Pradeep Dantre vs State of Madhya Pradesh and Another

Heard.

Appellant has filed this writ appeal against the order dated 20-3-2010 passed by learned Single Judge of this Court in Writ Petition No. 1620/2009.

The appellant was convicted and awarded a sentence of life imprisonment u/s 302, IPC in Sessions Trial No. 33/83, vide judgment dated 7-3-1984 passed by the Sessions Judge, Datia. Against the aforesaid judgment the appellant preferred a criminal appeal along with co-accused, Santosh, which was dismissed vide judgment dated 30-11-1999 passed in Criminal Appeal No. 100/84. Thereafter, a SLP was filed. That has also been dismissed by the Hon''ble Supreme Court.

The appellant was in jail during trial for 15 months and since his conviction in the Sessions Trial he is in jail. The appellant submitted an application for his release on probation in accordance with the terms and conditions of Sub-rule (1) of Rule 6 of the M.P. Prisoners'' Release on Probation Rules, 1964, hereinafter referred to as the ''Rules of 1964''. The Superintendent of Police, Datia; Collector, Datia; Probation Officer (Welfare Probation Officer), Jail Department, Superintendent (Jail), Station House Officer, Police Station, Indergarh recommended the case of the appellant for his release on probation. Family members of the deceased have also submitted their recommendation for the release of the appellant or probation. The State Government vide order dated 28th February, 2008 rejected the application of the appellant for his release on probation.

Against the aforesaid order dated 28th February, 2008 the appellant filed a petition before this Court contending that he has completed the requisite jail sentence for his consideration to be released on probation in accordance with Rules of 1964 and the Authority has not considered the relevant factors and considered irrelevant factors in rejecting the application of the appellant for release on probation. That petition has been dismissed by the learned Single Judge of this Court vide impugned order.

Learned Counsel for the appellant has submitted that the learned Single Judge has committed an error of law in rejecting the petition of the appellant for release on probation. Learned Counsel further submitted that the learned Single Judge has not considered the fact that on irrelevant considerations the State Government has rejected the application of the appellant, hence, the order passed by the learned Single Judge is against the law and the provisions of the Rules of 1964 as well as the provisions of M.P. Prisoner''s Release on Probation Act, 1954, herein after referred to as the ''Act of 1954''.

Contrary to this, learned Government Advocate has submitted that the State Government has considered all the relevant factors in consideration of the case of the appellant for his release on probation and after applying the mind the application of the appellant for his release on probation has been rejected. The learned Single Judge has also considered the facts in detail, hence there is no merit in this appeal.

The State has enacted an Act named as ''M.P. Prisoners'' Release on Probation Act, 1954'', hereinafter referred to as ''the Act of 1954''. The object of the Act of 1954 is to provide release of certain prisoners on probation on the conditions imposed by the Government. Section 2 of the aforesaid Act gives power to Government to release a prisoner by licence on conditions imposed by it. The relevant provision of Section 2 is 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 recognised by the Government for the purpose, provided such other person, institution or society is willing to take charge of him.

Explanation: The expression "sentence of imprisonment" in this section shall include imprisonment in default of payment of fine and imprisonment for failure to furnish security under Chapter 8 of the Code of Criminal Procedure.

In exercise of powers conferred u/s 9 of the Act of 1954, the State Government has also framed Rules, named as the M.P. Prisoners'' Release on Probation Rules, 1964. Rule 4 of the Rules of 1964 prescribes the eligibility with regard to consideration of an application of the prisoner for his release on probation. The State Government has amended the aforesaid Rules of 1964 and introduced an amendment in Rule 4 vide a notification dated 24-3-2008. By the aforesaid amended Rule it has been provided that a prisoner, who is sentenced to life imprisonment is entitled to be released after undergoing 14 years of actual jail sentence.

The respondents in the return submitted that as per amendment in Rule 4 of the Rules of 1964, vide notification dated 24-3-2008, the appellant is not entitled to be considered for his release on probation, because, he has not undergone actual 14 years of jail sentence. The aforesaid submission put forth by the respondents could not be accepted, because the case of the appellant for his release on probation has been rejected vide order dated 28th February, 2008 prior to amendment in Rule 4 of the Rules of 1964. Because the aforesaid Rule has been amended vide notification dated 24-3-2008, in such circumstances, the amended provision of Rule 4 of the Rules of 1964 is not applicable in the case of appellant. In such circumstances, the appellant was entitled to be considered for his release on probation and vide impugned order dated 28th February, 2008 the Government has not rejected the application of the appellant for his release on probation on the ground that he has not completed minimum jail sentence as required under the Rules for consideration of the application. In the impugned order it has been mentioned that the appellant has been convicted u/s 302, IPC and the manner of commission of crime was heinous in nature because the appellant had inflicted a knife blow to the deceased. After going through the facts of the case and the fact that the appellant had inflicted knife blow to the deceased, it could not be said that the nature of offence was so heinous that the appellant could not be released on probation as held by Hon''ble the Supreme Court in Arvind Yadav Vs. Ramesh Kumar and Others,

The second reason assigned by the State Government in rejecting the application of the appellant is that there is a suspicion that if the appellant be released on probation, he would commit a crime again. In recording the aforesaid finding no reason has been assigned in the order that on what basis the aforesaid finding has been recorded by the Authority. It is a fact that there is no material on record, which indicates that the appellant is habitual offender or he has committed any other criminal offence before committing the offence for which he is undergoing the sentence. There is also no evidence on record to show that any other offence has also been registered against the appellant. Contrary to this, the Superintendent of Police, Datia; District Magistrate, Datia; Probation Officer (Welfare Probation Officer), Jail Department, Superintendent (Jail), Station House Officer, Police Station, Indergarh recommended the case of the appellant for release of the appellant on probation. Even though the family members of the deceased have also submitted their recommendations for the release of the appellant on probation. These factors have not been considered by the Authority in considering the application of the appellant for his release on probation.

The Hon''ble Supreme Court in Jaswant Sugar Mills Ltd., Meerut Vs. Lakshmichand and Others, has approved its earlier judgment and held as under with regard to administrative acts:

(12) It may be observed that Mukherjee, J., was on the ultimate decision in the case, in the minority, but the principle enunciated by him had substantially the approval of the Court. Das, J., in the same case at p. 719 (of SCR): (at p. 257 of AIR) observed:

a person entrusted to do an administrative act has often to determine questions of fact to enable him to exercise his power. He has to consider facts and circumstances and to weigh pros and cons in his mind before he makes up his mind to exercise his power just as a person exercising a judicial or quasi-judicial function has to do. Both have to act in good faith. A good and valid administrative or executive act binds the subject and affects his rights or imposes liability on his just as effectively as a quasi-judicial act does. The exercise of an administrative or executive act may well be and is frequently made dependent by the Legislature upon a condition or contingency which may involve a question of fact, but the question of fulfillment of which may, nevertheless, be left to the subjective opinion or satisfaction of the Executive Authority.

Hon''ble the Supreme Court further in Arvind Yadav Vs. Ramesh Kumar and Others, , has held, as under, with regard to factors which have to be taken into consideration by the Authority in considering the application of the convict for giving him benefit of probation:

Apart from the fact that there are factual infirmities in the impugned judgment, it is also to be borne in mind that the victim and the family of the victim and the family of the victim who have suffered at the hands of the convict have also some rights. The convicts have no indefensible right to be released. The right is only to be considered for release on licence in terms of the Act and the Rules. The Probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining to release a convict. In the present case, the Probation Board had not recommended the release. The State Government had confirmed the order of the Board. The writ petition had failed before the learned Single Judge. The facts of individual cases were not considered by the Division Bench. In the case of Ramesh Kumar, the stand of the State Government was that he along with six others had formed an unlawful assembly and murdered Jitendra, son of Shashi Mohan Yadav on 20-9-1994 in Hoshangabad, Madhya Pradesh causing seventeen injuries on him and swords, knives and gupti and that Ramesh Kumar was the accused in fourteen cases filed under various sections of the Indian Penal Code. The manner of commission of crime is a relevant consideration. In a given case, the manner of commission of offence may be so brutal that it by itself may be a good sole ground to decline the licence to release. The Rules provide for a detailed procedure for consideration of application for release. Once rejected, again application for release can be made after two years. The Board comprises of the Home Secretary of the State Government or any other Empowered Officer, I.G. of Prisons or Deputy I.G. and another member.

The same principle has been reiterated by the Hon''ble Supreme Court in subsequent judgment in the case of State of M.P. Vs. Kusum, where the Hon''ble Supreme Court has held as under:

The parameters of consideration were only highlighted by the Division Bench. It never held that even making of an application is to be barred. Therefore, the circular has been rightly held to be illegal by the High Court. There cannot be any bar for making an application. Whether the prayer as contained in the application is to be accepted or not is another question. It needs no reiteration that while considering an application the principles set out by this Court in Arvind Yadav Vs. Ramesh Kumar and Others, are to be kept in view. Para 7 of the judgment reads as follows:

Apart from the fact that there are factual infirmities in the impugned judgment, it is also to be borne in mind that the victim and the family of the victim who have suffered at the hands of the convict have also some rights. The convicts have no indefeasible to be released. The right is only to be considered for release on licence in terms of the Act and the Rules. The Probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining to release a convict. In the present case, the Probation Board had not recommended the release. The State Government had confirmed the order of the Board. The writ petition had failed before the learned Single Judge. The facts of individual cases were not considered by the Division Bench. In the case of Ramesh Kumar, the stand of the State Government was that he along with six others had formed an unlawful assembly and murdered Jitendra, son of Shashi Mohan Yadav on 20-9-1994 in Hoshangabad, Madhya Pradesh causing seventeen injuries on him and swords, knives and gupti and that Ramesh Kumar was the accused in fourteen cases filed under various sections of the Indian Penal Code. The manner of commission of crime is a relevant consideration. In a given case, the manner of commission of offence may be so brutal that it by itself may be a good sole ground to decline the licence to release. The Rules provide for a detailed procedure for consideration of application for release. Once rejected, again application for release can be made after two years. The Board comprises of the Home Secretary, of the State Government or any other Empowered Officer, IG of Prisons or Deputy I.G. and another member.

From the aforesaid principle of law laid down by Hon''ble the Supreme Court and the facts of the present case, it is clear that the application of the appellant for release on probation has been rejected on the ground that he inflicted a knife blow to the deceased. In our opinion, that could not be termed to be an heinous act. To commit a crime, as per law laid down by Hon''ble the Supreme Court in Arvind Yadav v. Ramesh Kumar and Ors. (supra), where Hon''ble the Supreme Court has observed that the accused inflicted near about seventeen injuries on the deceased and that could be termed as heinous one. Apart from this, another factor which has been taken for consideration by the Authority is that the appellant may commit another offence is without any basis and that has been taken into consideration only on the basis of presumption. The Authority has not considered the fact that the family members of the deceased and other authorities have recommended for release of the appellant on probation and there was no previous criminal history of the appellant.

Looking to the aforesaid facts of the case, in our opinion, the Authority has not considered the case of the appellant objectively in deciding the application for his release on probation in accordance with the provisions of the Act of 1954 and the Rules of 1964. The learned Single Judge has simply rejected the petition of the appellant after observing that the appellant is not entitled grant of benefit of probation.

Consequently, the appeal filed by the appellant is hereby allowed. The impugned order dated 12th March, 2010 passed in Writ Petition No. 1620/2009 by the learned Single Judge is hereby quashed and the order dated 28th February, 2008 passed by the State Government is also quashed. The matter is remanded back to the State Government to consider afresh the case of the appellant in accordance with the unamended provisions of Rules of 1964 and the Act of 1954 and pass appropriate orders. It is hereby clarified that this Court has not observed anything about the merits of the case of the appellant for grant of benefit of probation and the authority is at liberty to form its own opinion after considering the relevant factors in accordance with law. Necessary order be passed in the matter within a period of three months from the date of receipt of a copy of this order.

Looking to the facts of the case, there shall be no order as to cost.