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IN THE HIGH COURT OF ALLAHABAD
PANKAJ NAQVI, VIVEK AGARWAL, JJ.
Satyavrat Rai - Appellant
Versus
State of U.P. and others - Respondent
Crl. M.W.P. No.8418 of 2020
Decided on : 19-04-2021
Constitution of India,1950 – Article 72 and 161 – Indian Penal Code,1860 -Sections 302/34/504/506/433 and 432 – Criminal Procedure Code, 1973 – Section 432 – Seeking release - Admittedly petitioner is in custody in connection with Case Crime under Sections 302/34/504/506 IPC, P.S. - He in above case was put on trial in S.T - During trial, he was bailed out by this Court and released - Further, he was convicted and sentenced to life imprisonment - He preferred an appeal before this Court and was released on bail - He surrendered before the court and since then he is in jail and as on date has undergone incarceration of more than 17 years - Upon completing 16 years of custody, mother of petitioner staked a claim for release of her son under Section 433 of the Code before the State Government - But as the claim was not decided, petitioner preferred Criminal Misc. Writ Petition which came to be disposed with a direction to decide the claim within 3 months - Pursuant thereto, claim came to be rejected impugned in the present petition - Whether remissions be granted or not is entirely left to discretion of e concerned authorities, which discretion ought to be exercised in a manner known to law.
Finding of the Court:
court do not dispute above contention but with a firm caveat that such discretion must be exercised in a fair and reasonable manner - Once the State in its wisdom has framed a policy to confer benefit of premature release to either a class of convicts or an individual convict, provided their cases do not fall within the prescribed prohibited category as laid in the policy, then it is expected of State to consider such cases in a manner known to law within prescribed parameters - Consideration of premature release of a convict must be in a reasonable and fair manner - Such consideration is not beyond pale of judicial challenge and it is open to judicial review within permissible limits - Court further wish to add that what has been said judgment, would not and cannot mean that premature release of a convict be considered on wholly irrelevant consideration rather it must always be considered in a reasonable and fair manner known to law - Court in the light of above discussion, are of the considered view that the impugned order has been passed mechanically, without any application of mind on irrelevant considerations, which is liable to be set aside.
Result: Writ petition is allowed
JUDGMENT :
(Delivered by Pankaj Naqvi, J)
Heard Sri Rajeev Chaddha, learned counsel for the petitioner, Sri Manish Goyal, learned Addl. A.G. assisted by Sri A.K. Sand for the State and Sri Sudhir Mehrotra for the subordinate court.
1. The petitioner originally sought for quashing of an order dated 2.3.2020 (Annexure-4) passed by respondent no. 1/State refusing to release the petitioner under Section 433 of the Code and also sought for quashing of order dated 29.1.2021 by way of an amendment application dated 01.02.2021 whereby request for release was again declined.
FACTUAL MATRIX
2. Admittedly the petitioner is in custody since 18.3.1998 in connection with Case Crime No. 1311/1997 under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur. He in above case was put on trial in S.T. No. 142/1988. During trial, he was bailed out by this Court on 9.7.2003 and released on 26.7.2003.
Further, he was convicted and sentenced to life imprisonment on 16.6.2007. He preferred an appeal before this Court and was released on bail on 1.10.2012. His appeal finally came to be dismissed on 23.5.2014. He surrendered before the court below on 23.8.2014 and since then he is in jail and as on date has undergone incarceration of more than 17 years.
3. Upon completing 16 years of custody, the mother of the petitioner staked a claim for release of her son under Section 433 of the Code on 27.7.2019 before the State Government. But as the claim was not decided, petitioner preferred Criminal Misc. Writ Petition No. 22178/2019 which came to be disposed on 30.9.2019 with a direction to decide the claim within 3 months. Pursuant thereto, the claim came to be rejected on 2.3.2020, impugned in the present petition.
4. The claim was rejected on the sole ground that the total detention period of the petitioner was only 12 years 10 months 29 days as against the requisite period of 16 years (without remission) under the G.O. dated 1.8.2018. It appears that the State Government while passing the order dated 2.3.2020 was misled as it did not have before it, the custody warrant of the petitioner taking him into the custody by the C.J.M., Gorakhpur on 18.3.1998 in Case Crime No. 1311/1997, under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur.
5. With a view to resolve the above discrepancy i.e. as to on what date the petitioner was actually taken into custody in Case Crime No.1311/1997 under Sections 302/34/504/506 IPC, P.S. Cantt., Gorakhpur, we called upon the C.J.M., Gorakhpur to submit a report in the light of our order dated 14.10.2020. Pursuant thereto, a report dated 12.11.2020 was submitted through Sri Sudhir Mehrotra, Advocate opining that the CJM, Gorakhpur had taken the petitioner into custody in Case Crime No. 1311/1997 on 18.3.1998 then the period of custody is to be computed from the said date. Sri A.K. Sand, the learned AGA rightly submitted on 15.12.2020 that if a mistake has been committed by the CJM by not enclosing the custody warrant of the petitioner dated 18.3.1998 in his records, rights of the petitioner under Section 433 of the Code cannot be jeopardized. He also undertook on 15.12.2020 to place the matter before the competent authority to review its earlier decision dated 2.3.2020 in the light of above backdrop within 3 weeks. Matter was taken up on 13.1.2021 which records the following order:-
“Sri A.K. Sand, learned AGA states that he personally spoke to the Additional Chief Secretary, who has assured that orders for releasing petitioner shall be positively passed within 10 days.
We have no reason to disbelieve his statement.
List again in the additional cause list on 25.1.2021.”
6. The matter was again taken up on 25.1.2021 wherein following order was passed:-
“Heard Sri Rajeev Chaddha, learned counsel for the petitioner and Sri A.K. Sand, learned counsel for the respondents.
Sri A.K. Sand prays for and is granted last opportunity to ensure that order passed by the Additional Chief Secretary on the intervention of this Court on 16.01.2021 is execut
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