Krishna Nand vs State of U.P.and another

I. S. Mathur, J.—The petitioner is aggrieved by the order of the State Government dated 4.7 1994, rejecting his formA for release on licence under Section 2 of the U.P. Prisoners Release on Probation Act, 1938 He seeks a writ in the nature of mandamus directing the opposite parties to consider his release.

The relevant facts are in small compass. The petitioner was convicted under sections 302/149/201/148 I. P. C. and was sentenced to undergo imprisonment for life, by order of the Sessions Judge, Lakhimpur dated 09.7.1975. His appeal against the said order was dismissed by the High Court and the petitioner has been in jail since 27.8.1982. As on 10.10 94, he has served sentence of sixteen years three months twenty days with remission. His FormA has been rejected by the State Government by order dated 4.7.1994.

We have heard learned counsel for the petitioner and learned Standing Counsel and, in our opinion, the impugned order dated 4.7.1994 cannot be sustained. It has been held by this Court time and again that the opinion or recommendation to be given by the concerned authorities, namely the superintendent of Police, District Magistrate, Probation Officer and the Probation Board must contain reasons and they should not merely be in the nature of certificates or opinion without back up facts. It has also been held repeatedly by this Court that the order passed by the State Govt. must also be a speaking order based on objective facts and not merely on such opinion or certificates. This matter has been considered in detail in a recent decision of a Division Bench of this Court in which one of us (I. S. Mathur, J.) was a member in Dunna versus The State of U. P. and others, writ Petition No. 125 (HC) of 1992 and other connected writ petitions, decided on 31.1.1995 and relying upon the decision of Hon''ble Supreme Court in the cases of International Airport Authority (1979) 3 SCC 489 and Maru Ram v. Union of India AIR 1980 SC 2147, the Bench has observed as follows :

"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. 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 Division Bench has also observed as follows :

"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 certificates 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."

Considering the object behind the U. P. Prisoners Release on Probation Act, 1938 and, inter alia, relying upon the observations of Hon''ble Supreme Court in Maru Ram''s case, the Division Bench has observed :

"Considering the background, the object of the Probation Act and 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."

The following observations of the Division Bench are also relevant:

"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, there 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."

The Division Bench also referred to the case of Bhagwat Saran v. State of U. P. and others (1983) 1 SCC 389. In that case, 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. The same view has been taken by the Division Bench of this Court in Shiv Kumar v. State of U. P. and another Writ Petition No. 914 of 1990 decided on 08 3.1991, and Shamim Khan v. State of U. P. and another Writ Petition No. 54 (HC) of 1994, decided on 20.5.1994.

After considering the legal position in the light of the provisions of the Act and the decision of Hon''ble Supreme Court and the other decisions of this Court, the Division Bench has summarised the legal position as follows :

"(1) Section 433A 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 433A.

(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 Police, Pobation 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 reiterate the propositions of law and the guidelines laid down by the Division Bench in Dunna''s case (supra) In this connection, we may also observe that, according to law, the direction given by the High Court on the question of law is binding not only between the parties of the case, whether State Government or the private party or any other body, but it is binding on the State Government and other persons in other cases as well (M/s Devi Das Madho Prasad M. Commissioner of Incometax AIR 1967 Allahabad 414). Therefore, the decision and the detailed guidelines given by this Court in Dunna''s case in regard to disposal of FormA, will be equally binding on the State Government while disposing of similar cases, including this case.

We may now proceed to consider the facts of the present case. The petitioner has alleged and it has been admitted in the counter affidavit that the petitioner has already undergone sentence of sixteen years three months and twenty days with remission and, accordingly, he is admittedly eligible for being considered for release on licence under section 2 of the U. P. Prisoners Release on Probation Act, 1938. On our directions, record of the case relating to consideration of FormA by the State Government was produced. A perusal of this record indicates that the Probation Officer has given a favourable report in regard to the release on licence. He has noted that the petitioner is likely to lead peaceable life on being released on licence. The report of parent and relatives was satisfactory. Against the column regarding neighbours'' report the Probation Officer has noted that the condition in village is satisfactory and normal. He has also noted that, there is a young wife of the petitioner and he has his own land in the village. In the end, he has made the following recommendation :

The Superintendent Police has noted that there will be no special reaction if the petitioner is released on licence and in the column relating to the reaction of victim''s family, it has been mentioned as normal. He has also noted that, on being released, there will be no danger to the petitioner''s life or property. It has further been indicated that the petitioner has not committed any offence besides the one for which he is undergoing jail and while on parole or home leave also, he did not commit any offence. However, in spite of these positive facts the Superintendent of Police has made the following adverse recommendation :

The District Magistrate has stated in his report that the proposed guardian is proper and has made the following recommendation :

The Probation Board has endorsed the opinion of the District Magistrate and has given the following recommendation :

The State Government has then passed the following order :

A perusal of the order of the State Government indicates that it is solely based on the report of the Police Superintendent which by itself is extremely vague and inconsistent with his own observation in the earlier part of the report. As has already been indicated above, the Superintendent Police has found that there will be no adverse reaction if the petitioner is released on licence, he will not suffer in person or property if so released, on being on home leave or parole, he has not committed any offence and the reaction of the victim''s family shall also be normal. It is really extremely surprising how, in view of the facts, which have been noted by the Superintendent of Police himself, he could state in his final recommendation that, if released, the peace way be disturbed. This recommendation is clearly arbitrary and not based on the facts noted by the Superintendent of Police himself. It is still more surprising that the State Government based the decision solely on this vague and arbitrary report of the Superintendent of Police. It is also surprising that the State Govt did not care to consider the facts and recommendation given by the District Probation Officer, the District Magistrate and the Board. All these authorities, after noting relevant facts in favour of the petitioner, clearly recommended the release of the petitioner on licence. No reason has been given in the counter affidavit as to how the State Government could come to the conclusion that peace shall be disturbed when the facts mentioned by the Superintendent of police, the Probation Officer, the District Magistrate and the Board categorically indicate that there could be no reason for such an apprehension. Reference to the opinion of the Superintendent of Police without taking into account the facts mentioned in his report and also .completely ignoring the recommendations given with back up facts, of the Probation Officer, the District Magistrate and the Board leads to be inevitable conclusion that the order rejecting FormA has been passed arbitrarily and without application of mind at all.

Indeed, it is difficult to understand how, if the antecedents of the petitioner were not adverse, his conduct in jail was satisfactory, there was no adverse report against him while on being home leave or on parole, a view could be taken by the State Government that, if released on licence, peace may be disturbed. In this connection, it may also be observed that the petitioner has mentioned in his petition that he went on home leave seven times during the period 15.12.87 to 29.4.94 but there was no adverse report against him. This fact has not been disputed in the counter affidavit. It has also not been disputed that the petitioner was released on parole for two months and he returned in time and that there was no adverse report. Further fact to be noticed in this connection is that the petitioner is at present lodged in model jail, Lucknow. What could be more arbitrary or lacking in application of mind than the order passed in this case. Such an order cannot be sustained.

The petitioner has prayed for a direction to the opposite parties to consider his case for release In view of what we have found above, the order dated 4.7.1994, rejecting Form A of the petitioner, has to be quashed with necessary corollary that a direction will have to go to the opposite party State of U. P. to pass fresh orders on the prayer of the petitioner for release on licence in the light of observations made in the body of this judgment.

The petition is, accordingly allowed. The order dated 4.7.1994, rejecting FormA of the petitioner, is quashed. The opposite party State of U. P. is directed to pass fresh orders, within one month from the date a certified copy of the order is served on it, in the light of observations made in this judgment.

(Petition allowed)