Admit.
The petitioner has taken recourse to Article 32 of
the Constitution of India for a direction for considera-
tion of his case for premature release from prison as per
the policy dated 01.8.2018 and consequently to release
the petitioner forthwith.
The petitioner along with his younger brother and fa-
ther were tried for offences under Section 302/307/323/34
of the IPC and post-trial were convicted in sentence to
Signature DigitallymaximumsignedNot Verifiedby imprisonment for life with a judgment dated RASHI GUPTA
from FIR No.380/1999 at P.S. Gosaiganj, Sultanpur. The
petitioner aggrieved by the said judgment filed the ap-
peal before the High Court of Judicature at Allahabad in
Crl. Appeal No.2247/2004. 17 years hence the appeal is
still pending adjudication.
The appellant on completion of 14 years of imprison-
ment claimed eligibility for release under the provisions
of the U.P. Prisoners’ Release on Probation Act, 1938 and
submitted the duly filled Form-A but the same was re-
jected on 28.4.2017.
It is the case of the petitioner that the Governor of
Uttar Pradesh exercising powers under Article 161 of the
Constitution of India issued a G.O dated 01.8.2018, a
policy for prisoners in respect of pre-mature release on
occasion of Republic Day every year. One of the cate-
gories of such prisoners is all male convicted prisoners
sentenced to suffer life-imprisonment whose crime is not
covered by any sub-rule or restricted category pointed
out at Section 3 and who have served 16 years of actual
imprisonment without remission and 20 years of imprison-
ment inclusive of remission along with the pending pe-
riod. However, this petition of the petitioner was also
rejected on 04.11.2019.
It is the case of the petitioner, that the Government
in the years 2018-2021 released 1000 of prisoners from
the various jails of U.P. under the aforesaid policy and
the petitioner despite having satisfied all terms and
conditions for pre-mature release under the said policy,
his proposal for release was recommended on the occasion
of 26.1.2020 i.e., two years back but he has still not
been released. The fate of the petitioner is stated to
have been same even on 26.1.2021 without assigning any
reasons.
In the conspectus of the aforesaid facts, we had is-
sued notice and counter affidavit has been filed by the
State.
One of the aspects pointed out in the counter affi-
davit is by annexing the Policy for pre-mature release by
submitting that the same stands amended on 28.7.2021. The
significant change as applicable in the case of the peti-
tioner is that all such convicts are required to be con-
sidered “who have completed age of 60 years” and have un-
dergone custody of 20 years without remission and 25
years with remission. In this behalf learned counsel for
the respondent fairly states that as per the policy of
the 2018 the case of the petitioner would be covered
though as per the 2021 policy he is not of the requisite
age of 60 years. However, he also accepts that in terms
of a recent judgment of this Court in State of Haryana &
Ors. V. Raj Kumar @ Bittu reported as 2021 (9) SCC 292 it
has been clearly opined taking note of the consistent
view of this Court that the policy prevalent at time of
conviction shall be taken into consideration for consid-
ering the pre-mature release of a prisoner. He, thus,
submits that 2021 policy prescribing the age of 60 years
as the minimum age could not apply to the case of the pe-
titioner.
We are really not required to go into this aspect in
view of the aforesaid but would like to express a great
doubt on the validity of this clause prescribing a mini-
mum age of 60 years which would imply that a young of-
fender of 20 years will have to serve 40 years before his
case for remission can be considered. Though we are not
required to test this aspect, we call upon the State Gov-
ernment to re-examine this part of the Policy which
prima-facie does not seems to be sustainable more so in
view of the illustration we have just noted above and
thus we call upon the State Government to take a fresh
look at the insertion of this clause. The needful be done
within four months from today.
Now once again coming to the facts of the present
case, learned counsel for the respondent submits that the
appeal of the petitioner pending before the High Court,
in view of the long incarceration, he could have moved
the High Court for suspension of sentence. We have no
doubt about this proposition but the remedy of seeking
suspension of sentence and that in view of long incarcer-
ation remission is provided, are different release.
It cannot be said that the State Government is pre-
cluded from examining the case of the petitioner for re-
mission if an appeal is pending before the High Court and
from the submissions of the learned counsel for the peti-
tioner it does appear that petitioner seems to have lost
interest even in possibly prosecuting the appeal.
We are, thus, of the view that it would be in fitness
of things that the case of the petitioner be considered
for remission in view of our aforesaid observations by
the Competent Authority within a period of three months
from today.
We, thus, issue a dual direction i.e. of considera-
tion of the case of the petitioner for remission within
three months and for consideration of the amendment to
the Policy of 2021 within a period of four months from
today. We may note that according to the learned counsel
for the State the remission policy is also under chal-
lenge before this Court but then that cannot preclude the
State itself from re-visiting the issue.
In view of the fact that the petitioner as on date
has already served about 22½ years without remission and
almost 28 years with remission, we are inclined to grant
bail to the petitioner in the meantime pending considera-
tion in pursuance to our aforesaid directions.
Writ Petition accordingly stands allowed in the terms
aforesaid leaving parties to bear their own costs.
New Delhi; 31ST January, 2022.
ITEM NO.21 Court 6 (Video Conferencing) SECTION X
Writ Petition (Criminal) No.256/2021
MATA PRASAD Petitioner(s)
THE STATE OF U.P. & ANR. Respondent(s)
Date : 31-01-2022 These matters were called on for hearing today.
For Petitioner(s) Mr. Mohd. Irshad Hanif, AOR
Mr. Aarif Ali Khan, Adv.
Mr. Rizwan Ahmad, Adv.
Mr. Mujahid Ahmad, Adv.
For Respondent(s) Mr. Ardhendhumauli Kumar Prasad, AAG
Mr. Rohit K. Singh, AOR
Mr. Uday N. Tiwary, Adv.
Ms. Subhali Pathak, Adv.
UPON hearing the counsel the Court made the following
Admit.
Writ Petition stands allowed in terms of the signed
reportable order.
Pending applications stand disposed of.
(Signed reportable order is placed on the file)