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Madhya Pradesh High Court · body

2003 DIGILAW 932 (MP)

Omprakash v. State of M. P.

2003-07-31

A.K.GOHIL

body2003
ORDER 1. Petitioner is languishing in jail. He has been convicted under section 8/18 of the NDPS Act and sentenced to undergo RI for 10 years vide judgment dated 8.3.2000 passed in ST No. 42/1998. Under the Madhya Pradesh Prisoner's Leave Rules, 1989 (for brevity 'the Rules of 1989') he applied for parole. His application was rejected. Thereafter Writ Petition No.1964 of 2002 was filed, which was disposed of with a consent direction to the concerned authority/District Magistrate to consider the application for release on parole as per the provisions of rule 4 of the Rules of 1989 within a period of 30 days. Thereafter by order dated 19.5.2003 Additional Collector and Collector both again rejected the application stating therein that he is a person of criminal background and Superintendent of Police has given an adverse opinion that there is apprehension that if he is released he may abscond and on the basis of the aforesaid report given by the Superintendent of Police, the application was rejected. 2. I have heard learned counsel for respondents and perused the record. 3. From the perusal of the impugned order it is clear that the Additional Collector/Collector/District Magistrate has not considered the order passed by this Court in Writ Petition No. 1964 of 2002 on 10.4.2003 and has not considered the provisions of rule 4 of the Rules of 1989 while considering the application afresh and in a cursory manner dismissed the application. Shri Vyas, Additional Collector has filed his own affidavit stating therein that he has wrongly rejected the application and has also tendered apology for the same. When a direction is given by the High Court for consideration of the application afresh, the authority is bound to consider the same in accordance with law and rules and to apply its judicial mind. The concerned authority cannot dismiss the application simply saying that he has perused the order of the High Court, considered it and rejected. The concerned authority is required to consider the case in the light of directions given by the High Court and to decide the same by a reasoned order. Reasoned order means, all the facts and law relevant thereto has to be considered and thereafter a finding is to be recorded assigning reasons therefor. 4. The concerned authority is required to consider the case in the light of directions given by the High Court and to decide the same by a reasoned order. Reasoned order means, all the facts and law relevant thereto has to be considered and thereafter a finding is to be recorded assigning reasons therefor. 4. This Court, in number of cases, has given directions to the concerned authorities to consider the provisions of section 31 A of the Prisoners Act, 1900 and also rule 4 of the Rules of 1989 while considering such applications. For ready reference, aforesaid provisions are being quoted below: Section 31A of the Prisoners Act, 1900: "31A. Grant of leave to Prisoners -- (1) Subject to the provisions to this part and to such conditions as may be prescribed, the. State Government or any authority to which the State Government may delegate its powers in this behalf, may grant leave to any prisoner who has been sentenced to a term of imprisonment of not less than there years, for a period not exceeding twenty one days in a year, excluding the time required for journeys to the first place of his visit immediately after departure from the prison and from the place of last visit to the prison back. (2) The provisions of sub-section (1) shall not apply to a prisoner who has been classified as a habitual criminal for the purpose of the Rules for the time being in force made under the Prisons Act, 1894 (IX of 1894) and who has more than three previous convictions. (3) Leave shall not be admissible to a prisoner during a year under sub-section (1) -- (i) for more than two occasions: (ii) for a period of less than ten days; and (iii) unless a period of three months has elapsed since the expiration of leave last availed of during the year and the commencement of the leave applied for. (4) No prisoner shall be granted leave under sub-section (1), unless, -- (a) he has at the time of the grant of leave served one-half of his sentence Including remission, or a period of not less than two years of his sentence, including remission, whichever is less; (b) he has not been punished for a prison offence under section 46 of the Prisons. Act, 1894 (IX of 1894) during twelve months preceding the date of commencement of the leave applied for. (5) The period of leave of a prisoner under sub-section (1) shall count towards the total period of his sentence. (6) The authority directing the grant of leave to any prisoner under sub-section (1) may require him to enter into a bond with or without sureties for due observance of conditions specified in the direction. (7) If any prisoner granted leave under sub-section (1) fails to fulfil any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to penalty thereof. (8) If a prisoner has violated the conditions of leave or bond, he shall not be entitled to leave under sub-section (1) during the remaining period of his sentence. Rule 4 of the M.P. Prisoner's Leave Rules, 1989: "4. Conditions of leave. -- The prisoners shall be granted leave under sub-section (1) of section 31A of the Act on the following conditions, namely: (a) He fulfills the conditions laid down in section 31A of the Act; (b) He has not committed any offences in jail between the date of application for leave and receipt of the order of such leave; (c) The releasing authority must be satisfied that the leave may be granted without deteriment to the public interest; (d) He gives in writing to the releasing authority the place or places which he intends to visit during the period of his leave and undertakes not to visit any other place during such period without obtaining prior permission of the releasing authority in that behalf; and (e) He should furnish security to the satisfaction of the releasing authority if such security is demanded by the releasing authority." 5. From the plain reading .of the aforesaid provisions, it is clear that the concerned authority is required to see whether the conditions laid down under section 31A of the Prisoners Act, 1900 are fulfilled or not. From the plain reading .of the aforesaid provisions, it is clear that the concerned authority is required to see whether the conditions laid down under section 31A of the Prisoners Act, 1900 are fulfilled or not. They have to also consider the provision of rule 4 whether convict has committed any offence in jail between the date of application for leave and receipt of the order of such leave and it is also to be considered that his release may not be detrimental to the public interest and fulfills the other conditions. Merely writing words in the order like 'his release is not in public interest' or 'there is apprehension about his absconding on release' alone are not sufficient. It is not the intention of the Rules. Unless some material is disclosed against the petitioner assigning reasons about the detriment of the public interest or about the apprehension of his absconding during the period on release, application should not be refused in mechanical manner. In fact, these rules have been framed with a view to provide leave to the offenders which are part of our constitutional concept of welfare State as well as the mandate enshrined in Article 21 of the Constitution. Therefore, the objective and subjective satisfaction of the concerned authorities is necessary while considering the applications, about the grant or about the refusal of the applications. Therefore, the concerned authorities owe some responsibility to consider the provisions while considering such applications. This responsibility is further intensified when an order is passed by the High Court to reconsider the matter. 6. I have perused the reply and documents filed by the respondents. In fact, no material has been placed before me about the subjective satisfaction of the concerned authority while reconsidering the application of the petitioner, that too after the order passed by this Court. They have not considered this aspect of the matter whether the petitioner has committed any offence in jail as has been provided under rule 4 of the Rules of 1989. There is nothing on record which is detrimental to the public interest. Neither any material has been placed nor any reasons have been assigned to record the finding about his apprehension for absconding or how he is a person of criminal background. There is nothing on record which is detrimental to the public interest. Neither any material has been placed nor any reasons have been assigned to record the finding about his apprehension for absconding or how he is a person of criminal background. On the contrary, it has been contended in the petition that he is in jail for the last five years, against the total sentence of ten years and his mother who is aged about 82 years, is seriously ill and his father-in-law has also expired. Though the petitioner has also not submitted other details in petition about his involvement in other criminal cases, and whether it is his first offence and whether uptil now during last five years any leave has been granted to him or not. Any how, as per section 31A of the Prisoner's Act, 1900, every year petitioner is entitled for leave. Therefore, from the documents on record, it is clear that no legal ground has been assigned to refuse such an application of the petitioner. Thus, in the absence of any adverse material against the petitioner, it appears that he is entitled for grant of leave as per the Rules. 7. Though Shri Vyas, Additional Collector has submitted his affidavit but this kind of practice of the officers is to be deprecated that they are not properly considering the orders passed by the High Court and not following the -directions given in the matter in true spirit. It is expected that in future the officers will take care in the matters particularly in compliance of the Court orders. 8. Therefore, this petition is disposed of with a direction to the concerned authority to consider the application of the petitioner afresh in the light of the aforesaid observations and decide the same by a reasoned order positively within a period of 7 days from the date of the communication of this order. C.C. on payment of usual charges.