Putani vs State of U.P.

This writ petition for Habeas Corpus has been preferred by the petitioner for quashing his detention in prison and releasing him forthwith on FormA.

Briefly stated the facts of the case are that the petitioner was convicted on 21111975 by the Sessions Judge, Lucknow under Section 301, I.P.C. and was sentenced to undergo imprisonment for life in Sessions Trial No. 271/72. Thereafter the petitioner filed an appeal but the same was dismissed by the High Court.

Till 171996 the petitioner has completed 15 years 10 days of his imprisonment without remission and 19 years 3 months 10 days with remission. The petitioner filed a writ petition No. 516(H/C) of 1994 before this Hon''ble Court against his illegal detention in jail and prayed for premature release on the basis of FormA as well as on 14 years'' Nominal Roll. A Division Bench of this Court vide order dated 1321995 disposed of the said writ petition finally with a direction to the State Government that if the case of the petitioner for release is under consideration of the State Government, the same shall be decided by the opposite parties within a period of two months from the date of production of a certified copy of the order. A copy of ihe order was sent by registered post to the Principal Secretary, Home (Jails). No decision was taken by the Government. Aggrieved against the inaction of the Government the petitioner was compelled to file another writ petition bearing No. 404(H/C) of 1995 for noncompliance of the earlier order of the Court. The State Government after filing of the above said writ petition, rejected the release of the petitioner for further two years under para 198 of the U.P. Jail Manual by means of the order dated 591995. A Division Bench of this Court vide order dated 30101995 was pleased to direct the respondents to consider the case of the petitioner for release on license under Section 2 of the Probation Act afresh and pass appropriate orders within a period of six months from the date a certified copy of the order was produced before the opposite party No. 1. A copy of the above order of this Court was sent by registered post to opposite party No. 1 on 18121995.

4, The Probation Board has recommended for premature release of the petitioner on license but without looking into the recommendation of the Probation Board the State Government has again rejected the release of the petitioner vide order dated 621996. This order is illegal, arbitrary and without application of mind, the petitioner has always returned from parole in time except for one occasion in 1984 for which he has got punishment. The petitioner''s conduct in jail has been good and there is no possibility of involving in any other crime after his release and there is no apprehension of breach of peace after the release of the petitioner. The petitioner has a suitable guardian who is solvent also.

In the counteraffidavit filed by the State, it has been averred that the premature release of the petitioner on form A has been rejected on 621996. The petitioner as on 1071996 has undergone 14 years 3 months 22 days imprisonment without remission and 18years, 11 months 29 days with remission, the petitioner has previously filed a writ petition on the same ground. The Slate Government has complied with the order of the Court. FromA of the petitioner has been rejected on the ground that petitioner shall not keep himself away from crime and will not lead a peaceful life. The proposed guardian of the petitioner is also not suitable. The District Magistrate has opposed the release of the petitioner. The petitioner has also not turned up in jail in time after he was released on parole and he was punished for the same in the year, 199495

Learned counsel for the petitioner as well as learned standing counsel have been heard. Learned Counsel for the petitioner has argued that the Probation board has given its report in favour of the petitioner. With regard to the question as to whether the guardian is solvent or not, there is no mention in the order passed by the State Government that the proposed guardian is not fit. The probation officer has also not written any adverse remark against the proposed guardian. It is clear that the State Government gathered the impression extraneously and came to the conclusion that the guardian was not fit. No such recommendation has been made by the probation board. The probation board has written that the guardian is fit to keep control over the convict in the opinion of the probation officer. The Slate Government has also rejected FormA on the ground that there is likelihood of convict not living peaceful life and away from crimes. Wherefrom this observation of the Stale Government has come, is also not clear. This fact is not mentioned in the report of the District Magistrate and in the report of the probation board. The probation board has strongly recommended premature release of the convict. The District Magistrate has reported that the convict has committed default in coming back after parole in 199495 and therefore he is also not entitled to premature release. This is the only fact which has compelled the State Government to reject FormA of the petitioner. But this ground alone cannoise sufficient for rejection of FormA.

As far as the question of proposed guardian is concerned there is a Government Order 5127/Pro/222l9/84 dated 1851987 issued by the Under Secretary, Uttar Pradesh Shashan to I.G. Prison, Uttar Pradesh, Lucknow which provides ihe manner in which the guardian of convict is to be appointed. The Stale Government has not taken into consideration the above mentioned Government Order while rejecting the FromA of the petitioner.

In the case of Ahibaran Singh v. State of U.P. and others, 1996 L Cr R 274, a Division Bench of this Court has, after considering the law on this point, summarized the legal position on page 281. The Stale Government has also not taken into consideration the guidelines provided in this case.

Thus, we are of the view that on the basis of the material on record the State Government could not have rejected FromA of the petitioner. The State Government has considered the irrelevant material and taken into consideration the material which was not on the record while rejecting FormA. The order dated 621996 passed by the State Government by which the FormA of the petitioner was rejected, is quashed and the matter is again sent to the State Government to reconsider the same and pass appropriate order and dispose of FormA by means of speaking order in the light of the Government Order and the case law mentioned in the earlier part of this judgment. The FormA be disposed of within a period of four months from the date a copy of this order is produced before opposite party No. 1.