# Rinku @ Brijendra (In Jail) v. State of U.P. & Ors. 252 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2021) 3 ILRA 251
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-05
- **Case number:** Criminal Misc. Writ Petition No. 812 of 2021
- **Bench:** Surya Prakash Kesarwani, Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rinku-brijendra-in-jail-v-state-of-u-p-ors-252-indian-law-reports-allahabad-46926
- **Pages:** 5

## Headnote

(A) Criminal law - Parole - Code of
Criminal Procedure, 1973 - Section
432(5) - procedure for suspension of
sentences
and
the
conditions
on
which objections presented and dealt
with
-
The
U.P.
(Suspension
of
Sentence of Prisoners) Rules 2007 -
Rule 3 - Power to suspend sentence,
Rule 4 - Extension of the period of
suspension after two months, Rule 5 -
Procedure for suspension of sentence,
Rule 6 - Conditions for suspension of
sentence , Indian Penal Code, 1860 -
Sections 148, 302/149 , Arms Act,
1959 - Sections 29 & 30 - writ
petition not the proper remedy for the
purposes of parole - remedy lies
before the competent authority under
Rule 3 of the U.P. (Suspension of
sentence of prisoners) Rules 2007 as
amended in the year 2013.(Para - 4)

Petition
filed
by
the
petitioner
for
commanding the respondents to grant
parole to the petitioner for at least for one
month, so that the petitioner may get
medically examined to his old aged, ail
mother, who is suffering from heart disease
and is confined to bed .(Para 2,3)

HELD:- A complete procedure has been
provided
under
the
Rules
2007
for
suspension of sentence by the competent
authority. Therefore, writ petition under
Article 226 of the Constitution of India is
not
the
proper
remedy
for
aforesaid
purpose. (Para - 14)

Criminal Misc. Writ Petition dismissed. (E-6)

## Text

3 All. Rinku @ Brijendra Vs. State of U.P. & Ors.
251
Vs. State of Punjab and Others [2014 (85)
ACC 313] Hon'ble Apex Court has also
examined the scope and meaning of word
"evidence". In which Hon'ble Apex Court
held that:-

"99. Thus, we hold that though
only a prima facie case is to be established
from the evidence led before the Court not
necessarily tested on the anvil of CrossExamination, it requires much stronger
evidence than mere probability of his
complicity. The test that has to be applied is
one which is more than prima facie case as
exercised at the time of framing of charge, but
short of satisfaction to an extent that the
evidence, if goes unrebutted, would lead to
conviction. In the absence of such satisfaction,
the Court should refrain from exercising,
power under section 319, Cr.P.C. In section
319, Cr.P.C. the purpose of providing if 'it
appears from the evidence that any person not
being accused has committed any offence' is
clear from the words "for which such person
could be tried together with the accused." The
words used are not 'for which such person
could be convicted'. There is, therefore, no
scope for the Court acting under section 319,
Cr.P.C. to form any opinion as to the guilt of
the accused."

11. It is pertinent to mention that in this
case neither the complainant nor the public
prosecutor has moved the application under
section 319 Cr.P.C. regarding summoning of
the revisionist. Learned trial court suo motu
summon the revisionist to face the trial under
sections 306, 120-B I.P.C. Now the question
arises that whether without recording the
evidence and only by putting two questions to
the alleged witness, Om Prakash, and after
recording the oral reply, learned trial court is
competent to summon the revisionist to face
trial. Under Section 165 of Evidence Act, the
trial court have ample power to put question in
order to discover relevant fact. But power under
section 165 of Evidence Act is permissible only
when the evidence as deposed by witness
recorded in the court. Oral statement of the
witness does not come into purview of the
evidence. So only on the basis of oral
examination of the witness, learned trial court
hypothetically only on the basis of assumption
and presumption summon the revisionist under
section 319 Cr.P.C. Since neither the chiefexamination nor the cross-examination of the
witness was recorded by the learned trial court,
so only on the basis of query by learned trial
court or only on the basis of oral submission of
witness wrongly summoned the revisionist
under section 319 Cr.P.C., which is not
permissible in the eye of law. Order of the
learned trial court is totally based on surmises
and conjectures. Learned trial court has
committed irregularity and illegality, so in these
circumstances, revision is hereby allowed and
impugned order dated 28.8.2019 passed by
learned Additional District Judge, Court No. 3,
Ballia is hereby quashed.

12. Revision is allowed.

13. A copy of this order be
communicated to the lower court for necessary
compliance.
----------
(2021)03ILR A251
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 812 of 2021

Rinku @ Brijendra ...Petitioner (In Jail)
Versus
State of U.P. & Ors. ...Respondents
252 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sri Sanjay Kumar Singh, Sri Sudheer Rana

Counsel for the Respondents:
A.G.A.

(A) Criminal law - Parole - Code of
Criminal Procedure, 1973 - Section
432(5) - procedure for suspension of
sentences
and
the
conditions
on
which objections presented and dealt
with
-
The
U.P.
(Suspension
of
Sentence of Prisoners) Rules 2007 -
Rule 3 - Power to suspend sentence,
Rule 4 - Extension of the period of
suspension after two months, Rule 5 -
Procedure for suspension of sentence,
Rule 6 - Conditions for suspension of
sentence , Indian Penal Code, 1860 -
Sections 148, 302/149 , Arms Act,
1959 - Sections 29 & 30 - writ
petition not the proper remedy for the
purposes of parole - remedy lies
before the competent authority under
Rule 3 of the U.P. (Suspension of
sentence of prisoners) Rules 2007 as
amended in the year 2013.(Para - 4)

Petition
filed
by
the
petitioner
for
commanding the respondents to grant
parole to the petitioner for at least for one
month, so that the petitioner may get
medically examined to his old aged, ail
mother, who is suffering from heart disease
and is confined to bed .(Para 2,3)

HELD:- A complete procedure has been
provided
under
the
Rules
2007
for
suspension of sentence by the competent
authority. Therefore, writ petition under
Article 226 of the Constitution of India is
not
the
proper
remedy
for
aforesaid
purpose. (Para - 14)

Criminal Misc. Writ Petition dismissed. (E-6)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
& Hon'ble Shamim Ahmed, J.)

1. Heard Sri Sudheer Rana, learned
counsel for the petitioner and Smt. Manju
Thakur, learned A.G.A. for the State -
respondents.

2. This writ petition has been filed
praying for the following relief:

"A- Issue a writ, order or
direction in the nature of mandamus
commanding the respondents to grant
parole to the petitioner in connection with
Sessions Trial No. Sessions Trial No.300 of
2007, and 303 of 2007, Case Crime no.314
of 2007, 317 of 2007, under sections 148,
302/149 of IPC and section 29, 30 of Arms
Act, police station - Sisolar, District -
Hamirpur, in connection with judgment
and order passed by Additional District
and Sessions Judge/Special Judge, DAA,
Hamirpur, in the light of Government order
no.
472-JL-22-3.07-21-G-89,
and
the
perusal
of
sub-para
3-(1)(K),
dated
15.02.2007, for at least for one month, so
that the petitioner may get medically
examined to his old aged, ail mother, who
is suffering from heart disease and is
confined to bed."

3. Learned counsel for the petitioner
submits that the petitioner may be released
on parole for the purposes of medical
treatment of his old mother who is
suffering from heart disease.

4. Learned A.G.A. has raised a
preliminary objection as to maintainability
of the writ petition on the ground that writ
petition is not the proper remedy for the
purposes of parole rather the remedy lies
before the competent authority under Rule
3 of the U.P. (Suspension of sentence of
prisoners) Rules 2007 (hereinafter referred
3 All. Rinku @ Brijendra Vs. State of U.P. & Ors.
253
to as "the Rules 2007") as amended in the
year 2013.

5. We have carefully considered the
submissions of learned counsels for the
parties and we find much force in the
submission of learned A.G.A.

6. Undisputedly, the petitioner is a
convict in Session Trial No.300 of 2007
and 303 of 2007 (Case Crime No.314 of
2007 and 317 of 2007) under Sections 148,
302/149 I.P.C. and Sections 29 & 30 of
Arms Act, Police Station - Sisolar, District
- Hamirpur.

7. The U.P. (Suspension of Sentence
of Prisoners) Rules 2007, framed under sub
Section 5 of Section 432 of Cr.P.C. deals
with the procedure for suspension of
sentences and the conditions on which
objections presented and dealt with.

8. Rules 3, 4, 5 and 6 of the Rules
2007 as amended by the Ist Amendment
Rules 2012 provide as under :-

"3. Power to suspend sentence.-

(1) The Government may suspend
the sentences of a prisoner up to one month
on the following grounds :

(a) illness of prisoner's parents,
husband or wife, son, daughter, brother or
sister, or

(b) death of any one of the
relative mentioned in sub-clause (a), or

(c) marriage of son, daughter,
brother or sister;

(d) for sowing or harvesting of
agricultural crops on his own land
provided no other alternative arrangement
for the same is available;

(e) for the essential repair of his
house
provided
no
other
alternative
arrangement for the same is available.

2. The Government may in
special circumstances extend the period of
suspension of sentence referred to in subrules (1) for a period not exceeding one
month.

3. The District Magistrate of the
district to which prisoner belongs, may
suspend the sentence of a prisoner upto 72
hours on the following grounds:

(a) Death of mother, father,
husband or wife, son, daughter, brother or
sister;

(b) Marriage of son, daughter,
brother or sister."

"4. Extension of the period of
suspension after two months. - (1) The
period of suspension of a sentence of a
prisoner beyond two months may in
exceptional circumstances, be increased
with prior approval of the Governor.

(2) The total period of suspension
of sentence of a prisoner may ordinarily
not
exceed
twelve
months,
but
in
exceptional circumstances the period of
suspension of sentences of a prisoner may
exceed twelve months with prior approval
of the Governor.

5. Procedure for suspension of
sentence. - (1) The application for
suspension of sentences may be submitted
in prescribed Form-I by the prisoner
himself or by a member of the family or a
close relative of the prisoner in duplicate
through the Superintendents of the Jail
concerned, who shall forward one copy of
it along with his comments and Jail reports
in Form II to the Government and another
copy to the District Magistrate concerned.

(2) The Government may call for
the report from the District Magistrate and
Superintendent of Police concerned on the
desirability of the suspensions of the
sentence of the prisoner, who after
conducting
such
enquiry
as
deemed
254 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary shall submit their report in Form
III within 30 days to the Government. In
appropriate cases Government may call for
the opinion under sub-section (2) of Section
432 of the Code of Criminal Procedure,
1973.

(3) The Government shall call
for report from the Superintendent of the
Jail concerned regarding age, condition
of health, sentence and conduct of the
prisoner in Jail.

(4)
No
prisoner
shall
be
released on suspension of a sentence
unless he furnishes sureties along with
personal bond to the satisfaction of the
District Magistrate to the effect that he
shall surrender in Jail concerned on
expiry of the period of suspension of
sentence and shall maintain peace and
good conduct during the period of
suspension of sentence.

6. Conditions for suspension of
sentence. -

(1) Suspension of sentence shall
not be granted to the prisoner convicted
for life imprisonment for an offence of
murder unless the prisoner has served
minimum three years sentence without
remission, and for those convicted for an
offence of dacoity served minimum four
years sentence without remission. In all
other cases suspension of sentence shall
not be granted unless the prisoner has
served minimum one year sentence
without remission.

(2) Suspension of sentence may
not be granted to a prisoner convicted for
heinous crime or to a habitual offender if
the District Magistrate or Superintendent
of Police is of the opinion that the release
of the prisoner may adversely affect
peace and tranquillity of the area.

(3) The period of suspension of
sentence shall not count towards the
period of sentence served.

(4) The sentence of a prisoner
may be suspended for not more than one in
a calendar year :

Provided that in exceptional
circumstances such as death of prisoner's
parents, husband or wife, son, daughter,
brother or sister or marriage of a
prisoner's son, daughter, brother or sister
or in natural calamities. The sentence of
prisoner may be suspended for the second
time in a calendar year."

11. As per the Rules 2007, the
Government of Uttar Pradesh may suspend
the sentences of a prisoners upto one month
on grounds, namely, (a) illness of prisoner's
parents, husband or wife, son, daughter,
brother or sister, or (b) death of any one of
the relative mentioned in sub-clause (a), or
(c) marriage of son, daughter, brother or
sister; (d) for sowing or harvesting of
agricultural crops on his own land provided
no other alternative arrangement for the
same is available; (e) for the essential
repair of his house provided no other
alternative arrangement for the same is
available.

12. Sub-Rule (2) further provides that
the
Government
may
in
special
circumstances
extend
the
period
of
suspension of sentence referred to in subrules (1) for a period not exceeding one
month. To meet with the emergent
situations in the event of death of mother,
father, husband or wife, son, daughter,
brother or sister; or marriage of son,
daughter, brother or sister, the District
Magistrate of the district to which prisoner
belongs may suspend the sentence of a
prisoner upto 72 hours. Thus, parole may
be granted by the Government on the
grounds enumerated in sub-Rule (1) of
Rule 3 for one month. Extension of parole
may be granted for another period not
3 All. Ajay Kumar Pandey Vs. State of U.P. & Ors.
255
exceeding one month under sub - Rule (2).
To meet the emergent situations in the
interest of justice, the District Magistrate of
the District to which the prisoner belongs
has been empowered to suspend the
sentence of a prisoner upto 72 hours on the
grounds mentioned in Clauses (a) and (b)
of sub Rule (3) of Rule 3.

13. Extension of the period of
suspension after two months is provided in
Rule 4. Procedure for suspension of
sentence is provided in Rule 5 which
requires submission of an application in
prescribed Form-I by the prisoner himself
or by a member of the family or a close
relative of the prisoner in duplicate through
the Superintendents of the Jail concerned,
who shall forward one copy of it along with
his comments and Jail reports in Form II to
the Government and other copy to the
District Magistrate concerned.

14. The Government may call for a
report from the District Magistrate and the
Superintendent of Police concerned on the
desirability of the suspensions of the
sentence of the prisoner, who after
conducting
such
enquiry
as
deemed
necessary shall submit their report in Form
III within 30 days to the Government. In
appropriate cases the Government may call
for opinion under sub-section (2) of Section
432 of the Code of Criminal Procedure,
1973. After complying with the procedure
as provided in sub Rule 1,2 and 3 of Rule 5
of the Rules 2007 a Prisoner may be
released on parole on suspension of
sentence provided he furnishes security
alongwith personal bond to the satisfaction
of the District Magistrate to the effect that
he shall surrender in Jail concerned on
expiry of the period of suspension of
sentence and shall maintain peace and good
conduct during the period of suspension of
sentence. Condition of suspension of
sentence is provided in Rule 6 of the Rules
2007. Thus, a complete procedure has been
provided under the Rules 2007 for
suspension of sentence by the competent
authority. Therefore, writ petition under
Article 226 of the Constitution of India is
not the proper remedy for aforesaid
purpose.

15. For all the reasons aforestated we
do not find any merit in the present writ
petition. Consequently, the writ petition
fails and is hereby dismissed.
----------
(2021)03ILR A255
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.01.2021

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Misc. Writ Petition No. 15692 of 2020
with
Criminal Misc. Writ Petition No. 15750 of 2020
and other connected cases

Ajay Kumar Pandey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sachida Nand Tiwari

Counsel for the Respondents:
A.G.A.

(A) Criminal Law - Code of Criminal
Procedure, 1973 - Section 156(3) - Fair
and proper investigation - confers power
upon any officer in-charge of a police
station to investigate any cognizable case
- provides for a cheque by the Magistrate
on the police performing its duties under
Chapter XII, Cr.P.C. - cases where the