Brijesh Kumar v. State of Uttar Pradesh — 1969 DIGILAW 18 (ALL)

JUDGMENT J. Sahai, J. - The petitioner, Brijesh Kumar, is serving a sentence of imprisonment for life under Section 302, I. P. C. for having murdered his adoptive father. The trial Judge had sentenced him to death, but the High Court reduced the sentence to one of imprisonment for life. 2. He applied for release under Section 2 of the U. P. Prisoners' Release on Probation Act, 1938 (hereinafter referred to as the 'Act') . The State Government have not permitted him to be released under that provision and have dismissed his application on 25th July. 1967. The prayer contained in this petition is that the order dated 25th July, 1967 be quashed and the petitioner be released on licence. There is also the usual prayer for the grant of any other writ, order of direction as this Conn deems fit and proper. 3. Mr. Rajvanshi, learned counsel for the petitioner, has made the following three submissions before us : (1) The State Government has acted illegally in taking into consideration irrelevant matters while rejecting the application under Section 2 of the Act for the petitioner's release. (2) The State Government has acted discriminatory against the petitioner. (3) The action of the State Government is rnala fide. 4. Before we deal with the submissions of the learned counsel for the petitioner, we would record our view on the scope of Section 2 of the Act and the nature of the power exercised thereunder; 5. (2) The State Government has acted discriminatory against the petitioner. (3) The action of the State Government is rnala fide. 4. Before we deal with the submissions of the learned counsel for the petitioner, we would record our view on the scope of Section 2 of the Act and the nature of the power exercised thereunder; 5. Section 2 of the Act reads : "The powers 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 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 the purpose, provided such other person, institution or society is willing to take charge of him . . . . . . " 6. Having read the provision, we are of opinion that the power is discretionary with the Government and the matter is not justiciable by a Court of law, nor has a person any right to get released. Our reasons are as follows : (a) The nature of the power is such that it operates in the realm of administrative action. Such matters are dealt with by executive authorities. Considerations of compassion or expediency, of administrative convenience, of social and public good alone govern the exercise of such a power. No judicial or quasi judicial considerations intervene in such matters. In K.N. Nanavati v. State of Bornbay, A.I.R. 1961 SC 112 the Supreme Court was called upon to consider the scope of Article 161 of the Constitution of India and they were of the opinion that "the power is essentially vested in the head of the executive because the judiciary has no such mercy jurisdiction." 7. In Gopal Vinayak Codse v. State of Maharasktra, A.I.R. 1961 SC 600 the Court had to deal with Article 72 of the Constitution. In Gopal Vinayak Codse v. State of Maharasktra, A.I.R. 1961 SC 600 the Court had to deal with Article 72 of the Constitution. It was observed by the Court : "The Constitution as well as the Code of Criminal Procedure confer power to remit a sentence on the executive Government and it is in its exclusive province." 8. While dealing with the scope of Section 401, Cr. P. C. and Article 161 of the Constitution, a Division Bench of the Madras High Court in Maddela Verra Chennugadu In Re:3 observed as follows : "Sec. 401 of the Criminal Procedure Code was enacted at a time when the right of reprieve mercy or pardon had been vested in the British Crown, and the Governor-General or the Governor exercised those functions as a delegate from the Sovereign in Great Britain. Therefore, if in England and Scotland, the Sovereign can exercise the prerogatives of mercy, reprieve or pardon, even before there is.a final decision on the guilt or innocence of an accused person, then it follows that the same power can be exercised by the Governor-General or Governor ....................... As our country is now a Sovereign Republic, a parallel from the prerogatives exercised by the constitutional monarch in England may not be very apposite, since we have a written constitution to interpret. In many respects, the power of pardon and reprieve conferred under the Indian Constitution by Article 72 on the President, and by Article 161 on the Governor of a State is very similar to the power of the President of the United States of America in granting pardons and reprieves ...." 9. These decisions support the view we are taking. (b) The use of the word "appear" as contra-distinguished from "satisfied" in Section 2 of the Act indicates that the matter is left to the subjective satisfaction of the State Government. It is true that the State Government is to exercise its subjective satisfaction on the basis of objective materials i.e. "antecedents" and "conduct in the prison" of the prisoner, but that does not mean that it exercise judicial or quasi judicial powers or that the matter does not rest in the subjective opinion of the State Government. This conclusion of ours is supported by the circumstance that no appeal or revision or review is provided in the Act against the decision of the State Government. 10. This conclusion of ours is supported by the circumstance that no appeal or revision or review is provided in the Act against the decision of the State Government. 10. Again, the use of the word 'licence' in Section 2 of the Act is suggestive of a privilege being conferred on the prisoner as contra-distinguished from his having a right to obtain an order under this provision. In Shorter Oxford Dictionary the word 'licence' has been given the following meaning amongst others : "To give permission, to permit to give leave of departure, to grant a licence to do something e.g. to practise a trade, to hold a curacy, keep a dog, carry gun etc." 11. In Nakkuda Ali v. M.F.De.S. Jayaratna, 1951 AC 66 the question related to the cancellation of a licence and it was observed : "In truth, when he cancels a licence he is not determining a question. He is taking executive action to withdraw a privilege because he believes and has reasonable ground to believe' that the holder is unfit to retain it." 12. In Re. v. Matropolitan Police Commissioner, (1953) II Q.B.D. A.E.L.R. 717 it was observed by the learned Judges : "A licence is nothing but a permission". 13. Besides these, there are a large number of other cases where the word licence' has been interpreted and the consensus of judicial opinion is that it means a privilege to which a person is not entitled as of right. 14. Again the use of the expression "permit him to be released" is indicative of a mere privilege or indulgence being granted to the prisoner and militates against the submission of Mr. Rajvanshi that Section 2 confers a right on a prisoner to be released under that provision. 15. Lastly the use of the expression "The State Government may" in Section 2 of the Act in- our opinion conclude the matter against the petitioner so far as this aspect of the case is concerned. The use of the word "may" is suggestive of there being a complete discretion with the Government. It is true that sometimes the word "may" is used in the sense of "shall" as the word "shall" is sometimes used in the sense of "may", but that depends upon the context in which the word is used, the language of the statute and the purpose which the Act intends to achieve. It is true that sometimes the word "may" is used in the sense of "shall" as the word "shall" is sometimes used in the sense of "may", but that depends upon the context in which the word is used, the language of the statute and the purpose which the Act intends to achieve. Considering the context, the language and the circumstance that the object of Section 2 is to provide the State Government with a power to order the release of a prisoner (a power which they would not otherwise have) , we are of opinion that the word "may" has been used in the sense of "may" and not in the sense of "shall" and gives the Government a complete discretion in the matter. 16. We have already stated above that merely because the State Government is required to take into consideration some objective factors, i.e. antecedents and the conduct of the prisoner in the prison, it does not mean that the State Government has to deal with the application for release judicially or quasi judicially. We find support in our view from Province of Bombay v. Khusaldass S. Advani, A.I.R. 1950 SC 222 where it was observed : "Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a power conferred on it, the determination of the objective fact and the exercise of the executive power based thereon are alike matters of an administrative character." 17. This decision was followed by the Supreme Court in Radheyshyam v. State of M.P., A.I.R. 1959 SC 107. 18. Undoubtedly the State Government is an executive authority and there is nothing to indicate that while exercising power under Section 2 of the Act it has to act judicially or quasi judicially. 19. Section 6 of the Act confers on the State Government the power to revoke the licence at any time. The State Government is not bound to hear the prisoner except when it is revoking the licence on the ground or breach of a condition of the licence. This would also indicate that a prisoner has no right to be released. 20. The State Government is not bound to hear the prisoner except when it is revoking the licence on the ground or breach of a condition of the licence. This would also indicate that a prisoner has no right to be released. 20. We now proceed to consider seriatim the submissions made by the learned counsel for the petitioner. 21. It has been stated in paragraph 16 of the petitioner's supplementary affidavit that he "has reliably learnt that the State Government has rejected the recommendation of the Probation Board on the sole ground that the petitioner was involved in a heinous crime". Learned counsel for the petitioner has placed reliance upon this averment in the supplementary affidavit and contended that the State Government has acted completely on extraneous considerations because the circumstance that the petitioner was convicted for a heinous crime cannot be comprehended either in the expression 'antecedent' or "his conduct in the prison" occurring in Section 2 of the Act. In support of this contention learned counsel has placed reliance upon the following passage in the judgment of Lakshmi Prasad, J. in Vishambhar Dayal v. State, 1968 AWR 594 : "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." 22. This view was not subscribed by Gur Sharan Lal, J. the other Judge constituting the Division Bench. Gur Sharan Lal, J. observed: "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 difference 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." 23. Gur Sharan Lal, J. has taken a completely different view of the matter. He observed : "To my mind, the word "antecedents" 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. He observed : "To my mind, the word "antecedents" 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." 24. Therefore, Mr. Rajvanshi is not correct in treating the observation of Lakshmi Prasad, J. as the decision recorded by the Division Bench. In fact it would be noticed that Lakshmi Prasad, J. and Gur Sharan Lal, J. dictated separate opinions and the judgment of the Court reads only thus : "By The Court. 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." 25. In our opinion, the word 'antecedent' is comprehensive enough to include the nature of the offence for which a prisoner is convicted. It would be noticed that the legislature provides for two considerations, (1) 'his antecedent' and (2) 'his conduct in the prison'. Obviously 'antecedent' cannot be the same thing as the petitioner's conduct in prison and must contemplate something which was in existence before the prisoner entered the prison. 26. In Shorter Oxford Dictionary the word 'antecedent' has been given the following meaning amongst other : "A thing or circumstance which goes before in time or order ... The events of a person's past history." 27. In the past history of the petitioner, a major event was, that he was adjuged guilty under Section 302, I. P. C. for having murdered his adoptive father. The events of a person's past history." 27. In the past history of the petitioner, a major event was, that he was adjuged guilty under Section 302, I. P. C. for having murdered his adoptive father. In our opinion, there fore, the offence for which the petitioner was convicted would be a relevant consideration under Section 2 of the Act for it would be covered by the expression 'his antecedent'. We would like to point out that the main consideration before the State Government while exercising powers under Section 2 of the Act is to form an opinion whether the prisoner "is likely to abstain from crime and lead a peaceable life if he is released from prison." 28. We find it extremely difficult to visualise as to how can the State Government satisfy itself on this question without having a reference to the nature of the offence which a prisoner is found by a competent court of law to have committed. It is a trite saying that future is always linked with the past and while searching for the expectations of the future no reasonable man can ignore the proved past. The circumstance that the petitioner put his own adoptive father to violent death is, in our opinion, a relevant consideration for deciding whether he has a constitutional make up which would ensure that in the future he would lead a peaceable life and abstain himself from crime. The word "antecedent" is a very comprehensive word and there is nothing to indicate in Section 2 that from its vast amplitude the offence for which a person is convicted and sentenced is to be excluded. 29. There cannot be any dispute on the question that once a person is adjudged guilty by a court of law and sentenced to a term of imprisonment, the State Government, the Governor or the President would exercise their powers either of conditional release or of reprieve or pardon not on the basis of caprice but on the consideration of the entire circumstances relating to the case and the prisoner. Consequently the consideration as to for what offence a prisoner was convicted and what sentence has been awarded to him and the circumstances under which the offence was committed would be germain for the decision of the question whether it can reasonably be hoped that the prisoner would abstain from crime and lead a peaceable life in future. We, therefore, find no merit in the first submission of Mr. Rajvanshi. (2) Mr. Rajvanshi has given several cases where prisoners have been conditionally released under Section 2 of the Act, but we are satisfied that the petitioner and those prisoners were not similarly situated. No case has been brought to our notice whether the State Government has released a person who was convicted for patricide and who being a graduate was expected to behave better. Consequently we find no merit in the submission that discrimination against the petitioner has been practised and repel this submission of Mr. Rajvanshi. (3) There is no material on the basis of which we can seriously entertain the submission of Mr. Rajvanshi that the State Government has acted mala fide. After reading the affidavits filed in the case we are of opinion that the State Government has acted honestly bona fide and in public interest in the instant case. There is thus no question of any mala fide on their part. 30. No other submission has been made before us. 31. The petition is devoid of all merits. It is accordingly dismissed.