- (1.) THERE is no dispute that after having been convicted and sentenced under Sections 302/307 of IPC by Ist Additional Sessions Judge, Rae Bareili on 31-5-1978, the petitioner is serving sentence of life imprisonment and by now he has, according to the response filed by the State, put in Jail more than 14 years without remission and 19 years, 6 months and 10 days with remission as in October, 2003. THERE is further no dispute that his case for release on licence, under the provision of Prisoners Release on Probation Act, 1938, was considered in the light of Jail reports, report of the District Probation Officer and report of District Magistrate and Superintendent of Police, but the Government rejected his Form-A, vide order dated 29-8-2001/2-8-2001, mainly on the ground that District Magistrate and Superintendent of Police opposed his release on licence. Now the petitioner has come to this Court with prayers for directing the opposite parties No. 1 to 3 to produce the petitioner before this Court and to direct his release from Jail, to quash the rejection of Form-A and to direct the opposite parties No. 1 to 3 to reconsider his release on licence under the said Act and the Rules framed thereunder.
(2.) IT has been averred in the writ petition that the petitioner has maintained a good conduct in Jail, that he was earlier released on 6 occasions, each for period of 15 days and there was no complaint that he misused that liberty, that the complainant's side has left the village after disposing of the property and there is no likelihood of happening of any occurrence, as sequel to the murder, for which he has been sentenced. In counter-affidavit filed by the State, it has not been disputed that the complainant's side has left the village in question, after disposing of the entire property. There is further no denial of the averments made in para 19 of the writ petition, to the effect that the petitioner was earlier released on six occasions for a period of 15 days each and there was no complaint that he every misused that liberty. We have heard Sri R. K. Dwivedi, the learned Counsel for the petitioner, Sri Janardan Singh, the learned Additional Government Advocate and have gone through the contents of the writ petition, papers annexed to it and the counter-affidavit. Sri Dwivedi has contended that the District Magistrate as well as the Superintendent of Police, who opposed the release of the petitioner on licence, have not disclosed the material for opposing the same, and therefore, their opposition to the petitioner's release, was without application of mind and was nothing but a customary ritual performance just to oppose. Sri Dwivedi has taken the Court through the reports of the Superintendent of Police, District Magistrate, who opposed and through the report of District Probation Officer and Jail authorities who recommended for release. Sri Dwivedi says that the Government ought to have been cogent reasons for not accepting the report of the District Probation Officer and the Jail authorities. It is submitted that when the petitioner maintained good conduct in Jail as reported by the Jail authorities and when he never misused the liberty granted to him on as many as six occasions as referred to in para 19 of the writ petition then there ought to have been very very strong reasons with Superintendent of Police and District Magistrate for opposing such release and also with the Government, for turning down the request of the petitioner for such release. Sri Dwivedi says that it is clearly provided in the Government order dated 18-5-1987 (Annexure-1) that in case there is no other suitable surety or guardian in the context of release of the petitioner on licence, the District Probation Officer could be a suitable surety or guardian for the purpose. Sri Dwivedi has drawn the attention of this Court towards the law laid down by this Court in Shyam Sunder Misra v. State of U. P. , 1996 LCR 37; Cheta v. State of U. P. , 1996 LCR 262; Ahibaram Singh v. State of U. P. , 1996 LCR 275; Kedar v. State of U. P. , 1997 LCR 131; Jagat Narain v. State of U. P. and others, 1998 (2) JIC 963 (All) ; 1997 LCR 452; Baratia v. State of U. P. , 1998 LCR 19; Bharat v. State of U. P. , 1998 LCR 61; Matar alias Mata Prasad v. State of U. P. and others, 1998 LCR 273, where this Court has repeatedly held that the Government and the authorities concerned, should consider such release on licence, by applying their mind, to the facts and circumstances, such as conduct of the prisoner in Jail, chances of his including in any criminal activity etc. and also in keeping with the spirit of the Act of 1938 and the rules framed thereunder and such matter should not be disposed of mechanically.
(3.) SRI Janardan Singh, the learned Counsel for the State has tried his best to support the decision of the Government by arguing that the Superintendent of Police and the District Magistrate were clearly opposed to the release of the petitioner on licence as they apprehended that his release might give rise to any other incident. It has also been argued by SRI Singh that view of Superintendent of Police was based on a report obtained by him from the local police and it cannot be said that the same was based on no material. We have considered the respective submissions in the light of the material on record. We find ourselves in agreement with the learned Counsel for the petitioner. The fact that the petitioner was earlier released on as many as six occasions each for a period of 15 days, during serving of the sentence and the fact that he did not misuse that liberty goes unrebutted. Secondly, the fact that his conduct in Jail remained wholly satisfactory and he never misconducted in Jail also goes unrebutted. The fact that kith and kin of the deceased, have left the village after disposing of their entire property as reported by District Probation Officer and as averred in para 28 of the writ petition also goes unrebutted. We fail to understand as to how in the face of all these facts the Superintendent of Police and District Magistrate were justified in opposing the prisoner's release on licence. Had they given any material good or bad or had the material been disclosed in the counter-affidavit filed in this writ petition, the matter would have been one for consideration, but no such attempt has been made to justify the opposition by them. So we have no manner of doubt that the Government did not properly consider the question, relating to the release of the petitioner on licence under the provision of the Act of 1938 and the Rules framed thereunder. It appears to us that it was swayed by unfounded or ill-founded opposition of Superintendent of Police and District Magistrate and it failed to consider the recommendation of the Jail authorities and other relevant facts, as mentioned above. So we find that it is a fit case to quash the decision dated 29-8-2001/2-8-2001 of the Government, by which it rejected Form-A of the petitioner, and to direct the Government, to reconsider the question again in the light of the various reports and the observations made by this Court in the body of this order.;