ORDER :

1. Heard Shri I. K. Chaturvedi, assisted by Shri V. K. Baranwal, for the petitioner, Shri Akhilesh Chandra Shukla, learned counsel for the respondent No. 8 and Mr. Pankaj Saxena, learned A.G.A. for the State.

2. The instant writ petition seeks a writ of certiorari for quashing of the order dated 28.05.2022 passed by respondent no.2, which has granted remission to respondent no.8 and has ordered for his release.

3. The 8th respondent, a life convict, was convicted in Sessions Trial No. 807 of 2000 under Section 304/34 and 307/34 IPC arising out of Case Crime No. 158 of 2000, Police Station-Sarai Inayat, District-Allahabad and was sentenced to life imprisonment for the offence under Section 302/34 IPC and for three years rigorous imprisonment for the offence under Section 307/34 IPC.

4. The remission granted to the 8th respondent has been challenged by the petitioner on the ground that the respondent is a hardened criminal and that a history-sheet was opened in his name being No. 7A at Police Station-Sarai Inayat, District-Allahabad.

5. It is also contended that the 8th respondent was brought from Fatehgarh Central Jail, District-Farrukhabad on 26.07.2010 for being produced in Court. He, however, fled from custody and a First Information Report was lodged on the same day at Police Station-Colonelganj, District-Allahabad, giving rise to Case Crime No. 319 of 2010 under Sections 223/224 of IPC. He was, arrested on the same day from Prayag Railway Station. After investigation, a charge-sheet was filed by the Police.

6. It is next contended that apart from the fact that the 8th respondent is a hardened criminal, he has been repeatedly transferred from one jail to another on account of his bad behaviour. It is averred in the writ petition that initially he was lodged in Central Jail Naini, from where he was transferred to Central Jail Fatehgarh, District Farrukhabad and from there to District Jail Bareilly and finally he was transferred to District Jail, Rampur.

7. The next contention is that remission/premature release has been obtained by the 8th respondent by concealing material facts in connivance with his brothers. One brother, namely Pawan Mishra is Head Jail Warden, in District-Bagpat while another brother, Vimal Mishra, is a Jail Warden in District Agra.

8. It is lastly submitted by learned counsel for the petitioner that remission has been granted to the 8th respondent placing reliance upon a Government Order 564/218/1106/22.02.2018-07G/2018 dated 01.08.2018. In view of Clauses 2(b) and 3(ix) of the GO, the 8th respondent could not have been granted remission. Clause 3(ix) provides that a convict who has absconded from custody is not entitled to remission. The order dated 28.05.2022, whereby the Governor is stated to have granted remission/commutation in exercise of power under Section 160 of Constitution of India is, therefore, clearly vitiated and is liable to be set aside.

9. The contention of Shri Akhilesh Chandra Shukla, learned counsel appearing for the 8th respondent is that the writ petition itself is not maintainable and that the petitioner has no locus to challenge the order impugned. He is not the first informant and is only the nephew of the first informant and a practising lawyer. The immediate relatives of first informant and the deceased in the crime for which the 8th respondent has been convicted have not come forward. The writ petition is based on mala fides. After the 8th respondent was released, illegal gratification to the tune of Rs. 5,00,000/-was demanded by the petitioner and on non-payment of the same, the instant writ petition has been filed.

10. On the merits of the writ petition, it has been stated that the remission granted to the 8th respondent is not hit by Clause 3(ix) of the policy framed by the Government for granting premature release/remission as he did not abscond from jail. He has at best absconded from judicial custody, even if the case of the petitioner is to be accepted in toto.