JUDGMENT : Pankaj Naqvi, J. Heard Sri Rajeev Chaddha, learned counsel for the petitioner, Sri Manish Goyal, learned Addl. A.G. assisted by Sri A.K. Sand for the State and Sri Sudhir Mehrotra for the subordinate court. 1. The petitioner originally sought for quashing of an order dated 2.3.2020 (Annexure-4) passed by respondent no. 1 / State refusing to release the petitioner under Section 433 of the Code and also sought for quashing of order dated 29.1.2021 by way of an amendment application dated 01.02.2021 whereby request for release was again declined. FACTUAL MATRIX 2. Admittedly the petitioner is in custody since 18.3.1998 in connection with Case Crime No. 1311/1997 under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur. He in above case was put on trial in S.T. No. 142/1988. During trial, he was bailed out by this Court on 9.7.2003 and released on 26.7.2003. Further, he was convicted and sentenced to life imprisonment on 16.6.2007. He preferred an appeal before this Court and was released on bail on 1.10.2012. His appeal finally came to be dismissed on 23.5.2014. He surrendered before the court below on 23.8.2014 and since then he is in jail and as on date has undergone incarceration of more than 17 years. 3. Upon completing 16 years of custody, the mother of the petitioner staked a claim for release of her son under Section 433 of the Code on 27.7.2019 before the State Government. But as the claim was not decided, petitioner preferred Criminal Misc. Writ Petition No. 22178/2019 which came to be disposed on 30.9.2019 with a direction to decide the claim within 3 months. Pursuant thereto, the claim came to be rejected on 2.3.2020, impugned in the present petition. 4. The claim was rejected on the sole ground that the total detention period of the petitioner was only 12 years 10 months 29 days as against the requisite period of 16 years (without remission) under the G.O. dated 1.8.2018. It appears that the State Government while passing the order dated 2.3.2020 was misled as it did not have before it, the custody warrant of the petitioner taking him into the custody by the C.J.M., Gorakhpur on 18.3.1998 in Case Crime No. 1311/1997, under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur. 5. It appears that the State Government while passing the order dated 2.3.2020 was misled as it did not have before it, the custody warrant of the petitioner taking him into the custody by the C.J.M., Gorakhpur on 18.3.1998 in Case Crime No. 1311/1997, under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur. 5. With a view to resolve the above discrepancy i.e. as to on what date the petitioner was actually taken into custody in Case Crime No.1311/1997 under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur, we called upon the C.J.M., Gorakhpur to submit a report in the light of our order dated 14.10.2020. Pursuant thereto, a report dated 12.11.2020 was submitted through Sri Sudhir Mehrotra, Advocate opining that the CJM, Gorakhpur had taken the petitioner into custody in Case Crime No. 1311/1997 on 18.3.1998 then the period of custody is to be computed from the said date. Sri A.K. Sand, the learned AGA rightly submitted on 15.12.2020 that if a mistake has been committed by the CJM by not enclosing the custody warrant of the petitioner dated 18.3.1998 in his records, rights of the petitioner under Section 433 of the Code cannot be jeopardized. He also undertook on 15.12.2020 to place the matter before the competent authority to review its earlier decision dated 2.3.2020 in the light of above backdrop within 3 weeks. Matter was taken up on 13.1.2021 which records the following order:- “Sri A.K. Sand, learned AGA states that he personally spoke to the Additional Chief Secretary, who has assured that orders for releasing petitioner shall be positively passed within 10 days. We have no reason to disbelieve his statement. List again in the additional cause list on 25.1.2021.” 6. The matter was again taken up on 25.1.2021 wherein following order was passed:- “Heard Sri Rajeev Chaddha, learned counsel for the petitioner and Sri A.K. Sand, learned counsel for the respondents. Sri A.K. Sand prays for and is granted last opportunity to ensure that order passed by the Additional Chief Secretary on the intervention of this Court on 16.01.2021 is executed in letter and spirit so that petitioner is set at liberty, as the same is to be carried out by the instrumentalities of the State, else the Additional Chief Secretary, Prison Administration and Reforms, U.P., Lucknow shall remain personally present on 28.01.2021. List on 28.01.2021.” 7. We clarify that in the above order, 16.1.2021 be read as 13.1.2021. List on 28.01.2021.” 7. We clarify that in the above order, 16.1.2021 be read as 13.1.2021. The matter was taken up on 28.1.2021 wherein following order was passed:- “We have heard Sri Rajeev Chaddha, learned counsel for the petitioner, Sri Manish Goel, learned A.A.G. and Sri A.K.Sand, learned A.G.A. An affidavit of compliance and an exemption on behalf of Additional Chief Secretary (Home) has been filed. We have perused both the affidavits but not satisfied with the alleged compliance or with the cause for exemption. Matter involves life and liberty of the petitioner/detenue who is entitled for release under Section 433 of the Code. We adjourn the matter on the assurance given by Sri Manish Goel, learned A.A.G. and Sri A.K.Sand, learned AGA that previous order of this Court dated 25.01.2021 shall be complied with, else the Additional Chief Secretary (Home) shall ensure his personal presence. List on 01.02.2021 in the additional cause list at 2.00 pm.” 8. On 1.2.2021, an affidavit of compliance dated 30.1.2021 was filed on behalf of the Addl. Chief Secretary (Home), U.P., Lucknow, annexing therewith a fresh order dated 29.1.2021, declining the request of the release of the petitioner. The petitioner challenged the order dated 29.1.2021 by an amendment application dated 1.2.2021. 9. We on 1.2.2021 directed the learned AGA to produce the entire original records. The original records were produced before us. We also directed the Addl. Chief Secretary to file his personal affidavit to the amendment application. However, neither any personal affidavit as desired above was filed nor was any time sought on his behalf and on the contrary Sri Manish Goyal, the learned Addl. A.G. assisted by Sri A.K. Sand, the learned AGA on 1.3.2021 and 9.3.2021 gave an impression that the matter is again under active consideration of the State Government. We were informed by the learned Addl. A.G. on 16.3.2021 that the request of the petitioner has been declined on 12.3.2021 for the third time. We refuse to take cognizance of rejection dated 12.03.2021 as it is a mere reiteration of earlier order dated 29.01.2021. On 16.3.2021 Sri Ashutosh Mishra, holding brief of Ms. Swati Agrawal, learned counsel for the informant appeared for the 1st time contending that he has not been heard but we declined to hear him as according to us, the informant has no right in such matters that too at this stage. RIVAL CONTENTIONS 10. On 16.3.2021 Sri Ashutosh Mishra, holding brief of Ms. Swati Agrawal, learned counsel for the informant appeared for the 1st time contending that he has not been heard but we declined to hear him as according to us, the informant has no right in such matters that too at this stage. RIVAL CONTENTIONS 10. Learned counsel for the petitioner challenges the impugned orders principally on the following grounds:- (i) Once the State Government under its initial order dated 2.3.2020 rejected the claim of the petitioner on the sole custodial detention as envisaged in the G.O. dated 1.8.2018 which was wrongly calculated on account of an error committed by the C.J.M. concerned as he did not enclose the custodial warrant dated 18.3.1998 in his records which issue came to be resolved finally on 15.12.2020, calculating the detention as more than 17 years and there being nothing adverse under the order dated 2.3.2020, the subsequent impugned order dated 29.1.2021 rejecting the claim on the ground of criminal history and on vague allegations of threat perception is malafidely motivated. (ii) The basis of rejection under the impugned order dated 29.1.2021 is two-fold, firstly, the petitioner is a habitual / professional killer and is a part of a gang and secondly the family of the victim has apprehensions that in the event of release of the petitioner, life and security of the family of the victim would be at severe risk, while none of the above grounds could be the basis for rejection under Clause-3 of the G.O. dated 1.8.2018. Clause 3 (xiv) presupposes a conviction in respect of professional killings while petitioner stands acquitted in 2 cases (out of 4 murder cases) i.e. in Case Crime Nos. 796/2005 & 670/2013 and is a witness of charge-sheet in Case Crime No. 1539/2006 and in Case Crime No.1311/1997, has served more than 17 years of incarceration with no appeal either by State or by the family of the victim and in so far apprehension of the family of the victim is concerned that they would be at potential risk if the petitioner is released, is not a prescribed parameter for rejection of the claim under the G.O. dated 1.8.2018. Thus, it is submitted that the impugned order is not only based on irrelevant considerations but also suffers from the vice of absolute non-application of mind and this Court in exercise of its extraordinary power may direct the respondents to release the petitioner. 11. Per contra, Sri Manish Goyal, the learned Addl. A.G. assisted by Sri A.K. Sand, the learned AGA submitted that the power under Section 433 of the Code is an extraordinary power conferred on the State which is to be exercised on the parameters laid in the policy dated 1.8.2018. He would thus submits that the order dated 2.3.2020 by which the claim was rejected on the ground of incomplete detention period, would not prevent the State Government, considering other materials on record, while having a fresh relook under the order dated 29.1.2021. Alternatively, it was his submission that only when a convict fulfills the period of requisite detention as laid down in G.O. dated 1.8.2018, the application for release under Section 433 of the Code becomes maintainable under law leaving it open for the State to consider the claim on merits as provided under the G.O. dated 1.8.2018. Sri Goyal in order to buttress his submission, placed reliance on multiple authorities which shall be considered at an appropriate place. He finally submitted that there are materials on record to indicate that the petitioner after release on bail by this Court, is alleged to have committed yet another murder which was registered as Case Crime No. 670/2013 and that acquittal in both cases is based on hostile testimony. ANALYSIS 12. The appropriate Government under Section 433 of the Code is conferred with the power to commute various type of sentences for different punishment including payment of fine. Section 433-A inserted by Act No. 45 of 1978 w.e.f. 18.12.1978 provides restrictions on powers of remission or commutation in certain cases. 13. Section 433 and 433-A of the Code are quoted hereunder:- 433. Power to commute sentence. Section 433-A inserted by Act No. 45 of 1978 w.e.f. 18.12.1978 provides restrictions on powers of remission or commutation in certain cases. 13. Section 433 and 433-A of the Code are quoted hereunder:- 433. Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine. 433-A. Restriction on powers of remission or Commutation in certain cases-Notwithstanding anything contained in section 432, where a sentence of imprisonment for life is 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 imposed on a person 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. 14. Section 433 of the Code confers power on the State Government to commute a sentence of death for any other punishment under the IPC; a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; a sentence of simple imprisonment, for fine. 15. Section 433-A begins with a non-obstante clause qua Section 432 by providing a restriction that where life imprisonment is awarded for an offence for which death is one of the punishment or where death is commuted under Section 433 for life imprisonment, such person shall not be released unless he had served at least 14 years of imprisonment. To put it differently, incarceration of 14 years is a must for a premature release where a convict is awarded life imprisonment for whch death is one of the punishment provided or where death is commuted to life under Section 433 of the Code. 16. The State in exercise of its powers under Section 433 of the Code has framed a policy dated 1.8.2018 for release of life convicts. 16. The State in exercise of its powers under Section 433 of the Code has framed a policy dated 1.8.2018 for release of life convicts. We deem appropriate to quote the entire text of policy as under: Lak[;k&564@2018@1106@22-2-2018&07th@2018 Ás"kd vjfoUn dqekj] Áeq[k lfpo] mRrj Áns’k 'kkluA lsok esa] egkfujh{kd] dkjkxkj Á’kklu ,oa lq/kkj lsok;sa] mRrj Áns’k] y[kuÅA dkjkxkj Á’kklu ,oa lq/kkj vuqHkkx&2 y[kuÅ% fnukad 01 vxLr] 2018 fo"k;%& vkthou dkjkokl ls nf.Mr cafn;ksa dh ÁR;sd o"kZ x.kra= fnol ¼26 tuojh½ ds volj ij le;iwoZ eqfDr ds lEcU/k esa LFkkbZ uhfrA egksn;] vkthou dkjkokl ls nf.Mr gksus dh n’kk esa cafn;ksa ds yach vof/k ls dkjkxkj esa fu:f} ds dkj.k u dsoy Áns’k dh dkjkxkjksa esa vksoj dzkmfMax dh fLFkfr mRiUu gksrh gS] oju cafn;ksa esa grk’kk o dq.Bk Hkh iuirh gS ftlls vkijkf/kd U;k; O;oLFkk] canh lq/kkj ,oa iquokZl dk mn~ns’; ÁHkkfor gksrk gSA jk"Vªh; ekuokf/kdkj vk;ksx ,oa ek0 U;k;ky;ksa }kjk vkthou dkjkokl ls nf.Mr cafn;ksa dh le;iwoZ fjgkbZ fd;s tkus ds lEcU/k esa le;≤ ij leh{kk djus o LFkkbZ uhfr cuk;s tkus ds funZs’k fn;s x;s gSA ek0 mPPk U;k;ky; bykgkckn }kjk fjV ;kfpdk la[;k& 6041@2018] pUnzklh ,oa vU; cuke mRrj Áns’k jkT; ,oa vU; esa fnukad 16-04-2018 dks fn;s x;s vius fu.kZ; esa fl)nks”k cafn;ksa dh le;iwoZ eqfDr ds lEcU/k esa Li"V uhfr cukus dh vis{kk jkT; ljdkj ls dh gSA vr% vkthou dkjkokl dh ltk ls nf.Mr fl)nks”k cafn;ksa dh le; iwoZ fjgkbZ ds lEcU/k esa LFkkbZ uhfr cuk;s tkus dh vko’;drk gSA dkjkxkj foHkkx ds vkns’k la[;k& 491@22-2-2018&7 th@2018 fnukad 03-04-2018 }kjk bl lEcU/k esa xfBr lfefr dh vuq’kalk ds vk/kkj ij m0Á0 ds U;k;ky;ksa }kjk vkthou dkjkokl dh ltk ls nf.Mr fl)nks”k cafn;ksa dh le;iwoZ fjgkbZ ds lEcU/k esa fuEUkor LFkkbZ uhfr fu/kkZfjr dh tkrh gSA 1- Jh jkT;iky egksn; Hkkjr ds lafo/kku ds vuqPNsn&161 esa Ánr 'kfDr;ksa dk Á;ksx djrs gq;s ,rn~}kjk ÁR;sd o"kZ x.kra= fnol ds volj ij mRrj Áns’k ds U;k;ky;ksa }kjk vkthou dkjkokl dh ltk ls nf.Mr Áns’k vFkok vU; Áns’kksa dh dkjkxkjksa esa fu:} fl)nks”k cafn;ksa ds n.M dks fuEukuqlkj y?kqd`r djrs gq;s fjgk fd;s tkus gsrq fuEukuqlkj uhfr cuk;s tkus dh lg"kZ Lohd`fr Ánku djrs gS%& 2- ¼d½ vkthou dkjkokl dh ltk ls nf.Mr leLr efgyk fl)nks”k cUnh ftudk vijk/k vkxs /kkjk&3 esa of.kZr Áfrof/kZr Js.kh esa bafxr fdlh Hkh mifu;e ls vkPNkfnr ugha gS rFkk ftuds }kjk fopkjk/khu vof/k lfgr 14 o"kZ dh vifjgkj rFkk 16 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gksA 2- ¼[k½ vkthou dkjkokl dh ltk ls nf.Mr lHkh iq:"k fl)nks”k cUnh ftudk vijk/k vkxs /kkjk&3 esa of.kZr Áfrcaf/kr Js.kh esa bafxr fdlh Hkh mifu;e ls vkPNkfnr ugha gS rFkk ftuds }kjk fopkjk/khu vof/k lfgr 16 o"kZ dh vifjgkj rFkk 20 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gksA 2- ¼x½ vkthou dkjkokl dh ltk esa nf.Mr ,sls fl)nks”k canh ftudk vijk/k vkxs /kkjk&3 esa of.kZr Áfrcaf/kr Js.kh esa bafxr fdlh Hkh mifu;e esa vkPNkfnr ugha gS rFkk tks fuEu esa ls fdlh chekjh ls xzflr gks ,oa ftuds laca/k esa m0Á0 tsy eSuqvy ds ÁLrj la[;k&195 esa Áko/kkfur esfMdy cksMZ }kjk mDr chekjh ls xzflr gksus dk Áek.k i= fn;k x;k gks vkSj ftuds }kjk fopkjk/khu vof/k lfgr 10 o"kZ dh vifjgkj ltk rFkk 12 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gks%& 1- Advanced bilaterial pulmonary tuberculosis 2- incurable malignancy 3- Incurable Blood diseases 4- Congestive heart failure 5- Chronic epilepsy with mental degeneration 6- Advanced leprosy with deformities and trophic ulcer 7- Total blindness of both eyes 8- Incurable paraplegias and herniplegics 9- Advanced Parkinsonism 10- Brain Tumor 11- Incurable Aneurysms 12- Irreversible Kidney failure 2- ¼?k½ vkthou dkjkokl dh ltk ls nf.Mr leLr fl)nks”k cUnh ftudk vijk/k vkxs& /kkjk&3 esa of.kZr Áfrcaf/kr Js.kh esa bafxr fdlh Hkh mifu;e ls vkPNkfnr ugha gS] muds }kjk 70 o"kZ dh vk;q iw.kZ dj yh x;h gS fopkjk/khu vof/k lfgr 12 o"kZ dh vifjgkj rFkk 14 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gSA 2- ¼M½ vkthou dkjkokl dh ltk ls nf.Mr leLr fl)nks”k cUnh ftudk vijk/k vkxs /kkjk&3 esa of.kZr Áfrcaf/kr Js.kh esa bafxr fdlh Hkh mifu;e ls vkPNkfnr ugha gS] muds }kjk 80 o"kZ dh vk;q iw.kZ dj yh x;h gS fopkjh/khu vof/k lfgr 10 o"kZ vifjgkj rFkk 12 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gSA 2- ¼p½ vkthou dkjkokl dh ltk ls nf.Mr leLr fl)nks”k cUnh ftudk vijk/k vkxs /kkjk&3 esa of.kZr Áfrcaf/kr Js.kh ds mifu;e Xiii esa of.kZr vijk/k ds vfrfjDr vU; fdlh Hkh mifu;e ls vkPNfnr ugha gS rFkk ftuds }kjk fopkjk/khu vof/k lfgr 20 o"kZ dh vifjgkj rFkk 25 o"kZ dh lifjgkj ltk O;rhr dj yh x;h gksA 3- ÁfrcfU/kr Js.kh (i) vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cUnh ftuds }kjk fjgkbZ ds lEcU/k esa dksbZ ÁkFkZuk i= ugha fn;k x;k gSA (ii) vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cUnh ftUgsa mRrj Áns’k jkT; ds ckgj fLFkr U;k;ky;ksa }kjk nks"kfl) dj nf.Mr fd;k x;k gksA (iii) vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cUnh ftuds fu.kZ; esa ek0 U;k;ky; }kjk fof’kf"V :i ls thou&iZur dkjkxkj esa fufj} gsrq vknsf’kr fd;k gS vFkok vkthou dkjkokl ls nf.Mr leLr ,sls fl)nks”k cUnh ftuds fu.kZ.k esa ek0 U;k;ky; }kjk fof’kf"V le; fu/kkZfjr dj fu:f} gsrq vknsf’kr fd;k x;k gSA (iv) vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cUnh ftuds okn dk vUos"k.k] fnYyh fo’ks"k iqfyl LFkkiuk vf/kfu;e] 1946¼1946 dk la0 25½ ds v/khu xfBr fnYyh fo’ks"k iqfyl LFkkiuk }kjk ;k n.M Áfdz;k lafgrk 1973¼1974 dk la0 2½ ls fHkUu fdlh dsUnzh; vf/kfu;e ds v/khu vijk/k dk vuos"k.k djus ds fy, l'kDr vU; vfHkdj.k }kjk fd;k x;k FkkA (v) ,sls fl)nks”k canh ftUgs ,sls vijk/kksa ds fy;s nks"kfl) fd;k x;k gS ftuesa ls dqN mu fo"k;ksa ls lEcfU/kr gS ftu ij la? kh; ljdkj dh dk;Zikfydk 'kfDr dk foLrkj gS] vkSj ftls lkFk&lkFk Hkksxs tkus okyh i`Fkd&i`Fkd vof/k ds dkjkokl dk n.Mkns’k fn;k x;k gS] mlds lEcU/k esa n.Mkns’k ds fuyacu ifjgkj ;k y?kqdj.k dk jkT; ljdkj }kjk ifjr dksbZ vkns’k rHkh ÁHkkoh gksxk tc fd;s x;s vijk/kksa ds lEcU/k esa ,sls n.Mkns’kksa ds] ;FkkfLFkfr] ifjgkj] fuyacu ;k y?kqdj.k dk vkns’k dsUnzh; ljdkj }kjk Hkh dj fn;k x;k gSA (vi) vkthou dkjkokl ls nf.Mr ,sls lEkLr fl)nks”k cUnh ftUgs lkewfgd ujlagkj ¼rhu ;k rhu ls vf/kd gR;k,a½ dh ?kVukvksa ls lEcfU/kr vijk/kksa esa nks"kfl) fd;k x;k gksA (vii) vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cUnh tks fu:f} dh vof/k esa foxr 02 o"kZ ds nkSjku m0Á0 tsy eSuqvy ds ÁLrj& 814 ds vUrxZr psrkouh ls fHkUu fdlh Hkh y?kq n.M ls vkSj foxr 05 o"kkZsa ds nkSjku m0Á0 tsy eSuqvy ds ÁLrj&815 ds vUrxZr fdlh Hkh o`gn n.M ls dkjkxkj Á’kklu }kjk nf.Mr fd, x;s gksA (viii) vkthou dkjkokl ls nf.Mr ,sls fl)nks”k cUnh ftUgs iSjksy@x`g vodk’k ds nkSjku fdlh vijk/k ds fy;s nks"kh Bgjk;k x;k gksA (ix) vkthou dkjkokl ls nf.Mr ,sls lEkLr fl)nks”k cUnh ftUgksus fu:f} vof/k ds nkSjku tsy ls iyk;u fd;k gksA (x) ,sls fl)nks”k canh ftUgs ,d ls vf/kd vijkf/kd Ádj.kksa esa vkthou dkjkokl ds n.M ls nf.Mr fd;k x;k gSA (xi) ,sls fl)nks”k cUnh tks Hkkjrh; ukxfjd ugha gSA (xii) vkthou dkjkokl ls nf.Mr ,sls lEkLr fl)nks”k cUnh ftUgs fuEu vf/kfu;eksa ds rgr nks"kfl) fd;k x;k gks%& ukjdksfVd MªXl ,.M lkbdksVªksfid lcLVsal ,DV] 1985 vkradoknh vkSj fo/;a’kdkjh fdz;kdyki vf/kfu;e 1997 vkradoknh xfrfof/k Áfr"ks/k vf/kfu;e] 2002 Lokid vkS"kf/k vkSj eu% ÁHkkoh inkFkZ vf/kfu;e] 1985¼1985 dk la0 61½ Lokid vkS"kf/k vkSj eu ÁHkkoh inkFkZ voS/k O;kikj fuokj.k vf/kfu;e 1988¼1988 dk la0 42½ lhek 'kqDy vf/kfu;e 1962¼1962 dk la0 52½ 'kkldh; xqIr okrkZ vf/kfu;e 1923 fonsf’k;ksa fo"k;d vf/kfu;e 1946 fons’kh eqnzk laj{k.k ,ao rLdjh fuokj.k vf/kfu;e 1974 ySafxd mRihMu ls cPpks ds laj{k.k dk vf/kfu;e 2012 (POCSO ACT 2012) (xiii) ,sls leLr fl)nks”k cUnh tks Hkkjrh; n.M lafgrk] 1960 dh /kkjk& 363 , ¼Hkh[k ekaxus ds Á;kstuksa ds fy;s vÁklo; dk O;igj.k ;k fodykaxhdj.k½] 364 ¼gR;k djus ds fy;s O;igj.k ;k vijg.k½] 364 , ¼eqfDr&/ku vkfn ds fy;s O;igj.k½] 366 ¼fookg vkfn ds djus dks foo"k djus ds fy;s fdlh L=h dks O;ig~r djuk vig~r djuk ;k mRÁsfjr djuk½] 366 , ¼vÁklo; yMdh dk mikiu½] 366 c ¼fons’k ls yMdh dk vk;kr djuk½] 367 ¼O;fDr dks ?kksj migfr] nklRo vkfn dk fo"k; cukus ds mn~ns’; ls O;igj.k ;k vigj.k½] 368 ¼O;ig~r ;k vig`r O;fDr dks lnks"k fNikuk ;k ifjjks/k esa j[kuk½]369 ¼nl o"kZ ls de vk;s ds f’k’kq ds 'kjhj ij ls pksjh djus ds vk"k; ls mldk O;igj.k ;k vigj.k½] 372 ¼os’;ko`fr vkfn ds Á;kstu ds fy;s vÁkl;; dks ospuk½] 373 ¼os’;ko`fr vkfn ds Á;kstu ds fy;s vikIro; dk [kjhnuk½ ,oa 376 ¼cykRla?k ds fy;s n.M½ ds vUrxZr vijk/kksa d fy, vkthou dkjkokl dh ltk ls nf.Mr fd;s x;s gksA (xiv) is’ksoj gR;kjs tks HkkMs ij gR;k djus ds nks"kh ik;s x;s gksaA (xv) vkthou dkjkokl dh ltk ls nf.Mr ,sls leLr fl)nks”k cUnh tks Hkkjrh; n.M lafgrk dh /kkjk& 121 ls 130 ds vUrxZr jkT; ds f[kykQ ;q} djus ;k ;q} dk Á;kl djus ;k nq"Ásj.k djus ds nks"kh ik;s x;s gksaA (xvi) vkthou dkjkokl dh ltk ls nf.Mr ,sls leLr fl)nks”k cUnh tks ljdkjh lsod dk dRkZO; ikyu ds nkSjku mldh gR;k ds nks"kh gksaA 4- leLr ofj"B v/kh{kd@v/kh{kd@ÁHkkjh v/kh{kd dkjkxkjksa esa fu:} vkthou dkjkokl ls nf.Mr ,sls leLr fl)nks”k cafn;ksa dh mijksDr ÁLrj ds vUrxZr fu/kkZfjr uhfr@funsZ’kksa ds vuqlkj ik=rk dk ijh{k.k djsaxsa ,oa ik= leLr cafn;ksa ds lEcU/k esa laYkXu Ák:i esa mudks le;iwoZ fjgkbZ dk ÁLrko ifj{ks=h; mi egkfujh{kd dkjkxkj dks ÁR;sd o"kZ fnukad 31 vDVwcj rd miyC/k djk;sxsA 5- cafn;ksa dh vk;q ,oa ltk dh x.kuk vkxkeh o"kZ dh 26 tuojh ds vuqlkj dh tk;sxhA 6- ifj{ks=h; mi egkfujh{kd dkjkxkj leLr ÁLrkoksa dk uhfr ds vkyksd esa ifj{k.k djsaxs rFkk ;g lqfuf’pr djkrs gq, fd dksbZ ik= O;fDr NwVk ugha gS] ÁLrko fnukad 15 UkcEcj rd egkfujh{kd dkjkxkj dks miyC/k djk;sxsaA 7- egkfujh{kd dkjkxkj }kjk cafn;ksa dh fjgkbZ ds lEcU/k esa ÁkIr ÁLrko dks mijksDr uhfr ds vkyksd esa ijh{k.k djrs gq;s ÁLrko 'kklu dks ÁR;sd o"kZ fnukad 30 uoacj rd ÁR;sd n’kk esa Ásf"kr dj fn;k tk;sxkA 8- 'kklu Lrj ij cafn;ksa dh fjgkbZ ds lEcU/k esa ÁLrko ÁkIr gksus ds mijkUr ÁkIr laLrqfr;ska ds fuLrkj.k gsrq lfefr dk xBu fuEuor fd;k tkrk gS%& ¼d½ Áeq[k lfpo dkjkxkj Á’kklu ,oa lq/kkj foHkkx] mRrj Áns’k 'kklu& v/;{k ¼[k½ lfpo] x`g foHkkx] mRrj Áns’k 'kklu& lnL; ¼x½ egkfujh{kd] dkjkxkj Á’kklu ,oa lq/kkj lsok;sa] m0Á0&lnL lfpo ¼?k½ Áeq[k lfpo] U;k; ,oa fof/k ijkeFkhZ] mRrj Áns’k 'kklu }kjk ukfer fo’ks"k lfpo] U;k; ,ao vij fof/k ijke’khZ] mRrj Áns’k 'kklu&lnL lfefr }kjk vkthou dkjkokl dh ltk ls nf.Mr fl)nks”k cafn;ksa dh le;iwoZ eqfDr ds lEcU/k esa viuh laLrqfr 'kklu dks ÁR;sd o"kZ fnukad 15 fnlEcj rd ÁLrqr dh tk;sxh vkSj ftl ij ;Fkk Áfdz;k 'kklu }kjk fu.kZ; fy;k tk ldsxkA 9- mijksDr vkns’kksa ds vUrxZr vkthou dkjkokl dh ltk ls nf.Mr fl)nks”k cafn;ksa dks bl 'krZ ij dkjkxkj ls eqDr fd;k tk;sxk fd og fof/k lEer vkpj.k cuk;s j[kus ds fy;s :i;k 50]000-00 ¼: ipkl gtkj ek=½ ls vuf/kd /kujkf’k dk ,d futh eqpydk viuh eqfDr ls iwoZ lacaf/kr dkjkxkj ds ofj"B v/kh{kd@v/kh{kd ds le{k ÁLrqr djsxsaA 10- mijksDr vkns’kksa ds vUrxZr ;fn =qfVo'k dksbZ ,slk canh fjgk gks tkrk gS] ftldk vijk/k jkT; ljdkj dh n`f"V esa ,slh Js.kh dk gS] ftlds fy;s U;k;ky; }kjk nh x;h ltk mls iw.kZ :i ls Hkqxrku pkfg;s] rks 'kklu ,sls canh dh ltk esa nh x;h NwV fujLr dj 'ks"k ltk Hkqxrus ds fy;s mls iqu% dkjkxkj esa fu:} dj ldsxkA Hkonh; vjfoUn dqekj Áeq[k lfpo 17. The policy dated 1.8.2018 as indicated above, has been formulated, keeping in view the overcrowding of jails with life convicts, giving rise to not only issues relating to human rights but also creates a deep sense of frustration amongst the convicts which has a deleterious effect in adopting a reformist approach and in rehabilitation as highlighted by the NHRC and the Constitutional courts. Thus the object of the policy indeed is to release those life convicts who fall within the criteria / norms prescribed in the policy, provided they are not within the prohibited category. Once the State has formulated a policy for release of convicts under Section 433 as described in the policy dated 1.8.2018, it is always open for the State to either grant commutation to a class of convicts falling within a common denominator or to an individual on a case to case basis. In the considered opinion of the Court, life convict can only seek consideration for premature release in the light of Section 433 of the Code and the policy of the day. Thus even though power under Section 433 of the Code may be a discretionary / sovereign, yet once the State has conceived a policy to release convicts then it is obliged to consider a request for premature release on the basis of the policy. 18. Clause – 2(B) of the policy provides that those life convicts who do not fall within the prohibited category as provided under Clause 3, would be considered for premature release, provided they have undergone incarceration of 16 years (without remission) and 20 years (with remission). The State is competent to prescribe a higher period of detention as what is prescribed under Section 433-A of the Code is the minimum. Doubt, if any, in this regard stands settled with the decision of the Apex court in State of Rajasthan and Others vs. Mukesh Sharma (2019) 14 SCC 273 wherein it was held that the State is empowered to fix a period of detention over and above 14 years as provided under Section 433-A of the Code. 19. We revert to the policy and in particular to clause -3 thereof. One of the basis for rejection of the claim for release is alleged to be premised under Clause 3(xiv) which relates to professional killers who resort to contract killings and stand convicted for said offences. 20. 19. We revert to the policy and in particular to clause -3 thereof. One of the basis for rejection of the claim for release is alleged to be premised under Clause 3(xiv) which relates to professional killers who resort to contract killings and stand convicted for said offences. 20. We in the light of above backdrop examined the entire records and do not find any conviction of the petitioner as a hired assassin for contract killing as it is alleged by the petitioner in his amendment application dated 1.2.2021 that out of 4 murder cases registered against him, he stands convicted in S.T. No.142/1998, arising out of Case Crime No.1311/1997 on the premise that murders of two deceased were committed in broad day light in view of previous enmity, in which he undisputedly has undergone incarceration for more than 17 years; in Case Crime No.1539/2006; he is enlisted as witness of charge-sheet and in other two cases i.e. 796/2005 and 670/2013, he stands acquitted with no appeal either by the State or by the victim. The application/affidavit dated 01.02.2021 stands unrebutted. 21. The alleged second ground for rejection is of apprehension of threat by the family of the victim in the event of the release of the petitioner. We reject this plea for the reason that neither this plea is enlisted as a prohibition under Clause 3 of the policy from consideration under Section 433 of the Code and rightly so as otherwise it would become a convenient ploy for the family of the victim to defeat the claim for release of the convict under Section 433 of the Code in every case. We have the advantage of the entire original records before us and do not find any material to indicate that while the petitioner was on bail he ever threatened the family of the victim with dire consequences. SCOPE OF JUDICIAL REVIEW 22. We have the advantage of the entire original records before us and do not find any material to indicate that while the petitioner was on bail he ever threatened the family of the victim with dire consequences. SCOPE OF JUDICIAL REVIEW 22. The Apex Court in Epuru Sudhakar vs. Government of Andhra Pradesh (2006) 8 SCC 161 reiterated in State of U.P. vs. Sanjay Kumar (2012) 8 SCC 537 has held as under: “The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds: (a) that the order has been passed without application of mind; (b) that the order is mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant materials have been kept out of consideration; (e) that the order suffers from arbitrariness” 23. A perusal of the same would reflect that an order under Articles 72 & 161 of the Constitution being a sovereign power of pardon are open to judicial review on parameters such as non-application of mind, malafides, extraneous and wholly irrelevant consideration, relevant materials kept out of consideration and arbitrariness, etc. There is no justifiable reason as to why an order under Section 433 of the Code be also not circumscribed for judicial review to same limits. ALLEGATIONS OF MALAFIDES 24. It is well established that malafides can be tested on twin considerations i.e. malice in fact or malice in law as propounded by the Apex Court in Rajneesh Khajuria vs. M/s Wockhardt Limited and Another, (2020) 3 SCC 86 . We at the cost of repetition reiterate that after going through the original records, we find that there were letters of the family of victim dated 23.12.2020 and 28.12.2020, expressing apprehensions of life threats as communicated by the District Magistrate, Gorakhpur in his communication dated 26.1.2021 to the State Government. We cannot examine as to how and under what circumstances, these letters were obtained and brought on record. We, therefore, proceed on the premise that the aforesaid letters were already on record prior to the passing of the impugned order dated 29.1.2021. We cannot examine as to how and under what circumstances, these letters were obtained and brought on record. We, therefore, proceed on the premise that the aforesaid letters were already on record prior to the passing of the impugned order dated 29.1.2021. Thus the plea of the petitioner that the said letters were surreptitiously brought on record in order to reject the premature release of the petitioner malafidely, is liable to be repelled. The competent authority while considering the premature release of the petitioner, was statutorily obliged to consider the issue within the prescribed parameters of the policy dated 1.8.2018. The competent authority rejected the claim under the impugned order on absolutely non-existent grounds displaying absolute non-application of mind which cannot be countenanced in law. BRIEF RESUME OF THE CITATIONS RELIED BY THE LEARNED ADDL. A.G. 25. Maru Ram vs. Union of India, (1981) 1 SCC 107 was a case where constitutional validity of Section 433-A of the Code was held to be valid which is not in issue in the present case. In Sanaboina Satyanarayana vs. Government of Andhra Pradesh and others, (2003) 10 SCC 78 , the Apex Court upheld the classification under a remission policy, not extending the benefit of remission of sentence of life convicts for crime against woman and that power to grant remission under Article 161 is a discretionary power which is not disputed but once the State in its wisdom has formulated a policy as to in what class of cases the benefit of premature release is to be given or not, the State has to evaluate either as a class or on a case to case basis, in the light of the policy of the day. Swami Shraddananda @ Murali Manohar Mishra vs. State of Karnataka, (2008) 13 SCC 767 was a matter where the Apex Court held that death can be commuted to life and that punishment for life means the rest of prisoners life, which has no relevance in the present case. Krishnan and others vs. State of Harayana and Others, (2013) 14 SCC 24 is a reference order holding that no suspension / remission / commutation under the NDPS Act. Krishnan and others vs. State of Harayana and Others, (2013) 14 SCC 24 is a reference order holding that no suspension / remission / commutation under the NDPS Act. Pyare Lal vs. State of Haryana, (2020) 8 SCC 680 is also a referring order, holding that Section 433-A does not control the sovereign power and also enumerates the ground of challenge to an order under Articles 72 & 161. Rajan vs. Home Secretary, Home Department of Tamil Nadu and others, (2019) 14 SCC 114 is an authority for the proposition that power of remission is of the State and not of the Court which we do not dispute. 26. A Constitution Bench of the Apex Court in Union of India vs. V. Sriharan @ Murugan and others, (2016) 7 SCC 1 commonly known as Rajiv Gandhi assassination case, inter alia held as under:- 259. The convict undergoing the life imprisonment can always apply to the authority concerned for obtaining remission either under Articles 72 or 161 of the Constitution or under Section 432 Cr.P.C. and the authority would be obliged to consider the same reasonably. This was settled in Godse which view has since then been followed consistently in State of Haryana v. Mahender Singh (supra), State of Haryana Vs. Jagdish (supra), Sangeet Vs. State of Haryana (supra) and Laxman Naskar Vs. Union of India and others. The right to apply and invoke the powers under these provisions does not mean that he can claim such benefit as a matter of right based on any arithmetical calculation as ruled in Godse. All that he can claim is a right that his case be considered. The decision whether remissions be granted or not is entirely left to the discretion of the concerned authorities, which discretion ought to be exercised in a manner known to law. The convict only has right to apply to competent authority and have his case considered in a fair and reasonable manner. (emphasis supplied) 27. Based on above proposition, the contention of the learned Addl. A.G. was that at the end of the day, a convict is only entitled to a right of consideration for pre-mature release either under Article 72 & 161 of the Constitution or under Sections 432/433 of the Code. 28. (emphasis supplied) 27. Based on above proposition, the contention of the learned Addl. A.G. was that at the end of the day, a convict is only entitled to a right of consideration for pre-mature release either under Article 72 & 161 of the Constitution or under Sections 432/433 of the Code. 28. We do not dispute the above contention but with a firm caveat that such discretion must be exercised in a fair and reasonable manner. Once the State in its wisdom has framed a policy to confer the benefit of premature release to either a class of convicts or an individual convict, provided their cases do not fall within the prescribed prohibited category as laid in the policy, then it is expected of the State to consider such cases in a manner known to law within the prescribed parameters. Consideration of premature release of a convict must be in a reasonable and fair manner. Such consideration is not beyond pale of judicial challenge and it is open to judicial review within the permissible limits. We further wish to add that what has been said in Paragraph-259 of the above judgement, would not and cannot mean that premature release of a convict be considered on wholly irrelevant consideration rather it must always be considered in a reasonable and fair manner known to law. 29. We, in the light of above discussion, are of the considered view that the impugned order dated 29.1.2021 has been passed mechanically, without any application of mind on irrelevant considerations, which is liable to be set aside. 30. The writ petition is allowed. The order dated 29.1.2021 is set aside/quashed. The matter is remanded to the Competent Authority to consider the release of the petitioner afresh under Section 433 of the Code, in the light of the above observations, in accordance with law, positively within a month. Pending applications stand disposed of accordingly. We, before parting, have noticed a glaring discrepancy in sub-clause (I) of Clause-3 of the policy dated 1.8.2018 which prohibits the consideration of premature release, if the same is not accompanied by any application / request while Section 433 of the Code does not lay down any such embargo, rather the State is obliged to consider the premature release without the consent of the convict. The said condition is in teeth of the statute. The said condition is in teeth of the statute. We could have quashed the said condition but as the same was neither noticed by us nor was an issue involved, we deem appropriate to direct the State Government to consider the deletion of the said condition. We direct the Bench Secretary to seal the envelop containing the original records. He is further directed to hand over the sealed original records to the Registrar General personally and obtain endorsement of receipt on the order sheet. The Registrar General is further directed to open the seal and hand over the original records to Sri A.K. Sand, the learned A.G.A, personally or to any other duly authorized person, with a letter of authorization to be submitted before the Registrar General. This order is digitally signed by us. The office is directed to keep a copy of this order on record.