important point
There cannot be any bar for making an application. Whether the prayer as contained in the application is to be accepted or not is another question.

judgment

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 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 earli