- (1.) Heard Sri Sanjay Shukla, learned counsel for the petitioner, Sri Rajiv Lochan Shukla, learned counsel for the respondent no. 4, Sri A.R. Chaurasia, learned A.G.A. and perused the record.
(2.) This writ petition has been filed by the son of the deceased Bhagwant Pandey seeking quashing of the impugned order dated 24/09/2017 passed by the State Government, whereby Hon'ble Governor, in exercise of powers under Article 161 of the Constitution of India has remitted remaining sentence of the respondent no. 4 arbitrarily, though he was awarded life imprisonment under sections 302/149, 147, 142, 148 and 379 IPC and further it is prayed that a direction be issued to the respondents 1, 2 and 3 to re-arrest respondent no. 4 so that he serves out the life sentence imposed upon him by the learned Additional Sessions Judge, Gorakhpur in ST No. 499 of 1987.
(3.) The petitioner states that on 15/06/1987 at about 2:45 PM in the day when the vicinity of village Bariyarpur, situated within the jurisdiction of police station, Kothibhar, District Gorakhpur, now District Maharajganj, the respondent no.4 along with his associates armed with various sharp edged weapons such as 'gandasa' committed murder of 4 persons in presence of police personnel at polling station Bariyarpur regarding which an F.I.R. was lodged by Virendra Pandey at the concerned police station which was registered as case crime no. 53 of 1987 under sections 147, 148, 149, 302, 379 and 427 IPC, in which respondent no.4 was the main assailant who had caused injuries by 'gandasa' to the deceased namely Bhagwant Pandey, Ram Ugrah Pandey, Sahadev Pandey and Subhash Pandey. After investigation charge sheet was submitted and the case was registered as Sessions Trial No. 499 of 1987, State vs Ghanshyam Pandey and others with connected Sessions Trial No. 639 of 1987, State vs Ram Bahadur and others, which culminated into conviction vide judgment and order dated 05/12/2009, in which the trial court awarded respondent no. 4 along with others, life imprisonment under sections 302/149 IPC and also imposed fine apart from other sentences in other sections. Respondent no. 4 has preferred a Criminal Appeal No. 8193 of 2009 before this court, in which record for consideration of bail prayer has been summoned and the bail prayer of respondent no. 4 has been refused due to gravity of the offence and severity of the punishment as four unarmed innocent persons were done to death. The respondent no. 4 and his associates have muscle power in the area and are men of the present ruling party due to which he has obtained premature release which has been communicated by the respondent nos. 1 to 3 vide order dated 24/09/2017 and in pursuance of that he has been released from prison. It is further mentioned that it is a moot point as to whether the respondent no. 4 could have been prematurely released who had not even completed 14 years actual imprisonment, in exercise of powers under Article 161 of the Constitution. Under sections 432 and 433A Cr. P.C. and section 195 U.P. Jail Manual and U.P. Prisoners Release on Probation Act, 1938, such premature release is contemplated only after 14 years actual imprisonment. The amendment by the Government on 18/12/1978 has added clause (A) in Section 433 Cr.P.C. which specifically mentions that no convict shall be released prior to completing 14 years imprisonment, which was challenged before the Hon'ble Apex Court by various convicts, one of the references may be found in Maru Ram vs Union of India, 1981 1 SCC 107, in which the Constitutional Bench of five Judges held that the amendment would be prospective and not retrospective and the same will not come in the way of cases of such convicts who had been convicted prior to the said amendment dated 18/12/1978. Consequently the State Government of U.P. in response to the said decision formulated a policy dated 30/06/1987 clearly amending U.P. Prisoners Release on Probation (4th Amendment) Rules, 1987 and under rule 4 of the said Rules laid down that only such convicts would be considered for premature release who had completed 14 years period in incarceration. In the instant case respondent no. 4 had not completed 14 years actual imprisonment and without assigning any special and adequate circumstances, the State Government has directed for premature release of the convict which is an abuse of power vested under Article 161 of the Constitution of India. It is further mentioned that the impugned order is a flagrant violation of Section 433A Cr.P.C. as well as of the provisions contained in U.P. Prisoners Release on Probation Act, 1938 and paragraph 195-198 of U.P. Jail Manual. Further, it is mentioned that the State Government had formulated a policy dated 11/01/2000 and 25/01/2000 issued by Hon'ble Governor under Article 161 of the Constitution of India, which inter alia directed release of all life imprisonment male prisoners, who had become over 60 years of age and female prisoners, who had become 50 years of age, if they had undergone 5 years and 3 years imprisonment on 25/01/2000. However this Notification was challenged in Mirza Mohmmad Hasan vs State of U.P.,2002 1 JIC 342 Allahabad, wherein a Division Bench of this court struck down the aforesaid Government policy holding that by a singular stroke a blanket order without examining individual cases of the convicts amounts to an arbitrary and unconstitutional exercise and further directed that the accused may be rearrested who had been prematurely released from prison in compliance with the policy dated 11/01/2000 and 25/01/2000, consequently respondent no. 1 had directed the District Administration of each District to re-arrest such convicts and lodge them in jail. Further it is mentioned that in the case at hand respondent no. 4 appears to have served out only about 7 years actual imprisonment but the State Government with tacit approval of high-level persons of the ruling Government, overlooking nature of accusations, severity of punishment and gravity of offence, prepared a false report recommending remittance of sentence for premature release and on the basis of the said report Hon'ble Governor has allowed the application for premature release which is apparently an arbitrary exercise of such power. Further it is mentioned that during pendency of the trial, the bail prayer of the respondent no. 4 was granted by this court and after his release, he again started indulging in criminal activities against the petitioners family, consequently the informant approached the Hon'ble Apex Court for cancellation of bail of respondent no. 4 and others during pendency of trial. The Hon'ble Apex Court though did not cancel the bail however imposed certain conditions vis-a-vis respondent no. 4 that he would not live in District Gorakhpur rather would live in a neighbouring District, Deoria, but that condition was blatantly violated and he continued to indulge in criminal activities against the family members of the petitioner so-much-so that he made an attempt to kill informant Virendra Pandey on 27/04/1988 regarding which an F.I.R. was registered on 27/04/1988 being case crime no. 39/1988 under sections 147, 148, 149, 307 and 307 IPC, PS Kothibhar, District Maharajganj, in which after investigation police submitted charge-sheet against respondent no. 4. The respondent no. 4 is a hard-core criminal which is evident from the case registered by Commissioner, Gorakhpur Division, Gorakhpur as case crime no. 324 of 1997 at PS Kothibhar, District Maharajganj under sections 463, 465, 471 and 474 IPC. It is further submitted that against the judgment rendered by the Division Bench of this court in Mirza Mohmmad vs State of U.P., several convicts, who were prematurely released by Hon'ble Governor by exercising powers vested in him under Article 161 of the Constitution of India, approached Hon'ble Supreme Court, leading case being Special Leave (Criminal) No. 5002 of 2002 connected with various other appeals, which were heard by the Apex Court and order was passed requiring rearrest of those convicts, who had not been in custody for more than 14 years. It is further mentioned that respondent no. 4 and his associates, who were released on bail by High Court during pendency of appeal, had continuously tried to get respondent no. 4 released, however they could not succeed and the first attempt for securing his premature release had failed in the month of May, 2017. But concealing the said fact, the premature release order has been obtained now on the basis of some false reports prepared by local authorities at the behest of political person without calling for any report from the District Gorakhpur, which is original place of conviction rather a false report has been obtained from District Maharajganj. Therefore the impugned order smacks of arbitrary approach which appears to have been passed on concocted reports. It is further submitted that respondent no. 4, during trial, stated in his statement under section 313 Cr.P.C. that his age was 36 years, which was recorded on 19/08/1993, hence he could not be 66 years of age, rather must be below that. It is further mentioned that during trial and after conviction, respondent no. 4 got himself transferred from the prison of Gorakhpur to medical college Gorakhpur on the ground of forged ailment and by intervention of the High Court, he was remitted back to District jail, Gorakhpur.;