# Satya Prakash Tiwari v. State of U.P. & Ors

- **Citation:** (2023) 4 ILRA 499
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-27
- **Case number:** Criminal Misc. Writ Petition No. 11743 of 2022
- **Bench:** Anjani Kumar Mishra, Rajiv Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-tiwari-v-state-of-u-p-ors-49989
- **Pages:** 7

## Headnote

(A) Criminal Law - Constitution of India,
1950 - Article 14, 226 - Prisons Act, 1894
- Section 55, Indian Penal Code, 1860 -
Sections 34, 223, 224, 302 & 307 - Writ
Petition - filed by petitioner who is a closed
relative of the deceased and the nephew of the
one of the informant and he has doing pairavi in
the criminal cases upto High Court - challenging
the impugned order of remission by which
Governor remitted the remaining part of
sentence of 8th respondent, on the ground that,
8th respondent is a hardened criminal and a
history-sheet was also opened in his name and
9 other cases were pending against him - court
hold that, remission has been granted to the
contesting
respondent
on
the
basis
of
incomplete and false information provided by
500 INDIAN LAW REPORTS ALLAHABAD SERIES
the various jail authorities - hence, the
impugned
order
granting
remission/commutation cannot be sustained -
petition allowed.(Para - 31, 32, 33, 34, 37)

(B) Criminal Law - Constitution of
India, 1950 - Article - 14, 226 - Prisons
Act, 1894 - Section - 55 - Indian Penal
Code, 1860 - Sections 34, 223, 224,
302 & 307 - Writ Petition - for quashing
the
impugned
order
of
remission/commutation passed by the St.
Government - on the basis of wrong and
incomplete information which was provided
by the Jail authorities, on the basis whereof,
remission was granted to the contesting
respondent, although he was not entitled for
the same - court finds that, this act of
concealment and falsehood appears to be
manifestly purposive - hence, court direct to
the respondent no. 1 to institute an enquiry
to indentify and to take appropriate action
against
the
responsible
person(s).
-
Directions issued, accordingly.(Para - 41, 42)

Writ Petition Allowed. (E-11)

List of Cases cited:

Ram Chander Vs St. of Chhattisgarh & anr., AIR
2022 SC 2017.

## Text

4 All. Satya Prakash Tiwari Vs. State of U.P. & Ors.
499
by the Court is whether the property which
was acquired prior to the registration of the
case against the accused under the Act or
prior to the registration of the first case of
the gang chart, can be attached by the
District Magistrate under section 14 of the
Act.

8. In the instant case, the petitioner
claims itself to be the statutory tenant of
the shop since 1948, therefore, interest in
the shop in question has been claimed.
The aforesaid shop has been attached by
the District Magistrate, Agra, thereafter, a
representation was made by the petitioner
for appointment of the Administrator, but
the same was declined by the District
Magistrate, Agra holding that petitioner is
neither owner nor the claimant of the
aforesaid
shop.
From
the
above
provisions mentioned under sections 14
to 17 of the Act, it is apparent that on
receipt of the reference, the Court shall
fix a date for enquiry and give notices
thereof and also to any other person
whose interest appears to be involved in
the said property after due enquiry under
the Act. The Court shall make delivery to
any
other
person
entitled
to
the
possession thereof or otherwise. As such,
the order dated 20.01.2023 passed by the
District Magistrate, Agra appears to be
correct
and
does
not
warrant
any
interference by this Court.

9. So far as prayer made by the
counsel for the petitioner regarding
appointment of Administrator in respect
of aforesaid property is concerned, this
aspect has not been dealt with by the
District Magistrate, Agra in his order
dated 20.01.2023. In case, the petitioner
avails the aforesaid statutory remedy
available to him, the same should have
been considered by the concerned District
Magistrate and will pass the order in the
light of the provisions contained in
Section 14(3) of the aforesaid Act.

10. In above terms, as statutory
remedy is available to him, the present
petition deserves to be dismissed on this
ground alone and it is accordingly
dismissed.
----------
(2023) 4 ILRA 499
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2023

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE RAJIV GUPTA, J.

Criminal Misc. Writ Petition No. 11743 of 2022

Satya Prakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri V.K. Baranwal, Sri Akhilesh Chandra Shukla,
Sri Saurabh Chaturvedi, Sri I.K. Chaturvedi (Sr.
Advocate)

Counsel for the Respondents:
G.A., Sri Akhilesh Chandra Shukla

(A) Criminal Law - Constitution of India,
1950 - Article 14, 226 - Prisons Act, 1894
- Section 55, Indian Penal Code, 1860 -
Sections 34, 223, 224, 302 & 307 - Writ
Petition - filed by petitioner who is a closed
relative of the deceased and the nephew of the
one of the informant and he has doing pairavi in
the criminal cases upto High Court - challenging
the impugned order of remission by which
Governor remitted the remaining part of
sentence of 8th respondent, on the ground that,
8th respondent is a hardened criminal and a
history-sheet was also opened in his name and
9 other cases were pending against him - court
hold that, remission has been granted to the
contesting
respondent
on
the
basis
of
incomplete and false information provided by
500 INDIAN LAW REPORTS ALLAHABAD SERIES
the various jail authorities - hence, the
impugned
order
granting
remission/commutation cannot be sustained -
petition allowed.(Para - 31, 32, 33, 34, 37)

(B) Criminal Law - Constitution of
India, 1950 - Article - 14, 226 - Prisons
Act, 1894 - Section - 55 - Indian Penal
Code, 1860 - Sections 34, 223, 224,
302 & 307 - Writ Petition - for quashing
the
impugned
order
of
remission/commutation passed by the St.
Government - on the basis of wrong and
incomplete information which was provided
by the Jail authorities, on the basis whereof,
remission was granted to the contesting
respondent, although he was not entitled for
the same - court finds that, this act of
concealment and falsehood appears to be
manifestly purposive - hence, court direct to
the respondent no. 1 to institute an enquiry
to indentify and to take appropriate action
against
the
responsible
person(s).
-
Directions issued, accordingly.(Para - 41, 42)

Writ Petition Allowed. (E-11)

List of Cases cited:

Ram Chander Vs St. of Chhattisgarh & anr., AIR
2022 SC 2017.

(Delivered by Hon'ble Anjani Kumar
Mishra, J. & Hon'ble Rajiv Gupta, J.)

1. Heard Shri I. K. Chaturvedi,
assisted by Shri V. K. Baranwal, for the
petitioner, Shri Akhilesh Chandra Shukla,
learned counsel for the respondent No. 8
and Mr. Pankaj Saxena, learned A.G.A. for
the State.

2. The instant writ petition seeks a
writ of certiorari for quashing of the order
dated 28.05.2022 passed by respondent
no.2, which has granted remission to
respondent no.8 and has ordered for his
release.

3. The 8th respondent, a life convict,
was convicted in Sessions Trial No. 807 of
2000 under Section 304/34 and 307/34 IPC
arising out of Case Crime No. 158 of 2000,
Police
Station-Sarai
Inayat,
DistrictAllahabad and was sentenced to life
imprisonment for the offence under Section
302/34 IPC and for three years rigorous
imprisonment for the offence under Section
307/34 IPC.

4. The remission granted to the 8th
respondent has been challenged by the
petitioner on the ground that the respondent
is a hardened criminal and that a historysheet was opened in his name being No. 7A
at Police Station-Sarai Inayat, District-
Allahabad.

5. It is also contended that the 8th
respondent was brought from Fatehgarh
Central
Jail,
District-Farrukhabad
on
26.07.2010 for being produced in Court.
He, however, fled from custody and a First
Information Report was lodged on the same
day at Police Station- Colonelganj, DistrictAllahabad, giving rise to Case Crime No.
319 of 2010 under Sections 223/224 of
IPC. He was, arrested on the same day
from
Prayag
Railway
Station.
After
investigation, a charge-sheet was filed by
the Police.

6. It is next contended that apart from
the fact that the 8th respondent is a
hardened criminal, he has been repeatedly
transferred from one jail to another on
account of his bad behaviour. It is averred
in the writ petition that initially he was
lodged in Central Jail Naini, from where he
was transferred to Central Jail Fatehgarh,
District Farrukhabad and from there to
District Jail Bareilly and finally he was
transferred to District Jail, Rampur.
4 All. Satya Prakash Tiwari Vs. State of U.P. & Ors.
501

7. The next contention is that
remission/premature
release
has
been
obtained
by
the
8th
respondent
by
concealing material facts in connivance
with his brothers. One brother, namely
Pawan Mishra is Head Jail Warden, in
District-Bagpat while another brother,
Vimal Mishra, is a Jail Warden in District
Agra.

8. It is lastly submitted by learned
counsel for the petitioner that remission has
been granted to the 8th respondent placing
reliance
upon
a
Government
Order
564/218/1106/22.02.2018-07G/2018 dated
01.08.2018. In view of Clauses 2(b) and
3(ix) of the GO, the 8th respondent could
not have been granted remission. Clause
3(ix) provides that a convict who has
absconded from custody is not entitled to
remission. The order dated 28.05.2022,
whereby the Governor is stated to have
granted remission/commutation in exercise
of power under Section 160 of Constitution
of India is, therefore, clearly vitiated and is
liable to be set aside.

9. The contention of Shri Akhilesh
Chandra Shukla, learned counsel appearing
for the 8th respondent is that the writ
petition itself is not maintainable and that
the petitioner has no locus to challenge the
order impugned. He is not the first
informant and is only the nephew of the
first informant and a practising lawyer. The
immediate relatives of first informant and
the deceased in the crime for which the 8th
respondent has been convicted have not
come forward. The writ petition is based on
mala fides. After the 8th respondent was
released, illegal gratification to the tune of
Rs. 5,00,000/- was demanded by the
petitioner and on non-payment of the same,
the instant writ petition has been filed.

10. On the merits of the writ petition,
it has been stated that the remission granted
to the 8th respondent is not hit by Clause
3(ix) of the policy framed by the
Government
for
granting
premature
release/remission as he did not abscond
from jail. He has at best absconded from
judicial custody, even if the case of the
petitioner is to be accepted in toto.
Therefore, the guidelines framed by the
Supreme Court and the State Government
have been followed fully.

11. Moreover, the 8th respondent has
already undergone 16 years of incarceration
without remission which period with
remission comes to almost 21 years.

12. It is next contended that there is
no material on record to show that the
contesting respondent was transferred from
one jail to the other on account of bad
conduct or behaviour. It is reiterated that
the conduct of the 8th respondent has
always been above board.

13. It is lastly submitted that the case
of the petitioner having absconded when he
was brought to the Civil Court Allahabad to
be produced before the Court is a false and
fabricated case which has been manipulated
by the petitioner in connivance with the
police. The contesting respondent did not
abscond. On the contrary, the police
personnel accompanying him left him
unattended and thereafter, filed the false
FIR against him.

14. In the counter affidavit filed, it has
additionally been averred that the criminal
appeal filed by the petitioner against his
conviction and sentence was rendered
infructuous after remission/ commutation was
granted to the contesting respondent.
502 INDIAN LAW REPORTS ALLAHABAD SERIES

15. In rejoinder, the contention of the
learned counsel for the petitioner is that the
petitioner is the nephew of the first
informant. After the death of the first
informant, it is the petitioner who has been
doing pairavi in all the cases pertaining to
the murder of the Jay Prakash Tiwari, the
deceased in Case Crime No. 158 of 2000
and has continued to do pairavi even in the
criminal appeals filed by the convicts
against their conviction. It is also stated
that the son of the deceased was a minor at
the time of incident.

16. In any case, the rejoinder affidavit
in the instant writ petition has been sworn
by the son of the first informant and
therefore, the objection regarding the
maintainability of the writ petition is liable
to be rejected.

17. It is additionally submitted that
the relevant material regarding at least 09
other cases having been registered against
the contesting respondent and the fact that
he absconded from judicial custody have
not been mentioned in the records that were
placed before the concerned authority while
the
application
for
the
remission/commutation
was
being
considered.

18. He has also placed reliance upon
paragraph 138 of the Jail Manual which
provides for transfer of a prisoner from one
Jail to another. The said paragraph provides
that the reason for transfer should always
be communicated to the District Magistrate
and the Superintendent of the District Jail
to which the prisoner is transferred and
should also be recorded on the history
ticket of the prisoner concerned. Relying
upon this provision, it has been submitted
that no history ticket was prepared in the
case of the petitioner which also shows the
mala fides and the connivance of the
brothers of the 8th respondent who are
themselves Jail Wardens.

19. Learned AGA has produced the
original record of the proceedings wherein
remission/commutation has been granted to
the 8th respondent, pursuant to the
direction issued by this Court vide order
dated 20.09.2022.

20.

We
have
considered
the
submissions of the learned counsel for the
parties and have perused the record and
also perused the original record produced
by the learned AGA.

21. Perusal of the GO of 2018, where
under remission has been granted, provides
that all prisoners who do not fall within the
prohibited categories, as provided under
Clause 3 and its sub-clauses, and who have
completed
16
years
of
incarceration
without remission, and 20 years of
incarceration including remission are liable
to be granted remission.

22. Clause 3(ix) provides that
prisoners who are life convicts or are
convicts and have absconded during their
period of incarceration fall under the
prohibited category meaning thereby, that
they
are
not
entitled
for
remission/commutation.

23. The issue which arises for
consideration is whether 8th respondent
absconded from Jail or whether the term
jail would also include within it, the period
when a prisoner is being transported for
whatever reason.

24. It is not in dispute that the
contesting respondent at the relevant point
of time was a life convict and was serving
4 All. Satya Prakash Tiwari Vs. State of U.P. & Ors.
503
out his sentence. He was brought to
Allahabad from Fatehgarh Central Jail,
Farrukhabad to be produced in Court in a
case, where-from he is alleged to have
absconded. In this regard, it is relevant to
refer to Section 55 of the Prisons Act,
1894, which reads as follows:-

"55. Extramural custody, control and
employment of prisoners. - A prisoner,
when being taken to or from any prison in
which he may be lawfully confined, or
whenever he is working outside or is
otherwise beyond the limits of any such
prison in or under the lawful custody or
control of a prison officer belonging to
such prison, shall be deemed to be in
prison and shall be subject to all the same
incidents as if he were actually in prison."

25. This provision is a complete
answer to the submission made by learned
counsel for the respondents as according to
it, the 8th respondent would still to be
deemed to be in jail at the moment he
absconded. The submission of learned
counsel for the petitioner is, therefore,
without substance and is specifically
repelled.

26. We have closely examined the
original record produced by learned AGA.

27. The fact which emerges from the
perusal of this original record is that the Jail
Report, signed by the Medical Officer,
District Jail, Rampur and the Chairman of the
District Prisoners Committee, in column 10,
mentions that that no other case is pending
against the contesting respondent. The
information provided in column 10 is,
therefore, patently incorrect because it is
admitted by the 8th respondent that as many
as 09 other cases are registered against him
and are pending before various Courts. In his
counter affidavit, the 8th respondent has
averred that these cases are fabricated and
have remained pending over a long period as
no one has come forward to depose in favour
of the prosecution.

28. It would also be relevant to note that
no history ticket appears to have been
prepared, as is provided under Paragraph 138
of the Jail Manual. There is also no mention
thereof in the original record produced before
us. In fact, the Jail Report on record states
that the contesting respondent is entitled to
remission in view of para 2(b) of the
Government Order dated 01.08.2018.

29. There is yet another report in
Tabular form which purports to be a list of
convicts entitled to be released on the
occasion of Republic Day in pursuance of
Government
Order
564/218/1106/22.02.2018-07G/2018
dated
01.08.2018. Even this report states that the
contesting
respondent
is
entitled
for
remission in view of Clause 2(b) of the GO
concerned. This report requires signature of
04 persons including the Deputy Inspector
General of Prisons apart from junior officials.
However, this document has not been signed
by the Deputy Inspector General of Prisons.

30. There is also a certificate issued by
the Superintendent District Jail Rampur in the
original record produced which is undated.
Column 6 of this Certificate is revealing. This
column,
in
effect,
seeks
information
regarding the restriction contained in Clause
3(ix) of the GO. The certificate states that the
prisoner Kamal Mishra did not abscond
during the period of his incarceration. The
facts available on the record of this petition
render this report, patently false.

31. Therefore, remission has been
granted to 8th respondent, a life convict, on
504 INDIAN LAW REPORTS ALLAHABAD SERIES
the basis of incomplete and false material
having been placed for consideration. The
fact that as many as 09 other cases were
pending against the contesting respondent
and also the fact that he has been chargesheeted in a case under Section 223/224 of
IPC, do not find mention in the jail reports.
The failure to report these two aspects in
the Jail reports can only be said to be
purposive concealment.

32. There is yet another aspect of this
issue.
As
already
observed,
the
remission/commutation has been granted
by the State Government on account of
false information insofar as the 8th
respondent having absconded is concerned
and also the fact that report states that no
criminal case is pending against the
contesting respondent, contrary to the
averment in the writ petition and admitted
in the counter affidavit and also because
information which was relevant had been
withheld by the jail authorities. At least one
of the documents that has been relied upon
for granting remission to the contesting
respondent has not been signed by the
Deputy Inspector General of Prisons,
although, the form in which the information
has been submitted clearly requires him to
be one of the co-signatories. It cannot be
said that the Deputy Inspector General of
Prisons was not required to sign the
document. The Jail Certificate which has
been relied upon to grant remission to the
contesting respondent also furnishes false
information insofar as it mentions that the
contesting respondent, the convict, never
absconded during the period of his
incarceration.

33. Under the circumstances, we are
constrained to hold that remission has
been granted to the contesting respondent
on the basis of incomplete and false
information provided by the various jail
authorities. The State Government has
manifestly
granted
remission/commutation
to
the
8th
respondent relying upon the reports
which state that the 8th respondent is
entitled to said release under Clause 2(b)
of the relevant GO of 2018.

34. We would also like to refer to
the decision of the Apex Court in Ram
Chander Vs. State of Chhattisgarh &
Another, AIR 2022 SC 2017. Paragraph
12 of this judgmet reads as follows:-

"12. While a discretion vests with the
government to suspend or remit the
sentence, the executive power cannot be
exercised arbitrarily. The prerogative of
the executive is subject to the rule of law
and fairness in state action embodied in
Article
14
of
the
Constitution.
In
Mohinder Singh (supra), this Court has
held that the power of remission cannot
be exercised arbitrarily. The decision to
grant remission should be informed, fair
and reasonable. The Court held thus:

"9. The circular granting remission is
authorized under the law. It prescribes
limitations both as regards the prisoners
who are eligible and those who have been
excluded. Conditions for remission of
sentence to the prisoners who are eligible
are also prescribed by the circular.
Prisoners have no absolute right for
remission of their sentence unless except
what is prescribed by law and the circular
issued thereunder. That special remission
shall not apply to a prisoner convicted of a
particular offence can certainly be a
relevant
consideration
for
the
State
Government not to exercise power of
remission in that case. Power of remission,
however, cannot be exercised arbitrarily.
Decision to grant remission has to be well
4 All. Zaved Akhtar Vs. State of U.P. & Ors.
505
informed, reasonable and fair to all
concerned."

35. We also do not find any substance
in the submission made by counsel for the
respondent on the question of locus of the
petitioner to maintain the writ petition. The
petitioner is definitely a close relative of
the deceased and the nephew of the first
informant in Case Crime No. 158 of 2000.
He has also appeared in the witness box as
PW No.2 during trial. He is also said to
have been doing pairavi in the criminal
cases even up to the High Court even in
pending appeal which fact is not denied.

36. There is substance in the
contention of learned counsel for the
petitioner that it cannot be said that the
petitioner
alone
is
challenging
the
impugned order because even the son of the
deceased who was minor at the time of
incident has supported the writ petition
having sworn the rejoinder affidavit which
is filed on record.

37. For the foregoing reasons, in our
considered opinion, the impugned order
granting remission/commutation to the 8th
respondent cannot be sustained.

38. The writ petition is liable to be
allowed and is hereby allowed. The
impugned order dated 28.05.2022 is hereby
set aside.

39. No order as to costs.

40. The original record produced by
learned AGA be returned to him forthwith
after obtaining his signatures on the ordersheet evidencing receipt thereof.

41. In the body of the judgment, we
have observed that wrong and incomplete
information was provided by the jail
authorities, on the basis whereof, remission
was granted to the contesting respondent,
Kamal Mishra, although he was not entitled
for the same, and this act of concealment
and falsehood appears to be manifestly
purposive.

42. It, therefore, appears fit and
proper to direct the respondent no.1,
Principal Secretary, Prison Administration
and Reform, Section 2, U.P. Government,
Lucknow, to institute an enquiry to identify
and to take appropriate action against the
person(s) responsible for such falsehood
and concealment. This is being directed as
the Apex Court has held that: "Decision to
grant remission has to be well-informed,
reasonable and fair to all concerned."
----------
(2023) 4 ILRA 505
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Misc. Writ Petition No. 14644 of 2019

Zaved Akhtar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Mishra, Sri Akhilesh Kumar
Mishra

Counsel for the Respondents:
G.A.

(i)
Criminal
Law
-
Constitution
of
India,1950 - Article 19(1)(a), 19(1)(d),
21, 226, - Criminal Procedure Code,1973 -
110-G,
-
Indian
Penal
Code,1860
-
Sections 147, 324, 325, 504 & 506 - U.P.
Police Regulations,1861 - Para 228, 238 -