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2025 DIGILAW 1280 (ALL)

Sunil Tiwari v. State of U. P.

2025-10-27

ABDUL MOIN, BABITA RANI

body2025
JUDGMENT : Babita Rani, J. 1. Rejoinder affidavit filed by learned counsel for the petitioner and short counter affidavit filed by Sri V.K. Singh, learned Government Advocate are taken on record. 2. Heard Sri Dheeraj Awasthi, learned counsel for the petitioner, Sri V.K. Singh, learned Government Advocate assisted by Sri Bipul Kumar Singh, learned State counsel for the respondents. 3. Instant writ petition under Article 226 of the Constitution of India has been filed by the petitioner against respondents with following reliefs: "(i) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 24.02.2025 (Annexure No.1) as the same has been passed in a stereotype manner without any application of mind, with all consequential benefits. (ii) Issue a writ, order or direction in the nature of Certiorari thereby quashing the order dated 21.04.2025 (Annexure No.7) whereby the Non-bailable warrant has been issued against the petitioner and he has been directed to serve the sentence of life imprisonment awarded to him. (iii) Issue a writ, order or direction in the nature of Mandamus thereby commanding the opposite parties to provisionally release the petitioner from the Central Jail, Bareilly as he has already served a total sentence of 15 years, 8 months and 2 days in custody and 18 years, 1 month and 23 days in custody, with remission as on 26.07.2022." 4. Backdrop of instant petition in brief is that the petitioner- Sunil Tiwari along with others was arraigned in FIR No.191 of 2006, under Sections 147 , 148, 302/149, 449 I.P.C. as accused, in Police Station Thangaon, District Sitapur for committing the massacre by killing five persons of a family with lethal weapons. On 25.11.2006, the petitioner was arrested and after conclusion of trial, he was convicted and sentenced on 23.02.2015 under Sections 147 , 148, 302/149 & 449 I.P.C. for life imprisonment with fine. 5. Aggrieved by the judgement and order passed by learned trial court, the petitioner and others preferred a criminal Appeal No. 471 of 2015 before the High Court which is pending for adjudication. On 26.07.2022 as indicated in the impugned order, the petitioner moved a premature release application before the competent authority on the ground that he had served the custody of 15 years 8 months & 2 days without remission and about 18 years with remission. On 26.07.2022 as indicated in the impugned order, the petitioner moved a premature release application before the competent authority on the ground that he had served the custody of 15 years 8 months & 2 days without remission and about 18 years with remission. On 10.01.2024, a Division Bench of this Court passed direction to release the prisoners in Criminal Appeal No. 165 of 2016; Ganesh vs. State of U.P. and in pursuance of above direction, the petitioner was also released by the competent authority on 06.04.2024. On 25.05.2024, a larger Bench of this Court in the case of Ambrish Kumar Verma vs. State of U.P. and others observed that the direction issued in Ganesh vs. State of U.P. (supra) is untenable in the eyes of law. 6. Hon'ble Supreme Court of India also in case of Surendra @ Sunda vs. State of U.P. in Special Leave Petition (Criminal) Diary No. 28783 of 2023 made query to the State of Uttar Pradesh as to what steps have been taken to cancel the bail granted to the prisoners in the light of the judgement of this Court passed in Ganesh (supra). In pursuance of view adopted by Hon'ble Supreme Court, the petitioner surrendered on 13.11.2024 but considering the interim order passed by the Apex Court to the effect that the prisoners, who have already served 14 years of sentence, will be released from the custody, the petitioner was again released on 21.11.2024 from the jail. 7. The competent authority vide the order impugned dated 24.02.2025 rejected Form-A i.e. premature release application of the petitioner and consequently, the court of Chief Judicial Magistrate, Sitapur issued non- bailable warrant to the petitioner to serve the remaining sentence. As a matter of fact, in Surendra @ Sundra (supra) Hon'ble Supreme Court issued directions on 28.04.2025 and directed the prisoners who have already been released, to surrender before the court concerned within three weeks with liberty to challenge the order of rejection of premature release application, if any. 8. Aggrieved by the impugned order dated 24.02.2025 i.e. rejection of premature release application and 21.04.2025 i.e. issuance of non bailable warrant against the petitioner, instant writ petition has been filed. 8. Aggrieved by the impugned order dated 24.02.2025 i.e. rejection of premature release application and 21.04.2025 i.e. issuance of non bailable warrant against the petitioner, instant writ petition has been filed. The impugned order dated 24.02.202025 has been challenged mainly on the ground that same has been passed in a stereotyped and arbitrary manner and in contravention of intent of Section 2 of U.P. Prisoners' Release of Probation Act, 1938 whereby premature release application has to be decided on the basis of antecedents and good conduct of the prisoners in prison. However, impugned order has been passed only considering the antecedents of the petitioner and in complete ignorance and appreciation of necessary part of good conduct of the petitioner in the prison. It has been averred that impugned order being non-speaking and arbitrary, is liable to be quashed. 9. Sri V.K. Singh, learned Government Advocate appearing for the respondents has filed short counter affidavit stating that the impugned order does not have any illegality and has been passed in accordance with the settled principle of law and due procedure. The petitioner falls within the prohibited category of the State Government policy dated 01.08.2018, subsequently amended vide amendments dated 28.07.2021 and 27.05.2022, which set out that the petitioner, who had committed triple murder, cannot be released from the prison. It is thus incumbent upon the petitioner to surrender and then to challenge the premature release application. Learned Government Advocate reiterates that the impugned order does not carry any illegality and has been passed in complete consonance and prevalent policy of the State of Uttar Pradesh as formed and amended update. Learned AGA vehemently emphasized that case of the petitioner comes within the prohibited category of policy whereby the petitioner who has committed three or more than three murders, will not be given benefit of premature release until he serves the sentence of 25 years without remission and 30 years with remission. Since, the petitioner has not undergone the prescribed period of sentence at the time of passing of impugned order, there is no occasion to give him benefit for premature release, therefore, the impugned order warrants no interference. It has also been argued that petitioner has not surrendered despite a direction issued by Hon'ble Supreme Court in re: Surendra @ Sunda (supra) and rather is playing hide and seek and enjoying liberty in contrary to law. It has also been argued that petitioner has not surrendered despite a direction issued by Hon'ble Supreme Court in re: Surendra @ Sunda (supra) and rather is playing hide and seek and enjoying liberty in contrary to law. Therefore, the writ petition filed by the petitioner deserves to be dismissed. 10. Learned counsel for the petitioner has vehemently argued that the competent authority has passed the impugned order in violation of procedure established by law and various principles laid down by Hon'ble Supreme Court, as the premature release application of the petitioner has not been decided timely in compliance of the direction issued by Hon'ble Supreme Court in re: Rashidul Jafar @ Chota vs. State of U.P. and Anr. 2022 Live Law (SC) 754. Moreover, the order cannot be rejected in stereotype manner without any application of mind. It has been further emphasized that the conduct in jail of the prisoner is an important factor to be considered as to whether he has lost his potentiality in committing crime due to long period of detention, but the impugned order does not reveal any sound ground of rejection of Form-A, particularly, when there were recommendations in favour of petitioner. As per learned counsel for the petitioner, the impugned order has occasioned prejudice and failure of justice to the petitioner. With the above arguments, learned counsel for the petitioner broadly assailed the impugned order and prayed the same be quashed by giving the benefit to the petitioner. 11. Heard the learned counsels for the parties and perused the record. 12. Admittedly, the criminal appeal against conviction and sentence filed by the petitioner before this Court is still pending for adjudication and at the time of passing the impugned order, petitioner had spent 15 years, 8 months & 2 days without remission and 18 years, 1 months & 23 days with remission. The petitioner is out of prison since 21.11.2025 and has not surrendered despite of non-bailable warrant issued by the Chief Judicial Magistrate, Sitapur. 13. At the very outset and for the purpose of deciding the instant writ petition, it will be profitable to peruse the relevant provisions/prevalent policy and judicial pronouncement of Hon'ble Supreme Court as well. The petitioner is out of prison since 21.11.2025 and has not surrendered despite of non-bailable warrant issued by the Chief Judicial Magistrate, Sitapur. 13. At the very outset and for the purpose of deciding the instant writ petition, it will be profitable to peruse the relevant provisions/prevalent policy and judicial pronouncement of Hon'ble Supreme Court as well. So far as question of premature release is concerned, Section 2 of U.P. Prisoners' Release of Probation Act, 1938 provides as under: "Power of Government to release by licence on conditions imposed by them - Notwithstanding anything contained in [Section 401]of the Code of Criminal Procedure, 1898 (Act V of 1898), where a person is confined in prison under a sentence of imprisonment and it appears to the State Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner, or such secular institution or such society belonging to the same religion as the prisoner as may be recognized by the State Government for this purpose, provided such other person, institution or society is willing to take charge of him." 14. On 01.08.2018, the Government of Uttar Pradesh formulated and issued a policy governing premature release of the convicts with approval of Governor under Article 161 of the Constitution of India wherein for the purpose of premature release of the prisoners, different categories were set out. In the above standing policy one of the categories has been set out as prohibited category in para No.3 (VI) which provides that prisoners who have been convicted and sentenced for life imprisonment for commission of a crime related to massacre (three or more than three murders), are prohibited to be released. However, the relaxation was granted in the amended policy dated 28.07.2021 and para 2(g) of the amended policy dated 28.07.2021 was added, whereby the prisoners of prohibited categories were indicated in sub rules (VII) (VIII) and (IX) of para-3 of standing policy of 01.08.2018. However, the relaxation was granted in the amended policy dated 28.07.2021 and para 2(g) of the amended policy dated 28.07.2021 was added, whereby the prisoners of prohibited categories were indicated in sub rules (VII) (VIII) and (IX) of para-3 of standing policy of 01.08.2018. In the above categories prisoners, who have completed 60 years and have undergone including under trial custody, sentence of 25 years without remission and 30 years with remission may be released by the competent authority. Therefore, as per the standing policy of the State of Uttar Pradesh, the petitioner being within the category of sub rule (VI) of para-3 becomes eligible for premature release only if, he has served the custody of 25 years without remission and 30 years with remission. In the instant case petitioner at the time of passing the impugned order, merely, had served the sentence of 15 years, 8 months & 2 days without remission and 18 years, 1 months & 23 days with remission, therefore, up to this extent the case of the petitioner is not covered within the policy as formulated by the State Government. 15. So far as Section 2 of U.P. Prisoners' Release of Probation Act, 1938 (Act 1938) is concerned, it provides that at the time of deciding the premature release application of a prisoner, the competent authority has to appreciate two essential factors about the prisoner i.e. his antecedent and good behaviour in prison. Purpose of scheme is subjective satisfaction of competent authority that after release the prisoner will be able to lead a peaceful life and refrain from committing crime. 16. Learned AGA has stated that the impugned order has been passed by the competent authority under the above provision and in consonance of the standing policy of the State as amended, but perusal of the impugned order demonstrates that the competent authority has only focused and discussed antecedent part/factor of the prisoner/petitioner while deciding his premature release application and not only has completely ignored about his conduct in prison, but also endorsed nothing in impugned order regarding the conduct which is a factor to be considered as per Section 2 of the Act, 1938. . 17. . 17. Needless to say that even if the case of the petitioner may or may not be within the purview of standing policy as amended by the State government, however, it was required on the part of the competent authority to record reasons about the conduct of the petitioner while disposing his premature release application and passing the impugned order. Perusal of impugned order transpires that the impugned order has been passed summarily, disregarding the fundamental procedure of Section 2 of U.P. Prisoners' Release of Probation Act, 1938. 18. At this juncture reliance can be placed on the principles laid down by the Hon'ble Supreme Court in re: Home Secretary (Prison) and others vs. H. Nilofar Nisha, (2020) 14 SCC 161 , wherein it has been propounded that authority must pass a reasoned order in case it refuses to grant the benefit to the petitioner under the scheme. In case, the authority has passed the order rejecting the premature release application without following the scheme, then High Court may examine the same in the context of parameter of scheme and reach the conclusion whether the order rejecting the premature release prayer was justified or not and if no justified reason for declining the release is found then the Court may direct the authority to give the benefit of the scheme to the prisoner. 19. It is apparent that the competent authority has not recorded reasons regarding the conduct of the prisoner in prison as per Section 2 of the Act, 1938, therefore, the impugned order warrants of interference. 20. Accordingly, the writ petition is allowed . The order impugned dated 24.02.2025, a copy of which is Annexure- 1 to the writ petition, is quashed. 21. The competent authority shall proceed to pass a fresh order on the application of petitioner in accordance with law, rules and policies applicable, keeping in view the law laid down by the Hon'ble Supreme Court in case of Rashidul Jafar @ Chota (supra) The order shall be passed within four weeks from the date the petitioner surrenders. 22. 21. The competent authority shall proceed to pass a fresh order on the application of petitioner in accordance with law, rules and policies applicable, keeping in view the law laid down by the Hon'ble Supreme Court in case of Rashidul Jafar @ Chota (supra) The order shall be passed within four weeks from the date the petitioner surrenders. 22. Further, considering the order dated 17.12.2024 passed by Hon'ble Supreme Court in case of Surendra @ Sunda (supra), copy of which is annexed as Annexure No.7 to the short counter affidavit filed on behalf of respondent no.3, more particularly paragraph-4 which clearly provides that order dated 13.11.2024 shall remain in operation until further orders or subject to the orders passed by the authorities regarding allowing/rejection of the representation of petitioner and the representation of remission having been rejected, as such the petitioner shall surrender within three weeks from today.