# Zubair v. State of U.P. & Ors

- **Citation:** (2021) 10 ILRA 1002
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-04
- **Case number:** Misc. Bench No. 15164 of 2021
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/zubair-v-state-of-u-p-ors-46271
- **Pages:** 8

## Headnote

Criminal Law - Remission of Sentence -
Code of Criminal Procedure, 1973 -
Section 432, 433, 433-A - Uttar
Pradesh
Prisoner's
Release
on
Probation Act, 1938 - Section 2 - U.P.
Prisoner's Release on Probation Rules,
1938 - Rules 3 & 4 - Form 'A' - Power to
commute sentence - petitioner, aged about
72 years, already undergone sentence for
more than 23 years with remission and
more than 17 years without remission -
similarly situated co-convicts of the case
were released by granting remission -
petitioner 'Form A' rejected on the ground
that the offence for which he was punished
was heinous offence & he jumped furlough
& remained absconded for a period of 6
years 08 months and 27 days - Held -
similarly situated co-convicts were released,
so reason given that offence was heinous
shows the discriminatory attitude of the
Authorities
-
for
jumping
furlough,
petitioner already received punishment of
forfeiture of his total earned remission of
1087 days - impugned order Set aside -
Authorities directed to release the petitioner
on licence. (Para 10)
Allowed. (E-5)

## Text

1002 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)10ILR A1002
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2021

BEFORE

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

Misc. Bench No. 15164 of 2021

Zubair ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Purnendu Chakravarty & Sri Anuuj
Taandon

Counsel for the Respondents:
Sri S.P. Singh, Additional Government
Advocate

Criminal Law - Remission of Sentence -
Code of Criminal Procedure, 1973 -
Section 432, 433, 433-A - Uttar
Pradesh
Prisoner's
Release
on
Probation Act, 1938 - Section 2 - U.P.
Prisoner's Release on Probation Rules,
1938 - Rules 3 & 4 - Form 'A' - Power to
commute sentence - petitioner, aged about
72 years, already undergone sentence for
more than 23 years with remission and
more than 17 years without remission -
similarly situated co-convicts of the case
were released by granting remission -
petitioner 'Form A' rejected on the ground
that the offence for which he was punished
was heinous offence & he jumped furlough
& remained absconded for a period of 6
years 08 months and 27 days - Held -
similarly situated co-convicts were released,
so reason given that offence was heinous
shows the discriminatory attitude of the
Authorities
-
for
jumping
furlough,
petitioner already received punishment of
forfeiture of his total earned remission of
1087 days - impugned order Set aside -
Authorities directed to release the petitioner
on licence. (Para 10)
Allowed. (E-5)

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. Heard Shri Purnendu Chakravarty,
learned counsel for the petitioner and Shri
S.P. Singh, learned A.G.A. for the Staterespondents and perused the material
available on record.

2. The present writ petition has been
filed by the petitioner- Zubair with the
prayer to issue a writ, order or direction in
the nature of certiorari to quash the order
dated 30.06.2021 passed by the Joint
Secretary, Government of Uttar Pradesh
whereby the 'Form A' of the petitioner for
grant of remission of his consequent release
has been rejected, with a further prayer to
release the petitioner forthwith in the light
of recommendations made by the District
Magistrate,
Muzaffar
Nagar,
Senior
Superintendent of Police, Muzaffar Nagar
and Senior Superintendent, District Jail
Haridwar on remission and pre-mature
release.

3. Learned counsel for the petitioner
submitted that 'Form A' of the petitioner,
who is aged about 72 years, for grant of
remission of his consequent release has
been rejected by the State Government vide
its
order
dated
30.06.2021
without
application of mind. He further submitted
that the petitioner has already undergone
sentence for more than 23 years with
remission and more than 17 years without
remission as per the calculation shown in
the report sent by the Jail Authorities,
Haridwar. He further submitted that plea of
remission taken by the petitioner was
rejected on the unreasonable grounds of
nature
and
gravity
of
the
offence
committed, whereas the similarly situated
co-convicts of the case were released by
10 All. Zubair Vs. State of U.P. & Ors.
1003
granting remission on the grounds of old
age and good conduct. He further submitted
that on the similar ground, petitioner had
earlier filed a writ petition i.e. Misc. Bench
No. 18216 of 2019 before this Court
wherein this Court vide its order dated
21.01.2021 quashed the orders dated
13.01.2016 and 05.04.2018 passed by the
State Government and disposed of the writ
petition with a direction to the State
Government to reconsider the case of the
petitioner under the provisions of Section 2
of the Uttar Pradesh Prisoner's Release on
Probation Act, 1938. Previous Form 'A' of
the petitioner was rejected by the order
dated 13.01.2016 passed by the Deputy
Secretary, Government of Uttar Pradesh
vide
Government
Order
No.
181/2015/887/22-2-2015-17(204)/2012,
wherein it had been mentioned that the plea
was rejected on the grounds that the
petitioner had jumped furlough when he
was given home leave and that he remained
absent for a period of 6 years 08 months
and 27 days. However, the Deputy
Secretary, Government of Uttar Pradesh,
failed to take into consideration the fact
that for this act of misconduct, the
petitioner
has
already
received
the
punishment of forfeiture of his total earned
remission of 1087 days and with respect to
such punishment, a certificate was issued
on 17.02.2019, by the Jailer, District Jail,
Haridwar.
He
further
submitted
that
opposite party no. 1 failed to consider the
recommendations made in the reports
submitted
by
Senior
Superintendent,
District
Jail,
Haridwar,
Senior
Superintendent of Police, Muzaffar Nagar
and District Magistrate, Muzaffar Nagar.
He further submitted that respondent
Authority committed a grave error in not
appreciating that in terms of Rule 3 of the
U.P. Prisoner's Release on Probation Rules,
1938, a prisoner may be eligible for
consideration for release by the State
Government if he has served imprisonment
for a total period of fourteen years. Since
the petitioner has already undergone a
sentence of quite a long period, he deserves
to be released forthwith.

4. On the contrary, learned A.G.A.
appearing on behalf of the State has
opposed the contention made by the
learned counsel for the petitioner and
stated that the Probation Board in its
meeting dated 19.05.2021 had considered
the case of the petitioner and given a
finding that the petitioner was involved in
murder of three persons and when he was
detained in "Sampurnand Shivir Sitarganj
Jail", he jumped from his home leave and
absconded for a period of 6 years, 8 months
and 27 days. Thereafter he was arrested on
29.01.2008 by the police and sent to jail on
31.01.2008. As the petitioner was involved
in heinous crime and also jumped the
furlough, therefore, 'Form A' of the
petitioner has been rejected, as such, the
present writ petition is liable to be
dismissed. Learned A.G.A. also disputed
the factum of age of the petitioner and
submitted that petitioner is of 62 years
instead of 72 years as mentioned by the
petitioner.

5. Considered the rival submissions
and perused the material available on
recored.

In this regard, Rule 4 of the U.P.
Prisoners' Release on Probation Rules,
1938 provides as under:

"4. Eligibility for release. - Any
prisoner other than a prisoner specified in
Rule 3, may be eligible for consideration
by the State Government for release on
licence,-
1004 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) if he is a prisoner to whom
Section 433-A of the Code of Criminal
Procedure, 1973 applies and has served
imprisonment for a total period of
fourteen years;

(ii) if he is a prisoner sentenced
to imprisonment for life to whom Section
433-A of the Code of Criminal Procedure,
1973 does not apply and has served
imprisonment for a total period of
fourteen years with remissions; and

(iii) in any other case if he has
served one-third without remissions of the
period of imprisonment to which he was
sentenced."

The provisions under which
premature
release
of
the
convicted
prisoners is to be considered are as under:

"432.Power to suspend or remit
sentences.-

(1) When any person has been
sentenced to punishment for an offence,
the appropriate Government may, at any
time, without conditions or upon any
conditions which the person sentenced
accepts, suspend the execution of his
sentence or remit the whole or any part of
the punishment to which he has been
sentenced.

(2) Whenever an application is
made to the appropriate Government for
the suspension or remission of a sentence,
the appropriate Government may require
the presiding Judge of the Court before or
by which the conviction was had or
confirmed, to state his opinion as to
whether the application should be granted
or refused, together with his reasons for
such opinion and also to forward with the
statement of such opinion a certified copy
of the record of the trial or of such record
thereof as exists.

(3) If any condition on which a
sentence has been suspended or remitted
is, in the opinion of the appropriate
Government, not fulfilled, the appropriate
Government may cancel the suspension or
remission, and thereupon the person in
whose favor the sentence has been
suspended or remitted may, if at large, be
arrested by any police officer, without
warrant and remanded to undergo the
unexpired portion of the sentence.

(4) The condition on which a
sentence is suspended or remitted under
this section may be one to be fulfilled by
the person in whose favour the sentence is
suspended or remitted, or one independent
of his will.

(5) The appropriate Government
may, by general rules or special orders,
give directions as to the suspension of
sentences and the conditions on which
petitions should be presented and dealt
with:

Provided that in the case of any
sentence (other than a sentence of fine)
passed on a male person above the age of
eighteen years, no such petition by the
person sentenced or by any other person
on his behalf shall be entertained, unless
the person sentenced is in jail, and-

(a) where such petition is made
by the person sentenced, it is presented
through the officer in charge of the jail;
or

(b) where such petition is made
by any other person, it contains a
10 All. Zubair Vs. State of U.P. & Ors.
1005
declaration that the person sentenced is in
jail.

(6) The provisions of the above
sub-sections shall also apply to any order
passed by a Criminal Court under any
section of this Code or of any other law
which restricts the liberty of any person or
imposes any liability upon him or his
property.

(7) In this section and in section
433,
the
expression
"appropriate
Government" means,-

(a) in cases where the sentence is
for an offence against, or the order referred
to in sub-section (6) is passed under, any
law relating to a matter to which the
executive power of the Union extends, the
Central Government;

(b) in other cases, the Government
of the State within which the offender is
sentenced or the said order is passed.

433.
Power
to
commute
sentence.-

The appropriate Government may,
without the consent of the person sentenced,
commute-

(a) a sentence of death, for any
other punishment provided by the Indian
Penal Code (45 of 1860);

(b) a sentence of imprisonment for
life, for imprisonment for a term not
exceeding fourteen years or for fine;

(c)
a
sentence
of
rigorous
imprisonment, for simple imprisonment for
any term to which that person might have
been sentenced, or for fine;

(d)
a
sentence
of
simple
imprisonment, for fine.

433 A. Restriction on powers of
remission or commutation in certain
cases.-Notwithstanding
anything
contained in section 432, where a
sentence of imprisonment for life is
imposed on conviction of the person for
an offence for which death is one of the
punishments provided by laws, or where
a sentence of death imposed on a person
has been commuted under section 433
into one of imprisonment for life such
person shall not be released from prison
unless he had served at least fourteen
years of imprisonment."

6. Perusal of the record shows that on
the previous occasion also, this Court in a
Writ Petition i.e. Misc. Bench No. 18216 of
2019 (Zubair Versus State of U.P. &
Others) directed the respondent no. 1 to
reconsider the case of the petitioner under
the provisions of Section 2 of the United
Provinces Prisoners Release on Probation
Act, 1938 after quashing the orders dated
13.01.2016 and 05.04.2018, whereby 'Form
A' of the petitioner was rejected and
communicated to the petitioner. The
respondent no. 1 again rejected the 'Form
A' of the petitioner vide order dated
30.06.2021, which is annexed as Annexure
No. 2 to the writ petition. Learned counsel
for the petitioner submitted that similarly
situated co-convicts have been released
accepting their 'Form A'. One co-convict
was released on the ground of age of 65
years but the 'Form A' of the petitioner has
been rejected arbitrarily without any
reasonable
basis.
The
Senior
Superintendent, District Jail, Haridwar,
Senior Superintendent of Police, Muzzafar
Nagar and District Magistrate, Muzzafar
Nagar have recommended the release of the
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner. Their report shows that conduct
of the petitioner remained good during his
imprisonment in jail and nothing adverse
has been recorded in their reports. The
petitioner has undergone more than 23
years sentence with remission and more
than 17 years of sentence without remission
as per the calculation shown in the report
by the Jail Authorities. In fact, the age of
the petitioner is 72 years and he is very old
and weak, so the order impugned rejecting
the Form A of the petitioner be set aside
and the petitioner be directed to be released
forthwith.

7. Learned A.G.A. disputed the age of
the petitioner and submitted that his age is
62 years only and the co-convict was
released when he was of 65 years.
Previously, Jail Authorities reported the
age of the petitioner as 72 years but
subsequently mentioned the age of the
petitioner as 62 years. On his point, this
Court on 21.09.2021 had passed the
following order:-

"Heard
Mr.
Purnendu
Chakravarty, learned counsel for the
petitioner and Mr. S.P. Singh, learned
A.G.A. for the State.

Learned
counsel
for
the
petitioner submitted the report of the
Senior Superintendent of Police, Muzaffar
Nagar dated 01.04.2021 wherein the
S.S.P. has approved the premature release
of the petitioner and in the said report, the
age of the victim/petitioner is stated to be
73 years.

On the other hand, learned
A.G.A. has disputed the said fact and
stated that as per the jail record the age of
the victim/petitioner is about 62 years,
which has been stated in paragraph No.8
of his counter affidavit.

The learned A.G.A. is directed to
file an affidavit verifying the exact age of
the victim/petitioner by the next date.

List this case on 04.10.2021.

8. In pursuance of the aforesaid order,
no affidavit has been filed by the learned
A.G.A. Learned A.G.A submitted that on
this discrepancy, enquiry was made and it
came out that age of the petitioner had been
mentioned as 19 years in his statement
recorded under Section 313 Cr.P.C. during
trial in the concerned case. When the query
was made by this Court that if the
petitioner was of 19 years on the date of
recording of his statement under Section
313 Cr.P.C., then the petitioner would be
minor on the date of incident. Upon it,
learned A.G.A. submitted that he is not
pressing this argument and he conceded
about the age what has been mentioned by
the Jail Authorities in the previous papers.
In the impugned order no valid reason has
been shown for the discrimination with coconvicts. So far as the reason that petitioner
jumped the furlough granted to him and
absconded for a period of 6 years 8 months
and
27
days
is
concerned,
he
is
continuously in jail after his arrest on
29.01.2008 and he sought/granted no parole
thereafter. He has undergone more than 23
years of sentence and similarly situated coconvicts have already been released on the
basis of Form A. Hon'ble Apex Court in the
case of Beche Lal Versus State of Uttar
Pradesh and Another, 2021 SCC Online
SC 499 has observed in this regard as
under:-

"5.
The
High
Court
on
16.04.2018, in Chandrasi v. State of Uttar
10 All. Zubair Vs. State of U.P. & Ors.
1007
Pradesh, Criminal Misc. Writ Petition No.
6041 of 2018, after noticing the lack of
fairness and consistency in considering
applications
for
premature
release
observed and directed as follows:

"13. The impugned orders ex
facie appear to be lacking reason for
rejection of such premature release
particularly
when
there
was
recommendation made by the Committee
headed by the District Magistrate as well
as the opinion of the court was also not
against the convicts and their conduct was
reported to be satisfactory in jail. In these
circumstances
the
impugned
orders
deserve to be set aside and are accordingly
set aside with a direction that the
Government shall reconsider their case
for premature release in the light of fair
and non-discriminatory principles by
speaking order within a period of one
month from the date a certified copy of
this order is produced by the learned
counsel for applicants. Needless to say
that Government ought to lay down a
transparent policy in regard to premature
release of convicts who were lying in
prison for a long time as has been directed
on several occasions by this court in
earlier writ petitions."

6. The State government then
framed the policy dated 01.08.2018.
Curiously, contrary to the direction of the
High Court, the State Government,
arbitrarily restricted it to premature
release of prisoners sentenced to life
imprisonment on the event of Republic
day each year only. The restricted policy is
patently bad for being in derogation of the
orders of the High Court. Additionally, it
is also discriminatory in nature as there is
no nexus to be achieved by providing for
premature release only on a specified date,
when those eligible to be considered for
premature release form a class of persons
sentenced to life imprisonment. There is
no criteria laid down on basis of which a
convict shall be considered for release on
the opportune date in contradistinction to
another
who
may
be
relegated
to
consideration
in
normal
course.
Differentiation amongst this class of
convicts on separate indicia based on
specified
parameters
is
an
entirely
different
matter.
The
policy
having
statutory force under Article 161 of the
Constitution will naturally apply to all
persons sentenced to life imprisonment.
Having been framed subsequent to the
U.P. Jail Manual, 1956 and the U.P.
Prisoners Release on Probation Rules,
1938 will take precedence over the latter.
The
fact
that
any
application
for
premature release submitted before the
formulation of the new policy may have
been rejected, cannot be bar to fresh
consideration without being prejudiced by
the earlier rejection. If premature release
of a convict can be denied on parity
because a similar application of a coaccused had been rejected, conversely if a
co-accused has been granted the benefit of
premature release, it cannot be denied to
another co-accused."

9. The impugned order does not
reveal any sound ground of rejection of
'Form A' of the petitioner, particularly
when there were recommendations made
by the Jail Authority, S.S.P. and D.M.
concerned and also the fact that similarly
situated co-convicts have already been
granted relief and released on the basis of
'Form A'. Previously before this Court in
Writ Petition i.e. Misc. Bench No. 18216 of
2019 (Zubair Versus State of Uttar Pradesh
through Secretary Home & Others), learned
A.G.A. conceded the fact that on the over
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
staying on the home visit parole, the
remission period of 1087 days have been
forfeited by the jail authority and he also
does not raise any dispute in relation to
good conduct of the petitioner and the
recommendation
of
Superintendent
of
Police, Superintendent of Jail and District
Magistrate, Muzaffar Nagar for premature
release of the petitioner. Keeping in view
this fact, this Court passed the following
order on 21.01.2021:-

"12. Considering the arguments
of the learned counsel for the parties and
going through the records, it is evident that
the petitioner was aged about 72 years on
08.04.2013 when the recommendation of
Senior Superintendent of Police, Muzaffar
Nagar was sent for his premature release. It
is also undisputed that co-convicts namely,
(i) Yasin s/o Alimuddin was released vide
Government Order No.5101/22-2-98-18 (98)
dated 22.01.1999, (ii) Meera @ Mirhasan
s/o Karamat was released vide Government
Order No. 631/22-2-2011-17 (132)/2011,
dated 27.07.2011 and (iii) Javed @ Zahid
s/o Sunda @ Hasan was released vide
Government Order No.630/22-2-2011-17
(81)/2011, dated 27.07.2011 (release orders
of the co-convicts have been mentioned in
para-5 of the supplementary counter
affidavit) and Form-A of petitioner was
rejected by way of impugned order dated
13.01.2016. As it is also evident from the
impugned orders itself that one co-convict
was released on the ground that he was
aged about 65 years and in the present case,
admittedly the petitioner was aged about 72
years on 08.04.2013, as mentioned in the
report of Senior Superintendent of Police,
Muzaffar Nagar, therefore, the impugned
orders dated 13.01.2016 and 05.04.2018 are
hereby quashed.

13. The respondent No.1 is
directed to reconsider the case of the
petitioner under the provisions of Section
2 of the Uttar Pradesh Prisoner's Release
on Probation Act, 1938, within a period of
two months from the date of production of
certified copy of this order in accordance
with law.

14.
With
the
aforesaid
observations, the writ petition is disposed
of."

10.

The
impugned
order/communication
dated
30.06.2021
denotes that Form "A" of the petitioner has
been rejected giving reasons that the
petitioner had jumped furlough when he
was released on parole and remained absent
for about 6 years 8 months and 27 days and
also that the offence was very heinous. The
similarly situated co-convicts namely Yasin
son of Alimuddin, Meera @ Mirhasan son
of Karamat and Javed @ Zahid son of
Sunda @ Hasan were released on the basis
of Form 'A' submitted by them, so reason
given that offence was heinous in relation
to Form 'A' of the petitioner shows the
discriminatory attitude of the Authorities.
As far as the fact of jumping furlough is
concerned, it has also been mentioned in
the report of jail authorities that the period
for which the petitioner remained out of
jail, has already been deducted from the
total earned remission of 1087 days, and
has also been mentioned by the petitioner
in paragraph 15 of the writ petition. Hence,
it
appears
that
the
impugned
order/communication has been passed
without considering the observations made
in the Writ Petition i.e. Misc. Bench No.
18216 of 2019 and without application of
mind.

11. Section 2 of the United Provinces
Prisoners Release on Probation Act, 1938
lays down as under:-
10 All. Durga Dutt Tripathi Vs. State of U.P. & Ors.
1009

2.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.

Explanations.-The
expression
"sentence of imprisonment" in this
Section shall include imprisonment in
default
of
payment
of
fine
and
imprisonment for failure to furnish
security under Chapter VIII of the [Code
of Criminal Procedure, 1898 (Act V of
1898)].

12. In the light of the above
discussions,
the
impugned
order/communication dated 30.06.2021 and
other consequential orders rejecting the
Form 'A' of the petitioner are hereby set
aside and the writ petition stands allowed.

13.

Respondent-Authorities
are
directed to release the petitioner on licence
as provided under the provisions of the
United Provinces Prisoners Release on
Probation Act, 1938 read with U.P.
Prisoners' Release on Probation Rules,
1938, forthwith, if not required any other
case.
----------
(2021)10ILR A1009
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.10.2021

BEFORE

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

Misc. Bench No. 19311 of 2019

Durga Dutt Tripathi ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Akhilesh Kumar Kalra, Sri Rajesh
Vhandra Mishra

Counsel for the Respondents:
Sri
S.P.
Singh,
Aditional
Government
Advocate

Criminal Law - Prevention of Corruption
Act, 2018 - Section 19 - Code of
Criminal Procedure, 1973 - Section 197
- Previous Sanction for prosecution -
Challenge
to
sanction
order
under
Article 226 - Held - absence of sanction
vis-s-vis invalidity of sanction - absence
of sanction could be raised at the
inception
and
threshold
by
an
aggrieved person - However, where
sanction order exists, but its legality
and validity is put in question, such
issue has to be raised in the course of
trial - validity of sanction should be
examined during the trial (Para 8, 10)

Dismissed. (E-5)

List of Cases cited :

1. Mansukhlal Vithaldas Chauhan Vs St. of
Guj(1997) 7 SCC 622