Court No. - 43
Case :- CRIMINAL MISC. WRIT PETITION No. - 21798 of 2019
Petitioner :- Mani Kant
Respondent :- State Of U.P. And Another Counsel for Petitioner :- Vinod Shankar Tripathi Counsel for Respondent :- G.A.
Hon'ble Pankaj Naqvi,J. Hon'ble Suresh Kumar Gupta,J.
Heard Sri Vinod Shankar Tripathi, learned counsel for the petitioner and the learned A.G.A.
This writ petition is filed commanding respondent no.2 to decide parole application of the petitioner bearing no.68/AJ/2018 arising out of Case Crime No.900/2006, under Sections 489-Ka/489-Ga/489-Gha/489-Da IPC, P.S. Gajraula, Amroha.
It is submitted by learned counsel for the petitioner that he has filed an application for parole bearing no.68/AJ/2018 before the District Magistrate, Amroha on account of illness of prisoner's mother and wife, in which no orders have been communicated till date.
The learned A.G.A on the strength of the provisions of the Uttar Pradesh (Suspension of Sentence of Prisoners) Rules, 2007 submits that there is an elaborate procedure for seeking suspension of sentence on account of above illness. He further submits that the proposed application is to be routed through the Superintendent of Jail to the State Government, who shall thereafter proceed in terms of Rule 5.
The State Government in exercise of the powers under Section 432(5) of the Code has framed rules to give direction as to suspension of sentences and the conditions on which such applications are to be presented.
Sub-rule (4) of Rule-1 of 2007 Rules provides to which class of prisoners these rules shall be applicable which reads as under:
"These rules shall apply to the prisoners convicted by the Courts in Uttar Pradesh for the offence to which the executive power of the State extends whether confined in Jail within the State of Uttar Pradesh or outside the State but do not apply to, -
(a) the prisoners convicted for an offence to which the executive power of the States does not extend
(b) the prisoners who have filed any appeal or revision in any Court against sentence, during pendeny
(c) the prisoners against whom any other criminal case is pending before any Court;
(d) the prisoners convicted for an offence for which suspension of sentence is not admissible in any law.
Rule 3 provides 4 contingencies under which the Government may suspend the sentence of prisoners which are as under:
3. Power to suspend sentence. - (1) The Government may suspend the sentences of a prisoner up to one month on following grounds :
(a) illness of prisoner's parents, husband or wife, son, daughter, brother or sister, or
(b) death of any one of the relative mentioned in sub-clause (a), or
(c) marriage of son, daughter, brother or sister;
(d) for sowing or harvesting of agricultural crops on his own land provided no other alternative arrangement for the same is available;
(e) for the essential repair of his house provided no other alternative arrangement for the same is available.
(2) The Government may in special circumstances extend the period of suspension of sentence referred to in sub-rules (1) for a period not exceeding one month.
Rule-5 provides a procedure for suspension of sentence. Rule-6 provides conditions for suspension of sentence. Rules 5 & 6 are quoted hereunder:
5. Procedure for suspension of sentence. - (1) The application for suspension of sentences may be submitted in prescribed Form I by the prisoner himself or by a member of the family or a close relative of the prisoner in duplicate through the Superintendents of the Jail concerned, who shall forward one copy of it along with his comments and Jail reports in Form II to the Government and another copy to the District Magistrate concerned.
(2) The Government may call for the report from the District Magistrate and Superintendent of Police concerned on the desirability of the suspensions of the sentence of the prisoner, who after conducting such enquiry as deemed necessary shall submit their report in Form III within 30 days to the Government. In appropriate cases Government may call for the opinion under sub- section (2) of Section 432 of the Code of Criminal Procedure, 1973.
(3) The Government shall call for report from the Superintendent of the Jail concerned regarding age, condition of health, sentence and conduct of the prisoner in Jail.
(4) No prisoner shall be released on suspension of a sentence unless he furnishes sureties along with personal bond to the satisfaction of the District Magistrate to the effect that he shall surrender in Jail concerned on expiry of the period of suspension of sentence and shall maintain peace and good conduct during the period of suspension of sentence.
6. Conditions for suspension of sentence. - (1) Suspension of sentence shall not be granted to the prisoner convicted for life imprisonment for an offence of murder unless the prisoner has served minimum three years sentence without remission, and for those convicted for an offence of dacoity served minimum four years sentence without remission. In all other cases suspension of sentence shall not be granted unless the prisoner has served minimum one year sentence without remission.
(2) Suspension of sentence may not be granted to a prisoner convicted for heinous crime or to a habitual offender if the District Magistrate or Superintendent of Police is of the opinion that the release of the prisoner may adversely affect peace and tranquillity of the area.
(3) The period of suspension of sentence shall not count towards the period of sentence served.
(4) The sentence of a prisoner may be suspended for not more than one in a calendar year :
Provided that in exceptional circumstances such as death of prisoner's parents, husband or wife, son, daughter, brother or sister or marriage of a prisoner's son, daughter, brother or sister or in natural calamities, the sentence of prisoner may be suspended for the second time in a calendar year.
A perusal of aforesaid Rules 3 & 5 manifest that once either of the 4 conditions specified in Rule 3, are spelled out, the same is to be dealt with in accordance with the procedure prescribed in Rule 5. There is a detailed procedure under Rule 5 as to how such an application is to be dealt with. Rule - 6 relates to the period of minimum sentence which a prisoner must undergo before he can maintain an application for suspension of sentence.
The petitioner, a life convict, is alleged to have served almost 13 years of detention in the aforesaid case and has filed an application for parole before the District Magistrate concerned, seeking suspension of sentence on account of illness of mother and wife. Such an application, as stated above is to be submitted in terms of Rule 5 to the Superintendent of Jail, which thereafter shall be dealt with, in accordance with the procedure prescribed.
This writ petition is disposed of with the direction that in the event the petitioner file an appropriate application, along with a certified copy of this order, in terms of the aforesaid provisions, before the Superintendent of Jail concerned, so as to enable the State Government to take a decision on the application, as expeditiously as possible, preferably within 3 months from the date of production of this order.
We clarify that we have not examined the merits of the application which shall be the sole prerogative of the authority concerned.
Order Date :- 26.9.2019 Chandra