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1997 DIGILAW 618 (RAJ)

Ishaq Mohd. v. State of Rajasthan

1997-05-12

MOHD.YAMIN, P.C.JAIN

body1997
JUDGMENT 1. - The petitioner moved an application u/Art. 32 r/w Arts. 14, 19 & 21 of the Constitution of India to Honiale the Supreme Court of India through Superintendent, Central Jail, Indore on 26.10.1996. The Hon'ble Supreme Court forwarded this petition to this Court. On receipt of this petition, it was ordered to be treated as a D.B. Habeas Corpus petition. 2. The brief facts leading to this petition are that the petitioner was held guilty of the offences under sections 302 & 324 IPC and was sentenced to rigorous imprisonment for life together with a fine of Rs. 500/- in sessions case No. 20/1980 by the learned Sessions Judge, Rajsamand vide his Judgment dated 24.11.1980. In compliance of the above Judgment, presently the petitioner is lodged in Central Jail, Indore. 3.According to Jail record, the petitioner has served the actual sentence of 16 years 3 months and 16 days and U.T. period of 23 days has also accrued to him. He has also earned the remissions of 6 years, 3 months and 16 days. Initially, the petitioner was confined in Central Jail, Udaipur but later on, he was transferred to Central Jail, Ind ore on 23.9.1990. 3. According to Jail record, the petitioner has served the actual sentence of 16 years 3 months and 16 days and U.T. period of 23 days has also accrued to him. He has also earned the remissions of 6 years, 3 months and 16 days. Initially, the petitioner was confined in Central Jail, Udaipur but later on, he was transferred to Central Jail, Indore on 23.9.1990. 4. The case of the petitioner for his release on probation under the provisions of the Madhya Pradesh Prisoner's Release on Probation Act, 1954 (for short the Act of 1954') was placed before the Probation Board in its meeting held on 6.6.1994 but the same was rejected by the State Govt. of Madhya Pradesh vide its Order No. 2629/316173/Jail dated 10.6.1994. Thereafter, his case was further placed before the Probation Board in its meeting held on 17.4.1995 and after due consideration, the Probation Board did not recommend his case for release on probation. Ultimately, the State of M.P. considering the recommendations of the Probation Board rejected the case of the petitioner for release on probation vide its Order No. F-6-47/95/3 Jail dated 17.4.1995. 5. Ultimately, the State of M.P. considering the recommendations of the Probation Board rejected the case of the petitioner for release on probation vide its Order No. F-6-47/95/3 Jail dated 17.4.1995. 5. Later on, the-premature release case of the petitioner u/r. 358 of the Madhya Pradesh Jail Manual after completion of 14 years of sentence was processed and submitted to the Jail Department through the Inspector General of Prisons, Madhya Pradesh, Bhopal after obtaining opinion from the District Magistrate, Ratlam Madhya Pradesh). However, the Jail Department of the State Govt. of Madhya Pradesh opined that as the petitioner was convicted and sentenced by the learned Sessions Judge, Rajsamand (Rajasthan), the case of the petitioner for his premature release deserves to be considered and decided by the State Govt. of Rajasthan. Thus, the Jail Superintendent, Central Jail, Indore wrote a letter on 6.11.1996 to the Secretary to the Govt., Department of Jail, Govt. of Rajasthan, Jaipur, who in turn, referred the matter to the Superintendent, Central Jail, Udaipur for referring the case of the petitioner to the Advisory Board for necessary action. However, the Advisory Board has not decided the matter as yet. Hence this petition for Habeas Corpus. 6. We have heard Mr. Doongar Singh, the learned Amicus Curaie for the petitioner and Mr. K.L. Jasmatiya, the learned Additional Advocate General for the State and have very carefully gone through the record of the case. 7. The learned Amicus Curaie has urged that in view of the Order dated 9.8.1996 issued by the Jail Department, Govt. of Madhya Pradesh, Bhopal, the petitioner is eligible for release as he has completed the requisite period of imprisonment. 8. On the other hand, the Additional Advocate General appearing for the State has vehemently argued that the above order dated 9.8.1996 passed by the Govt. of Madhya Pradesh in exercise of the powers conferred by sub-sec. (1) of Section 432 Cr.P.C. would apply only to those prisoners who have been convicted by the Courts of Criminal Jurisdiction of the State of Madhya Pradesh and are confined to the Jail of the State of Madhya Pradesh or other States. Hence, the above order could only be invoked in cases where the prisoners have been convicted by the Courts of Criminal Jurisdiction of the State of Madhya Pradesh. Hence, the above order could only be invoked in cases where the prisoners have been convicted by the Courts of Criminal Jurisdiction of the State of Madhya Pradesh. He has submitted that in this case, the petitioner was convicted by the learned Sessions Judge, Rajsamand in Rajasthan and, thus, the petitioner cannot claim benefit under the aforesaid Order dated 9.8.1996. 9. We have considered the rival submissions made at the bar and have also perused the Order dated 9.8.1996 issued by the Jail Department of the Govt. of Madhya Pradesh. We find substance in the contention raised by the learned Additional Advocate General. A perusal of the above order dated 9.8.1996 shows that the State Govt. of Madhya Pradsh granted remission of sentence only to those prisoners who have been convicted by the Courts of Criminal Jurisdiction of the State of Madhya Pradesh. Thus, since the petitioner was convicted by the learned Sessions Judge, Rajsamand (Rajasthan), the above Order dated 9.8.1996 cannot be availed of by the petitioner. 10. However, it is relevant to mention here that since the petitioner has been convicted and sentenced by the learned Sessions Judge (Rajsamand), the provisions of the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 would be applicable. Rule 8 of the aforesaid Rules specifically categorises all prisoners who are eligible for consideration by the Advisory Board. Sub-R. (3) of R. 8 of the aforesaid Rules reads as under:- "8. Prisoners eligibility for consideration by the Advisory Board:-The Advisory Board shall be entitled to consider the cases of the following types of prisoners only:- (iii) A prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the aggregate 14 years and has served two thirds of his sentence including remission. A sentence for transporation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid." From the perusal of the above R. 8(3), it is clear that the case of the petitioner is covered by the provisions of r. 8(3) of the aforesaid Rules and thus, he is eligible for consideration of his case by the Advisory Board. 11. 11. We, therefore, allow this habeas corpus petition in part and direct the respondent State of Rajasthan to refer the case of the petitioner for consideration by the Advisory Board as per the provisions of the aforesaid Rules for its decision and the Advisory Board is directed to give its decision on the case of the petitioner within a period of three months from today. If in execution of this direction, it is necessary to summon the Prisoner from Central Jail, Indore, the Prisoner may be summoned. 12. Let a copy of this order be sent to the Secretary to the Govt., Jail Department, Govt. of Madhya Pradesh, Bhopal for necessary action.Petition partly allowed. *******