VERY IMPORTANT POINT
High Court has wrongly held that Rule 3(a) of the Madhya Pradesh Prisoner s Release on Probation Rules, 1964 is ultra vires Section 2 of Madhya Pradesh Prisoner s Release on Probation Act, 1954.

Headnote:Madhya Pradesh Prisoner s Release on Probation Act, 1954-Preamble, Sections 2 and 9(4)-Madhya Pradesh Prisoner s Release on Probation Rules, 1964-Rule 3(a)-M.P. High Court holding Rule 3(a) to be ultra vires Section 2 of the Act relying on 1994(2) SCC 445-State s appeal to Supreme Court-Matter referred to Larger Bench to consider whether 1994(2) SCC 445 requires reconsideration-Whether Rule 3(a) can be read and construed to mean that it defeats the object of Section 2 or exceeds the rule making power conferred under Section 9(4) of the Act? (No)-Whether High Court was right in its reasoning? (No)-Is Sadhu Saran case, 1994(2) SCC 445 correctly decided? (No)-Result-Appeal allowed.
       Held : We have carefully examined the scheme of the Act and particularly the provisions contained in Section 2, 9(4) and Rule 3(a). What we find is that Rule 3(a) is a piece of delegated legislation . Such a delegated legislation is recognised as valid because on certain legislative fields, it is possible for the legislature only to lay down a policy and give sufficient guidelines for the executive authorities to carry it into effect. The legislation before us aims at giving effect to the current penal philosophy of reforming the prisoners while they are undergoing sentences of imprisonment. For the above purpose, Section 2 confers the power on the authorities to release a prisoner on probation keeping in view his antecedents and his conduct in the prison. Section 9 contains the rule making power and sub-section 4 clearly authorises the State Government to frame rules to define or specify the class of offenders who can be conditionally released. By specifying in Rule 3(a) the offenders undergoing imprisonment under certain offences of serious nature as not eligible for release on licence, there is implied specification of offences excluded in Rule 3(a) to be the class of offenders whose cases can be considered for release on probation under the Act. It was, therefore, an error of interpretation on the part of the Lucknow Bench of Allahabad High Court that specification of offenders under certain sections of penal provisions in Rule 3(a) frustrates the object of the Act contained in Section 2. The preamble of the Act has been quoted by us. It indicates the intention of the legislature that the benefit of release on probation for good conduct in prison is to be made available not to all but to "certain prisoners" meaning prisoners of a particular class. Thus they can be classified in relation to the offences committed by them for which they are sentenced. Reformative system of punishment by releasing prisoners on the basis of their good conduct in prison and for turning them out as good citizens after they serve out their periods of sentences is not to be resorted to indiscriminately without reference to the nature of offence for which they are convicted. It is open to the legislature to lay down a general policy permitting reformative method of punishment but by limiting its application to less serious crimes. Gravity of offence is an integral dimension in deciding whether a prisoner should be released or not. If we see the offences mentioned in rule 3(a), in the category of exclusion therein are such serious or heinous offences which are against community and society in general where even release on probation may be found hazardous because of the possibility of the crime being repeated or the prisoner escaping. Habitual offenders or those dealing in explosive substances or involved in dacoities and robberies are treated as criminals guilty of heinous crimes who deserve to be treated differently from other offenders guilty of less serious crimes. The offenders could be classified thus reasonably with the object to be fulfilled of reformation of those prisoners who show prospects of some reform. Classification can also be made between habitual offenders and non-habitual offenders or between corrigibles and incorrigibles. Such a classification through delegated legislation of a rule cannot be held to be a legislative step defeating the substantive provisions of the Act. In our considered opinion, the judgment of the Lucknow Bench of Allahabad High Court which has been upheld by two Judges Bench of this Court proceeds on misinterpretation and misconception of Rule 3(a). Rule 3(a) which excludes certain offences from the application of the Act for release of the prisoners on probation impliedly makes the Act applicable to other kinds of prisoners and in no manner defeats the object of the Act. Thus the Act is intended to be made applicable to categories of offenders - not mentioned in Rule 3(a). (Para 18)
       Held further : In the instant case, the legislative policy of permitting release of prisoners on probation, after considering their antecedents and conduct in the prison, is laid down in the provision of Section 2 read with the preamble and other provisions of the Act. It was not possible for the legislature at the time of enactment of the statute to envisage and encompass in its provisions all penal laws and punishments leading to incarceration of the offenders and desirability for releasing them on probation. The subject of classifying the offenders based on their antecedents and conduct and/or offences for which they have been convicted, has to be left to the executive authority to determine and specify from time to time by rules and amendments to be made to it if and when found necessary. Such delegation of power by the legislature to the executive cannot be held to be either in violation of any constitutional provision or in excess of the rule making provision of the Act. We are not prepared to accept the reasoning of the High Court of Allahabad that the rule prohibits release of specified classes of offenders in relation to the offences for which they are convicted and thus defeats the very object of the Act. (Para 21)
       Held also : It is not possible for us to uphold the view of two Judges Bench of this Court in the case of Sadhu Saran (supra) that Rule 3(a) is in excess of rule making power under Section 9(4) and is violative of substantive provisions contained in Section 2 of the Act. In our considered view, the decision of two-Judges Bench in the case of Sadhu Saran (supra) does not lay down a good law and deserves to be overruled. (Para 23)
       Held finally : Consequent upon the aforesaid discussion, this appeal succeeds and is allowed. The impugned judgment dated 16.1.2001 of the High Court of Madhya Pradesh in Writ Petition No. 3603 of 1999 is hereby set aside. (Para 25)

JUDGMENT

Dharmadhikari, J.-This appeal has been preferred by the State of Madhya Pradesh against judgment dated 16.1.2001 of the High Court of Madhya Pradesh in Writ Petition (Crl.) No. 3603 of 1999. By placing reliance on two Judges Bench decision of this Court in State of U.P. vs. Sadhu Saran Shukla [1994(2) SCC 445] the High Court has held that Rule 3(a) of the Madhya Pradesh Prisoner s Release on Probation Rules, 1964 is ultra vires Section 2 of Madhya Pradesh Prisoner s Release on Probation Act 1954 [hereinafter referred to as the Rules and the Act respectively].

2. The two-Judges Bench of this Court in the case Sadhu Saran (supra) declared similar Rule 3(a) of U.P. Prisoners Release on Probation Rules as ultra vires Section 9 and Section 2 of the U.P. Prisoners Release on Probation Act, 1938 [hereinafter shortly referred to as the U.P. Rules and the U.P. Act respectively].

3. This appeal was listed before a two-Judges Bench of this Court on 21.8.2002 and it had referred this case to a larger bench stating that two Judges-Bench of this Court in the case of Sadhu Saran (supra) needs reconsideration.

4. A legal question of general importance on the validity of Rule 3(a) of the Rules is before us for consideration. The respondent/prisoner is not represented by counsel. On our request, Shri Rakesh Dwivedi, Sr. Advocate had agreed to assist this Court and to project the possible view in favour of the prisoner. The appellant/State of M.P. is represented by Sr. Advocate, Shri R.P. Gupta who took us through the relevant provisions of the Act and the Rules and almost similar provisions of U.P. Act and the Rules.

5. On completion of more than five years sentence of imprisonment, the respondent/prisoner made an application for his release on probation in accordance with Section 2 of the Act read with the Rules. His application for release on probation under the M.P. Act and Rules was not considered by the State because by Rule 3(a) convicts for offences specifies under Section 396 of Indian Penal Code cannot seek release on probation under the Act.

6. The prisoner approached the High Court in the Writ Petition. By placing reliance on the decision of Sadhu Saran (supra) the Writ Petition was allowed by the impugned order and directions were issued to the State government to consider the application of the prisoner for release on merits in accordance with the provisions of the Act and the Rules.

7. The legislation contained in the Act and Rules and its counterpart U.P. Act and Rules is to give effect to the current penal philosophy on sentences. Penologists hold the view that imprisonment should not necessarily be retributary and deterrent but should be rehabilitative . Hegel s theory of punishment says that reform is to be effected through punishment. The modern reformists hold a view that "reform should accompany punishment." Hegel asserts that "object of punishment is to make the criminal repent his crime, and by doing so to realise his moral character, which has been temporarily obscured by his wrong action, but which is his deepest and truest nature." [See Justice through Punishment by Barbara Hudson pg. 3].

8. The legislation -for consideration before us gives effect to this penal philosophy recommending rehabilitation of the criminals so that they come out of the prison to return to society as law abiding citizens. Under the scheme of the two Acts - certain classes of prisoners which appear to the Government from their antecedents and their conduct in the prison as likely to abstain from crime and lead a peaceable life, can be released on a "licence" but their conduct outside prison shall be supervised by specified individuals or institutions. The period of release on licence or probation granted to them would give them opportunity to lead a crime free and peaceable life. Such period shall be counted towards the sentence of imprisonment imposed on them. Such licensed releases legislatively sanctioned have been recognis

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2003 Supreme(SC) 151

VERY IMPORTANT POINTHigh Court has wrongly held that Rule 3(a) of the Madhya Pradesh Prisoner s Release on Probation Rules, 1964 is ultra vires Section 2 of Madhya Pradesh Prisoner s Release on Probation Act, 1954.

Cases Referred (1)

VERY IMPORTANT POINT
High Court has wrongly held that Rule 3(a) of the Madhya Pradesh Prisoner s Release on Probation Rules, 1964 is ultra vires Section 2 of Madhya Pradesh Prisoner s Release on Probation Act, 1954.