Anni alias Ramesh vs State of Madhya Pradesh and Others

Ajit Singh, J.—The present petition, filed under Article 226 of the Constitution, has been referred to us pursuant to order dated 13-2-2008 passed by a Division Bench of this Court.

The petitioner has been found guilty for an offence punishable u/s 302 of the Indian Penal Code and, therefore, he is undergoing sentence of life imprisonment in jail since 3-11-1997. He, on completing more than 11 years in jail, applied for release on probation under the provisions of the Madhya Pradesh Prisoners'' Release on Probation Act, 1954 (in short "the Act") which provides for the release of certain prisoners on conditions imposed by the State Government. But the application was rejected by a communication dated 1-5-2008, Annexure P-1, on the ground that he was not eligible for release under Rule 4 of the Madhya Pradesh Prisoners'' Release on Probation Rules, 1964 (for short "the Rules") as he had not completed 14 years of actual imprisonment without remission of his sentence. The communication also referred to notification dated 24-3-2008. of the State Government issued u/s 9 of the Act by which proviso to Rule 4 of the Rules has been introduced. Aggrieved, the petitioner filed this writ petition challenging the vires of proviso to Rule 4 on the ground that its introduction by the State Government was beyond its rule making power u/s 9 of the Act. The State Government, in its return, informed that notification dated 24-3-2008 introducing the impugned proviso was challenged earlier also in Writ Petition Nos. 9034/2008, 13593/2008 and 15027/2008 and these petitions were dismissed after full consideration on merits by a Division Bench of this Court vide order dated 16-3-2009 and, therefore, the present petition be also dismissed.

On 3-7-2009 the petition came up for hearing before a Division Bench which observed that in the earlier writ petitions the impugned proviso was challenged mainly on the ground that it is ultra vires Sections 432, 433 and 433-A of the Code of Criminal Procedure whereas the issue raised in the present petition is that proviso is ultra vires the rule making power u/s 9 of the Act. With this observation the Division Bench directed the State Government to file fresh return within four weeks.

On 17-2-2010, when the petition again came up for hearing before the Division Bench, the State Government reiterated that the petition has become infructuous in view of the aforesaid order dated 16-3-2009 by which earlier writ petitions were dismissed. The Division Bench, however, taking into consideration the order dated 16-3-2009 and the question posed in this petition on 3-7-2009, opined that the matter deserves to be heard by a Larger Bench. This is how the petition has come up before us to examine whether the proviso introduced to Rule 4 of the Rules by notification dated 24-3-2008 is ultra vires the rule making power of the State Government u/s 9 of the Act.

Here, therefore, we shall first refer to the relevant provisions of the Act. The long title of the Act is reproduced as under:

An Act to provide for the release of certain prisoners on conditions imposed by the Madhya Pradesh Government.

Section 2 of the Act empowers the Government to release a prisoner on licence depending upon his antecedents and conduct in prison. It reads as under:

Power of Government to release by licence on conditions imposed by it.- Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898, where a person is confined in a prison under a sentence of imprisonment, and'' it appears to the Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the Government may, by licence, permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner or such Institution or Society as may be recognized by the Government for the purpose, provided such other person, institution or society is willing to take charge of him.

Section 9 of the Act relates to the rule making power of the Government for carrying into effect all the purposes of the Act. It is reproduced as under:

Power to make rules.- The Government may make rules consistent with this Act:

(1) for the form and conditions of licence on which prisoners may be released;

(2) for the appointment of Government Officer, the recognition of Institution, Societies and persons referred to in Section 2;

(3) for defining the powers and duties of Government Officer, Institutions, or persons, under whose authority or supervision conditionally released prisoner may be kept;

(4) for defining the classes of offenders who may be conditionally released, and the periods of imprisonment after which they may be so released;

(5) for prescribing the manner in which an order of revocation of a licence shall be served on the person whose licence is revoked;

(6) for delegation of all or any of its powers to any officer or person authorised in this behalf;

(7) generally for carrying into effect all the purposes of this Act.

In exercise of its rule making power, the State Government has framed the rules. The relevant Rule 4 with the impugned proviso inserted by notification dated 24-3-2008 reads as under:

Eligibility for release.- Save the prisoners specified in Rule 3 any other prisoner who has served one-third of his sentence of imprisonment or a total period of five years without remission, whichever is less, may be released by the Government on licence:

Provided that in case of such prisoners who have been sentenced for life imprisonment, under Sections 302 and 305 of the Indian Penal Code, 1860 (No. 45 of 1860) or under the provisions of other penal laws in which death sentence is also one of the punishments subject to the conditions that such prisoners are not barred for such consideration under the provisions of such laws, will be considered for premature release from the prison. The eligibility for release shall be after undergoing the sentence of 14 years of actual imprisonment without remission of his sentence:

Provided further that all other prisoners, undergoing the sentence of life imprisonment, will be considered for premature release only after they have undergone at least 10 years of imprisonment with remission and after the completion of 7 years of actual imprisonment without remission in sentence:

Provided also that nothing in the above provisions shall apply to the prisoners whose cases are being sent to the Hon''ble Governor for consideration under Article 161 of the Constitution of India, on special reasons of humanitarian grounds.

The main thrust of argument of the learned Senior Counsel for petitioner is that object of the Act is to give effect to the current reforming system of punishment by releasing prisoners on the basis of their good conduct in prison and for turning them out as good citizens after they serve out the periods of sentences but the introduction of impugned proviso to Rule 4 has the effect of destroying this object. According to the learned Senior Counsel for petitioner prior to the introduction of proviso to Rule 4 prisoners who were sentenced to life imprisonment u/s 302 of the Indian Penal Code were eligible for being considered to be released on probation as per the object of the Act irrespective of the periods of sentences undergone which is not possible now because the proviso restricts the eligibility for such release till they undergo the sentence of 14 years of actual imprisonment without remission of sentence. The learned Senior Counsel has argued that the addition of proviso to Rule 4 is, therefore, ultra vires the rule making power of the State Government. The learned Government Advocate, on the other hand, submitted that the proviso has been introduced essentially for carrying out the purpose of the Act and it does not exceed the rule making power.

Rule 4 is a piece of delegated Legislation. Delegated Legislation is open to the scrutiny of Courts and may be declared invalid particularly on two grounds : - (a) violation of the Constitution, and (b) violation of the enabling Act. The second ground includes within itself the cases of violation of the substantive provision of enabling Act. In considering the vires of subordinate Legislation Courts must also start with the presumption that it is intra vires. ( St. Johns Teachers Training Institute Vs. Regional Director, National Council for Teacher Education and Another, . Further, when the subordinate legislation made under a power to carry out the provisions of the Act has reasonable nexus with the object and purpose of the enabling statutes, the Courts are not to concern themselves with the wisdom or efficaciousness of the subordinate Legislation or of the policy formulated therein ( Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, Having regard to these settled principles on delegated Legislation, we shall now examine whether the proviso appended to Rule 4 is ultra vires the rule making power of the State Government.

Section 2 of the Act empowers the State Government to release a prisoner on licence when it appears to the Government from his antecedents and conduct in the prison that he is likely to abstain from crime and lead a peaceful life. The period of release on licence gives the prisoner an opportunity to lead a crime free and peaceful life. The period of such release is, however, counted towards the sentence of imprisonment imposed on him. Section 9 confers rule making power on the State Government for carrying into effect all the purposes of the Act. Sub-section (4) of Section 9 clearly authorizes the State Government to make rules for defining the classes of offenders who may be conditionally released and the period of imprisonment after which they may be so released. In Rule 3 of the Rules the State Government has classified the classes of prisoners who are not eligible to be released under the Act.

Rule 4 quoted above deals with eligibility for release of prisoners who are not specified or classified in Rule 3. According to this rule, but for the prisoners specified in Rule 3, any other prisoner who has served one-third of his sentence of imprisonment or a total period of five years without remission, whichever is less, may be released by Government on licence. The proviso to the rule states that such prisoners, who have been sentenced for life imprisonment under Sections 302 and 305 of the Indian Penal Code or under the provision of other penal laws in which death sentence is also one of the punishments subject to the conditions that such prisoners are not barred from such consideration, will also be considered for premature release from the prison but the eligibility for release shall be after undergoing the sentence of 14 years of actual imprisonment without remission of his sentence. The proviso also states that all other prisoners undergoing the sentence for life imprisonment will be considered for premature release only after they have undergone at least ten years of imprisonment with remission and after completion of seven years of actual imprisonment without remission in sentence. It is this proviso which is under challenge in the present petition.

The long title of the Act quoted above clearly indicates that the intention of the Act is to extend the benefit of release on probation for good conduct in prison only to "certain prisoners" and not to all. We have also seen that under rule making power conferred u/s 9, particularly Sub-section (4), the State Government can frame rules defining the classes of offenders who may be conditionally released and the periods of imprisonment after which they may be so released. The provisions of the Act and the Rules, particularly the Constitutional validity of Rule 3 (a) by which the State Government, has specified classes of prisoners who shall not at all be released on probation came up for consideration before the Constitution Bench of the Supreme Court in State of Madhya Pradesh and Another Vs. Bhola @ Bhairon Prasad Raghuvanshi, . In this case, the High Court of Madhya Pradesh had held Rule 3 (a) as ultra vires the Act but the Supreme Court, on an appeal filed by the State of Madhya Pradesh, reversed the decision by holding that such classification of offenders based on the nature of offences committed by them is permissible for application of the Act, which aims at reforming a specified and identified classes of prisoners whose release would not be hazardous to society and who show possibilities of turning out to be good citizens if they are given liberty under strict supervision of specified institutions, authorities or individuals.

A Division Bench of this Court in Writ Petition No. 1618/2006 (Smt. Kusum v. State of Madhya Pradesh and Ors.) had noticed the abuse of the provisions of the Act where the prisoners sentenced to life imprisonment were released on mere completion of five years and six years despite the rejection of their bail applications and pendency of criminal appeals in the High Court. The State Government, therefore, having regard to the abuse of provisions and sweeping criminal activities, rate of heinous offences, mercenary killings as well as the path paved by some who have taken the killings to be profession and political murders amended the rules by introducing proviso to Rule4.

We also find that the restrictions of periods of actual imprisonment introduced by the proviso for becoming a prisoner eligible to be considered for release under the Act is in consonance with Section 433-A of the Code of Criminal Procedure introduced by the Parliament which provides for restriction on powers of remission or commutation in certain cases. According to Section 433-A a life convict, for an offence for which death is one of the punishments, cannot be released from prison unless he has served at least 14 years of imprisonment. The Constitutional validity of Section 433-A was challenged before the Supreme Court in Maru Ram and Others Vs. Union of India (UOI) and Others, , but was upheld by the Constitution Bench. Otherwise also, merely because a life convict has undergone 14 years of imprisonment does not acquire a right to be released prematurely and he only becomes eligible for being considered to be released on probation.

For these reasons, the periods of actual imprisonment which have been provided by the impugned proviso to Rule 4 cannot be held as beyond the rule making power of the State Government and ultra vires.

The petition be now placed before the Division Bench for final disposal.