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CASE NO.: Appeal (crl.)  913 of 2007

PETITIONER: State of M.P.

RESPONDENT: Kusum

DATE OF JUDGMENT: 19/07/2007

BENCH: Dr. ARIJIT PASAYAT & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 913 OF 2007 (Arising out of SLP (Crl.) No.4654 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Madhya Pradesh High Court at Jabalpur  quashing the Circular dated 3.8.2005 issued by the State.

3.      Background facts in a nutshell are as follows:          Respondent is convicted for offence punishable under  Section 302 of the Indian Penal Code, 1860 (in short the ’IPC’)  and was sentenced to rigorous imprisonment for life. She filed  an application for release under the Madhya Pradesh  Prisoners’ Release on Probation Act, 1954 (in short the ’Act’)  and the rules framed thereunder.  On 3.8.2005 a Circular was  issued by the Inspector General of Prisons that persons whose  appeals are pending before the Appellate Court are not entitled  to be considered for the purpose of release on probation. The  Circular was purportedly issued on the basis of the decision  rendered by a Division Bench of the Madhya Pradesh High  Court, Gwalior Bench in Writ Petition No.941 of 2004 dated  14.10.2004.  

       Respondent’s prayer was rejected by the Probation Board  on 8.8.2005. The State Government formally approved the  rejection by rejecting the prayer for release by order dated  29.10.2005. A writ petition was filed before the High Court  questioning the legality of the Circular dated 3.8.2005.  Primary stand taken was that the same was contrary to the  provisions of the Act. The High Court noted that the Division  Bench in the earlier case had adverted to the concept of  conditions precedent and the irregularity in release on  probation of certain convicts particularly those whose  applications for bail had been rejected and their appeals were  pending.  The High Court noted that in the said case there was  a question mark over the decision making process of the  Probation Board as in some cases where prayer for bail had  been rejected convicts have been released on probation. The  High Court further noted that the concerned authorities by the  Circular dated 3.8.2005 have directed that the Probation  Board should not consider the case of convicts whose appeals

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are pending in the High Court. That apart, there has been a  direction not to consider the mercy application for grant of  release.  According to the High Court, the earlier Division  Bench’s decision was rendered to curb the illegality in the  decision making process. But the Circular to the effect that no  case would be considered by the Probation Board where the  appeal is pending could not have been issued. The  entertainment of mercy petition was also not prohibited by the  earlier Division Bench. Therefore, the same cannot be  prohibited by the Circular if otherwise entertainable in law.  The High Court noted that the Circular was absolutely general,  sweeping and inconsistent with the Act and M.P. Prisoners’  Release on Probation Rules, 1964 (in short the ’Rules’).  It was  noted that the judgment of the earlier decision of the High  Court was mis-construed by the authorities concerned. The  writ petition was allowed by quashing the Circular.  

4.      In support of the appeal, learned counsel for the  appellant submitted that the observations and views expressed  in the earlier Division Bench’s judgment have not been  properly appreciated by the Division Bench in the instant  case. It has been pointed out that the High Court had  deprecated the practice of releasing the convicts whose  applications had been rejected.  The Circular therefore was not  illegal and had only encompassed what was decided in the  earlier case.  

5.      Learned counsel for the respondent on the other hand  submitted that the High Court in the earlier decision had not  in any way prohibited making of an applications. Whether  the  applications would be entertained and/or were to be allowed  or not is another matter. But by the Circular even making of  an application was provided to be impermissible.  

6.      The observations of the Division Bench in the earlier  decision which form the foundation of the Circular reads as  follows:

       "It may be mentioned that after rejection of  earlier application by the subsequent order  after the remand, the Board has passed similar  order rejecting the application and Board has  not considered the directions given by this  Court. We have also issued notice to State to  show cause why persons have been released  on 5 years and the reasons for releasing them  on 5 years or 6 years. No explanation has been  submitted by the respondents. It appears that  there are some irregularities in the release of  probationers on probation particularly those  dreaded criminal whose application for bail  has been rejected and their appeal are  pending, they too had been released. This  Court has come across number of appeals  thereafter rejection of bail application the  convicts had been released on bail. This act of  probation puts a question mark on their  decision making process."   

                7.      The parameters of consideration were only highlighted by  the Division Bench. It never held that even making of an  application is to be barred. Therefore, the Circular has been  rightly held to be illegal by the High Court. There cannot be  any bar for making an application. Whether the prayer as

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contained in the application is to be accepted  or not is  another question. It needs no re-iteration that while  considering an application the principles set out by this Court  in Arvind Yadav v. Ramesh Kumar and Ors. (2003 (6) SCC  144) are to be kept in view. Para 7 of the judgment reads as  follows: "Apart from the fact that there are factual  infirmities in the impugned judgment, it is also  to be borne in mind that the 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 and 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 appeal is, therefore, dismissed.