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Madhya Pradesh High Court · body

2008 DIGILAW 774 (MP)

CHHIDDU @ KANCHHEDI LAL v. STATE OF M. P.

2008-06-26

ABHAY M.NAIK

body2008
Judgment ABHAY M.NAIK, J. ( 1. ) Facts involved herein that the petitioner was convicted under Section 302 of the Indian Penal Code and punishment of Rigorous Imprisonment for life was imposed by the Court of Second Additional Sessions Judge, Jabalpur, in Sessions Trial No. 164/1985 on 22.8.1986. In the year 2000, when petitioner was undergoing punishment, he developed severe chest pain and became unconscious in the jail itself. Case of the petitioner was examined under Rule 361 of the Jail Manual and the petitioner was directed to be released in exercise of powers under the said Rule. ( 2. ) State of Madhya Pradesh issued an order on 24.1.2004 marked as Annx. P/l, whereby the convicts of 65 years of age or above who underwent four years or excess punishment on 26.1.2004, were directed to be released unconditionally. Petitioner was at that time aged 65 years of age and had already undergone five years of Rigorous Imprisonment. Since he was released on health ground under rule 361 of the Jail Manual and was not in jail at the relevant time, his case was not proposed for being released pursuant to Annx.P/1 dated 24.1.2004. This has been challenged in the present writ petition. ( 3. ) Stand of the respondents is that the petitioner at the relevant time was not in jail since he was already released under Section 361 of the Jail Manual, his case was not proposed for being released in pursuance of Annx.P/1 which is revealed in Annx.P/4. ( 4. ) Heard the contentions of learned counsel for the parties. ( 5. ) Shri D.D. Bhargava, learned counsel appearing for the petitioner contended that the petitioner was fulfilling the requisite conditions under Annx.P/l. He was already above 65 years of age at the relevant time and had undergone more than five years of Rigorous Imprisonment. This being so, he ought to have been granted the benefit of Annx. 1 by making his release. Contention of learned counsel Shri Bhargava, is that by virtue of sub-rule (6) of Rule 361 of the Jail Manual, the period spent by the petitioner after his release under rule 361, was liable to be treated as the period served in the prison and, thus, the petitioner ought to have been released in the light of Annx.P/l. ( 6. ) Shri Vivekanand Awasthy, learned Govt. ) Shri Vivekanand Awasthy, learned Govt. Advocate contended on the other hand that the petitioner was not in jail at the relevant time when Annx.P/l was issued. This being so, his name was not rightly proposed for being released pursuant to Annx.P/l. Learned Govt. Advocate contended further that the period enjoyed by the petitioner outside the jail by virtue of Section 361 of the Jail Manual is to be notion ally treated as having served by the petitioner in the prison and it will not beneficial for the petitioner within the purview of Annx.P/l. ( 7. ) Having heard the learned counsel counsel for the parties, 1 am of the considered opinion that the petition deserves to succeed for the following reasons. ( 8. ) Petitioner was admittedly above 65 years of age at the time of issuance of order Annx.P/l and had undergone Rigorous Imprisonment for more than four years. Clause (1) of Rule 361 empowers for release whenever a Medical Officer of the prison is of opinion that a convicted prisoner suffering from sickness not due to infectious disease is likely to die if continued to be detained in the jail. Rule 361 provides a complete mechanism for release of a convicted prisoner who on account of his sickness is likely to die if continued to be detained in the jail. Clause (6) of Rule 361 is reproduced below for convenience :- "(6) The State Government may pass such orders as may be deemed necessary and in case the Superintendents order of release is not confirmed, the Superintendent shall forthwith cause the prisoner to be readmitted to the prison the period between the date of release by the Superintendent and readmission to the prison necessitated under the aforesaid circumstances being treated as a part of his term served in the prison." ( 9. ) From the aforesaid, it is clear that if the Superintendents order of release is not confirmed, the prisoner would be liable to be readmitted in the prison and the intervening period would be treated as a part of his term served in the prison. Thus, even if, the petitioner was released under Rule 361, the period consumed by him outside the prison did not take away his right for being considered for unconditional release pursuant to Annx.P/l dated 24.1.2004. ( 10. Thus, even if, the petitioner was released under Rule 361, the period consumed by him outside the prison did not take away his right for being considered for unconditional release pursuant to Annx.P/l dated 24.1.2004. ( 10. ) Object of Annx.P/1 was of beneficial nature for the convicted prisoners who were aged 65 years of age and had undergone 4 years or excess imprisonment. Petitioner having been released under Rule 361 could not be deprived of the benefits of the order contained in Annx.P/1 on account of his release made in exercise of the statutory power under Rule 361. This would be further clear from paragraph 5 of the impugned order (Annx.P/4) itself. It clearly shows that since the name of the petitioner was not proposed for release in accordance with Annx.P/1 at the relevant time, he was not considered and the name of the petitioner for being released was not forwarded. Had the name of the petitioner been forwarded, he definitely would have got the benefit of Annx.P/1. This cannot be snatched away from him, merely, on account of absence of his proposal in the year 2004. Petitioner was not an author of such a mistake and no fault could be found with him for denying him release pursuant to Annx.P/1. ( 11. ) This being so, petitioner is found to be entitled for the release pursuant to Annx.P/1. It is not a case of granting retrospective benefit to the petitioner vide Annx.P/1. It rather amounts to rectify the mistake which was committed by the authority by not including the petitioners proposal at the relevant time for being released in the light of Annx.P/1. Thus, petitioner having been found entitled to the release according to Annx.P/1, his petition deserves to be and is, hereby, allowed. Respondent No.2 is directed to forward the proposal of the petitioner for his release in accordance with Ann.P/1 within fifteen days from the date of receipt of certified copy of this order. Needless to say further steps pursuant thereto are to be taken within a further period of one month. Annx.P/4 is, hereby, quashed. ( 12. ) Petition, stands accordingly, allowed. No order as to costs. Petition allowed.