- (1.) Heard Sri Kamal Krishna, learned counsel for the petitioner, Sri Brijesh Sahai, learned counsel for the respondent No.5 and Sri Irshad Husain, learned brief holder for the State and perused the impugned order as well as material brought on record.
(2.) By means of the present Criminal Misc. Writ petition, the petitioner has prayed quashing of order dated 15.3.2017 passed by Joint Secretary, Karagar Prashasan Evam Sudhar Anubhag-2, Lucknow / respondent no.2 and order dated 30.3.2017 passed by District Magistrate, Kaushambi / respondent no.3. Vide order dated 15.3.2017, Joint Secretary Government of U.P. has passed order to the effect that the Hon'ble Governor of State of U.P. exercising powers under Article 161 of the Constitution of India, has directed to release prematurely the convicted prisoner / respondent no. 5, Irshad from jail who was convicted in Sessions Trial No. 190/2005 (State vs. Irshad and Another) under Sections 449, 450, 302, 307, 302/34 and 307/34 I.P.C. vide judgement and order dated 1.8.2009 passed by Sessions Judge, Kaushambi awarding him with life imprisonment subject to condition that the said convicted prisoner shall furnish two sureties and one personal bond of an amount to the satisfaction of the District Magistrate Kaushambi for maintaining peace during the period of remaining sentence. Vide the other impugned letter dated 30.03.2017, the District Magistrate, Kaushambi, in pursuance of the above order dated 15.3.2017 of the Joint Secretary, Government of U.P. passed an order directing the Senior Jail Superintendent, Central Jail, Naini, Allahabad to release the respondent no. 5 from jail as two sureties of an amount of Rs. five lacs each and a personal bond of a same amount had been furnished by the respondent no.5 before the District Magistrate concerned.
(3.) The averments made in the petition are that the petitioner is an injured/victim and wife of the deceased of the occurrence concerning which the Case Crime No.174 of 2005 was registered under Section 302, 452, 307, 504, 506 IPC at Police Station Kokhraj, District Kaushambi on 19.06.2005 and pursuant to the investigation in the said matter, charge-sheet was filed which was registered, an S.T. No. 190/2005 (State Vs. Irshad & Anr.) which was tried jointly with S.T. No.189/2005 (State Vs. Gulshad) and common judgement and order dated 01.08.2009 was passed. The learned Sessions Judge, Kaushambi had convicted and sentenced respondent No.5 with life imprisonment and fine of Rs. 7,000/- under Section 302/34 IPC; 10 years R.I. and fine of Rs. 2500/- under Section 449 IPC; 10 years R.I. with fine of Rs. 2500/- under Sections 307/34 IPC; 7 years R.I. and fine of Rs. 2,000/- under Section 450 I.P.C. Against the said judgement, an appeal was preferred by respondent no.5 being Criminal Appeal No.4977 of 2009 (Irshad and another Vs. State of U.P.), which was dismissed by High Court vide judgement and order dated 5.03.2013. Against the said judgement dated 5.03.2013, an S.L.P. No. 7595 of 2013 (Irshad and another Vs. State of U.P.) was preferred before the Hon'ble Apex Court which was also dismissed vide judgement and order dated 26.08.2014. It is further mentioned in this petition that both the impugned orders are absolutely illegal and against the provision of Section 433 A of Cr.P.C. which provides that where a sentence of imprisonment for life has been imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death is imposed on a person which has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. In the present case, respondent no.5 was convicted with life imprisonment on 1.08.2009. Order of premature release has been passed on 15.03.2017, therefore, period for which the respondent no. 5 has remained in detention pursuant to having been held guilty comes to 7 years 7 months and 29 days, however, during the arguments, learned counsel for the petitioner informed the Court that the respondent No.5 has been released from jail after having served out 10 years 7 months and 13 days period and stated that the same being less than 14 years should be treated to be in the teeth of the provision under Section 433 A of the Cr.P.C. It is further mentioned in the petition that in Maru Ram Vs. Union of India, 1981 1 SCC 107, the Hon'ble Supreme Court has upheld validity of section 433 A of the Cr.P.C. with a finding that the effect of the provision of Section 433 A of the Cr.P.C. shall be prospective meaning thereby the life convicts who have been convicted on or after 18.12.1978 are bound to serve 14 years sentence because the said provision (section 433 A Cr.P.C.) has been brought by amendment on 18.12.1978, therefore, both the impugned orders need to be quashed.;