DAULAT Vs. STATE OF U P

JUDGEMENT

(1.) D. K. Trivedi, J. This writ petition under Article 226 of the Constitution of India was filed for a writ of certiorari to quash the impugned order dated 6-8-1996 whereby Form-A of the petitioner was rejected by the State of U. P and further a writ of mandamus commanding the op posite parties to release the petitioner forthwith.

(2.) THE petitioner was convicted on 21-7-1977 by the II Additional Sessions Judge, Lakhimpur Kheri under Sections 302,323,148,149, I. P. C. and was sentenced to undergo Imprisonment for Life in Ses sions Trial No. 357-A of 1976. His appeal was also dismissed by this Court. It is fur ther alleged that on 20-9-1996 the petitioner had completed 14 years, 6 months, 2 days of his imprisonment without remission and 18 years, 8 months 2 days with remission and, therefore, be came eligible for consideration for prema ture release on licence, under the provisions of U. P Prisoners Release on Probation Act. THE petitioner applied for premature release but his Form-A for premature release was rejected by the Government and, therefore, the petitioner aggrieved by the said order filed a writ petition before this Court (W. R No. 522 (HC) of 1994 ). THE District Magistrate, Superintendent of Police, Probation Officer, as well as the Probation Board recommended to the State Govern ment that the petitioner be released prematurely but the State Government rejected the recommendation of the aforesaid authorities on the ground that the petitioner in the year 1985, when he was released on Parole, over-stayed the period of Parole from 5-12-1985 to 1-1-1986. This Court while deciding the writ petition directed the State Government to reconsider the matter taking in view the fact that the period of parole and over-stay had taken place more than 10 years back and since then the conduct of the petitioner in Jail has been quite satisfactory and further in view of the contention of the District Authorities that the petitioner is likely to lead a peaceful life if, he is granted premature release. This Court while directing the State Govern ment to reconsider the case held that in rejection Form-A on the ground that he over-stayed the period of parole in 1985 is not proper ground specially when 10 years have already passed and the petitioner was also punished for his over-stay. In these circumstances, this Court directed the State Government to reconsider the pre mature release of the petitioner again on merit. Here, it may be pointed out that all the reports submitted by the authorities under the Act are in favour of the petitioner but even then this Court directed the State to reconsider the matter in the light of the observations made by the Court because it is within the domain of the State to direct release of any convict on licence under the Act. In compliance of the order passed by this Court, the State Government again reconsidered Form-A of the petitioner and again rejected the same by the impugned order. THE petitioner aggrieved by the said order filed the present writ petition before this Court. THE present writ petition came up for hearing before the Bench of this Court on 14-3-1997. THE Bench after hearing the parties counsel came to the conclusion that there was conflict of opinion between the two Division Benches of this Court regarding directing the release of convict whose Form-A has been rejected by the Government. THE Bench pointed out that in the case of Radha Raman v. State of U. P (WP. No. 143 (H/c)of 1996) relying on the judgment of the Hon'ble Supreme Court, took the view that this Court has no juris diction under Article 226 of the Constitu tion of India or under Section 482, Cr. P. C. to commute the sentence and release the prisoner. This Court can only direct the State Government to consider the release of a particular convict in accordance with law.

(3.) IT is settled law that the authority to whom the jurisdiction vests, is the com petent authority to pass orders and in these circumstances, the High Court will not exercise its jurisdiction to entertain a petition under Article 226 of Constitution of India and pass order of release on licence.