Vishambhar Dayal v. State — 1968 DIGILAW 69 (ALL)

JUDGMENT Lakshmi Prasad, J. - This is a petition Under Article 226 of the Constitution by one Bishambhar Dayal who is in jail undergoing his sentence having been convicted under various sections of the IPC and sentenced to a total period of five years rigorous imprisonment. 2. The allegation in the petition is that even though he applied as far back as May, 1965 for the release on licence in accordance with the provisions of the UP Prisoners' Release on Probation Act, 1938 and his case, as envisaged by the rules framed thereunder, was recommended by the Board, the State Government communicated its order of rejection in August, 1967. The Petitioner maintains that in passing that order he has been discriminated and as such the order is liable to be quashed. Accordingly, the prayer in the petition is that it be declared that any further detention of the Petitioner in the prison is unlawful and the Petitioner be directed to be released on probation. 3. The petition is opposed by the State Government. A counter affidavit has been filed on behalf of the opposite party but the allegations made in paras 10 and 15 of the petition are not controverted. 4. The fact that the Board recommended the case of the Petitioner for release and that the State Government did not accept that recommendation with the result that the Petitioner's prayer for release on probation has been rejected is not in controversy. On this date of hearing learned Chief Standing Counsel has produced before us the relevant noting which has led to the passing of the order of rejection. The order of rejection so far as the Petitioner is concerned proceeds thus: His case had been examined at 'O' on page 2. The prisoner, aged 51 years, had been sentenced Under Sections 148/307/302 IPC to a total sentence of life imprisonment by the Sessions Court. The High Court, however, had set aside his conviction u/s 302 and the sentence of life imprisonment and instead the total sentence awarded was 5 years R.I. The dispute had arisen over irrigation of fields but there was previous enmity between the prisoner and the deceased. The actual period served by the prisoner, upto date, is about 3 years and 3 months. Including remissions the probable date of prisoner's release would be sometimes by the end of this year. The actual period served by the prisoner, upto date, is about 3 years and 3 months. Including remissions the probable date of prisoner's release would be sometimes by the end of this year. The District Magistrate had recommended release of the prisoner but in view of the seriousness of the crime and the sentence being not excessive, his case for release on licence may be rejected. Obviously it is on account of what is stated in the last sentence of the passage reproduced above that the order of rejection came to be passed finally on 23-7-1967. From the papers produced at the time of hearing I find that the recommendation of the Board was made in February, 1966. 5. I have heard the Learned Counsel on either side at some length. Section 2 of the UP Prisoners' Release on Probation Act provides: Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898, where a person is confined in prison under a sentence of imprisonment and it appears to the State Govt. 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 State Govt. may by licence permit him to be released on condition... Rule 6 of the Rules framed under the Act provides for the procedure. It lays down as to how the application has to be moved through the Superintendent, Jail and with what particulars noted on it it has to be placed before the Board consisting of the officers enumerated in its Sub-rule (5). Then in its Sub-rule (6) it says: The State Government shall on the receipt of recommendations of the Board pass such orders as it may deem proper. The contention of the Learned Counsel for the Petitioner is that the power given in Sub-rule (6) of Rule 5 reproduced above being uncanalised must be struck down as discriminatory having regard to the substantive provision contained in Section 2 of the Act. I am of the opinion that the contention raised by the Learned Counsel is not correct. The contention of the Learned Counsel for the Petitioner is that the power given in Sub-rule (6) of Rule 5 reproduced above being uncanalised must be struck down as discriminatory having regard to the substantive provision contained in Section 2 of the Act. I am of the opinion that the contention raised by the Learned Counsel is not correct. Obviously, the power u/s 2 of the Act is given to the State Government and if the State Government has framed rules to achieve the purpose for which Section 2 purports to confer certain power on the State Government then it cannot be said that the recommendation of the Board constituted under the rules is to be treated as final by the State Government in the matter. What is recommendation cannot take the place of decision. Decision must rest with the State Government as laid down in Section 2 of the Act. Still, however, it has to be examined with reference to the facts of the case already mentioned if or not the State Government in passing an order of rejection as against the Petitioner has acted within the four corners of the provision of Section 2 of the Act. The considerations that are to guide the State Government in taking a decision u/s 2 of the Act are given in that very provision. According to this provision the Government is required to take into consideration the antecedents of the prisoner and his conduct in the prison in order to come to a conclusion if or not in the background of those factors it can safely be said that the prisoner, if released on probation, is likely to abstain from crime and lead a peaceable life. According to the provision of Section 2 if the State Government on taking into consideration the aforesaid facts comes to the conclusion that the prisoner, if released on probation, is likely to abstain from crime and lead a peaceable life, then the State Government is to exercise its power in favour of the prisoner. On a perusal of the order passed in the instant case I find that the State Government has taken into consideration matters foreign to the provision of Section 2 of the Act in coning to a conclusion that the Petitioner be not released on probation. On a perusal of the order passed in the instant case I find that the State Government has taken into consideration matters foreign to the provision of Section 2 of the Act in coning to a conclusion that the Petitioner be not released on probation. That being so, the, State Government has, in my opinion, clearly gone astray and as such the order passed by it deserves to be quashed. 6. As shall appear from the order reproduced above, the basis of the order of rejection is the seriousness of the crime and the inadequacy of the sentence imposed on the Petitioner by the High Court. Certainly; these are not the matters to be taken into consideration while dealing with the application of a prisoner under the provisions of the UP Prisoners' Release on Probation Act, 1938. So there is no escape from the conclusion that the State Government took into consideration factors not germane to the provision of Section 2 of the Act. 7. I cannot help taking notice of the inordinate delay on the part of the State Govt. in disposing of the Petitioner's application under; the provisions of the UP Prisoners' Release on Probation Act. The application was moved in May, 1965. The Board submitter its recommendation in February 1966. The State Government, thereafter, passed orders as late as July 1967. It is to avoid delay that Sub Rule (5) of Rule 6 specifically provides for the holding of the meeting of the Board once each month. Still if the Board took more than six months to submit its recommendation and the Government took still longer to pass orders, it is difficult to appreciate. 8. In the end, I would allow the petition and quashing the order of rejection direct the State government to pass orders in accordance with law in the light of the observations in the body of the judgment within three weeks of this order. Gursharan Lal, J. 9. While in view of the developments which have taken place in the case after the filing of the writ petition, I agree with the final order which my learned brother Lakshmi Prasad proposes to pass, I think a little differently on certain points which form the basis for the said order in the judgment of my learned brother and I am, therefore, writing a separate judgment. 10. 10. It cannot be doubted that the final order of a Court of law sentencing a person to a term of imprisonment has to be given effect to unless the same is remitted or otherwise interfered with under some over-riding law. The Rules under the Prisoners, Act, for example, provide for some remission for good conduct. Under the Code of Criminal Procedure Section 401, gives power to the appropriate Government to suspend or remit sentences without conditions or upon any conditions which the person sentenced accepts. Section 402 gives power to the appropriate government to commute punishment. Section 402-A confers power on the Central Government also to exercise the powers of the State Government Under Sections 401 and 402 in the case of sentence of death. But since the coming into force of the Constitution of India Articles 72 and 161 confer powers respectively on the President and the Governor of a State to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. The Legislature of Uttar Pradesh in its wisdom enacted a further law in the form of the UP Prisoners' Release on Probation Act, 1938. Sections 2, 6 and 9(4) of the Act are reproduced below: Section 2. "Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898, where a person is confined in prison under a sentence of imprisonment and it appears to the State 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 State 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 secular institution or such society belonging to the same religion as the prisoner as may be recognised by the State Government for this purpose, provided such other person, institution or society is willing to take charge of him. Section 6(1). Section 6(1). "The State Government may at any time for reasons to be recorded in writing revoke a licence granted under the provisions of Section 2: Provided that no licence shall be revoked on the ground of the breach of a condition of the licence without giving an opportunity to the person concerned to represent his case before the District Magistrate of the district in which he is residing at the time. (2) An order of revocation passed under the provisions of Sub-section (1) shall specify the date with effect from which the licence shall cease to be in force and shall be served in such manner as the State Government may by rule prescribe, upon the per on whose licence has been revoked. Section 9(4): The State Government may make rules consistent with this Act.... (4) for defining the classes of offenders who may be conditionally released and the periods of imprisonment after which they may be so released; .... .... .... In pursuance of Section 9 of the Act the State Government framed rules known as UP Prisoners' Release on Probation Rules. By Rule 3 thereof it laid down that persons convicted of certain offences shall not be released under the Act. The State Government's power u/s 2 therefore remained available for exercise in the case of persons convicted of other offences, but there also Under Rule 4, the release was admissible only to a person who had served one-third of his sentence of imprisonment or a total of 5 years with remissions, whichever might be less. Rule 6 of these rules permitted any prisoner not ineligible for release as aforesaid to make an application in form A to the Superintendent of the Jail. The rule further provided for the recommendation of a Board in respect of the request of the prisoner for release on probation. Clause (6) of Rule 6 lays down that the State Government shall, on receipt of recommendations of the Board, pass such order as it may deem proper. This clause does not create any fetter on the power of the State Government to release or not to release a prisoner who applies in form A even where he is recommended by the Board for release. The State Government is thus to exercise its power within the four corners of the provision in Section 2. This clause does not create any fetter on the power of the State Government to release or not to release a prisoner who applies in form A even where he is recommended by the Board for release. The State Government is thus to exercise its power within the four corners of the provision in Section 2. This section (quoted above) confers power on the State Government to permit by licence a prisoner to be released on probation 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 secular institution or such society belonging to the same religion as the prisoner as may be recognised by the State Government for the purpose. There is however a condition for such release and it is that it must appear to the State Government from the antecedents of the prisoner 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. 11. According to the averments in the petition, the Petitioner Bishambhar Dayal was sentenced on 3-6-1961 to life imprisonment Under Sections 302/149 IPC but on appeal the conviction was converted into one Under Sections 304/149 IPC and the sentence was reduced to a term of 5 years rigorous imprisonment. The Petitioner applied inform A on 30-5-1965 for his release under the aforesaid Act. The Board recommended his request. The State Government however rejected his request sometime in August 1967. The Petitioner filed this writ petition on 13-10-1967 giving out that since the State Government did not release him inspite of the Board's recommendations made under the rules framed by it, it had violated its own rules and thereby shown discrimination and that by releasing some other prisoners whose case had been recommended by the Board it had discriminated against him and violated Article 14 of the Constitution. He prayed that his detention be declared unlawful and he be released on probation. 12. The law itself has not been questioned as discriminatory and violative of Article 14. The act of the State Government in not releasing him while releasing some others recommended by the Board has been challenged as discriminatory and violative of Article 14 of the Constitution. He prayed that his detention be declared unlawful and he be released on probation. 12. The law itself has not been questioned as discriminatory and violative of Article 14. The act of the State Government in not releasing him while releasing some others recommended by the Board has been challenged as discriminatory and violative of Article 14 of the Constitution. Obviously there is nothing in the rules which says that the recommendation of the Board would be binding on the State Government. Indeed it is the satisfaction of the State Government u/s 2 which is necessary. The State Government could, therefore, accept the recommendation in some cases and reject it in others. This by itself would not be discrimination, invoking the application of Article 14 of the Constitution. At the worst the question of discrimination could possibly arise only if persons placed exactly in the same situation in all respects including their antecedents and their conduct in prison had been dealt with differently. Such cases of similarity are of course very rare. In any case, the Petitioner did not even allege that his case was exactly similar in all respects and not merely in the matter of similarity of recommendation by the Board, to any other persons whom he has mentioned in his application. Unless, therefore, this Court had the power and the obligation to make judicial review of the reasons which led the State Government to reject the recommendation of the Board in the case of the Petitioner the petition could not be regarded as having any merit. As it is, a counter affidavit has been filed by the State Government and the file regarding the decision of rejection in regard to the Petitioner was also shown to us. In the order there is mention of the long standing enmity between the Petitioner and his associates on one side and some others on the other. However, the immediate grounds recorded for not releasing him are the seriousness of the crime and the fact that the sentence after reduction by the High Court is only of five years as compared to the original sentence of life imprisonment. My learned brother has regarded these grounds as not germane to the considerations on which, the Stale Government was to decide Whether to release the Petitioner on probation or not. 13. My learned brother has regarded these grounds as not germane to the considerations on which, the Stale Government was to decide Whether to release the Petitioner on probation or not. 13. It is well known that the powers conferred Under Articles 72 and 161 of the Constitution and Sections 401, 402 and 402 A Code of Criminal Procedure are in the nature of a prerogative of the executive authorities. They confer a discretionary power of showing clemency to prisoners and are given in very wide terms unfettered except in the matter of jurisdiction, by conditions. As was laid down in Maddela Yerra Chennugadu and Ors. in re : ILR 1955 Mad 92 the power to grant pardon is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for considerations before a Court of law inquiring into the offence. As was said by the Supreme Court in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, AIR 1961 SC 600 , the question of remission is within the exclusive jurisdiction of the executive Government. The Courts cannot scrutinise as to whether a remission refused or even granted was rightly done or not. Coming to the relevant enactment of Uttar Pradesh, namely, The UP Prisoners' Release on Probation Act, 1938, it will appear that the provision in Section 2 is not much different. The conditions which it lays down are conditions on which release can be ordered and not conditions on which release can be refused. A case of release may possibly come before this Court for question if there is something to make it apparent that the State Govt. did not apply its mind to the question whether from the antecedents of the prisoner and his conduct in the prison it appeared to the State Government that the prisoner is likely to abstain from crime and lead a peaceable life if he is released from prison. But a case of rejection of the request of a prisoner to be released under the Act cannot be made the subject matter of judicial review and the Court cannot examine and say that the State Government ought to have come to a different conclusion. It is the satisfaction of the State Government which matters. But a case of rejection of the request of a prisoner to be released under the Act cannot be made the subject matter of judicial review and the Court cannot examine and say that the State Government ought to have come to a different conclusion. It is the satisfaction of the State Government which matters. The matter can possibly come before the Court if there is an allegation of malafides in respect of which there are prima facie grounds alleged. In the instant case malafides were alleged on no facts but as an inference from the fact that the recommendation in the case of the Petitioners had been refused though recommendations for release in some other cases had been accepted. There was, therefore, no case for judicial scrutiny on the allegations made. The position has, however, to be considered now in the light of the fact that the order of the State Government showing the grounds for the refusal has come before the Court. 14. The question arises whether the seriousness of the crime and the fact that the sentence was of only five year's imprisonment were relevant considerations for passing orders u/s 2 of the Act in the case of the Petitioner.' The dictionary meaning of "antecedents" is 'previous conduct or previous history'. To my mind, the word "antecedent" in the expression "from his antecedents and his previous conduct in the prison" in Section 2 of the Act would refer to the conduct or history prior to imprisonment for the crime and not merely prior to the commission of the crime. In this view of the matter the background and the circumstances in which the crime was committed and its nature and the manner of its commission will be relevant circumstances in guessing whether on release the prisoner was likely to abstain from crime and lead a peaceable life. The seriousness of the crime would also be a relevant consideration rather the material consideration--as it can very well show that what the man is, from which it can be guessed as to what his conduct would on release be. In my opinion, the terms of imprisonment undergone can also not be regarded as an irrelevant consideration. The object of imposing the penalty in the form of imprisonment is principally to serve as a deterrent--both for the offender and for the public in general. In my opinion, the terms of imprisonment undergone can also not be regarded as an irrelevant consideration. The object of imposing the penalty in the form of imprisonment is principally to serve as a deterrent--both for the offender and for the public in general. The period for which a prisoner is to remain in prison with all its discomforts may affect his mental attitude towards crime or his tendency to indulge in crime. I would not, therefore, regard the consideration of the seriousness of the crime or the period of imprisonment undergone as irrelevant considerations for the State Government in forming an opinion whether the prisoner was likely to abstain from crime and lead a peaceable life. However, in the instant case the order relating to the Petitioner is capable of giving the impression that perhaps the Government was guided also by the consideration that the sentence after its reduction by the High Court was inadequate. It may be that the decision was the cumulative effect of both the seriousness of the crime and the view that the sentence was inadequate. There will be no harm if the State Government takes a fresh decision as proposed by my brother in his order and I, therefore, concur in the final order proposed. By The Court 15. The petition is allowed. The order of the State Government on the Petitioner's application under the U.P. Prisoners' Release on Probation Act is quashed and it is directed that the State Government shall dispose it of afresh according to law within three weeks hence.