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Judgment
D. K. Trivedi, J.—By means of this habeas corpus petition, the petitioner, prays for premature release from Jail and further prays for quashing the impugned rejection order of FormA, dated 16101990.
The petitioner''s FormA was submitted and the District Magistrate, Barabanki on the said FormA submitted the following recommendations:
"(3) The proposed guardian Smt. Sugharpata is the wife of the convict and she will not be able to keep him under her effective control.
(4) Although the convict did not commit any offence during his last parole and home leave but during his parole, he presented himself late in the jail and remained out from jail for a month in unauthorised way for which disciplinary action was taken against him in jail".
The allegations of the District Magistrate that the proposed guardian Smt. Sugharpata will not be able to keep her husband under effective control only because she is the wife of the convict, in our opinion, is not a valid ground. Here, it may be pointed out that no reason has been indicated by the District Magistrate as to why the petitioner''s wife Smt. Sugharpata is being incapable of keeping her husband under effective control. In our opinion, it is not proper to make sweeping remarks that the wife of the person will not be able to keep her husband under effective control. In the absence of any material on the record to show that Smt. Suharpata will not be able to keep her husband under effective control, in our opinion, it cannot be said that Smt. Sugharpata is not a fit person to be appointed as guardian.
As regards the second recommendation is concerned, it is pointed out that the convict had not committed any offence when he had been released on parole or on home leave. The District Magistrate, himself pointed out that the convict did not commit any offence when he went on parole or on home leaves. It is not disputed that the petitioner was granted parole once and was released on home leaves thrice. However, the District Magistrate, pointed out that the petitioner overstayed for a month for which disciplinary action has already been taken in jail. As it is not disputed that the disciplinary action has already been taken against the petitioner in jail, therefore, now again after a lapse of so many years, it cannot be said that the petitioner is not entitled to be released on premature release from jail on his ground alone. Apart from this, the Probation Officer''s report is also on the record which shows that the convict''s parent had already died and there is no other brother in his family. His two other sisters had already married and the convict''s wife Smt. Sugharpata is living in the village alone. He has no issue and during this period her wife Smt. Sugharpata is looking after the cultivation and is properly managing the land on the basis of which the Probation Officer reported that Smt. Sugharpata is fully competent and is capable to keep her husband under proper control. As pointed out above, the District Magistrate has not given any reason except a sweeping remarks against the wife or the convict and, therefore, in our opinion relying on the recommendations of the District Magistrate, that Smt. Sugharpata is not fit to be appointed as guardian, is not valid order. Apart from this, it is also mentioned that the petitioner had already been released once on parole and thrice on home leave but no untoward incident took place in the village. After giving this reason the Probation Officer appears to have added some lines by hand in which he stated that:
It appears that the Probation Officer has added these words afterwards but even accepting these words, it appears that he submitted the report on the basis of seriousness of the offence. No doubt, the petitioner was convicted under Section 302, IPC for committing the murder and offence of every murder is serious crime but only on this ground that the petitioner has committed a serious offence, it cannot be said that there is a likehood of repetition of the offence in future. There is no material on the record to show that there was any dispute which still exists.
On the other hand, it is pointed out by the Probation Officer, himself that no untoward incident took place when the petitioner released on parole as well as oh home leave. In the concluding portion, the Probation Officer recommended the premature release of the petitioner and this also shows that the aforesaid lines were added afterwards. However, the report itself is contradictory and the report of the District Magistrate is also not supported by any material, therefore, we are of the opinion that the ground of the impugned order is vitiated and is liable to be quashed.
In these circumstances, the present writ petition is hereby allowed. The impugned order of rejection of FormA dated 16101990 is hereby, quashed. The State Government is directed to reconsider the FormA of the petitioner again after calling fresh reports from the authorities concerned in accordance with law within three months from the date of receipt of copy of this order. Petition allowed.