AFR
Court No. - 29
Case :- CRIMINAL MISC. WRIT PETITION No. - 7422 of 2018 Petitioner :- Pawan Kumar @ Tamatar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Santosh Tripathi,Deepak Kumar Jaiswal Counsel for Respondent :- G.A.
Hon'ble Govind Mathur,J. Hon'ble Ashok Kumar,J.
This petition for writ is preferred to question correctness of the order dated 20.11.2017 passed on behalf of the State of Uttar Pradesh rejecting the claim of the petitioner for release by license on conditions as per provisions of United Provinces Prisoners Release on Probation Act, 1938 (hereinafter referred to as "Act, 1938").
Under the order impugned, the State denied release of the petitioner by license looking to the gravity of the offence that was committed by him and for which he is undergoing life term imprisonment.
In brief, factual matrix of the case is that the petitioner was convicted for the offence under Section 302/34 IPC by the Court of learned Additional Sessions Judge No. 1, Allahabad in Sessions Trial No. 936 of 2000 and was awarded life term imprisonment with a fine of Rs. 1,000/- with default stipulation. The petitioner has already served sentence for a period of 20 years 8 months 4 days including remission as on 20.06.2017. In actual, he has served sentence for a period of 16 years 3 months and 9 days as on 20.06.2017. He submitted an application to the Authority competent in the prescribed proforma to have release by license as per provisions of Act, 1938. After submission of the application, the competent Authority sought opinion from the Senior Jail Superintendent, Probation Board and the Superintendent of Police concerned. The Senior Jail Superintendent in quite unambiguous terms observed that the jail conduct of the petitioner is quite satisfactory and he deserves to be released by license as per provisions of Act, 1938. While opining so, the Senior Jail Superintendent also observed that earlier too the petitioner availed release by license and he reported to the state custody after availing the same successfully. A Probation Officer too submitted a report which was placed before the Probation Board and as per the Probation Board, the conduct of the petitioner is satisfactory and his release by license shall not cause any adverse effect to the family of the victim and any segment of the Society. Under the Act, 1938, a complete scheme is provided for release by license and for that several aspects, including post conviction conduct and the chances to come out criminal tendencies are other relevant factors which are to be taken into consideration.
It is asserted that in the case in hand every authority including the Jail Superintendent, Probation Board and the Superintendent of Police have recommended for release by license but the State ignoring the same denied for release merely on the count of gravity of the crime that was committed more than 16 years back.
The Superintendent of Police, Kaushambi also recommended for release of the petitioner by license as per provisions of the Act, 1938. The Superintendent of Police in quite specific terms stated that though the convict is languishing himself in prison for committing a serious offence but his release would be appropriate to have adequate rehabilitation with main stream of the Society. The Superintendent of Police after availing necessary details from the Station House Officer, Police Station Kokhraj, District Kaushambi stated that there is no impediment, legal or otherwise, in releasing the petitioner by license as per provisions of Act, 1938. While giving details as per Appendix 'B', the Superintendent of Police noticed that the family of the victim is also living peacefully and no grudge now survives that may have any adverse effect by release of the petitioner. The family of the victim, as per the details given is involved in the profession of agriculture and is well settled. In the same report, it is also stated that the release of the petitioner is desirable as his old mother requires support and his young daughter is in marriageable age.
All the recommendations as notice above were placed before the competent Authority of the Government for consideration but the competent Authority instead of taking into consideration the opinion given, dismissed the request of the petitioner for release by license only on the count of the gravity of the crime for which he is undergoing sentence.
Heard Sri Santosh Tripathi, learned counsel for the petitioner, learned AGA for the respondents-State.
We are of considered opinion that the provisions of the Act, 1938 are meant with a thrust to implement reformative theory in criminal jurisprudence with a fundamental principle that it is the crime that is to be hatred and not the criminal. A criminal deserves to be rehabilitated in main stream of the society by various means and his release by license after undergoing long period of sentence is also made for that.
Looking to the intent of the Act, 1938, we are of considered opinion that the State before denying release by license as per provisions of Act, 1938 should have examined all relevant factors necessary for rehabilitation of a convict after undergoing sentence for a considerable period.
In the case in hand, as already stated, the petitioner has served a sentence for a period of more than 20 years with remission and about 17 years without remission. All the administrative authorities including the Board of Probation have recommended for release of the petitioner by license. The details provided by the authorities concerned appears to be founded on objective assessment of existing conditions. The State before taking any decision should have examined all these recommendations objectively and then should have formed opinion with regard to release of the petitioner by license. The denial in the instant matter for release by parole is apparently bad as that has not taken into consideration the relevant factors for invoking powers under the Act, 1938. The order impugned, as such, deserves to be quashed.
Accordingly, the writ petition is allowed. The order bearing No. 878/2017/2409/22-2-2017-17(116)/2016 dated 20.11.2017 passed by the Joint Secretary to the Government of Uttar Pradesh is quashed. The Government of Uttar Pradesh is directed to reconsider the case of the petitioner for release by license as per provisions of Act, 1938 by taking into consideration all the recommendations and opinions made available to it by different authorities. The Government of Uttar Pradesh while examining the case of the petitioner for release by license shall also keep in mind the intent of the Act, 1938.
The consideration in the terms as above is required to be made within a period of one month from the date the petitioner presents a certified copy of this order before the Superintendent, Central Jail who in turn shall forward the same to the Government of Uttar Pradesh.
No order so as to costs.
Order Date :- 27.3.2018/Shubham .
(Ashok Kumar,J.) (Govind Mathur,J.)