BABUA TIWARI v. STATE OF U P — 1995 DIGILAW 650 (ALL)

G. P. MATHUR, J. This petition under Section 482, Crpc has been filed for quashing of the order dated 7-6-1991 passed by the learned Sessions Judge, Fatehpur by which applications moved by the State were allowed and the bail granted to the applicants was cancelled. 2. The applicants along with some others were prosecuted for having committed murder of four persons in S. T. No. A-67 of 1974. The learned Addl. Sessions Judge, Fatehpur convicted the applicants under Sections 147, 148,149,307,302, IPC and sentenced them to various terms of imprisonment by the judgment and order, dated 2-12-1974. The appeal preferred by the applicants was dismissed by the High Court on 2-9-1975. While undergoing sentence the applicants applied for being released on probation under U. P. Prisoners Release on Probation Act, 1938 but their application was kept pending by the State Government. Applicants then preferred writ petitions No. 1528 and 1529 of 1983 before the Supreme Court which were disposed of on 2-1-1984 and the relevant part of the order reads as follows: "a writ of mandamus to be issued to the State Government to con sider and dispose of their applications for release after the expiry of the postponed period. If, for any reasons, the appli cations are not disposed of within six months after the expiry of the period for which they have been postponed, the peti tioners are directed to be released on ball to the satisfaction of the concerned District and Sessions Judge, who shall satisfy himself that the applications have not been disposed of within the time-limit specified above. In case of real hardship bail may be granted on execution of personal bond. In the event of the applications being ultimately rejected by the State Government, it will be open to the State Government move the concerned District and Sessions Judge for cancellation of bail and the persons will be at liberty to challenge the order of rejection, if so advised, in the concerned High Court. The writ petitions are disposed of accordingly. " 3. In pursuance of the above order, the applicants applied for bail but their application was rejected by the then District and Sessions Judge, Fatehpur on 24-4-1984. The applicants again moved an application for bail which was allowed by IInd Addl. Sessions Judge. Fatehpur on 20-4-1985 and they were granted bail. The writ petitions are disposed of accordingly. " 3. In pursuance of the above order, the applicants applied for bail but their application was rejected by the then District and Sessions Judge, Fatehpur on 24-4-1984. The applicants again moved an application for bail which was allowed by IInd Addl. Sessions Judge. Fatehpur on 20-4-1985 and they were granted bail. The State Government then moved an applica tion for cancellation of bail as the bail application moved by applicants was premature. This application was allowed on 31-8-1985 and the appli cants were taken into custody. 4. The applicants then filed writ petition No. 69 of 1987 in the High Court praying that a direction be issued for releasing them on bail. The writ petition was disposed of on 11-2-1987 and a direction was issued for releasing the applicants on bail on the ground that the State Government had not decided their application for being released on probation. 5. Subsequently the State Government sent a letter dated 21-2-1991 to the District Magistrate, Fatehpur informing that the applications moved by the applicants for being released on probation had been rejected on 15-7-1986. On the basis of the aforesaid letter, an application was moved on behalf of the State for canceling the bail granted to the applicants. This application was allowed by the learned Sessions Judge, Fatehpur by the impugned order, dated 7-6-1991 and the bail granted to the applicants was cancelled. Feeling aggrieved by the aforesaid order, the present petition has been filed under Section 482, Crpc. 6. I have heard Shri R. B. Sahai, learned counsel for the applicants at considerable length, learned standing counsel and have perused the record which was summoned from the Court of learned Sessions Judge, Fatehpur. 7. There is no dispute that the applicants were convicted under Sec tions 147/148/149/307/302, IPO in STNo. A-67 of 1974 on 2-12-1974 and their conviction was affirmed in appeal by the High Court on 2-9- 1975. The conviction of the applicants and the sentence imposed upon them became final. There is no provision of law under which a person whose conviction has become final and on whose behalf no further appeal is pending, may be released on bail during the period he is undergoing sentence. He can only be released on probation by the State Government under U. P. Prisoners Release on Probation Act, 1938. There is no provision of law under which a person whose conviction has become final and on whose behalf no further appeal is pending, may be released on bail during the period he is undergoing sentence. He can only be released on probation by the State Government under U. P. Prisoners Release on Probation Act, 1938. The applicants were granted bail only in pursuance of the order dated 2-1-1984 passed by the Supreme Court. That very order also provided that in the event of the applications moved by the applicants for being released on probation being ultimately rejected by the State Government, it will be open to the State Government to move the Sessions Judge for cancellation of bail. The record shows that the applica tion for premature release moved by the applicants (Form A) was rejected by the State Government vide order No. 1001/7/pro/22/2/20/85, dated 15-7-1986. It is also admitted in para 8 of the affidavit filed in support of the application that Form A of the applicants was rejected by the State Government on 15th July, 1986. It appears that the year 1987 has been mentioned by mistake in place of 1986. Therefore, there is no dispute that the application moved by the applicants before the State Government for being released on probation has been finally disposed of by the State Govern ment and the same has been rejected. In view of the final rejection of the application by the State Government, the applicants are not entitled to remain on bail and learned Sessions Judge rightly cancelled the bail granted to them earlier. 8. It has been contended that the applicants had been granted bail in pursuance of the order passed by the High Court on 11-2-1987 in writ peti tion No. 69 of 1987 and therefore no order for cancellation of bail could be passed by the learned Sessions Judge. A perusal of the order, dated 11-2-1987 shows that no counter affidavit had been filed in the writ petition and the fact that the State Government had decided the application and had rejected the same on 15-7-1986 was not brought on record. It was, in these circumstances, that the High Court directed that the applicants be released on bail. A perusal of the order, dated 11-2-1987 shows that no counter affidavit had been filed in the writ petition and the fact that the State Government had decided the application and had rejected the same on 15-7-1986 was not brought on record. It was, in these circumstances, that the High Court directed that the applicants be released on bail. This will be quite evident from the following observation in the aforesaid order: "since November, 1985 now more than a year has elapsed but no counter affidavit has been filed to show that any further order has been passed by the State Government extending the period for consideration of Form A, application, in the circumstances, since the State Government has not decided the application as yet, the opposite party is directed to release the petitioners on bail. . . . . . . . " 9. It may be noticed that the High Court while issuing direction for releasing the applicants on bail had not exercised any independent power but had merely followed the order passed by the Supreme Court on 2-1-1984 The very foundation of the order passed by the High Court being the earlier order of the Supreme Court, in terms thereof it was open to the learned Sessions Judge to cancel the bail of the applicants after rejection of the appli cation (Form A) of the applicants by the State Government. In these cir cumstances, it cannot be urged that the learned Sessions Judge had no jurisdiction to cancel the bail of the applicants on the ground that the same had been granted in pursuance of the direction led by the High Court. It may be mentioned here that where the application for premature release was not rejected but was postponed for consideration after five years the Supreme Court, in Criminal M. P. 5053/93 in writ petition (Criminal) No. 1334 of 1991- Laxmi Prasad v. State, held that the purport of the deci sion of the State Government was that immediate premature release was not justified but the matter might be taken up after expiry of a further period of five years sentence and the clear implication was that the petitioner should continue to serve the sentence and order passed by the learned Sessions Judge granting bail to the convict in pursuance of the direction of Supreme Court was held to be wholly illegal. Here the case of the State is on much stronger footing as the application (Form A) of the applicants has already been rejected by the State Government on 15-7-1986. 10. It may be noticed that the applicants have succeeded in first obtaining bail from the IInd Addl. Sessions Judge on 20-4-1985 though their application was premature and then again in pursuance of the order parsed by the High Court in writ petition No. 69 of 1987, decided on 11-2-1987. Their bail was cancelled only on 7-6-1991 and thus they enjoyed bail for more than four years. After the order, dated 7-6-1991 had been passed, they filed the present petition in this Court and obtained a stay order stay ing their arrest on 26-6-1991. Thus they have enjoyed privilege of bail, though they were not entitled to the same, for a fairly long period. 11. In the result, there is no merit in this application which is accord ingly dismissed. Interim orders are vacated. Petition dismissed. .