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Peoples' Union of Civil Liberties and Anr. Vs. State of U.P. and Anr. (28.01.1983 - ALLHC) - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1983CriLJ1166
AppellantPeoples' Union of Civil Liberties and Anr.
RespondentState of U.P. and Anr.
Excerpt:
- - 1. the present criminal habeas corpus petition has been preferred by peoples' union of civil liberties allahabad branch as well as by sri rakesh dwivedi. with one or more sureties, in such amount and for such period as the state government may direct, to be of good behaviour and to observe such conditions as to residence or otherwise as the state government may impose. 3. section 8 provides for a remission of the whole or a part of the sentence by the state government and also provides that bonds may be taken sub-section (3) deals with the consequences of the failure to observe the conations of the bond. (3) the state government may on receipt of such application, release the prisoner on his entering into a bond with one or more sureties for such amount and for such period as the.....m. wahajuddin, j.1. the present criminal habeas corpus petition has been preferred by peoples' union of civil liberties allahabad branch as well as by sri rakesh dwivedi. advocate, high court. the prayer made in the application is that this court be pleased to pass ad interim mandamus directing the respondents to decide the representation made in october 1981 and received on 21-10-8! and/or pass such other orders as it deems fit. the application purports to have been preferred on behalf of the following 24 persons as laid below who were convicted in sessions trial no. 202 of 1969, state of uttar pradesh v. ghanshyam shukla under section 302, i.p.c. for committing murder and were sentenced to life imprisonment: (1) dwarika (2) ghanshyam shukla. (3) ram narain. (4) moharram, (5) ram nath,.....
Judgment:

M. Wahajuddin, J.

1. The present Criminal Habeas Corpus petition has been preferred by Peoples' Union of Civil Liberties Allahabad Branch as well as by Sri Rakesh Dwivedi. Advocate, High Court. The prayer made in the application is that this Court be pleased to pass ad interim mandamus directing the respondents to decide the representation made in October 1981 and received on 21-10-8! and/or pass such other orders as it deems fit. The application purports to have been preferred on behalf of the following 24 persons as laid below who were convicted in Sessions Trial No. 202 of 1969, State of Uttar Pradesh v. Ghanshyam Shukla under Section 302, I.P.C. for committing murder and were sentenced to life imprisonment: (1) Dwarika (2) Ghanshyam Shukla. (3) Ram Narain. (4) Moharram, (5) Ram Nath, (6) Suray Mani. (7) Gajral. (8) Sunian, (9) Bansraj, (10) Jagdamba, (11) Shankar. (12) Chandrika. (13) Subhag, (14) Lalji. (15) Basant. (16) Sahadat. (17) Tanse, (18) Gopal. (19) Shiv Piara. (20) Ram Briksha. (21) Gena, (22) Damodar, (23) Sukhari. (24) Tessur. Shyawi Narain Tiwari and two others were awarded death sentence which was later by superior court in appeal finally commuted to life imprisonment. It was maintained that the powers vested and conferred tinder Articles 161 and 92 of the Constitution and Sections 432 and 433 Cr. P.C. are not to be exercised arbitrarily. Stress was laid upon the principles and guidelines laid down in the case of Maru Ram v. Union of India : 1980CriLJ1440 . It is maintained that the persons on whose behalf the petition has been preferred are not ordinary criminals but are communist revolutionaries who believed in the ideology of nationalised movements. It is further urged that Marxists Naxalites no more pursue the policy of individual annihilation and there has been a change in their ideologies.

It was further urged that most of them have already served a long term of sentence and as regards their general conduct, etc. they have earned remission and their conduct has been satisfactory and in the circumstances their cases called for examination by the State Government and for prematur release. It is. also submitted that Section 433 Cr. P.C. as held in the case of Maru Ram (supra) is only prospective and not retrospective and conviction of the persons involved took place much before Section 433, Cr. P.C. was introduced. There is no legal bar to their premature release even before serving 14 years' period in jail. The stand is that the guidelines for premature release of convicts are contained in the U.P. Prisoners' Release on Probation Act of 1933 and the Jail Manual and in view of such provisions their cases for premature release can be considered even after serving 6 or 7 years in jail and there is no bar to considering their easts for release.

2. Section 8, U.P. Prisoners Releason probation Act. runs as follows:

Section 8. The State Government may remit the whole or a part of the sentence of a person sentenced to imprisonment for an offence under any Act. on such person entering into a bond. with one or more sureties, in such amount and for such period as the State Government may direct, to be of good behaviour and to observe such conditions as to residence or otherwise as the State Government may impose.

3. Section 8 provides for a remission of the whole or a part of the sentence by the State Government and also provides that bonds may be taken Sub-section (3) deals with the consequences of the failure to observe the conations of the bond. While Sub-section (3) no doubt deals with the cases where release is on remission of sentence, as a principle it would indicate that when there is a temporary release on a short term parole and there is overstay as a logical consequence that factor may also weigh adversely against the prisoner concerned although we agree with the submission that any single factor cannot necessarily be decisive factor and a number of facts and circumstances are to be taken into consideration in the matter of premature release.

4. Rule 4 and Rule 15 of the Rules framed under the U.P. Prisoners Release on Probation' Act, have again 'been referred to and we may lay down those rules:

Rule 4: Eligibility for release. 'Save 'the prisoners specified in Rule 3, any ?other prisoner who has served one third of his sentence of imprisonment or a total period of five years with remissions, whichever is less, may be released by the State Government on a licence.'

Rule 15. Remission of Sentence ' (1) An application for remission of sentence under Section 8 of the Act shall be made by the prisoner or by the person offering himself as his surety to the District Magistrate of the district in which he was convicted or where he was convicted in more than one district then to the District Magistrate of any such district.

(2) The District Magistrate shall, on a consideration of the antecedents of the prisoner, his conduct in jail and his environments and after consulting the Probation Officer where one is appointed, and such other authorities as he may think proper, within one month of the receipt of the application forward it to the State Government stating his opinion whether the prisoner is likely to abstain from crime and lead a peaceful life if released from prison.

(3) The State Government may on receipt of such application, release the prisoner on his entering into a bond with one or more sureties for such amount and for such period as the State Government may direct to be of good behaviour and to observe such conditions as the State Government may impose.

(4) If any prisoner released under Sub-section (1) of Section 8 of the Act fails to observe the conditions of the bond, the District Magistrate or the Sub-Divisional Magistrate, if authorised by the District Magistrate may take proceedings under Section 514, Cr. P.C. 1898 and report to the State Government for the cancellation of the order remitting the sentence passed under Sub-section (IV of Section 8 of the Act, and the State Government may pass such orders in accordance with Sub-section (3) of 8 as it may deem fit

4A. Chapter VI of the Jail Manual contains various paras concerning release of prisoners. We may refer to para 92 providing for check dates. The provisions cover convicts who have been sentenced to transportation for life or for a term of more than fourteen years or to rigorous imprisonment for a term exceeding in the aggregate fourteen years. Para 198 (a) of the U.P. Jail Manual contained in Chap. VIII provides for submission of nomination rolls of convicts under fourteen year rule through the Superintendent of Police and the District Magistrate of the District of conviction for the consideration and the orders of the State Government. As it is an important provision we may again quote the same.

198. (a) The superintendent shall submit through the Superintendent of Police and the District Magistrate of the district of conviction for the consideration and the orders of the State Government under Section 401 Cr. P.C. 1898, the nominal roll in duplicate of every life-convict and of every convict sentenced to more than fourteen years' imprisonment or transportation or to transportation and imprisonment for terms exceeding fourteen years in the aggregate, as soon as the term of imprisonment undergone by the convict together with any remissions earned by him under the rules amounts to fourteen years. Before forwarding the roll to the Government, the district magistrate shall, after consulting through the superintendent of police the district magistrate of the district of residence if such district of residence is other than the district of conviction, record on the roll

(1) his opinion whether there is any objection to the immediate release of the convict:

(2) if there is any objection to the immediate release of the convict, his suggestion as to the total period of imprisonment inclusive of remission which the convict should serve; and

(3) a brief account of the circumstances of the crime or crimes for which the convict was convicted.

In the case of convicts convicted in other States the provisions of para 206 shall also be observed,

(b) The case of a convict repatriated from the Andamans shall be submitted to the State Government under this para when two thirds of the actual period spent by him in the Andamans including remissions together with the period spent in Indian Jails including remissions, before deportation to and after repatriation from the Andamans, amounts to fourteen years. The special remission of one-third of sentence granted to repatriated convicts shall not be taken into account in calculating such period of fourteen years'.

(c) If the State. Government in any case direct that such convict shall be released after he has served a specified period of sentence or that his case should be resubmitted for consideration after a specified period, then the period should be counted from the date of commencement of the convict's sentence and the entire period served in the Andamans, shall be counted and in calculating the remissions earned by him the one-third remission earned by him in the Andamans should also be taken into account.

5. Paras 170 and 174 deal with the matter of remission. Para 174 provides for ordinary remissions and the subsequent Paras, lay down procedure etc. Para 186 of the Jail Manual provides for special remissions. There are certain other provisions also in the Jail Manual dealing with the matter but after a chart has been furnished by the State counsel with the help of records the position concerning the persons whose cases we are called upon to consider is very clear.

6. It may be proper to mention at this stage that the learned Counsel for the petitioners relied upon the observations of the Supreme Court in the case of Maru Ram (1980 Cri LJ 1440) (supra) to the effect that the powers concerning premature release are not to be exercised arbitrarily but are. to be exercised on basis of parity or at least that factor is a paramount factor which should weigh. It is urged that one Shyam Narain Tiwari. one of the convicts in the aforesaid Sessions trial played the leading role and it was he who organized crime as per observations of the Hon. High Court in the judgment in appeal yet he was released by the State Government after serving for 5-6 years only and on the grounds of parity such remission should be granted to other convicts of that case also. It would further appear that during the pendency of this petition we directed the petitioners' counsel to furnish fresh representation to the Government as it was being submitted that there is no trace of the earlier representation and before hearing in this writ petition' concluded State Government allowed the representation of seven persons and they were also released on remission of their sentence. It would he appropriate to lay down at this stage the exact position that has transpired up to the stage the hearing concluded.

7. Out of the aforesaid 24 persons the following persons have not surrendered and are at large. They are not in jail nor were they in jail when the petition was preferred;

(1) Ghanshyam Shukla, (2) Surya Mani. (3) Bansraj, (4) Shankar. (5) Chandrika. (6) Lalji, (7) Gana, (8) Suk-hari.

8. It is conceded that as provided under the relevant provisions in the aforesaid Manual and Act their cases for any premature release cannot he considered before such surrender. The application on behalf of the aforesaid 8 persons is therefore, not maintainable and is rejected.

9. The following seven persons have already been released during the hearing of this petition. (1) Dwarika. (2) Ram Nayan, (3) Moharram, (4) Jagdamba, (5) Subhag. (6) Ram Briksha, (7) Damo-dar. Their petition has thus become in-fructuous as they already stand released. We are now concerned with only the cases of the following nine persons: (1) Somai, (2) Shahadat, (31 Sheopoojan, (4) Ram pat, (5) Gajje. (5) Basant, (7.) Tanse. (8) Gopal (9) Tessur.

10. For a proper appreciation of their cases we may lay down the charts which have been furnished by the State counsel with the help of the record to assist us so that it may facilitate in comparing their cases with the other seven who have already been released by the State Government during hearing of this petition.

11. Before entering into the discussion of the individual cases involved it will be appropriate to lay down the principles laid down in various Supreme Court rulings relied upon in this case. The first case upon which much stress has been laid in this connection by the learned Counsel for the petitioners is the case of Harbans Singh v. State of U.P. : 1982CriLJ795 In that case what transpired was that there were three convicts under Section 302 I.P.C. who were all awarded death sentence. One of them was executed. The death sentence of the others was commuted to life imprisonment and a writ petition was moved on behalf of Harbans Singh bringing all these facts and circumstances to the notice of the Supreme Court and the Supreme Court held that it was a fit case that like the other whose sentence has been commuted to life imprisonment the sentence of Harbans Singh may also be so commuted. Any aggravating circumstance did not exist in this case.

The Supreme Court observed that while it could pass such an order out right as a matter of comity it would recommend to the president of India calling upon him to commute the death sentence to that of life imprisonment. The principle of parity was stressed in the case and the considerations that weighed were that the powers under the aforesaid Sections of Cr. P.C. as well as under the Constitution are not exercised arbitrarily. The case was distinguishable in one sense, namely, that the simple matter that was under the consideration in this case was whether the death sentence be commuted into life imprisonment and it was not a case involving any premature release in which a number of factors concerning each convicts are to be taken into consideration to apply the principle of parity and the rule that the powers are not to be exercised arbitrarily.

The most important case on these points is that of Maru Ram (1980 Cri LJ 1440) (SC) (supra) in which there were a large number of writs by different convicts. The principal question involved no doubt was the vires of Section 433A Cr. P.C. but while dealing with the various cases before the Supreme Court a number of other points were also considered. The Supreme Court, no doubt, held that Section 433A is intra vires and not ultra vires but it also held that it cannot operate retrospectively and its operation is only prospective. After holding so the Supreme Court entered into consideration of a number of other points. In para 57 page 2168 (of AIR SC): (Para 57 Page 1461 of Cri LJ) of Maru Ram's case (supra) it was held that nobody can be heard to contend that Articles 72 and 161 must yield to Section 433A, Cr. P.C. The Constitution is the Supreme lex and any legislation, even by Parliament. must bow before it.' The pardon jurisprudence was discussed in para 58. In para 63 of the judgment at page 2170 (of AIR SC) : Para 63 at page 1463 of Cri. L.J. the following observations made are important:

It necessarily follows that the power to pardon, grant remission and commutation, being of the greatest moment for the liberty of the citizen, cannot be a law unto itself but must be inferred by the finer canons of constitutionalism.

Relying upon the case of International Airport Authority : (1979)IILLJ217SC it has been observed further that it (Government) cannot act arbitrarily and enter into relationship with any person it likes at its sweet will, but its action must be in conformity with some principle which meets the lest of reason and relevance. 'It has been further observed that Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment; We may quote the very observations in this connection (At p. 1463 of 1980 Cri LJ):

It requires that State action must not be arbitrary but must be based on some rational and relevant principle which is non-discriminatory. It must not be guided by any extraneous or irrelevant considerations, because that would be denial of equality. The principle of reasonableness and rationality which is legally as well as philosophically an essential element of equality or non-arbitrariness is projected by Article 14 and it must characterise every State action, whether it be under authority of law or in exercise of executive power without making of law.

12. It was also observed whatever its activity, the Government is till the Government and will be subject to restraints, inherent in its position in a democratic society. In para 65 of the judgment contained on page 2171 : At p. 1464 of 1980 Cri LJ. the following observations made are again important as they relate concept of the expression pardon :

Pardon, using this expression in the amplest connotation ordains fair exercise, as we have indicated above. Political vendetta or party favouritism cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will vitiate the exercise. While constitutional power is beyond challenge, its actual exercise may still be vulnerable. Likewise, capricous criteria will void the exercise.

The provisions of the U.P. Prisoners' Release on Probation Act. 1938 were considered as a welcome measure. In paras 70, 71 and 72 of the judgment it was also observed that until some guidelines are framed by the Government the existing provisions contained in U.P. Prisoners' Release on Probation Act may serve as useful guidelines. In fact, in para 72 of the judgment the entire position has been summed up laying down that the powers are to be exercised by the State Government or the Central Government and the Governor and the President act on their advice and in case of pardons and premature release, etc., there should not be any arbitrariness and the action of the executive authority concerned should stand the test of reason. The other important pronouncement on the point is the case of Shri Niwas v Delhi Administration 0043/1982 : AIR1982SC1391 . In that case a number of detenus were involved and there were a number, of petitions. The first category was of prisoners below 20 years of age at the time of commission of offence. In their cases a recommendation for release was made by the Jail Superintendent on their completion of 10 years imprisonment and there was no adverse factor.

The only ground or non-consideration of their cases was non-ascertainment of their ages but material in that respect was available with the jail authority and in the judgment of the trial court. The Hon'ble Supreme Court in such situation directed the release of the prisoners forthwith by issuing mandamus. The other category of cases were of prisoners above 20 years of age at the time of commission of the offence and the total imprisonment of 14 years three months and 16 days were undergone and unexpired period was hardly 8 months and odd. The only ground for non-release was non-receipt of the report of the Probation Officer and a direction was given that they should be released forthwith on bail. The other category of the prisoners were those whose release was deferred on account of non-receipt of the report of the probation Officer and they had undergone total imprisonment of over 14 years and it was held that it was high time for consideration of their cases for premature release.

In case of certain other categories of the prisoners the report of the police, Probation Officer and the Jail Superintendent were favourable to the prisoners recommending their premature release. Their personal conduct in jail was also certified to be good and a direction was given for their release forthwith. In fact, as the case deals with different categories of prisoners we thought it proper to lay down all the 4 categories with all the factors taken into consideration and we may add that in the case of none of them there was any adverse factors whatsoever. This ruling is important from another angle also, namely, that the Court itself proceeded to examine the cases individually as to pass appropriate orders in that light.

13. In the case of Kasturi Lal v. State of J. & k. : [1980]3SCR1338 the observation made was that in case of grant of largess the discretion of Government was not unlimited and the Government action must satisfy test of reasonableness.

14. Having laid down the entire relevant law and the principles laid down in the aforesaid cases we may now approach the matter in the light of arguments advanced in this case. The first argument urged is that principal offender, namely, Shyam Narain Tiwari was released after serving about 6 years only or,so and when that is the position all others invloved in the murder case in question should have also been released on grounds of parity. We got the file relating to the premature release of Shyam Narain Tiwari and it was made available by the State Government for our perusal. On a perusal of the same we find that he was released on a totally different consideration, that' is. compassionate and humanitarian. There was medical certificate showing that his wife was suffering from dry pleurisy. It is argued that what to say of dry pleurisy even pulmonery tuberculosis if in earlier stages is now curable. It was further argued that the disease was not a fatal disease which could have weighed with the Government. We have given our anxious consideration to that aspect.

Even if the Government was not well justified or was wrong in giving that much seriousness to the dry pleurisy, any motives cannot be attributed when dry pleurisy also is nevertheless a serious ailment. It is not shown that any close family members of the present detenu whose cases we are considering is suffering with any serious ailment nor it is so alleged and when that is the position, the cases of present nine persons concerned cannot be considered at par with Shyam Narain Tiwari, We may also mention that it is not stated in the petition that the conduct of Shyam Narain Tiwari in jail was not good or was unsatisfactory or that there was any adverse report against him which could have weighed strongly against his premature release. In fact, the considerations that weighed in the case of Shyam Narain Tiwari were totally different. They were humanitarian and compassionate and when that happened to be the position the circumstance of release of Shyam Narain Tiwari when it was based on grounds of serious illness of his wife, cannot be construed in the light that his case was at par with any of the aforesaid nine persons.

15. The next line of the argument is that in any case the position of some of the nine persons whose cases we are considering as per chart already laid down is at par with those who have been released during the hearing of this petition.

16. We may first take up the case of Gajje at Serial No. 5 of the Second chart, it would be found that when we are examining his case as per jail report of March 1382 his conduct in jail is satisfactory. He is also not a previous convict in any other case. The report of the Probation Board's meeting on 14-7-1981 was also that he should not be given a parole for a period of one year. That one year's period has also expired and it is not pointed out to us that in between there has been any adverse factor which can weigh with the Probation Board. By the time we are pronouncing this judgment he has already served a sentence of a little less than 10 years without remission and with remission it may come to about 18i years which is a sufficiently long period. It would no doubt appear that he on release on probation overstayed for 10 days on one occasion and 46 days on another occasion which may be said to be a factor weighing against him but there are special circumstances also favourable to him. As observed earlier with remission he has already served about 18i years which is a long period and even the Probation Board simply recommended that he should not be given parole for one year only which period has expired. When that is the position we think that his premature release should have been directed.

17. In case of Jugdamba also though there was anniverstay of 2 months 22 days the period undergone with remission was long that is 17 years. The State Government directed his release as per chart No 1. In the like manner in case of Ram Briksha also of the first chart there was overstay of three days on one occasion and 35 days on another occasion, still the Government considering all other factors including the circumstance that he had served including remission about 17 years and odd directed his release. But we may also at the same time observe that overstay after release on probation is nevertheless an adverse factor and it is not that we minimise it.

18. Gopal has served about 191/2 years including remission as per second chart which is quite a long period, the probation Board as per its meeting on 14-7-1981 deferred the matter of release on any parole for one year only and that period has also expired. His conduct in jail is also satisfactory. His case is at par with most of detenus of chart No. 1 who have already been released by the State Government and when that is the position and there is no adverse factor against Gopal we feel that he is also entitled to premature release. True that he also on one occasion overstayed on parole but that overstay was for only 11 days and circumstances do arise when for any compelling reasons for and short, period one overstays and that would not weigh as an adverse factor in his case.

19. It has been urged on behalf of the petitioners that the case of Somai alias Suman and Sheopoojan also stand at par with some of the detenus who have already been released premature as per chart No. 1. It would however, appear that though their conduct in jail is satisfactory as per the jail report the Probation Board took a decision against them that they should not be released on parole for three years. It was submitted that such an adverse report of the Probation Board related only to release on parole but did not relate to any final premature release. Reliance has been placed by the learned Counsel for the petitioners upon the second Supplementary counter-affidavit dt. 13-10-1982 filed on behalf of the State Government. In para 10 it was stated that the Probation Board met on 17th to 20th. 21st and 22nd Sept. 1982 and after considering the cases of Somai alias Suman, one Sub-has and Sheopoojan recommended the release of the three persons and the matter is under consideration of the Government and there is every likelihood that they will be released.

It is submitted that when that is the position, the State Government taking its final decision in the matter should have directed their release also. Another supplementary counter-affidavit filed on behalf of the State Government in December 1982 is, however, important. It is stated in para 7 of that supplementary counter-affidavit that Somai overstayed parole for 148 days so did Sheopoojan. It is further stated that the State Government after considering all the facts and circumstances did not find their cases fit for premature release on the basis of clemencv and the position was thus later clarified. The State counsel also stated at the bar that there is a notification of the State Government providing for various informations to be furnished in the application seeking any premature release and one of such informations required is to the effect whether any release was granted an parole and if so, whether there was any overstay. We have no reasons to doubt the correctness of the statement made at bar though any copy of that notification could not be actually filed as such.

Release on probation and premature release are based on the principles of licence, clemency and pardon. After going through the relevant provisions of the U.P. Prisoners' Release on Probation Act and Jail Manual we are satisfied that whenever any release on parole is made bonds are obtained. Bonds have a sanctity. During the period of parole the detenu so released on parole is de jure in detention as a detenu though such detention is not in jail but by licence, on furnishing of bonds he is for a specified period allowed to, instead of remaining in jail, live freely. That being the position, it would amount to a gross abuse of such licence and release on parole for a specified period, if one out of his sweetwill on his own overstays particularly for a long period instead of surrendering on the expiry of period of parole. It was submitted on behalf of the petitioner that punishment is awarded on such overstays by. double forfeiture of remission while that may be the punishment under the Jail Manual it would not exhaust itself.

By the very logic of things overstay after expiry of the period of parole on ones own sweetwill would amount to a gross abuse of the licence given to the detenu and it may certainly weigh as an adverse factor, while considering the matter of exercise of clemency or pardon, and if such considerations weighed while considering the representation of any individual it cannot be urged that the State Government or the relevant authority is acting arbitrarily. It was argued that out of the persons already released also there were overstays. We, however, find that only in cases of Jagdamba and Ram Briksh of the first chart there was a long overstay of two months 22 days and 3 days and 35 days respectively and in case of all others the overstay was nominal, but as would appear from the scrutiny of the first chart Jagdamba had undergone a period of about 17 years; including remissions while Ram Briksh had undergone a period of a little more than 17 years including remission's, while the period undergone by Somai alias Suman and Sheopoojan including remission is much less.

Besides the, period of Overstay in cases of Somai alias Suman and Sheopoojan is much more that is almost 5 months. In the circumstances the cases of Somai alias Suman and Sheopoojan cannot be treated at par in all respect with those who have been released, The length of the period of overstay has its own importance; if any individual is by way of licence granted a parole for a specified period overstaying for a period of five months as to remain free without any licence though in reality a detenu and convict, required by the law to serve sentence, would amount to a gross abuse of such licence. In the circumstances we do not find the cases of Somai alias Suman and Sheopoojan suitable enough directing or recommending their release forthwith. Of course it is always open to the State Government to reconsider their cases for premature release after a reasonably interval and to also consider the explanation, if any, offered by these persons, to account for such long overstay.

20. As regards Shahadat we find that apart from such overstay of 148 days on an earlier occasion also he had overstayed and he is also a convict in other case. True, that some of the persons already released were also convicts in the other case but in their cases the adverse factor of long overstay and thereby an abuse of licence and parole did not exist so the case of Shahadat again cannot be said to be identical to those who have been released as to call for his release.

21. As regards Rampat. we find that there are a number of adverse factors in his case. He overstayed for 85 days. The Probation Board has given adverse report that he should not be released on parole up to 4-1-1984. His conduct in the jail is also unsatisfactory. That being the position, in his case also we decline to give any relief. We do not find any discrimination in his case. True that one of the adverse factors, namely, that of previous another conviction is common with some others who have been released, hut that is not the only adverse factor. As pointed out there are number of other adverse factors also. His is not a fit case in which the Court will direct or recommend any premature release forthwith.

22. As regards Basant. we find that the period undergone by him up to present including remission is hardly about 10 years. The Probation Board recommended that he should not be given any parole for two years and such recommendation was made on 14-7-1981 and the two years period has yet not expired. His conduct in jail is also unsatisfactory. We. therefore, do not find any* force in the prayer for making and recommendation to the State Government or directing any release, In his case also besides the one earlier conviction there are a number of other adverse factors.

23. The petitioner's counsel much stressed that Tanse is an aged man and he is 60 years old and has also served including remission for about 171/2 years and the Court may give special consideration to his case. We. however, find many adverse factors. He overstayed the period of parole for 4 months 8 days. The report of the Probation Board is adverse in the sense that on 14-7-1981 it recommended that he should not be granted parole for a period of 2 years which period has not expired and jail report about conduct shows that he is indisciplined. In these circumstances we do not find any force in the arguments of the petitioner's counsel for his premature release and we reject the prayer.

24. As regards Tessur the one factor which strongly weighs against him is of his indiscipline in jail. Indiscipline is a matter which cannot be lightly viewed and when the matter concerns exercise of clemency and premature release it is not possible to overlook that factor. In the circumstances his prayer also does not find favour with us and it is rejected.

25. After having dealt with the individual cases of those whose cases have not found favour with us we may also observe that their cases cannot be termed as identical with those who have, been released and any such considerations also would not weigh. In the result the writ petition of Ghanshyam Shukla. Surya Mani, Ransraj, Shankar, Chandrika Lalji, Gena and Sukhadi is dismissed as not maintainable because they have not surrendered to the jail custody.

26. The Writ Petitions of Dwarika, Ram Narain. Moharram. Jagdamba, Sub-hag. Ram Briksha and Damodar are infructuous as they have already been released by the State Government.

27. The Writ Petitions of Somai alias Suman, Sahadat, Sheopoojan, Rampat, Basant. Tanse and Tessur are dismissed but we hasten to add that this may not be interpreted to mean- that their cases do not deserve reconsideration for their premature release. Persons whose conduct in jail is not satisfactory at present may improve and get reformed so as to have good conduct, in like manner persons who have served a very long period in jail like Ram Pat on improving their conduct in jail may deserve reconsideration and there may be so many intervening factors, for example, any convincing explanation for overstay etc. so while we do not give any directive nor lay down any dead line, we may simply observe that their cases may be reconsidered by the State Government itself after a reasonable interval, say near about 6 months or so but we make it clear that we do not fix any definite period for such reconsideration.

28. The Writ Petition of Gajje and Gopal succeeds. While we could have outright directed their release, as a matter of propriety and decorum we recommend to the State Government to pass their order of release after obtaining bonds etc. if any. as required under the U.P. Prisoner's Release on Probation Act.


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