State of U.P. vs Badloo

O.P. Jain, J.—The State has filed this application for cancellation of bail. The brief facts leading to the application are that nonapplicant Badloo was convicted under Section 302, IPC on 9101968 in S.T No.61/68. His appeal was dismissed by this Court on 29th March, 1972. It appears that after serving a major portion of the sentence he applied under Section 2 of U.P. Prisoners'' Release on Probation Act, 1938 but no order was passed on his application. Therefore Badloo along with some other accused persons who were similarly situated filed writ petitions before the Hon''ble Supreme Court and on 12111984 the apex Court passed the following order:

"The writ petitions abovementioned being called on for hearing before this Court on the 12th day of November, 1984 upon perusing the said Writ Petitions, and the accompanying documents and upon hearing counsel for the parties. THIS COURT DOTH ORDER THAT the petitioners namely Badloo Convict No. 24928, s/o Alla Jilaya (In W.P. No. 2457/83), Bakkha Singh Convict No. 30920, s/o Shri Gurdatt Singh (In W. P. No. 2459/83), and Iqbal s/o Faiaza Khan (In WP. No. 2460/83) be released on Bail forthwith on their furnishing Sureties to the satisfaction of the District Session Judge concerned, and that in case of real hardship, the District and Sessions Judge may release the Petitioners on Personal Bond of Rs. 500/ (Five hundred) without sureties.

THIS COURT DOTH FURTHER ORDER that in case the concerned authorities reject the application of the petitioners for premature release it shall be open to the authorities to apply for the cancellation of Bail and it shall be open to the Petitioners to challenge the rejection for which proceedings be taken in the High Court by either party."

In pursuance of the above order the Sessions Judge released the accused on bail on 10285. Even after the above order by the apex Court the State did not take immediate steps and it was on 1881987 that FORM A prescribed under Rules 6(1) of the Rules framed under U.P. Prisoners Release on Probation Act of 1938 (Act No. Ill of 1973), was rejected on the ground that the offence committed by the accused was preplanned, that the accused is a hardened criminal and that the person who has offered himself as guardian is almost of the same age as the accused and is economically weak.

About six years after the rejection of FORM A the present application for cancellation of bail has been filed on 2221993. On this application being filed notices were issued to accused Badloo and a counter affidavit has been filed on his behalf.

4.1 have heard the learned A.G.A. for the State and the learned Counsel for the accused.

It is pointed out on behalf of the accused that he has actually spent 11 years 12 months and two days in prison and has earned remission of 5 years one month 90 days upto 131984. The total comes to 17 years one month and 21 days. It is argued that the accused was convicted in 1968 before Section 433A Cr. P.C. was enacted and therefore, the Section is not applicable to him as held in the case of Mam Ram v. State AIR 1980 SC, 2147.

The learned counsel for the accused has also rightly argued that simply saying that the accused is a hardened criminal is not sufficient and some, particulars should have been given if he had a criminal history. The learned counsel has also criticised the second ground given in Annexure3 order passed on FORM A The second reason given by the State Government is that he has no proper guardian. Some cases have been cited in support of the view that if there is not a proper guardian the State should appoint a gardian. It may be mentioned that in another case of similar nature 8257/93 State v. Jyoti Prakash which has also been heard today the apex Court has ordered on 2841983 as under:

"We also direct that where a guardian is required to be appointed to produce a guardian or the guardian proposed by them is rejected as unsuitable the State Government shall appoint a Government Officer as the guardian in view of Section2oftheActofl938............"

The learned AGA has argued that this Court is dealing with the bail cancellation application and it should not go into the question whether FORM A is rightly rejected or not. I find myself unable to agree with the contention because a perusal of Annexure3 shows that the recommendation of the Board was in favour of accused. At page 3 of Annexure 3, the Board has recommended the release of the applicant on licence provided suitable guardian is available. The Jail Superintendent has also recommended his case. Therefore there should have been some very strong ground for rejecting the application for release on licence basis. The learned counsel for the accused has cited 1989 Cr.LJ., 1938 Jai Prakash. v. State in support of the contention that the recommendation of the Jail Superintendent is paramount.

It appears that the State Government has dealt with the matter in a very casual manner. In spite of the orders of the apex Court in November, 1984 the State Govt. took more than two years to pass an order on FORM A The State Government kept quiet and did nothing for about six years and thereafter filed the present application for cancellation of bail. In this application for cancellation there is not even a whisper that after his release on bail in the year 1985 the accused has in any way misused the liberty granted to him. It has already been mentioned above that the accused has undergone sentence for about 12 years and has earned remission of 5 years. The remissions earned by those prisons who have good conduct in the jail. It appears from Annexure 3 that while in jail no punishment was awarded to him. Therefore it is not a fit case in which the bail granted about 10 years back should be cancelled, 25 years after the conviction of the accused.

The application filed by the Stale for cancellation of bail is hereby dismissed.