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2021 DIGILAW 217 (ALL)

Rinku v. State of U. P.

2021-02-05

SHAMIM AHMED, SURYA PRAKASH KESARWANI

body2021
JUDGMENT : 1. Heard Sri Sudheer Rana, learned counsel for the petitioner and Smt. Manju Thakur, learned A.G.A. for the State-respondents. 2. This writ petition has been filed praying for the following relief: "A-Issue a writ, order or direction in the nature of mandamus commanding the respondents to grant parole to the petitioner in connection with Sessions Trial No. Sessions Trial No. 300 of 2007, and 303 of 2007, Case Crime No. 314 of 2007, 317 of 2007, under Sections 148, 302/149 of IPC and Section 29, 30 of Arms Act, police station-Sisolar, District-Hamirpur, in connection with judgment and order passed by Additional District and Sessions Judge/Special Judge, DAA, Hamirpur, in the light of Government order No. 472-JL-22-3.07-21-G-89, and the perusal of sub-para 3-(1)(K), dated 15.2.2007, for at least for one month, so that the petitioner may get medically examined to his old aged mother, who is suffering from heart disease and is confined to bed." 3. Learned counsel for the petitioner submits that the petitioner may be released on parole for the purposes of medical treatment of his old mother who is suffering from heart disease. 4. Learned A.G.A. has raised a preliminary objection as to maintainability of the writ petition on the ground that writ petition is not the proper remedy for the purposes of parole rather the remedy lies before the competent authority under Rule 3 of the U.P. (Suspension of sentence of prisoners) Rules 2007 (hereinafter referred to as "the Rules 2007") as amended in the year 2013. 5. We have carefully considered the submissions of learned counsels for the parties and we find much force in the submission of learned A.G.A. 6. Undisputedly, the petitioner is a convict in Session Trial No. 300 of 2007 and 303 of 2007 (Case Crime No. 314 of 2007 and 317 of 2007) under Sections 148, 302/149 I.P.C. and Sections 29 & 30 of Arms Act, Police Station-Sisolar, District-Hamirpur. 7. The U.P. (Suspension of Sentence of Prisoners) Rules 2007, framed under sub-section 5 of Section 432 of Cr.P.C. deals with the procedure for suspension of sentences and the conditions on which objections presented and dealt with. 8. Rules 3, 4, 5 and 6 of the Rules 2007 as amended by the 1st Amendment Rules 2012 provide as under: "3. 7. The U.P. (Suspension of Sentence of Prisoners) Rules 2007, framed under sub-section 5 of Section 432 of Cr.P.C. deals with the procedure for suspension of sentences and the conditions on which objections presented and dealt with. 8. Rules 3, 4, 5 and 6 of the Rules 2007 as amended by the 1st Amendment Rules 2012 provide as under: "3. Power to suspend sentence.-- (1) The Government may suspend the sentences of a prisoner up to one month on the following grounds: (a) illness of prisoner's parents, husband or wife, son, daughter, brother or sister, or (b) death of any one of the relative mentioned in sub-clause (a), or (c) marriage of son, daughter, brother or sister; (d) for sowing or harvesting of agricultural crops on his own land provided no other alternative arrangement for the same is available; (e) for the essential repair of his house provided no other alternative arrangement for the same is available. 2. The Government may in special circumstances extend the period of suspension of sentence referred to in sub-rules (1) for a period not exceeding one month. 3. The District Magistrate of the district to which prisoner belongs, may suspend the sentence of a prisoner upto 72 hours on the following grounds: (a) Death of mother, father, husband or wife, son, daughter, brother or sister; (b) Marriage of son, daughter, brother or sister." "4. Extension of the period of suspension after two months: (1) The period of suspension of a sentence of a prisoner beyond two months may in exceptional circumstances, be increased with prior approval of the Governor. (2) The total period of suspension of sentence of a prisoner may ordinarily not exceed twelve months, but in exceptional circumstances the period of suspension of sentences of a prisoner may exceed twelve months with prior approval of the Governor. 5. Procedure for suspension of sentence: (1) The application for suspension of sentences may be submitted in prescribed Form-I by the prisoner himself or by a member of the family or a close relative of the prisoner in duplicate through the Superintendents of the Jail concerned, who shall forward one copy of it alongwith his comments and Jail reports in Form II to the Government and another copy to the District Magistrate concerned. (2) The Government may call for the report from the District Magistrate and Superintendent of Police concerned on the desirability of the suspensions of the sentence of the prisoner, who after conducting such enquiry as deemed necessary shall submit their report in Form III within 30 days to the Government. In appropriate cases Government may call for the opinion under sub-section (2) of Section 432 of the Code of Criminal Procedure, 1973. (3) The Government shall call for report from the Superintendent of the Jail concerned regarding age, condition of health, sentence and conduct of the prisoner in Jail. (4) No prisoner shall be released on suspension of a sentence unless he furnishes sureties alongwith personal bond to the satisfaction of the District Magistrate to the effect that he shall surrender in Jail concerned on expiry of the period of suspension of sentence and shall maintain peace and good conduct during the period of suspension of sentence. 6. Conditions for suspension of sentence.-- (1) Suspension of sentence shall not be granted to the prisoner convicted for life imprisonment for an offence of murder unless the prisoner has served minimum three years sentence without remission, and for those convicted for an offence of dacoity served minimum four years sentence without remission. In all other cases suspension of sentence shall not be granted unless the prisoner has served minimum one year sentence without remission. (2) Suspension of sentence may not be granted to a prisoner convicted for heinous crime or to a habitual offender if the District Magistrate or Superintendent of Police is of the opinion that the release of the prisoner may adversely affect peace and tranquillity of the area. (3) The period of suspension of sentence shall not count towards the period of sentence served. (4) The sentence of a prisoner may be suspended for not more than one in a calendar year: Provided that in exceptional circumstances such as death of prisoner's parents, husband or wife, son, daughter, brother or sister or marriage of a prisoner's son, daughter, brother or sister or in natural calamities. The sentence of prisoner may be suspended for the second time in a calendar year." 9. The sentence of prisoner may be suspended for the second time in a calendar year." 9. As per the Rules 2007, the Government of Uttar Pradesh may suspend the sentences of a prisoners upto one month on grounds, namely, (a) illness of prisoner's parents, husband or wife, son, daughter, brother or sister, or (b) death of any one of the relative mentioned in sub-clause (a), or (c) marriage of son, daughter, brother or sister; (d) for sowing or harvesting of agricultural crops on his own land provided no other alternative arrangement for the same is available; (e) for the essential repair of his house provided no other alternative arrangement for the same is available. 10. Sub-Rule (2) further provides that the Government may in special circumstances extend the period of suspension of sentence referred to in sub-rules (1) for a period not exceeding one month. To meet with the emergent situations in the event of death of mother, father, husband or wife, son, daughter, brother or sister; or marriage of son, daughter, brother or sister, the District Magistrate of the district to which prisoner belongs may suspend the sentence of a prisoner upto 72 hours. Thus, parole may be granted by the Government on the grounds enumerated in sub-Rule (1) of Rule 3 for one month. Extension of parole may be granted for another period not exceeding one month under sub-rule (2). To meet the emergent situations in the interest of justice, the District Magistrate of the District to which the prisoner belongs has been empowered to suspend the sentence of a prisoner upto 72 hours on the grounds mentioned in Clauses (a) and (b) of sub Rule (3) of Rule 3. 11. Extension of the period of suspension after two months is provided in Rule 4. Procedure for suspension of sentence is provided in Rule 5 which requires submission of an application in prescribed Form-I by the prisoner himself or by a member of the family or a close relative of the prisoner in duplicate through the Superintendents of the Jail concerned, who shall forward one copy of it alongwith his comments and Jail reports in Form II to the Government and other copy to the District Magistrate concerned. 12. 12. The Government may call for a report from the District Magistrate and the Superintendent of Police concerned on the desirability of the suspensions of the sentence of the prisoner, who after conducting such enquiry as deemed necessary shall submit their report in Form III within 30 days to the Government. In appropriate cases the Government may call for opinion under sub-section (2) of Section 432 of the Code of Criminal Procedure, 1973. After complying with the procedure as provided in sub Rule 1, 2 and 3 of Rule 5 of the Rules 2007 a Prisoner may be released on parole on suspension of sentence provided he furnishes security alongwith personal bond to the satisfaction of the District Magistrate to the effect that he shall surrender in Jail concerned on expiry of the period of suspension of sentence and shall maintain peace and good conduct during the period of suspension of sentence. Condition of suspension of sentence is provided in Rule 6 of the Rules 2007. Thus, a complete procedure has been provided under the Rules 2007 for suspension of sentence by the competent authority. Therefore, writ petition under Article 226 of the Constitution of India is not the proper remedy for aforesaid purpose. 13. For all the reasons aforestated we do not find any merit in the present writ petition. Consequently, the writ petition fails and is hereby dismissed.