State
of Madhya Pradesh & Anr Vs. Bhola @ Bhairon
Prasad Raghuvanshi [2003] Insc 64 (6 February 2003)
S. Rajendra
Babu, D. M. Dharmadhikari & G. P. Mathur. Dharmadhikari, J
This
appeal has been preferred by the State of Madhya Pradesh against judgment dated
16.1.2001 of the High Court of Madhya Pradesh in Writ Petition (Crl.) No. 3603
of 1999. By placing reliance on two Judges Bench decision of this Court in
State of U.P. vs. Sadhu Saran Shukla [1994 (2)
SCC 445] the High Court has held that Rule 3 (a) of the Madhya Pradesh
Prisoner's Release on Probation Rules, 1964 is ultra vires Section 2 of Madhya
Pradesh Prisoner's Release on Probation Act 1954 [hereinafter referred to as
'the Rules' and 'the Act' respectively].
The
two-Judges Bench of this Court in the case Sadhu Saran (Supra) declared similar
Rule 3 (a) of U.P. Prisoners' Release on Probation Rules as ultra vires Section
9 and Section 2 of the U.P.
Prisoners'
Release on Probation Act, 1938 [hereinafter shortly referred to as 'the U.P.
Rules' and 'the U.P. Act' respectively].
This
appeal was listed before a two-Judges Bench of this Court on 21.8.2002 and it
had referred this case to a larger bench stating that two Judges-Bench of this
Court in the case of Sadhu Saran (supra) needs reconsideration.
A
legal question of general importance on the validity of Rule 3(a) of the Rules
is before us for consideration. The respondent/prisoner is not represented by
counsel. On our request, Shri Rakesh Dwivedi, Sr. Advocate had agreed to assist
this Court and to project the possible view in favour of the prisoner. The
appellant/State of M.P. is represented by Sr. Advocate, Shri R.P. Gupta who
took us through the relevant provisions of the Act and the Rules and almost
similar provisions of U.P. Act and the Rules.
On
completion of more than five years sentence of imprisonment, the
respondent/prisoner made an application for his release on probation in
accordance with Section 2 of the Act read with the Rules. His application for
release on probation under the M.P. Act and Rules was not considered by the
State because by Rule 3(a) convicts for offences specifies under Section 396 of
Indian Penal Code cannot seek release on probation under the Act.
The
prisoner approached the High Court in the Writ Petition. By placing reliance on
the decision of Sadhu Saran (supra) the Writ Petition was allowed by the
impugned order and directions were issued to the State government to consider
the application of the prisoner for release on merits in accordance with the
provisions of the Act and the Rules.
The
legislation contained in the Act and Rules and its counterpart U.P. Act and
Rules is to give effect to the current penal philosophy on sentences.
Penologists hold the view that imprisonment should not necessarily be 'retributary'
and 'deterrent' but should be 'rehabilitative'. Hegel's theory of punishment
says that 'reform is to be effected through punishment.' The modern reformists
hold a view that "reform should accompany punishment." Hegel asserts
that "object of punishment is to make the criminal repent his crime, and
by doing so to realise his moral character, which has been temporarily obscured
by his wrong action, but which is his deepest and truest nature." [See
Justice through Punishment by Barbara Hudson pg. 3] The legislation for
consideration before us gives effect to this penal philosophy recommending
rehabilitation of the criminals so that they come out of the prison to return
to society as law abiding citizens. Under the scheme of the two Acts certain
classes of prisoners which appear to the Government from their antecedents and
their conduct in the prison as likely to abstain from crime and lead a
peaceable life, can be released on a "licence" but their conduct
outside prison shall be supervised by specified individuals or institutions.
The period of release on licence or probation granted to them would give them
opportunity to lead a crime free and peaceable life. Such period shall be
counted towards the sentence of imprisonment imposed on them. Such licensed
releases legislatively sanctioned have been recognised as valid law by this
Court in the case of Maru Ram vs. Union of India [1981 (1) SCC 100] at
paragraph 71 pg. 152-153. Release on licence is an experiment with prisoners
for open jails or as the Court describes it is an "imprisonment of loose
and liberal type".
A
brief survey of the scheme of the Act and the Rules with detailed examination
of the impugned provisions would be necessary.
The
preamble of the Act is meaningful and conveys the object of the Act. It reads
thus:
"An
Act to provide for the release of certain prisoners on conditions imposed by
the (Madhya Pradesh) Government. [Underlining for emphasis].
Section
2 of the Act which authorises government to release the prisoner on probation
on consideration of his antecedents and his conduct in the prison, reads thus
:- "2. 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.
Section
9 of the Act contains the rule making power for carrying into effect the
provisions of the Act and sub-section 4 which is relevant for our purposes is
also required to be reproduced for its proper interpretation.
"9.
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 prisoners 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) ..
(6) ..
(7) ..
[Underlining
for pointed attention] In exercise of its rules making power, the State
Government framed the Rules of 1964 and Rule 3 (a), which was challenged in the
High Court by the prisoner, reads thus :- "3. The following classes of
prisoners shall not be released under Act :- (a) Those convicted of offences
under the Madhya Barat Vagrants, Habitual Offenders and Criminals (Restrictions
and Settlement) Act, 1952, or any law in force in any region of the State
corresponding to the said Act, or the Explosive Substances Act, 1908 or under
the following Chapters or sections of the Indian Penal Code, Chapters V-A, VI
and VII and Section 216-A, 224 and 225 (if it is a case of an escape from a
jail), 231, 232, 303, 311, 328, 361, 376, 382, 386 to 389, 392 to 402, 413,
459, 460 and 489-A." [see 396 IPC mentioned as excluding application of
Section 2 of the Act] In the impugned judgment of the High Court of Madhya
Pradesh, reliance has been placed on the decision of two Judges Bench of this
Court in the case of Sadhu Saran (Supra) which had arisen from almost identical
provisions of U.P. Act and Rules and they have been quoted in the said
judgment. We have also perused the judgment of the Lucknow Bench of Allahabad
High Court dated 11.9.1980 in Writ Petition No. 2070 of 1978 from which Crl.
Appeal No. 163 of 1983 decided on 12.1.1994 in the case of Sadhu Saran (Supra)
had arisen. The Lucknow Bench of Allahabad High Court in taking the view as it
did that Rule 3(a) is in excess of the rule making power and defeats the
purposes of the Act contained in Section 2, observed thus:- "The purpose
of Section 9 is to achieve the objective contained in Section 2 and Section 8.
It permits the making of the rule for that purpose only. When it speaks about
the classification of offenders, it means to give power to the State Government
to make rules for classifying for purposes of release and not for prohibiting
the release of prisoners. A rule framed under the Act cannot eliminate prisoner
serving a sentence of imprisonment from the field of eligibility contemplated
by Section 2 of the Act." It further holds thus:
"No
rule can be made to prohibit person in jail from getting the benefit of Section
2 of the Act because such a rule will have an effect of destroying the purpose
of the Act itself".
.. The
purpose of the rule is to give effect to the provisions of the Act and not to
make them ineffective. This rule must, therefore, be held to have been made not
only in excess of the powers but in violation of the powers conferred under
Section 9 of the Act on the State Government.
.."
The Lucknow Bench of Allahabad High Court in the said judgment also interpreted
comparable provisions of Section 4 and Section 9 of the U.P. Act to hold that
it does not permit classification of offenders on the basis of nature of
offences but envisages their classification on the basis of "their age and
sex having some nexus with their individual personalities." Rule 3(a) of
the UP Rules was struck down by the Lucknow Bench also on the ground of it
being violative of Article 14 of the Constitution of India. According to it,
"it classifies prisoners on the basis of the offences committed by them
and not on the basis of their antecedents and their conduct in the prison which
alone could have been the nexus with the object of the Act." In appeal
carried by State of U.P to this Court against the judgment of Lucknow Bench of Allahabad
High Court, this Court upheld the judgment of the High Court but only to a
limited extent and on its reasoning that "Rule 3(a) in effect precludes
the government for considering the release of the prisoners though they satisfy
the requirement of Section 2 of the Act".
For
better appreciation of the contention advanced in this case before us, it would
be necessary to reproduce the relevant part of the judgment of the two-Judges
Bench of this Court in the case of State of U.P. (Supra) which reads thus :-
"It can be seen that Rule 3(a) in effect precludes the Government from
considering the release of the prisoners though they satisfy the requirements
of Section 2 of the Uttar Pradesh Prisoners' Release on Probation Act, 1938. It
is also rightly contended that this rule is beyond the power conferred under
Section 9 of the Act and if the rule is given effect to, it defeats the object
of Section 2.
We
have carefully perused the reasoning of the High Court and we are in agreement
with the High Court to this extent namely that Section 9 of the Act has to be
held as complementary and supplementary provision to Section 2 and Rule 3
cannot frustrate the very purpose by negativing the rights of those prisoners
to claim the benefit of Section 2 of the Act.
Mr. Pramod
Swarup, learned counsel for the State of U.P.
submitted that by virtue of this judgment the entire Rule 3 stands struck down.
We do not think that the High Court has gone that far. What all the High Court
has held ultimately is that to the extent the rule debars a person convicted of
an offence under Section 396 IPC from being considered for release under
Section 2 is ultra vires and to that limited extent again the High Court gave a
direction to the State Government to consider the petitioner's case (Sadhu
Saran Shukla).
However,
we are of the view that if the U.P. Government thinks that in respect of
serious offences like Section 396 IPC etc., the prisoners should not be
released it is better if they bring about some suitable amendments in the Act,
then frame necessary rules".
Learned
senior counsel appearing for the State of Madhya Pradesh contends that Rule 3 (a) cannot be read and construed to
mean that it defeats the object of Section 2 of the Act or exceeds the rule
making power conferred under Section 9 (4) of the Act.
We
have carefully examined the scheme of the Act and particularly the provisions
contained in Section 2, 9(4) and Rule 3(a).
What
we find is that Rule 3(a) is a piece of 'delegated legislation.' Such a
delegated legislation is recognised as valid because on certain legislative
fields, it is possible for the legislature only to lay down a policy and give
sufficient guidelines for the executive authorities to carry it into effect.
The legislation before us aims at giving effect to the current penal philosophy
of reforming the prisoners while they are undergoing sentences of imprisonment.
For the above purpose, Section 2 confers the power on the authorities to
release a prisoner on probation keeping in view his antecedents and his conduct
in the prison. Section 9 contains the rule making power and sub-section 4
clearly authorises the State Government to frame rules to define or specify the
class of offenders who can be conditionally released. By specifying in Rule
3(a) the offenders undergoing imprisonment under certain offences of serious
nature as not eligible for release on licence, there is implied specification
of offences excluded in Rule 3(a) to be the class of offenders whose cases can
be considered for release on probation under the Act. It was, therefore, an
error of interpretation on the part of the Lucknow Bench of Allahabad High
Court that specification of offenders under certain sections of penal
provisions in Rule 3(a) frustrates the object of the Act contained in Section
2. The preamble of the Act has been quoted by us. It indicates the intention of
the legislature that the benefit of release on probation for good conduct in
prison is to be made available not to all but to "certain prisoners"
meaning prisoners of a particular class.
Thus
they can be classified in relation to the offences committed by them for which
they are sentenced. Reformative 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 their periods of sentences is not to be resorted
to indiscriminately without reference to the nature of offence for which they
are convicted. It is open to the legislature to lay down a general policy
permitting reformative method of punishment but by limiting its application to
less serious crimes. Gravity of offence is an integral dimension in deciding
whether a prisoner should be released or not. If we see the offences mentioned
in rule 3(a), in the category of exclusion therein are such serious or heinous
offences which are against community and society in general where even release
on probation may be found hazardous because of the possibility of the crime
being repeated or the prisoner escaping.
Habitual
offenders or those dealing in explosive substances or involved in dacoities and
robberies are treated as criminals guilty of heinous crimes who deserve to be
treated differently from other offenders guilty of less serious crimes. The
offenders could be classified thus reasonably with the object to be fulfilled
of reformation of those prisoners who show prospects of some reform.
Classification
can also be made between habitual offenders and non-habitual offenders or
between corrigibles and incorrigibles.
Such a
classification through delegated legislation of a rule cannot be held to be a
legislative step defeating the substantive provisions of the Act. In our
considered opinion, the judgment of the Lucknow Bench of Allahabad High Court
which has been upheld by two Judges Bench of this Court proceeds on
misinterpretation and misconception of Rule 3(a). Rule 3(a) which excludes
certain offences from the application of the Act for release of the prisoners
on probabtion impliedly makes the Act applicable to other kinds of prisoners
and in no manner defeats the object of the Act. Thus the Act is intended to be
made applicable to categories of offenders - not mentioned in Rule 3(a).
The
two Judges Bench of this Court in the case of State of U.P. (Supra) has
confirmed the judgment of the Lucknow Bench of Allahabad High Court only on the
limited finding that Rule 3(a) of U.P. Rules is in excess of the rule making
authority and the rule falls outside the ambit of section 2 of the Act. In the
concluding part of its judgment, the two-Judges Bench observes that it would be
open to the State Legislature to make the impugned rule 3 (a) as part of the
Act itself. The above observation necessarily leads to an inference that the
Bench was also of the opinion that the contents of the impugned rule could have
formed the part of the main Act. The only vice found in the rule was that it
was in excess of the rule making authority.
A
delegated legislation can be declared invalid by the Court mainly on two
grounds firstly that it violates any provision of the Constitution and secondly
it is violative of the enabling Act. If the delegate which has been given a
rule making authority exceeds its authority and makes any provision
inconsistent with the Act and thus overrides it, it can be held to be a case of
violating the provisions of the enabling Act but where the enabling Act itself
permits ancillary and subsidiary functions of the legislature to be performed
by the executive as its delegate, the delegated legislation cannot be held to
be in violation of the enabling Act.
In the
instant case, the legislative policy of permitting release of prisoners on
probation, after considering their antecedents and conduct in the prison, is
laid down in the provision of Section 2 read with the preamble and other
provisions of the Act. It was not possible for the legislature at the time of
enactment of the statute to envisage and encompass in its provisions all penal
laws and punishments leading to incarceration of the offenders and desirability
for releasing them on probation. The subject of classifying the offenders based
on their antecedents and conduct and/or offences for which they have been
convicted, has to be left to the executive authority to determine and specify
from time to time by rules and amendments to be made to it if and when found
necessary. Such delegation of power by the legislature to the executive cannot
be held to be either in violation of any constitutional provision or in excess
of the rule making provision of the Act. We are not prepared to accept the
reasoning of the High Court of Allahabad that the rule prohibits release of
specified classes of offenders in relation to the offences for which they are
convicted and thus defeats the very object of the Act.
Section
9(4) which enables framing of rules to classify the offenders impliedly permits
their classification not merely on the basis of their antecedents and their
conduct in the prison but also on the basis of the offences for which they have
been convicted and imprisoned. We fail to understand why such classification of
offenders based on the nature of offences committed by them is impermissible
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.
It is
not possible for us to uphold the view of two Judges Bench of this Court in the
case of Sadhu Saran (Supra) that Rule 3(a) is in excess of rule making power
under Section 9(4) and is violative of substantive provisions contained in
Section 2 of the Act. In our considered view, the decision of two-Judges Bench
in the case of Sadhu Saran (Supra) does not lay down a good law and deserves to
be overruled.
Lastly,
learned Senior Counsel appearing as Amicus Curiae tried to make a submission
that rejection of the prayer of the prisoner to be released under the Act
should not come in his way of claiming remission in accordance with Section 432
of Code of Criminal Procedure. It is not necessary for us to express any
opinion on the same. If the prisoner has any recourse available in law for
seeking remission, it would be open to him to avail of the same. Before parting
with the case, we thankfully record our appreciation for the valuable
assistance given by Shri Rakesh Dwivedi, learned Senior Advocate who had
appeared as Amicus Curiae in this matter.
Consequent
upon the aforesaid discussion, this appeal succeeds and is allowed. The
impugned judgment dated 16.1.2001 of the High Court of Madhya Pradesh in Writ
Petition No. 3603 of 1999 is hereby set aside.
The
two-Judge Bench of this Court in the case of State of U.P. (Supra) has
confirmed the judgment of the Lucknow Bench of Allahabad High Court only on the
limited finding that Rule 3(a) of U.P.
Rules
is in excess of the rule making authority because and the rule goes contrary to
the ambit of section 2 of the Act. In the concluding part of its judgment, the
two-Judges Bench observes that it would be open to the State Legislature to
make the impugned rule 3 (a) as part of the Act itself. The above observation
necessary leads to an inference that the Bench was also of the opinion that the
contents of the rule could have formed the part of the main Act. The only vice
found in the rule was that it was in excess of the rule making authority. A
delegated legislation can be declared invalid by the Court mainly on two
grounds firstly that it violates any provision of the Constitution and secondly
it is violative of the enabling Act. If the delegate which has been given a
rule making authority exceeds its authority and makes any provision
inconsistent with the Act and thus overwrides it, it can be held to be a case
of violating the provisions of the enabling Act but where the enabling Act
itself permits ancillary and subsidiary functions of the legislature to be
performed by a delegate - the delegated legislation cannot be held to be in
violation of the enabling Act. In the instant case, the legislative policy of
release of prisoners on probation after considering their antecedents and
conduct in the prison, is laid down in the provision of Section 2 read with the
preamble and other provisions of the Act. It was not possible for the
legislature at the time of enactment of the statute to envisage and encompass
in its provisions all penal laws and punishments leading to incarnation of the
offenders. The subject of classifying the offenders based on their antecedents
and conduct and offences for which they have been convicted, has to be left to
the executive authority to determine and specify from time to time by rules and
amendments made to it if and when found necessary. Such delegation of power by
the legislature to the executive cannot be held to be either in violation of
any constitutional provision or in excess of the rule making provision of the
Act. We are not prepared to accept the reasoning of the High Court of Allahabad
that the rule gives a blanket power to the executive to lay down specified
class of offenders in relation to the offences for which they are convicted and
put them outside the purview of the Act. Rule 9(4) which enables froming of
rules to classify the offenders impliedly permits their classification not
merely on the basis of their antecedents and their conduct in the prison but
also on the basis of the offence for which they have been convicted and
imprisoned. We fail to understand why such classification of offenders in
relation to the nature of offences committed by them is impermissible for a
limited 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 given liberty
under strict supervision of specified institutions, authorities or individuals.
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