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2012 DIGILAW 880 (MP)

Mukesh Sharrna v. State of M. P.

2012-09-11

PRAKASH SHRIVASTAVA, SHANTANU KEMKAR

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JUDGMENT : Per Prakash Shrivastava, J :- 1. This writ appeal under Section 2 of the M.P. Uchchya Nyayalaya (Nyay Khandpeeth Ko Appeal) Adhiniyam 2005 has been filed by the appellant aggrieved with the order of the learned Single Judge dated 4.11.2011 passed in W.P. No.6209/2011. 2. The appellant has been convicted for offence under Section 302 and 381 of the IPC in S.T. No.529/99 and has been sentenced for life imprisonment on 22.5.2002. On 5.9.2007 the appellant had moved an application for releasing him on probation under the provisions of M.P. Prisoners Release on Probation Act, 1954 (for short “the Act”) and the Rules framed thereunder. The application was forwarded to the District Magistrate on 22.9.2007 and thereafter to the General Superintendent of Jail for placing before the Probation Board. Meanwhile the amendment was made in Rule 4 of the M.P. Prisoners Release on Probation Rules, 1964 (for short “the Rules”) and certain conditions were imposed for life convicts under Section 302. Since the appellant did not fulfill those conditions, therefore, the headquarter (jails) Bhopal had rejected the appellant's case for release on probation, vide communication dated 3.5.2008. Aggrieved with the same, the appellant had filed the writ petition which has been dismissed by the learned Single Judge, vide order dated 4.11.2011, taking the view that in view of the amendment in the Rules, the appellant is not entitled for consideration of his case for release on probation. 3. Learned counsel appearing for the appellant submits that the appellant had been convicted on 22.5.2002, therefore, the provisions which were prevailing on the date of his conviction will be applicable and any subsequent amendment will not take away his right to be released on probation. She submits that the application filed by the appellant needs consideration under the unamended provisions. In support of her contention she has relied upon the judgments of the Supreme Court in the matter of State of Haryana and others Vs. Jagdish reported in 2010(4) SCC216, in the matter of State of Haryana Vs. Bhup Singh and others reported in JT 2009(1) SC 535, in the matter of State of Haryana Vs. Mahendra Singh and others reported in2008 Cri.L.J. 444, in the matter of Maru Ram Vs. Union of India reported in AIR 1980 SC 2147 and the Division Bench judgment of this Court in the matter of Pradeep Dantre Vs. Bhup Singh and others reported in JT 2009(1) SC 535, in the matter of State of Haryana Vs. Mahendra Singh and others reported in2008 Cri.L.J. 444, in the matter of Maru Ram Vs. Union of India reported in AIR 1980 SC 2147 and the Division Bench judgment of this Court in the matter of Pradeep Dantre Vs. State of M.P. and another (W.A. No.214/2010) decided on 4.5.2010. 4. Learned counsel appearing for the respondents has supported the impugned action and submitted that since the relevant Rule itself has been amended, therefore, the amended Rule which was existing on the date of consideration of the application will apply and the appellant's case has rightly been rejected since he does not fulfill the requirement of the amended Rule. 5. Shri Girish Desai, learned amicus curiae appointed by this Court, has submitted that since the Rule itself has been amended before consideration of the appellant's application, therefore, the amended Rule will be applicable. He further submitted that the issue raised by the appellant has been concluded by the Division Bench judgment of this Court in the matter of Gori Shankar Vs. State of M.P. and others reported in 2009(3) MPLJ 648 . 6. We have heard the learned counsel for the parties and perused the record. 7. Undisputedly the appellant was convicted for offence under Section 302 and 381 of the IPC and sentenced to life imprisonment on 22.5.2002. Till 30.9.2011 he had completed the actual term of imprisonment of 10 years, one month and 12 days. He had moved the application for release on probation under the Act and the Rules on 5.9.2007 and his application has been rejected finding him ineligible for probation, vide communication dated 3.5.2008. 8. The State has framed the Act to provide for release of certain prisoners on conditions imposed by the State Government. Section 2 of the Act deals with the power of Government to release by licence on conditions imposed by it. Exercising the rule making powers contained in Section 9, the State Government has framed the Rules and the Rule 4 deals with the eligibility for release on probation. Unamended Rule 4 provides for release on probation of any prisoner other than prisoners specified in Rule 3, who had served 1/3rdof his sentence of imprisonment or total period of 5 years without remission, whichever is less. Unamended Rule 4 provides for release on probation of any prisoner other than prisoners specified in Rule 3, who had served 1/3rdof his sentence of imprisonment or total period of 5 years without remission, whichever is less. By way of notification dated 24.3.2008 proviso has been inserted in Rule 4 and the amended Rule 4 reads 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 Section 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 considerations 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.” 9. Under the amended Rule the prisoners who are sentenced to life imprisonment under Section 302 of the IPC, becomes eligible for release on probation after undergoing the sentence of 14 years of actual imprisonment without remission of sentence. The constitutional validity of the amendment made in the Rule 4 was challenged before this Court and the Full Bench of this Court in the matter of Anni alias Ramesh Vs. State of Madhya Pradesh and others reported in 2010(4)M.P.H.T. 302 (FB)while upholding the constitutional validity of Rule 4, has noted the object of incorporation of Proviso to Rule 4 as under :- “14. A Division Bench of this Court in Writ Petition No.1618/2006 (Smt. Kusum Vs. State of Madhya Pradesh and others reported in 2010(4)M.P.H.T. 302 (FB)while upholding the constitutional validity of Rule 4, has noted the object of incorporation of Proviso to Rule 4 as under :- “14. A Division Bench of this Court in Writ Petition No.1618/2006 (Smt. Kusum Vs. State of Madhya Pradesh and others) had noticed the abuse of the provisions of the Act where the prisoners sentenced to life imprisonment were released on mere completion of five years and six years despite the rejection of their bail applications and pendency of criminal appeals in the High Court. The State Government, therefore, having regard to the abuse of provisions and sweeping criminal activities, rate of heinous offences, mercenary killings as well as the path paved by some who have taken the killings to be profession and political murders amended the rules by introducing proviso to Rule 4. 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 433-A of the Code of Criminal Procedure introduced by the Parliament which provides for restriction on powers of remission or communication in certain cases. According to Section 433-A 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 433-A was challenged before the Supreme Court in 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. 16. For these reasons, the periods of actual imprisonment which have been provided by the impugned proviso to Rule 4 cannot be held as beyond the rule making power of the State Government and ultra vires.” 10. Thus the object of the amended Rule 4 is to prevent the release of prisoners sentenced to life imprisonment merely on completion of 5 to 6 years despite rejection of their bail application and also to prevent the sweeping criminal activities. 11. Another Full Bench judgment of this Court in the matter of Lalji Vs. Thus the object of the amended Rule 4 is to prevent the release of prisoners sentenced to life imprisonment merely on completion of 5 to 6 years despite rejection of their bail application and also to prevent the sweeping criminal activities. 11. Another Full Bench judgment of this Court in the matter of Lalji Vs. State of M.P. and another reported in 1988JLJ 407has taken the view that a prisoner who has been found guilty of a heinous offence, cannot claim as of right to be released on probation under the Probation Act merely because his conduct in prison had been good. Thus, a prisoner has no vested right to be released on probation under the Act. 12. The issue which the appellant is raising in the present matter for his release on probation under the unamended Rules, has already been considered by the Division Bench of this Court in the matter of Gori Shankar(supra). In that case the petitioner was convicted under Section 302 and sentenced to life imprisonment by judgment dated 5/6/1994. After completion of 5 years of imprisonment he had applied for release on probation and in view of the amended Rule 4 his application was rejected on 8/8/2008 since he had not completed actual sentence of 14 years, therefore, similar contention was raised that unamended Rule 4 should be applied and the Division Bench of this Court in the matter of Gori Shankar(supra) had rejected such a contention by holding as under :- “24.The next limb of submissions of Mr. Bhargava and Mr. Pateriya, 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 Vs. 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 (supra). To bolster the said submission, they have commended us to the decisions rendered in Mahendra Singh (supra) and State of Haryana Vs. 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 (supra). In the case of Mahendra Singh (supra), Their Lordships were dealing with the validity of the policy decision vis-a-vis Prison Rules and in that context, held that the Rules would prevail keeping in view that the right to ask 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 Singh (supra) and Bhup Singh (supra) are distinguishable.” 13. The reliance placed by the learned counsel for the appellant on the judgment of the Supreme Court in the matter of Mahendra Singh(supra) and Bhup Singh(supra) is of no help since these judgments have already been considered and distinguished by the Division Bench of this Court in the matter of Gori Shankar(supra). 14. Counsel for the appellant has also placed reliance upon the judgment of the Supreme Court in the matter of Jagdish(supra) but that also relates to the short sentencing policy framed in exercise of powers under Section 432 read with S. 433 of the Cr.P.C. Same is the position in respect of the judgment in the mater of Maru Ram(supra) relied upon by counsel for the appellant. These judgments are therefore distinguishable on the same analogy, on the basis of which the Division Bench in the matter of Gori Shankar(supra) has distinguished the judgments of Mahendra Singh(supra) and Bhup Singh(supra). These judgments relate to the executive policy, whereas in the present case the statutory rule is under consideration. In these judgments the short sentencing policy was under consideration, whereas in the present matter the statutory provision relating to release on probation is in issue. The release on probation does not effect the period of sentence. 15. These judgments relate to the executive policy, whereas in the present case the statutory rule is under consideration. In these judgments the short sentencing policy was under consideration, whereas in the present matter the statutory provision relating to release on probation is in issue. The release on probation does not effect the period of sentence. 15. Counsel for the appellant has also placed reliance upon the Division Bench judgment of this Court in the matter of Pradeep Dantre(supra) but that judgment is of no help since in that matter the case for release on probation was rejected prior to the amendment and the High Court had remanded the matter back to the State Government for fresh consideration under the unamended Rules. 16. Keeping in view the aforesaid aspect of the matter, we find that no error has been committed by the respondents in rejecting the petitioner's application by the impugned communication dated 3.5.2008 keeping in view the amended Rule 4, and that the learned Single Judge has rightly dismissed the writ petition. 17. Thus the writ appeal is devoid of any merit which is accordingly dismissed. No costs.