Dunna vs State of U.P.and others

I. S. Mathur, J.—In these petitions substantially similar questions of fact and law have been raised and they are accordingly being disposed of by this common judgment. The question relates to the validity of the orders passed by the State Government rejecting Form ''A'' submitted in accordance with section 2 of the U. P. Prisoners Release on Probation Act, 1938 (Probation Act, for short) and Prisoners Release on Probation Rules (Probation Rules, for short) for release on licence orrejecting the request for release on nominal roll under para 198 of the Jail Manual. In some petitions, grievance has also been made against the failure of the opposite parties to pass orders on the prayer for remission of sentence in accordance with para 198 of the Jail Manual.

The petitioners Dunna (W.P. No. 125 (HC) of 1992) and Puran (W.P. No. 59 (HC) of 1992) have been convicted under section 302 I.P.C. and sentenced to life imprisonment while the petitioner, Mool Chand has been convicted under sections 395/396 I.P.C. and has also been sentenced to life imprisonment. The Form A of the petitioners Dunna and of Puran have been rejected by orders dated 2481989 and 15121992 respectively. The prayer for release on nominal roll, under para 198 of the Jail Manual, of petitioners Puran and Mool Chand have been rejected vide orders dated 13th April, 1993 and 7th April, 1993 respectively. They have challenged the validity of these orders and have prayed for a writ in the nature of certiorari quashing the same. They have further prayed writs in the nature of habeas corpus and mandamus

While the writ of petitioners Dunna (W.P. No. 125 (HC) of 1992) and Mool Chand (W.P. No. 204 of 1991 (HC) have been filed by the counsel, Sri Deepak Srivastava, Puran has sent the petition from jail and it has been treated as a writ petition (Writ Petition No. 59 (HC) of 1992). The petitioner, Puran, was summoned in the Court and he stated that this writ petition be treated to be for quashing the order rejecting his Form A. He also sworn an affidavit in support of the petition. On his request, Sri Deepak Srivastava, Advocate, who is representing the other two petitioners, was appointed amicus curiae for him vide order dated 16111993. Puran has also sent three more petitions from jail and these have been registered as writ petition No. 130 (HC) of 1992, 323 (HC) of 1993 and 458 (HC) of 1994. In writ petition No. 130 (HC) of 1992, the grievance made is in regard to nonpayment of remuneration allegedly due for work in jail while in writ petition No. 323 (HC) of 1993 and 458 (HC) of 1994, the petitioner has prayed for release under paragraphs 195, 196 and 197 of the Jail Manual on the ground of illness.

More facts later. It may be worthwhile first to consider and answer some legal question raised by the learned counsel for the parties before entering into the domain of facts. The main ground of challenge, canvassed by the learned counsel for the petitioners, is that the orders are arbitrary and without due application of mind and, as such, they are liable to be quashed. Further argument of the learned counsel was that the petitioners are entitled to a direction by this Court to the concerned authorities for release forthwith or, in any case, for reconsideration of their matter regarding Form ''A'' and consideration of matter relating to release on nominal roll.

On the other hand, learned Additional Government Advocate, Sri J. Mishra, contended that a convict cannot be released on licence under section 2 of the Probation Act unless he has undergone fourteen years of actual imprisonment in jail as provided in section 433 A of the Code of Criminal Procedure. The convict, who is sentenced to life imprisonment and who is covered by section 433 ''A'' does not have a vested right to be released as the life imprisonment means imprisonment till the last breath. Since he has no vested tight, the argument proceeded, he cannot maintain a writ petition and there could be no question of the order being invalidated by this Court on the ground of arbitrariness or otherwise. His further argument was that, once the Form ''A'' as been rejected, it cannot be reconsidered in view of specific bar contained in rule 3 of the Probation Rules and further that a convict cannot be released on licence unless his sentence is either remitted under section 432 of the Code or is commuted under section 433.

Having noticed the arguments, we may formulate the following points for determination:

(1) Whether section 433A of the Cade of Criminal Procedure applies to release on licence under section 2 of the U.P. Prisoners Release on Probation Act, 1938 and a convict is ineligible for release on licence unless he has undergone actual imprisonment in jail for fourteen years ?

(2) Whether the order of the State Government rejecting Form ''A'' and the opinion and recommendation of the concerned authorities must be with reasons and whether the order passed by the State Government can be successfully challenged on the ground of being arbitrary?

(3) Whether a convict cannot be released on licence unless his sentence is either remitted under section 432 of the Code or Commuted under section 433?

(4) Whether a convict is not entitled to have his Form ''A'' reconsidered once it has been rejected in view of rule 3 of the Probation Rules?

We are unable to accept the submission of the learned Additional Government Advocate that, in case of release on licence under section 2 of the said Act, it is necessary that the convict should have undergone actual imprisonment for fourteen years as provided in section 433A of the Code of Criminal Procedure, 1973. In our opinion, section 433 A of the Code applies in the cases of remission of sentence under section 432 and commutation under section 433 of the Code and does not apply to the release on licence under section 2 of the U.P. Prisoners Release on Probation Act, 1938. Section 433 A reads as follows :

"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 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."

Quite obviously, this provision is in the nature of proviso to sections 432 and 433 A and relates to those provisions only. It is not intended to affect the provisions of any other law, including the provisions of the U. P. Prisoners Release on Probation Act, 1938.

This inference finds support from the marginal heading of section 433 A also which describes the scope of the section to be

"Restriction on powers of remission or commutation in certain cases."

It is true that the marginal heading to a section does not control the provisions of the Act or meaning of the section if the language employed therein is clear and unambiguous and in interpreting any provision marginal notes will be inadmissible for cutting down the plain meaning of the words of the provisions However, these marginal notes can be referred to for interpreting a provision to explain any doubt or ambiguity. In a number of cases, Courts in England had earlier taken the view that the marginal notes cannot be an aid to interpretation but that view would appear to have been taken on the ground that marginal notes did not, at that time, form part of the provisions as passed by the parliament. It was held that, since the marginal headings were not incorporated in the provisions at the time when they were passed by the Parliament, they cannot be said to be a part of the provision and cannot be an aid to interpretation. However, where the marginal heading is part of the provision as presented before and passed by the Legislature its aid can be taken for interpreting the provision for explaining any doubt or ambiguity. In Bhagirath v Delhi Administration (1985) 2 SCC 580, Hon''ble Supreme Court relied upon the marginal heading of section 428 as an aid to interpretation. Repelling the contention that imprisonment for life is not imprisonment for a term, the court has observed :

"Even the marginal note to the section does not bear out that assumption. It rather belies it. And marginal notes are now legislative and not editorial excises. The marginal note of section 428 shows that the object of the Legislature in enacting the particular provision was to provide that ''the period of detention undergone by the accused'' should ''be set off against the sentence of imprisonment'' imposed upon him."

Admittedly the marginal heading of section 433A was part of the provision as passed by the Parliament. Section 433A refers to Sections 432 and Section 433 only. It does not provide that this section will apply notwithstanding the provisions of any other Act. It does not, in its term, override the provision of the U P. Prisoners'' Release on Probation Act, 1938 Is it intended to do so? In this context, it may be permissible to refer to the marginal heading, as an aid to interpretation, to clarify this limited factual position So considered, Section 433A of the Code would clearly appear to be confined in application to the convicts proposed to be released under sections 432 and 433 and is inapplicable to a convict who is to be released on licence under section 2 of the U. P. Prisoners'' Release on Probation Act, 1938. Accordingly, section 433A of the Code will not apply in case of release on licence under section 2 of the Act and it is not necessary that such a convict should have undergone fourteen years of actual imprisonment in jail before being considered for release on licence under the said Act. Of course, the provision of rule 4 of the Rules will have to be complied with. According to this rule, as it stands after 1987 Amendment, a convict to be eligible for release on licence must have undergone 14 years imprisonment with remissions. If the conviction was recorded prior to this amendment, he must have undergone imprisonment as provided in the rule then existing.

In this connection, it may also be observed that, what section 433A prohibits is that a person covered by this Section "shall not be released from prison unless he has served at least fourteen years of imprisonment." As Hon''ble Supreme Court has observed in Maru Ram v. Union of India AIR 1980 SC 2147, ''Stonewalls and iron bars do not a prison make''; nor are ''stone walls and iron bars'' a sine qua non to make a jail. Release on licence is not a premature release in the sense that the convict becomes a free man. If the release is subject to the condition that he may be again sent to jail if he violates terms of his licence, it will not be a release in the sense envisaged by Section 433A. In this connection, we may do no better than quote the following observations of Hon''ble Supreme Court in Maru Ram''s case AIR 1980 SC 2147, in para 71 of the Report:

"Any life under the control of the State, whether within the highwalled world or not, may be a prison if the law regards it as such. House detentions, for example, Palaces, where Gandhiji was detained, were prisons. Restraint on freedom under the prison law is the test. Licensed releases where instant recapture is sanctioned by the law, and, likewise, parole. where the parole is no free agent, and other categories under the invisible fetters of the prison law may legitimately be regarded as imprisonment."

In the case of release under section 2 of the Probation Act and the Rules framed thereunder, the convict is still under the control of the jail authorities. Such licence merely permits a convict to serve out the sentence outside the prison walls and in the open fields. Instead of his being controlled by the prison guards, he is to be supervised and controlled by the guardian appointed for him. It is only an extension of open jails. "Instead of prison walls he is to be confined within pressure walls of social behaviour". The condition of the licence, inter alia, is that such a person shall keep good conduct and if he violates any of the conditions of licence, his licence may be cancelled and he will have to surrender to undergo imprisonment within the jail walls. In other words, on release on licence, there continues to be restraint on freedom under the prison law and recapture is sanctioned. The person released on licence is no free agent and invisible fetters of the prison law continue to bind him. Accordingly, the release on licence is not a release from prison as envisaged by section 433A of the Code. That being so, provisions of section 433A will not be applicable to a convict who is to be released on licence under section 2 of the said Act.

The scope of section 433A with reference to sections 432 and 433 of the Code of Criminal Procedure as also with reference to U. P. Prisoners Release on Probation Act, 1938 was considered by the Constitution Bench of the Supreme Court in Maru Ram''s case (supra). The Supreme Court has held that the provisions of the U. P. Prisoners Release on Probation Act, 1938 will survive section 433A. The Court has observed in para 71 of the report:

"One point remains to be clarified. The U. P. Prisoners Release on Probation Act, 1938, a welcome measure, what with population pressure on prisons and burden on the public exchequer, will survive Section 433A... ...'';

There was some argument that Section 433A is understood to be a ban on parole. Very wrong. The Section does not oblige continuous fourteen years in jail and so parole is permissible."

In para 72 of the Report, wherein Hon''ble Supreme Court has itself formulated the findings, it has been observed in sub paras 11 and 14 :

"(11) The U. P. Prisoners Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14year duration."

"(14) Section 433A does not forbid parole or other release within the 14years span........................"

In view of these observations of the Constitution Bench of the Supreme Court, it cannot be successfully argued that section 433A of the code of Criminal Procedure will be attracted in the case of premature release on licence under section 2 of the U. P. Prisoners Release on Probation Act.

Nothing to the contrary has been laid down in Ashok Kumar alias Golu v. Union of India and others 1991 SCC (Cri) 845, State of Punjab v. Babu Singh 1991 SCC (Cri) 562 and State of Haryana and another v Ram Diya 1990 SCC (Cri) 426 relied upon by the learned Additional Government Advocate. In Ashok Kumar v. Union of India, question of premature release on licence was not involved nor it was considered. In fact, Hon''ble Supreme Court specifically declined to consider this question even when argument in that regard was raised and observed as follows in para 19 of the Report :

"Lastly the learned counsel for the petitioner raised a hypothetical question whether it was permissible in law to grant conditional premature release to a life convict even before completion of 14 years of actual imprisonment, which release would tantamount to the prisoner serving time for the purpose of Section 433A of the Code ? It is difficult and indeed not advisable to answer such a hypothetical question without being fully aware of the nature of conditions imposed for release."

In Ashok Kumar''s case the Supreme Court quoted the observations in Maru Ram''s case, in para 71 of the Report and observed :

"Therefore, in each case, the question whether the grant of conditional premature release answers the test laid down by this Court in the aforequoted passage, would depend on the nature of the conditions imposed and the circumstances in which the order is passed and is to be executed. No general observation can be made and we make none." (emphasis supplied)

The reference to the observations of the Constitution Bench in Maru Ram''s case and observations that the question whether granting conditional premature release answers the test laid down by this Court would depend on the nature of conditions imposed and the circumstances in which the order is passed and is to be executed, in fact, reiterate the same view that if release on licence is subject to the conditions, mentioned in Maru Ram''s case, section 433 A would be inapplicable.

Learned Additional Government Advocate specifically referred to the following observations made in para 11 of the Report in support of his submission that even for release on licence under section 2 of the said Act, the convict must have undergone at least 4 years of actual imprisonment :

"Thus the effect of Section 433A is to restrict the exercise of power under sections 432 & 433 by the stipulation that the power will not be so exercised as would enable the two categories of convicts referred to in Section 433A to freedom before they have completed 14 years of actual imprisonment.''''

These observations, themselves, make it clear that the Hon''ble Supreme Court was referring to the release under section 432 and 433 of the Code and not release on licence. These observations, along with the observations in para 19 of the Report, quoted above, make it abundantly clear that requirement of fourteen years actual imprisonment was considered to be necessary for the purpose of Sections 432 and 433 of the Code and not for the purpose of release on licence.

It State of Punjab v Babu Singh 1991 SCC (Cri) 562, which was an appeal against the judgment of the High Court, the question involved was whether the High Court was right in granting bail to the petitioner pending disposal of his mercy petition. Referring to Section 433 A of the Code, the Supreme Court observed that "the High Court has not taken into consideration the provisions of Section 433A of the Criminal Procedure Code while passing the order." In this case also, the question of release on licence did not arise nor was considered. The order of the High Court was considered to be bad in law because it was a final order of release and not an order of release as an interim measure pending the decision. The Court has observed as follows in this connection :

"The judicial proceeding dealing with the conviction and sentence of the accused had been earlier concluded, and the order of his release on bail was passed while finally disposing of the writ petition alleging delay in disposal of the mercy petition. In other words no case is now pending before the Court, and it cannot be suggested that the order of the respondent''s release on bail has been passed as an interim measure pending the decision of a case before the court. In such a situation the provisions of section 433A are attracted."

It is quite evident that the order of the High Court was found to be bad in law in the facts and circumstances of that case and section 433A was found to be attracted because the release was not by way of an interim measure and the order of release was passed while finally disposing of the writ petition. As already indicated, question of release on licence has not been considered in this case and release on licence clearly stands on different footing

In State of Haryana and another v Ram Diya 1990 SCC (Cri) 426, the Hon''ble Supreme Court was concerned with the interpretation of rule 516B (a) of the Punjab Jail Manual. The said rule reads as follows:

"516B (a) With the exception of females and who were under 20 years of age at the time of commission of offence, the cases of every convicted prisoner sentenced to :

(i) imprisonment for life.

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(iv) ����������.

(a) Who has undergone a period of detention in jail amounting together with remission earned to 14 years, shall be submitted through the Inspector General of Prisons, Punjab for the orders of the State Government."

In this case, it is not clear from the facts given in this report as to what conditions, if any, were attached for release under rule 516B (a) and whether the release under this provision was an absolute release on remission or commutation or was a release on licence subject to conditions. It is also not clear whether, like the U.P. Probation Act and the Rules, there were any condition attached under which the convict was liable to be recaptured.

Learned Additional Government Advocate specifically relied upon the following observations of the Hon''ble Supreme Court in para 7 of the report:

"According to Section 433A a person who has been sentenced to death and whose death sentence has been commuted into one of imprisonment for life and persons who have been sentenced to imprisonment for an offence for which death is one of the punishments provided by law should undergo actual imprisonment of 14 years in jail. We are referring to Section 433 A in this judgment only for a limited purpose of showing that after the introduction of this section, the life convicts falling within the purview of Section 433A have to undergo the mandatory minimum 14 years of actual limprisonment."

These observations of the Court have to be read not in isolation but with reference to the context the entire facts and circumstances. Indeed, it is trite to say that the judgment of Supreme Court has to be read as a whole and picking out a word or sentence, divorced from context, and treating it as ''law'' declared by the Supreme Court is not proper (Commissioner of Income Tax v M/s. Sun Engineering Works AIR 1993 SC 43). Read in this light, it will be seen that in the following paragraphs 8 and 9, Hon''ble Supreme Court has referred to sections 433 (b) and 432 of the Code and has observed that there could be no question of release of such a lifer early in the absence of an order of commutation or remission. Accordingly, it would appear that the observations made by Supreme Court in regard to section 433 A are with reference to section 432 or 433 (b) and not in regard to the release on licence under the prison rules where recapture on violation of imposed conditions is permissible.

Sri Misra, learned Additional Government Advocate, however, raised a further objection to the effect that a convict cannot be released on licence unless his conviction is remitted, (under section 432) or commuted, under Section 433, to a fixed term. His argument would appear to be based on section 3 of the Probation Act and Form ''D'', annexed to the Probation Rules. Section 3, of the Act requires that "a licence granted under the provision of section 2 shall be in force until the date on which the person released would in the execution of the warrant authorising his imprisonment have been discharged from prison had he not been released on licence." In the order for release on licence, which is to be in the Form ''D'', the date on which licence "shall expire" has to be mentioned. The argument was that life imprisonment being imprisonment till the last breadth, this date cannot be indicated unless imprisonment is reduced to a fixed term andaccordingly, the life imprisonment has to be first remitted or commuted to a fixed term. The argument may, on the face, seem to be attractive and plausible but may not sustain close scrutiny as a way out is easy to find.

Paragraph 170 (e) of the jail Manual, which is in Chapter VIII under the heading ''THE REMISSION SYSTEM AND PREMATURE RELEASE'' defines "Life convict'',. The relevant part thereof is as follows:

"Life convict" means a convict sentenced to imprisonment for life or transportation for life and the period of sentence in such a ease shall be reckoned as twenty years."

Paragraph 203 relates to ''procedure in case of conditional release'' on Form ''A'' and para 205, which is in the same context, inter alia, provides :

"The date of the expiry of sentence is the date on which the sentence reckoned in the case of life convicts as twenty years, vide paragraph 170 (e), would expire, if no remissions are allowed, and shall, unless the order of conditional release otherwise directs, be the date on which the conditions of release shall cease to be imposed."

Accordingly, unless the State Government remits or commutes the sentence to less than 20 years, the date on which the person concerned would have been ''discharged from prison'' or the licence would ''expire'', for the purposes of section 3 of the Probation Act and Form ''D` annexed to Probation rules respectively shall be the date of expiry of 20 years sentence.

This inference is also borne out from the definition of ''life sentence'' in rule 5 (d) of the Probation Rules. According to this rule, "For the purposes of these Rules" ''life sentence shall be reckoned as sentence of imprisonment for twenty years. According to rule 7 of these rules, licence has to be granted in Form ''D'' and, as such, for the purpose of Form ''D'' the date on which the ''licence shall expire'' shall be the date of the expiry of twenty years sentence.

This interpretation will not make the aforesaid paragraphs of the jail Manual or rule 5 (d) inconsistent with section 433 A of the Code of Criminal Procedure. As already indicated in the earlier part of this judgment, with reference to the observations of Hon''ble Supreme Court in Maru Ram''s case, release on licence will continue to be imprisonment for the purpose of section 433 A.

In case the convict has already undergone 14 years imprisonment as required by section 433 A, and the State Govt. is of the opinion that sentence be remitted to less than 20 years, it can pass simultaneous order for remission of sentence and release on licence as, in our opinion, it is not the law that the order of remission be first passed and then only the matter regarding licence can be initiated. There may be no practical difficulty in doing so as both orders are to be passed on the basis of conduct in jail'' and ''antecedents''. The simultaneous orders will not obviously mean that date of release on licence and period of remission will necessarily coincide. The release on licence will be in the present while remission may be effective on a future date. That future date will be the date of the expiry of the licence for the purpose of Form ''D''.

We cannot also accept the submission of the learned Additional Government Advocate that, since premature release on licence is not a vested right, a convict cannot maintain a writ petition and there would be no question of invalidating the order on the ground of being arbitrary. It is true that the premature release or release on licence is not a vested right and it is also true that life imprisonment means the imprisonment till the last breath unless the sentence is commuted or remitted under Section 432 or 433 Code of Criminal Procedure (vide Godse'' case (1961) 3 SCR 440). But this does not mean that the State can pass any order that it likes or it may release one person and not the other who is similarly situated. No State action can be sustained if it suffers from arbitrariness or if it does not have some rational or relevant basis. It cannot be guided by any extraneous or irrelevant consideration. It must answer the principle of reasonableness and rationality enshrined in Article 14 of the Constitution. In the case of International Airport Authority (1979) 3 SCC 489, Hon''ble Supreme Court considered this argument and answered it as follows :

"The rule inhibiting arbitrary action by Government which we have discussed above must apply equally where such corporation is dealing with the public, whether by way of giving jobs or entering into contracts or otherwise, and it cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the test of reason and relevance.

This rule also flows directly from the doctrine of quality embodied in Article 14. It is now well settled as a result of the decision of this Court in E.P. Royappa v, State of Tamil Nadu, (1974) 2 SCR 348 : (AIR 1974 SC 555) and Maneka Gandhi v. Union of India, (1978) 1 SCC 248 : (AIR 1978 SC 597), that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is nondiscriminatory; it must not be guided by an extraneous or irrelevant considerations because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or nonarbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law. Mathew, J in V. Punnen Thomas v. State of Kerala, AIR 1969 Ker 81 (FB) observed : The Government is not and should not be as free as an individual in selecting the recipients for its largesse. Whatever its activity, the Government is still the Government and will be subject to restraints inherent in its position in a democratic society. A democratic Government cannot lay down arbitrary and capricious standards for the choice of persons with whom alone it will deal.�

The Supreme Court has further observed in the said case :

"It is indeed unthinkable that in a democracy governed by the rule of law the executive Government or any of its officers should possess arbitrary power over the interests of the individual. Every action of the Executive Government must be informed with reason and should be free from arbitrariness. That is the very essence of the rule of law and its bare minimal requirement. And to the application of this principle it makes no difference whether the exercise of the power involves affectation of some right or denial of some privilege..................... The discretion of the Government has been held to be not unlimited in that the Government cannot give or withhold largesse in its arbitrary discretion or at its sweet will."

The view taken by the Supreme Court in the case of International Airport Authority has been reiterated by Hon''ble Supreme Court in Maru Ram''s case (supra) and it has been observed :

"Article 14 is an expression of the egalitarian spirit of the Constitution and is a clear pointer that arbitrariness is anathema under our system. It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law upto itself but must be informed by the finer canons of constitutionalism."

The Supreme Court further observed in the said Maru Ram''s case :

"It is the pride of our constitutional order that all power, whatever its source, must, in its exercise, anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. From this angle even the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of presidential power."

28 It is thus quite obvious that the order passed by the State Government rejecting Form ''A'' or prayer for release on licence must be a speaking order. The reports and recommendations of the concerned authorities including the District Magistrate and the Probation Officer etc. must be based on objective facts and not merely on conjectures and surmises. Such opinions or recommendations must clearly indicate the reason for forming that opinion or making the particular recommendation and it could not be a bald statement opposing release on licence. The State Govt. must also indicate the reasons for accepting or not accepting the opinion or recommendation of the Supdt of police'' the District Magistrate, Probation Officer or the Board. The order must be such as to clearly indicate the application of mind and not merely a mechanical exercise of power. It must not be arbitrary.

The question as to whether the order of rejection of the prayer for release on licence should not be arbitrary and that it must contain reasons has been considered by Hon''ble Supreme Court and in a number of decisions of this Court In Bhagwat Satan v State of U. P. and others (1983) 1 SCC 389, the State Government rejected the prayer for release on licence observing that "after considering their cases sympathetically, keeping in view the law and order situation, they cannot be released." Hon''ble Supreme Court held the order to be bad in law and observed :

"A bald statement like that without any attempt to indicate how law and order is likely to be adversely affected by their release cannot be accepted."

Supreme Court, therefore, directed the release of the detenue in that case.

In Shiv Kumar v. State of U.P and another, Writ Petition No. 814 of Petition 1990, Decided on 08.3.1991, a Division Bench of this Court has observed :

"It cannot be said that the State after obtaining the Report from the different authorities can pass an order rejecting Form A of the convict without considering the said reports. The order passed by the State must appear that the order is neither arbitrary nor capricious and has been passed after complete application of mind. Suffice it is to say that all factors required to be considered have been taken into consideration. In our opinion, it is rightly pointed out by the petitioner''s counsel that despite favourable reports the order of the State Government rejecting Form A of the petitioner without giving any cogent reason clearly shows the arbitrariness as well as the fact that the order was passed without application of mind."

In regard to the report of the District Magistrate opposing release on licence the Bench has observed :

"The District Magistrate has not mentioned any basis as to how he reached the conclusion that the petitioner can commit crime again after release on licence. On the other hand, it is not disputed that the petitioner was released four times on parol and during this period there had been no adverse report against him. There is no allegation also that the petitioner had abused his parole. It is also not disputed that the petitioners'' conduct in Jail is also satisfactory In fact no foundation has been laid to substantiate this allegation of the District Magistrate that the petitioner can commit offence again if released on licence."

In Shamim Khan v. State of U. P. and another, Writ petition No 54 (HC) of 1994 decided on 20.5.1994, another Division Bench of this Court was faced with the order of the State Government rejecting the prayer for release on licence on the basis of the report of the District Magistrate and the Superintendent of Police to the effect that the dispute continued to exist in the village. The Division Bench held that this could not be a sufficient ground for rejecting the form ''A''.

In fact, it is to avoid this arbitrariness that guidelines have been provided in the U P. Prisoners'' Release on Probation Act, 1938 and the rules framed thereunder for the exercise of this power. Section 2 of the probation act and rule 6 of the probation rules lay down that the opinion regarding the convict abstaining from crime and leading peaceable life, if released on licence, shall be formed by the State Government" from his antecedents and conduct in prison." Subrule (3) of rule 6 of the probation rules further provides that the Probation Officer shall give reasons If release on licence is opposed. If it were a matter of pure discretion, it was unnecessary to provide these guidelines. If the decision has to be taken by the State Government on a consideration of specific factors and reasons are to be given but either the relevant factors are not considered or reasons are not given where opinion is formed without any basis, the order passed will quite obviously be open to judicial scrutiny.

We have an unsavoury feeling, on a perusal of the orders of rejection of form "A, coming to our notice on being challenged by way of writ petitions, that more often than not, the concerned authorities, namely the Superintendent of police, the District Magistrate and the Board perhaps the Probation Officer is the only exception, give their opinion or recommendation without application of mind and in an arbitrary manner. State Government also follows the same pattern. Neither in the opinion or recommendations of the concerned authorities nor in the orders passed by the State Government, the relevant facts are mentioned or assessed while opposing or rejecting prayer for release on licence. Such blanket reports as, "the convict is not fit to be released as law and order problem may arise", or "he may take revenge or other persons may take revenge" or simply that "the convict is guilty of committing a heinous offence referring to the offence for which he is presently in Jail, are the orders of the day.

The opinion relating to release on licence has to be formed by the State Government and that can be done only on a consideration of facts relevant to formation of opinion and not on the basis of mere certificate or opinion of other authorities which does not disclose facts.

In the scheme of things, relating to release on licence, this opinion has to be based on facts relating to the antecedents and conduct in Jail to be reported by the concerned authorities. Antecedents, no doubt, would include the nature of crime for which the concerned prisoner is in Jail, but that is not the sole factor, nor, in fact, most important one. What is to be investigated and reported by the concerned authorities, the Superintendent of police, the District Magistrate or the Probation Officer are the facts, if any, relating to antecedents besides the factum of the crime for which the person concerned is in Jail. In Rajendra Prasad v. State of U. P. AIR 1979 SC 916, the Supreme Court has observed:

" The nature of the crime too terrible to contemplate has often been regarded a traditional peg on which to hand a death penalty Even Ediga Annamma (AIR 1974 SC 799) (Supra) has hardened here. But ''murder most foul'' is not the test, speaking scientifically. The doer may be a patriot, a revolutionary, a weak victim of an overpowering passion who, given better environment, may be a good citizen, a good administrator, a good husband, a great saint. What was Valmiki once ? And that sublime spiritual star, Shri Aurobindo, tried once for murder but by history''s fortune acquitted,"

"If we go only by the nature of the crime we get derailed by subjective paroysm.'',

In Sadhu Sarah Shukla v. State of U P. writ petition No. 2070 of 1978, decided on 11.9.1980, a Division Bench of this Court has observed :

"The nature of crime by itself cannot be a sound basis for determining if a person will abstain from crime and lead a peaceable life, the very basis on which the order under Section 2 of the Act is to be passed."

The Division Bench further observed, though in a slightly different context:

''''The antecedents are certainly to be considered but the main basis has to be his conduct and behaviour inside the Jail. The classification of the prisoners on the basis of offences which they had committed before entering into the Jail can have no nexus with the object of the act.�

With respects, we fully share the views expressed by the Division Bench and reiterate the same.

Although there have been a number of decisions where purpose of these laws has been explained but, it seems, to have been without much apparent effect and, therefore, one more attempt may be in order. The object of the Probation Act is the reformation of the offender. Section 2 is capable of no other meaning. It contemplates giving to the fallen man a chance of getting himself reformed and rehabilitated. The whole intention of this provision is humanitarian. It accepts the principle that the criminal law for the purpose of penology, deals primarily with the individual and does not concern itself with the offence for which he is lodged in Jail. We may also, at this stage, usefully, extract the following observation of Supreme Court in Maru Ram''s case (Supra):

"We find the rise of enlightenment in penological alternatives to closed prisons as the current trend and failure of imprisonment as the universal lament. We heartwarningly, observe experiments in open Jails, filled by lifers, liberal paroles and probations, generosity of juvenile justice and licensed release or freedom under leash a la. The Uttar Pradesh prisoners'' Release on Probation Act, 1938. We cannot view without gloom the reversion to the sadistic superstition that the longer a lifeconvict is kept in a cage the surer will be his redemption. It is our considered view that, beyond an optimum point of say, eight years we mean no fixed formula prison detention benumbs and makes nervous wreck or unmitigated brute of a prisoner. If animal farms are not reformatories, the Remission Rules and short sentencing schemes are a humanising wheel of compassion and reduction of psychic tension."

Considering the background, the object of the Probation Act and the observations of Supreme Court, the inevitable inference will be that such a premature release, as release on licence under the Probation Act and the Probation Rules should be considered rather liberally with a reformative zeal. As a corollary of this principle, the concerned authorities and the State Government need not take technical view of the matter but must apply their mind keeping in view the broad objects of such premature release. Release on licence is afterall an extension of release on home leave or parole. If for example, a person has conducted himself satisfactorily in Jail and there is nothing adverse, by way of tangible fact, against his antecedents, apart from the offence for which he has been convicted. If he is considered to be fit enough to be sent to the model Jail or to the open farms or on home leave without any adverse report against him, it would do violence to common sense if a report were to come from the Superintendent of police or the District Magistrate that, if released, he may create law and order problem or his release on licence will not be in the interest of the habitants of the village or that, if released he may wreak vengeance or vengeance may be wreaked against him.

Section 2 of the Probation Act and rule 6 of the Probation Rules lay down the guiding factors for release on licence. The said section 2 reads as follows :

"2. 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 or a Government Officer or of a person professing the same religion as the prisoner.................................."

It will appear that in considering the matter of release on licence, the State Government has to consider :

(1) antecedents

(2) conduct in prison; and

on a consideration of these two factors, it has to determine the possibility of the prisoners'' abstaining from crime and his leading peaceable life after release from prison. It may be noticed that it is from the antecedents and conduct in prison only that the opinion has to be formed regarding the convict leading a peaceable life and his being likely to abstain from crime. Abstaining from crime and leading peaceable life are not matter of a separate consideration. The opinion thereto has to be formed only on the basis of antecedents and conduct in jail. The ''antecedent'' is not an abstract concept. It is relative to actual facts of antecedents. In Stroud''s Judicial Dictionary, Volume I, it is mentioned that antecedent "refers primarily to the offender''s previous history and past record." This previous history and past record are obviously ascertainable facts. If any earlier crime has been committed or reports have been lodged against the convict or there are occasions where he has not acted as a responsible member of society may all come within the definition of antecedents. But, and it may be emphasised, these will be distinctly ascertainable facts and not merely vague assertions and allegations without back up facts. In other words, it will not be a vague opinion of the Superintendent of Police or the District Magistrate but will necessarily be the opinion or recommendation based on ascertainable facts Therefore, if an adverse opinion regarding prisoner''s abstaining from crime or leading peaceable life is formed, it must be shown to have been formed on some actual facts or incidents and not on vague feelings or unconfirmed reports. The District Magistrate or the Superintendent of Police and the Probation Officer as also the Board must indicate as to what conduct, if any, of the petitioner disentitles him from being released on licence. Merely stating that he will not lead a peaceable life or will not abstain from the crime or that the crime committed by him for which he is undergoing sentence is heinous one is not sufficient.

So far as the conduct in prison is concerned, record is kept by the jail authorities and there should be no difficulty in finding out as to whether or not the conduct of the convict has been satisfactory. However, in this regard too, the concerned authorities will have to take into consideration the nature of misconduct and not merely the fact that certain punishments were awarded while in jail. The nature of offence and punishment must be taken into consideration.

One legal objection of the learned Additional Government Advocate still remains to be considered and it is with reference to rule 3 of the Probation Rules providing that, if Form ''A'' has once been rejected, the convict shall be disentitled from his form being again considered. We have a feeling that this rule is rather arbitrary and does not have a rational nexus with the object to be achieved. However, we would refrain from giving a final opinion in this regard for the reasons that the vires of these rules have not been specifically challenged in any of these petitions and there may be a possibility of an argument that the parties did not have full notice of this plea being considered, and also for the reason that we propose to quash the orders of rejection of Form ''A'' on other grounds. We may accordingly leave this to be considered in any other case where the plea may be specifically raised.

We may summarise the legal position thus :

(1) Section 433 A of the Code of Criminal Procedure will not be attracted for release on licence under section 2 of the U. P. Prisoners Release on Probation Act, 1938 and it is not necessary for being eligible for release under the said Act that the person concerned should have undergone 14 years of actual imprisonment mentioned in section 433 A.

(2) The opinion and recommendation of the Superintendent of Police, the District Magistrate, the Probation Officer and the Board must be based on some objective facts and reasons must be indicated for opposing the release on licence. The jail authorities will mention the conduct of the prisoner as ascertainable from the jail records. The Superintendent of Police, the Probation Officer and the District Magistrate must mention all those facts on the basis of which they are of the opinion that on release on licence, the convict will not lead peaceable life or will not abstain from crime.

(3) The Formation of the opinion by the State Government as to whether or not the convict shall abstain from crime or lead peaceable life after release from prison must be based on the consideration of the ascertainable facts relating to the antecedents and conduct in prison and not on mere opinion of the District Magistrate, Superintendent of Police, Probation Officer.

(4) The antecedents will, no doubt, include the crime committed for which the concerned convict is undergoing jail sentence but that will not be sole factor, not even the most important factor. For forming an opinion against release on licence, there must normally be some more ascertainable facts besides the fact of committing the offence for which the convict is undergoing sentence.

(5) In considering the conduct in jail, mere award of some punishment will not be sufficient for holding opinion against the convicts'' release on licence. The State Government must, in addition, consider the nature of offence and the nature of the punishment awarded.

(6) The orders passed by the State Government must contain broad reasons indicating application of mind. The order must be based on facts and not on mere opinion of the concerned authorities.

(7) Last but not the least, the State Government and the concerned authorities must always keep in mind the salutary object of the Probation Act and the rules as indicated in the body of the judgment and that consideration must always guide them in the formation of the opinion.

We may now proceed to consider the relevant facts and legal position in respect to the various petitions The petitioner Dunna (Writ Petition No. 125 (HC) of 1992) was convicted for offence under section 302 I.P.C. for committing murder by Additional Sessions Judge, Sitapur by order dated 11.3.1977. He has served about 16 years sentence with remission. It would appear from the counter affidavit filed on behalf of the State Government that his prayer for release on licence has been rejected by order dated 24.8.1989 on the ground that the District Magistrate has opposed the release as, according to him, on release the convict shall not be able to lead peaceable life and the Probation Board has also opposed release on licence. On the directions of the Court, the record of the case was produced by the learned Additional Govt. Advocate. The record indicated that the conduct of the petitioner in prison was found to be satisfactory. According to the Probation Officer, the parent and relatives of the petitioner as also his neighbours have expressed the opinion that he will be able to lead peaceable life. It is further indicated in this report that the petitioner has been on home leave for fifteen days on two occasions and he did not commit any offence during that period and that there are no indications of any dispute remaining. It has been further reported that the convict has a house and he has three minor sons and that the atmosphere in the village seems to be normal. The guardian of the petitioner, Abdul Hassan is reported to be a man of good reputation and in a position to keep proper control over the petitioner. However, he has opposed the release on licence only on the following ground :

The District Magistrate has narrated facts relating to the crime and has then stated as follows in regard to his recommendation as to whether the petitioner should be released on licence :

after the report of the District Magistrate, the recommendation of the Board in the prescribed form is as follows :

"Rejected

The State Government has passed the following order rejecting the prayer of the petitioner :

It is quite apparent that the final order of the State Government has been passed merely on the basis of the report of the District Magistrate. The report of the District Magistrate is vague and arbitrary. Even though the Probation Officer has found that the atmosphere in the village is normal, no enmity exists now, the parent and relatives are of the opinion that the petitioner shall be able to lead peaceable life and that the petitioner went on home leave twice and did not commit any offence, it is not understandable how, in view of these facts, the District Magistrate has opposed the release on licence or how he has come to the conclusion that the petitioner may commit some offence after his release. To say the least, the opinion expressed by the District Magistrate is arbitrary and has been given without application of mind. The recommendation made by the Board is based on such a vague and arbitrary opinion of the District Magistrate and no additional grounds have been given by the Board. The order of the State Government is also solely based on the recommendation of the District Magistrate and the Board. The State Government has not considered the facts indicated by the jail authorities or the Probation Officer. The order passed by the State Government is quite obviously arbitrary and without application of mind. As has been indicated above, the State Government had to consider the antecedents of the petitioner and his conduct in the prison. The State Government has not considered either of these factors. It was only on a consideration of these factors that the State Government could have arrived at the conclusion that the petitioner was not fit for release on licence. This opinion could not have been formed by the State Government merely on the vague and arbitrary certificate of the District Magistrate. In this connection, it may also be observed that the petitioner has alleged and it is admitted by the opposite parties that the petitioner is at present kept in Model Jail, Lucknow and that he has been to his home on home leave and has always returned in time and that he also goes to Bhadrukh Krishi Farm outside the jail for work. The petitioner has also filed in this petition the affidavit of Mustkeem son of Bakreedi, who was murdered by the petitioner, as also of his wife stating that the relation between the two families were cordial and their family and the family of the petitioner are living together as one family and further that no tension between them remains. The factum of these affidavits or their contents has not been disputed. All these facts quite obviously relate to the antecedent of the petitioner but have not been taken into consideration. The State Government has thus not considered the relevant facts and has based its opinion on irrelevant facts. Accordingly, we are clearly of the opinion that the order passed by the State Government is arbitrary, without application of mind, bad in law and it cannot be sustained.

The petitioner, Mool Chand (writ Petition No. 204 (HC) of 1991) was convicted under section 395/396 I. P. C. by the Sessions Judge, Kheri on 09.3.1973, He has served 14 years actual sentence and about 25 years with remission. His 14 years nominal roll was considered by the State Government in the year 1985 but the consideration was postponed. It was again considered on 29.7.1988 but the release was again postponed for another three years. The matter remained pending for a long time and after the directions of the Court for disposal, the State Govt. has passed an order dated 7th April. 1993 again postponing the consideration for another two years. The copy of the order postponing the consideration for two year has been filed as Annexure to the counter affidavit dated 20th August, 1993. On the directions of the court, the record relating to the consideration of the nominal roll of Mool Chand was produced in the Court. The report of the Superintendent Police, District Sitapur indicates that the conduct of the petitioner on release on parole was satisfactory and, according to the reaction of the neighbours on release of the petitioner shall be normal. No comments have been given regarding the reaction of the family members of the victim and it has been mentioned that this relates to the police station Kheri. No report appears to have been called from the police station, Kheri. The recommendation of the Superintendent of police, Sitapur is as follows :

The District Magistrate has reported :

The Board has also opposed the release on the same grounds :

So far as the conduct, in jail is concerned, it is stated in the counter affidavit that he has been awarded the following 11 jail sentences :

The State Government has postponed the consideration of the release of the petitioner under para 198 of the Jail Manual with the following order:

A perusal of the order of the State Government leaves no manner of doubt that it has been passed without due application of mind and quite mechanically. It is solely based on the report of the Superintendent of Police which gave no reasons for the opinion that it will not be appropriate to release the petitioner. The only fact mentioned in regard thereto is that the petitioner is a man of criminal nature. It has not been stated that, besides the offence for which the petitioner is undergoing imprisonment there have been or are any other criminal cases pending against him nor it is stated that there have been any complaints against him The District Magistrate and the Board have merely based their reports on this vague assertion of the Superintendent Police. It was stated in the report of the Superintendent Police, Sitapur that the report be also obtained from Superintendent Police, Lakhimpur but this does not appear to have been done. No doubt, the opposite parties have filed alongwith their affidavit a list indicating that that the petitioner was awarded eleven Jail sentences. We have extracted above the details of these Jail sentences. It will appear that first nine Jail sentences are merely concerned with his not preparing food in a proper manner. We do not know and it has not been indicated whether the petitioner is professional cook. It has also not been indicated that he prepared the food in this manner deliberately. If one is not professional cook, it is not possible that he will prepare the food in the manner which was expected by the jail authorities. There are, of course, two sentences awarded on 25.12.1987 and 19.4.1988 to the effect that he quarreled with another convict and he gambles in jail. These sentences were awarded more than six years ago and it is not indicated that the conduct even thereafter has been unsatisfactory The punishment regarding petitioner''s failure to prepare food properly were awarded as far back as 1977. In connection with these jail sentences, it may be observed that nowhere in the order, the State Government has mentioned this conduct to be the basis for the order and we are unable to find any connection between these jail sentences and the order passed. We have also indicated above that it is not only the factum of the jail punishments but the nature of those punishments which shall be relevent for forming an adverse opinion against the convict. Therefore, the State Government has to consider the nature of these punishments also. They must also consider the proximity of these jail punishments and the jail punishments awarded long time back may not be a serious hindrance if the conduct during the later sufficient period of time has been found to be satisfactory In regard to the conduct, the State Government must consider not only the adverse material against the petitioner but also the positive facts relating to his conduct. The petitioner has alleged and it is not disputed that he was released on parole three times for a total period of four months and also availed home leave on six occasions for 15 days each and he spent this period peacefully and returned in jail in time. It is also not disputed that presently he is living in Model Central jail, Lucknow and there is nothing against his conduct inside and outside the jail. The State Government has to consider all these factors which are relevant to the formation of the opinion on the basis of conduct. In our opinion, therefore the order passed by the State Government is without consideration of the relevant material and is solely based on vague and arbitrary reports of the superintendent Police and District Magistrate. The order passed by the State Government is thus clearly without application of mind and, accordingly, arbitrary and bad in law. It cannot be sustained.

In Writ petition No. 59 (HC) of 1992, the petitioner Puran was convicted under section 302/34 I.P.C. by the 1st Additional sessions Judge Kheri and sentenced to life imprisonment by order dated 20.8.1974. On the date of his submitting form A (24.2.1992) he had undergone sentence of 18 years 9 months and 18 days. His form A was earlier rejected by the State Government on 13.2.1986. His form A was again submitted for consideration but was not disposed of till the date of filing the petition. By order dated 8.9.1992, the State Government was directed to dispose of this form A within six weeks from that date. The form A has since been disposed of by order dated 15.12.1992 and the prayer for release under section 2 of the Probation Act has been rejected with the following order.

A perusal of the above order of the State Govt. indicates that there are some positive reasons for rejection of the prayer for release under the Probation Act. It is not disputed that the petitioner overstayed when he was released on parole. Accordingly, we are of the opinion that the order passed by the State Government cannot be said to be arbitrary or otherwise bad in law.

However, the matter regarding the release of the petitioner on nominal roll under para 198 of the jail Manual is also under consideration of the State Government (Writ petition No.323 (HC) of 1993 and Writ petition No. 458 (HC) of 1994). This matter has been considered by State Government and by order dated 13.4.1993, the release of the petitioner under this provision has been postponed for two years. We are satisfied, on a consideration of the order passed and the facts mentioned in the counter affidavit which are not disputed, that the postponement of the consideration cannot be said to be without any basis. We would not like to comment on the reason given as the matter has not been finally disposed of and has merely been postponed. We however, expect that the State Government, while reconsidering the matter in terms of the order dated 13th April, 1993, shall take into consideration the legal position and observations trade in this Judgment. We also expect that the State Government shall pass appropriate orders expeditiously, say within three months of the expiration of the two years period.

In the aforesaid petitions, the petitioner has also prayed for consideration of his matter for release in accordance with paragraphs 195, 196 and 197 of the Jail Manual. It is alleged and has not been disputed that the petitioner is a chronic patient of bronchial asthma with cardiac involvement. According to the report of Medical Officer, District Jail, Lucknow "his condition is continuously deteriorating." Accordingly he has recommended '' premature release on medical ground." No Specific orders in regard to this prayer and recommendations would appear to have been passed yet. If no order have been passed and even if the orders have been passed earlier, this is certainly a matter for consideration or reconsideration in accordance with paras 195,196 and 197 of the Jail Manual. Accordingly, the State Government should consider this prayer of the petitioner in the light of the recommendation of the concerned medical authorities.

In writ petition No, 130 (HC) of 1992, the grievance made by the petitioner, Puran, is in regard to nonpayment of remuneration allegedly due for work in jail. In some other petition also, this prayer has been made. It is stated on behalf of the State Government that the petitioner has been paid remuneration in accordance with rules. In our opinion considering the entire facts and circumstances, it will be proper for the Inspector General, Prisons to consider this matter and issue proper orders or directions.

The question now remains is as to the nature of relief that could be given and ought to be given to the petitioners. Learned counsel for the petitioner contended that, if the Court is satisfied, it could direct the release of the petitioners or any of them and it may not be necessary to direct the State Government to reconsider the matter and pass appropriate orders. On the other hand, submission of the learned Additional Government Advocate was that this cannot be done according to law and the only order that this Court could pass would be in the nature of a direction to the State Government to reconsider the matter and pass appropriate orders. In our opinion, normally, the Court may not substitute its discretion or opinion in place of the opinion or discretion of the State Government. However in exceptional cases where the Court finds] blatant injustice being done and normal provisions not followed or blatantly violated and a further delay may cause injustice to the petitioner who may be found to be entitled to release under the aforesaid provisions, there would be no legal bar in giving such a direction. In a number of cases, both the Hon''ble Supreme Court and various Benches of this Court have passed orders for releasing the petitioners within a specified time.

In Bhagwat Saran v. State of U. P. and others (1983) 1 SCC 389, the State Government rejected the prayer for release on licence. Hon''ble Supreme Court found the order bad in law on the ground that no attempt was made to indicate how law and order is likely to be adversely affected and directed the release of the detenue.

In writ petition No 814 of 1990 Shiv Kumar v. State of U. P. and another, decided on 08.3.1991, a Division Bench of this Court comprising Hon''ble D. K. Trivedi and Hon''ble V. N. Mehrotra, JJ repelled the contention of the State Government against passing the order of release and observed

"No doubt, on the nonapplication of mind, we use to remand the case with a direction to the State Government to reconsider the case of the petitioner for premature release but as we have perused the record and after going through the material placed before us we find that the Probation Board had recommended his premature release, the conduct of petitioner in jail is also satisfactory and there is nothing on record adverse to the petitioner, therefore, in our opinion, it would be proper to quash the order dated 25.11.1988 rejecting Form A of the petitioner and direct release of the petitioner on licence under the U. P. Prisoners Release on Probation Act, 1938."

In Rang Bihari v. State of U. P. and others Writ No. 1299 of 1988 (HC) decided on 12.8.1988, a Division Bench of this Court comprising Hon''ble Kamleshwar Nath and Hon''ble D. S. Bajpai, JJ found that there is nothing adverse in the antecedent of the petitioner except that the crime itself was heinous and there was nothing to indicate that the petitioner will indulge in life of crime. The Division Bench accordingly quashed the order of the State Government and directed his release on licence.

in Manohar v. State of U. P. and others Writ Petition No. 1001 of 1988 (HC), decided on 19.9.1990, a Division Bench of this Court comprising Hon''ble D. K. Trivedi and Hon''ble K. C. Bhargava, JJ. found that the report of the District Magistrate that there is tension in the village is too vague and, in absence of evidence, it cannot be presumed that this vague ground was sufficient for rejecting form A. The Bench accordingly directed release of the petitioner on licence.

In Dwarika Singh v State of U. P. and others. Writ Petition No. 10698 of 1990 (HC) decided on 8.1.1991, another Division Bench comprising Hon''ble S. H. A. Raza and Hon''ble D. K. Trivedi, JJ found the petitioner entitled to be released on the ground of his age etc. and directed the State Government to release the petitioner forthwith.

In Dilawar v The State of U. P. and others, writ petition No. 1200 of 1988 (HC) decided on 17.2.1989 again a Division Bench of this Court comprising Hon''ble S. C. Mathur and Hon''ble D. S. Bajpai, JJ, found that the Form A of the petitioner was rejected by the State Govt. on irrelevant considerations and directed that the petitioner shall be released within one month of the communication'' of the order.

In Ram Nath v State of U. P. Writ Petition No. 8272 of 1987, decided on 12.12.1990, a Division Bench of this Court comprising Hon''ble S. H. A Raza and Hon''ble D. K. Trivedi, JJ noticed that the release on licence was being opposed on a vague ground that, there is a partybandi in the village and there is apprehension of the breach of peace. Since no foundation has been laid for such an information, the order passed was held to be nonspeaking and arbitrary and was accordingly quashed. The Bench directed the State Government to release the petitioner under section 2 of the Probation Act within two weeks from the date of receipt of the order.

In Mariyam v State of U. P. Writ Petition No. 454 (HC) of 1993, yet another Division Bench of this Court comprising Hon''ble S. H. A. Raza and Hon''ble R. K. Agrawal, JJ repelled the contention of the learned Government Advocate that this court cannot direct the release of a convict and observed as follows:

"Learned Government Advocate relying upon several decisions of the Hon''ble Supreme Court insisted that the order of release on licence can only be issued by the State Govt. and this Court has no jurisdiction to issue the release. This aspect of the argument appears to be correct. But in cases where a person could be released on the basis of the law existing at that time, but the state Govt. failed to discharge its duties on false, frivolous and vexatious grounds, the Court cannot shut its eyes, particularly for the reason of the fact that by imprisoning a person the liberty of a person can be curtailed but he cannot be permitted to be deprived of his life. The contention of the learned Govt. Advocate that a person who has been sentenced for life, has no vested right to be released till the last breath of his life. But we cannot ignore that State itself has provided the release of a person on licence even before he takes his last breath. The Rules so formulated has to be observed in its letters and spirit and if at the relevant time when a person could be released but was not released on the basis of frivolous and vexatious grounds, the Court can certainly intervene."

We are bound by the observations or directions of Hon''ble Supreme Court as were given in Bhagwat Saran''s case (supra). With respect, we also reiterate the view taken by various Divison Benches of this Court, and hold that where the concerned authorities have failed to give reasons for their opinion, their opinion are vague and arbitrary, where the orders of the State Government have been passed mechanically and without application of mind and where on the facts alleged and established on record, the conduct of the concerned convict in jail or his antecedents are found to be satisfactory and nothing adverse in that regard could be shown or inferred and any direction for reconsideration may entail lapse of further time, which in the facts and circumstances of a particular case, may not be proper there is nothing to debar this court from passing orders of such release on a consideration of the entirety of the facts and circumstances of a particular case.

Considered in the background of the legal position and the facts, we find that the petitioner, Dunna is eligible for release on licence. His conduct in jail has been found to be satisfactory. The Probation Officer has found that the atmosphere in village is normal, no enmity exists now, the parent and relatives are of the opinion that the petitioner is able to lead peaceable life. The petitioner went on home leave a number of times and nothing adverse was reported against him. The petitioner is admittedly lodged in Model Jail, Lucknow and he goes out to Bhadrukh Krishi Farm outside the jail for work which means that he is being allowed a limited liberty even now without any adverse report against him. The petitioner has also filed with this petition the affidavit of Mustkeem son of the deceased who was murdered by the petitioner as also of his wife stating that the relations between two families are now cordial and their families and the family of the petitioner are living as one family and further that no tension between them remains. The genuineness and contents of these affidavits have not been disputed. As indicated above, in these circumstances, it is difficult to appreciate how the District Magistrate could report that the petitioner shall not be able to lead peaceable life and shall not abstain from crime. We have already indicated above that the report of the District Magistrate and the order passed by the State Government are arbitrary. The petitioner has been in jail since 11.3.1977. Any direction for reconsideration by the State Government will mean that even in these circumstances where the petitioner is obviously entitled to be released on licence he will have to undergo further imprisonment inside the jail as the State Govt. may take further time in obtaining reports and passing orders. In the facts and circumstances of the case we do not find it to be just and proper. Accordingly, in our opinion, this is a fit case where this Court could itself direct the release of the petitioner on licence.

So far as the other petitioners are concerned, for the reaons we have already indicated, it will not be proper for us to direct release of those petitioners and proper orders in those cases will be to direct the State Government to reconsider their cases within a specified time.

Petitions are accordingly disposed of in the following terms. Writ petition No. 125 (HC) of 1992 is allowed to the extent that the order of the State Govt. dated 24.8.1989 rejecting form A of the petitioner, Dunna, is quashed and the State Government is directed to release the petitioner on licence under Section 2 of the U.P. Prisoners Release on Probation Act, 1938 and the Rules on furnishing bond with such conditions as the State Govt. may impose within 15 days of the communication of the order.

Writ Petition No. 204 (HC) of 1991 is partly allowed to the extent that the order dated 7.4.1993 passed in respect of the nominal roll of Mool Chand is quashed and the opposite parties are directed to reconsider the matter of the petitioner Mool Chand for release on nominal roll under para 198 of the jail Manual and pass appropriate orders within four months of the date of communication of the order.

Writ petition No. 59 (HC) of 1992 (Puran) is dismissed.

70, Writ petition Nos. 323 (HC) of 1993 and 458 (HC) of 1994 are partly allowed and the State Government is directed to consider the case of the petitioner for release under paragraphs 195, 196 and 197 of the Jail Manual and pass appropriate orders within four months of the date of communication of the order.

The writ petition No. 130 (HC) of 1992 is also partly allowed and it is directed that the Inspector General of Prisons shall consider the grievance of the petitioner regarding the payment of remuneration for the work done in jail within one month of the communication of the order. 72. Before we close, we will like to record our appreciation for the immense assistance provided to us, both by Shri Deepak Srivastava, learned counsel for the appellant and Sri J. Misra learned Additional Government Advocate. They placed the facts and law before us fairly and with great labour and learning.

K. C. Bhargava, J.

MB. Asthana, J.

Judgment pronounced today under Chapter VII Rule 1 (2) of the Rules of the Court.