CHETA v. STATE OF UTTAR PRADESH — 1996 DIGILAW 490 (ALL)

S. H. A. RAZA, J. ( 1 ) THE petitioner who was convicted for life on 21-2-1979 has come up before this Court second time for his release on licence under the provisions of U. P. Prisoners Release on Probation Act, 1938. Earlier the petitioner filed writ petition bearing No. 258 (HC) of 1994. On 25-7- 1995, the writ petition of the petitioner was allowed by a Division Bench of this Court wherein the Government was directed to consider as to whether the opinion of S. P. and D. M. was based on some material or not; because the Court felt that it was necessary to give specific reasons for not agreeing with the report of the Probation Board, which was in favour of the petitioner. ( 2 ) A counter affidavit has been filed on 20-3-1996 wherein the same stand was taken by the State which was taken earlier in the writ petition. In paragraph 10 of the counter affidavit it has been stated that the case of the petitioner for his release or licence was reconsidered by the State Government. The release of the petitioner on licence was rejected on the ground that the petitioner after his release may take revenge from the witnesses who deposed against him. It was further stated that nothing can be said about the security of the petitioner. There is no possibility that the petitioner would lead a peaceful life after his release. ( 3 ) NO material in support of the said allegations has been placed before this Court. Learned Public Prosecutor produced the relevant file, wherein the District Magistrate agreed with the report of the Superintendent of Police to the extent that the petitioner will not be able to lead a peaceful life. The file also discloses the report of the Probation Board according to which till 13-9-1995 petitioner had completed more than seventeen years detention in jail with out remission and also underwent more-than twenty three years detention with remission. His conduct in the jail while undergoing sentence was upto mark. The report further indicated that the District Magistrate has reported that the person appointed as guardian was suitable as the terror or fear stricken on the other side, will try to wreak vengeance against the petitioner and may commit any offence. His conduct in the jail while undergoing sentence was upto mark. The report further indicated that the District Magistrate has reported that the person appointed as guardian was suitable as the terror or fear stricken on the other side, will try to wreak vengeance against the petitioner and may commit any offence. ( 4 ) IT was further indicated in the report of the Probation Board that atleast ten times the petitioner was released on home leave and during the period, he remained on leave, the peace was not disturbed by him. On the basis of the report of the Probation Officer it was indicated in the report, that the co-accused was acquitted by the High Court and there existed no feeling of ill-will between the concerned parties. Even the brother of the deceased had refused no objection for the release of the petitioner. There is considerable property for the living of the petitioner, hence the Probation Board opposed the report of the District Magistrate and Superintendent of Police and requested the State Government to release the petitioner on probation, but the State Government rejected the request of the petitioner for his release on licence on the basis of report of the District Magistrate and the Superintendent of Police completely ignoring the report of the Probation Board. It was further indicated that there is no possibility that the petitioner would lead a peaceful life. ( 5 ) FROM the order passed by the State Government it is evident that the case of the petitioner was not reconsidered in its correct perspective. The Court had indicated earlier to disclose material upon which the report of the District Magistrate and the Superintendent of Police was based, but no such material was either disclosed nor has been placed before us. The only relevant material, which has been placed before is the report of the Probation Board, which negatives and demolishes the report of the Superintendent of Police and District Magistrate not to release the petitioner. The Board indicated that the petitioner was released atleast ten times on home leave and the peace was not disturbed. The relation between the family of the petitioner and the deceased who was alleged to have been killed by the petitioner are cordial to such an extent that the brother of the deceased expressed no objection to release the petitioner on parole. The relation between the family of the petitioner and the deceased who was alleged to have been killed by the petitioner are cordial to such an extent that the brother of the deceased expressed no objection to release the petitioner on parole. ( 6 ) WE are of the view that the State Government in a prototype manner has only reiterated its earlier position and totally failed to pass an appropriate order on the basis of certain materials, which were more relevant for consideration of this case. From the report of the Superintendent of Police as well as the District Magistrate and the decision of the State Government it is apparent that there existed no, material before the opposite parties to indicate that the petitioner would not be able to lead a peaceful life. ( 7 ) LEARNED Public Prosecutor opposing the release of the petitioner relied upon the observations of this Court in the case of Union Territory of Chandigarh v. Charanjit Kaur, wherein Supreme Court observed: The question is whether the High Court has the jurisdiction under Article 226 or under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Code) to release the petitioner. At best the court, in an appropriate case, where the prisoner has served the mandatory minimum sentence, may only direct the appropriate Government to consider the commutation of the sentence and prematurely release a particular convict. They can do no further. The Government would consider such direction based upon the conduct of the prisoner and other relevant circumstances and act upon it. T ( 8 ) KEEPING in view this position a Division Bench of this Court earlier directed the State Government to consider the case of the petitioner afresh by pointing out any relevant material against the petitioner, but the State Government miserably failed to point out any adverse material against the petitioner. It only reiterated its earlier stand, which can not find favour to this Court. ( 9 ) IT is needless to mention that the release on licence is not a complete release. It only reiterated its earlier stand, which can not find favour to this Court. ( 9 ) IT is needless to mention that the release on licence is not a complete release. In that regard we have looked into Rule 6 of the U. P. Prisoners Release on Probation Act, which provides that the State Government may at any time for reasons to be recorded in writing revoke a licence granted under the provisions of Section 2 of the Act 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. Rule 10 of the Prisoners Release on Probation Rules further provide that the District Magistrate on receiving information from the guardian or any other source, of the breach by the licence of the conditions of the licence, shall cause a notice to be served on the licensee to show cause why his licence should not be revoked. ( 10 ) IF the license 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 license and how they have been breached. Form-D of licence of conditional release under Section 2 of the Prisoners Release on Probation Act, 1938 provides the conditions to be observed by the licensee as under: (1) The licensee shall remain under the supervision and authority of the above mentioned guardian during the period of the licence. He shall obey all the instructions of the guardian issued to him either verbally or in writing regarding his residence, employment or conduct. (2) He shall not proceed beyond the limits of the places within which he may be restricted by his guardian without his permission and shall proceed to any place directed by the guardian and by the route prescribed by the guardian. (2) He shall not proceed beyond the limits of the places within which he may be restricted by his guardian without his permission and shall proceed to any place directed by the guardian and by the route prescribed by the guardian. (3) He shall report himself at such times and places and to such persons as the guardian may from time to time direct. (4) He shall himself with due industry and to the satisfaction of the guardian do the work upon which the said guardian may direct him to comply himself. (5) He shall not commit in India any criminal offence punishable by any law for the time being in India or any part thereof. (6) He shall not in any way associate with person known to be of bad character or lead dissolute life. (7) If in the opinion of the State Government he is found to have committed a breach of the abovementioned conditions, the State Government may, after the person concerned has been given an opportunity to represent his case before the District Magistrate of the District in which he is residing at the time. revoke a licence and direct his recommitment to prison to serve the rest of the sentence, subject to the provisions of Section 4 of the Prisoners Release on Probation Act, 1938. (8) On revocation of this licence, the return to the prison named in the order of revocation on or before the date specified therein. (9) In the event of the death of his guardian the licensee shall at once report this fact to the District Magistrate of the District in which he resides and shall if possible, Propose some other suitable guardian in place of the deceased one giving full particulars of the proposed guardian. Guardiants Duty It shall be the duty of the guardian to see that the conditions of the licence are fulfilled. He shall look after the conduct and welfare of his licensee and generally act in loco parents. If the licenseets conduct be bad, it shall be the duty of the guardian to report the fact to the District Magistrate. Guardiants Duty It shall be the duty of the guardian to see that the conditions of the licence are fulfilled. He shall look after the conduct and welfare of his licensee and generally act in loco parents. If the licenseets conduct be bad, it shall be the duty of the guardian to report the fact to the District Magistrate. If a prisoner released on licence under Act escapes from the supervision or authority of a guardian or fails to return to prison on revocation of the 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. On the expiry of the period of licence otherwise than by revocation, the guardian shall forthwith inform the licensee that he is absolved from the observance of all conditions of the licence shall make a note to the effect on the licence and shall return it to the Superintendent. ( 11 ) THUS according to the provisions of the Probation Act as well as the Rules framed thereunder there are ample powers to the State Government to cancel the licence if the person released on licence commit any breach in the conditions which are mandatory to be followed by the licensee. ( 12 ) IN view of the aforesaid situation we feel that release on licence stands on different footings than release of such a person on commutation of sentence. If we assume for arguments sake that the reports of the Superintendent of Police and the District Magistrate has some basis that the petitioner would not be able to lead a peaceful life, even in that eventuality, it would be open to them, to cancel the licence in accordance with law. The precedent cited by the learned Public Prosecutor that this Court has no power to grant release is distinguishable from the facts of that case, inasmuch as the Honble Supreme Court only said that the Court should not stroll into the field of executive in such matters. The precedent cited by the learned Public Prosecutor that this Court has no power to grant release is distinguishable from the facts of that case, inasmuch as the Honble Supreme Court only said that the Court should not stroll into the field of executive in such matters. But if the Court feels that the State Government has failed to discharge its duty in accordance with the directions of this Court and did not consider the case of the petitioner in its true perspective, the State action cannot be sustained, as it suffers from trial arbitrariness and this Court has no alternative except to order the release of the petitioner, as further direction for consideration will meet the same fate. ( 13 ) IN view of what we have indicated hereinabove, this writ petition succeeds. The respondents are directed to release the petitioner on licence in accordance with law and the observations made above, provided he is not undergoing sentence in any other case. Petition allowed. .