IMPORTANT POINT
The court established that general directions for the premature release of convicts based on pending remission applications are not legally permissible and exceed the jurisdiction of the Chief Judicial Magistrates.

JUDGMENT :

1. Short counter affidavit filed today is taken on record.

2. Heard learned counsel for the petitioner, learned A.G.A. for the State, Sri Ravi Kant Pandey, learned counsel for opposite party no.3, Sri Arvind Kumar Tiwari, learned counsel for respondent no.4 and perused the record.

3. Present writ petition is filed by the petitioner challenging the order of premature release of opposite party no.3-Shyampal Verma dated 2.3.2024 in Sessions Trial no.90 of 2007 in Case Crime No.52 of 2006, under Sections 147, 148, 307, 302, 427 & 504 of I.P.C., Police Station Motiganj, District Gonda.

4. Facts of the case are that a Division Bench of this Court passed detailed directions in Criminal Appeal No.165 of 2016 (Ganesh vs. State of U.P.) in its judgment and order dated 10.1.2024 providing that where the remission application is pending for more than six months after recommendation by the Superintendent of Jail, the Chief Judicial Magistrate concerned shall forthwith release the convict as per the the directions contained in the said judgment. Opposite party no.3 had filed an application for his release, which was allowed by the Chief Judicial Magistrate concerned by the impugned order dated 2.3.2024 while similar application of opposite party no.4 was pending before the Chief Judicial Magistrate concerned.

5. A Reference was made in the present writ petition by a Division Bench of this Court by order dated 21.3.2024 with regard to correctness of the view taken in the case of Ganesh (supra). The following questions were referred to the Larger Bench.

"(1) Whether the directions issued by the Division Bench in Ganesh (supra) that too general directions, commanding the Chief Judicial Magistrates to release convicts whose applications for remission/premature release have remained pending beyond a particular period, as interim measure, till disposal of the said applications, is in accordance with law especially in view of the Constitution Bench decision in V. Sriharan @ Murugan and others (supra) and H. Nilofer Nisha (supra)?

(2) Whether the High Court in exercise of its criminal appellate jurisdiction under the Code of Criminal Procedure read with Section 482 Cr.P.C. can confer jurisdiction upon the Chief Judicial Magistrates/Magistrates in the District Courts which the law otherwise does not confer upon them?"

6. The aforesaid questions were replied by the Larger Bench by order dated 25.5.2024, which reads as follows:

"(1) The Division Bench in Ganesh (Supra) could not have issued any direction for granting the general directions of bail commanding the Chief Judicial Magistrates to release convicts whose applications for remission/premature release have remained pending beyond a particular period, as interim measure, till disposal of the said applications.

(2) Learned AGA submits that there is no power vested by the High Court in the Chief Judicial Magistrates for grant of bail. The said power is already exercised by granting bail to all such persons and the Chief Judicial Magistrate is directed only to release such person(s) whose applications are pending beyond a particular time by accepting their bail/surety bonds. However, we leave the said question unanswered as in Question-A, we have already held that the directions of the Division in Ganesh (Supra) are not as per law."

7. In view thereof, since the Larger Bench has already held that the Division Bench in Ganesh (supra) could not have issued any direction for issuing general directions of bail commanding the Chief Judicial Magistrate to release the convicts, the impugned order passed by the Chief Judicial Magistrate, Gonda based upon the said directions in the case of Ganesh (supra) cannot stand.

8. Therefore, the impugned order dated 2.3.2024 cannot stand and is set aside.

9. The Registrar General is directed to forthwith communicate a copy of this order along with the order passed by the Large Bench dated 25.5.2024 to all the Judicial Officers.

10. With the aforesaid, present