Point of Law : Court has the power to review the decision of the government regarding the acceptance or rejection of an application for remission under Section 432 of the Cr.P.C. to determine whether the decision is arbitrary in nature.

JUDGMENT :

RAMESH SINHA, J.

1. The petition under Article 226 of the Constitution has been instituted by Umesh Dixit, whose brother Gyanendra Kumar alias Tinku was said to be murdered by the convict/respondent no. 6-Hari Shankar, with the following reliefs:

(i) Issue a writ, order or direction in the nature of Certiorari thereby quashing the impugned order dated 29.11.2019 passed by the opposite party no. 1 contained in Annexure No. 1 to this writ petition.

(ii) Issue a writ, order or direction in the nature of Mandamus thereby commanding and directing the opposite parties no. 1, 2 and 3 to re-arrest the opposite party no. 6 so that he serves out the life imprisonment imposed upon him by the Learned Additional Sessions Judge/F.T.C. Court No. 3, Sitapur in Sessions Trial No. 78 of 2003, in the interest of justice.

(iii) Issue any other writ, order or direction in the nature which this Hon’ble Court may deem fit and proper under the circumstances of the case and in the interest of justice.

(iv) Allow the writ petition with costs in favour of the petitioner.

(A) Factual Background

2. The respondent no. 6-Hari Shankar and co-accused were tried by V Additional Sessions Judge, Sitapur in Sessions Trial No. 187 of 1991 arising out of Case Crime No. 171 of 1990, under Sections 147, 148, 452, 149, 302 I.P.C. Police Station Machhrehta, District Sitapur, wherein vide judgment and order dated 19.03.1996 (Annexure No. 3), the learned V Additional Sessions Judge, Sitapur, convicted and sentenced the respondent no. 6-Hari Shanker and co-accused under Section 302 read with Section 149 I.P.C. to undergo life imprisonment; under Section 452 read with Section 149 I.P.C. to undergo three years R.I.; and under Section 148 I.P.C. to undergo two years R.I.

3. According to the petitioner, aggrieved by their conviction and sentence vide judgment and order dated 19.03.1996, respondent no. 6-Hari Shanker preferred Criminal Appeal No. 117 of 1996, Hari Shanker vs. State of U.P. wherein respondent no. 6-Hari Shanker was granted bail by a Co-ordinate Bench of this Court and the same is still pending final adjudication.

4. During pendency of the aforesaid criminal appeal and after release on bail in the aforesaid criminal appeal, convict/respondent no. 6-Hari Shanker and co-accused Sanju, Nanhu (real nephew of the respondent no. 6), Chailu, Shatrughan and Pramanand, murdered the brother of the petitioner, namely, Gyanedra Kumar alias Tinku. In this regard, the petitioner’s father Ram Naresh Dixit had lodged an F.I.R. against the aforesaid accused persons including respondent no. 6-Hari Shanker, which was registered as Case Crime No. 267 of 2002 under Sections 147, 148, 302/149 I.P.C. at Police Station Machhrehta, District Sitapur. This case was committed to the Additional Sessions Judge/Fast Track Court No. 3, Sitapur, wherein respondent no. 6-Hari Shanker and co-accused were tried in Sessions Trial No. 78 of 2003, State vs. Sanju and Others, for committing the offence of murder of the petitioner’s brother. Co-accused Sanju was also tried in Sessions Trial No. 222 of 2003, State vs. Sanju, arising out of Case Crime No. 277 of 2002, under Section 25 (1-B) of the Arms Act, Police Station Machhrehta, District Sitapur.

5. The learned Additional Sessions Judge/Fast Track Court No. 3, Sitapur, heard both the aforesaid appeals i.e. Sessions Trial Nos. 78 of 2003 and 222 of 2003 together and vide judgment and order dated 09.07.2004 (Annexure No. 5), convicted and sentenced Hari Shanker (respondent no. 6) and co-accused persons under section 302 read with section 149 I.P.C. to undergo life imprisonment and fine of Rs. 5000/- in default, to undergo additional one year imprisonment; under Section 147 I.P.C. to undergo six month R.I. and under Section 148 I.P.C. to undergo one year R.I. whereas co-convict Sanju was convicted and sentenced under Section 25 (1-B) of the Arms Ac