# Bachchey Lal v. State of U.P. and others

- **Citation:** (2004) 2 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-19
- **Case number:** Criminal Writ Petition No. 2357 of 1997
- **Bench:** Sushil Harkauli, Amar Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/bachchey-lal-v-state-of-u-p-and-others-40403
- **Pages:** 11

## Headnote

Constitution
of
India-
Article
161Exercise of power by Governor under
U.P. Prisoners Release on Probation Act-
Sec. 2-Jail Manual- Para 198- premature
release
of
prisoners
by
Governor-
Government
order-against
ambit
of
constitution relating to separation of
power- Arbitrary and malafide- Hence
struck down- letter petition by convict
from jail for release on ground that he
had served out actual jail term of more
than 14 years-criteria laid down for
disposal of applications for premature
release time bound-Directions issued by
State Government and I.G.-Prisoners to
submit report on all prisoners imprisoned
in various jails of U.P., who have
undergone
over
14
years
actual
imprisonment or 14 years together with
rescissions in cases of conviction by Trial
Court prior to 18.12.1978.

This
report
should
contain
all
the
information that was already furnished
in
the
charts
SCA
I
to
the
first
supplementary affidavit dated 1.3.04 and
SCA III to the second supplementary
affidavit dated 5.4.04, i.e. the name,
parentage and permanent address of
prisoner, S.T. No., provision under which
convicted, date of sentence by Sessions
Court, designation of Court, period of
sentence, status of appeal, status of
Form A, status of nominal role, final
order
of
State
Government
on
application for premature release (if
any). In addition the report should also
mention
age
of
prisoner,
present
condition of health if suffering from
serious illness. Briefly the main reason
for rejection of application for premature
release could also be mentioned, in cases
where it has been finally rejected. What
was the date when the prisoner had
undergone
14
years
actual
imprisonment, and the date when the
applications in Form A, and Nominal
Roles were forwarded. If the conviction
by the Sessions Judge is prior to
18.12.78, the date when the prisoner
had undergone 14 years together with
remissions
and
became
eligible
for
consideration for premature release, and
the actual date for forwarding the
applications in Form A and Nominal
Roles. Whether any action for premature
release taken under any other G.O. under
Article 161 or otherwise, fate of such
application.

Para 28
Case law discussed:
2002(1) JIC 342 (All)
AIR 1980 SC 2147
(2000) 8 SCC 437
(2000) Crl. L.J. 1471

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
460
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.4.2004

BEFORE
THE HON'BLE SUSHIL HARKAULI, J.
THE HON'BLE AMAR SARAN, J.

Criminal Writ Petition No. 2357 of 1997

Bachchey Lal

...Petitioner
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Petitioner:
Filed by Jail

Counsel for the Opposite Parties:
Sri Vijay Shanker Misra

Constitution
of
India-
Article
161Exercise of power by Governor under
U.P. Prisoners Release on Probation Act-
Sec. 2-Jail Manual- Para 198- premature
release
of
prisoners
by
Governor-
Government
order-against
ambit
of
constitution relating to separation of
power- Arbitrary and malafide- Hence
struck down- letter petition by convict
from jail for release on ground that he
had served out actual jail term of more
than 14 years-criteria laid down for
disposal of applications for premature
release time bound-Directions issued by
State Government and I.G.-Prisoners to
submit report on all prisoners imprisoned
in various jails of U.P., who have
undergone
over
14
years
actual
imprisonment or 14 years together with
rescissions in cases of conviction by Trial
Court prior to 18.12.1978.

This
report
should
contain
all
the
information that was already furnished
in
the
charts
SCA
I
to
the
first
supplementary affidavit dated 1.3.04 and
SCA III to the second supplementary
affidavit dated 5.4.04, i.e. the name,
parentage and permanent address of
prisoner, S.T. No., provision under which
convicted, date of sentence by Sessions
Court, designation of Court, period of
sentence, status of appeal, status of
Form A, status of nominal role, final
order
of
State
Government
on
application for premature release (if
any). In addition the report should also
mention
age
of
prisoner,
present
condition of health if suffering from
serious illness. Briefly the main reason
for rejection of application for premature
release could also be mentioned, in cases
where it has been finally rejected. What
was the date when the prisoner had
undergone
14
years
actual
imprisonment, and the date when the
applications in Form A, and Nominal
Roles were forwarded. If the conviction
by the Sessions Judge is prior to
18.12.78, the date when the prisoner
had undergone 14 years together with
remissions
and
became
eligible
for
consideration for premature release, and
the actual date for forwarding the
applications in Form A and Nominal
Roles. Whether any action for premature
release taken under any other G.O. under
Article 161 or otherwise, fate of such
application.

Para 28
Case law discussed:
2002(1) JIC 342 (All)
AIR 1980 SC 2147
(2000) 8 SCC 437
(2000) Crl. L.J. 1471

(Delivered by Hon'ble Sushil Harkauli, J.)

1. In these proceedings, which
commenced on a letter petition by a
convict from jail, we have been given
valuable and impartial assistance by the
learned Government Advocate Sri Vijay
Shanker Misra considering that the
petitioner is not represented and the issue
is of public importance.

The Issue
2. In Mirza Moihammad Husayn V.
State of U.P., (2002 (1) JIC 342 (All), a
Division Bench of this Court comprising
Hon'ble G.P. Mathur and Hon'ble S.K.
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461
Jain, JJ. struck down two G.Os., dated
11.1.2000 and 25.1.2000 issued by
Governor under Article 161 which inter
alia
directed
release
of
all
life
imprisonment male prisoners over 60
years in age, and female prisoners over 50
years, if they had undergone an actual
period of 3 years imprisonment on
26.1.2000. The main reasons for this
order were that irrespective of the
differences and seriousness of the cases,
release of all prisoners, over 60, in the
case males and 50 years in the case of
females, who had undergone only 3 years
sentenced, in cases of life imprisonment
by one stroke by a blanket order without
examining the individual cases amounted
to an arbitrary and mala fide exercise of
governor's Constitutional powers, as it set
a naught well considered judicial orders.

3. In paragraph 23, the Bench has
expressed its views thus "However by the
government order, the sentence awarded
to all the prisoners have been drastically
reduced and vi ritually set aside by one
stroke. This has not been done in favour
an individual or a small group of
prisoners but for all the convicts who
were undergoing imprisonment and were
confined in jail in the State of U.P. The
sentence had been imposed upon them as
a result of judgments delivered by Courts
including superior Courts, High Court and
Supreme
Court
on
sound
judicial
principles. Where pardon is granted to a
named individual or a small group of
persons having common or identical
features whose identity is known it is a
case of mercy as it only affects the
execution of their sentence. Where,
however a general order is passed whole
hog without identifying the persons and
its applicability being dependent entirely
upon the period of imprisonment suffered,
it cannot be termed as an act of mercy of
pardon, as in reality it impinges upon the
judicial orders passed by the Court
imposing sentences upon the convicts.
The release of prisoners under this order
does not take place on a particular fixed
day which would normally be the case in
a pardon but on different dates depending
upon when they fulfil the criteria fixed in
the order, namely undergoing of 2 or 3
years sentence. The power of pardon
under Article 161 cannot be exercised in a
manner which completely negates the
scheme of constitution regarding division
of
powers.
An
essential
function
performed by the judiciary cannot be
altered or modified or its effect taken
away in garb of power of pardon by the
Governor under Article 161 of the
Constitution. It is a clear misuse of power
which cannot be countenanced and must
be struck down

4. Apart from directing re-arrest of
the released accused nos. 17 to 19, under
the impugned Government order in Mirza
Mohammad's case, the Bench also
directed in paragraph 32, that 'in larger
public interest, the appropriate direction
which should be issued by this Court to
direct the State to put all such persons
back to prison who have been granted
premature release on the strength of the
impugned Government Orders."

5. Like the sweeping release, this
direction set in motion a flurry of re
arrests. Although many of the accused
were
rightly
rear
rested
who
had
undergone only a petty three years team
of imprisonment in a case of murder, and
had got their ages increased to 60 or 50
years if they were males or females, by
under hand means. However in regard to a
large number of the accused who had
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
462
infact undergone over 14 years actual
imprisonment, or were reaching an age of
80 years, steps were initiated to rearrest
such released prisoners, because of the
general directions in Mirza Mohammad's
case. Many of such prisoners having
financial and other resources, who had
undergone 14 years and had been re
arrested or whose re arrest were being
sought, approached the Hon'ble Supreme
Court. Orders were passed by the apex
Court on 5.9.03 and 30.1.04 staying re
arrests or directing release of prisoners
who had undergone 14 years sentence,
after calling for Jail Reports, in SLP (Crl.)
5020/02, SLP (Crl.) 5006, SLP (Crl.)
5013/02.,
W.P.
(Crl.)
7/2003,
SLP
(Crl.)1190/2003, Crl. M.P. and SLP (Crl.
)5018/02 SLP (Crl.) No. 5005/2002, SLP
(Crl.) 4259/2003 etc. and in the reported
decision in Vijay Bahadur V. State of
U.P., (2003) (2) JIC 457 (SC).

6. In SLP (Crl.)..../2001 connected
with Crl. M.P. No. 13434/2001 the apex
court passed an order on 7.1201 requiring
all those petitioners who had not been in
custody for than 14 years to surrender for
consideration of their SLPs. However the
Court made an exception in regard to one
petitioner Jaipal, s/o Ramji Lal) who was
shown to be aged 80 years.

7. Even in Mirza Mohmmad's case
at the end of paragraph 9, the Division
Bench headed by Hon'ble G.P. Mathur J.
distinguished the cases of convicts who
had undergone 14 years imprisonment
thus. "So legislative intent is that a person
sentenced to imprisonment for life should
not be released unless he has served
fourteen years.

8. It appears to us that such practices
of releasing accused en- masse by such
general Government Orders purportedly
issued by the Governor under Article 161
are resorted to when no regular releases
are being effected under the normal
provision
for
premature
release
of
prisoners contained in the Jail Manual and
Sections 432 and 433 of the Code of
Criminal Procedure, or under the U.P.
Prisoners Release on Probation Act, 1938
and other parallel provisions, where
prisoners are required to be released after
detailed examination of their cases, but
only prisoners with political clout are
managing to secure premature releases,
and jails have become over crowded .
Indeed these en masse releases at one
stoke, resemble the official practice of
hurried spending, without application of
mind to the merit of each cash in the last
few days or hours of the financial year
because the well considered steps needed
for earmarking budgetary expenditures
are not taken all the year long.

Approach needed.

9. It is thus clear that there is need to
strike a middle path and to avoid the two
extremes. Neither the release of prisoners
almost immediately after conviction by
the executive making a mockery of
judicial order, nor the other extreme of
allowing prisoners to languish in jails for
periods as long as 20 to 25 years meet our
approval. For some years the pairokars
and relations visit these prisoners in Jail,
but later they get embroild with the
problems of their own lives or become
disheartened and even stop visiting these
prisoners who become forgotten numbers,
bereft of hope. When the period of
incarceration of prisoner in Jail is unduly
prolonged, women and children are
exploited
and
families
ruined.
The
possibility of the prisoner eventually
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463
being re-integrated as a socially 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 measures of punishment
undergone by the offender, and whatever
deterrent message that a punishment
intended to convey would have been
received by the prisoner after his long
stint in jail, and indeed he has lost any
potentiality of committing a future crime.

10. But the solution to this problem
is not by passing general orders releasing
prisoners en bloc, but by individually
considering
cases
of
prisoners
for
premature release in accordance with
criteria laid down in relevant statutes and
government orders at appropriate levels
within a reasonable or prescribed time
frame.

Factual background of the case

11. While examining the case of a
convict Bachchey Lal who had sent a
letter petition from jail to this Court in
1997 stating that he had served out an
actual jail term of 14 years and 2 months
on 7.7.97, we had passed an order on
5.3.2004 calling for an affidavit from the
Superintendent, Central Jail Varanasi
indicating the present status of the said
convict. We also directed the Jail
Superintendent to disclose, as to how
many inmates are currently present in
Varanasi Central jail who had undergone
an actual period of detention as under
trials. This direction was issued because
we find that mostly prisoners with
economic or political resources alone
succeed in approaching this Court or the
apex court or Government for relief. It is
time that this Court throws open its doors
also to the voiceless and the respondent
resourceless.

12. In response the Deputy Jailor,
Central Jail, Varanasi filed an affidavit
dated 1.3.04 indicating that Bachchey Lal
had
been
convicted
under
sections
302/323/34 IPC by judgment dated
31.7.84 in S.T. No. 219 of 1983 by the
Additional Sessions Judge, Mirzapur. He
was detained in Jail from 9.5.83 and was
directed to be released on bail on
5.3.2000.

13. It was further pointed out that
there were 108 inmates in Central Jail,
Varanasi who had completed an actual
term of over 14 years. A copy of the list
of these inmates was also attached as
Annexure SCA 1.

14. The list makes starting reading.
On 24.2.04, (the date of the report), these
prisoners are shown incarcerated in prison
from periods ranging from 14 years 20
days to 26 years, 9 months and 19 days.
In the majority of cases they have
undergone jail terms from 17 to 20 years.
What is more shocking is that even the
appeals of 24 prisoners have not been
decided up to the present date. Although
most of the prisoners had been convicted
by judgments passed by the concerned
Sessions Judges after 1978, there were
about 46 prisoners who had been
convicted prior to 18.12.1978, and to
whose cases the interdict of section 433 A
of the Code of Criminal Procedure
requiring them to serve out a minimum
actual jail term of 14 years, without
remissions would not apply.

15.

A
second
supplementary
affidavit dated 5.4.04 has been filed by
the Deputy Jailor on 6.4.04. This affidavit
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
464
has annexed a Government order, SCA 1,
dated 6.2.1992 issued by the State
Government
in
exercise
of
powers
conferred under Article 161 of the
Constitution of India, fixing guidelines for
considering prayers for reducing the
sentences, commuting sentences and
considering mercy petitions and effecting
other remissions and modifications in
sentences awarded to convicted prisoners
lodged in various in the State.

16. Another annexure, SCA III, to
the
second
supplementary
affidavit,
mentions steps taken by the authorities for
consideration
oaf
the
prisoner's
application in Form 'A', (i.e. under the
Prisoners Release on Probation Act 1938,
hereafter the Probation Act), and nominal
roles under Paragraph 198 of the Jail
Manual.
The
second
Supplementary
affidavit points out that the cases of 24
prisoners for premature relief were not
considered at all because their appeals are
pending before the High Court. One
convict Raj Bahadur Singh son of Surya
Baksh Singh was released on 26.3.04, and
one prisoner Murli son of Bhaga has been
directed to be released by the State
Government for which the challan has
been sent. Out of the 108 convicted
prisoners the Forms 'A' of 32 prisoners is
pending consideration under the Probation
Act, and the nominal roles of 19 prisoners
forwarded under para 198 of the Jail
Manual and section 432 Cr.P.C., as the
prisoners have completed
14 years
imprisonment together with remissions
are pending consideration. The cases of
31 persons have been finally rejected by
the
State
Government
under
both
provisions. The dates when the Forms A,
and nominal roles were forwarded, and
various steps taken on these applications
at different stages are not mentioned.
Brief reasons for rejection of the cases are
also not mentioned in the Supplementary
Affidavit, or the concerned Annexure,
SCA III.

A third annexure, SCA II to the
second supplementary affidavit contains a
G.O.
dated
3.7.92 which disallows
consideration of the nominal roles under
the 14 years guideline for premature
release under paragraph 198 of the Jail
Manual, if their appeals against their
convictions are still pending. The G.O.
also refers to an earlier G.O. dated
22.12.75 which had already prohibited
consideration of Forms A under the
Prisoners Release on Probation Act of
those prisoners whose appeals have not
yet been decided.

17. In support of the Government
Orders the learned Government Advocate
has referred to the following lines in
paragraph 8 of the apex Court decision in
Ashok Kumar v. Union of India, reported
in AIR 1991 SC 1792 "The law governing
suspension, remission and commutation
of
sentence
is
both
statutory
and
constitutional. The stage for the exercise
of
this
power
generally
speaking
(emphasis ours) is post-judicial. I.e. ,
after the judicial process has come to an
end. The duty to judge and to award the
appropriate punishment to the guilty is a
judicial function thus ends the executive
function of giving effect to the Judicial
verdict
commences."
From
these
observations the learned GA would like
us to conclude that so long as the judicial
function survives, the executive has no
role to play for suspension, commutation,
remission of sentences, or even for grant
of pardon. This is regardless of whether
an original trial or an appeal is pending
before the High Court or the apex court,
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2 All] Bachchey Lal V. State of U.P. and others
465
and the time consumed for the disposal of
the trial or appeal is of no consequence.

Analysis of the G.Os. dated 3.7.92 and
22.12.75
barring
consideration
of
Nominal Roles and Forms A during
pendency of Appeal.

Significantly the observations in the
aforesaid G.O. retraining applications for
premature release are qualified by the
words, ' generally speaking'. If there is a
complete bar on the executive for
consideration of the cases of prisoners
who
have
undergone
the
statutory
minimum period of 14 years for grant of
any kind of remission, commutation or
probation
in
their
sentences,
the
restriction suffers from the danger of
falling foul of Articles 21 and 14 of the
Constitution of India. We find that
similarly places prisoners who have
undergone over 14 years in Jail, and
whose convictions have been confirmed
as their appeals have even been dismissed
or who have not preferred any appeals,
are entitled to have their cases for
premature release from jail considered
under various statutory or constitutional
provisions. This group of prisoners
whose applications in Form A and
nominal roles are not being considered
because of non disposal of their appeals
for reasons such as poverty and absence
of a pairokar, and inability of the judicial
system to dispose of appeals in a
reasonable length of time, in fact stand on
a worse footing. Such prisoners are
doubly prejudiced, first as their appeals
are not heard over prolonged periods.
Second, even their nominal roles and
applications in Form A are not forwarded
precluding consideration of their prayers
for premature relief long after the passage
of the statutory minimum period of 14
years.

18. Specifically so far as the U.P.
Prisoners Release on Probation Act 1938
is connected, it facilitates a loose form of
release from jail by licence under the
guardianship of a government officer or a
suitable person belonging to the same
religion of the prisoner, after the prisoner
has served out a prescribed minimum
terms, if from his antecedents and conduct
in prison, the State government is
satisfied that the prisoners is likely to
abstain from crime and lead a peaceable
life on release. The prisoner is still treated
in constructive custody and the period of
licensed release counts towards his
sentence. There is no sound reason here,
for denying a prisoner the right to have
his application for release in Form A
considered under this Act, until the final
disposal of his appeal. A faortiori there is
much greater reason for releasing a
prisoner on parole or licence under this
Act and for observing his conduct in jail
and outside, if his appeal has been
wrongly held up for no fault of the
prisoner over an inordinately long length
of time.

19. In this regard, the Constitutional
apex court bench has held in Maru Ram v.
Union of India, AIR 1980 SC 2147, in
paragraph 69, "We, heart warmingly
observe experiments in open jails, filled
by lifers liberal paroles and probations,
generosity of juvenile justice and licensed
release or freedom under leash a law. The
Uttar Pradesh Prisoners Release on
Probation Act, 1938. We cannot view
without gloom the reversion to the
sadistic superstition that the longer a life
convict is kept in a cage the surer will be
his redemption. It is our considered view
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
466
that beyond an optimum point of say,
eight years we mean no fixed formula
prison detention benumbs and makes
nervous wreck or unmitigated brute of a
prisoner.'

20. Likewise in paragraph 72 (11)
the same law report again reiterates. "The
U.P. Prisoners' Release on Probation
Act, 1938, enabling limited enlargement
under licence will be effective as
legislatively sanctioned imprisonment of a
loose and liberal type and such licensed
enlargement will be reckoned for the
purpose of the 14 year duration. Similar
other statutes and rules will enjoy similar
efficacy. "

21. More recently in Dadu V. State
of Maharashtra, (2000) 8 SCC 437,
where the Constitutional validity of
section 32-A of the Narcotics, Drugs and
Psychotropic
Substances
Act
which
prohibits
suspension,
remission
or
commutation of sentences during the
pendency of a appeal under that Act was
assailed, an argument was raised by a
petitioner that even his right to be
released on parole had been taken away.
The apex court rejected this contention in
paragraphs 6 to 11 of the report holding
that there was no suspension of sentence
when a prisoner was directed to be
released on parole, which could always be
granted in accordance with statutes, rules,
jail
manual
or
government
orders.
Paragraphs 10 and 11 in Dadu's case read
as follows:
"10. Again in State of Haryana v.
Nauratta Singh was held by this Court as
under. (SCC p. 520 para 14)
'Parole relates to executive action taken
after the door has been closed on a
convict. During parole period there is no
suspension of sentence but the sentence is
actually continuing to run during that
period also.
11. It is thus clear that parole did not
amount to the suspension, remission or
commutation of sentences which could be
withheld under the garb of Section 32-A
of the Act. Notwithstanding the provisions
of the offending section, a convict is
entitled to parole, subject however, to the
conditions governing the grant of it under
the statute, if any the jail manual or the
government instructions. The writ Petition
No. 169 of 1999 apparently appears to be
misconceived and filed in a hurry without
approaching the appropriate authority for
the grant of relief in accordance with the
jail manual applicable in the matter."

In Poonam Lata vs. M.L. Wadhawan,
a (1987) 3 SCC, it has been observed in
paragraph 8:

"The grant of parole is essentially an
executive function and instances of
release of detenus on parole were literally
unknown until this Court and some of the
High Court in India in recent years made
orders
of
release
on
parole
on
humanitarian considerations. Historically
'parole' is a concept known to military
law and denotes release of a prisoner of
war on promise to return. Parole has
become an integral part of the English
and American systems of criminal justice
intertwined with the evolution of changing
attitudes of the society towards crime and
criminals. As a consequence of the
introduction of parole into the penal
system, all fixed-terms sentences of
imprisonment of above 18 months are
subject to release on licence, that is,
parole after a third of the period of
sentence has been served. In those
countries, parole is taken as an act of
grace and not as a matter of right and the
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2 All] Bachchey Lal V. State of U.P. and others
467
convict prisoner may be released on
condition that he abides by the promise. It
is a provisional release from confinement
but is deemed to be a part of the
imprisonment. Release on parole is a
wing of the reformative process and is
expected to provide opportunity to the
prisoner to transform himself into a useful
citizen. Parole is thus a grant of partial
liberty of lessening of restrictions to a
convict prisoner, but release on parole
does not change the status of the prisoner.
Rules are framed providing supervision
by parole authorities of the convicts
released on parole and in case of failure
to perform the promise, the convict
released
on
parole
is
directed
to
surrender to custody."

22. From these passages and
statement of the legal position we think
that the State Government was not
justified in prohibiting acceptance of
applications in Form 'A' under the U.P.
Prisoners Release on Probation Act, 1938
during the pendency of Criminal appeals
by the G.O. dated 22.12.75, as release on
licence or parole on controlled conditions
with a promise by the prisoner to return to
jail if so required appear to be the most
appropriate course of action especially
when the Court was not in a position to
dispose of the prisoner's appeal in any
rational period of time, and the prisoner
had undergone the prescribed period of
imprisonment,
i.e.
14
years
with
remissions
in
case
of
trial
court
convictions prior to 18.12.1978 and actual
14 years imprisonment in cases to which
section 433- Cr.P.C. applied, (that is post
18.12.1978 convictions), which entitled
him to move an application under Form
'A'.

Suggestion to State Government to relax
G.O.
dated
22.12.75
and
accept
applications in Form A.

23. We therefore recommend to the
State Government to relax the operation
of the G.O. dated 22.12.75 and to accept
applications for release on licence, under
the U.P. Prisoner's Release on Probation
Act, 1938 during the pendency of their
criminal appeals, if the prisoner is
otherwise eligible to prefer the same in
accordance with prescribed conditions.

Direction to the Registry to furnish
details of appeals and prisoners who
have not been granted bail during the
pendency of appeal.

24. The Registrar-General is also
directed to provide within one month, in
respect of all criminal appeals in which
the accused have not secured bail or have
been
re-arrested
subsequently,
with
reason for re-arrest, details of the year
wise break up of pending criminal
appeals, offences for which convicted,
number of appellants who are in jail,
number of appeals which have been
preferred from jail, and number of
represented appeals, reasons for delay in
disposal of appeal, such as difficulties in
preparation of paper books, or nonappearance by counsel etc. This direction
is necessary because it is absolutely
imperative, and the mandate of Article 21
of the Constitution of India, that appeals
where prisoners are in jail, must be
decided first by this Court, and it is of no
consequence that there are thousands of
earlier appeals pending since 1981, but
where the appellants have been released
on bail.

Alternative recommendation to State
Government to move application under
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
468
section 389 Cr.P.C. for permitting bail in
cases where accused are in jail for over
14 years, and appeals still undisposed.

25. In the alternative we also
recommend to the Government Advocate
to move applications after consultation
with the State Government, under section
389 Cr.P.C. requesting the High Court to
consider enlarging such appellants on bail
who continue to languish in jail even after
14 years or other sufficiently long period
of actual imprisonment, if efforts to get
their appeals decided in a few months do
not bear fruit.

Direction to State Government and IG,
Prisons to produce records of two
prisoners released by State government
and 31 prisoners whose Nominal Roles
and Applications in Form 'A' finally
rejected.

26. It is strange that inspite of
several
prisoners
having
undergone
periods vastly exceeding 14 years actual
imprisonment, only two prisoners out of
the 108, have been directed to be released
and cases of 31 prisoners have been
finally rejected. It would therefore be
desirable to call for the entire records of
the aforesaid 2 prisoners, Murli son of
Bhagga, and Raj Bahadur Singh son of
Surya Baksh Singh whose release have
been ordered, and 31 prisoners whose
cases have finally been rejected, in regard
to consideration of their Forms A,
nominal roles under the U.P. Prisoners
Release on Probation Act, Jail Manual,
sections 432 and 433 Cr.P.C. and any
other
statutory
or
Constitutional
provisions. These records should disclose
the consideration of their cases for
premature release at different levels, such
as at the levels of Jailor, D.M., Probation
Officer,
S.P./SSP,
IG,
Prisons,
the
relevant district or State level committees
and State Government as may be
applicable under the relevant provisions
wherein their cases have been considered,
and the dates when the cases have been
received by the jailor and forwarded to
the different appropriate levels. The State
Government and Director General of
Prisons is therefore being directed to
produce the complete records of the two
prisoners who have been released and 31
prisoners whose prayer for premature
release has finally been rejected by the
State Government within a period of two
months.

Direction to State Government and IG,
Prisons to ensure disposal of all pending
applications
in
respect
of
the
19
prisoners
whose
nominal
roles
are
pending, and 32 prisoners whose Forms
'A' are pending in Varanasi Central Jail
within a period of 3 months.

27. This direction has become
imperative, in view of the inexcusably
long period of time that has already
expired for consideration of the cases of
these prisoners.

Criteria for disposal of applications for
premature relief

Apart from the criteria for disposal
mentioned in statutory provisions such as
section 2 of the U.P. Prisoners Release on
Probation Act, para 198 of the Jail
Manual, and in the G.O.s or guidelines
issued
under
Article
161
of
the
Constitution of India or otherwise, the
apex Court has approved certain criteria
for premature release adopted by State
Governments. In para 5 of Laxman
Naskar V. Union of India, 2000 Cri.L.J.
1471 the following points for considering
http://www.allahabadhighcourt.nic.in
2 All] Bachchey Lal V. State of U.P. and others
469
applications for premature release have
been approved:

"(i) Whether the offence is an individual
act or crime without affecting the society
at large;
(ii) Whether there is any chance of future
recurrence of committing crime;
(iii) Whether the convict has lost his
potentiality in committing crime;
(iv) Whether there is any fruitful purpose
of confining this convict any more;
(v) Socio-economic condition of the
convict's family."

State government and IG, Prisons to
submit
report
on
all
prisoners
imprisoned in different jails in Uttar
Pradesh who have undergone over 14
years actual imprisonment, or 14 years
together with remissions in cases of
conviction by the trial court prior to
18.12.78 within 3 months.

28. This report should contain all the
information that was already furnished in
the
charts
SCA
I
to
the
first
supplementary affidavit dated 1.3.04 and
SCA III to the second supplementary
affidavit dated 5.4.04, i.e. the name,
parentage and permanent address of
prisoner, S.T. No., provision under which
convicted, date of sentence by Sessions
Court, designation of Court, period of
sentence, status of appeal, status of Form
A, status of nominal role, final order of
State Government on application for
premature release (if any). In addition the
report should also mention age of
prisoner, present condition of health if
suffering from serious illness. Briefly the
main reason for rejection of application
for premature release could also be
mentioned, in cases where it has been
finally rejected. What was the date when
the prisoner had undergone 14 years
actual imprisonment, and the date when
the applications in Form A, and Nominal
Roles were forwarded. If the conviction
by the Sessions Judge is prior to 18.12.78,
the date when the prisoner had undergone
14 years together with remissions and
became eligible for consideration for
premature release, and the actual date for
forwarding the applications in Form A
and Nominal Roles. Whether any action
for premature release taken under any
other
G.O.
under
Article
161
or
otherwise, fate of such application.

Superintendent Central Jail, Varanasi to
submit report in one month on all life
convict and other prisoners who have not
been able to file appeals against their
convictions and the reasons for nonfiling of appeals.

29. In those cases where no appeal
was filed, reasons for non-filing of the
appeal may be given. The last direction is
necessary because we find that in the
present case of Bacchey Lal, the filing of
the appeal was unduly delayed by 10
years,
for
which
the
unrepresented
prisoner could not be faulted as he was in
jail.

Chairman Legal Services Authority will
submit a report through the Secretary of
the Authority within one month on steps
to be taken for assisting prisoners for
filing appeals, streamling procedures for
filing
appeals
and
for
aquainting
prisoners about prison rights including
procedure for premature release under
jail manual and other provisions

30. A copy of this order will be sent
forthwith by the Registrar General to the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
470
Chairman Legal Services Authority, U.P.
for compliance.

State Government and IG, Prisons to
report on number of seriously ill
prisoners in jail, and steps taken for
their release under paragraphs 195, 196
and 197 of the Jail manual and other
provisions, within 3 months.

31. List for further hearing on
21.5.2004.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.4.2004

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. writ Petition No. 17415 of 1992

Raghunandan Pandey
...Petitioner
Versus
District Inspector of Schools, Basti and
others

 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Chandra
Sri S.P. Misra

Counsel for the Respondents:
Sri S.K. Tripathi,
Sri Ashraf Ali
Sri R.C. Tiwari
Sri C.P. Gupta, S.C.
S.C.

Compassionate appointment on class 4th
post-once offered by the Department
and
accepted
by
the
claimant-the
purpose of compassionate appointment
exhausted- promotional post can not be
claimed
by
such
candidate-
the
promotion of petitioner on the post of
clerk-cum-librarian has been cancelled
without affording any opportunity- and
the promotion of the claimant on the
post in question- held- illegal.

It is well settled that appointment on
compassionate ground is given only to
tide away the sudden financial crisis
which
the
family
of
the
deceased
employee faces because of the sudden
death of the sole bread earner of the
family. Thus once a member of the family
of the deceased employee is given
appointment on such ground, which is
also accepted by the claimant, the
reason for giving such appointment,
which is for support to the family of the
deceased
employee,
does
not
exist
thereafter. The appointment under the
Dying in Harness Rules cannot be made
an
alternate
source
or
mode
of
appointment. The purpose for which the
appointment
had
been
given
to
Respondent no. 5, had already been
exhausted
on
21.1.1992
when
he
accepted such appointment on a class IV
post. The Respondent no. 5 would
thereafter
be
entitled
for
being
appointed or promoted on a higher post
only in due course.

 Para 6

Further it is not disputed that the
impugned
order
had
been
passed
without affording any opportunity to the
petitioner. The rights of the petitioner
had already accrued in his favour once
he had been granted promotion on a
class
III
post
vide
order
dated
13.1.1992. If the respondents were to
pass an order to the detriment of the
petitioner, it is well settled law that the
petitioner would necessarily be required
to be given an opportunity of hearing,
which has admittedly not been given in
the present case. As such the impugned
order is liable to be quashed on this
ground also.

 Para 8
Case law discussed:
(2000) 3 UPLBEC 2522

(Delivered by Hon'ble Vineet Saran, J.)

1. Petitioner was appointed on a
class IV post on 1.12.1969 in the college