# Umesh Dixit v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 1207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-25
- **Case number:** Criminal Misc. Writ Petition No. 24795 of 2020
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-dixit-v-state-of-u-p-ors-48461
- **Pages:** 11

## Headnote

Criminal Law - Constitution of India,1950
- Article 14, 72, 161, 226 - Indian Penal
Code, 1860 - Sections 120-B, 147, 148,
149, 302, 302(3), 307(4), 338, 379, 452,
504, 323, 336, 352, 427, 452 & 504 -
Arms Act, 1878 - Section - 25(1-B) -
Criminal Procedure Code,1973 - Sections
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
432 & 433-A - UP Prisoners Release on
Probation Act, 1938 - Section 2 - UP
Jail Manual, Para 195, 196, 197, 198 -
Writ petition - challenging the order of
Govt. of UP for premature release of
accused person - who has convicted &
sentenced
for
offence
of
double
murder/attempt to murder/Rioting - out of
which some offences are committed during
parole also - court held that power of
remission cannot be exercised arbitrarily -
writ petition partially allowed - impugned
order quashed - with direction to - reconsidered the matter afresh in the light of
law laid down by the Hon'ble Apex court.
(Para - 26, 27, 28)

Writ Petition Allowed in part.(E-11)

List of Cases cited:-

## Text

5 All. Umesh Dixit Vs. State of U.P. & Ors.
1207
N.C.T. of Delhi and Another; Crl M.C.
4206 of 2018, decided on 29.11.2019;
Tmt.T.
Subbulakshmi
Vs.
The
Commissioner
of
Police;
Crl.
O.P.
No.13103 of 2013 decided on 30.08.2013;
Uma Maheshwari Vs. The State Rep. By
Inspector of Police, Central Crime Branch,
Egmore, Channai; Criminal O.P. No.15467
of 2013 decided on 20.12.2013; The
Meridian Educational Society Vs. The State
of Telangana; Writ Petition No.21106 of
2021 decided on 04.10.2021 without
considering and dealing with the provisions
and scheme of the Code cannot be relied
upon. Therefore these judgments can not be
of any help to the petitioner. The Judgment,
in
the
case
of
Chief
Information
Commissioner and another Versus State of
Manipur and another (Supra), relied by
learned counsel for the petitioner, is also
not
applicable
in
the
facts
and
circumstances of the present case.

(21) In view of the discussions made
above this court is of the considered opinion
that there is no infringement of Constitutional
right of property of the petitioner under
Article 300-A of the Constitution of India.
Article 300-A of the Constitution of India
only provides that no person shall be
deprived of his property save by authority of
law. The alleged deprivation of property
(freezing of bank account) since is found to
be in accordance with applicable law i.e.
Code of Criminal Procedure, the action
complained of is clearly in consonance with
Article 300-A of the Constitution of India.
Petitioner's plea of violation of Article 300-A
of Constitution of India cannot be pressed to
impeach the act of freezing of bank account
after such act is held to be as per applicable
law i.e. the Code of Criminal Procedure.

(22) The bank account of the
petitioner has been got freezed in exercise
of powers given under Section 102 Cr.P.C.
and the Code of Criminal Procedure
restricts the release of such bank account
only to an order passed by the Magistrate,
which is not the case here. The provisions
of the Code thus cannot be by-passed on
the plea that Article 300-A of Constitution
of India is violated. Merely because the
freezing of bank account is not reported
forthwith
and
reported
only
on
an
application moved by the petitioner, it
cannot be said that there is infringement of
right of property given under Article 300-A
of the Constitution of India. The plea of the
petitioner in this regard is misconceived
and not sustainable. The writ petition
consequently lacks merit and is dismissed.
No order is passed as to costs.
----------
(2022)05ILR A1207
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Misc. Writ Petition No. 24795 of 2020

Umesh Dixit ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Girish Kumar Pandey

Counsel for the Respondents:
G.A., Arun Sinha, Mohammad Zeeshan Lari,
Siddharth Sinha

Criminal Law - Constitution of India,1950
- Article 14, 72, 161, 226 - Indian Penal
Code, 1860 - Sections 120-B, 147, 148,
149, 302, 302(3), 307(4), 338, 379, 452,
504, 323, 336, 352, 427, 452 & 504 -
Arms Act, 1878 - Section - 25(1-B) -
Criminal Procedure Code,1973 - Sections
1208 INDIAN LAW REPORTS ALLAHABAD SERIES
432 & 433-A - UP Prisoners Release on
Probation Act, 1938 - Section 2 - UP
Jail Manual, Para 195, 196, 197, 198 -
Writ petition - challenging the order of
Govt. of UP for premature release of
accused person - who has convicted &
sentenced
for
offence
of
double
murder/attempt to murder/Rioting - out of
which some offences are committed during
parole also - court held that power of
remission cannot be exercised arbitrarily -
writ petition partially allowed - impugned
order quashed - with direction to - reconsidered the matter afresh in the light of
law laid down by the Hon'ble Apex court.
(Para - 26, 27, 28)

Writ Petition Allowed in part.(E-11)

List of Cases cited:-

1. Laksman Naskar Vs U.O.I. (2000 CrLJ 1471),

2. Maru Ram Vs U.O.I. (1981 (1) SCC 107),

3. NHAI & ors. Vs Madhukar Kumar & ors. (Civil
Appeal
No.
11141
/
2018,
decided
on
23.09.2021)

4. St. of Har. Vs Mohinder Singh ( 2000 vol. 3
SCC 394),

5.Sangeet Vs St. of Har. (2013 vol. 2 SCC 452),

6. Rajan Vs Home Secretary, Home Department
of Tamil Nadu, (2019 vol. 14 SCC 114),

7. Ram Chander Vs St. of Chhattisgarh & anr. (W
P (Crl.) No. 49/2022 decided on 22.04.2022),

8. Laxman Naskar Vs St. of W. B. (2000 vol. 7
SCC 626),

(Delivered by Hon'ble Ramesh Sinha, J.)

(1) The petition under Article 226 of
the Constitution has been instituted by
Umesh Dixit, whose brother Gyanendra
Kumar alias Tinku was said to be murdered
by
the
convict/respondent
no.6-Hari
Shankar, with the following reliefs :-

i. Issue a writ, order or direction
in the nature of Certiorari thereby quashing
the impugned order dated 29.11.2019
passed by the opposite party no.1 contained
in Annexure No.1 to this writ petition.

ii. Issue a writ, order or direction
in the nature of Mandamus thereby
commanding and directing the opposite
parties no. 1, 2 and 3 to re-arrest the
opposite party no.6 so that he serves out the
life imprisonment imposed upon him by the
Learned Additional Sessions Judge/F.T.C.,
Court No.3, Sitapur in Sessions Trial No.
78 of 2003, in the interest of justice.

iii. Issue any other writ, order or
direction in the nature which this Hon'ble
Court may deem fit and proper under the
circumstances of the case and in the interest
of justice.

iv. Allow the writ petition with
costs in favour of the petitioner."

(A) Factual Background

(2) The respondent no.6-Hari Shankar
and co-accused were tried by V Additional
Sessions Judge, Sitapur in Sessions Trial
No. 187 of 1991 arising out of Case Crime
No. 171 of 1990, under Sections 147, 148,
452, 149, 302 I.P.C., Police Station
Machhrehta, District Sitapur, wherein vide
judgment and order dated 19.03.1996
(Annexure No. 3), the learned V Additional
Sessions Judge, Sitapur, convicted and
sentenced
the
respondent
no.6-Hari
Shanker and co-accused under Section 302
read with Section 149 I.P.C. to undergo life
imprisonment; under Section 452 read with
Section 149 I.P.C. to undergo three years
R.I.; and under Section 148 I.P.C. to
undergo two years R.I.

(3)
According
to
the
petitioner,
aggrieved by their conviction and sentence
vide judgment and order dated 19.03.1996,
5 All. Umesh Dixit Vs. State of U.P. & Ors.
1209
respondent no.6-Hari Shanker preferred
Criminal Appeal No. 117 of 1996 : Hari
Shanker Vs. State of U.P., wherein
respondent no.6-Hari Shanker was granted
bail by a Co-ordinate Bench of this Court
and the same is still pending final
adjudication.

(4) During pendency of the aforesaid
criminal appeal and after release on bail in
the
aforesaid
criminal
appeal,
convict/respondent no.6-Hari Shanker and
co-accused Sanju, Nanhu (real nephew of
the respondent no.6), Chailu, Shatrughan
and Pramanand, murdered the brother of
the petitioner, namely, Gyanedra Kumar
alias Tinku. In this regard, the petitioner's
father Ram Naresh Dixit had lodged an
F.I.R. against the aforesaid accused persons
including respondent no.6-Hari Shanker,
which was registered as Case Crime No.
267 of 2002 under Sections 147, 148,
302/149
I.P.C.
at
Police
Station
Machhrehta, District Sitapur. This case was
committed to the Additional Sessions
Judge/Fast Track Court No.3, Sitapur,
wherein respondent no.6-Hari Shanker and
co-accused were tried in Sessions Trial No.
78 of 2003 : State Vs. Sanju and 5 others,
for committing the offence of murder of the
petitioner's brother. Co-accused Sanju was
also tried in Sessions Trial No. 222 of 2003
: State Vs. Sanju, arising out of Case Crime
No. 277 of 2002, under Section 25 (1-B) of
the Arms Act, Police Station Machhrehta,
District Sitapur.

(5) The learned Additional Sessions
Judge/Fast Track Court No.3 , Sitapur,
heard both the aforesaid appeals i.e.
Sessions Trial Nos. 78 of 2003 and 222 of
2003 together and vide judgment and order
dated
09.07.2004
(Annexure
No.5),
convicted and sentenced Hari Shanker
(respondent no.6) and co-accused persons
under section 302 read with section 149
I.P.C. to undergo life imprisonment and
fine of Rs.5000/-, in default, to undergo
additional one year imprisonment; under
Section 147 I.P.C. to undergo six month
R.I.; and under Section 148 I.P.C. to
undergo one year R.I., whereas co-convict
Sanju was convicted and sentenced under
Section 25 (1-B) of the Arms Act to
undergo one year's R.I. and fine of
Rs.1000/-, in default, to undergo additional
three months imprisonment.

(6)
Feeling
aggrieved
by
their
convictions and sentenced vide judgment
and
order
dated
09.07.2004,
convict/respondent
no.6-Hari
Shanker
preferred Criminal Appeal No. 1917 of
2004 : Hari Shanker Vs. State of U.P.,
whereas co-convicts Sanju, Nanu, Chailu,
Shatrughan
and
Parmanand
preferred
Criminal Appeal No. 1578 of 2004 : Sanju
and 4 others Vs. State, before this Court
and the same are pending adjudication
before this Court.

(7) According to the petitioner, vide
orders dated 13.07.2005 (Annexure No. 6),
30.08.2005
(Annexure
No.
7)
and
22.05.2006 (Annexure No.8), the bail
applications preferred by the respondent
no.6-Hari Shanker in Criminal Appeal No.
1917 of 2004 were rejected. However, coconvict Sanju, Nanhu (real nephew of the
respondent no.6), Chailu, Shatrughan and
Parmanand were released on bail vide order
dated 13.07.2005 passed by a Co-ordinate
Bench of this Court. After released on bail,
nephew of the respondent no.6 (Sanju,
Nanhu) and co-accused Chailu attacked the
brother of the petitioner, hence petitioner's
father had lodged an F.I.R. in this regard,
which was registered as Case Crime No. 42
of 2007, under Sections 379, 338, 307
I.P.C. on 11.01.2007; and case crime No.
1210 INDIAN LAW REPORTS ALLAHABAD SERIES
56 of 2007 under Sections 307, 504 I.P.C.
at police station Machhrehta, District
Sitapur. According to him, in case crime
No. 56 of 2007, the trial Court convicted
and sentenced the accused persons to
undergo ten years imprisonment, against
which, criminal appeal has been filed
before this Court, wherein the nephew of
respondent no.6, Sanju and Chailu, were
released on bail in Case Crime No. 56 of
2007, under Sections 307/504 I.P.C. on
17.01.2007.
Thereafter,
nephew
of
respondent no.6 murdered the father of the
petitioner, hence the brother of petitioner,
namely, Mukesh Dixit, lodged an F.I.R. in
this regard, which was registered as Case
Crime No. 1137 of 2009, under Sections
302, 149, 120-B I.P.C., Police Station
Machhrehta, District Sitapur. This case was
committed to Sessions Court and the
Sessions Court had also awarded life
imprisonment in Sessions Trial No. 1137 of
2009 to the nephew of the respondent no.6,
namely, Sanju and Chailu.

(8) It has also been stated by the
petitioner that when respondent no.6 and
other co-accused were confined in District
Jail, Sitapur, they were continuously
threatening the petitioner and his family
members, hence he filed a writ petition,
bearing No. 563 (M/B) of 2017, before this
Court, which was disposed of vide order
dated 11.01.2017 with a direction to the
Principal Secretary (Home), U.P., Lucknow
to consider a copy of the petition as a
representation
and
take
appropriate
decision/action within two months. In
compliance of the order dated 11.01.2017,
the
Principal
Secretary
(Home),
Government
of
U.P.,
vide
office
memorandum dated 09.03.2017 (Annexure
No. 14), recommended to transfer the
respondent no.6-Hari Shanker and coaccused Sanju, Chailu, Parmanand and
Shatrohan from District Jail, Sitapur to
District Jail, Barelly. Thereafter, the
petitioner came to know that the respondent
no.6-Hari Shanker was trying to be released
prematurely, hence the petitioner had
preferred a representation dated 12.12.2018
(Annexure No.15) but without paying any
heed on the petitioner's representation, the
respondent no.6-Hari Shanker was released
prematurely vide order dated 29.11.2019.

(9) Aggrieved by the aforesaid order
of premature release dated 29.11.2019, the
petitioner has filed the instant writ petition.

(B) Submissions

B.1 Submission on behalf of the
petitioner

(10) Shri Girish Kumar Pandey,
learned Counsel appearing on behalf of the
petitioner,
made
the
following
submissions:-

I. Respondent no.6-Hari Shanker has
been released prematurely by the impugned
order
dated
29.11.2019
in
absolute
contravention of the provisions contained
in the Government Order dated 01.08.2018,
which inter alia provides that a convict,
who has been sentenced to undergo life
imprisonment, shall not be eligible for
release in case he has been convicted for
some offence said to have been committed
by him during parole and further such
convicts sentenced for life imprisonment
are also not liable to be released, who have
been sentenced for life for more than one
offence.

II. Sub-clause (x) of Para-3 of
Government
Order
dated
01.08.2018
clearly provides that the person, who is
convicted for life two times, will not be
5 All. Umesh Dixit Vs. State of U.P. & Ors.
1211
entitled to be released in light of the
provisions of Government Order dated
01.108.2018
but
while
passing
the
impugned order of premature release dated
29.11.2019,
the
respondent
no.6-Hari
Shanker has been granted the benefit of
Section 2 of U.P. Prisoners Release on
Probation Act, 1938 (hereinafter referred to
as "Act, 1938") ignoring the Government
Order dated 01.08.2018 by the State
Government.

III. The convict/respondent no.6-Hari
Shanker was convicted and sentenced to
undergo life imprisonment in two separate
murder cases and he is a habitual/notorious
criminal, hence he is not entitled to be
extended the benefit of Section 2 of the
Act, 1938.

IV. Hence the impugned order of
premature release is liable to be quashed.

B.2
Submissions
on
behalf
of
Respondent no.6-Hari Shanker

(11) Shri Siddharth Sinha, learned
Counsel appearing on behalf of the
respondent no.6-Hari Shanker, made the
following submissions :-

I. The respondent no.6 had moved an
application of his premature release on the
prescribed Form ''A'. His Excellency, the
Governor of U.P. had accepted the
application of the respondent no.6 after
satisfying that respondent no.6 fulfills the
conditions enumerated under Section 8 of
the Act, 1938.

II. In Sessions Trial Nos. 187 of 1991
and 78 of 2003, the respondent no.6 was
wrongly convicted by the trial Court,
therefore, against his conviction and
sentence, he preferred Criminal Appeal
Nos. 117 of 1996 and 1917 of 2004,
respectively, before this Court, wherein the
respondent no.6 was granted bail by this
Court.

III. In Criminal Appeal No. 1917 of
2004, the role of firing was actually
assigned to co-accused Sanju, resulting into
the death of deceased. The cause of death
as spelt out in the post-mortem report was
ante-mortem firearm injury alleged to have
been caused by co-accused Sanju. The
respondent no.6 has no role in commission
of the murder of the deceased.

IV. The respondent no.6 has neither
threatened the petitioner nor his family
members. There is a long standing enmity
between the family of respondent no.6 and
the family of petitioner.

V. The respondent no.6 was released
as per the provisions of Government Order
No. 1658/22-02-2004-25 (94)/97 dated
06.09.2004 by the competent authorities
with the consent of His Excellency the
Governor
of
U.P.
Furthermore,
the
impugned order of release is based on the
subjective satisfaction of the releasing
authority.

VI. The Government Order dated
06.09.2004 was issued as per the guidelines
issued by the Apex Court in Laksman
Naskar Vs. Union of India : 2000
Crl.L.J. 1471. The respondent no.6 was
released by means of impugned order by
the authorities as all the guidelines issued
by the Apex Court in Laksman Naskar
(supra)
have
been
fulfilled
by
the
respondent no.6.

VII. In Maru Ram Vs. Union of
India : 1981 (1) SCC 107, the Apex Court
has held that Section 433-A Cr.P.C. does
not and cannot even wee bit the pardon
power of Governor or President. The
necessary sequel to this logic is that
notwithstanding section 433-A Cr.P.C., the
President or Governor continues to exercise
the power of commutation and release
1212 INDIAN LAW REPORTS ALLAHABAD SERIES
under Articles 72 and 161 of the
Constitution.
Hence
the
impugned
premature release of the respondent no.6
was
as
per
the
guidelines
of
the
Government Order dated 06.09.2004.

VIII. Hence, the instant writ petition is
liable to be dismissed.

B.3 Submissions on behalf of the
State/respondents no.1 to 5

(12)
Shri
S.P.
Singh,
learned
Additional
Government
Advocate
appearing
on
behalf
of
the
State/respondents no. 1 to 5, made the
following submissions :-

I.
Convict/respondent
no.6-Hari
Shankar was released after his application
under Form ''A' was accepted by the State
Government, with the consent of His
Excellency of Governor under Section
432
Cr.P.C.,
under
the
conditions
mentioned in Section 8 of the Act, 1938
on 21.12.2019.

II. Vide Government Order dated
01.08.2018, the policy has been framed
for releasing the convicted prisoner
prematurely. However, in the present
case, no benefit of the Government Order
dated 01.08.2018 has been provided to
the respondent no.6 but he has been
released under the license as provided to
Form ''A'.

III. The State, while taking decision
to release the respondent no.6, had
considered the objection moved by the
petitioner and after adopting the due
process as provided under Government
Order dated 06.09.2004, released the
respondent no.6 prematurely.

IV. Respondent no.6 was released as
per
the
Government
Order
dated
06.09.2004, which was issued by the State
Government under the provisions of
Section 432 Cr.P.C. read with paragraphs
195, 196, 197 and 198 of the U.P. Jail
Manual and under the provisions of Act,
1938.

V. The concerned Superintendent of
Police and the District Magistrate gave
positive report in favour of respondent
no.6.
However,
any
breach
of
the
conditions of the license by the respondent
no.6, the order for release be cancelled.

VI. Hence, the instant writ petition is
liable to be dismissed.

(C) Analysis

(13) The Governor of Uttar Pradesh,
while exercising powers under Article 161
of the Constitution of India, issued a
Government
Order
dated
01.08.2018,
which relates to a policy for prisoners in
respect of pre-mature release on occasion
of Republic Day every year. Section 3 of
the Government Order dated 01.08.2018
deals with ''Reserved Category'. Subsection (viii) and (x) of Section 3 of the
Government Order dated 01.08.2018 are
reproduced as under :-

"(viii) vkthou dkjkokl ls nfZ.Mr ,sls
fl)nks"k cUnh ftUgs iSjksy@x`g vodk'k ds nkSjku
fdlh vijk/k ds fy;s nks"kh Bgjk;k x;k gksA

(x) ,sls fl)nks"k canh ftUgs ,d ls vf/kd
vijkf/kd izdj.kks esa vkthou djkokl ds n.M ls
nf.Mr fd;k x;k gSA

(14) From perusal of the aforesaid
provisions, it is crystal clear that Subsection (viii) and (x) of Section 3 of the
Government
Order
dated
01.08.2018
restricted to release such life-imprisonment
prisoners prematurely, who has been held
guilty/convicted for any offence during the
period of parole/home leave and also
restricted to release such life-imprisonment
prisoners prematurely, who have been
5 All. Umesh Dixit Vs. State of U.P. & Ors.
1213
convicted and sentenced to more than one
criminal offences for life imprisonment.

(15) The contention of the learned
Counsel for the petitioner is that since the
respondent
No.6-Hari
Shanker
was
convicted
and
sentenced
for
life
imprisonment twice, hence he was not
entitled to be released prematurely as per
sub-section (viii) and (x) of Section 3 of the
Government Order dated 01.08.2018 but
contrary to the aforesaid Government Order
dated 01.08.2018, the respondent no.6-Hari
Shanker was released prematurely by
means of the impugned order without
considering the aforesaid Government
Order dated 01.08.2018.

(16) Per contra, learned Counsel for
the
respondents
has
supported
the
impugned order and have contended that
respondent no.6 was released as per the
Government
Order
dated
06.09.2004,
which was prevalent at the time of
conviction of the respondent no.6, hence
the contention of the petitioner that
Government Order dated 01.08.2018 has
not been considered while passing the
impugned
order
of
release
of
the
respondent
no.6
prematurely
has
no
substance and the same is liable to be
rejected.

(17) This Court has perused the
photocopy of the record produced by the
learned Additional Government Advocate
during the course of final hearing of the
case. It transpires from perusal of the
records
that
release
of
the
convict/respondent no.6 prematurely was
commenced on the application of the
convict/respondent
no.6,
which
is
reproduced as under :-

Lksok esa]

Jh eku ofj"B vf/k{kd

dsUnzh; dkjkxkj cjsyhA

}kjk& pdzkf/kdkjhA

egksn;]

lfou; fuosnu djuk gS fd izkFkhZ gjh'kadj iq=
jktkjke] fuoklh&HknsHkj gky&jktiqj [kxZ Fkkuk&
eNjsgVk] tuin&lhrkiqj ekuuh; U;k;ky; vij l=
U;k;k/kh'k@QkLV Vz~Sd dkVZ la[;k&3] lhrkiqj }kjk
fnukad &09-07-2004 dks v0la0&267@2002] ,l-Vhua0&78@2003] /kkjk&147] 148] 302@149 vkbZ-ih-lh-
ds okn esa vkthou dkjkokl ds n.M ls nf.Mr fd;k
x;k gSA esjs }kjk lh0vkj0ih0lh0 dh /kkjk &433, ds
vUrxZr 14 o"kZ vifjgkj ltk ls vf/kd ltk Hkksx yh
x;h gSA eS le;iwoZ fjgkbZ dk ik= gks x;k gwWA esjk
dksbZ vfHkHkkod ugha gSA

vr% Jheku th ls djc) izkFkZuk gS fd esjk
vfHkHkkod ftyk izkcs'ku vf/kdkjh] lhrkiqj dks fu;qDr
dj esjk QkWeZ , izsf"kr djus dh d`ik djsaA

ftyk izkscs'ku vf/kdkjh

lhrkiqj dks

fu'kkuh vaxqBk IkzkFkhZ

Ikzekf.kr

vxzlkfjr gjh'kadj iq= jktkjke

ofj"B vf/k{kd tsyj lh0Vh0 ua0& 47572

dsUnzh; djkxkj dsUnzh; dkjkxkj dsUnzh;
dkjkxkj

cjsyh cjsyh cjsyh

(18) It appears that on the aforesaid
application of the convict/ respondent no.6
showing his conviction in Sessions Trial
No. 78/2003, Form ''A' was issued by the
competent authority to the respondent no.6,
wherein at page no.2 also the Senior
Superintendent,
Central
Jail,
Bareilly
showed the conviction of the respondent
no.6 in Sessions Trial No. 78 of 2003. In
Jail Report dated 07.12.2017, the Senior
Superintendent, Central Jail, Bareilly also
showed the conviction of the respondent
no.6 in Sessions Trial No. 78 of 2003.

(19) It also transpires from the record
that the Superintendent of Police, Sitapur,
on the basis of the following report of its
subordinate authority dated 11.05.2018,
1214 INDIAN LAW REPORTS ALLAHABAD SERIES
had not recommended to release the
respondent no.6 prematurely.

egksn;]

fuosnu gS fd vfHk- eq-v-la- 171@90 /kkjk 147]
148] 149] 452] 302 I.P.C. esa cUnh tks isjksy ij
NqVdj ?kj vk;k Fkk vfHk- }kjk iqu% vijk/k dkfjr
fd;k x;k tks eq-v-l- 267@02 /kkjk 147] 148]149]
302 I.P.C. esa iathd`r gSA vfHk- tsy esa gSA le; iwoZ
fjgkbZ gksus ij iqu% vijk/k dkfjr dj ldrk gSA vr%
fjgkbZ dk ?kksj fojks/k fd;k tkrk gSA lLrqfr ugh dh
tkrh gSA

(20) The record further reveals that the
Committee
so
constituted
under
the
Chairmanship
of
District
Magistrate,
Sitapur to consider the issue of release of
the respondent no.6 prematurely had only
considered the life imprisonment awarded
to the respondent no.6 in Sessions Trial No.
78 of 2003 arising out of Case Crime No.
267 of 2002, under Sections 147, 148,
302/149 I.P.C. and had not considered the
conviction
and
sentence
of
life
imprisonment
granted
to
the
convict/respondent no.6 in Sessions Trial
No. 187 of 1991. After considering the life
imprisonment awarded in Sessions Trial
No. 78 of 2003 to respondent no.6, the
aforesaid Committee recommended the
release of the respondent no.6 prematurely
vide
report
dated
20.06.2018.
The
Probation Board, vide its resolution dated
26.06.2019, while considering the fact that
the respondent no.6 was convicted and
sentenced in Sessions Trial No. 78 of 2003
and considering the recommendation of the
Committee headed by District Magistrate
dated 20.06.2018, recommended to release
the
respondent
no.6.
Thereafter,
on
19.09.2019, the Probation Board had again
considered the issue of release of the
respondent no.6 prematurely and after due
consideration, recommended to release the
respondent no.6 prematurely. Thereafter,
impugned order dated 29.11.2019 has been
passed for releasing the respondent no.6
prematurely.

(21) In National Highways Authority
of India and others Vs. Madhukar
Kumar and others (Civil Appeal No (s)
11141 of 2018, decided on 23.09.2021), the
Apex Court observed that undoubtedly, in
India, every State action must be fair,
failing which, it will fall foul of the
mandate of Article 14 of the Constitution of
India.

(22) In the instant case, from perusal
of the series of events, as mentioned
hereinabove, in regard to consideration of
the prayer of the respondent no.6 for
premature
release,
it
transpires
that
although the convict/respondent no.6 was
convicted and sentenced to undergo life
imprisonment in two murder cases i.e.
Sessions Trial No. 187 of 1991 and
Sessions Trial No. 78 of 2003, against
which separate criminal appeal has been
preferred by the respondent no.6 and the
same are still pending before this Court but
while passing the impugned order dated
29.11.2019, it appears that the factum of
conviction and sentence of the respondent
no.6 in the the aforesaid two murder cases
have not been considered by the State
Government and only the factum of
conviction and sentence of respondent no.6
in Sessions Trial No. 78 of 2003 has been
considered by the State Government.

(23) At this juncture, it is trite law that
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 State of Haryana v.
Mohinder Singh : (2000) 3 SCC 394, the
Apex Court has held that the power of
remission cannot be exercised arbitrarily.
The decision to grant remission should be
5 All. Umesh Dixit Vs. State of U.P. & Ors.
1215
informed, fair and reasonable. The Apex
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
informed, reasonable and fair to all
concerned."

(24) In Sangeet v. State of Haryana :
(2013) 2 SCC 452, the Apex Court
reiterated the principle that the power of
remission cannot be exercised arbitrarily by
relying on the decision in Mohinder
(supra).

(25) In Rajan v. Home Secretary,
Home Department of Tamil Nadu :
(2019) 14 SCC 114, the Apex Court has
made the following observations:

"18. The petitioner would, however,
rely on the unreported decision of this
Court in Ram Sewak [Ram Sewak v. State
of U.P., 2018 SCC OnLine SC 2012] , to
contend that this Court may direct the
authorities
to
release
the
petitioner
forthwith and that there is no point in
directing further consideration by the State
as the petitioner had already undergone
over 30 years of sentence and with
remission, over 36 years. The order passed
by this Court in Ram Sewak [Ram Sewak
v. State of U.P., 2018 SCC OnLine SC
2012] , is obviously in the facts of that
case. As a matter of fact, it is well settled
by now that grant or non-grant of
remission is the prerogative to be
exercised by the competent authority
and it is not for the court to supplant
that
procedure.
Indeed,
grant
of
premature release is not a matter of
privilege but is the power coupled with
duty conferred on the appropriate
Government in terms of Sections 432
and 433 CrPC, to be exercised by the
competent authority after taking into
account all the relevant factors, such as
it would not undermine the nature of
crime committed and the impact of the
remission that may be the concern of the
society as well as the concern of the State
Government.

.....

20. Thus understood, we cannot
countenance the relief claimed by the
petitioner to direct the respondents to
release the petitioner forthwith or to
direct the respondents to remit the
remaining sentence and release the
petitioner. The petitioner, at best, is
entitled to the relief of having directions
issued to the respondents to consider his
representation
dated
5-2-2018,
expeditiously, on its own merits and in
accordance with law. We may not be
understood
to
have
expressed
any
opinion either way on the merits of the
claim of the petitioner. The fact that the
petitioner's request for premature release
was already considered once and rejected
by the Advisory Board of the State
Government, in our opinion, ought not to
come in the way of the petitioner for
1216 INDIAN LAW REPORTS ALLAHABAD SERIES
consideration of his fresh representation
made on 5-2-2018. We say so because the
opinion of the Advisory Board merely
refers to the negative recommendation of
the Probation Officer, Madurai and the
District Collector, Madurai. The additional
reason stated by the State Government
seems to be as follows:

"(4) The proceedings of the Advisory
Board held on 20-1- 2010 is as follows:

(i) The case is heard and examined the
relevant records. The accused is a Srilankan
National and lodged at Special 13 Camp at
Chengalpet before the commission of this
grave offence.

(ii) The Probation Officer, Madurai
and the District Collector, Madurai have
not recommended the premature release.

(iii) Also this prisoner has not
repented for his act.

(iv) The plea for premature release is
''Not Recommended'.

(5) The Government after careful
examination accept the recommendation of
the Advisory Board, Vellore and the
premature release of Life Convict No.
23736, Rajan, s/o Robin, confined in
Central Prison, Vellore is hereby rejected."

With the passage of time, however, the
situation may have undergone a change
and, particularly, because now the claim of
the petitioner for premature release will
have to be considered only in reference to
the sentence of life imprisonment awarded
to him for the offences under Section 302
(3 counts) and Section 307 (4 counts) of
IPC, respectively."

(emphasis supplied)

(26) Recently, in Ram Chander Vs.
The State of Chhattisgarh & Anr (Writ
Petition (Crl) No 49 of 2022, decided on
22.04.2022), the Apex Court, after taking
note of the aforesaid dictum as well as
Laxman Naskar v. State of West Bengal :
(2000) 7 SCC 626, observed that it makes
clear that the Court has the power to review
the decision of the government regarding
the
acceptance
or
rejection
of
an
application for remission under Section 432
of the Cr.P.C. to determine whether the
decision is arbitrary in nature. The Court is
empowered to direct the government to
reconsider its decision.

(27) Keeping in mind the aforesaid
ratio laid down by the Apex Court, this
Court
finds
that
while
passing
the
impugned order of premature release of the
respondent no.6 dated 29.11.2019, the
factum of conviction and sentence of life
imprisonment awarded to respondent no.6
by the trial Court in Sessions Trial No. 187
of 1991 arising out of Case Crime No. 171
of 1990, under Sections 147, 148, 452, 149,
302 I.P.C., Police Station Machhrehta,
District Sitapur, has not at all been
considered by the State. Moreso, the report
of the Superintendent of Police, Sitapur, as
referred to hereinabove, has also not been
considered. Hence, this Court is of the
opinion that as the aforesaid action in not
considering the life imprisonment awarded
to the respondent no.6 in Sessions Trial No.
187 of 1991 arising out of Case Crime No.
171 of 1990, under Sections 147, 148, 452,
149, 302 I.P.C., Police Station Machhrehta,
District Sitapur, on the part of the State
appears to be arbitrary, therefore, it is a fit
case to remit the case of the respondent
no.6 for premature release to the State
Government for re-consideration.

(D) Conclusion

(28) Resultantly, the instant writ
petition is allowed in part. The impugned
order dated 29.11.2019 is hereby quashed.
The issue of premature release of the
respondent no.6 is remitted to the State
5 All. Vivek Raj Singh Vs. Civil Judge Junior Division, Shahjahanpur & Ors.
1217
Government for re-consideration, on its
own merits and in accordance with law,
after considering all the relevant factors,
such as nature of crime committed and the
impact of the remission that may be the
concern of the society as well as the
concern of the State Government and also
life imprisonment awarded by the trial
Court in two murder cases i.e. in Sessions
Trial No. 187 of 1991 and Sessions Trial
No. 78 of 2003, expeditiously, preferably,
within a period of three months from
today.

(29) For the period of three months or
till fresh decision on remand, whichever is
earlier, the respondent no.6-Hari Shanker
shall not be taken into custody to serve the
sentence as ordered by the trial Court.

(30) It is clarified that this Court has
not expressed any opinion either way on
the merits of the claim of the respondent
no.6.

(31) For the facts and circumstances of
the case, there is no order as to costs.

(32) The petitioner as well as the
learned Additional Government Advocate
shall produce/sent a certified copy of this
order
to
respondent
no.1-Principal
Secretary (Home), Government of U.P.,
Lucknow, for necessary information and its
compliance forthwith.
----------
(2022)05ILR A1217
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.04.2022

BEFORE

THE HON'BLE JASPREET SINGH, J.

Transfer Application (Civil) 57 of 2019
Vivek Raj Singh ...Applicant
Versus
Civil Judge Junior Division, Shahjahanpur
& Ors. ...Opp. Parties

Counsel for the Applicant:
Subhash Vidyarthi, Sarvesh Kumar Dubey

Counsel for the Opp. Parties:
Gyan Singh Chauhan

Civil Law - Civil Procedure Code, 1908 -
Sections 16 & 24 - Order 7, Rule 11 -
Transfer Application - to transfer the original
Suit from district Shahjahanpur to Lucknow - on
the ground of threat perception - question of
maintainability raised - cause of action for
framing and filing of a Suit is altogether
different from a cause of action seeking transfer
from one district to anr. - if the case is pending
before a Court which is within specified area of
Oudh only in that respect of such cases where
this Court exercise the power of transfer under
section 24 of CPC - since, case is not
maintainable at Lucknow due to lack of
territorial jurisdiction - liberty granted to move
file the application in Prayagraj. (Para - 19, 22,
24, 25)

Transfer Application Dismissed. (E-11)

List of Cases cited:-

1. Shri Nasiruddin Vs St. Transport Appellate
Tribunal (1975 (2) SCC 671,

2. Smt. Jyotsna Dixit Vs Civil Judge Khiri & ors.
(1999 (1) AWC 107),

3. Mahendra Pratap Bhatt Vs Smt. Saroj Mahana
(2016 (116) ALR 742).

4. Raja Khan Vs Uttar Pradesh Sunni Central
waqf Board & anr. ( 2010 (15) SCC 228).

(Delivered by Hon'ble Jaspreet Singh, J.)

1. The instant petition for transfer has
been moved under Section 24 C.P.C. with
the prayer that the Original Suit bearing
No. 140 of 2013 pending in the Court of