"Governor Transgressed Jurisdiction: Allahabad High Court Sets Aside Governor's Order Granting Premature Release Of Triple Murder Convict

Directing the CJM Bulandshahar to take into custody the convict, the Bench of Justice Rajeev Singh and Justice Ramesh Sinha set aside Governor's order in view of the mandate of Section 433-A Cr.P.C.

Notably, this Section provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, such person shall not be released from prison unless he has served at least 14 years of imprisonment

The matter before the Court

One Jaini Singh was convicted in a triple murder case on 02^nd December 2011 [under Sections 302/149, 147, 148 I.P.C. for life imprisonment] and he filed an appeal in which his bail application was rejected twice and the appeal is pending.

He served only five years of the sentence and after the rejection of the bail application, he moved a petition for premature release under Article 161 of the Constitution of India in the tear 2016.

Consequent to his application, the Senior Superintendent of Police, Bulandshahar submitted a report dated 13^th June 2016 in which he refused to recommend his premature release mentioning that in case he is released, then he may act as a motivator for future crimes.

However, vide impugned Order dated 15^th March 2017 passed by State Government, the Convict was directed to be released.

A Petition was, therefore, moved seeking quashing of the State Government's order and directions to respondents to arrest the Convict.

Petitioner's submissions

The Counsel for the petitioner submitted in view of the Notification of Government of India, Ministry of Home Affairs (CS Division), which provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishment, such person shall not be released from prison unless he had served at-least fourteen years of imprisonment.

Ignoring the directions of aforesaid circular, it was argued that the District Magistrate, Bulandshahar recommended for consideration of the Convict's mercy petition, though he had served only a period of five years of imprisonment for life.

Government's regulations

The Government's order dated 13^th April 2005 prescribes the procedure for entertaining the mercy petition and para-1 of the aforesaid Government order provides that a committee consisting of four members shall consider the case of premature release towards the considerations/conditions which are required to be taken into account viz.,

• Undergone period by a convict;
• Jail conduct of the convict;
• Parole availed by the convict;
• Medical condition of the convict;
• The nature of offence committed by the convict;
• Judgment of conviction and order of sentence passed by the convicting court;
• Social and financial standing of the family;
• Whether there are chances of the convict indulging in conducting similar offences etc.

The Government order further provides the conditions under which application for remission will not be entertained viz.,

• Cases of rape,
• Dacoity,
• Terrorism,
• Organized and well-planned murder,
• Habitual offender etc.

Court's observations

At the outset, the Court observed that as in view of Apex Court's ruling in the case of Narayan Dutt & Others Vs. State of Punjab & Another (2011) 4 SCC 353, the judicial review is permissible against the order of Hon'ble Governor in case the Governor has exercised power by himself without being advised by the Government, transgressed his jurisdiction, passed the order without applying his mind, the order was malafide, or some extraneous considerations.

In the present case, the Court noted that the convict had only undergone five years and his appeal is pending and the committee refused for his release.

Further, coming to the order passed by the Governor, the Court said,

"We are unable to comprehend as to what prompted the Hon'ble Governor to exercise indulgence in favor of the respondent No.5 (Convict) despite he had committed a heinous offence wherein, three members of a family, were done to death by respondent No.5 and other co-accused who are in Jail, which appears from the record and the Mercy Committee also denied considering his application for premature release."

The Court also noted that even appeal is pending against the conviction judgment and twice his bail had been rejected by this Court in appeal.

Thus, the Court said,

"The impugned order passed by Hon'ble Governor does not reflect the application of mind. Moreover, the Governor has transgressed his jurisdiction in exercising the power under Articles 161 of the Constitution of India which is against the dictum of the judgment of the Apex Court."

Accordingly, the impugned order dated 15^th March 2017 was thereby set aside, the Chief Judicial Magistrate, Bulandshahar was directed to take Jaini Singh into custody forthwith and send him to jail to serve out the remaining sentence as awarded by the trial court.

Case title - Prakashvati Singh v. State Of U.P. Thru. Secy. Home And Others [Misc. Bench No. - 22682 of 2017]

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