- (1.) D. K. Trivedi, J. This writ petition under Article 226 of the Constitution of India was filed for a writ of certiorari to quash the impugned order dated 6-8-1996 whereby Form-A of the petitioner was rejected by the State of U. P and further a writ of mandamus commanding the op posite parties to release the petitioner forthwith.
(2.) THE petitioner was convicted on 21-7-1977 by the II Additional Sessions Judge, Lakhimpur Kheri under Sections 302,323,148,149, I. P. C. and was sentenced to undergo Imprisonment for Life in Ses sions Trial No. 357-A of 1976. His appeal was also dismissed by this Court. It is fur ther alleged that on 20-9-1996 the petitioner had completed 14 years, 6 months, 2 days of his imprisonment without remission and 18 years, 8 months 2 days with remission and, therefore, be came eligible for consideration for prema ture release on licence, under the provisions of U. P Prisoners Release on Probation Act. THE petitioner applied for premature release but his Form-A for premature release was rejected by the Government and, therefore, the petitioner aggrieved by the said order filed a writ petition before this Court (W. R No. 522 (HC) of 1994 ). THE District Magistrate, Superintendent of Police, Probation Officer, as well as the Probation Board recommended to the State Govern ment that the petitioner be released prematurely but the State Government rejected the recommendation of the aforesaid authorities on the ground that the petitioner in the year 1985, when he was released on Parole, over-stayed the period of Parole from 5-12-1985 to 1-1-1986. This Court while deciding the writ petition directed the State Government to reconsider the matter taking in view the fact that the period of parole and over-stay had taken place more than 10 years back and since then the conduct of the petitioner in Jail has been quite satisfactory and further in view of the contention of the District Authorities that the petitioner is likely to lead a peaceful life if, he is granted premature release. This Court while directing the State Govern ment to reconsider the case held that in rejection Form-A on the ground that he over-stayed the period of parole in 1985 is not proper ground specially when 10 years have already passed and the petitioner was also punished for his over-stay. In these circumstances, this Court directed the State Government to reconsider the pre mature release of the petitioner again on merit. Here, it may be pointed out that all the reports submitted by the authorities under the Act are in favour of the petitioner but even then this Court directed the State to reconsider the matter in the light of the observations made by the Court because it is within the domain of the State to direct release of any convict on licence under the Act. In compliance of the order passed by this Court, the State Government again reconsidered Form-A of the petitioner and again rejected the same by the impugned order. THE petitioner aggrieved by the said order filed the present writ petition before this Court. THE present writ petition came up for hearing before the Bench of this Court on 14-3-1997. THE Bench after hearing the parties counsel came to the conclusion that there was conflict of opinion between the two Division Benches of this Court regarding directing the release of convict whose Form-A has been rejected by the Government. THE Bench pointed out that in the case of Radha Raman v. State of U. P (WP. No. 143 (H/c)of 1996) relying on the judgment of the Hon'ble Supreme Court, took the view that this Court has no juris diction under Article 226 of the Constitu tion of India or under Section 482, Cr. P. C. to commute the sentence and release the prisoner. This Court can only direct the State Government to consider the release of a particular convict in accordance with law. In another case Cheta v. State of U. P. , 1996 Lucknow Criminal Reports 262, this Court allowed the writ petition and directed the release of the convict on licence in accordance with law. The Bench while referring this matter to the Full Court overlooked the fact that if a point has already been decided by the Hon'ble Supreme Court or the Bench of this Court has decided the point relying on the judg ment of the Hon'ble Supreme Court then the same would prevail and the other cases decided by this Court against the principle laid down by the Hon'ble Supreme Court will have no relevance and cannot be said to be a good law. The Bench while refer ring the matter has also not considered the question on merit and straightaway referred this dispute to Full Bench. During the pendency of the writ petition, the petitioner also died, therefore, the petition also abates. However, as the mat ter has been referred and, therefore, in order to resolves the controversy keeping in view the Hon'ble Supreme Court's decision in the case of Union Teiritory of Chandigarh v. Charan feet Kaur, (1996) 7 SCC 492:1996 JIC 535 (SC) and the State of Punjab v. Kesar Singh, 1996 SCC (Crl.) 1034, we thought it proper to give reply. In the case of Union Territory of Chandigarh v. Charan feet Kaur (supra), the point before the Hon'ble Supreme Court was as to whether the High Court has jurisdiction under Article 226 of the Constitution of India or under Section 482 of Code of Criminal Procedure, 1973 to release the prisoner. While giving reply to the above mentioned question, the Hon'ble Supreme Court held that the High Court committed an error in direct ing the release of the convict and, at best, in the appropriate cases the High Court can direct the Government to consider the commutation of sentence and premature release of a particular convict if, he has served out the mandatory minimum sen tence. It is not disputed that the State Government is the competent authority to release a debenture maturely on licence. In these circumstances, the Hon'ble Apex Court took the view that the High Court committed an error and has no jurisdiction to direct the release of the detenu under Section 482, Cr. P. C. or under Article 226 of Constitution of India. There is no doubt that the question of application of Section 482 of Code of Criminal Procedure in these proceedings does not arise and the parties counsel before us also conceded to this extent that Section 482 of Code of Criminal Procedure has no application for premature release on licence. As pointed out above, it is within the domain of the State Government under the Act to con sider the question of premature release of any convict on licence. It is also not dis puted that there are certain conditions for premature-release. It is the mandatory provision that a convict must have com pleted minimum 14 years sentence. Apart from this, the provisions of the U. P. Prisoners Release on Probation Act provides that Form-A will be submitted to the State Government through proper channel and thereafter, the same will be sent to the Probation Board. The Act fur ther provides the thereafter the District Magistrate, Superintendent of Police and Probation Officer will submit their reports and thereafter, the Board will consider the said reports and submit its report to the State Government. The State Govern ment thereafter, shall consider the report of the Probation Officer and pass suitable orders in accordance with law for prema ture release of the convict. The procedure is mandatory and the same shows that it is within the doman of the State to consider Form-A of the convict and pass suitable orders after considering the reports sub mitted by the Board as well as other authorities. In these circumstances, no one can file writ petition before the High Court under Article 226 of Constitution of India for premature release of the convict on licence without approaching the State Government first.
(3.) IT is settled law that the authority to whom the jurisdiction vests, is the com petent authority to pass orders and in these circumstances, the High Court will not exercise its jurisdiction to entertain a petition under Article 226 of Constitution of India and pass order of release on licence. The Hon'ble Supreme Court also in the case of Union Territory of Chan digarh v. Charan Jeet Kaur (supra) took the same view and held that the High Court cannot entertain a petition under Article 226 of Constitution of India or under Sec tion 482, Cr. PC. directly for premature release of any convict. In the case of Union Territory of Chandigarh v. Charan Jeetkaur (supra), the convict claimed that she is entitled to be released as per instructions of the State of Punjab. The Punjab Government issued some orders in exer cise of powers conferred under Section 432, Cr. PC. and under Article 161 of Con stitution of India. Charan Jeet Kaur moved a petition stating that she is en titled to be released under this order directly before the Punjab and Haryana High Court without approaching to the State Government which was admittedly the competent authority to commute the sentence and direct the release of the con vict. The instructions issued by the Government of Punjab also show that the prisoner can be released if, he fulfills cer tain conditions. The question as to whether the particular convict comes within the category of these orders or not ? lies with the Government and the Govern ment is the competent authority to pass an order but as pointed out above, Charan Jeet Kaur filed a petition directly before the High Court and the High Court directed the release of Charan Jeet Kaur without considering the fact that it is within the domain of the State of consider and pass an order for commutation of sentence as well as for release of the con vict. Similarly, in case of State of Punjab v. Kesar Singh, 1996 SCC (Crl.) 1034, the Hon'ble Supreme Court further while reiterating the above mentioned view held that it will not be proper to the High Court to entertain a petition directly for prema ture release of the convict. In the case of State of Punjab v. Kesar Singh (supra) also the convict filed a petition directly before the High Court for release of the convict and the State of Punjab presumed that there is nothing adverse against the con vict and he fulfills all the conditions be cause no counter-affidavit has been filed by the State and, therefore, the convict was directed to be released from jail. In these circumstances, the Apex Court while setting aside the said order held that it will not be proper for the High Court to enter tain the petition and direct the release of the petitioner/convict directly. In these circumstances, it will be proper for the High Court to direct the State Govern ment to consider and pass suitable orders in accordance with law. In fact, in the case of State of Punjab v. Kesar Singh (supra), the convict had not completed 14 years of sentence which was mandatory under rules.;