M.P. Vs. Kusum
 Insc 749 (19 July 2007)
Dr. ARIJIT PASAYAT & P.P. NAOLEKAR
CRIMINAL APPEAL NO. 913 OF 2007 (Arising out of SLP (Crl.) No.4654 of 2006)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Madhya Pradesh High Court at Jabalpur quashing the Circular dated 3.8.2005
issued by the State.
3. Background facts in a nutshell are as follows:
Respondent is convicted for offence punishable under Section 302 of the
Indian Penal Code, 1860 (in short the 'IPC') and was sentenced to rigorous
imprisonment for life. She filed an application for release under the Madhya
Pradesh Prisoners' Release on Probation Act, 1954 (in short the 'Act') and the
rules framed thereunder. On 3.8.2005 a Circular was issued by the Inspector
General of Prisons that persons whose appeals are pending before the Appellate
Court are not entitled to be considered for the purpose of release on
probation. The Circular was purportedly issued on the basis of the decision
rendered by a Division Bench of the Madhya Pradesh High Court, Gwalior Bench in
Writ Petition No.941 of 2004 dated 14.10.2004.
Respondent's prayer was rejected by the Probation Board on 8.8.2005. The
State Government formally approved the rejection by rejecting the prayer for
release by order dated 29.10.2005. A writ petition was filed before the High
Court questioning the legality of the Circular dated 3.8.2005.
Primary stand taken was that the same was contrary to the provisions of the
Act. The High Court noted that the Division Bench in the earlier case had
adverted to the concept of conditions precedent and the irregularity in release
on probation of certain convicts particularly those whose applications for bail
had been rejected and their appeals were pending. The High Court noted that in
the said case there was a question mark over the decision making process of the
Probation Board as in some cases where prayer for bail had been rejected
convicts have been released on probation. The High Court further noted that the
concerned authorities by the Circular dated 3.8.2005 have directed that the
Probation Board should not consider the case of convicts whose appeals are
pending in the High Court. That apart, there has been a direction not to consider
the mercy application for grant of release. According to the High Court, the
earlier Division Bench's decision was rendered to curb the illegality in the
decision making process. But the Circular to the effect that no case would be
considered by the Probation Board where the appeal is pending could not have
been issued. The entertainment of mercy petition was also not prohibited by the
earlier Division Bench. Therefore, the same cannot be prohibited by the
Circular if otherwise entertainable in law.
The High Court noted that the Circular was absolutely general, sweeping and
inconsistent with the Act and M.P. Prisoners' Release on Probation Rules, 1964
(in short the 'Rules'). It was noted that the judgment of the earlier decision
of the High Court was mis-construed by the authorities concerned. The writ
petition was allowed by quashing the Circular.
4. In support of the appeal, learned counsel for the appellant submitted
that the observations and views expressed in the earlier Division Bench's
judgment have not been properly appreciated by the Division Bench in the
instant case. It has been pointed out that the High Court had deprecated the
practice of releasing the convicts whose applications had been rejected. The
Circular therefore was not illegal and had only encompassed what was decided in
the earlier case.
5. Learned counsel for the respondent on the other hand submitted that the
High Court in the earlier decision had not in any way prohibited making of an
applications. Whether the applications would be entertained and/or were to be
allowed or not is another matter. But by the Circular even making of an
application was provided to be impermissible.
6. The observations of the Division Bench in the earlier decision which form
the foundation of the Circular reads as follows:
"It may be mentioned that after rejection of earlier application by the
subsequent order after the remand, the Board has passed similar order rejecting
the application and Board has not considered the directions given by this Court.
We have also issued notice to State to show cause why persons have been
released on 5 years and the reasons for releasing them on 5 years or 6 years.
No explanation has been submitted by the respondents. It appears that there are
some irregularities in the release of probationers on probation particularly
those dreaded criminal whose application for bail has been rejected and their
appeal are pending, they too had been released. This Court has come across
number of appeals thereafter rejection of bail application the convicts had
been released on bail. This act of probation puts a question mark on their
decision making process."
7. 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 re-iteration that while considering an application the principles set
out by this Court in Arvind Yadav v. Ramesh Kumar and Ors. (2003 (6) SCC 144)
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 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,
IG of Prisons or Deputy IG and another member."
8. The appeal is, therefore, dismissed.