Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Sanjay Shukla, learned counsel for the petitioner, Sri Rajiv Lochan Shukla, learned counsel for the respondent no. 4, Sri A.R. Chaurasia, learned A.G.A. and perused the record.
2. This writ petition has been filed by the son of the deceased Bhagwant Pandey seeking quashing of the impugned order dated 24/09/2017 passed by the State Government, whereby Hon'ble Governor, in exercise of powers under Article 161 of the Constitution of India has remitted remaining sentence of the respondent no. 4 arbitrarily, though he was awarded life imprisonment under sections 302/149, 147, 142, 148 and 379 IPC and further it is prayed that a direction be issued to the respondents 1, 2 and 3 to re-arrest respondent no. 4 so that he serves out the life sentence imposed upon him by the learned Additional Sessions Judge, Gorakhpur in ST No. 499 of 1987.
3. The petitioner states that on 15/06/1987 at about 2:45 PM in the day when the vicinity of village Bariyarpur, situated within the jurisdiction of police station, Kothibhar, District Gorakhpur, now District Maharajganj, the respondent no.4 along with his associates armed with various sharp edged weapons such as ''gandasa' committed murder of 4 persons in presence of police personnel at polling station Bariyarpur regarding which an F.I.R. was lodged by Virendra Pandey at the concerned police station which was registered as case crime no. 53 of 1987 under sections 147, 148, 149, 302, 379 and 427 IPC, in which respondent no.4 was the main assailant who had caused injuries by''gandasa' to the deceased namely Bhagwant Pandey, Ram Ugrah Pandey, Sahadev Pandey and Subhash Pandey. After investigation charge sheet was submitted and the case was registered as Sessions Trial No. 499 of 1987, State vs Ghanshyam Pandey and others with connected Sessions Trial No. 639 of 1987, State vs Ram Bahadur and others, which culminated into conviction vide judgment and order dated 05/12/2009, in which the trial court awarded respondent no. 4 along with others, life imprisonment under sections 302/149 IPC and also imposed fine apart from other sentences in other sections. Respondent no. 4 has preferred a Criminal Appeal No. 8193 of 2009 before this court, in which record for consideration of bail prayer has been summoned and the bail prayer of respondent no. 4 has been refused due to gravity of the offence and severity of the punishment as four unarmed innocent persons were done to death. The respondent no. 4 and his associates have muscle power in the area and are men of the present ruling party due to which he has obtained premature release which has been communicated by the respondent nos. 1 to 3 vide order dated 24/09/2017 and in pursuance of that he has been released from prison. It is further mentioned that it is a moot point as to whether the respondent no. 4 could have been prematurely released who had not even completed 14 years actual imprisonment, in exercise of powers under Article 161 of the Constitution. Under sections 432 and 433A Cr. P.C. and section 195 U.P. Jail Manual and U.P. Prisoners Release on Probation Act, 1938, such premature release is contemplated only after 14 years actual imprisonment. The amendment by the Government on 18/12/1978 has added clause (A) in Section 433 Cr.P.C. which specifically mentions that no convict shall be released prior to completing 14 years imprisonment, which was challenged before the Hon'ble Apex Court by various convicts, one of the references may be found in Maru Ram vs Union of India, (1981) 1 SCC 107, in which the Constitutional Bench of five Judges held that the amendment would be prospective and not retrospective and the same will not come in the way of cases of such convicts who had been convicted prior to the said amendment dated 18/12/1978. Consequently the State Government of U.P. in response to the said decision formulated a policy dated 30/06/1987 clearly amending U.P. Prisoners Release on Probation (4th Amendment) Rules, 1987 and under rule 4 of the said Rules laid down that only such convicts would be considered for premature release who had completed 14 years period in incarceration. In the instant case respondent no. 4 had not completed 14 years actual imprisonment and without assigning any special and adequate circumstances, the State Government has directed for premature release of the convict which is an abuse of power vested under Article 161 of the Constitution of India. It is further mentioned that the impugned order is a flagrant violation of Section 433A Cr.P.C. as well as of the provisions contained in U.P. Prisoners Release on Probation Act, 1938 and paragraph 195-198 of U.P. Jail Manual. Further, it is mentioned that the State Government had formulated a policy dated 11/01/2000 and 25/01/2000 issued by Hon'ble Governor under Article 161 of the Constitution of India, which inter alia directed release of all life imprisonment male prisoners, who had become over 60 years of age and female prisoners, who had become 50 years of age, if they had undergone 5 years and 3 years imprisonment on 25/01/2000. However this Notification was challenged in Mirza Mohmmad Hasan vs State of U.P., (2002) (1) JIC 342 Allahabad, wherein a Division Bench of this court struck down the aforesaid Government policy holding that by a singular stroke a blanket order without examining individual cases of the convicts amounts to an arbitrary and unconstitutional exercise and further directed that the accused may be rearrested who had been prematurely released from prison in compliance with the policy dated 11/01/2000 and 25/01/2000, consequently respondent no. 1 had directed the District Administration of each District to re-arrest such convicts and lodge them in jail. Further it is mentioned that in the case at hand respondent no. 4 appears to have served out only about 7 years actual imprisonment but the State Government with tacit approval of high-level persons of the ruling Government, overlooking nature of accusations, severity of punishment and gravity of offence, prepared a false report recommending remittance of sentence for premature release and on the basis of the said report Hon'ble Governor has allowed the application for premature release which is apparently an arbitrary exercise of such power. Further it is mentioned that during pendency of the trial, the bail prayer of the respondent no. 4 was granted by this court and after his release, he again started indulging in criminal activities against the petitioners family, consequently the informant approached the Hon'ble Apex Court for cancellation of bail of respondent no. 4 and others during pendency of trial. The Hon'ble Apex Court though did not cancel the bail however imposed certain conditions vis-a-vis respondent no. 4 that he would not live in District Gorakhpur rather would live in a neighbouring District, Deoria, but that condition was blatantly violated and he continued to indulge in criminal activities against the family members of the petitioner so-much-so that he made an attempt to kill informant Virendra Pandey on 27/04/1988 regarding which an F.I.R. was registered on 27/04/1988 being case crime no. 39/1988 under sections 147, 148, 149, 307 and 307 IPC, PS Kothibhar, District Maharajganj, in which after investigation police submitted charge-sheet against respondent no. 4. The respondent no. 4 is a hard-core criminal which is evident from the case registered by Commissioner, Gorakhpur Division, Gorakhpur as case crime no. 324 of 1997 at PS Kothibhar, District Maharajganj under sections 463, 465, 471 and 474 IPC. It is further submitted that against the judgment rendered by the Division Bench of this court in Mirza Mohmmad vs State of U.P., several convicts, who were prematurely released by Hon'ble Governor by exercising powers vested in him under Article 161 of the Constitution of India, approached Hon'ble Supreme Court, leading case being Special Leave (Criminal) No. 5002 of 2002 connected with various other appeals, which were heard by the Apex Court and order was passed requiring rearrest of those convicts, who had not been in custody for more than 14 years. It is further mentioned that respondent no. 4 and his associates, who were released on bail by High Court during pendency of appeal, had continuously tried to get respondent no. 4 released, however they could not succeed and the first attempt for securing his premature release had failed in the month of May, 2017. But concealing the said fact, the premature release order has been obtained now on the basis of some false reports prepared by local authorities at the behest of political person without calling for any report from the District Gorakhpur, which is original place of conviction rather a false report has been obtained from District Maharajganj. Therefore the impugned order smacks of arbitrary approach which appears to have been passed on concocted reports. It is further submitted that respondent no. 4, during trial, stated in his statement under section 313 Cr.P.C. that his age was 36 years, which was recorded on 19/08/1993, hence he could not be 66 years of age, rather must be below that. It is further mentioned that during trial and after conviction, respondent no. 4 got himself transferred from the prison of Gorakhpur to medical college Gorakhpur on the ground of forged ailment and by intervention of the High Court, he was remitted back to District jail, Gorakhpur.
4. The learned AGA has vehemently opposed the quashing of this impugned order by filing counter affidavit of Shri Arvind Kumar, Principal Secretary (Home), Government of Uttar Pradesh, wherein it has been stated that the State Government vide G O dated 13/11/2013 resolved that such cases of convicted persons for premature release, whose appeals were pending before the High Court or the Hon'ble Supreme Court would be taken up under the provisions of Article 161 of the Constitution of India and hence the case of respondent no. 4 was fully covered under the said Government Order. Further it is mentioned that under Article 161 of the Constitution, the Hon'ble Governor exercises constitutional power to release prematurely the convicted prisoner on the ground of mercy. It is further mentioned that the petitioner himself has averred that in U.P. Prisoners Release on Probation Act, 1938 (Form-A/on the basis of licence) there is provision for premature release of the prisoner convicted for life, whereas the case of respondent no. 4 has been considered by the Hon'ble Governor under Article 161 of the Constitution of India which confers power upon him of remission. It is further mentioned that under Government Orders dated 11/01/2000 and 25/01/2000, on the occasion of Republic Day- 2000, the remissions were given to the convicted prisoners in jails of State of U.P., which was challenged in High Court and those orders were quashed, hence no further comments need be made in that regard. Further it is mentioned that in respect of respondent no. 4, the Hon'ble Governor considered the recommendations of Medical Board, District Magistrate, Superintendent of Police as well as Committee of Mercy Petition and decided to grant premature release to him by using his constitutional power under Article. 161 of the Constitution of India by order dated 24/09/2017, which is perfectly just, legal and valid order and does not suffer from any infirmity or illegality. Further it is admitted that while considering the premature release of respondent no. 4, there was no mention made in the report of District Administration in respect of cases which find mention in paragraph nos.33 and 34 of the affidavit of the petitioner. Lastly it is mentioned that the petition is devoid of merit and needs to be dismissed.
5. Learned counsel for the respondent no. 4 has wholeheartedly argued in support of the impugned order stating that the same is absolutely legal order passed by Hon'ble Governor under Article 161 of the Constitution which confers unfettered powers upon him and which may not be challenged routinely rather the same can be challenged only in case it is found that there has been no application of mind; the order is malafide; the same is passed for extraneous on wholly irrelevant considerations; and that the relevant materials were kept out of consideration. For this he has relied upon the law laid down in Shatrughan Chauhan and another vs Union of India and others, 2014 Cr.LJ 1327. He has further argued that there is no infirmity in the impugned order and the same deserves to be upheld. In the counter affidavit filed from the side of respondent no. 4 it is stated that respondent no. 4 is not a resident of village of the petitioner. There was no motive for him to commit the alleged offence. He is a highly qualified person who was working as a Lecturer in BRD PG College prior to the incident and had earned a gold medal in M.Sc being topper. He was having a valid license of revolver at the relevant point of time. The post-mortem report of the deceased Subhash Pandey does not corroborate the allegation and yet he was convicted illegally. He is a law abiding citizen. No previous application was dismissed by the Hon'ble Governor. He has been granted remission by the impugned order by the Hon'ble Governor after considering the relevant material. He had suffered a hip fracture in the year 2000 which led him to undergo ''total hip replacement' surgery in the year 2012. After his conviction in the year 2009 he was transferred to BRD Medical College because of hip replacement. He had to undergo ''revision total hip replacement' in 2016 in All India Medicals Sciences, New Delhi. The treatment of respondent no. 4 was given during his detention by the Government and on account of the said injury he has become 60% disabled and remains confined to bed as he can walk support only. Several documents have been annexed in support of his above averments. He has further mentioned that in crime no. 39/1988 PS Kothibhar, District Maharajganj he was falsely implicated and accordingly the court has acquitted him vide order dated 15/11/2000. Further it is mentioned that crime no. 324 of 1997, PS Kothibhar was also falsely slapped against him because he had deposited his licensed revolver with Vijay Arms Corporation in Deoria namely Vijay Pratap Narain Singh on 16/02/1988 and that the said F.I.R. was lodged without proper enquiry and verification. Respondent no. 4 had also lodged an F.I.R. against Vijay Pratap Narain Singh in which he was charge-sheeted under section 406 IPC. He further stated that he had never violated the terms and conditions of bail and had started residing in Deoria.
6. Perused the entire record including the administrative file summoned from the Government of U.P., wherein the consideration was made by the Hon'ble Governor on the reports placed before him. As regards facts, there is no dispute that the accused had been involved in a gruesome murder of four persons in which she had focal role of causing injuries to the deceased persons by ''gandasa' and hence he was convicted in ST No. 639/1987 State vs Ram Bader and 2 others which was connected with ST No. 499/1987 State vs Ghanshyam and 15 others, which were jointly decided by common judgment dated 05/12/2009 by the Additional Sessions Judge /court no. 2, District Gorakhpur whereby respondent no. 4 was awarded life imprisonment under sections 302/149 IPC and was also awarded punishment under other sections 427 of IPC along with other accused. It is also not disputed that in appeal before High Court his bail was rejected on 26/05/2011 and that appeal is still pending. It is also not disputed that during pendency of trial he was granted bail by the High Court and after his release he indulged in criminal activities against the petitioner's family which led the petitioner to move Apex Court for cancellation of his bail, however his bail could not be got cancelled although number of conditions were imposed directing that he would not live in Gorakhpur and would stay in adjoining district, but even that condition was violated by him with impunity and even an attempt was made by him to kill informant Virendra Pandey on 27/04/1988 regarding which crime no. 39 of 1988 under sections 147, 148, 149 and 307 IPC was registered at police station concerned in District Maharajganj and even Commissioner Gorakhpur Division, Gorakhpur had got a case registered against him under sections 463, 465, 471 and 474 IPC being crime no. 324 of 1997 in District Maharajganj. In counter affidavit it is admitted by the respondent no. 1 that in the report submitted before Hon'ble Governor for consideration of his case for premature release, the said cases did not find mention, which would be treated to be concealment. It is also not disputed that he had got himself moved to hospital from the district jail during trial on forged medical certificate and after intervention of court he was confined back in jail. It would be in the fitness of things to see as to whether these facts were placed or not before the Hon'ble Governor at the time when report was being placed with respect to consideration of the case of respondent 4's premature release.
7. A perusal of the administrative file indicates that in the notes lying at page 4 to 7 the details which were placed before Hon'ble Governor have been mentioned, in which it is stated that the age of the convict was about 65 years; due to political rivalry he had committed murder of 4 persons along with his 18 companions being armed with firearms, ''gandasa', spear, lathis and bricks; he was convicted in ST No. 639 of 1987 under sections 147, 148, 302/149, 379 and 427 IPC by Additional Sessions Judge court no. 2, Gorakhpur vide Judgment dated 01/12/2009 and was awarded life imprisonment and his appeal was pending before High Court; till 03/09/2016 he had been in jail for 7 years, 8 months and 28 days (Aparihar) and 8 years, 11 months and 28 days (Saparihar) and his conduct in jail was good (improvement was seen); the remaining 11 accused were undergoing imprisonment, 3 co-accused had been released from jail and 3 co-accused had died; the SSP had submitted his report stating that it was a case of quadruple murder, which evoked sharp public reaction and that is in case of release of the convict the expectation of society and the victim's family in respect of getting justice would be adversely affected. Further it was reported that looking to his age of 62 years there was a faint possibility of his indulging in commission of crime against, however it could not be ruled out that he could incite others for committing crime. Further it was reported that he was reported to be ill. The financial condition of his family was reported to be firm and recommendation was not made for his premature release; the report of District Magistrate was also along the same lines as that of the SSP; the report of the Committee for premature release stated about the above-mentioned period of detention, his age and his conduct in jail being satisfactory, besides that it was also mentioned that the District Magistrate and the SSP had not recommended his premature release and the Committee also did not make recommendation for premature release of the convict. The attention was drawn towards Section 195 of the Jail Manual wherein procedure for premature release was laid down as well as towards G O dated 13/04/2005. On consideration of this the impugned order has been passed by the Hon'ble Governor. Therefore it is apparent from this administrative file that despite their being negative recommendation in respect of premature release of the respondent 4, the Hon'ble Governor was pleased to exercise his powers under Article 161 to grant premature release to the respondent 4. It also reflects that the details which have been provided in the affidavit by the petitioner which have been mentioned above with respect to 2 cases having been lodged against respondent 4 and that he had attempted to get himself out of jail on medical pretext and had to go back to jail only on an order from court, does not find mention in the reports which were placed before the Hon'ble Governor. It is also alleged by the petitioner that report ought to have been summoned from SSP and DM Gorakhpur because case was finally decided from the court in Gorakhpur nor any report was taken from the court concerned. It could be possible that had these reports been taken and had these facts been placed before the Hon'ble Governor, he might not have exercised discretion in favour of the respondent 4.
8. Now we would like to take into consideration the position of law. The learned counsel for the respondent 4 has relied upon Shatrughan Chauhan's case (supra), the relevant paragraph 18, 19 and 20 are reproduced herein below: -
"18. As already emphasized, the power of the executive to grant pardon under Article 72/161 is a Constitutional power and this Court, on numerous occasions, has declined to frame guidelines for the exercise of power under the said Articles for two reasons. Firstly, it is a settled proposition that there is always a presumption that the constitutional authority acts with application of mind as has been reiterated in Bikas Chatterjee v. Union of India : (2004) 7 SCC 634. Secondly, this Court, over the span of years, unanimously took the view that considering the nature of power enshrined in Article 72/161, it is unnecessary to spell out specific guidelines. In this context, in Epuru Sudhakar (supra) (AIR 2006 SC 3385), this Court held thus:
"36. So far as desirability to indicate guidelines is concerned in Ashok Kumar case (AIR 1991 SC 1792) it was held as follows: (SCC pp. 518-19, para 17):(para 14 of AIR)
17. In Kehar Singh case (AIR 1989 SC653) on the question of laying down guidelines for the exercise of power under Article 72 of the Constitution, this Court observed in para 16 as under: (SCC pp. 217-18, para 16) 'It seems to us that there is sufficient indication in the terms of Article 72 and in the history of the power enshrined in that provision as well as existing case-law, and specific guidelines need not be spelled out. Indeed, it may not be possible to lay down any precise, clearly defined and sufficiently channelised guidelines, for we must remember that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high status in the constitutional scheme.' These observations do indicate that the Constitution Bench which decided Kehar Singh case was of the view that the language of Article 72 itself provided sufficient guidelines for the exercise of power and having regard to its wide amplitude and the status of the function to be discharged thereunder, it was perhaps unnecessary to spell out specific guidelines since such guidelines may not be able to conceive of all myriad kinds and categories of cases which may come up for the exercise of such power. No doubt in Maru Ram case the Constitution Bench did recommend the framing of guidelines for the exercise of power under Articles 72/161 of the Constitution. But that was a mere recommendation and not a ratio decidendi having a binding effect on the Constitution Bench which decided Kehar Singh case. Therefore, the observation made by the Constitution Bench in Kehar Singh case does not upturn any ratio laid down in Maru Ram case. Nor has the Bench in Kehar Singh case said anything with regard to using the provisions of extant Remission Rules as guidelines for the exercise of the clemency powers."
19. Nevertheless, this Court has been of the consistent view that the executive orders under Article 72/161 should be subject to limited judicial review based on the rationale that the power under Article 72/161 is per se above judicial review but the manner of exercise of power is certainly subject to judicial review. Accordingly, there is no dispute as to the settled legal proposition that the power exercised under Article 72/161 could be the subject matter of limited judicial review. [vide Kehar Singh (supra); Ashok Kumar (supra); Swaran Singh v. State of U.P : AIR 1998 SC 2026; Satpal and Anr. v. State of Haryana and Ors. : AIR 2000 SC 1702; and Bikas Chatterjee (supra)].
20. Though the contours of power under Article 72/161 have not been defined, this Court, in Narayan Dutt v. State of Punjab : (2011) 4 SCC 353, para 24, has held that the exercise of power is subject to challenge on the following grounds:
a) If the Governor had been found to have exercised the power himself without being advised by the government;
b) If the Governor transgressed his jurisdiction in exercising the said power;
c) If the Governor had passed the order without applying his mind;
d) The order of the Governor was mala fide; or
e) The order of the Governor was passed on some extraneous considerations.
These propositions are culmination of views settled by this Court that:
(i) Power should not be exercised malafidely. (Vide Maru Ram v. Union of India(AIR 1980 SC 2147), paras 62, 63 & 65).
(ii) No political considerations behind exercise of power. In this context, in Epuru Sudhakar (supra), this Court held thus:
34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.
35. Two important aspects were also highlighted by learned amicus curiae; one relating to the desirability of indicating reasons in the order granting pardon/remission while the other was an equally more important question relating to power to withdraw the order of granting pardon/remission, if subsequently, materials are placed to show that certain relevant materials were not considered or certain materials of extensive value were kept out of consideration. According to learned amicus curiae, reasons are to be indicated, in the absence of which the exercise of judicial review will be affected.
37. In Kehar Singh case this Court held that: (SCC p. 216, para 13) "There is also no question involved in this case of asking for the reasons for the President's order."
38. The same obviously means that the affected party need not be given the reasons. The question whether reasons can or cannot be disclosed to the Court when the same is challenged was not the subject-matter of consideration. In any event, the absence of any obligation to convey the reasons does not mean that there should not be legitimate or relevant reasons for passing the order."
9. From the above position of law it is absolutely clear that though the Hon'ble Governor has power to release a convict prematurely, but he has to exercise such power on the advice of the Government. Any such order which Hon'ble Governor passes under Article 161, can be challenged, if he is found to have exercised the said power himself without being advised by the Government; if he transgresses his jurisdiction in exercising that power; if he passes the order without application of his mind; if the order is malafide; if the same is passed for some extraneous considerations; no political consideration should be behind the exercise of such power; the order ought not be passed for irrelevant considerations; the same should not suffer from arbitrariness.
10. We may further mention here that in Maru Ram vs Union of India, (1981) 1 Supreme Court Cases 107, following conclusion has been drawn in Para 72 which is reproduced herein below for the sake of convenience: -
"72. We conclude by formulating our findings. (1) We repulse all the thrusts on the vires of Section 433A. May be, penologicaliy the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code.
(2) We affirm the current supremacy of Section 433A over the Remission Rules and short-sentencing statutes made by the various States.
(3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow, in life sentence cases, only on Government making in order an masse or individually, in that behalf.
(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
(5) We negate the plea that Section 433A contravenes Article 20(1) of the Constitution.
(6) We follow Godse case to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
(7) We declare that Section 433A, in both its limbs ( i.e. both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December, 1978 when Section 433A came into force. All 'Lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect.
To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.
(8) The power under Articles 72 and 161 of the Constitution can be exercised by the Central and State Governments, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary but any general order made must be clear enough to identity the group of cases and indicate the application of mind to the whole group.
(9) Considerations for exercise of power under Articles 72/161 may be myriad and their occasions protean, and are left to the appropriate Government, but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or mala fide. Only in these rare cases will the court examine the exercise.
(10) Although the remission rules or short-sentencing provisions proprio vigore may not apply as against Section 433 they will override Section 433A if the Government, Central or State, guides itself by the self-same rules or schemes in the exercise of its constitutional power. We regard it as fair that until fresh rules are made in keeping with experience gathered, current social conditions and accepted penological thinking--a desirable step, in our view--the present remission and release schemes may usefully be taken as guidelines under Articles 72/161 and orders for release passed. We cannot fault the Government, if in some intractably savage delinquents, Section 433A is itself treated as a guideline for exercise of Articles 72/161. These observations of ours are recommendatory to avoid a hiatus, but it is for Government, Central or State, to decide whether and why the current Remission Rules should not survive until replaced by a more wholesome scheme.
(11) The U. P. Prisoners' Release on Probation Act, 1938, enabling limited enlargement under licence will be effective as legislatively sanctioned imprisonment of a loose and liberal type and such licensed enlargement will be reckoned for the purpose of the 14-year duration. Similar other statutes and rules will enjoy similar efficacy.
(12) In our view, penal humanitarianism and rehabilitative desideratum warrant liberal paroles, subject to security safeguards, and other humanizing strategies for inmates so that the dignity and worth of the human person are not desecrated by making mass jails anthropoid zoos. Human rights awareness must infuse institutional reform and search for alternatives.
(13) We have declared the law all right, but law-in-action fulfils itself not by declaration alone and needs the wings of communication to the target community. So, the further direction goes from this Court that the last decretal pan is translated and kept prominently in each ward and the whole judgment, in the language of the State, made available to the inmates in the jail library.
(14) Section 433A does not forbid parole or other release within the 14-years span. So to interpret the Section as to intensify inner tension and intermissions of freedom is to do violence to language and liberty."
11. It is apparent that since after the above-mentioned ruling, in various cases the point of premature release has been considered, but there does not appear to be any guidelines/policy laid down governing consideration of release of convicts prematurely under Article 161 of the Constitution of India. It gives unfettered powers to the Hon'ble Governor, but those powers need to be exercised judiciously taking into consolation various aspects. To our mind it appears that while considering premature release of a convict, gruesomeness of offence committed, severity of punishment, age of the accused/convict, his past conduct, likelihood of indulgence in commission of fresh offences, his medical condition etc. need to be taken into consideration. In Maru Ram's case it has been expressed that till some policy/guidelines are framed for consideration of release of convicts prematurely under Article 161 of the Constitution, the guidelines which are laid down under sections 432, 433A Cr.P.C., U.P. Prisoners Released on Probation Act, and Jail Manual etc may be adopted.
12. In the case at hand, we do not find the reasons mentioned by Hon'ble Governor for releasing the respondent no. 4 prematurely even though he had hardly completed less than 8 years incarceration although he was punished with life imprisonment and normally premature release in a case of convict who is undergoing life imprisonment, some compelling reasons ought to be mentioned while releasing him prematurely. The reference of the convict suffering from some ailment has been made casually but no authentic medical report also appears to have been placed for consideration before the Hon'ble Governor. The sole ailment which respondent no. 4 has alleged to suffer from is hip fracture which does not appear to be a very serious ailment although he claims to have suffered 60% disability due to that. Therefore we are unable to comprehend as to what prompted the Hon'ble Governor to exercise indulgence in favour of the respondent no. 4 despite him being a hard-core criminal which is reflected from the nature of offence he has committed. Even appeal is pending against the conviction judgment. Thus, the impugned order passed by Hon'ble Governor does not reflect application of mind. Moreover, the Governor has transgressed his jurisdiction in exercising the power under Article 161 of the Constitution of India which is against the dictum of the judgment of the Apex Court referred above.
13. Accordingly the impugned order dated 24/09/2017 deserves to be set aside and is accordingly set aside. The Chief Judicial Magistrate, Maharajganj is directed to take respondent no. 4, Markendey @ Ashok Sahi into custody forthwith and send him to jail to serve out the remaining sentence as awarded by the trial court.
14. The petition stands allowed. No order as to cost.
15. The Registrar General of this Court is directed to send the certified copy of this order to the District Judge, Maharajganj for its necessary information and compliance. Registrar General is further directed to return the record of the case received from the State Government to Sri Amrit Raj Chaurasia, learned A.G.A. for the State who had submitted the same to him in compliance of the order dated 13.9.2018.
(Dinesh Kumar Singh-I, J.) (Ramesh Sinha, J.) Order Date:28.9.2018 Au/h