- (1.) G. P. Mathur, J. The petition under Article 226 of the Constitution of India has been filed praying that the order dated 6- 9-93 (Annexure-4 to the writ petition) passed by IIIrd Additional District and Sessions Judge, Muzaffarnagar be quashed and a writ of mandamus be issued directing the opposite parties not to arrest the petitioner in pursuance of the aforesaid order.
(2.) THE petitioner Ranjeet was con victed in Sessions Trial No. 45 of 1974 by learned Sessions Judge, Muzaffarnagar under Section 302, IPC and was sentenced to imprisonment for life by the judgment and order dated 9-7-1974. After he had undergone sentence for sometime, he moved an application for pre- mature release under the U. P. Prisoners Release on Probation Act, 1938. This application was considered by the State Government and was postponed for observing his con duct further in jail. THE petitioner then filed a writ petition No. 1517 of 1983 before the Supreme Court praying that a writ of mandamus be issued to the State Government to consider and dispose of his application for release after the expiry of postponed period. THE petition was dis posed of by the Supreme Court by judg ment and order dated 2-1-1984. After few months the petitioner moved an application for bail before the learned Sessions Judge on the ground that his application for pre-mature release had not been disposed of by the Government in terms of the order passed by the Supreme Court and, therefore, he is en titled for being released on bail. The learned Sessions Judge, thereafter, granted bail to the applicant by the order dated 15-10-84, a copy of which has been filed as Annexure 2 to the writ petition. On 6-9-1993 learned IIIrd Addi tional Sessions Judge sent a letter to the S. S. P. Muzaffarnagar requesting him to get the accused of S. T No. 45 of 1974 arrested as the period of bail had expired. It is this order which has been impugned in the present writ petition.
(3.) THE counter-affidavit filed by the State on 16-12-1994 (sworn on 14-12-1994) shows that on 10-12- 1984 the State Government passed the following order on the application for pre-mature release moved by the petitioner: "board's recommendation not accepted. Release rejected. Prisoner may apply afresh after six months (without remission) and there after his case will be reconsidered with fresh opinion of District Magistrate. " It is stated in paras 6 and 10 of the counter-affidavit that the jail superintendent hand written a letter to the District Magistrate to get the petitioner's bail cancelled as his ap plication for pre-mature release had been rejected by the State Government on 10-12-1984. It is further stated that bail of the petitioner was rejected by the Addl. Sessions Judge. THEreafter Sri R. P. Singh, Illrd Addi tional Sessions Judge wrote a letter dated 6-9-1993 to get the petitioner arrested. Necessary warrants for this purpose were also sent. Sri G. C. Saxena learned Counsel for the petitioner has submitted that the application for pre-mature release moved by the petitioner had not been finally rejected as it had been ordered to be recon sidered after six months and therefore the bail of the petitioner could not be canceled. The order passed by the State Government on 10-12-1984 clearly shows that the application for pre-mature release had been rejected. However further direc tion was issued that the same may be reconsidered after obtaining fresh opinion from the District Magistrate. The order of the State Government that the prayer made by the petitioner shall be recon sidered after he had undergone a further period of six months cannot be interpreted to mean that his application for pre-ma ture release had not been "rejected," It does not amount to mere postponement of the consideration of the application. An identical matter concerning a life convict, who had also applied for being released under U. P. Prisoners Release on Proba tion Act, 1938 and in whose case also a similar direction had been issued for grant of bail and for cancellation thereof in the event of his application being ultimately rejected, came up for consideration before the Supreme Court in Criminal Misc. Peti tion No. 503/93 in Writ Petition (Criminal)No. 1334/91 (Luxmi Prasad v. State of U. P.) decided on 26-4-1994 and it was observed as follows: "the representation of the petitioner for pre-mature release was in fact, considered on 23rd December, 1983 and his prayer for imme diate release was rejected. The purport of the decision appears to have been that the immedi ate premature release was not justified but the matter might be taken up after the expiry of a further time of five more years of the sentence. The clear implication was that the petitioner should continue to serve the sentence. " Therefore, the contention that the application for pre-mature release has not been rejected by the State Government cannot be accepted.;