High Court · 2018
Case Details
Court No. - 43 Neutral Citation No. - 2024:AHC:190373-DB Case :- CRIMINAL MISC. WRIT PETITION No. - 22179 of 2024 Petitioner :- Kiranpal @ Kinna And Another Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Akash Tomar Counsel for Respondent :- G.A. Hon'ble Ashwani Kumar Mishra,J. Hon'ble Dr. Gautam Chowdhary,J. 1. This petition has been filed challenging the orders passed by the State Government rejecting petitioners' representation for premature release of the petitioners as per the remission policy. A further prayer has been made to consider the petitioners' claim afresh in accordance with UP Prisoner Release on Probation Rules, 1938 as well as the policy of 1.8.2018.
Legal Reasoning
2. Admitted facts giving rise to the present petition lie in a narrow campus. The petitioners are seeking release of Kiranpal @ Kinna and Boby, who were convicted in S.T. No.884 of 2001 under Sections 148, 307, 149, 302 and 323 IPC, P.S.-Khanpur, District- Bulandshahr. The conviction for life was on account of murder of three persons by the convicted accused. The conviction was challenged in criminal appeal before this Court, which was rejected. The matter was thereafter taken to Supreme Court, wherein also the conviction and sentence was affirmed. 3. The petitioners then pressed the claim for consideration of prisoners release under the remission policy of the State. The policy of the State clearly contemplated that in cases where three or more persons have been done to death, the policy for remission will not be available. This clause in the remission policy dated 27.5.2022 was challenged in Criminal Misc. Writ Petition No.15280 of 2023, which came to be dismissed vide following orders dated 26.10.2023:
Legal Reasoning
"1. Heard the learned counsel for the petitioners at length and learned A.G.A.
Decision
2. The writ petition seeks the following relief: "Issue a writ, order or direction in the nature of certiorari quashing the Remission Policy dated 27.05.2022, Clause/Paragraph 2 (Chaa) of policy dated 27.05.2022 which mandate that the triple murder (3 + murder) cases in one offence are not entitled to premature release." 3. From the relief quoted above, it is clear that challenge in the petition is to a policy of the State Government. 4. We are of considered opinion that the policy is not justiciable. Despite a pointed query about the maintainability of this petition, counsel for the petitioners is not able to produce any material which would even, prima facie, show that the instant petition is maintainable. 5. Under the circumstances, petition is dismissed as not maintainable." 4. The judgment of this Court was then challenged in Special Leave Petition (Crl.) Diary No.69912 of 2024, which too was dismissed as not pressed with liberty to the petitioners to explore appropriate options. It is thereafter that the present petition has been filed challenging the rejection of petitioners' claim for remission vide orders impugned in the present petition. 5. Learned counsel for the petitioners places reliance upon the observations of the Supreme Court in Rashidul Jafar @ Chota vs. State of Uttar Pradesh and another; (2022) 8 SCR 475, wherein following directions have been issued in para 18 of the judgment: "18. We direct that: (i) All cases for premature release of convicts undergoing imprisonment for life in the present batch of cases shall be considered in terms of the policy dated 1 August 2018, as amended, subject to the observations which are contained herein. The restriction that a life convict is not eligible for premature release until attaining the age of sixty years, which was introduced by the policy of 28 July 2021, stands deleted by the amendment dated 27 May 2022. Hence, no case for premature release shall be rejected on that ground; (ii) In the event that any convict is entitled to more liberal benefits by any of the amendments which have been brought about subsequent to the policy dated 1 August 2018, the case for the grant of premature release would be considered by granting benefit in terms of more liberal amended para/clause of the policies. All decisions of premature release of convicts, including those, beyond the present batch of cases would be entitled to such a beneficial reading of the policy; (iii) In terms of para 4 of the policy dated 1 August 2018, no application is required to be submitted by a convict undergoing life imprisonment for premature release. Further, through amendment dated 28 July 2021, para 3(i), which included convicts undergoing life imprisonment who have not filed application for pre-mature release in the prohibited category, has specifically been deleted. Accordingly, all cases of convicts undergoing life sentence in the State of Uttar Pradesh who are eligible for being considered for premature release in terms of the policy, including but not confined to the five hundred and twelve prisoners involved in the present batch of cases, shall be considered in terms of the procedure for premature release stipulated in the policy; (iv) The District Legal Services Authorities in the State of Uttar Pradesh shall take necessary steps in coordination with the jail authorities to ensure that all eligible cases of prisoners who would be entitled to premature release in terms of the applicable policies, as noticed above, would be duly considered and no prisoner, who is otherwise eligible for being considered, shall be excluded from consideration. (v) These steps to be taken by DLSAs would, include but not be limited to, Secretaries of DLSAs seeking status report on all prisoners undergoing life imprisonment in the prisons falling under their jurisdiction in terms of the format of table prepared in Annexure-A covering the details mentioned in para 13 of this judgment and ensuring its submission by relevant authorities within eight weeks of this order as well as on an annual basis. Further, DLSAs would utilize this status report to monitor and engage with respective authorities to ensure the implementation of our directions to ensure premature release in terms of applicable policies in all eligible cases of convicts undergoing life sentence on a continuous basis; (vi) The applications for premature release shall be considered expeditiously. Those cases which have already been processed and in respect of which reports have been submitted shall be concluded and final decisions intimated to the convict no later than within a period of one month from the date of this order. Cases of eligible life convicts who are (i) above the age of seventy years; or (ii) suffering from terminal ailments shall be taken up on priority and would be disposed of within a period of two months. The Uttar Pradesh State Legal Services Authority shall, within a period of two weeks, lay down the priorities according to which all other pending cases shall be disposed of. All other cases shall, in any event, be disposed of within a period of four months from the date of this order; and (vii) Where any convict undergoing life imprisonment has already been released on bail by the orders of this Court, the order granting interim bail shall continue to remain in operation until the disposal of the application for premature release." 6. With reference to the above policy, learned counsel for the petitioners contends that in the remission policy dated 1st August, 2018, there is no provision for denying consideration of remission to those who have been convicted for the murder of three or above persons. 7. The submission of the petitioners is opposed by learned AGA. 8. The policy dated 1st August, 2018 of which benefit is claimed contains Clause-3, which provides for restricted categories of remission. Relevant portion of the aforesaid policy is reproduced as under: आजजवन ककरकवकस कक सजक सस दणणणत समसत ससदददष बनदज सजनकक अपरकध आगस मम वरररत परतबबसधत शसरज कस उपरनयम- xiii 2 (च). धकरक-3 उपरनयम सस आचछकरदत नहह हह तथक सजनकस दकरक रवचकरकधजन अवसध सरहत 20 अपररहकर तथक 25 मम वरररत अपरकध कस अरतररक रकसज भज वषर कक वषर कक सपररहकर सजक वयतजत कर लज गयज हद। 3. (vi) आजजवन ककरकवकस सस दणणणत ऐसस समसत ससदददष बनदज सजनहस सकममरहक नरसबहकर ( तजन यक तजन सस असधक हतयकएब ) कक घटनकओ सस समबणनधत अपरकधध मम ददषससद रकयक गयक हद। (xiii) ऐसस समसत ससदददष बनदज जद भकरतजय दणण सबरहतक, 1960 कक धकरक-363 ए ( भजख सलयस अपकपवय यक अपहरर), 364 ए (ममरक- धन आरद कस सलयस सलयस रकसज सज कद वयपहत अपकपवय लणकक कक उपकपन), 366 ब वयरक कद घदर उपहरत, दकसतव आरद कक रवषय वयपहत यक अपहत वयरक कद सददष रववकह आरद कस करनस कद रववष करनस कस अपहत करनक यक उतपसररत करनक), 366 ए ( मकबगनस कस पयदजनध कस वयपहरर), 366 ( करनक, रवदसश सस लणकक कक आयकत करनक), 367 ( ( बनकनस कस उदसशय सस वयपहरर यक अपहरर), 368 ( रछपकनक यक परररदध मम रखनक), 369 ( कस आषय सस उसकक वयपहरर यक अपहरर), 372 ( अपकपवय कद बसचनक), 373 ( 376 ( बलकतसबघ कस सलयस दणण) दस वषर सस कम आयम कस रशशम कस शरजर पर सस चदरज करनस सलयस वसशयकववसत आरद कस पयदजन कस सलयस अपकपवय कक खरजदनक) एवब वसशयकववसत आरद कस पयदजन कस कस अनतगरत अपरकधध कस सलए आजजवन ककरकवकस कक सजक सस दणणणत रकयस गयस हध। 9. Learned counsel for the petitioners submits that convicted accused have already undergone incarceration of 24 years without remission and 30 years with remission and, therefore, in terms of the policy, they are entitled to be considered for release on remission. 10. In the facts of the case, we find that the claim for remission by a convicted accused can only be in accordance with the policy, which is framed for the purpose by the State. This is so as the framing of remission policy lies within the ambit and scope of the powers of the State under Sections 433 and 433-A Cr.P.C. The policy clearly contemplates an exclusion clause, which prohibits consideration of claim for release to those who are convicted for offences of murder of three or above persons. The challenge to this clause of the policy has already failed with petitioners earlier dismissal of the writ petition. The order of the State Government under challenge, refusing to grant remission is a mere consequence of the policy, which prohibits release of convicted prisoner on remission where they are convicted for the offence of murder of three or above persons. 11. Once the challenge to the policy has already failed, the consequential rejection of plea of remission vide Government Orders would not give any fresh cause of action to the petitioners to challenge the rejection of remission, by filing the present writ petition, inasmuch as, such rejection is a mere consequence of the policy, challenge to which has failed. 12. The writ petition lacks merit and is, accordingly, dismissed. Order Date :- 4.12.2024 LN Tripathi