IMPORTANT POINT
The court established that the authority to grant remission rests with the government, and courts can only compel timely decisions on remission applications without granting bail en masse.

JUDGMENT :

1. Heard Shri Yogeshwar Sharan Srivastava, learned counsel for the petitioner, Dr V. K. Singh, learned Government Advocate, Shri S.N. Tilhari, learned A.G.A.-I, Shri Bipul Kumar Singh and Shri Shivendra Shivam Singh Rathore, learned counsels for the State-respondents, Shri Ravi Kant Pandey, learned counsel for the respondent No. 3, Ms Abhilasha Singh, Advocate, holding brief of Shri Arvind Kumar Tiwari, learned counsel for the respondent No. 4, Shri Pranjal Krishna, learned Amicus Curiae and Shri Prashant Kumar Singh, learned Advocate appearing from the Bar.

2. A Division Bench of this Court vide order dated 21.3.2024 passed in this petition has referred the following questions for consideration by 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?”

3. The reason of referral order dated 21.3.2024 passed in this petition is difference of opinion between the judgment and order dated 10.1.2024 passed by this Court at Allahabad in Criminal Appeal No. 165 of 2016 (Ganesh v. State of U.P.) and the referral order dated 21.3.2024 passed in the present writ petition.

4. In the case of Ganesh (supra), the appellant/convict, who was convicted for the charge of murder of three minor children, preferred second application under Section 389 Cr.P.C. for suspending the sentence and enlarging him on bail on the ground that the appellant has undergone 18 years, 9 months total custody and approximately 24 years of custody while his application for remission is pending consideration. Taking note of the same, the Division Bench directed the State counsel to verify as to whether the remission application of the appellant was recommended by the Superintendent, Central Jail, Fategarh or not. In response thereof, learned AGA on the date fixed, i.e. 10.1.2024, informed the Court that the case of the appellant has been recommended and is under consideration and it would be decided by the competent authority expeditiously. The Division Bench issued certain directions in order dated 10.1.2024. Relevant paragraphs 13 and 14 of the said order read as under:

“13. The primary concern of this Court is with regard to the delay on the part of State Government at various levels as the case is processed through different departments before the sanction for premature release is either finally granting or declining.

14. Considering the delay in disposing of the premature release cases in the light of the judgement of the Hon'ble Supreme Court in Rashidul Jafar @ Chota (supra), in exercise of power under Article 226 of the Constitution of India read with Section 482 Cr.P.C., it is directed that the Chief Judicial Magistrate as well as Secretary, Legal Services Authority in each sessions division concerned will submit a periodical report to the Registrar General of this Court which will be tagged with this file, after every three months after seeking information from their concerned Jail Superintendents to this effect:

(a) The number of cases recommended by the Superintendent of jail(s), which are pending approval by the competent authority.

(b) In case, where a case is recommended six months prior to the date when such a person becomes eligible for consideration to premature release, as per the recommendation made by the Superintendent Jail