(D.Y. Chandrachud and B.V. Nagarathna, JJ.)
Writ Petition (Criminal) No. 258/2020, decided on October 20, 2021
Rakesh Tiwari @ Bablu @ Akhilesh Tiwari _____________ Petitioner;
v.
State of U.P. _____________________________________ Respondent.
(With appln.(s) for IA No. 86553/2020-Grant of Bail and IA No. 86556/2020-Exemption From Filing O.T.)
Writ Petition (Criminal) No. 258/2020; IA No. 86553/2020; and IA No. 86556/2020
The Order of the court was delivered by
Order
1. The petitioner has invoked the jurisdiction of this Court under Article 32 of the Constitution for seeking a direction to the State of Uttar Pradesh to consider his representation for release from custody in pursuance of the order of this Court dated 4 July 2019. The petitioner has been convicted of an offence punishable under Section 302 of the Indian Penal Code by an order dated 26 August 2010 of the Additional Sessions Judge/Fast Track Court – I, District Basti and has been sentenced to imprisonment for life.
2. By an order dated 4 July 2019, the Special Leave Petition filed by the petitioner against the order of the High Court of Judicature at Allahabad dated 31 May 2018 dismissing Criminal Appeal No 6384 of 2010 was dismissed. However, the Court clarified that this would not stand in the way of the State Government considering the case for remission in accordance with law.
3. In the counter affidavit filed on behalf of the State of Uttar Pradesh, it has been stated that the case of the petitioner for pre-mature release under Section 2 of the UP Prisoners Release on Probation Act 1938 was forwarded to the District Magistrate, District Probation Officer and Superintendent of Police of District Basti. After receiving the recommendations against pre mature release, the completed Form ‘A’ was forwarded to the State Level Probation Board which also did not recommend the pre-mature release. Consequently, an order was passed on 19 March 2020 by the State Government and the decision is stated to have been communicated to the petitioner.
4. We have heard Mr. Harshvardhan Jha, learned counsel for the petitioner and Mr. Sharan Thakur, learned Additional Advocate General appearing on behalf of the State of Uttar Pradesh.
5. Learned counsel for the petitioner submits that the jail report which is annexed at Annexure CA 2 of the counter affidavit would indicate that the conduct of the petitioner in jail has been good. As on 28 September 2020, the petitioner had undergone sixteen years and six months of actual imprisonment and had earned a remission of two years. As of date, it has been submitted that he has undergone seventeen years and seven months of actual imprisonment and is just short of completing twenty years with remission.
6. Mr. Sharan Thakur, learned Additional Advocate General has, on the other hand, submitted that the application of the petitioner was considered in terms of the provisions of Section 2 of the Act of 1938 noted above. However, the petitioner would still be eligible to be considered for release in terms of the GO dated 1 August 2018. Clause 2(b) of the GO is extracted in the counter affidavit and reads as follows:
“2(b). All male convicted prisoners sentenced to imprisonment for life whose crime is not covered by any of the sub-rule under prohibited category defined in para 3 hereinafter, and who have undergone sentence of 16 years without remission and 20 years with remission including trial period.”
7. The petition has been instituted on the basis that the application for release has not been considered by the State Government. However, as the counter affidavit discloses, the application was duly considered in terms of Section 2 of the Act of 1938 and an order of rejection has been passed on 19 March 2020. Among other things, it has been stated in the counter affidavit that the trial of the petitioner had to be segregated since he had been absconding and evading arrest. Moreover, it has been stated that the petitioner was tried for the murder of an advocate in broad day light. Earlier, a case was registered under Section 307 for the attempted murder of the same victim by bomb attack, but the trial could not take place because the person who was attempted to be murdered was subsequently murdered. Since the petitioner was absconding after the murder, the committal took place in 2004 eventually leading to the conviction as noted above.
8. In the above backdrop, since the petitioner has now undergone about seventeen years and seven months of actual imprisonment, we leave it open to the petitioner to apply for release in terms of clause 2(b) of the GO dated 1 August 2018. Upon such an application being filed, it shall be duly considered by the competent authority expeditiously and within a period of three months of the date of receipt of the application.
9. The Petition is accordingly disposed of in the above terms.
10. Pending applications, if any, stand disposed of.
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