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.

2. Section 2 of the Act was enacted with a view to encourage people in prison to lead a peaceable life and to give them the opportunity of hospitability and return to the mainstream of the society. The same is clear from the objects and reasons of the enactment. Section 2 of the U.P. Prisoners Release on Probation Act lays down as under :

"2. Power of Government to release by licence on conditions imposed by it. - Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (Act V of 1898), where a person is confined in prison under a sentence of imprisonment, and it appears to the State Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and lead a peaceable life, if he is released from prison, the State Government may by licence permit him to be released on condition that he be placed under the supervision or authority of a Government Officer or of a person professing the same religion as the prisoner, or such secular institution or such society belonging to the same religion as the prisoner as may be recognized by the State Government for the purpose, provided such other person, institution or society is willing to take charge of him.

Explanation. - The expression sentence of imprisonment in this section shall include imprisonment in default of payment of fine and imprisonment for failure to furnish security under Chapter VIII of the Code of Criminal Procedure, 1898 (Act V of 1898)."

3. Then we have Section 9 of the Act which gives the powers to the State Government to make rules and it reads as under :

"9. Power to make rules. - The State Government may make rules consistent with this Act -

(1) for the form and conditions of licences on which prisoners may be released;

(2) for the appointment of Government officers, the recognition of institutions and societies referred to in Section 2;

(3) for defining the powers and duties of Government officers, institutions or persons, under whose authority or supervision, conditionally released prisoners may be kept;

(4) for defining the classes of offenders who may be conditionally released, add the periods of imprisonment after which they may be so released;

(5) for prescribing the manner in which an order of revocation of a licence shall be served on the person whose licence is revoked;

(6) generally for carrying into effect all the purposes of this Act."

4. Exercising the power under Section 9 of the Act the State Government has framed rules. Rule 3(a) of the Uttar Pradesh Prisoners Release on Probation Rules reads as under :

"Ineligibility for release. - The following classes of prisoners shall not be released under the Act :

(a) Those convicted of offences under the following provisions of the Indian Penal Code :

CHAPTERS V-A, VI