REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1289  OF 2002

State of M.P. ..Appellant

Versus

Abdul Kadir & Anr. ..Respondents  

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. The State of Madhya Pradesh is in appeal against the judgment of a

Division Bench of the Madhya Pradesh High Court dismissing the Letters

Patent Appeal filed by the State.  In the Letters Patent Appeal challenge was

to the order dated 30.8.2001 passed by learned Single Judge in Writ Petition

No.777 of  2001.   Respondent-  a  life  convict  had filed  the  Writ  Petition

stating that he is entitled to be released under the provision of the Madhya

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Pradesh Prisoners  (Release on  Probation)  Act,  1954 and the Rules  made

thereunder.  Plea  in  the  writ  petition  was  that  his  case  had  been

recommended by the District  Magistrate and the Superintendent of Police

but the Probation Board in its meeting held at 24.1.2001 did not recommend

his case for release on probation.   

2. Learned Single Judge by a practically non-reasoned order held that in

view  of  the  recommendation  of  the  District  Magistrate  and  the

Superintendent of Police and the Probation Officer, the writ petitioner was

entitled to be release on probation.  This order was challenged before the

Division Bench in a Letters Patent Appeal.  The Division Bench held that

there was no substance in the appeal  and also noted that  the appeal  was

barred by 32 days, and, therefore, dismissed the Letters Patent Appeal.  

3. Learned  counsel  for  the  appellant  submitted  that  neither  learned

Single Judge nor the Division Bench discussed the order of the Probation

Board  and  the  reasons  given  by it  for  rejecting  the  recommendation  for

release on probation.   

4. There is no appearance of the respondent in spite of service of notice.

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5. It is to be noted that neither the learned Single Judge nor the Division

Bench discussed the reasons indicated by the Probation Board.  The opinion

of  the  Board  shows  that  taking  into  account  the gruesome nature  of  the

murder  and  the  background  in  which  the  murder  was  committed,  the

recommendations  were  not  accepted.  The  State  Government,  Jail

Department  accepted  the  recommendations  of  the  Probation  Board.   The

Division Bench erroneously observed that the Single Judge had set aside the

order of the Probation Board. In fact, there is no such finding or conclusion

recorded by learned Single Judge.  The parameters in the matter of release

on  probation  were  dealt  with  by this  court  in  Arvind  Yadav v.  Ramesh

Kumar [2003(6) SCC 144] in paragraphs 6,7 &8 it was held as follows:  

“6. We are unable to sustain the impugned judgment of the High Court.  Each of the convicts  before the High Court  had been  found  guilty  of  commission  of  serious  crime.  The impugned judgment notices that offences against the convicts were  under  Sections  302/307/394/304-B/498-A/325  of  the Indian  Penal  Code  and  the  convicts  were  serving  their respective  sentences  in  jail.  In  all  the  cases  before  the  High Court,  the  recommendations of the  Probation Board that  had been  accepted  by  the  State  Government  were  against  the release of the convicts. If there was non-application of mind to the  relevant  considerations,  the  appropriate  course  was  to remand the case for fresh decisions by the authorities except, if in a given exceptional case, for strong cogent reasons, the High Court may have examined itself the relevant facts and quashed the  order  declining  the  release.  The  High  Court,  instead  of adopting this course, has made a general observation that the remand  to  the  State  Government  for  fresh  consideration  is bound  to  delay  the  matter  causing  further  injustice  to  the convicts.

7. Apart from the fact that there are factual infirmities in the impugned  judgment,  it  is  also  to  be  borne  in  mind that  the

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victim and the family of the victim who have suffered at the hands of the convict have also some rights. The convicts have no  indefeasible  right  to  be  released.  The right  is  only to  be considered for release on licence in terms of the Act and the Rules.  The  Probation  Board  and  the  State  Government  are required to take into consideration the relevant factors before deciding or declining to release a convict. In the present case, the  Probation  Board  had  not  recommended  the  release.  The State Government had confirmed the order of the Board. The writ  petition had failed before the learned Single Judge.  The facts of individual cases were not considered by the Division Bench.  In the case of Ramesh Kumar, the stand of the State Government was that he along with six others had formed an unlawful  assembly  and  murdered  Jitendra,  son  of  Shashi Mohan Yadav on 20-9-1994 in Hoshangabad, Madhya Pradesh causing  seventeen  injuries  on  him  with  swords,  knives  and gupti and  that  Ramesh  Kumar  was  the  accused  in  fourteen cases  filed  under  various  sections  of  the  Indian  Penal  Code. The manner of commission of crime is a relevant consideration. In a given case, the manner of commission of offence may be so brutal that it by itself may be a good sole ground to decline the  licence  to  release.  The  Rules  provide  for  a  detailed procedure  for  consideration  of  application  for  release.  Once rejected,  again application for release can be made after  two years. The Board comprises of the Home Secretary of the State Government or any other empowered officer, IG of Prisons or Deputy IG and another member.

8. The affidavit  filed by the  State  Government in  case of Ramesh Kumar also states that he has been released under the impugned  order  of  the  High Court  after  serving  less  than  8 years  and  he  is  already  intimidating  people  after  his  release from prison.  The case of  the appellant  is  that  no notice  was issued to him or any other member of the family and, therefore, there was no occasion for the family to object to the release of the convict. Therefore, the High Court also committed factual error  in  observing  that  notice  had  been  issued  to  the  family members of the victim. The facts are required to be examined in every case individually which was not done. In a given case, the mere fact that the family members of the victim were not

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objecting or were supporting release may not be sufficient, by itself,  so as  to direct  the release of the convict  on that  basis alone.  In yet another  case, by itself,  it  may be a very strong factor. The fact that a co-accused has been released again, by itself,  may  not  be  decisive.  In  a  nutshell,  the  facts  and circumstances of each case have to be taken into consideration individually. Likewise, the mere fact that one of the members of the Board or the District Magistrate or the Superintendent of Police or the Panchayat has recommended release is by itself of no consequence. The recommendation is of the Board and not of an individual member and the decision is to be taken having regard to all the relevant factors. The State Government and the Board have to take into consideration not only the conduct of the convict but also his criminal antecedents; the effect of such release  on  the  victims or  their  family;  the  propensity  of  the convict to commit further criminal act and other similar factors which  may  be  considered  relevant.  The  order  of  the  State Government  cannot  be  interfered  with  only  because  another view is possible.”

6. Since  the  High  Court  has  not  considered  the  issues  in  the  proper

perspective, we set aside the impugned order of the Division Bench and we

direct it to re hear the LPA on condonation of delay, keeping in view the

parameters indicated by this court in Arvind Yadav’s case (supra).

7. The appeal is allowed to the aforesaid extent.

………………………………….J. (Dr. ARIJIT PASAYAT)

………………………………….J.

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(ASOK KUMAR GANGULY) New Delhi, February 13, 2009

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