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2011 DIGILAW 503 (MP)

Santosh Kumar Dubey v. State Of M. P.

2011-04-26

K.K.LAHOTI, SUSHMA SHRIVASTAVA

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JUDGMENT ( 1. ) THIS appeal is directed under Section 2 (1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyay Peeth Ko Appeal) Adhiniyam, 2005, by which writ petition filed by the petitioner assailing the order (Annexure A-2), dated 8-10-08 passed by the State of M.P., Jail Dept., Bhopal was dismissed. ( 2. ) LEARNED Counsel appearing for the appellant submitted that the case of petitioner, for release on probation, was decided in the light of the amendment made in Rule 4 w.e.f. 24-3-08, while the application of the petitioner was filed much earlier, considered and rejected prior to the amendment. The rejection order was passed by the State of MP. on 26-12-2005. Against that order, petitioner had filed a writ petition before this Court bearing W.P. No. 1954/06, which was allowed vide order dated 4-7-06 and the respondents were directed to consider the case of the petitioner afresh for his release on probation. Then case of the petitioner was considered by the respondents and the application of the petitioner was rejected on 24-3-08. Against the aforesaid order, petitioner had preferred a writ petition bearing No. 15027/08. This Court vide order dated 16-3-09 in W.P. No. 15027/08, set aside the order dated 24-3-08 on the ground that the earlier order dated 4-7-06 of this Court was not complied with, and the respondents were directed to pass a fresh order. Thereafter, State Govt, again rejected the case of the petitioner vide order dated 20-2-08, which was also subject matter of Writ Petition No. 3710/08. In the aforesaid case, order dated 20-2-08 was set aside and the State Govt, was directed to reconsider the case of the petitioner. In compliance of order dated 3-7-08 passed in W.P. No. 3710/08, the State Govt, had considered the case of the petitioner vide Annexure A-2 and rejected the case on the ground that the petitioner had not completed 14 years of imprisonment, which was necessary as per amended Provision of Section 433 (A) of Cr.PC and Rule 4 of M.P. Prisoners' Release on Probation Act, 1954. This order was subject matter of W.P. No. 15293/08 before Single Bench. Learned Single Judge found that the case of the petitioner was rightly rejected, against which this appeal has been preferred. ( 3. This order was subject matter of W.P. No. 15293/08 before Single Bench. Learned Single Judge found that the case of the petitioner was rightly rejected, against which this appeal has been preferred. ( 3. ) LEARNED Counsel appearing for the appellant submitted that the impugned order passed by the State Govt, dated 8-10-08 cannot be sustained under the law in the light of pronouncement of the Division Bench in Pradeep Dantre Vs. State of M.P. and another, 2010(3) M.P.H.T. 399 (DB) = 2010 (IV) MPJR 103 , and on this solitary ground that order (Annexure A-2) may be set aside and the matter may be remanded back to the respondents to reconsider the case of the petitioner in the light of unamended Rule 4 of M.P. Prisoners' Release on Probation Rules, 1964. ( 4. ) THIS legal position is not disputed by Shri Samdarshi Tiwari, learned Govt. Advocate as held on the case of Pradeep Dantre (supra). The Division Bench of this Court considered the legal position and held thus :- "In exercise of powers conferred under Section 9 of the Act of 1954, the State Government has also framed Rules, named as the M.P. Prisoners' Release on Probation Rules, 1964. Rule 4 of the Rules of 1964 prescribes the eligibility with regard to consideration of an application of the prisoner for his release on probation. The State Government has amended the aforesaid Rules of 1964 and introduced an amendment in Rule 4 vide a Notification dated 24-3-2008. By the aforesaid amended Rule it has been provided that a prisoner, who is sentenced to life imprisonment is entitled to be released after undergoing 14 years of actual jail sentence. The respondents in the return submitted that as per amendment in Rule 4 of the Rules of 1964, vide notification dated 24-3-2008, the appellant is not entitled to be considered for his release on probation, because, he has not undergone actual 14 years of jail sentence. The aforesaid submission put forth by the respondents could not be accepted, because the case of the appellant for his release on probation has been rejected vide order dated 28th February, 2008 prior to amendment in Rule 4 of the Rules of 1964. The aforesaid submission put forth by the respondents could not be accepted, because the case of the appellant for his release on probation has been rejected vide order dated 28th February, 2008 prior to amendment in Rule 4 of the Rules of 1964. Because the aforesaid Rule has been amended vide notification dated 24-3-2008, in such circumstances, the amended provision of Rule 4 of the Rules of 1964 is not applicable in the case of appellant." From the perusal of the impugned order, we find that the case of the petitioner was turned down mainly on the ground that the amended Rule 4 does not provide such release on probation until and unless the appellant suffers 14 years' actual sentence. But in the light of the decision in Pradeep Dantre (supra), the aforesaid amended provision is not applicable in the case of appellant, as the application of the appellant was filed, considered and rejected prior to the aforesaid amendment. ( 5. ) IN view of aforesaid, this appeal is allowed. The matter is remanded back to the respondent/State Govt, to examine the case of the appellant in accordance with law and as per law laid down by the Division Bench in Pradeep Dantre (supra). Needless to say that the matter shall be examined by the State expeditiously. ( 6. ) IT is made clear that this Court has not expressed any opinion on merits and the State Govt, shall be free to consider the case of appellant on its own merits, in accordance with law. No orders as to costs.