- (1.) The petitioner was convicted under sections 307/34 and 302/34, IPC and was sentenced to three years R.I. and imprisonment for life respectively by the judgment and order dated 23-12-74 of Sessions Judge Mainpuri in S.T. No. 67 of 1972. The appeal preferred by the petitioner was dismissed by the High Court in 1979 and thereafter by the Supreme Court. The petitioner claims that he moved an application on 31-8-84 before the State Government for pre-mature release under U.P. Prisoners Release on Probation Act, 1938 (hereinafter referred to as the Act) and by that time he had undergone a sentence of five years three months and 19 days inclusive of remission. As the State Government did not pass any order on the application, the petitioner filed writ petition No. 1207/84 before the Supreme Court which was disposed of on 23-5-85 with a direction to the State Government to consider and dispose of the petitioner's application within five months from the date of receipt of copy of the order. It was also directed that in case the application is not disposed of within the aforesaid period, the petitioner shall be released on bail on furnishing bail bonds to the satisfaction of the concerned District Judge. The order further provided that in the event of the application being ultimately rejected by the State Government, it will be open to the State Government to move the District and Sessions Judge for cancellation of bail granted to the petitioner. The petitioner then applied for bail before the District and Sessions Judge, Mainpuri on the ground that his application for pre-mature release had not been disposed of by the State Government. It appears that learned Sessions Judge, Mainpuri accepted the petitioner's contention and granted bail to him on 13-2-1987. After almost seven years the state counsel moved an application on 20-1-94 before the Sessions Judge, Mainpuri for cancellation of bail granted to the petitioner on the ground that his application for premature release had been considered and rejected by the State Government on 24-10-85. This application has been registered as Bail Cancellation Application No. 63/94. The principal prayer made in this petition is that a writ of mandamus be issued directing the learned Sessions Judge, Mainpuri not to cancel the petitioner's bail on the basis of the application moved by the State counsel on 20-1-94.
(2.) Sri Amar Saran, learned counsel for the petitioner, has submitted that the order passed by State Government on 24-10-85 shows that his application for premature release has not been finally disposed of and therefore the bail granted to the petitioner cannot be cancelled. It is submitted that the State Government has only passed an order postponing consideration of the application for premature release for a period of four years and has further directed that in case the petitioner's conduct was satisfactory, the matter shall be considered again.
(3.) An identical question has been decided by a Division Bench of this Court in Writ Petition No. 17887/86 (Naim Uddin v. State of U.P.) on 28-10-96 and after relying upon the decision of Supreme Court in Crl. Misc. Petition No. 303/93 in Writ Petition (Criminal) No. 1334 of 1991 Luxmi Prasad v. State of U. P. decided on 26-4-94, it was held that the order passed by the State Government does not amount to mere postponment of the consideration of the application but is a final consideration of the application for pre-mature release and therefore the State counsel was fully entitled to move an application for cancellation of bail. In this view of the matter, there is no ground for issuing any mandamus to the learned Sessions Judge not to cancell the petitioner's bail or not to hear the bail cancellation application.;