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Madhya Pradesh High Court · body

2012 DIGILAW 1090 (MP)

Prakash Singh Thakur v. State of M. P.

2012-10-30

K.K.LAHOTI, VIMLA JAIN

body2012
ORDER : K.K. LAHOTI, J. 1. This order shall decide W.A. No. 875 of 2011, W.A. 903 of 2011, W.A. No. 915 of 2011 and R.P. No. 427 of 2011 in which a common question of law is involved for the consideration of this Court. For the convenience facts are taken from W.A. No. 875 of 2011 (Prakash Singh Thakur vs. State of M.P. and others). All the appellants/petitioners are suffering sentence for life under Section 302 IPC along with some more provisions under the IPC. It is also not in dispute that these persons have not completed actual sentence of 14 years and before completion of the aforesaid period, they have applied for their premature release under the provisions of M.P. Prisoners Release on Probation Act, 1954 (hereinafter referred to as "Act"). The sole contention of the petitioner before this Court is that the Rule 4 of M.P. Prisoners Release on Probation Rules, 1964 (hereinafter referred to as "the Rules") have been amended vide notification dated 24.3.2008 while the applicants were convicted prior to it, so the earlier rule as was in statute book prior to 24.3.2008 shall be applicable in the matter of all the appellants and they are entitled to release on probation even without completion of actual sentence of 14 years. Reliance is placed to a Division Bench of this Court in Santosh Kumar Dubey vs. State of M.P. & another ( 2011(3) MPLJ 682 ) and submitted that in view of the judgment in Santosh Kumar, the appellants may be directed to be considered for premature release on probation by the respondents even without completion of 14 years of actual sentence. 2. Shri Vijay Pandey, learned Dy. A.G. submitted that the controversy involved in the case has already been decided by the Division Bench of this Court in Gouri Shankar vs. State of M.P. and others (W.P. No. 9034 of 2008) and other cases on 16.3.2009. Thereafter a full Bench of this Court also considered this aspect in Anni @ Ramesh vs. State of M.P. & others (W.P. 15189 of 2008) and validity of the aforesaid provisions has been up held. Thereafter a full Bench of this Court also considered this aspect in Anni @ Ramesh vs. State of M.P. & others (W.P. 15189 of 2008) and validity of the aforesaid provisions has been up held. It is further submitted by Shri Pandey that the proviso of Rule 4 of the Rules has been given effect to from the date of its amendment in Rule 4 of the Rules and all the matters which are to be considered after the amendment are to be considered in the light of the amended Rule and not as per the un-amended Rule, even the applications of the prisoners were filed and rejected earlier. It is submitted that the law laid down by the Division Bench in Gouri Shankar (supra) was not brought into the notice of this Court while deciding the case of Santosh Kumar and also of Full Bench in the case of Anni @ Ramesh. It is submitted that in the light of the earlier judgments of the Supreme Court, the learned Single Judge has rightly dismissed the writ petitions and all the appeals have no merit and may be dismissed. Rule 4 of Rules provides as under: 4. Eligibility for release-Save the prisoners specified in Rule 3 any other prisoner who has served one-third of his sentence of imprisonment or a total period of five years without remission, whichever is less, may be released by the Government on licence. Provided that in case of such prisoners who have been sentenced for life imprisonment, under Sections 302 and 305 of the Indian Penal Code, 1860 (No. 45 of 1860) or under the provisions of other penal laws in which death sentence is also one of the punishments subject to the conditions that such prisoners are not barred for such consideration under the provisions of such laws, will be considered for premature release from the prison. The eligibility for release shall be after undergoing the sentence of 14 years of actual imprisonment without remission of his sentence: Provided further that all other prisoners, undergoing the sentence of life imprisonment, will be considered for premature release only after they have undergone at least 10 years of imprisonment with remission and after the completion of 7 years of actual imprisonment without remission in sentence: Provided also that nothing in the above provisions shall apply to the prisoners whose cases are being sent to the Hon'ble Governor for consideration under Article 161 of the Constitution of India, on special reasons of humanitarian grounds. 3. The aforesaid rule specifically provide that the eligibility of the release shall be after undergoing sentence of 14 years of actual imprisonment without remission. The Division Bench of this Court considering the validity and applicability of the aforesaid provision in Gouri Shankar (supra) held thus: 21. On a reading of the aforesaid decision, it becomes vivid that the Division Bench had analyzed the scheme of the Act and the Rules and found that the was no provision which falls within the mischief of the mandatory rule of 14 years as an essential condition for the release from prison and, therefore, directions were issued in the said case. The said decision was not dealing with the constitutional validity of the Rules. In the cases at hand, the conditions have been prescribed. An exception has been carved out by the provisos added to Rule 4. The submission of the learned Government Advocate is that regard being had to the sweeping criminal activities and the rate of heinous offences, mercenary killings and the path paved by some who have taken the killings to be profession and political murders, the rules have been amended. In this context, we may note with profit how a Division Bench of this Court in W.P. No. 1618/2006 had observed the abuse of the provisions. The Division Bench in the aforesaid case has expressed thus: We are, therefore, of the opinion that all the cases where probationers have been released and where appeals are pending or on mere completion of 5 years or 6 years should be reviewed again. Board is directed to review all the cases and shall also decide the application of the petitioner in the light of the directions given above. Board is directed to review all the cases and shall also decide the application of the petitioner in the light of the directions given above. Order rejecting the application of the petitioner passed by the Board is quashed with a direction to the Board to reconsider the case in the light of judgment in the case of Arvind Yadav v. Ramesh Kumar and others and State of M.P. vs. Bhola (supra) and earlier order passed. As petitioner has remained in jail for more than 13 years, Board is directed to reconsider the case of the petitioner within a period of two months from today 22. The Division Bench had also observed that where prayer for bail has been rejected, the convicts have been released on licence. 23. In view of our aforesaid analysis, wedo not find the Rule to be ultra vires the Section 433-A of the Code or any of the provisions of the Act according it is declared as intra-vires. 1. The next limb of submission of Mr. Bhargava and Mr. Pateria, learned counsel, is that the cases of the petitioners should have been considered under the old rules as the amended provisions rule cannot be made applicable to them. To bolster the said submission, they have commended us to the decisions rendered in Mahendra Singh (supra) and State of Haryana v. Bhup Singh and others, JT 2009(1) SC 535. To appreciate the said submission, we have carefully perused both the decisions. It is perceivable that the decision in Bhup Singh (supra) is based on Mahendra Singh. In the case of Mahendra Singh (supra), their Lordships were dealing with the validity of the policy decision vis-à-vis Prison Rules and in that context, held that the Rules would prevail keeping in view that the right to as for remission of sentence by a life convict would be under the law as was prevailing on the date on which the judgment of conviction and sentence was passed. In the case at hand, the Rules have been amended. Needless to emphasize, they are statutory in nature. They have been framed in exercise of powers vested under Section 9 of the 1954 Act. They are not executive instructions. In view of the aforesaid, the decisions rendered in Mahendra Sing (supra) and Bhup Singh (supra) are distinguishable. 4. In the case at hand, the Rules have been amended. Needless to emphasize, they are statutory in nature. They have been framed in exercise of powers vested under Section 9 of the 1954 Act. They are not executive instructions. In view of the aforesaid, the decisions rendered in Mahendra Sing (supra) and Bhup Singh (supra) are distinguishable. 4. A full Bench of this Court in Anni (supra) also considered this aspect in para 15 of the judgment which reads thus: 15. We also find that the restrictions of periods of actual imprisonment introduced by the proviso for becoming a prisoner eligible to be considered for release under the Act is in consonance with section 433A of the Code of Criminal Procedure introduced by the Parliament which provides for restriction on powers of remission or commutation in certain cases. According to section 433A a life convict, for an offence for which death is one of the punishments, cannot be released from prison unless he has served at least 14 years of imprisonment. The Constitutional validity of section 433A was challenged before the Supreme Court Maru Ram vs. Union of India AIR 1980 SC 2147 but was upheld by the Constitution Bench. Otherwise also, merely because a life convict has undergone 14 years of imprisonment does not acquire a right to be released prematurely and he only becomes eligible for being considered to be released on probation. 5. It appears that the question involved in these appeals has already been considered specifically by the Division Bench in Gouri Shankar (supra) and by the Full Bench in Anni @ Ramesh as quoted hereinabove. Both the judgments were not brought into the notice of the Single Bench while deciding the case of Santosh Kumar and it appears that without taking note of the aforesaid judgment, the judgment of Santosh Kumar was passed, while the factual position is that in Gouri Shankar (supra) the Rule has been held to be applicable in all the pending matters and the Division Bench has held that in all the matters pending on the date of amendment shall be considered in the light of the amended rules and the aforesaid rules shall be applicable. In view of the aforesaid, if the learned Single Judge has dismissed the petition, on the ground that without completion of actual period of fourteen years sentence, the applications filed by the petitioners/appellants were premature, no fault is found. These appeals are found without merit and are dismissed with no order as to costs.