ORDER

1. In this appeal by the State of U.P. the respondent was convicted for an offence under Section 396 IPC. He, however, invoked Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938 seeking release from custody on probation on the ground that his conduct in jail has been such that he should be entitled to release as per the terms of the said section. Since Rule 3 totally prohibits the release of a person convicted under Section 396 IPC, the respondent filed a writ petition before the High Court challenging the vires of the rule on the ground that it is ultra vires and beyond the power conferred under Section 9 on the Government to make rules. The High Court allowed the writ petition to a limited extent holding that Rule 3 debarring a person convicted of an offence under Section 396 IPC from being considered for release on probation under Section 2 of the Act is ultra vires, illegal and void and gave a further direction to the Government to consider the petitioners case (Sadhu Saran Shukla) for release under Section 2 of the Act. It may be mentioned here pending appeal in this Court stay of the operation of the order of the High Court had been in force.

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