DAULAT v. STATE OF U P — 1998 DIGILAW 644 (ALL)

D. K. TRIVEDI, J. This writ petition under Article 226 of the Constitution of India was filed for a writ of certiorari to quash the impugned order dated 6-8-1996 whereby Form-A of the petitioner was rejected by the State of U. P and further a writ of mandamus commanding the op posite parties to release the petitioner forthwith. 2. The petitioner was convicted on 21-7-1977 by the II Additional Sessions Judge, Lakhimpur Kheri under Sections 302,323,148,149, I. P. C. and was sentenced to undergo Imprisonment for Life in Ses sions Trial No. 357-A of 1976. His appeal was also dismissed by this Court. It is fur ther alleged that on 20-9-1996 the petitioner had completed 14 years, 6 months, 2 days of his imprisonment without remission and 18 years, 8 months 2 days with remission and, therefore, be came eligible for consideration for prema ture release on licence, under the provisions of U. P Prisoners Release on Probation Act. The petitioner applied for premature release but his Form-A for premature release was rejected by the Government and, therefore, the petitioner aggrieved by the said order filed a writ petition before this Court (W. R No. 522 (HC) of 1994 ). The District Magistrate, Superintendent of Police, Probation Officer, as well as the Probation Board recommended to the State Govern ment that the petitioner be released prematurely but the State Government rejected the recommendation of the aforesaid authorities on the ground that the petitioner in the year 1985, when he was released on Parole, over-stayed the period of Parole from 5-12-1985 to 1-1-1986. This Court while deciding the writ petition directed the State Government to reconsider the matter taking in view the fact that the period of parole and over-stay had taken place more than 10 years back and since then the conduct of the petitioner in Jail has been quite satisfactory and further in view of the contention of the District Authorities that the petitioner is likely to lead a peaceful life if, he is granted premature release. This Court while directing the State Govern ment to reconsider the case held that in rejection Form-A on the ground that he over-stayed the period of parole in 1985 is not proper ground specially when 10 years have already passed and the petitioner was also punished for his over-stay. This Court while directing the State Govern ment to reconsider the case held that in rejection Form-A on the ground that he over-stayed the period of parole in 1985 is not proper ground specially when 10 years have already passed and the petitioner was also punished for his over-stay. In these circumstances, this Court directed the State Government to reconsider the pre mature release of the petitioner again on merit. Here, it may be pointed out that all the reports submitted by the authorities under the Act are in favour of the petitioner but even then this Court directed the State to reconsider the matter in the light of the observations made by the Court because it is within the domain of the State to direct release of any convict on licence under the Act. In compliance of the order passed by this Court, the State Government again reconsidered Form-A of the petitioner and again rejected the same by the impugned order. The petitioner aggrieved by the said order filed the present writ petition before this Court. The present writ petition came up for hearing before the Bench of this Court on 14-3-1997. The Bench after hearing the parties counsel came to the conclusion that there was conflict of opinion between the two Division Benches of this Court regarding directing the release of convict whose Form-A has been rejected by the Government. The Bench pointed out that in the case of Radha Raman v. State of U. P (WP. No. 143 (H/c)of 1996) relying on the judgment of the Honble Supreme Court, took the view that this Court has no juris diction under Article 226 of the Constitu tion of India or under Section 482, Cr. P. C. to commute the sentence and release the prisoner. This Court can only direct the State Government to consider the release of a particular convict in accordance with law. 3. In another case Cheta v. State of U. P. , 1996 Lucknow Criminal Reports 262, this Court allowed the writ petition and directed the release of the convict on licence in accordance with law. This Court can only direct the State Government to consider the release of a particular convict in accordance with law. 3. In another case Cheta v. State of U. P. , 1996 Lucknow Criminal Reports 262, this Court allowed the writ petition and directed the release of the convict on licence in accordance with law. The Bench while referring this matter to the Full Court overlooked the fact that if a point has already been decided by the Honble Supreme Court or the Bench of this Court has decided the point relying on the judg ment of the Honble Supreme Court then the same would prevail and the other cases decided by this Court against the principle laid down by the Honble Supreme Court will have no relevance and cannot be said to be a good law. The Bench while refer ring the matter has also not considered the question on merit and straightaway referred this dispute to Full Bench. During the pendency of the writ petition, the petitioner also died, therefore, the petition also abates. However, as the mat ter has been referred and, therefore, in order to resolves the controversy keeping in view the Honble Supreme Courts decision in the case of Union Teiritory of Chandigarh v. Charan feet Kaur, (1996) 7 SCC 492 :1996 JIC 535 (SC) and the State of Punjab v. Kesar Singh, 1996 SCC (Crl.) 1034, we thought it proper to give reply. 4. In the case of Union Territory of Chandigarh v. Charan feet Kaur (supra), the point before the Honble Supreme Court was as to whether the High Court has jurisdiction under Article 226 of the Constitution of India or under Section 482 of Code of Criminal Procedure, 1973 to release the prisoner. While giving reply to the above mentioned question, the Honble Supreme Court held that the High Court committed an error in direct ing the release of the convict and, at best, in the appropriate cases the High Court can direct the Government to consider the commutation of sentence and premature release of a particular convict if, he has served out the mandatory minimum sen tence. It is not disputed that the State Government is the competent authority to release a debenture maturely on licence. It is not disputed that the State Government is the competent authority to release a debenture maturely on licence. In these circumstances, the Honble Apex Court took the view that the High Court committed an error and has no jurisdiction to direct the release of the detenu under Section 482, Cr. P. C. or under Article 226 of Constitution of India. There is no doubt that the question of application of Section 482 of Code of Criminal Procedure in these proceedings does not arise and the parties counsel before us also conceded to this extent that Section 482 of Code of Criminal Procedure has no application for premature release on licence. As pointed out above, it is within the domain of the State Government under the Act to con sider the question of premature release of any convict on licence. It is also not dis puted that there are certain conditions for premature-release. It is the mandatory provision that a convict must have com pleted minimum 14 years sentence. Apart from this, the provisions of the U. P. Prisoners Release on Probation Act provides that Form-A will be submitted to the State Government through proper channel and thereafter, the same will be sent to the Probation Board. The Act fur ther provides the thereafter the District Magistrate, Superintendent of Police and Probation Officer will submit their reports and thereafter, the Board will consider the said reports and submit its report to the State Government. The State Govern ment thereafter, shall consider the report of the Probation Officer and pass suitable orders in accordance with law for prema ture release of the convict. The procedure is mandatory and the same shows that it is within the doman of the State to consider Form-A of the convict and pass suitable orders after considering the reports sub mitted by the Board as well as other authorities. In these circumstances, no one can file writ petition before the High Court under Article 226 of Constitution of India for premature release of the convict on licence without approaching the State Government first. 5. It is settled law that the authority to whom the jurisdiction vests, is the com petent authority to pass orders and in these circumstances, the High Court will not exercise its jurisdiction to entertain a petition under Article 226 of Constitution of India and pass order of release on licence. 6. 5. It is settled law that the authority to whom the jurisdiction vests, is the com petent authority to pass orders and in these circumstances, the High Court will not exercise its jurisdiction to entertain a petition under Article 226 of Constitution of India and pass order of release on licence. 6. The Honble Supreme Court also in the case of Union Territory of Chan digarh v. Charan Jeet Kaur (supra) took the same view and held that the High Court cannot entertain a petition under Article 226 of Constitution of India or under Sec tion 482, Cr. PC. directly for premature release of any convict. In the case of Union Territory of Chandigarh v. Charan Jeetkaur (supra), the convict claimed that she is entitled to be released as per instructions of the State of Punjab. The Punjab Government issued some orders in exer cise of powers conferred under Section 432, Cr. PC. and under Article 161 of Con stitution of India. Charan Jeet Kaur moved a petition stating that she is en titled to be released under this order directly before the Punjab and Haryana High Court without approaching to the State Government which was admittedly the competent authority to commute the sentence and direct the release of the con vict. The instructions issued by the Government of Punjab also show that the prisoner can be released if, he fulfills cer tain conditions. The question as to whether the particular convict comes within the category of these orders or not ? lies with the Government and the Govern ment is the competent authority to pass an order but as pointed out above, Charan Jeet Kaur filed a petition directly before the High Court and the High Court directed the release of Charan Jeet Kaur without considering the fact that it is within the domain of the State of consider and pass an order for commutation of sentence as well as for release of the con vict. Similarly, in case of State of Punjab v. Kesar Singh, 1996 SCC (Crl.) 1034, the Honble Supreme Court further while reiterating the above mentioned view held that it will not be proper to the High Court to entertain a petition directly for prema ture release of the convict. Similarly, in case of State of Punjab v. Kesar Singh, 1996 SCC (Crl.) 1034, the Honble Supreme Court further while reiterating the above mentioned view held that it will not be proper to the High Court to entertain a petition directly for prema ture release of the convict. In the case of State of Punjab v. Kesar Singh (supra) also the convict filed a petition directly before the High Court for release of the convict and the State of Punjab presumed that there is nothing adverse against the con vict and he fulfills all the conditions be cause no counter-affidavit has been filed by the State and, therefore, the convict was directed to be released from jail. In these circumstances, the Apex Court while setting aside the said order held that it will not be proper for the High Court to enter tain the petition and direct the release of the petitioner/convict directly. In these circumstances, it will be proper for the High Court to direct the State Govern ment to consider and pass suitable orders in accordance with law. In fact, in the case of State of Punjab v. Kesar Singh (supra), the convict had not completed 14 years of sentence which was mandatory under rules. 7. In view of the facts stated above, we are of the opinion that the High Court cannot direct the release of the convict on the petition filed by the convict directly before the Court without first approach ing the State Government. 8. The second types of the cases are those in which the convict has approached the State Government in accordance with the rules for commutation of the sentence and for premature release on licence and the State Government, after obtaining reports from the various agencies, has rejected the convicts application for premature release. In these cases, the con vict if, files a petition under Article 226 of Constitution of India before the High Court, then the High Court, in our opinion, can entertain the petition and consider as to whether the order passed by the State Government is valid order or not? 9. In these types of cases, the petitioner/convict can file a petition under Article 226 of Constitution of India chal lenging the order passed by the State Government and also claiming for quash ing of the order. 10. 9. In these types of cases, the petitioner/convict can file a petition under Article 226 of Constitution of India chal lenging the order passed by the State Government and also claiming for quash ing of the order. 10. However, in these types of cases again the question which crops up is as to whether the High Court can direct the State Government to consider the matter after quashing the impugned order of rejection of premature release or further can issue a direction to the State Govern ment to release the convict after fulfilling the required conditions. The cases of this Court Radha Raman v. State of U. P (W. P. No. 143 (H. C.) of 1996 and Chela v. State of U. P. , 1996 Lucknow Criminal Reports 262), cited by the Division Bench while referring the matter to the Full Bench, are the cases in which the convict first ap proached the State Government and moved an application for premature release and on receipt of the said applica tion, the State Government obtained the requisite recommendations from the authorities in accordance with law and thereafter, passed an order rejecting the premature release of the convict. The con vict thereafter, filed a writ petition before this Court and this Court after hearing both the parties quashed the impugned order of rejection of the premature release passed by the State Government and directed the State Government to reconsider the matter again in the light of the observations made by the Court. In the case of Cheta v. State of U. P. (supra) a writ petition was filed challenging the order of the State Government rejecting the convicts premature release and the said writ petition was allowed vide order dated 25-7-95 and the State Government was directed to consider the case again. The State Government again rejected the said application and in fact the petitioners ap plication was not reconsidered in its cor rect perspective. The State Government again rejected the said application and in fact the petitioners ap plication was not reconsidered in its cor rect perspective. This Court, therefore, after holding that the impugned order of rejection of Form-A of the premature release of the convict is illegal and is not proper, considered the question of issuing directions of release in the following way: "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 trivial 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. " The above mentioned facts itself show that the Court even in the case of Cheta v. State of U. P. (supra) sent the mat ter to the State Government for recon sideration but the State Government again rejected the premature release of the convict without following the directions given by the Court and rejected the ap plication for premature release of the con vict. The convict then again filed another writ petition challenging the said order and in that writ petition this Court came to the conclusion that the State Government has failed to discharge its duty and the State action suffers from trivial arbitrari ness and there is no alternative except to direct the release of the petitioner and therefore, in these circumstances, this Court directed the release of the convict. 11. In a case of Radha Raman v. State of U. P. (supra) the Division Bench of this Court relying on the case of Union Territory of Chandigarh v. Charan Jeet Kaur (supra) disposed of the writ petition holding that the High Court has no jurisdiction under Article 226 of Constitution of India or under Section 482, Cr. 11. In a case of Radha Raman v. State of U. P. (supra) the Division Bench of this Court relying on the case of Union Territory of Chandigarh v. Charan Jeet Kaur (supra) disposed of the writ petition holding that the High Court has no jurisdiction under Article 226 of Constitution of India or under Section 482, Cr. P. C. to commute the sentence and release the petitioner on licence and, therefore, the writ petition was disposed of only with a direction to the State Government to issue a fresh Form-A to the convict. As pointed out above, in our opinion, the Bench while deciding the case of Radha Raman v. State of U. P. (supra) overlooked the aspect that in the case Union Territory of Chandigarh v. Charan Jeet Kaur (supra) the convict filed a peti tion directly before the High Court without moving any application before the State Government and waiting for the decision of the State Government. As pointed out above, it is within the domain of the State Government to commute the sentence or release the convict under the Act and it is also settled law that the Court should not stroll into the field of the execu tive in such matters where the executive has been authorised to take a decision and pass suitable order in accordance with law. However, it cannot be said that the order passed by the State Government on the petition of the convict is beyond the com petence of judicial review. The U. P. Prisoners Release on Probation Act, 1938 is a self contained Act and provides proce dure in detail for release of the convict on licence. The Act authorises the State Government to pass final orders. It is the duty of the State Government to pass an order in accordance with law but it cannot be said that the said orders are beyond the scope of judicial review. If, any person is aggrieved by the said orders, he may filed writ petition in this Court under Article 226 of Constitution of India and then, the High Court can scrutinize the said order and if, this Court feels that the State action cannot be sustained because it suffers from trivial arbitrariness and is against the evidence and with mala fide intention then, the Court can very well interfere with the said order and has jurisdiction to quash the same. This Court in the case of Radha Raman v. State of U. P. (supra), in our opinion, wrongly relied upon the Apex Courts ruling enshrined in the case of Union Territory of Chandigarh v. Charan Jeet Kaur (supra) and therefore, the view taken by this Court in the case of Radha Raman v. State of U. P. (supra) that this Court has no jurisdiction under Article 226 of Constitution of India to commute or release the petitioner without consider ing the legality or illegality of the im pugned order passed by the State Govern ment, is not correct. 12. This Court under Article 226 of Constitution of India can very well scrutinise the order passed by the State Government and can quash the same, if the Court comes to the conclusion that the impugned order of rejection of premature release passed by the State Government is not in accordance with law. In these cir cumstances, it will be proper to send the matter again to the State Government after quashing the order passed by the State Government rejecting the applica tion for premature release because it is within the domain of the State Govern ment to pass an order under the Act. 13. Lastly, the question is as to whether after quashing the order of rejec tion of premature release, this Court has jurisdiction to direct the State to release the petitioner after getting the required conditions fulfilled. As pointed out above, it will be proper for the Court to quash the order if, the same is found illegal and direct the State to reconsider the matter again but in exceptional cases, if, the Court finds that the State has failed to discharge its duty in accordance with the directions of the Court and has not considered the case of the petition in its true perspective and further if, the Court finds that there will be no use in sending- the matter to the State Government for reconsideration because otherwise on admitted facts, the convict is entitled to be released and the technical grounds raised by the State Government are not sustainable in the eyes of law then, in that cases, this Court, in our opinion, can direct the State to release the convict if, the convict fulfills the other require ments. For example, if, it is not disputed that the convict is entitled to be released on licence under the Law but his applica tion was rejected by the State Government on the ground that the convict had over stayed for some days when he was allowed to go on home leave about 10 or 12 years ago. It is also not disputed that the convict has already been punished for this over stay and further after this over-stay several years have already passed and his conduct inside the Jail and out side the Jail was found good. Then, in these circumstances, there will be no use to send the matter again to the State Government specially when the State on the directions of the High Court for reconsiderations, rejected the application again on the same ground which is not relevant for the purpose of the release. 14. In these circumstances, we hereby, reply the three questions in the following manner: (i) In cases where the convict moves a petition directly before the High Court under Article 226 of Constitution of India or under Section 482, Cr. P. C. without approaching the State Government then, the High Court will not entertain the petition as held by the Honble Supreme Court in the case of Union Territory of Chandigarh v. Charon Jeet Kaur (supra) and State of Punjab v. Kesar Singh (supra ). (ii) In the cases where the convict has already approached the State Government and moves an application in accordance with law for premature release and the same has been rejected by the State Government, then, the convict can approach the High Court under Article 226 of Constitution of India for quashing of the said order and in these cases, it will be proper to the High Court to issue a direction to the State Government to reconsider the matter after quashing the impugned order of rejection of premature release. (iii) In exceptional cases and where the Court comes to the conclusion that there will be no use to send the matter to the State Govern ment because on admitted facts, the petitioner/convict is entitled to be released on licence, then, the Court can direct the State Government to release the convict after getting the required conditions fulfilled in accordance with law. 15. 15. As the petitioner is reported to be dead, therefore, the present writ petition abates and is accordingly, dismissed. Petition dismissed. .