M. P. JAYARAJ v. STATE OF KARNATAKA — 1984 DIGILAW 288 (KAR)

( 1 ) IN this petition under Arts. 226 and 227 of the Constitution, the petitioner has sought for issue of a writ in the nature of Mandamus to the respondents to refer his case to the Advisory board for the District Prison at Mysore (hereinafter referred to as the 'advisory Board'), or in the alternative to consider the recommendation of the advisory Board for his pre-mature release. The petitioner has also sought for his release on parole. The last prayer does not survive, because the petitioner has been released once on parole during the pendency of the Writ Petition. ( 2 ) THE petitioner was one of the five accused in Sessions Case No. 12 of 1977 on the file of the Principal District and Sessions Judge for Metropolitan area, Bangalore. He along with the other accused was convicted for the offences punishable under Ss. 143, 148, 307 read with S. 149; and S. 324 read with S. 149 of the Indian Penal code, and was sentended to undergo rigorous imprisonment for a period of three months, one year, 5 years and one year respectively, and the substantive sentences were ordered to run concurrently. ( 3 ) AGGRIEVED by the aforesaid order of convictions and sentences, the petitioner along with the other accused, preferred Crl. A. No. 280 of 1978. The State also preferred Crl. A. No. 68 of 1979 before this Court. Both the appeals were heard together and decided by a common judgment by this Court, on 1-8-1979. This Court confirmed the convictions, however enhanced the sentence from 5 years to 10 years. Pursuant to the aforesaid convictions and sentences, the petitioner has been undergoing rigorous imprisonment in the district Prison at Mysore. ( 4 ) THE contentions raised and urged by the petitioner and the respondents admit of following points for determination: (i) Whether the Advisory Board, in its proceeding dt. 6-4-1983, had or had not recommended for premature release of the petitioner? (ii) If the Advisory Board had not recommended for premature release of the petitioner, whether the subject ought to have been brought before the Advisory Board subsequent to 6-4-1983 for review of sentence of the petitioner? (iii) If the Advisory Board had recommended for premature release of the petitioner, whether its recommendation was submitted to the state Government by the 2nd respondent? (iii) If the Advisory Board had recommended for premature release of the petitioner, whether its recommendation was submitted to the state Government by the 2nd respondent? (iv) Whether the rejection of the petitioner filed by the father of the petitioner for premature release of the petitioner amounts to rejection of the recommendation of the Advisory board dt. 6-4-1983? If not, whether it is necessary for the State Government to consider the recommendation of the Advisory Board? (v) Whether it is a case for directing the State Government to pre. maturely release the petitioner or directing the State Government to consider the recommendation of the advisory Board dt. 6-4-1983 for the premature-release of the petitioner? if the latter is yes, whether pending consideration of the recommendation of the Advisory Board is it just and appropriate to direct the release of the petitioner on bail? (vi) Whether the malice imputed to the 2nd respondent can be said to have been established? If so, what appropriate directions need be given in the matter? ( 5 ) (1) POINT Nos. (i) and (ii): these two points can be dealt together. For carrying out the purposes of the Karnataka Prisons Act, 1963 (here- inafter referred to as the 'act'), the state Government has framed the rules known as Karnataka Prison rules, which have come into force with effect from 25th July, 1974. In addition to this, for the purpose of prison administration in the State of Karnataka, in consonance with the modern trends in the field of Correctional administration. The Karnataka Prison manual of 1978 (hereinafter referred to as 'the Manual') has been prepared and brought into force. The Manual covers the gamut of prison administration. In this case, we are concerned with Chapter 44 of the Manual dealing with Advisory Boards. According to para-815 of the Manual, the State Government is required to constitute an advisory Board for each Central Prison and District Prison-Class I, for the purpose of review of long term sentences of convicted criminals. The Advisory Board is required to consist of the Deputy Commissioner of the District as the chairman with the following members: (1) District and Sessions judge; (2) Superintendent of Police; (3) District Surgeon and (4) three local non-officials. The Superintendent of the Central Prison or the District prison, as the case may be, is the Secretary of the Advisory Board. The Advisory Board is required to consist of the Deputy Commissioner of the District as the chairman with the following members: (1) District and Sessions judge; (2) Superintendent of Police; (3) District Surgeon and (4) three local non-officials. The Superintendent of the Central Prison or the District prison, as the case may be, is the Secretary of the Advisory Board. In the case of Central Prison at Bangalore and the District Prison at Mysore, instead of Deputy Commissioner of the district, the Inspector General of Prisons is made the Chairman of the Advisory Board. The non-official members are appointed for a term of three years, from among the panel of names suggested to the Government by the deputy Commissioner of the concerned district. They are also eligible for re- appointment. As per para-816 of the manual, the Advisory Board is required to meet at least twice every year during the months of January and july in the office of the Superintendent, Central Prison or the District prison, as the case may be. The duty of the Advisory Board is to review sentences of convicted criminals- (i) who have been sentenced to the term of imprisonment of five years, but not exceeding ten years and have undergone the period of one-half of the sentence including remission if any; and (ii) who have been sentenced to a term of imprisonment of more than ten years and have undergone the period of two-third of the sentence including remission if any. On review of the sentences of all convicted criminals who have become eligible for review of sentences it is open to the Advisory board to recommend to State Government for the release of convicted criminals sentenced to long term imprisonment. It is the duty of the Secretary of the Advisory Board to draw up the proceedings of the meeting in the proper form, the Chairman and the members of the Board have to sign the proceedings. The Advisory Board is required to consider each case on its merits and record the recommendations in each case separately in the proceedings, a copy of which is required to be submitted to the State Government along with the case papers. As per para-818 of the Manual, it is the duty of the Secretary to place the records, of the prisoner who is eligible for review of sentence before the Advisory board. As per para-818 of the Manual, it is the duty of the Secretary to place the records, of the prisoner who is eligible for review of sentence before the Advisory board. Para-819 of the Manual provides for the procedure to be adopted by the Secretary of the Advisory board for the purpose of placing the records before it, of the prisoner eligible for review of sentence. Para-821 of the Manual enumerates the factors and circumstances to be taken into consideration for the purpose of arriving at a conclusion as to whether or not the prisoner to be released prematurely. In case the Advisory Board recommends for the premature release of the prisoner, the Inspector General of Prisons is required to submit the recommendation along with the records to the State Government and obtain its orders. If the Advisory board postpones consideration of the case of a prisoner for his premature release, the same shall have to be placed before the Advisory Board again when it becomes due along with fresh opinion of the district officers concerned. As per para 819 of the Manual, the Chief Jailor with the help of the clerk entrusted with the work of the Advisory Board, shall have to prepare a list of prisoners whose cases are to be reviewed by the Board six months in advance and place it before the Superintendant of the Jail (Secretary of the Advisory Board), for his scrutiny. As per para-817 of the manual, the State Government, on teceipt of the recommendations of the advisory Board, shall have to consider the same. On such consideration, it is open to the State Government to direct the release of the prisoner forthwith or to direct that the prisoner be released in the ordinary course on the expiry of the sentence less the period of remission earned. 5. (2) Thus, a birds eye view of the aforesaid provisions of the Manual makes it clear that the Advisory board is required to meet twice a year during the months Of January and july in order to review the sentences of all the prisoners who have become eligible for such review for the purpose of consideration of their cases for premature release. If the Advisory board recommends for premature release, the Inspector General of Prisons is required to submit the recommendation along with the records to the State Government and obtain its orders. If the Advisory board recommends for premature release, the Inspector General of Prisons is required to submit the recommendation along with the records to the State Government and obtain its orders. Of course, it is open to the State Government to agree or disagree with the recommendation of the Advisory Board or postpone the consideration of the same. In case the State Government postpones consideration of the same, it shall have to be resubmitted to the State government as per its direction. It is also open to the State Government to direct that the prisoner shall be released in the ordinary course on the expiry of the sentence less the period of remission earned. Thus, a right is created in the prisoner who has become eligible for review of his sentence for premature release, to have his sentence reviewed by the Advisory Board and in case the Advisory Board recommends for his premature release he has also a right to have such recommendation considered by the State Government. Such a right having been conferred on the prisoner by the Manual, which has the force of law, is enforceable. 5. (3) The Chairman of the Advisory Board for the District Prison, mysore, as already pointed out, is the inspector General of Prisons (2nd respondent ). As per Chapter 44 of the manual, the case of the petitioner came up before the Advisory Board on 6-4-1983. Learned Government Advocate has made available the records of the Advisory Board. From the proceedings of the Advisory Board dated 6-4-1983, it is clear that out of the seven members of the Board including the Chairman, two members viz. , The superintendent of Police and the District Surgeon did not attend the meeting. However, the other members including the Inspector General of Prisons attend the meeting. The Inspector general of Prisons and the District and Sessions Judge opined against the premature release of the petitioner; whereas, the other three non-official members opined in favour of the premature release of the petitioner. The information collected for the purpose of consideration of the case of the petitioner for premature release, as incorporated in the proceeding of the advisory Board was as on 31-12-1982. The information collected for the purpose of consideration of the case of the petitioner for premature release, as incorporated in the proceeding of the advisory Board was as on 31-12-1982. According to that the petitioner had undergone actual imprisonment for a period of three years ten months and thirteen days and in addition to that he had undergone detention for a period of one year twelve days during the investigation, enquiry or trial. This period of detention is required to be set off against the term of imprisonment imposed on the petitioner on his conviction as per S. 428 of the Code of criminal Procedure, 1973. As on 31-12. 1982, he had also earned the remission of one year three months and fourteen days. The period of remission is also required to be taken into account for the purpose of finding out whether the prisoner is eligible for review of his sentence as per para-816 (2) of the Manual. Thus, as on 31. 12-1982, the unexpired period of sentence of the petitioner was only 3 years 9 months and 21 days. In other words, he had undergone more than half of the sentence long prior to 6-4-1983. In fact, his case ought to have been considered in the year 1982 itself, because in that year itself he had completed more than five years of imprisonment. However, his case was taken up for consideration only on 6-4. 1983. It is also pertinent to notice that in the proceeding of the Advisory Board dt. 6-4. 1983, it is noted that the conduct of the petitioner in the Jail was satisfactory. The recording made against the name of the petitioner in the proceeding of the Advisory Board is as follows: "the Sessions Judge and the chairman have not recommended for premature release. The three non-official members had recommended for premature release and a proceeding is drawn in the matter and submitted. " All the aforesaid five members who attended the meeting, have also signed the proceeding. 5. (4) In para-5 of the Statement of objections, the respondents have contended that "since the Chairman of the Advisory Board and also the sessions Judge were of the opinion that this is not a case for premature release, the Advisory Board did not recommend the premature release of the petitioner to the State Government. . . . . 5. (4) In para-5 of the Statement of objections, the respondents have contended that "since the Chairman of the Advisory Board and also the sessions Judge were of the opinion that this is not a case for premature release, the Advisory Board did not recommend the premature release of the petitioner to the State Government. . . . . " In para-7 thereof, it is further stated thus:"thr contention that the case, of the petitioner for remission of sentence should be considered by the advisory Board is not tenable inasmuch ns after oxaminim; the records, the Board did not recommend the case of the petitioner for premature release. "thus, the contention of the respondents is that as all the five members, who attended the meeting of the Advisory board and considered the case of the petitioner for premature release, did not agree for the premature release; inasmuch as two official-members opined against it; therefore there was no recommendation of the Advisory board for premature release of the petitioner. In other words, it is the contention of the respondents that unless there is an unanimous opinion of the members of the Advisory Board who attend the meeting, it does not result into a recommendation of the advisory Board for premature release. On the contrary, it is the contention of the petitioner that as the majority of the members of the Advisory Board present, have opined in favour of the premature release of the petitioner, it must be taken as the recommendation of the Advisory Board for premature release. Thus, the question for consideration is whether the opinion of the majority members of the Advisory board must be taken as the opinion of the Advisory Board. The Manual does not prescribe the quorum for the meeting of the Advisory Board nor does it provide that all the members of the advisory Board must unanimously agree for premature release. Thus, the manual is silent as to how a decision of the Advisory Board for premature release of a prisoner has to be arrived at: either by simple majority or by special majority or by unanimous opinion. In such a situation, it is usual to decided by a majority opinion. Thus, the manual is silent as to how a decision of the Advisory Board for premature release of a prisoner has to be arrived at: either by simple majority or by special majority or by unanimous opinion. In such a situation, it is usual to decided by a majority opinion. Not only the legislative deliberations are decided by a majority opinion unless a special majority is required by law, the decisions in the meetings of the Board of directors of a Company or other boards are also usually taken by a majority of those present and voting at a meeting. Not only this, judicial decisions also, if required to be taken by more than one member of the judicial body, are arrived at in consonance with the view of the majority. The supreme Court, in the case of Iswar chandra v. Sathyanarain reported in 1072 SLR 385 SC, has observed thus:"if, for one reason or the other, one of them could not attend, that does not make the meeting of others illegal. In such circumstances where there is no rule or regulation or any other provision fixing the quorum, the presence of the majority of the members would constitute it a valid meeting and matters considered thereat could not be held to be invalid. This proposition is well recognised and it also so stated in Hals- bury's Laws of England, Third Edition (Vol. IX, page 48, para-95 ). It is therefore unnecessary to refer to any decisions on the subject. "this Court, in the case of virupakshappa v. Dangadi Hanumanthappa and ors. reported in 1978 (1) Kar. L. J. , 464, after referring to the aforesaid decision of the Supreme Court has held as follows:"18. It may be fairly assumed that in this country also the general rule is (in the words of S. A. De Smith) "that a Tribunal discharging functions of a public nature neither exceeds jurisdiction nor errs in law merely by arriving at a majority decision", unless the legislature provides otherwise. Since, in tha instant case the legislature is silent on the point, it may be inferred as already stated above, that its intention was that in case of differences of opinion amongst the members of the Tribunal, the majority view binds the minority and that would be the decision of the Tribunal. Since, in tha instant case the legislature is silent on the point, it may be inferred as already stated above, that its intention was that in case of differences of opinion amongst the members of the Tribunal, the majority view binds the minority and that would be the decision of the Tribunal. "thus, there is no reason whatsoever to doubt the proposition that where no quorum for the meeting is prescribed, the opinion of the majority present and voting would be the opinion of the committee or the board or the tribunal, as the case may be, and such opinion would be the valid opinion and would bind the minority members of the committee or board or Tribunal. Therefore, the proceeding of the Advisory board held on 6-4-1933 was a valid proceeding which was attended by five out of se,ven members of the advisory Board and the majority of them opined in favour of premature release of the petitioner. Therefore, the Advisory Board, in its proceeding dated 6-4-1983 did recommend for premature release of the petitioner. Point No. (i) is answered accordingly. 5. (5) If respondents 2 and 3 were of the view that since there was no unanimous opinion for the premature release of the petitioner on 6-4-1983, therefore, there was no recommendation of the Advisory Board for the premature release of the petitioner, they ought to have seen that the next date for consideration of the case of the petitioner for premature release by the Advisory Board was fixed or at any rate they ought to have placed before the Advisory Board the case of the petitioner for consideration of his premature release before the expiry of one year from 6-4-1983 as required by para-821 (2) of the Manual. It is not in dispute that even to this day the case of the petitioner for premature release has not been brought before the Advisory Board after 6-4-1983. No doubt, sri. M. R. Achar, learned Government advocate, submits that the term of the three non-official members of the Advisory Board expired on 14-10-1983 and thereafter the Advisory Board was constituted only on 5-7-1984; therefore before the expiry of one year the matter could not -be brought before the advisory Board. But, there is no explanation offered for not placing the case of the petitioner for premature release before the Advisory Board after 5-7 -. 1984 upto this date. But, there is no explanation offered for not placing the case of the petitioner for premature release before the Advisory Board after 5-7 -. 1984 upto this date. This inaction on the part of the 2nd respondent-it ad is urged on behalf of the petitioner- lends support to his case that the 2nd respondent has malice against the petitioner; therefore, he is coming in the way of the petitioner being prematurely released from the jail. Whether the 2nd respondent has had malice against the petitioner or not will be separately dealt with while considering point No. (vi ). Therefore, it is not necessary to consider the same at this stage. As the recommendation made by the Advisory Board on 6-4-1983 had not been placed before the State Government, it was not necessary to bring the subject before the Advisory Board. Thus, point No. (ii) is answered accordingly. ( 6 ) POINT Nos. (iii) and (iv): It is not disputed that the recommendation of the Advisory Board had not been placed before the State Government. It was because of the interpretation placed by the 2nd respondent on the proceeding of the Advisory Board dt. 6-4-1983 that there was no recommendation of the Advisory Board for the premature release of the Petitioner. But, it is also contended on behalf of the respondents that even if it is held that the opinion of the majority of the members present would amount to the opinion of the Advisory Board; therefore, there is a recommendation for the premature release of the petitioner, such opinion had been placed before the Government by the 2nd respondent through his letter dt. 29-7-1983 bearing No. J2/cr/383 written in connection with the petition filed before the State Government by the father of the petitioner for the premature release of the petitioner. No doubt, on the petition filed by the father of the petitioner complaining that inspite. of the recommendation made by the three non-official members of the Advisory board, the 2nd respondent had not taken action in the matter for the premature release of the petitioner; the State Government called for a Deport from the 2nd respondent. Pursuant to that, the 2nd respondent submitted his report letter dt. 29-7-1983 bearing No. J2/cr/300 of 1983 to the state Government stating that the two official members of the Advisory board viz. Pursuant to that, the 2nd respondent submitted his report letter dt. 29-7-1983 bearing No. J2/cr/300 of 1983 to the state Government stating that the two official members of the Advisory board viz. , himself and the District and Sessions Judge, Mysore, did not favour for the premature release of the petitioner and that there was an adverse report from the Commissioner of Police, Bangalore and the District magistrate, Bangalore, even though three non-official members were in favour of the premature release of the petitioner. In that letter, he also ultimately opined that it was not a fit case for premature release. Thus, he had impressed upon the State Government that there was no recommendation made by the Advisory Board for the premature release of the petitioner. Records of the case also do not reveal that the 2nd respondent had submitted to the State Government the recommendation of the Advisory board, dt. 6-4-1983, for the premature release of the petitioner. The State government, on the basis of the aforesaid report / letter dt. 29-7-1983 of the 2nd respondent, has rejected the petition filed by the father of the petitioner for premature release of the petitioner. The records of the State Government are also produced by the learned Government Advocate at the instance of the Court. The State government has proceeded on the basis that the Advisory Board has opined against the premature release of the petitioner and further the 2nd respondent has also not recommended for the premature release of the petitioner. Thus, at no stage it had been brought to the notice of the State Government that there was a recommendation made by the Advisory Board for the premature release of the petitioner. Consequently, it follows that the recommendation of the Advisory Board for the premature release of the petitioner has remained unconsidered by the state Government, as it has not been submitted by the 2nd respondent before the State government for consideration. It is the duty of the 2nd respondent, as per para-821 (iii) read with para 816 (5) of the Manual, to place the recommendation of the Advisory board for the premature release of the petitioner, before the State Government. This, the 2nd respondent has failed to perform. It is the duty of the 2nd respondent, as per para-821 (iii) read with para 816 (5) of the Manual, to place the recommendation of the Advisory board for the premature release of the petitioner, before the State Government. This, the 2nd respondent has failed to perform. That being so, the rejection of the petition filed by the father of the petitioner for the premature release of the petitioner on the erroneous report of the 2nd respondent that there is no recommendation of the Advisory Board for the premature release of the petitioner, cannot be held to come in the way of the state Government to consider the recommendation of the Advisory Board dt. 6. 4-1983 for the premature release of the petitioner. Therefore, it is necessary for the 2nd respondent to place before the State Government for its consideration the recommendation of the Advisory Board dt. 6-4. 1983. Accordingly, point Nos. (iii) and (iv) are answered as follows: point No. (iii): The recommendation of the Advisory Board dated 6. 4-1s83 for the premature release of the petitioner had not been submitted to the State Government by the 2nd respondent. POINT No. (iv): The rejection of the petition filed by the father of the petitioner for premature release of the petitioner did not amount to rejection of the recommendation of the Advisory Board dt. 6-4-1983 for the premature release of the petitioner. In view of this, the recommendation of the advisory Board has remained to be considered by the State Government; therefore, it is necessary for the 2nd respondent to submit the same to the State Government for its consideration. ( 7 ) (1) POINT No. (v): It is contended on behalf of the petitioner that in spite of the fact that the Advisory board had recommended for premature release of the petitioner in its proceeding dt. 6-4-1983, the case of the petitioner had not been considered by the State Government nearly for over a year, and the conduct of the petitioner in the Jail had been satisfactory- as recorded in the proceeding of the advisory Board dt. 6-4-1983 and as the unexpired period of sentence as on to day is only 1 year 1 month and 19 days,, it is a case for directing the res. pendents to release the petitioner prematurely. 6-4-1983 and as the unexpired period of sentence as on to day is only 1 year 1 month and 19 days,, it is a case for directing the res. pendents to release the petitioner prematurely. In support of this contention, learned Counsel for the petitioner has placed reliance on the decisions of the supreme Court reported in-AIR 1982 s. C. 1391 (Srinivas and Ors. v. Delhi Ad. ministration and Ors) and AIR 1983 (1) s. C. C. 389 (Bhagwat Sharon and Ors. v. State of Uttara Pradesh and Ors.), On the contrary, it is contended by Sri. M. R. Achar, learned Government Advocate, that if this Court were to come to the conclusion that the Advisory board in its proceeding dt. 6-4. 1983 had recommended for the premature release of the petitioner based on the opinion of the majority of the members of the Advisory Board present at the meeting, then the only consequential order that has to be passed is to direct the State Government to consider the recommendation of the Advisory Board and not the premature release of the petitioner as that would result in depriving the State Government of its legitimate power to consider the recommendation of the Advisory Board. The delay if any in considering the recommendation ol the Advisory Board has occurred only due to the wroug understanding of the 2nd respondent that there is no recommendation oi the Advisory Board for premature release ol the petitioner, as all the members present at the meeting have not unanimously opined for the premature release of the petitioner. Learned Government Advocate has placed reliance on a decision of the Supreme Court, in hiralal v. State of Jammu and Kashmir, reported in AIR 1984 S. C. 1234. 7. (2) However much a person is condemned, there is no doubt that he is entitled to be treated in accordance with law which also means with ail reasonableness and free from bias and arbitrariness. Not only this, he is also entitled to enforce the rights guaranteed to him inside and outside the prison. This shows the sublimity of Rule of law which assures fair treatment even to a condemned Criminal. The Supreme Court, in Sunil Batra. Not only this, he is also entitled to enforce the rights guaranteed to him inside and outside the prison. This shows the sublimity of Rule of law which assures fair treatment even to a condemned Criminal. The Supreme Court, in Sunil Batra. v. Delhi Administration, reported in AIR 1980 S. C. 1579 has observed that "whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair'. Bhagwati, J. in Maneka gandhi (1978) 1 SCC 248 at page 284: ( AIR 1978 SC 537 ) observed,"the principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades art. 14 like a brooding omnipresence and the procedure contemplated by art. 21 must answer the test of reasonableness in order to be in contor- mity with Art. 14. It must be "right, just and fair" and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Art. 21 would not be satisfied. "the Manual-prepared in consonance with the modern trends in the field of correctional Administration-provides for remissions in sentence, release on parole and premature release. Thus, a prisoner undergoing rigorous imprisonment, on fulfiling the norms or criteria laid down in the Manual, is entitled to be considered for premature release. In other words, the right to be considered for premature release is conferred on the prisoner. As it is pointed out earlier, the petitioner was eligible to be considered for premature release even in the year 1982 itself. But, his case was considered only on 6-4-1983 by the Advisory Board. Even the recommendation of the Advisory Board for the premature release of the petitioner has not yet been considered by the State Government. Thus, there is no doubt that the case of the petitioner has remained unconsidered by the State Government due to the default committed by the 2nd respondent in not submitting the recommendation of the Advisory Board to the State government. Thus, there is no doubt that the case of the petitioner has remained unconsidered by the State Government due to the default committed by the 2nd respondent in not submitting the recommendation of the Advisory Board to the State government. In Srinivass case AIR 1982 S. C. 1391, the Supreme Court has directed premature release of some of the prisoners concerned therein, because there were no sufficient reasons for non-consideration of their cases for premature release, and in some cases, the prisoners have also been ordered to be released on bail pending consideration of their cases for premature release with liberty reserved to the concerned authorities to move the Court for appropriate orders after considering their cases for premature release. In Bhagwat Saran's case (1983) 1 SCC 389, the only ground given by the State government for rejecting the recommendation of the committee for premature release of the petitioners therein, was that after considering their cases sympathetically keeping in view the law and order situation, they could not be released. The Supreme Court held that a bald statement like that without any attempt to indicate how the lav/ and order situation were likely to be adversely affected by the release of the petitioners therein, could not be accepted and in fact, there were no reasons why the recommendation of the committee for release of the petitioners therein could not be accepted; therefore, the Supreme Court directed the release of the petitioners therein forthwith. In the case of Hiralal, (AIR 1984 S. C. 1239) the Standing Board constituted for. considering the premature release had not considered the case of the petitioners therein in terms of the relevant rule; therefore the supreme Court allowed the petition to that extent and directed the Standing board to consider the case of the petitioners therein for premature release in terms of the relevant Rules in its next meeting. 7. (3) It appears to me that the decisions in the case of Bhagwat Sharan and Hiralal, have no bearing on the facts and circumstances of the present case. In the instant case, the advisory Board has considered the case of the petitioner and has recommended for premature release; but on a wrong understanding of the proceeding of the Advisory Board by the 2nd respondent, the recommendation of the Advisory Board has not been placed beiore the State Government. In the instant case, the advisory Board has considered the case of the petitioner and has recommended for premature release; but on a wrong understanding of the proceeding of the Advisory Board by the 2nd respondent, the recommendation of the Advisory Board has not been placed beiore the State Government. Therefore, in such a situation, it is necessary that the State Government be directed to consider the recommendation of the Advisory Board. It is not possible to predict at this stage, what would have been the decision of the state Government on the petition filed by the father of the petitioner for the premature release of the petitioner if only the 2nd respondent had brought to the notice of the State Government that the Advisory Board in its proceeding dt. 6-4-1983 had recommended for premature release of the petitioner. On the contrary, as pointed out earlier, the State Government was told by the 2nd respondent that the advisory board had opined against the premature release. In fact, only two reasons are given by the State Government for rejecting the petition filed by the father of the petitioner for premature release of the petitioner. Those two reasons are, that the Advisory Board has not recommended for the premature release of the petitioner and the 2nd respondent also has opined against the premature release of the petitioner. Therefore, it is necessary to afford an opportunity to the State Government to exercise its power under para 817 of the Manual on the basis that the Advisory Board has recommended for the premature release of the petitioner. But, at the same time, having regard to the fact that the case of the petitioner for premature release ought to have been considered long back and only a short period of sentence has remained to be undergone, it is necessary to impose a condition that the State government shall take a decision in the matter within a stated period and in case it fails to take a decision within the state period, the petitioner shall stand prematurely released. Such a course will enable the State Government to exercise its power and at the same time it will also safeguard the interest of the petitioner. Thus, the first portion of Point No. (v) is answered accordingly. 7. Such a course will enable the State Government to exercise its power and at the same time it will also safeguard the interest of the petitioner. Thus, the first portion of Point No. (v) is answered accordingly. 7. (4) In view of the aforesaid conclusion, the next question for consideration is as to whether pending consideration by the State Government of the recommendation of the Advisory Board for premature release of the petitioner, is it just and appropriate to release the petitioner on bail. It has been already pointed out that the case of the petitioner for premature release has remained unconsidered since 1982. Though the Advisory Board considered it once on 6-4-1983 and opined in favour of the premature release of the petitioner, the said recommendation was not placed before the state Government. The conduct Of the petitioner in the Jail had been satisfactory as recorded in the proceeding of the Advisory Board dt. 6. 4-1983. He has earned remissions. On verification, sri. Achar, learned Government Advocate, submits that though the unex- pired period of sentence of the petitioner as on to-day is only 1 year 1 month and 19 days, but nevertheless, it is not a fit case for releasing the petitioner on bail pending consideration of his case for. premature release by the State government. Under similar circumstances, in Srinivas's Case ( AIR 1982 sc 1391 ), the Supreme Court has directed the release of Sri. Pritam Sing- petitioner in W. P. No. 932/82-on bail pending consideration by the Sentence revising Board for premature release reserving liberty to the concerned authorities to apply for cancellation of the bail. Therefore, having regard to the facts and circumstance of the case, and the lapse on the part of the 2nd respondent in not placing the recommendation of the Advisory Board for premature release of the petitioner before the State Government for its consideration, it Is just and appropriate, pending consideration of the recommendation of the Advisory Board by the State Government, to release the petitioner on bail on certain conditions. Thus, the latter portion of Point No. (v) is answered accordingly. Thus, the latter portion of Point No. (v) is answered accordingly. ( 8 ) POINT No. (vi): The case of the petitioner is that he was the Editor and Publisher of a newspaper under the name and style "garibi Hatao" and he was also an active congress-man; that he had exposed and reported many high-handed acts of the 2nd respondent during that time; and on account of that, the 2nd respondent bears ill will against the petitioner. He has also produced as Annexure-B a photo-stat copy Of the aforesaid newspaper "garibi Hatao" containing allegations against the 2nd respondent (C. S. Mallaiah) affecting his conduct as a government Servant. It is also further alleged in paras 8 and 9 of the petition that the 2nd respondent is inimically disposed towards the petitioner and as such, he had acted with bias, and had not considered the application of the petitioner for parole or rejected it without any basis. It is also further alleged that the 2nd respondent is ill-disposed towards the petitioner and as such any action taken by the 2nd respondent either as a person authorised to grant parole or as Chairman of the advisory Board, is violative of principles of natural justice because he has bias against the petitioner. Annexure- b, is an issue of 'garibi Hatao' published by the petitioner from Bangalore. It contains serious allegations against the 2nd respondent affecting his conduct as a Government servant. In the statement of objections filed by the respondents, it is stated in para-3 that it is not true that the petitioner had Exposed and reported many highhanded acts of the 2nd respondent; that the photo-stat copy of the alleged newspaper 'garibi Hatao' is seen for the first time by the 2nd respondent only after he has received a copy of the Writ Petition; that the allegations that the 2nd respondent bears ill-will towards the petitioner are absolutely false; that there is no reason for the 2nd respondent to bear ill will towards the petitioner. Similar asserctons are made in para-8 of the statement of objections. In para. ll thereof, it is further stated that there is no basis for the contention that the Chairman of the Advisory Board (2nd respondent) is ill-disposed towards the petitioner and the principles of natural justice have been violated. One Sri. Similar asserctons are made in para-8 of the statement of objections. In para. ll thereof, it is further stated that there is no basis for the contention that the Chairman of the Advisory Board (2nd respondent) is ill-disposed towards the petitioner and the principles of natural justice have been violated. One Sri. J. G. Kulkarni, Headquarters Assistant to the inspector General of Prisons, has sworn to the affidavit filed in -support of the statement of objections. In the affidavit, it is stated that the deponant of the affidavit has acquainted himself with the facts of the "case from the available records and the statements made in paragraphs 1 to 12 of the statement of objections accompanying the affidavit based on the information he has gathered from the available records and he believes them to be true. It is brought to the notice of the Court by the learned Government Advocate that Sri. J. G. Kulkarni, the deponant of the affidavit, was authorised by the government to swear to the affidavit filed in support of the statement of objections. No affidavit of sri. C. S. Mallaiah (2nd respondent), eventhough he is economic made a party to the petition, is filed in support cf the statement of objections, or at least in support of the statements contained in paragraphs 3, 8 and 11 of the statement of objections. Sri. J. G. Kulkarni was not competent to swear to the facts which were in the personal knowledge of the 2nd respondent. Whether the 2nd respondent bears ill-will towards the petitioner; whether he had receiv- ed the issue of 'garibi Hatao' (Annexure-B) containing allegations of mis-conduct against the 2nd respondent; whether he bona fide exercised his authority as the Chairman of the Advisory Board, were the matters which were within the personal knowledge of the 2nd respondent which he alone could traverse. The allegations of ill- will and bias made against the 2nd respondent in the petition ought to have been traversed by the 2nd respondent only. The traversal of the same in the statement of objections filed on behalf of the respondents, cannot be considered to be the one made by the 2nd respondent because there is no verified or sworn statement of the 2nd respondent to that effect; therefore the allegations of malafides made against the 2nd respondent by the petitioner must be considered to have remained untraverscd by the 2nd respondent. But, having regard to the nature of the directioas that are required to be issued in view of the conclusions reached by me on points (i) to (v), it is not necessary to record a finding as to whether the 2nd respondent was aware of the allegations of mis-conduct made against him in the aforesaid issue of 'garibi Hatao', produced as Annexure-B. 8. (2) It is not in dispute that the newspaper 'garibi Hatao' (Annexure- b) was published by the petitioner. Having regard to the aforesaid conclusions, the State Government is now required to consider the recommendation made by the Advisory Board on 6-4-1983 for the premature release of the petitioner. It is the apprehension of the petitioner that if the State Government considers the recommenda- tion of the Advisory Board dt. 6-4-1983 on obtaining the opinion of the 2nd respondent, who, having regard to the allegations contained in the petition and Annexure-B, is likely to opine against the petitioner. On the service of notice of the petition as stated in the statement of objections, the 2nd respondent has come to know of the allegations against him by the petitioner in Annexure-B. The State Government also has come to know of it, as it has also been served with the notice of the petition accompanied by a copy of Annexure-B. In his background, the apprehension of the petitioner that the 2nd respondent is likely to opine against him, cannot be held to be baseless or capricious or unreasonable; therefore, it cannot be brushed aside. Hence, it is necessary to exclude such a possibility. This apprehension can be allayed and the interest of the petitioner can. very well bo safeguard and the possibility of the proceeding before the Government being affected by the biased opinion of the 2nd respondent can be excluded if the State Government is directed to take a decision in the matter only on the basis of the recommendation of the Advisory Board in its proceeding dt. 6-4-1983 for the premature release of the petitioner. 6-4-1983 for the premature release of the petitioner. In such an event the State Government has to eschew from consideration the letter /report dated 29th July, 1983, bearing No. J2/cr/383 of the 2nd respondent and its rejecting the petition filed by the father of the petitioner for premature release of the petitioner and take a fresh decision only on the recommendation made by the Advisory board in its proceeding 6-4-1983 for premature release of the petitioner. In such an event, the proceedings of the State Government will be free from the biased view of the 2nd respondent. Subject to the aforesaid directions, I am of the view that it is not necessary to record a finding on the question of malice imputed against the 2nd respondent. Point No. (vi) is answered accordingly. ( 9 ) FOR the reasons stated above, subject to the condition that the State government shall take a decision on the recommendation of the Advisory board contained in its proceeding dt. 6-4-1983 for premature release of the petitioner, on or before the 15th of November, 1984; failing which the petitioner shall stand prematurely released; the petition is allowed in the following terms:- (1) The recommendation of the advisory Board for the District Prison, mysore, dt. 6-4-1283 for premature release of the petitioner be placed by the 2nd respondent before the state Government on or before 10th october, 1984 without expressing his opinion in any manner; (2) The State Government shall consider the recommendation of the advisory Board for the District Prison, Mysore, as incorporated in its proceedings dt. 6-4-1983 for the premature release of the petitioner without reference to its earlier order rejecting the petition filed by the father of the petitioner for premature release of the petitioner and also the letter dt. 25-7-1983 bearing no. J2/cr. 300/83 written by the Inspector General of Prisons-Sri. C. S. mallaiah (2nd respondent) and without obtaining his opinion in any manner and take a decision in the light of the observations made in this order on or before the 15th November, 1984; (3 The petitioner shall be released on bail from the District Prison, mysore, subject to the following conditions: (i) The petitioner shall furnish two satisfactory sureties for a sum of Rs. 20,000 each to the satisfaction of the 2nd respondent end shall execute a self-bond for a like sum; (ii) The petitioner shall within 24 hours from the time of his release on bail from the District Prison, Mysore, report to the Station House officer, Wilson Garden, Bangalore; (iii) He shall reside at the address viz. , no. 149, B. T. S. Road, Wilson Garden, Bangalore-30; (iv) He shall not leave the Corporation limits of the City of bangalore, without the prior permission of the District Magistrate, Bangalore; (v) He shall report to the Station house Officer, Wilson Garden, Bangalore, daily at the hour and time specified by the Station House Officer; (vi) He shall not involve himself directly or indirectly in any unlawful activities which are likely to endanger or cause breach of peace and disturb tranquility; (vii) He shall not associate with natorious bad characters or lead a desolate life; (viii) He shall maintain good behaviour and shall not commit any offence punishable by law in force, in India; (ix) The State Government shall take a decision on or before 15-11. 1984. In case the State Government takes a decision on consideration of the recommendation dt. 6. 4-1983 made by the Advisory board for the District Prison, Mysore, for the premature release of the petitioner, and in the light of the observations made in this order, not to release the petitioner prematurely from the jail, the petitioner shall, within 24 hours from the time such order is served on him, surrender to the jail authorities of the District Prison, Mysore. In such a situation, the period spent on bail shall not be taken into account or is not deductable from the period of sentence to be undergone by the petitioner; (x) It is also open to the petitioner to challenge the decision of the state Government regarding his premature release, if it goes against him. In such a situation, the period spent on bail shall not be taken into account or is not deductable from the period of sentence to be undergone by the petitioner; (x) It is also open to the petitioner to challenge the decision of the state Government regarding his premature release, if it goes against him. In that event, the aforesaid direction to surrender to the Jail authorities of the district Prison, Mysore, shall be subject to the order - (interim or final) that may be made in such a proceeding; (xi) If the State Government takes a decision to prematurely release the petitioner from jail, the surety-bonds furnished and the self- bond executed by him shall stand automatically cancelled from the date of such decision, without any further order to that effect; (xii) If the State Government fails to take a decision on or before 15. 11-1984, either in favour of or against the premature release of the petitioner pursuant to the recommendation dt. 6. 4-1983, made by the advisory Board for the District Prison; Mysore, for the premature release of the petitioner the self-bond executed by the petitioner and the surety bonds furnished by him shall stand automatically cancelled without any further order to that effect. ( 10 ) A copy of this order be made available to learned Government Advocate on or before 5. 10-1984 and despatched to the respondents. ( 11 ) GRI. M. R. Achar, learned government Advocate, is permitted to file his memo of appearance for respondents, in six weeks. --- *** --- .