Dinesh Kumar Singh, J. - (1.) Heard Sri Santosh Tripathi,learned counsel for the petitioner, Sri Irshad Husain, learned Brief Holder and the perused the record.
(2.) This Criminal Misc. Writ Petition has been preferred seeking quashing of the order dated 12/05/2018 passed by respondent no.1 refusing to release the petitioner under provisions of U.P. Prisoners Release On Probation Act, 1938 (in short to be referred as 'Act') simultaneously also praying to issue the mandamus commanding respondent no. 1 to reconsider the case of petitioner for release by licence as per the provisions of the Act by taking into consideration all the recommendations and opinions made available to the Government by different authorities keeping in mind the intent of the Act as well as direction of this Court contained in judgment and order dated 27/03/2018. Further it is prayed that a direction be issued in the nature of mandamus to the respondents to release the petitioner provisionally from jail having regard to the facts that he had already served a sentence for a period of more than 20 years with remission and about 17 years without remission, in the light of order passed by Hon'ble Supreme Court in identical cases of Laxman Nascar & Zahid Hussein (Annexure-9) and Munna and Chheda Singh (Annexure-10).
(3.) The facts as narrated in the petition are that the petitioner was convicted under sections 302/34 IPC in ST No. 936 of 2000 from the Court of Additional Sessions Judge, Court No. 1, Allahabad with life imprisonment and fine of Rs. 1000/- with default stipulation. Out of the said sentence, he had already served sentence for a period of 20 years 8 months and 4 days with remission and 16 years 3 months and 9 days without remission as on 20/06/2017. He has attained the age of 43 years and has no male member and has only an old mother, wife and a minor daughter in his family. His family is surviving on agriculture as he has some land being cultivated by his family with the help of labourers. As per certificate issued by the Jail Superintendent, Naini Jail, Allahabad he has served out 21 years 7 months and 25 days up to 13/03/2018. The petitioner had submitted an application before the competent authority in the prescribed proforma, that is , Form A proforma for being released under the provisions of the Act, whereon Senior Superintendent, Central Jail, Fatehgarh furnished information on 15/09/2015 to the effect that his conduct was satisfactory and recommended his premature release, in the light of which the District Probation Officer, Kaushambi also submitted his report dated 28/01/2016 on prescribed format recommending his release. The District Magistrate, Shamli made an endorsement dated 09/02/2016 on the reverse side of the Form A recommending for premature release by agreeing with the above-mentioned reports as well as on the basis of his good conduct. It is pleaded that the Government by impugned order disallowed the premature release of the petitioners solely on the ground that he had committed a heinous offence and that his premature release would send out an adverse message to society as well as undermine the public faith in judicial system. It is further mentioned that earlier a Writ Petition No. 7422 of 2018 was preferred by the petitioner for his premature release before this Court, which was allowed and the order of the Joint Secretary to the Government of U.P. dated 20/11/2017 was quashed by order dated 27/03/2018 with the direction that the Government would consider the case of the petitioner for premature release by licence as per provisions of the Act by taking into consideration all recommendations and opinion made available to it by different authorities and also keeping in mind the intent of the Act. The petitioner had got a copy of the said order forwarded to the Principal Secretary, Home on 01/04/2018 for compliance with a copy of the same to the Inspector General, Jail Administration and Reforms Services, U.P., Lucknow, but no compliance was made till the expiry of the stipulated period which compelled the petitioner to prefer Contempt Application No. 2593 of 2018, on which notices were issued by the Court to said officers impleading as the opposite party No. 2 Shri Arvind Kumar and opposite party No. 4 Shri PK Mishra by order dated 15/05/2018. An affidavit of compliance, enclosing a copy of order dated 12/05/2018 was filed in Contempt Court on 03/07/2018 by the learned Additional Chief Standing Counsel appearing for the Principal Secretary, Home, Government of U.P. but it is evident that in the narrative dated 18/06/2018, the concerned respondent specifically declined to comply with the order of the Writ Court dated 27/03/2018, as such an objection dated 07/07/2018 to the affidavit of compliance was filed on 17/07/2018 in Registry. Further it is mentioned that from a perusal of the impugned order dated 12/05/2018 it was evident that the said order was almost similar to the order dated 20/11/2017, which was quashed by the Division Bench of this Court. Though in the impugned order, the operative portion of the order dated 27/03/2018 of this Court has been quoted, but it is manifest that while rejecting the claim of the petitioner for premature release the directions contained in the said order were not taken into account and the same was passed arbitrarily and whimsically because the sole content of that order is that the petitioner was not found eligible for release by licence under the provisions of Section 3 of the Act without giving any justification and without quoting any supporting reports/opinion or material by the competent authority. This Court in its previous order had clearly observed that the intent of the provisions of the Act was to implement reformatory theory of criminal jurisprudence, underlying principle being that it should be the crime which should be abhorred and not the criminal. The earlier order dated 27/03/2018 was passed by this Court in Criminal Misc. Writ Petition No. 7422 of 2018 only because the State Government had not examined the recommendations of the authorities before denying the release to the petitioner by licence which led the Court to quash the same as a bad, unjust, arbitrary and improper order not sustainable under law. Even the impugned order does not reflect that the respondent no. 1 made any consideration of the intent of the Act nor does it show that all the necessary factors were taken into consideration which primarily included detention of the petitioner for approximately more than 20 years with remission.;