MATA PRASAD versus THE STATE OF U.P. & ANR. on 31 January 2022

ORDER

1. Admit.

2. The petitioner has taken recourse to Article 32 of the Constitutionof India for a direction for consideration of his case for premature releasefrom prison as per the policy dated 01.8.2018 and consequently to releasethe petitioner forthwith.

3. The petitioner along with his younger brother and father weretried for offences under Section 302/307/323/34 of the IPC andpost-trial were convicted in sentence to maximum imprisonment for lifewith a judgment dated 30.9.2004 passed in Session Trial No.208 of 1999arising from FIR No.380/1999 at P.S. Gosaiganj, Sultanpur. The petitioneraggrieved by the said judgment filed the appeal before the High Court ofJudicature at Allahabad in Crl. Appeal No.2247/2004. 17 years hencethe appeal is still pending adjudication.

4. The appellant on completion of 14 years of imprisonment claimedeligibility for release under the provisions of the U.P. Prisoners’ Releaseon Probation Act, 1938 and submitted the duly filled Form-A but thesame was rejected on 28.4.2017.

5. It is the case of the petitioner that the Governor of Uttar Pradeshexercising powers under Article 161 of the Constitution of India issued aG.O dated 01.8.2018, a policy for prisoners in respect of pre-maturerelease on occasion of Republic Day every year. One of the categoriesof such prisoners is all male convicted prisoners sentenced to sufferlife-imprisonment whose crime is not covered by any sub-rule or restricted A

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Acategory pointed out at Section 3 and who have served 16 years ofactual imprisonment without remission and 20 years of imprisonmentinclusive of remission along with the pending period. However, this petitionof the petitioner was also rejected on 04.11.2019.

6. It is the case of the petitioner, that the Government in the yearsB2018-2021 released 1000 of prisoners from the various jails of U.P. underthe aforesaid policy and the petitioner despite having satisfied all termsand conditions for pre-mature release under the said policy, his proposalfor release was recommended on the occasion of 26.1.2020 i.e., twoyears back but he has still not been released. The fate of the petitioner isstated to have been same even on 26.1.2021 without assigning anyCreasons.7. In the conspectus of the aforesaid facts, we had issued noticeand counter affidavit has been filed by the State.

8. One of the aspects pointed out in the counter affidavit is byDannexing the Policy for pre-mature release by submitting that the samestands amended on 28.7.2021. The significant change as applicable inthe case of the petitioner is that all such convicts are required to beconsidered “who have completed age of 60 years” and have undergonecustody of 20 years without remission and 25 years with remission. Inthis behalf learned counsel for the respondent fairly states that as perEthe policy of the 2018 the case of the petitioner would be covered thoughas per the 2021 policy he is not of the requisite age of 60 years. However,he also accepts that in terms of a recent judgment of this Court in Stateof Haryana & Ors. V. Raj Kumar @ Bittu reported as 2021 (9) SCC292 it has been clearly opined taking note of the consistent view of thisFCourt that the policy prevalent at time of conviction shall be taken intoconsideration for considering the pre-mature release of a prisoner. He,thus, submits that 2021 policy prescribing the age of 60 years as theminimum age could not apply to the case of the petitioner.

9. We are really not required to go into this aspect in view of theGaforesaid but would like to express a great doubt on the validity of thisclause prescribing a minimum age of 60 years which would imply that ayoung offender of 20 years will have to serve 40 years before his casefor remission can be considered. Though we are not required to test thisaspect, we call upon the State Government to re-examine this part ofthe Policy which prima-facie does not seems to be sustainable more soHin view of the illustration we have just noted above and thus we call upon the State Government to take a fresh look at the insertion of thisclause. The needful be done within four months from today.

10. Now once again coming to the facts of the present case,learned counsel for the respondent submits that the appeal of the petitionerpending before the High Court, in view of the long incarceration, hecould have moved the High Court for suspension of sentence. We haveno doubt about this proposition but the remedy of seeking suspension ofsentence and that in view of long incarceration remission is provided,are different release.

11. It cannot be said that the State Government is precluded fromexamining the case of the petitioner for remission if an appeal is pendingbefore the High Court and from the submissions of the learned counselfor the petitioner it does appear that petitioner seems to have lost interesteven in possibly prosecuting the appeal.

12. We are, thus, of the view that it would be in fitness of thingsthat the case of the petitioner be considered for remission in view of ouraforesaid observations by the Competent Authority within a period ofthree months from today.

13. We, thus, issue a dual direction i.e. of consideration of thecase of the petitioner for remission within three months and forconsideration of the amendment to the Policy of 2021 within a period offour months from today. We may note that according to the learnedcounsel for the State the remission policy is also under challenge beforethis Court but then that cannot preclude the State itself from re-visitingthe issue.

14. In view of the fact that the petitioner as on date has alreadyserved about 22½ years without remission and almost 28 years withremission, we are inclined to grant bail to the petitioner in the meantimepending consideration in pursuance to our aforesaid directions.

15. Writ Petition accordingly stands allowed in the terms aforesaidleaving parties to bear their own costs.

Bibhuti Bhushan Bose

Writ Petition allowed.

(Assisted by : Neha Sharma, LCRA)

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