Ram Chandra vs State of U.P. and Another

S.C. Mathur, J.—The Petitioner who is undergoing sentence of life imprisonment has directed this petition against rejection of his application for release on licence u/s 2 of the U.P. Prisoners'' Release on Probation Act, 1938 (U.P. Act No. 8 of 1938).

From the averments made in the counter affidavit it appears that till 16th September 1985, the Petitioner had undergone actual sentence of 7 years and 23 days only and with remission he had undergone sentence of 10 years and one day. The reason for rejection of the Petitioner''s application for release has been reproduced in paragraph-6 of the counter affidavit. It is stated in the State Government''s order that the Petitioner was armed with a sharp edged weapon at the time of the commission of the crime and that till 18th December, 1985 he had undergone sentence of 7 years only and since he was aged about 30 years only it could not be inferred that the Petitioner will lead a peaceful life.

The learned Counsel for the Petitioner Mrs. T. Puhvahl has challenged the order of the State Government ort the following grounds:

(1) That there is non-application of mind on the part of the State Government, and

(2) It is based on irrelevant considerations.

So far as the ground of non-application of mind is concerned, it is pointed out from the judgment of this Court in appeal that the Petitioner was, at the time of the commission of the crime, alleged to be armed with gun while in the order of the Government it is mentioned that he was armed with sharp-edged weapon. This discrepancy is indeed there in the orders but the only inference that can be drawn is that the State Government did not make proper appraisement of facts. The first ground of the challenge is, therefore, made out.

Regarding the second ground, the submission of the learned Counsel is that the facts that the Petitioner was aged about 30 years only and be had served the sentence for only 7 years are irrelevant as they have no relation to the requirements of Section 2.

u/s 2 of the aforesaid Act the State Government is competent to take into account the antecedents of the detenu. Antecedents of the detenu will include the setting in which the crime was committed and the weapons used therein. In a crime committed in a very brutal manner, it may not be considered appropriate by the Government to release the prisoner who has not remained in jail for a sufficiently long period. A sufficiently long period controls crimes. If in henious crimes the prisoner will come out of the prison without serving a sufficiently long period, it may become a mockery of the sentencing system. It needs to be mentioned that one of the principles of sentencing is deterrent also. We are therefore of the opinion that the State Government did not commit any error when it took into account the period for Which the Petitioner had remained in jail after conviction

The factor of age, in our opinion, is also not irrelevant. With advancement in age sobriety comes and impetuousity declines. It is, therefore, reasonable to infer that a person who has sufficiently advanced in age and has thereby attained sobriety may not. indulge in crime again after release from jail Conversely it is possible to infer that a young man who has not yet lost his impetuousity may not refrain from crime and may not, on release from jail, lead a peaceful life. Therefore, consideration of age factor by the State Government also does not vitiate the order of the State Government.

The observations made by us hereinabove are sufficient to dispose of this petition.

However, learned Counsel for the Petitioner has pointed out that the State Government did not strictly comply with the directions of the Supreme Court contained in the Order dated 9-5-1985 (annexure-1). It appears that earlier the State Government has postponed consideration of Petitioner''s application for release u/s 2 for three years. Aggrieved by this order the Petitioner approached their Lordships of the Supreme Court who directed that the application shall be considered by the'' State Government and fresh orders will be passed within four months of the date of the receipts of their ''order; giving reasons for the order. In the event of rejection of the application the State Government was required to communicate the reasons for refection within two months front the date of the order. It appears that this time schedule was not followed by the State Government. However, non-Observation of the time schedule is not material at this stage. On account of failure of the State Government to adhere to the time schedule, the Petitioner cannot say that he cannot be sent back to jail. This situation had been visualised by their Lordships, who provided that in the event of non-disposal of the application within the specified period, the Petitioner will be enlarged on bail. Admittedly, the Petitioner has availed of this provisions in the order of their Lordships and presently he is on bail. The State Government after rejecting the Petitioner''s application, made an application for cancellation of the bail, for which reservation had been made in the order of their Lordships, but the learned Sessions Judge rejected the application because, before him, the State Government failed to produce the order which has not been produced before us. Even now it is open to the State Government to make a fresh application and place before the Sessions Judge the order rejecting the Petitioner''s application u/s 2.

The learned Counsel for the Petitioner has invited out attention to the fact that the District Magistrate, the Probation Officer and the Probation Beard, had all recommended release of the Petitioner u/s 2. It may be that these authorities had recommended release but the final decision in the matter has to be taken by the State Government. No right is created in favour of the prisioner from mere recommendation.

In view of the above, the petition is allowed and the order of the State Government dated 15-3-1987 reproduced in paragraph 6 of the State Government''s counter affidavit dated 10th July, 1987 is hereby quashed. The State Government shall reconsider the Petitioner''s application and pass fresh orders taking into account the observations made hereinabove. Fresh order will be passed by the State Government within two months from the date of communication of this order. There shall, however, be no order as to costs.