# Sunil Tiwari v. State of U.P. & Ors

- **Citation:** (2025) 10 ILRA 186
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-10-27
- **Case number:** Criminal Misc. Writ Petition No. 5041 of 2025
- **Bench:** Abdul Moin, Mrs. Babita Rani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-tiwari-v-state-of-u-p-ors-52638
- **Pages:** 6

## Headnote

the impugned order in violation of procedure
established by law and various principles laid
down by Hon'ble Supreme Court, as the
premature release application of the petitioner
has not been decided timely in compliance of
the direction issued by Hon'ble Supreme Court.

Head Notes
The Constitution of India, 1950- Article
226, The Uttar Pradesh Prisoners' Release
of Probation Act, 1938- Section 2- That
even if the case of the petitioner may or
may not be within the purview of standing
policy
as
amended
by
the
State
government, however, it was required on
the part of the competent authority to
record reasons about the conduct of the
petitioner while disposing his premature
release
application
and
passing
the
impugned order- Authority must pass a
reasoned order in case it refuses to grant
the benefit to the petitioner under the
scheme. In case, the authority has passed
the order rejecting the premature release
application without following the scheme,
then High Court may examine the same in
the context of parameter of scheme and
reach the conclusion whether the order
rejecting the premature release prayer
was justified or not and if no justified
reason for declining the release is found
then the Court may direct the authority to
give the benefit of the scheme to the
prisoner-Impugned
order
quashedPetition allowed. (E-15)

Held- The impugned order has been passed
summarily,
disregarding
the
fundamental
procedure of Section 2 of U.P. Prisoners'
Release of Probation Act, 1938
(Para 17, 18 & 19)

Case Law Cited
Criminal Appeal No. 165 of 2016; Ganesh vs.
State of U.P.;Surendra @ Sunda vs. State of
U.P. in Special Leave Petition (Criminal) Diary
No.(s) 28783 of 2023;Home Secretary (Prison)
and others vs. H. Nilofar Nisha (2020) 14 SCC
161;Rashidul Jafar @ Chota vs. State of U.P.
and Anr. 2022; Live Law (SC) 754

List of Acts
The Constitution of India, 1950, The Uttar
Pradesh Prisoners' Release of Probation
Act, 1938

List of Keywords
Premature Release; U.P. Prisoners' Release of
Probation Act; Section 2; Impugned order
passed
summarily;
Without
following
the
scheme; Authority must pass a reasoned order;
in case it refuses to grant the benefit under the
scheme

Case Arising From
Order dated 24.02.2025 i.e. rejection of
premature release application and 21.04.2025
i.e. issuance of non bailable warrant against the
petitioner

Appearances for Parties
Counsel for Petitioner(s) : Amar Singh, Dheeraj
Awasthi, Piyush Singh
Counsel for Respondent(s) : G.A.

## Text

186 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2025) 10 ILRA 186
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.10.2025

BEFORE

THE HON'BLE ABDUL MOIN, J.
THE HON'BLE MRS. BABITA RANI, J.

Criminal Misc. Writ Petition No. 5041 of 2025

Sunil Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Amar Singh, Dheeraj Awasthi, Piyush Singh

Counsel for the Respondents:
G.A.

Issue for Consideration
Whether the competent authority has passed
the impugned order in violation of procedure
established by law and various principles laid
down by Hon'ble Supreme Court, as the
premature release application of the petitioner
has not been decided timely in compliance of
the direction issued by Hon'ble Supreme Court.

Head Notes
The Constitution of India, 1950- Article
226, The Uttar Pradesh Prisoners' Release
of Probation Act, 1938- Section 2- That
even if the case of the petitioner may or
may not be within the purview of standing
policy
as
amended
by
the
State
government, however, it was required on
the part of the competent authority to
record reasons about the conduct of the
petitioner while disposing his premature
release
application
and
passing
the
impugned order- Authority must pass a
reasoned order in case it refuses to grant
the benefit to the petitioner under the
scheme. In case, the authority has passed
the order rejecting the premature release
application without following the scheme,
then High Court may examine the same in
the context of parameter of scheme and
reach the conclusion whether the order
rejecting the premature release prayer
was justified or not and if no justified
reason for declining the release is found
then the Court may direct the authority to
give the benefit of the scheme to the
prisoner-Impugned
order
quashedPetition allowed. (E-15)

Held- The impugned order has been passed
summarily,
disregarding
the
fundamental
procedure of Section 2 of U.P. Prisoners'
Release of Probation Act, 1938
(Para 17, 18 & 19)

Case Law Cited
Criminal Appeal No. 165 of 2016; Ganesh vs.
State of U.P.;Surendra @ Sunda vs. State of
U.P. in Special Leave Petition (Criminal) Diary
No.(s) 28783 of 2023;Home Secretary (Prison)
and others vs. H. Nilofar Nisha (2020) 14 SCC
161;Rashidul Jafar @ Chota vs. State of U.P.
and Anr. 2022; Live Law (SC) 754

List of Acts
The Constitution of India, 1950, The Uttar
Pradesh Prisoners' Release of Probation
Act, 1938

List of Keywords
Premature Release; U.P. Prisoners' Release of
Probation Act; Section 2; Impugned order
passed
summarily;
Without
following
the
scheme; Authority must pass a reasoned order;
in case it refuses to grant the benefit under the
scheme

Case Arising From
Order dated 24.02.2025 i.e. rejection of
premature release application and 21.04.2025
i.e. issuance of non bailable warrant against the
petitioner

Appearances for Parties
Counsel for Petitioner(s) : Amar Singh, Dheeraj
Awasthi, Piyush Singh
Counsel for Respondent(s) : G.A.

(Delivered by Hon'ble Mrs. Babita Rani,
J.)
10 All. Sunil Tiwari Vs. State of U.P. & Ors.
187

1. Rejoinder affidavit filed by learned
counsel for the petitioner and short counter
affidavit filed by Sri V.K. Singh, learned
Government Advocate are taken on record.

2. Heard Sri Dheeraj Awasthi, learned
counsel for the petitioner, Sri V.K. Singh,
learned Government Advocate assisted by
Sri Bipul Kumar Singh, learned State
counsel for the respondents.

3. Instant writ petition under Article
226 of the Constitution of India has been
filed by the petitioner against respondents
with following reliefs:

"(i) Issue a writ, order or
direction in the nature of Certiorari
thereby quashing the impugned order dated
24.02.2025 (Annexure No.1) as the same
has been passed in a stereotype manner
without any application of mind, with all
consequential benefits.

(ii) Issue a writ, order or
direction in the nature of Certiorari
thereby
quashing
the
order
dated
21.04.2025 (Annexure No.7) whereby the
Non-bailable warrant has been issued
against the petitioner and he has been
directed to serve the sentence of life
imprisonment awarded to him.

(iii) Issue a writ, order or
direction in the nature of Mandamus
thereby commanding the opposite parties to
provisionally release the petitioner from
the Central Jail, Bareilly as he has already
served a total sentence of 15 years, 8
months and 2 days in custody and 18 years,
1 month and 23 days in custody, with
remission as on 26.07.2022."

4. Backdrop of instant petition in brief
is that the petitioner- Sunil Tiwari along
with others was arraigned in FIR No.191 of
2006, under Sections 147, 148, 302/149,
449 I.P.C. as accused, in Police Station
Thangaon, District Sitapur for committing
the massacre by killing five persons of a
family with lethal weapons. On 25.11.2006,
the petitioner was arrested and after
conclusion of trial, he was convicted and
sentenced on 23.02.2015 under Sections
147, 148, 302/149 & 449 I.P.C. for life
imprisonment with fine.

5. Aggrieved by the judgement and
order passed by learned trial court, the
petitioner and others preferred a criminal
Appeal No. 471 of 2015 before the High
Court which is pending for adjudication.
On
26.07.2022
as
indicated
in
the
impugned order, the petitioner moved a
premature release application before the
competent authority on the ground that he
had served the custody of 15 years 8
months & 2 days without remission and
about 18 years with remission.

On 10.01.2024, a Division Bench
of this Court passed direction to release the
prisoners in Criminal Appeal No. 165 of
2016; Ganesh vs. State of U.P. and in
pursuance of above direction, the petitioner
was also released by the competent
authority on 06.04.2024. On 25.05.2024, a
larger Bench of this Court in the case of
Ambrish Kumar Verma vs. State of U.P.
and others observed that the direction
issued in Ganesh vs. State of U.P. (supra)
is untenable in the eyes of law.

6. Hon'ble Supreme Court of India
also in case of Surendra @ Sunda vs. State
of
U.P.
in
Special
Leave
Petition
(Criminal) Diary No.(s) 28783 of 2023
made query to the State of Uttar Pradesh as
to what steps have been taken to cancel the
bail granted to the prisoners in the light of
188 INDIAN LAW REPORTS ALLAHABAD SERIES
the judgement of this Court passed in
Ganesh (supra). In pursuance of view
adopted by Hon'ble Supreme Court, the
petitioner surrendered on 13.11.2024 but
considering the interim order passed by the
Apex Court to the effect that the prisoners,
who have already served 14 years of
sentence, will be released from the custody,
the petitioner was again released on
21.11.2024 from the jail.

7. The competent authority vide the
order impugned dated 24.02.2025 rejected
Form-A i.e. premature release application
of the petitioner and consequently, the
court of Chief Judicial Magistrate, Sitapur
issued
non-bailable
warrant
to
the
petitioner to serve the remaining sentence.
As a matter of fact, in Surendra @
Sundra (supra) Hon'ble Supreme Court
issued
directions
on
28.04.2025
and
directed the prisoners who have already
been released, to surrender before the court
concerned within three weeks with liberty
to challenge the order of rejection of
premature release application, if any.

8. Aggrieved by the impugned order
dated 24.02.2025 i.e. rejection of premature
release application and 21.04.2025 i.e.
issuance of non bailable warrant against the
petitioner, instant writ petition has been
filed.
The
impugned
order
dated
24.02.202025 has been challenged mainly
on the ground that same has been passed in
a stereotyped and arbitrary manner and in
contravention of intent of Section 2 of U.P.
Prisoners' Release of Probation Act, 1938
whereby premature release application has
to be decided on the basis of antecedents
and good conduct of the prisoners in
prison. However, impugned order has been
passed only considering the antecedents of
the petitioner and in complete ignorance
and appreciation of necessary part of good
conduct of the petitioner in the prison. It
has been averred that impugned order being
non-speaking and arbitrary, is liable to be
quashed.

9. Sri V.K. Singh, learned Government
Advocate appearing for the respondents has
filed short counter affidavit stating that the
impugned order does not have any
illegality
and
has
been
passed
in
accordance with the settled principle of law
and due procedure. The petitioner falls
within the prohibited category of the State
Government
policy
dated
01.08.2018,
subsequently amended vide amendments
dated 28.07.2021 and 27.05.2022, which
set out that the petitioner, who had
committed
triple
murder,
cannot
be
released from the prison. It is thus
incumbent upon the petitioner to surrender
and then to challenge the premature release
application. Learned Government Advocate
reiterates that the impugned order does not
carry any illegality and has been passed in
complete consonance and prevalent policy
of the State of Uttar Pradesh as formed and
amended
update.
Learned
AGA
vehemently emphasized that case of the
petitioner comes within the prohibited
category of policy whereby the petitioner
who has committed three or more than
three murders, will not be given benefit of
premature release until he serves the
sentence of 25 years without remission and
30 years with remission. Since, the
petitioner has not undergone the prescribed
period of sentence at the time of passing of
impugned order, there is no occasion to
give him benefit for premature release,
therefore, the impugned order warrants no
interference. It has also been argued that
petitioner has not surrendered despite a
direction issued by Hon'ble Supreme Court
in re: Surendra @ Sunda (supra) and
rather is playing hide and seek and
10 All. Sunil Tiwari Vs. State of U.P. & Ors.
189
enjoying liberty in contrary to law.
Therefore, the writ petition filed by the
petitioner deserves to be dismissed.

10.Learned counsel for the petitioner
has vehemently argued that the competent
authority has passed the impugned order in
violation of procedure established by law
and various principles laid down by
Hon'ble Supreme Court, as the premature
release application of the petitioner has not
been decided timely in compliance of the
direction issued by Hon'ble Supreme Court
in re: Rashidul Jafar @ Chota vs. State of
U.P. and Anr. 2022; Live Law (SC) 754.
Moreover, the order cannot be rejected in
stereotype manner without any application
of mind. It has been further emphasized
that the conduct in jail of the prisoner is an
important factor to be considered as to
whether he has lost his potentiality in
committing crime due to long period of
detention, but the impugned order does not
reveal any sound ground of rejection of
Form-A, particularly, when there were
recommendations in favour of petitioner.
As per learned counsel for the petitioner,
the
impugned
order
has
occasioned
prejudice and failure of justice to the
petitioner. With the above arguments,
learned counsel for the petitioner broadly
assailed the impugned order and prayed the
same be quashed by giving the benefit to
the petitioner.

11. Heard the learned counsels for the
parties and perused the record.

12. Admittedly, the criminal appeal
against conviction and sentence filed by the
petitioner before this Court is still pending
for adjudication and at the time of passing
the impugned order, petitioner had spent 15
years, 8 months & 2 days without
remission and 18 years, 1 months & 23
days with remission. The petitioner is out
of prison since 21.11.2025 and has not
surrendered despite of non-bailable warrant
issued by the Chief Judicial Magistrate,
Sitapur.

13. At the very outset and for the
purpose of deciding the instant writ
petition, it will be profitable to peruse the
relevant provisions/prevalent policy and
judicial
pronouncement
of
Hon'ble
Supreme Court as well. So far as question
of premature release is concerned, Section
2 of U.P. Prisoners' Release of Probation
Act, 1938 provides as under:

"Power
of
Government
to
release by licence on conditions imposed
by
them.-
Notwithstanding
anything
contained in [Section 401]of the Code of
Criminal Procedure, 1898 (Act V of 1898),
where a person is confined in prison under
a sentence of imprisonment and it appears
to
the
State
Government
from
his
antecedents and his conduct in the prison
that he is likely to abstain from crime and
lead a peaceable life, if he is released from
prison, the State Government may by
licence permit him to be released on
condition that he be placed under the
supervision or authority of a Government
Officer or of a person professing the same
religion as the prisoner, or such secular
institution or such society belonging to the
same religion as the prisoner as may be
recognized by the State Government for
this purpose, provided such other person,
institution or society is willing to take
charge of him."

14. On 01.08.2018, the Government of
Uttar Pradesh formulated and issued a
policy governing premature release of the
convicts with approval of Governor under
Article 161 of the Constitution of India
190 INDIAN LAW REPORTS ALLAHABAD SERIES
wherein for the purpose of premature
release of the prisoners, different categories
were set out. In the above standing policy
one of the categories has been set out as
prohibited category in para No.3 (VI)
which provides that prisoners who have
been convicted and sentenced for life
imprisonment for commission of a crime
related to massacre (three or more than
three murders), are prohibited to be
released. However, the relaxation was
granted in the amended policy dated
28.07.2021 and para 2(g) of the amended
policy
dated
28.07.2021
was
added,
whereby
the
prisoners
of
prohibited
categories were indicated in sub rules (VII)
(VIII) and (IX) of para-3 of standing policy
of 01.08.2018. In the above categories
prisoners, who have completed 60 years
and have undergone including under trial
custody, sentence of 25 years without
remission and 30 years with remission may
be released by the competent authority.
Therefore, as per the standing policy of the
State of Uttar Pradesh, the petitioner being
within the category of sub rule (VI) of
para-3 becomes eligible for premature
release only if, he has served the custody of
25 years without remission and 30 years
with remission. In the instant case
petitioner at the time of passing the
impugned order, merely, had served the
sentence of 15 years, 8 months & 2 days
without remission and 18 years, 1 months
& 23 days with remission, therefore, up to
this extent the case of the petitioner is not
covered within the policy as formulated by
the State Government.

15. So far as Section 2 of U.P.
Prisoners' Release of Probation Act, 1938
(Act 1938) is concerned, it provides that at
the time of deciding the premature release
application of a prisoner, the competent
authority has to appreciate two essential
factors
about
the
prisoner
i.e.
his
antecedent and good behaviour in prison.
Purpose of scheme is subjective satisfaction
of competent authority that after release the
prisoner will be able to lead a peaceful life
and refrain from committing crime.

16. Learned AGA has stated that the
impugned order has been passed by the
competent authority under the above
provision and in consonance of the
standing policy of the State as amended,
but
perusal
of
the impugned
order
demonstrates that the competent authority
has only focused and discussed antecedent
part/factor of the prisoner/petitioner while
deciding his premature release application
and not only has completely ignored about
his conduct in prison, but also endorsed
nothing in impugned order regarding the
conduct which is a factor to be considered
as per Section 2 of the Act, 1938. .

17. Needless to say that even if the
case of the petitioner may or may not be
within the purview of standing policy as
amended
by
the
State
government,
however, it was required on the part of the
competent authority to record reasons about
the conduct of the petitioner while
disposing his premature release application
and passing the impugned order. Perusal of
impugned
order
transpires
that
the
impugned
order
has
been
passed
summarily, disregarding the fundamental
procedure of Section 2 of U.P. Prisoners'
Release of Probation Act, 1938.

18. At this juncture reliance can be
placed on the principles laid down by the
Hon'ble Supreme Court in re: Home
Secretary (Prison) and others vs. H.
Nilofar Nisha (2020) 14 SCC 161,
wherein it has been propounded that
authority must pass a reasoned order in
10 All. Abha Gupta Vs. Shri Colonizers And Developers Pvt. Ltd. & Anr.
191
case it refuses to grant the benefit to the
petitioner under the scheme. In case, the
authority has passed the order rejecting the
premature
release
application
without
following the scheme, then High Court may
examine the same in the context of
parameter of scheme and reach the
conclusion whether the order rejecting the
premature release prayer was justified or
not and if no justified reason for declining
the release is found then the Court may
direct the authority to give the benefit of
the scheme to the prisoner.

19. It is apparent that the competent
authority
has
not
recorded
reasons
regarding the conduct of the prisoner in
prison as per Section 2 of the Act, 1938,
therefore, the impugned order warrants of
interference.

20. Accordingly, the writ petition is
allowed.
The
order
impugned
dated
24.02.2025, a copy of which is Annexure-
1 to the writ petition, is quashed.

21. The competent authority shall
proceed to pass a fresh order on the
application of petitioner in accordance with
law, rules and policies applicable, keeping
in view the law laid down by the Hon'ble
Supreme Court in case of 'Rashidul Jafar
@ Chota (supra) The order shall be passed
within four weeks from the date the
petitioner surrenders.

22. Further, considering the order
dated 17.12.2024 passed by Hon'ble
Supreme Court in case of Surendra @
Sunda (supra), copy of which is annexed
as Annexure No.7 to the short counter
affidavit filed on behalf of respondent no.3,
more
particularly
paragraph-4
which
clearly
provides
that
order
dated
13.11.2024 shall remain in operation until
further orders or subject to the orders
passed
by
the
authorities
regarding
allowing/rejection of the representation of
petitioner
and
the
representation
of
remission having been rejected, as such the
petitioner shall surrender within three
weeks from today.
----------
(2025) 10 ILRA 191
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.10.2025

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Execution Case No. 1 of 2025

Abha Gupta ...Petitioner
Versus
Shri Colonizers And Developers Pvt. Ltd. &
Anr. ...Respondents

Counsel for the Petitioner:
Anuj Kudesia, Anurag Tyagi

Counsel for the Respondents:
Pritish Kumar, Amal Rastogi, Rajeev Sharan

Issue for Consideration
Whether the award in question would be a
'foreign award' amenable to Part II of the Act or
an award amenable to Part I of the Act.
Whether the execution would continue before
this Court or before the Commercial Court in
terms of the definition of the Court conferred by
virtue of Section 2(1)(e) of the Act

Head Notes
The Code of Civil Procedure-1908-Sections
47 & 151, The Arbitration & Conciliation
Act, 1996-Sections 2(1) (f), 2 (1) (e), 44-
The arbitration would fall clearly within
the definition of Section 2(1) (f) of the Act
and
is
an
'international
commercial
arbitration'- Merely because it is an
international commercial arbitration, the
same would not render the award to be a
'foreign award' as defined under Section