Prayagraj: The Allahabad high court has held that the governor’s power to grant premature release under Article 161 of the Constitution is a sovereign executive power but cannot be exercised arbitrarily, as it remains regulated by the applicable rules and remission policy.A division bench comprising Justice JJ Munir and Justice Tarun Saxena made the observation while quashing an order refusing premature release to a convict who had been sentenced to seven years’ rigorous imprisonment.The court found that the decision refusing premature release suffered from an error apparent on the face of the record as it incorrectly recorded the period of incarceration undergone by the petitioner.The petitioner, Ram Pratap Singh, was convicted in an attempt-to-murder case under Sections 307/34 of the IPC by the additional sessions judge, Fatehpur, in 2002 and sentenced to seven years’ rigorous imprisonment along with a fine of Rs 2,000. His criminal appeal before the high court was dismissed in 2019, after which the Supreme Court also junked his special leave petition (SLP).In Sept 2022, a proposal for his premature release was sent to the jail authorities and the district magistrate, Fatehpur, but it remained pending. The petitioner later filed an application in Feb 2025 seeking a decision on the proposal, pointing out that he had served more than half of his sentence.The jail report recorded that he had undergone 4 years, 6 months and 6 days without remission and 5 years and 4 months with remission against the total seven-year sentence. His conduct was recorded as satisfactory.However, in June 2025, a decision was communicated refusing his premature release on the ground that he had served only 2 years and 6 days without remission and 2 years, 1 month and 27 days with remission.Before the high court, the petitioner’s counsel argued that the decision had ignored the jail report and wrongly calculated his period of incarceration. He also contended that the order did not disclose any adverse material against him and failed to consider his satisfactory conduct in jail.Agreeing with the petitioner’s arguments, the high court noted that under sub-Rule (iii) of Rule 4 of the Uttar Pradesh Prisoners’ Release on Probation Rules, 1938, a convict in the applicable category becomes eligible for premature release after serving one-third of the sentence without remission.Since the petitioner had actually served 4 years, 6 months and 6 days without remission against a seven-year sentence, the court found that he had served more than half of the sentence.In this backdrop, the court observed, “There is absolutely no basis to this finding, except that it is borne of an error apparent and also betrays a case of non-application of mind to the record.”The court also termed the misreading of the period of incarceration a manifest illegality.On the nature of the governor’s power under Article 161, the court observed that the same cannot be exercised arbitrarily. The court stressed that the power is regulated by the rules and the remission policy.“Even though power under Article 161 is a constitutional power, as distinguished from the statutory power of the state government under Section 432 of the Criminal Procedure Code (CrPC), the decision cannot be arbitrary or borne on an error apparent, as important as the period of incarceration suffered by the convict.”The court, however, noted that if the correct period of detention had been communicated to the respondents, the conclusion might have been different.Consequently, the high court allowed the writ petition and quashed the June 26, 2025, order passed by joint secretary to the govt in the departments of the Uttar Pradesh prisons administration and reforms services, Lucknow, refusing premature release to the petitioner.The matter was remitted to the govt for a fresh decision on the petitioner’s plea for premature release, to be taken within one month from receipt of the high court’s order dated 10.
