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2018 DIGILAW 1447 (ALL)

BEBI TABASSUM v. STATE OF U. P.

2018-07-02

DINESH KUMAR SINGH I, RAMESH SINHA

body2018
JUDGMENT By the Court.—Heard Sri Kamal Krishna, learned counsel for the petitioner, Sri Brijesh Sahai, learned counsel for the respondent No. 5 and Sri Irshad Husain, learned brief holder for the State and perused the impugned order as well as material brought on record. 2. By means of the present Criminal Misc. Writ petition, the petitioner has prayed quashing of order dated 15.3.2017 passed by Joint Secretary, Karagar Prashasan Evam Sudhar Anubhag-2, Lucknow/respondent No. 2 and order dated 30.3.2017 passed by District Magistrate, Kaushambi/respondent No. 3. vide order dated 15.3.2017, Joint Secretary Government of U.P. has passed order to the effect that the Hon’ble Governor of State of U.P. exercising powers under Article 161 of the Constitution of India, has directed to release prematurely the convicted prisoner/respondent No. 5, Irshad from jail who was convicted in Sessions Trial No. 190/2005 (State v. Irshad and another) under Sections 449, 450, 302, 307, 302/34 and 307/34 I.P.C. vide judgement and order dated 1.8.2009 passed by Sessions Judge, Kaushambi awarding him with life imprisonment subject to condition that the said convicted prisoner shall furnish two sureties and one personal bond of an amount to the satisfaction of the District Magistrate Kaushambi for maintaining peace during the period of remaining sentence. vide the other impugned letter dated 30.3.2017, the District Magistrate, Kaushambi, in pursuance of the above order dated 15.3.2017 of the Joint Secretary, Government of U.P. passed an order directing the Senior Jail Superintendent, Central Jail, Naini, Allahabad to release the respondent No. 5 from jail as two sureties of an amount of Rs. five lacs each and a personal bond of a same amount had been furnished by the respondent No. 5 before the District Magistrate concerned. 3. The averments made in the petition are that the petitioner is an injured/victim and wife of the deceased of the occurrence concerning which the Case Crime No. 174 of 2005 was registered under Section 302, 452, 307, 504, 506 IPC at Police Station Kokhraj, District Kaushambi on 19.6.2005 and pursuant to the investigation in the said matter, charge-sheet was filed which was registered, an S.T. No. 190/2005 (State v. Irshad and another) which was tried jointly with S.T. No. 189/2005 (State v. Gulshad) and common judgement and order dated 1.8.2009 was passed. The learned Sessions Judge, Kaushambi had convicted and sentenced respondent No. 5 with life imprisonment and fine of Rs. The learned Sessions Judge, Kaushambi had convicted and sentenced respondent No. 5 with life imprisonment and fine of Rs. 7,000/- under Section 302/34 IPC; 10 years R.I. and fine of Rs. 2500/- under Section 449 IPC; 10 years R.I. with fine of Rs. 2500/- under Sections 307/34 IPC; 7 years R.I. and fine of Rs. 2,000/- under Section 450 I.P.C. Against the said judgement, an appeal was preferred by respondent No. 5 being Criminal Appeal No. 4977 of 2009 (Irshad and another v. State of U.P.), which was dismissed by High Court vide judgement and order dated 5.3.2013. Against the said judgement dated 5.3.2013, an S.L.P. No. 7595 of 2013 (Irshad and another v. State of U.P.) was preferred before the Hon’ble Apex Court which was also dismissed vide judgement and order dated 26.8.2014. It is further mentioned in this petition that both the impugned orders are absolutely illegal and against the provision of Section 433 A of Cr.P.C. which provides that where a sentence of imprisonment for life has been imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death is imposed on a person which has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. In the present case, respondent No. 5 was convicted with life imprisonment on 1.8.2009. In the present case, respondent No. 5 was convicted with life imprisonment on 1.8.2009. Order of premature release has been passed on 15.3.2017, therefore, period for which the respondent No. 5 has remained in detention pursuant to having been held guilty comes to 7 years 7 months and 29 days, however, during the arguments, learned counsel for the petitioner informed the Court that the respondent No. 5 has been released from jail after having served out 10 years 7 months and 13 days period and stated that the same being less than 14 years should be treated to be in the teeth of the provision under Section 433 A of the Cr.P.C. It is further mentioned in the petition that in Maru Ram v. Union of India, (1981) 1 SCC 107 , the Hon’ble Supreme Court has upheld validity of Section 433 A of the Cr.P.C. with a finding that the effect of the provision of Section 433 A of the Cr.P.C. shall be prospective meaning thereby the life convicts who have been convicted on or after 18.12.1978 are bound to serve 14 years sentence because the said provision (Section 433 A Cr.P.C.) has been brought by amendment on 18.12.1978, therefore, both the impugned orders need to be quashed. 4. It is argued emphatically that the impugned order dated 15.3.2017 passed by the Joint Secretary, Government of U.P. does not indicate as to on what basis the said order of premature release of respondent No. 5 has been passed. No reasoning has been given in the said order indicative of the fact that any judicious consideration was made by Hon’ble Governor while passing the impugned order. 5. In view of the above position of law, it is vehemently argued that the impugned order does not show application of mind and because no reason has been given as to why the respondent No. 5, who was convicted with life imprisonment, was being considered fit for release prematurely. What circumstances were found favouring his early release, therefore, it would lead to the conclusion that no application of mind was made and hence, the impugned order dated 15.3.2017 is liable to be set-aside/quashed. 6. Record reveals that the respondent Nos. 1-5 were given several opportunities to file counter-affidavit in response to which respondent Nos. 4 and 5 have filed counter-affidavits. 6. Record reveals that the respondent Nos. 1-5 were given several opportunities to file counter-affidavit in response to which respondent Nos. 4 and 5 have filed counter-affidavits. In counter-affidavit filed by respondent No. 4, Senior Jail Superintendent, Central Jail, Naini, Allahabad dated 29.7.2017, it is stated that mercy petition was submitted by the respondent No. 5 for premature release on 4.7.2016 which was forwarded by jail authorities to the District Magistrate, Kaushambi on 22.7.2016 which has been decided by Hon’ble Governor, in view of the above powers conferred upon him under Article 161 of the Constitution of India directing for premature release of respondent No. 5. The record reveals that he has undergone period of conviction of 10 years 7 months and 7 days till 21.7.2016. Pursuant to the order dated 15.3.2017 for premature release after completing certain formalities, the District Magistrate, Kaushambi passed an order dated 30.5.2017 directing Senior Superintendent, Central Jail, Naini, Allahabad for premature release of the respondent No. 5, however, it is also mentioned that co-convicted brother of the respondent No. 5, Gulshan is still in prison and was undergoing the remaining period of conviction. The impugned order is perfectly just and legal and does not suffer from any illegality or infirmity. 7. From the side of petitioner, a rejoinder-affidavit dated 17.5.2018 has been filed in which the same stand has been reiterated which was mentioned in the main petition. 8. Counter-affidavit dated 7.5.2017 has been filed by respondent No. 5 in which the same facts have been mentioned which were mentioned in the affidavit of respondent No. 4. Rejoinder-affidavit dated 17.5.2018 against the said counter-affidavit of respondent No. 5 has also been filed by the petitioner in which the same facts have been reiterated as were mentioned in the main petition. 9. In the above backdrop, we have to decide as to whether the impugned orders deserve to be quashed on the ground that no reason has been disclosed for premature release of the respondent No. 5. 10. 9. In the above backdrop, we have to decide as to whether the impugned orders deserve to be quashed on the ground that no reason has been disclosed for premature release of the respondent No. 5. 10. The learned counsel for the respondent No. 5 has relied upon Samjuben Gordhanbhai Koli v. State of Gujarat, (2010) 13 SCC 466 , wherein the Hon’ble Apex Court granted a special leave to appeal against the impugned judgment and order of the High Court of Gujarat dated 17.12.2003 passed in criminal appeal No. 812 of 1995 and pointed out that there was no infirmity in the said order as the High Court dealt with the matter in great detail and upheld the conviction of the appellant and accordingly dismissed the appeal. In this appeal, the appellant’s learned counsel had submitted that the appellant should be granted remission of rest of her sentence, to which it was expressed by the Hon’ble Court that remission could only be granted by the executive authorities and that the appellant would be free to seek appropriate redress from the appropriate Government by making a representation praying for a pardon or remission of sentence in terms of Sections 432 of the Code of Criminal Procedure or under Articles 72 or 161 of the Constitution of India. It was further clarified that the power of the President of India under Article 72 and of the Governor under Article 161, being a constitutional power, could not be under the restriction imposed by Section 433 - A Cr. P.C.. Section 433 - A Cr. P.C. can restrict the power under Sections 432 Cr. P.C. or Section 433 Cr. P.C. but it cannot restrict the constitutional powers under Article 72 or Article 161 of the Constitution, just as no limitation statute can restrict the constitutional power of the High Court under Article 226 of the Constitution. This was because of the Constitution being a higher law than the statute which is subordinate to it. 11. The other case relied upon by the learned counsel for the respondent No. 5 is Ram Deo Chauhan @ Raj Nath v. Bani Kanta Das and others, (2010) 14 SCC 209 . In this matter, the Supreme Court in appeal and thereafter in review confirmed the death sentence of the accused convicted under Sections 302, 323, 325 and 326 IPC. The other case relied upon by the learned counsel for the respondent No. 5 is Ram Deo Chauhan @ Raj Nath v. Bani Kanta Das and others, (2010) 14 SCC 209 . In this matter, the Supreme Court in appeal and thereafter in review confirmed the death sentence of the accused convicted under Sections 302, 323, 325 and 326 IPC. Even before the judgment on the said review petition (first review) the accused, on 17.8.2000 had already filed petition before the Governor praying for mercy and for commutation of his death sentence to one of life imprisonment. At about the same time when the petition for consideration was pending, National Human Rights Commission initiated action on the basis of a newspaper Article titled “Has a Child been Executed in India?” by Doctor Ved Kumari, Professor of Law, University of Delhi on the question of imposition of death sentence. In the meantime, the judgment of the first review petition, as aforesaid, was pronounced by the Supreme Court on 10.5.2001 i.e. Ramdeo Chauhan case, (2001) 5 SCC 714 . NHRC, upon considering the materials on record recommended commutation and the Governor, on 28.1.2002, commuted the death sentence of the petitioner to one of life imprisonment after due consideration of all materials. Challenging the aforesaid order of the Governor, the relatives of the deceased filed a writ petition under Articles 32 of the Constitution of India. In the said writ petition, by order dated 21.1.2009, Bani Kanta Das case, (2010) 14 SCC 229 ] notice was issued to Professor Ved Kumari, asking her to state as to how her complaint before NHRC was maintainable. Pursuant thereto, Professor Ved Kumari submitted an affidavit stating that the Juvenile Justice (Care and Protection of Children) Act, 2000 applied to all pending cases and was extended to all children who had not completed 18 years of age; and thus it would also be applicable to the present case. After hearing the writ petition, the impugned order dated 8.5.2009 passed in Bani Kanta Das case, (2009) 15 SCC 206 , the order of Governor dated 28.1.2002 of commutation of death sentence to life imprisonment was set aside. The accused had filed the review petition there-against. After hearing the writ petition, the impugned order dated 8.5.2009 passed in Bani Kanta Das case, (2009) 15 SCC 206 , the order of Governor dated 28.1.2002 of commutation of death sentence to life imprisonment was set aside. The accused had filed the review petition there-against. Allowing the review petition, the Supreme Court held that unless the exercise of power by Governor under Article 161, is ex facie perverse or is based on a rule of thumb, the Court should not interfere for mere non-disclosure of reasons. No doubt the power of clemency of President or the Governor under articles 72 and 161 respectively is not totally immune from judicial review. Where the exercise of power is just by way of a rule of thumb and totally arbitrary or out of personal vendetta, the Court may interfere. The finding in the judgment on Article 32 petition in Bani Kanta Das case, (2009) 15 SCC 206 that the order of the Governor directing commutation “does not indicate any reason” is vitiated by errors apparent on the face of the record. The commutation of sentence by the Governor in exercise of powers under Article 161 does not call for any interference. The order of the Governor was held not vitiated. The Governor was found to have considered in detail recommendation of NHRC and other relevant materials also. Therefore, more than adequate reasons were available on record of the case. While exercising power of commutation under Article1 61 of the Constitution, the Governor is to act on the aid and advice of the Council of Ministers. On consideration of the detailed note made by the Chief Minister’s secretariat, the chief minister approved the commutation on 22.10.2001 and the Governor approve the proposal on 12.1.2002. Thus, the judgement dated 8.5.2009 in Bani Kanta Das case, (2009) 15 SCC 206 , which was under review was set aside and the order of the Governor dated 28.1.2002 passed under Article 161 of the Constitution was restored and the order of commutation of death sentence awarded to the petitioner to one of life imprisonment was upheld. 12. Thus, the judgement dated 8.5.2009 in Bani Kanta Das case, (2009) 15 SCC 206 , which was under review was set aside and the order of the Governor dated 28.1.2002 passed under Article 161 of the Constitution was restored and the order of commutation of death sentence awarded to the petitioner to one of life imprisonment was upheld. 12. On the basis of aforesaid two citations, the learned counsel for the respondent 5 proposed to argue that there was no infirmity in the impugned orders, because even if the Hon’ble Governor did not give reason for passing the impugned order, the same cannot be held to be vitiated as it could not be held to have been passed under rule of thumb or totally arbitrarily or out of personal vendetta. We unfortunately do not agree with the viewpoint of learned counsel for the respondent 5 because in the citation relied upon by him above, it is made clear that in arriving on a decision with regard to limitation of death sentence to life imprisonment, the help was taken by advice of the council of ministers, but in the case at hand in the counter-affidavit nowhere has it been mentioned that any note was prepared in respect of granting premature release to the respondent No. 5 by the officials which might have been considered by the council of ministers and thereafter the same might have been taken into consideration by Hon’ble Governor in arriving on the said conclusion. Therefore, the said decision appears to have been taken arbitrarily. 13. The learned counsel for the petitioner has relied upon State of Haryana and others v. Jagdish, (2010) 4 SCC 216 , in which respondent was convicted vide judgment and order dated 20.5.1999 under Sections 302, 148 and 149 IPC and sentenced to life imprisonment. The policy which was in existence at that point of time was dated 4.2.1993. The respondent, having served more than 10 years’ imprisonment, approached the High Court with the case that in spite of having undergone the sentence as per the policy dated 4.2.1993, his case for premature release was not being considered in view of the new policy of short - sentencing, introduced on 13.8.2008. The respondent, having served more than 10 years’ imprisonment, approached the High Court with the case that in spite of having undergone the sentence as per the policy dated 4.2.1993, his case for premature release was not being considered in view of the new policy of short - sentencing, introduced on 13.8.2008. The High Court placing reliance on judgements of the Supreme Court in Mahender Singh’s case, (2007) 13 SCC 606 and Bhup Singh’s case, (2009) 2 SCC 268 , came to the conclusion that the case of the respondent for premature release was to be considered in the light of the short - sentencing policy existing on the date of his conviction and thus, a direction was issued to the State authorities to consider his case for premature release in view of the policy dated 4.2.1993. A different view had been taken in State of Haryana v. Balwan, (1999) 7 SCC 355 . So in view of conflicting views on the question, the matter came up for consideration before the Hon’ble Supreme Court. The Hon’ble Supreme Court affirming the High Court’s decision and dismissing the appeal held that Articles 72 and 161 of the Constitution provides for a residuary sovereign power, thus, there can be nothing to debar the authority concerned to exercise such power, even after rejection of one clemency petition, if changed circumstances so warrant and in exceptional circumstances, variation from the policy is permissible. Thus, it is evident that the clemency power of the executive is absolute and remains unfettered for the reason that the provisions contained in Article 72 or 161 of the Constitution cannot be restricted by the provisions of Sections 432, 433 and 433-A Cr. P.C. though the authority has to meet the requirements of rule of law while exercising the clemency power. To say that clemency power under Article 72/161 of the constitution cannot be exercised by the President or the Governor, as the case may be, before a convict completes the incarceration period provided in the short - sentencing policy, even in an exceptional case, would be mutually inconsistent with the theory that clemency power is unfettered. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. The expectancy of period of incarceration is determined soon after the conviction on the basis of the applicable laws and the established practices of the State. When a short - sentencing scheme is referable to Article1 61 of the Constitution, it cannot be held that the said scheme cannot be pressed in service. Even if a life convict does not satisfy the requirement of remission rules/shorter - sentencing schemes, there can be no prohibition for the President or the Governor of the State, as the case may be, to exercise the power of clemency under provisions of Article 72 and 161 of the Constitution. Right of the convict is limited to the extent that his case can be considered in accordance with the relevant rules, etc. He cannot claim premature release as a matter of right. It is further held that earlier policies including the policy dated 4.2.1993 refers to the exercise of powers under Article 161 of the Constitution whereas the policy dated 13.8.2008 is an exercise of powers under Sections 432 read with Section 433 and 433-A Cr.P.C. The restriction under Sections 433-A is only to the extent of the powers to be exercised in respect of offences as referred to under Section 432 Cr.P.C. The Notification dated 13.8.2008 is, therefore, under rule of procedure, which is subordinate to the Constitution. The power exercised under Article 161 of the Constitution is obviously a mandate of the Constitution and, therefore, the policy dated 13.8.2008 cannot override the policy dated 4.2.1993. The right of the respondent prisoner, therefore, to get his case considered on a par with such of his inmates, who were entitled to the benefit of the said policy dated 4.2.1993, cannot be taken away by the policy dated 13.8.2008. The High Court was absolutely justified in arriving at the conclusion that the case of respondent was to be considered on the strength of the policy that was existing on the date of his conviction. Further it is held that Section 433 A Cr. P.C. and the short - sentencing policy would apply prospectively. The High Court was absolutely justified in arriving at the conclusion that the case of respondent was to be considered on the strength of the policy that was existing on the date of his conviction. Further it is held that Section 433 A Cr. P.C. and the short - sentencing policy would apply prospectively. The life convicts who had been sentenced prior to 18.12.1978 i.e. date of enforcement of amendment would not come within the purview of provisions of Sections 433 A Cr.P.C. Remission rules/short - sentencing policies could be taken as guidelines for exercise of power under Article 72 or 161 of the Constitution and in such an eventuality, remission Rules will override Section 433 A Cr.P.C. Further it is held that the power of sovereign to grant remission is within its exclusive domain which is incorporated in Article 72 and Article 161 of the Constitution. This power was never intended to be used or utilised by the executive as an unbridled power of reprieve. Power of clemency is to be exercised cautiously and in appropriate cases, which in effect, mitigates the sentence of punishment awarded and which does not, in any way, wipe out the conviction. It is a power which the sovereign exercises against its own judicial mandate. The act of remission of the State does not undo what has been done judicially. The punishment awarded through a judgment is not overruled but the convict gets benefit of liberalised policy of State pardon. However, the exercise of such power under Article 161 of the Constitution or under Section 433 A Cr.P.C. may have a different flavour in the statutory provisions, as shorter - sentencing policy brings about a mere reduction in the period of imprisonment whereas an act of clemency under Article 161 of the Constitution commutes the sentence itself. Moreover, reasons have to be indicated while exercising power under Articles 72/161 and such power can be the subject-matter of limited judicial review. Further it is held that the legal maxim,veniae facilitas incentivum est delinquendi, is a caveat to the exercise of clemency powers, as it means - “facility of pardon is an incentive to crime”. It may also prove to be “grand farce”, if granted arbitrarily, without any justification, to “privileged class deviants”. Thus, no convict should be a “favoured recipient” of clemency. It may also prove to be “grand farce”, if granted arbitrarily, without any justification, to “privileged class deviants”. Thus, no convict should be a “favoured recipient” of clemency. Further it is held that at the time of considering the case of premature release of his life convict, the authorities may require to consider his case mainly taking into consideration whether the offence was an individual act of crime without affecting the society at large; whether there was any chance of future recurrence of committing a crime; whether the convict had lost his potentiality in committing the crime; whether there was any fruitful purpose of confining the convict anymore; the socio - economic condition of the convict’s family and other similar circumstances. Further it is held that considerations of public policy and humanitarian impulses - supports the concept of executive power of clemency. If clemency power is exercised and sentences remitted, it does not erase the fact that an individual was convicted of a crime. It merely gives an opportunity to the convict to reintegrate into the society. The modern penology with its correctional and rehabilitative basis emphasises that exercise of such power be made as a means of infusing mercy into the justice system. Power of clemency is required to be pressed in service in an appropriate case. Exceptional circumstances e.g. suffering of a convict from an incurable disease at the last stage, may warrant his release even at a much earlier stage.Vane est illa potentia quae nun venit in actum means - vain is that power which never comes into play. 14. The other case law relied upon by the learned counsel for the petitioner in the petition itself is Maru Ram v. Union of India, (1981) 1 SCC 107 , in which the contention was made that by introduction of Section 433 A, Section 432 is excluded for certain classes of lifers and Section 433 (a) suffers eclipse. Since Section 432 and 433 (a) are statutory expressions and modus operandi of the constitutional power, Section 433 A would be ineffective because it detracts from the operation of Section 432 and 433 (a) which are legislative surrogates, as it were, of the pardon power under the Constitution. Since Section 432 and 433 (a) are statutory expressions and modus operandi of the constitutional power, Section 433 A would be ineffective because it detracts from the operation of Section 432 and 433 (a) which are legislative surrogates, as it were, of the pardon power under the Constitution. Considering the matter it was held by the Hon’ble Apex Court that although power under its Article 72 or Article 161, which is constitutional and that under Section 432 and 433 (a), which is a statutory, may be similar but they are not the same or identical. The two powers differ in their source, substance and strength. The constitutional power is untouchable and unapproachable and cannot suffer the vicissitudes of simple legislative processes. Therefore, Section 433 A cannot be invalidated as indirectly violative of Article 72 and 161. What the Code gives, it can take, and so, an embargo on Section 432 and 433 (a) is within the legislative power of Parliament. Further it is held that undoubtedly, Section 433 A does not and cannot affect the pardon power under Article 72 or 161 and therefore, notwithstanding Section 433 A the President and the Governor continue to exercise the power of commutation and release under the aforesaid articles. In exercising this power the Governor or the President act and must act not on their own judgment but in accordance with the aid and advice of their council of ministers. But all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal expression are guarantors of the valid play of power. The power being of the greatest moment cannot be a law unto itself but must be informed by the finer canons of constitutionalism spelt out in R.D. Shetty and Punnan Thomas cases. All power, whatever its source, must in its exercise anathematise arbitrariness and obey standards and guide-lines intelligible and integrated with the manifest purpose of the power. Hence the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of Presidential power. The Court, if it finds frequent misuse of this power may have to investigate the discrimination. Therefore, the proper thing to do is to make rules for its own guidance in exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments. The Court, if it finds frequent misuse of this power may have to investigate the discrimination. Therefore, the proper thing to do is to make rules for its own guidance in exercise of the pardon power keeping, of course, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination. Such Rules of remission may be effective guidelines of a recommendatory nature, helpful to Government to release the prisoner by remitting the remaining term. Further it is held that until fresh rules were made in keeping with experience gathered, current social conditions and accepted penological thinking, the present remission and release schemes could usefully be taken as guidelines under Articles 72/161 and orders for release passed. The Government is not at fault if in some intractably savage delinquents, Section 433 A is itself treated as a guideline for exercise of Articles 72/161. It was further held that these observations were recommendatory to avoid a hiatus, but it is for the Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme. 15. From the above citations, the position of law is absolutely clear that if a consideration is made for premature release of a convicted person who has been awarded life imprisonment, under Article 161 of the Constitution of India, the same can be done despite the fact that there is specific provision in Cr.P.C. under Section 433 A stipulating that such convicts must have remained in jail for minimum 14 years but it is essential that reasons ought to be given as to what considerations were made; whether there would be any chance of the convict committing the crimes again; whether the convict had lost potentiality to commit the crime; whether any fruitful purpose would be served by confining him any further; what was socio-economic condition of the convict and other circumstances, such as whether the convict was suffering from any incurable disease at the last stage etc. which would justify his early release. Such kind of consideration may be required to be made while considering a case of premature release of a convict. which would justify his early release. Such kind of consideration may be required to be made while considering a case of premature release of a convict. It may also be mentioned here that Hon’ble Governor is supposed to act on the aid and advice of the council of ministers and in case such advice contains valid reasons for premature release of the convicted accused the same may be considered by the Hon’ble Governor and pass a suitable order. In the case at hand, there does not seem to be any such consideration made because in counter-affidavits filed from the sides of the respondents mentioned above, nothing has emerged as to whether any note was put up by the officials which might have been considered by the council of ministers and in turn, thereafter by the Hon’ble Governor while considering the release of the respondent No. 5. The impugned order does not reflect any such consideration to have been made and hence, the same would fall in the category of being an order passed arbitrarily. 16. In view of the above facts, we are constrained to hold that the impugned order dated 15.3.2017 not being supported with any reasoning deserves to be quashed and consequently the other order dated 30.3.2017 passed by District Magistrate also needs to be set-aside and accordingly, they are set-aside. We further direct that a fresh consideration be made in the matter of the respondent No. 5 in accordance with law giving the reasons. 17. This Writ Petition is, accordingly, allowed with a direction that a fresh consideration shall be made within six months from today ensuring that the same is passed well supported with reasoning.