Hon'ble Umesh Chandra Srivastava,J.
Om Prakash Srivastava @ Babloo son of late Vishwanath Srivastava presently confined in Central Jail, Bareilly is before this Court for following relief:-
" (a) to issue a writ, order or direction in the nature of Mandamus commanding the respondent no. 1-State of Uttar Pradesh to dispose of the application (Form-A) dated 14.09.2013 made to it by the petitioner for grant of remission and his consequent release in the light of his having undergone imprisonment almost 21 years (actual) or -----years (with remission).
(b) It is further prayed that during the pendency of the said application (Form-A) dated 14.09.2013 for remission the petitioner be directed to be released on bail."
Brief background of the case as is reflected that petitioner is a well known name in the crime world and was declared as absconder, in view of this law enforcing agency of the Indian State has proceeded to issue red-corner notice and accordingly pursuant thereto petitioner was apprehended at Singapore Airport on 21.04.1995.
After arrest of petitioner was effectuated at Singapore Airport on 21.04.1995, Union of India through its Home Secretary requested for extradition of the petitioner to India. Request made by Union of India was accepted and the Republic of Singapore issued warrant of surrender on 30.08.1995 of the petitioner to Republic of India for trial in following four cases: (I) conspiracy to commit murder of one L.D. Arora, an offence punishable under Section 120-B read with Section 302 IPC; (ii) murder of one Ram Pratap Singh Chauhan, an offence punishable under Section 302 IPC; (iii) conspiracy to commit murder of one Lalit Kumar Suneja an offence punishable under Section 120-B read with Section 302 IPC; (iv) conspiracy to kidnap one Vishwanath Mittal, an offence punishable under Section 120-B read with Sections 341, 354, 324 and 307 IPC.
Pursuant to the aforesaid order that has been passed in reference of extradition of the petitioner to India, petitioner was consequently brought back to India to face charges in criminal cases wherein he was arrayed as an accused.
Petitioner claims that as far as offence mentioned at serial no. 1 is concerned therein he was convicted by Designated Judge (TADA) Kanpur for conspiracy to commit the murder of one L.D. Arora in the year 2008 and sentenced to imprisonment for life. The appeal preferred by the petitioner against his conviction was dismissed by the Apex Court and his conviction of life and sentence has been upheld. Petitioner claims that he was acquitted in the trial relating to the case of murder of one Ram Pratap Singh Chauhan by the Session Court. He further claims that he was convicted by the Session Judge at Karkardooma Courts, Delhi for conspiracy to commit the murder of one Lalit Suneja. However, on appeal, the conviction of the petitioner was set aside by the Delhi High Court and the petitioner stood acquitted. Petitioner further claims that he was also acquitted in the trial relating to the case of conspiracy to kidnap of one Vishwanath Mittal by the Session Court.
Petitioner has come up with a case that he has been in custody since his detention when he was arrested at Singapore Airport on 21.04.1995, as such he has undergone 21 years of actual imprisonment, which is including the period of remission which the petitioner would have been entitled if worked out to, in view of this he moved an application (Form A) dated 14.09.2013 before the State Government for remission of his sentence on account of his having undergone actual imprisonment of more than 14 years. Petitioner submits that his application in question has been kept pending deliberately in such a situation once he has already undergone actual imprisonment for almost 21 years then this Court should come to the rescue and reprieve of the petitioner by directing the State of U.P. to dispose of the application (Form A) dated 14.09.2013 made to it by the petitioner for grant of remission and further request has been made that till the the aforesaid application is not decided, petitioner be released on bail.
Counter affidavit has been filed on behalf of State and therein this fact has been admitted that on 14.09.2013, petitioner moved an application (Form A) for remission before jail authority and according to Rule 6 of U.P. Prisoners Release on Probation Rules, the said Form-A was sent by the Central Jail, Bareilly on 24.12.2013 alongwith required report/commendation to the District Magistrate, Lucknow for forwarding the same directly before the Inspector General (Prison) U.P. Lucknow and on the proposal dated 07.05.2014 of the District Magistrate, Lucknow, the Headquarter (Prison) has found that there are certain errors in the report and the same has been remitted back to the Headquarter, Lucknow to the Superintendent, Central Jail, Bareilly and thereafter on 15.09.2014, the Superintendent of Central Jail Bareilly has again sent his report after rectifying the alleged error to the Headquarter (Prison), Lucknow for placing the same before the Probation Board. Mention has also been made in the case of Union of India Vs. B. Shriharan @ Murugan and others [Writ Petition (Criminal) No. 48 of 2014, the Apex Court has passed an interim order on 09.07.2014, by which the Apex Court has restrained the State Government from exercising the authority of remission and commutation of sentence under Section 432 and 433 of Cr.P.C to the life convicts. "In the meanwhile the State Government are restrained from exercising of power of remission of life convicts." In pursuance of the interim order dated 09..07.2014 passed by the Apex Court the proceeding which was going on in the case of the petitioner also came to halt. Further mention has been made that on 23.07.2015 the Apex Court (Referral Bench) has modified the interim order dated 09.07.2014 whereby the Apex court has restrained the State Governments from exercising powers of remission of commutation of the life convicts and the said order dated 09.07.2014 shall only apply to following cases: (i) Where life sentence has been awarded specifying that- (a) the convict shall undergo life sentence till the end of his life without remission or commutation. (b) the convict shall not be released by granting remission or commutation till he competes a fixed term such as 20 years or 25 years or like. (ii) where no application for remission or commutation was preferred or considered suo-motu by the concerned State Government / authorities. (iii) Where the investigation was conducted by Central Investigation Agency like the Central Bureau of Investigation. (iv) Where the life sentence is under any central law or under Section 376 of the Indian Penal Code, 1860 or any other similar offence. Mention has also been made that Apex Court on 02.12. 2015 decided the matter and as earlier report has been old and stale one, as such fresh report has been called for and then on 31.12.2015, the Headquarter (Prison) Lucknow has again sent the proposal (Form-A) of the petitioner to the Jail Superintendent, Central Jail Bareilly, district Bareilly for providing the report/recommendation of the District Level Committee, current status of the pending cases against the petitioner and for obtaining the fresh report on five prescribed points from the District Magistrate/ Superintendent of Police/Probation Officer, Lucknow then thereafter on 13.01.2016 the Superintendent of Central Jail Bareilly has again sent the matter to the District Magistrate, Lucknow for providing fresh report/ recommendation of the prescribed authorities and the matter is still pending before the District Magistrate, Lucknow and further while taking the present case very seriously, the Headquarter (Prison) Lucknow has issued a specific D.O. Letter on 22.04.2016 to the District Magistrate Lucknow requesting therein to provide the proposal (Form-A) of the petitioner expeditiously. Mention has also been made that another criminal case bearing case crime no. 260 of 2015 under Section 364-A read with Section 120 B IPC Police Station Kotwali District Allahabad is also there wherein during the course of investigation complicity of petitioner has also been reflected.
On the matter being taken up today, Sri K.T. S. Tulsi, Senior Advocate assisted by Sri Vinay Saran, Advocate submitted before us that personal liberty of petitioner has been taken casually by State instrumentality as on application moved in the year 2013 for grant of remission and release till date said application in question has deliberately not been decided and as such said proceeding in question be directed to be decided and during this interregnum period, as petitioner has already undergone imprisonment of 21 years (with remission), bail be accorded to petitioner as has been done by Apex Court in the case of Satya Prakash Vs. State of U.P. and others [Writ Petition (Criminal) No (s) 11 of 2013] decided on February 16, 2016, keeping in view the humane angle as has been highlighted in the case of Bachey Lal Vs. State of Uttar Pradesh, Criminal Misc. Writ Petition No. 2357 of 1997 decided on 19th April 2004 wherein this Court has mentioned that when the period of incarceration of a prisoner in jail is unduly prolonged, woman and children are exploited and families ruined:
"When the period of incarceration of a prisoner in jail is unduly prolonged, woman and children are exploited and families ruined. The possibility of the prisoner eventually being reintegrated as a socially useful and productive member of his family on release gradually fades. Also no useful purpose is served by detaining the prisoner for a longer period, as society and the relations of the victim could usually be expected to be satisfied with this adequate measure of punishment undergone by the offender, and whatever deterrent massage that a punishment intended to convey would have been received by the prisoner after his long stint in jail and indeed he has lost and potentiality of committing a future crime."
Sri Kailash Prakash Pathak, Advocate appearing for Union of India has opposed the plea that has been raised by the Senior Counsel by submitting that petitioner is a habitual known offender and no leniency should be shown to him.
Mohd. Imran Ullah learned Additional Advocate General appearing for State of U.P. alongwith Sri Vikas Sahai learned AGA based on the averments mentioned in the affidavit and instructions received contended that all possible steps are being undertaken for taking decision on the application (Form-A) of the petitioner and as in the present case, conviction has been ordered, and same has been investigated by the CBI, as such without concurrence of the Central Government, no such exercise can be undertaken, in view of this, State would take all possible efforts at their command for expeditious disposal of the application (Form-A) and as far as bail of petitioner is concerned, no case for bail is made out as the petitioner is known habitual offender as petitioner while in jail, has involved himself in serious criminal activity of threatening and extortion and FIR has been lodged by Rahul Mahendra on 05.09.2015 at about 23.50 pm as Case Crime No. 26 of 2015 under Sections 364-A, 120-B IPC Police Station Kotwali District Allahabad against unknown persons and the kidnapping in the above mentioned case relates to a renowned jeweler of Allahabad. The Allahabad Police team on 07.09.2015 recovered Pankaj Mahendra from District Fatehpur and also arrested accused Vikalp Srivastava @ Golu, Manhendra Yadav, Sachchidananad Yadav @ Sachita Yadav and Chandra Mohan Yadav @ Bablu Yadav and from their possession the police team also recovered 9 mm pistol, live cartridges, country made pistol 315 bore, 3 mobile sims and on further investigation the police team found involvement of Bablu Srivastava @ Om Prakash Srivastava. During investigation police team found that Bablu Srivastava @ Om Prakash Srivastava, who is maternal uncle of accused Vikalp Srivastava and is presently detained in Central Jail Bareilly, hatched the conspiracy for kidnapping of Pankaj Mahendra for the demand of Rs. 10 crores. The police team also found that the said conspiracy was hatched by Bablu Srivastava @ Om Prakash Srivastava alongwith other co-accused persons of District Court Lucknow, while he had came for his appearance in a case 25 days prior to the incident. The police after investigation has already submitted charge sheet against Vikalp Srivastava @ Golu, Vinit Parihar, Sachchidananad @ Sachchidanand, Mahendra Yadav, Chandra Mohan Yadav @ Bablu Yadav, Sankalp Srivastava and Sandeep Chaudhary @ Rajesh Kumar Yadav under Sections 364-A, 120-B, 342, 395 and 412 IPC before the Court concerned, whereas investigation with regard to accused Bablu Srivastava @ Om Prakash Srivastava, Bholu Yadav @ Bholu, Arun Singh and Kartikeya Pandey is still pending and after collecting evidence against Bablu Srivastava @ Om Prakash Srivastava the Investigating Officer had moved an application for issuance of bailable warrant against him, who is lodged in Central Jail bareilly, on 21.12.2015 and the bailable warrant was issued against him by Chief Judicial Magistrate, Allahabad which has already been served in Central Jail, Bareilly.
After respective arguments have been advanced at the very outset we proceed to consider the grievance of petitioner that State has deliberately delayed the matter and then the request of the petitioner for issuing writ in the nature of mandamus for deciding the application (Form-A) of the petitioner dated 14.09.2013 for grant of remission and consequent release.
Counter affidavit that has been so filed by the State clearly reflects that the State Government cannot be blamed for the same for the simple reason that after application (Form-A) dated 14.09.2013 has been moved then according to Rule 6 of Prisoners Release on Probation Rules 1938 the said Form-A was sent by the Central Jail, Bareilly on 24.12.2013 alongwith required report/commendation to the District Magistrate, Lucknow for forwarding the same directly before the Inspector General (Prison) U.P. Lucknow and on the proposal dated 07.05.2014 of the District Magistrate, Lucknow, the Headquarter (Prison) has found that there are certain errors in the report and the same has been remitted back to the Headquarter, Lucknow to the Superintendent, Central Jail, Bareilly and thereafter on 15.09.2014, the Superintendent of Central Jail Bareilly has again sent his report after rectifying the alleged error to the Headquarter (Prison), Lucknow for placing the same before the Probation Board. While such proceedings were on in the case of Union of India Vs. B. Shriharan @ Murugan and others [Writ Petition (Criminal) No. 48 of 2014, the Apex Court has passed an interim order on 09.07.2014 restraining the State Government from exercising the authority of remission and commutation of sentence under Section 432 and 433 of Cr.P.C to the life convicts. Said interim order dated 09.07.2014 subsequent to the same has been modified on 23.07.2015. Even after modification of order the appropriate Government in exercise of its authority of remission or commutation of life convicts where the investigation was conducted by the Central Investigation Agency like Central Bureau of Investigation was not entitled to take a call and said matters has been finally decided by the Apex Court on 02.12.2015.
This much is also reflected that on the proposal that has been so made by the petitioner, on 31.12.2015 the matter was sent by the Headquarter (Prison) Lucknow again to the Jail Superintendent, Central Jail Bareilly, district Bareilly for providing the report/recommendation of the District Level Committee, current status of the pending cases against the petitioner and for obtaining the fresh report on five prescribed points from the District Magistrate/ Superintendent of Police/Probation Officer, Lucknow then thereafter on 13.01.2016 the Superintendent of Central Jail Bareilly has again sent the matter to the District Magistrate, Lucknow for providing fresh report/ recommendation of the prescribed authorities. Once such is the factual situation and in this background that it has been said that there has been delay on the part of the State Government in dealing the case cannot be accepted by us as taking the case in hand very seriously, the Headquarter (Prison) Lucknow has issued a specific D.O. letter on 22.04.2016 to the District Magistrate Lucknow requesting therein to provide the proposal (Form-A) of the petitioner expeditiously.
In view of this it cannot be said that the State has acted slow or has acted arbitrarily in dealing with the matter.
However, in all fairness from the side of State it has been submitted that as is provided under Section 435 Cr.P.C without concurrence/ consultation of the Central Government, no decision could be taken.
For ready reference, Section 435 is being quoted below:
"Section 435 of CRPC "State Government to act after consultation with Central Government in certain cases - (1) The powers conferred by Sections 432 and 433 upon the State Government to remit or commute a sentence, in any case where the sentence is for an offence -
(a) which was investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946, (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, or
(b) which involved the misappropriation or destruction of, or damage to, any property belonging to the Central Government, or
(c) which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of his official duty, shall not be exercised by the State Government except after consultation with the Central Government.
(2) No order of suspension, remission or commutation of sentences passed by the State Government in relation to a person, who has been convicted of offences, some of which relate to matters to which the executive power of the Union extends, and who has been sentenced to separate terms of imprisonment which are to run concurrently, shall have effect unless an order for the suspension, remission or commutation, as the case may be, of such sentences has also been made by the Central Government in relation to the offences committed by such person with regard to matters to which the executive power of the Union extends."
A bare perusal of the aforesaid provision would go to show that the State Government in exercise of its authority conferred under Sections 432 and 433 to remit or commute a sentence, in any case where the sentence is for an offence investigated by the Central Bureau of Investigation shall not be exercised by the State Government except after with the consultation of the Central Government and without consultation of Central Government, no such order could be passed.
Apex Court in the case of Union of India Vs. V. Sriharan @ Murugan [2015] Supreme (SC) 1092 has extensively dealt with the issue by mentioning that life imprisonment only means the entirety of life unless it is curtailed by remissions validly granted under the Code of Criminal Procedure by the Appropriate Government or under Article 72 and 161 of the Constitution of India by the Executive Head viz the President or the Governor of State. Section 435 (1) mandatorily requires the State Government, if it is the State Government to consult the Central Government if the consideration of grant of remission or commutation under Section 432 & 433 in a case which falls within any of the three sub-clauses (a) (b) (c) of Section 435 (1).
In view of this, as mentioned before us, within a period of two months from the date of judgment all attempt and endeavour shall be made by the State to complete the record in question and thereafter forthwith transfer the papers for consultation with the Central Government. It is expected that the Central Government from the date of receiving of the said papers in question would deal with the matter preferably within next two months thereafter and outcome of the final decision would be informed to the petitioner. In view of this as far as prayer no. 1 is concerned, same stands disposed of with the above direction.
Now coming to prayer no. 2 that has been so made on behalf of petitioner that he be released on bail as he has already undergone imprisonment of almost 21 years, and he should be permitted to come out from jail so that he can also make place for himself in the society and may be in the company of his family after his release as he has been detained in jail for longer period and has been virtually cut of from the society.
For getting himself released on bail petitioner has placed reliance on the judgment passed by Apex Court in the case of Satya Prakash Vs. State of U.P. and others [Writ Petition (Criminal) No (s) 11 of 2013] decided on February 16, 2016 wherein following order has passed:
"The facts are that the petitioners herein was charged for the offence of murder, inter alia under Section 302 of the IPC vide judgment dated 27.02.1996. This judgment was confirmed in appeal by the High Court and the Special Leave Petition thereafter was also dismissed by this Court.
The petitioner was also charged for the offence of murder in another case. In that case also, he was convicted by the Court of sessions and given death sentence. The High Court, on reference however, confirmed the said death sentence.
However, the death sentence given to the petitioner was commuted to life by this Court vide order dated 11.02.1985 passed in Criminal Appeal No. 164 of 1985. It is significant to mention that in other proceedings being Criminal Appeal No. 998 of 2004, order was passed by this Court directing the release of the petitioner forthwith, alongwith other co-accused in the second case with the condition that if he is not required in any other case. Significance of the order dated 10.09.2004 is that insofar as second case is concerned, the petitioner has already served the sentence as he is directed to be released. Thus, he is undergoing life imprisonment in the first case.
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The petitioner has undergone more than 21 years of imprisonment (with remission). The stand taken by the learned counsel for the petitioner though is that in fact, he has suffered incarceration for almost 30 years. In view of the aforesaid circumstance, we are inclined to release the petitioner on bail for a period of six months subject to the condition that may be imposed by the Trial Court.
It is being submitted before us that Satyaprakash was charged for the offence of murder on two occasion under Section 302 of the IPC and has undergone remission for more than 21 years of imprisonment and he has been directed to be released on bail, then similar treatment be extended to petitioner also as he has also undergone 21 years of imprisonment with remission, as he has been convicted in only one criminal case and with the other criminal case referred to by learned Additional Advocate General petitioner has no concern, as such case of petitioner stands on higher footing.
Apex Court in criminal case under Article 32 of the Constitution of India namely Satya Prakash (Supra) keeping in view the fact that in spite of the order of Apex Court directing for his release in the second case he could not be released on account of first case wherein he was undergoing life imprisonment. In the said peculiar backdrop as petitioner has undergone more than 21 years of imprisonment with remission, his release on bail for six months has been directed. This Court can also in exercise of its authority under Article 226 of the Constitution of India where the issue of personal liberty is involved can pass appropriate order keeping in view the peculiar characteristic of the case and specially when under the scheme of things provided for under Sections 432 and 433 of Cr.P.C. and the U.P. Prisoners Release on Probation Rules 1938, there is no such provision for release on bail provided for. Here prayer for bail has been pressed before us by requesting that bail should be allowed to petitioner as petitioner for more than 21 years, is in jail with remission.
It is true that bail has got direct co-relation with the personal liberty of the accused as well as the convict and this is also equally true that more than 21 years period has already been spent by petitioner in jail with remission and the application for release in Form-A of petitioner is pending, then issue before us is to the effect as to whether we in the facts of the present case, proceed ahead and enlarge the petitioner on bail pending application for remission and release on purely humane considerations.
In our considered opinion in the matter of grant of bail in exercise of authority under Article 226 of the Constitution of India in post conviction cases discretion of grant of bail should be rarely exercised and in case such an authority is required to be exercised in the facts of the case then such order must reflect perfect balance between conflicting interests namely sanctity of individual liberty and the interest of society. Once conviction has been recorded and convict is undergoing sentence then bail is an exception to the said rule as there is requirement of shielding the society from the hazards of those committing crime and potentiality of repeating the crime. Each case for the purposes of bail has to be considered on its own merit.
Here bail cannot be accorded to petitioner for the simple reason that petitioner was declared as absconder and he was apprehended at Singapore Airport on 21.04.1995 pursuant to red-corner notice issued and thereafter order has been passed for extradition of the petitioner to India to undergo trial and thereafter he was convicted by Designated Judge (TADA) Kanpur for conspiracy to commit the murder of one L.D. Arora in the year 2008 and sentenced to imprisonment for life. The appeal preferred by the petitioner against his conviction was dismissed by the Apex Court and his conviction of life and sentence has been upheld and pursuant to the same his undergoing sentence of life imprisonment.
Here before us categorical stand has come in the affidavit of State that before his application for release could be considered, petitioner has been arrayed as an accused in criminal case bearing case crime no. 260 of 2015 under Section 364-A and 120 B IPC Police Station Kotwali District Allahabad. Petitioner in the said criminal case has been found to have hatched the conspiracy alongwith others at District Court Lucknow while he had come for his appearance in a case, wherein Pankaj Mahrotra was kidnapped from Allahabad and was recovered at Fatehpur and for the said crime Vikalp Srivastava @ Golu, Mahendra Yadav, Sachchidanand Yadav and Chandra Mohan Yadav have been arrested. Vikalp Srivastava is relative of petitioner and it has been disclosed that petitioner who is maternal uncle of accused Vikalp Srivastava has hatched the conspiracy of kidnapping for demand of Rs. 10 crores. In the said case sufficient evidence has been collected against Vikalp Srivastava @ Golu, Vinit Parihar, Sachchidanand, Mahendra Yadav, Chandra Mohan Yadav, Sankalp Srivastava, Sandeep Chaudhary and accordingly they have been charge-sheeted and as against petitioner, Bholu Yadav, Arun Singh and Kartikey Pandey investigation is pending and after collecting evidence Investigating Officer has requested Court to issue bailable warrant for production and said order has been passed by CJM Allahabad on 21.12.2015.
Once such is the factual situation that on one hand petitioner has moved application (Form-A) for release on the premises that he has spent more than 21 years period in jail with remission and on the other hand his complicity has been reflected in a criminal case bearing Case Crime No. 260 of 2015 under Section 364-A and 120 B IPC Police Station Kotwali district Allahabad wherein evidence has been collected to the effect that he hatched the conspiracy of kidnapping of Pankaj Mahendra for demanding ransom of Rs. 10 crores. Once such is the factual situation that has so emerged in the present case that during the pendency of the application for release, complicity of petitioner has been reflected therefore, in view of this, qua the request for grant of bail, in our considered opinion merely because petitioner has spent more than 21 years in jail with remission, same cannot be absolute ground for directing release of petitioner on bail during the pendency of the application in question.
Apex Court in the case of Siddharam Satlingappa Mhetre vs State Of Maharashtra and others 2011 (1) SCC 694 observed "Just as liberty is precious to individual, so is the society's interest in maintenance of peace, law and order. Both are equally important". Liberty of the petitioner may be precious but in the facts of the case that has so emerged after he had moved application for remission and release reflection of his complicity in kidnapping for ransom would overweigh the same, as societies interest is paramount.
We value the observations made in the case of Bachee Lal (Supra) as has already been noted in the earlier part of our judgment and even the said judgment mentions that solution to this problem is not by passing general order releasing prisoners en bloc, but by considering individual cases of prisoners for premature release in accordance with criteria laid down in relevant statutes and government orders at appropriate level. There is another side of the coin also as has been noted in the case of V. Sriharan @ Murugan (Supra) in paragraph 88 of the judgment , while considering the ray of hope for the convicts by observing that such ray of hope was much more for the victims, who were done to death and whose dependents were to suffer the aftermath with no solace left. Therefore, when the dreams of such victims in whatever manner and extent it was planned, with reference to oneself, his or her dependents and everyone surrounding him was demolished in an unmindful and in some cases in a diabolic manner in total violation of the Rule of law which is prevailing in an organized society, they cannot be heard to say only their rays of hope should prevail and kept intact. Concept of ray of hope should not come to the rescue of hardened, heartless offenders which if considered in their favour would result in misplaced sympathy and again will not be in the interest of society.
In view of this prayer for bail is turned down as per above observations already made. State as well as Union of India should take final decision on the the application so made on behalf of petitioner in Form-1 within the time frame already provided for.
With the above observations and direction present writ petition is disposed of.
Order Date :- 13.05.2016 Dhruv