraph 6 of the counteraffidavit is per se illegal and in breach of the mandate of law under Section 2 of the Act read with Rule 6 of the Rules framed thereunder and is liable to be quashed. 38. The learned Government Advocate attempted to support order dated 201089 and invited our attention to some jail offences alleged to have been committed by prisoner for which he was given some punishments during the period from 22474 to 18278. The learned Government Advocate on being questioned if there is any criminal act or criminal conduct reported against petitionerprisoner since after 18278 till this date of hearing he failed to point out any. Thus it really appears to be an improvement in prisoner that he has abstained from doing any act or activity which may be called jail offence or crime since February, 1978 i.e. for the last fourteen years which may lead a reasonable person to hope and see that petitioner is likely to abstain from crime and his likelihood to lead peaceable life. 39. 39. The learned Government Advocate failed to point out any material from record which may give support to District Magistrate's report and comments and bald reasons which are per se based on no facts and on which the Probationary Board and State Government had acted upon. 40. The learned Government Advocate lastly tried to rely on the fact that petitioner had been convicted under Section 302/309 of the Indian Penal Code and has been sentenced to life imprisonment on the basis thereof. The learned Government Advocate submitted that against the petitioner this by itself was sufficient material before District Magistrate and State Government to reject the petitioner's FormA application. 41. We do not agree with the contention of the learned Government Advocate for the reasons that if this argument is accepted the section may be rendered nugatory and may lose its object as well. 42. In our opinion, contrary to the popular ones, ail convicts are not rock hard criminal or individual lacking sufficient emotional balance. They are people who have got fears and aspirations like every one else. They, generally do not want to fight with or kill their neighbours and more than the man on street. They want to live in peace and return to their love ones at the possible earliest moment. They are not persons of different human breed nor do have different type of mentality. They are no doubt persons who have made mistakes. 43. A person who has committed murder in heat of passion, mental agitation, & has been subjected to life imprisonment may not repeat his act in later part of life and may not be a person of criminal bent of mind and there may be many like that i.e: otherwise than hardened criminals. 44. The remission scheme or statutes providing for licensed release or liberal parols and probation offers healthy motivation for better behaviour, inner improvement, and development social welfare to prisoner. 45. The Uttar Pradesh Prisoner's Release on Probation Act, 1938 is a welcome measure in this direction and as such the mere fact that prisoner has been convicted under Section 302, I.P.C. and has been sentenced to imprisonment for life cannot and is not to be allowed to play prime role and to be the sole consideration and the sole and only basis for refusal to exercise power of grant of licensed release to a prisoner. The real and major consideration is nothing but antecedents as defined above i. e. activities, incidents and conditions surrounding him in his being brought up and nourished during the period earlier to occurrence in question leading to his conviction and influencing and conditioning the occurrence and in cases where the past record has net been indicative of any criminality or criminal bent of mind of prisoner concerned and his conduct in jail for long duration of time does not indicate or show lapses of criminal nature or in the nature criminal activity and records of antecedents, the mere fact that prisoner has been convicted for one lapse i.e. occurrence in question with reference to which he has been convicted under Section 302, of the Indian Penal Code and sentenced to life imprisonment cannot and should not be allowed to play a decisive role in the determination of the question if prisoner is released on licence under Section 2 of the Act, whether the prisoner is likely to abstain from crime and criminal act and whether he is likely to lead peaceable life in order to dispose of the application of prisoner for his release on probation or licence under the Uttar Pradesh Prisoners Release on Probation Act, 1938. 46. In our opinion it is to be remembered, licensed release where instant recapture is sanctioned under law and likewise parole, where such persons are not free agents but are under invisible fetters of prison law and have been regarded as legislatively sanctioned imprisonment of loose and liberal type. See Pratap v. State of U.P. (1973 SC 786/789) and Maru Ram v. Union of India (1980 SC 2147 (2175). 47. The whole perspective of U.P. Prisoner's Release on Probation Act, 1938 and its rules will be eclipsed if the applications in FormA for licensed release are rejected on sole ground as decisive one that the prisoner like the petitioner has been convicted under Sections 302/309 of the Indian Penal Code and has been sentenced to imprisonment for life or that the District Magistrate has objection to release irrespective of report of Superintendent of Jail as to his conduct in jail and report of District Probation Officer and his recommendation being completely favourable to the prisonerpetitioner, and in particular without applying their mind to it. 48. Thus considered the writ petition is being allowed and the order of the State Govt. 48. Thus considered the writ petition is being allowed and the order of the State Govt. dated 201089 quoted in paragraph 6 of the counteraffidavit whereby petitioner's application for licensed release in FormA has been rejected is being held to be illegal, null, void and inoperative and is being quashed by the direction in the nature of writ of certiorari. 49. We further issue a writ of mandamus to opposite parties including the State Government directing them to decide the petitioner's application in FormA under Section 2 of U.P. Prisoner' Release on Probation Act, 1938 in accordance with law and in light of our observations and the principle of law as well as factors & material referred to above by us in our judgment within a period of four weeks from the date of service of this order and if State Government opines that the petitionerprisoner on being released on licence is likely to abstain from crime or criminal act and is also likely to lead peaceable life as required under Section 2 of the Act, let the State Government issue licensed release of petitioner on terms and conditions of the section. In case it rejects or opines to reject it must record an order based on reasons and particulars relating to that reason on the basis of record.