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2009 Supreme(SC) 270
2009(2) Supreme 135
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Asok Kumar Ganguly, JJ.
State of M.P. — Appellant
versus
Abdul Kadir & Anr. — Respondents
Criminal Appeal No. 1289 of 2002
Decided on : 13-02-2009
For the Appellant :Ms. Vibha Datta Makhija, Advocate.
For the Respondents:Ms. S. Janani, Advocate.
IMPORTANT POINT
The convicts have no indefeasible right to be released. The Probation Board and the State Government are required to take into consideration the relevant factors before deciding or declining to release a convict.
Headnote:A) Income Tax Act, 1960, section 32(1)(ii):- Depreciation granted to 42000 bottles by AO out of 4.45 lakh bottles cannot be withdrawn by the department on the premises that the transaction was held not a lease but only a financial arrangement. (Para 8 to 11)
B) Income Tax Act, 1960, section 32(1)(ii):-Held the AO has rightly denied depreciation in respect of pre-lease period bottle which were acquired by the assesee as the transaction was a sham and held a mere financial arrangement, but not lease agreement. (Para 18 to 23)
C) Income Tax Act, 1960, section 254:- The Tribunal has no power to enhance the assessment withdrawing a benefit granted by the A.O. (Para 8)
D)
JUDGMENT
Dr. Arijit Pasayat, J. —
1. The State of Madhya Pradesh is in appeal against the judgment of a Division Bench of the Madhya Pradesh High Court dismissing the Letters Patent Appeal filed by the State. In the Letters Patent Appeal challenge was to the order dated 30.8.2001 passed by learned Single Judge in Writ Petition No.777 of 2001. Respondent- a life convict had filed the Writ Petition stating that he is entitled to be released under the provision of the Madhya Pradesh Prisoners (Release on Probation) Act, 1954 and the Rules made thereunder. Plea in the writ petition was that his case had been recommended by the District Magistrate and the Superintendent of Police but the Probation Board in its meeting held at 24.1.2001 did not recommend his case for release on probation.
2. Learned Single Judge by a practically non-reasoned order held that in view of the recommendation of the District Magistrate and the Superintendent of Police and the Probation Officer, the writ petitioner was entitled to be release on probation. This order was challenged before the Division Bench in a Letters Patent Appeal. The Division Bench held that there was no substance in the appeal and also noted that the appeal was barred by 32 days, and, therefore, dismissed the Letters Patent Appeal.
3. Learned counsel for the appellant submitted that neither learned Single Judge nor the Division Bench discussed the order of the Probation Board and the reasons given by it for rejecting the recommendation for release on probation.
4. There is no appearance of the respondent in spite of service of notice.
5. It is to be noted that neither the learned Single Judge nor the Division Bench discussed the reasons indicated by the Probation Board. The opinion of the Board shows that taking into account the gruesome nature of the murder and the background in which the murder was committed, the recommendations were not accepted. The State Government, Jail Department accepted the recommendations of the Probation Board. The Division Bench erroneously observed that the Single Judge had set aside the order of the Probation Board. In fact, there is no such finding or conclusion recorded by learned Single Judge. The parameters in the matter of release on probation were dealt with by this court in Arvind Yadav v. Ramesh Kumar1 [2003(6) SCC 144] in paragraphs 6,7 &8 it was held as follows:
“6. We are unable to sustain the impugned judgment of the High Court. Each of the convicts before the High Court had been found guilty of commission of serious crime. The impugned judgment notices that offences against the convicts were under Sections 302/307/394/304-B/498-A/325 of the Indian Penal Code and the convicts were serving their respective sentences in jail. In all the cases before the High Court, the recommendations of the Probation Board that had been accepted by the State Government were against the release of the convicts. If there was non-application of mind to the relevant considerations, the appropriate course was to remand the case for fresh decisions by the authorities except, if in a given exceptional case, for strong cogent reasons, the High Court may have examined itself the relevant facts and quashed the order declining the release. The High Court, instead of adopting this course, has made a general observation that the remand to the State Government for fresh consideration is bound to delay the matter causing further injustice to the convicts.
7. 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 c
