Lakshmi Prasad, J. - (1.) THIS is a petition Under Article 226 of the Constitution by one Bishambhar Dayal who is in jail undergoing his sentence having been convicted under various sections of the IPC and sentenced to a total period of five years rigorous imprisonment.
(2.) THE allegation in the petition is that even though he applied as far back as May, 1965 for the release on licence in accordance with the provisions of the UP Prisoners' Release on Probation Act, 1938 and his case, as envisaged by the rules framed thereunder, was recommended by the Board, the State Government communicated its order of rejection in August, 1967. The Petitioner maintains that in passing that order he has been discriminated and as such the order is liable to be quashed. Accordingly, the prayer in the petition is that it be declared that any further detention of the Petitioner in the prison is unlawful and the Petitioner be directed to be released on probation. The petition is opposed by the State Government. A counter affidavit has been filed on behalf of the opposite party but the allegations made in paras 10 and 15 of the petition are not controverted.
(3.) THE fact that the Board recommended the case of the Petitioner for release and that the State Government did not accept that recommendation with the result that the Petitioner's prayer for release on probation has been rejected is not in controversy. On this date of hearing learned Chief Standing Counsel has produced before us the relevant noting which has led to the passing of the order of rejection. The order of rejection so far as the Petitioner is concerned proceeds thus: His case had been examined at 'O' on page 2. The prisoner, aged 51 years, had been sentenced Under Sections 148/307/302 IPC to a total sentence of life imprisonment by the Sessions Court. The High Court, however, had set aside his conviction Under Section 302 and the sentence of life imprisonment and instead the total sentence awarded was 5 years R.I. The dispute had arisen over irrigation of fields but there was previous enmity between the prisoner and the deceased. The actual period served by the prisoner, upto date, is about 3 years and 3 months. Including remissions the probable date of prisoner's release would be sometimes by the end of this year. The District Magistrate had recommended release of the prisoner but in view of the seriousness of the crime and the sentence being not excessive, his case for release on licence may be rejected. Obviously it is on account of what is stated in the last sentence of the passage reproduced above that the order of rejection came to be passed finally on 23 -7 -1967. From the papers produced at the time of hearing I find that the recommendation of the Board was made in February, 1966.;