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2009 Supreme(SC) 280
Supreme Court of India
ARIJIT PASAYAT & ASOK KUMAR GANGULY
State of M.P.
Versus
Abdul Kadir & Another
CRIMINAL APPEAL NO.1289 OF 2002
Decided on: 13-02-2009
Advocate Appeared:
For the Appellant:Ms. Vibha Datta Makhija, Advocate.
For the Respondents:Ms. S. Janani, Advocate.
Headnote:
Indian Penal Code,1860 - Sections 302/307/394/304-B/498-A/325 – quashed - Superintendent of Police - State of Madhya Pradesh is in appeal against the judgment of Division Bench of Madhya Pradesh High Court dismissing the Letters Patent Appeal filed by State - In Letters Patent Appeal challenge was to order passed by Single Judge in Writ Petition Respondent - life convict had filed Writ Petition stating that he is entitled to be released provision of Madhya Pradesh Prisoners Release on Probation Act and Rules made - Plea in writ petition was that his case had been recommended by District Magistrate and the Superintendent of Police but Probation Board in its meeting did not recommend his case for release on probation - Learned Single Judge by a practically non-reasoned order that in view of recommendation of District Magistrate and Superintendent of Police and Probation Officer writ petitioner was entitled to be release on probation –Held, Probation Board and State Government are required to take into consideration relevant factors before deciding or declining to release convict - In present case Probation Board had not recommended release - State Government had confirmed order of Board writ petition had failed before Single Judge of individual cases were not considered Division Bench - In case of stand of State Government was that he along with six others had formed an unlawful assembly and murdered Jitendra son on Hoshangabad Madhya Pradesh causing seventeen injuries on him with swords knives and gupti and that Ramesh Kumar was the accused in fourteen cases filed under various sections of Indian Penal Code - Court after serving less than 8 years and he is already intimidating people after his release from prison - case of appellant is that no notice was issued to him or any other member of the family and therefore there was no occasion for family to object to release of convict - Therefore High Court also committed factual error in observing that notice had been issued to family members victim are required to be examined in every case individually which was not done - In given case mere fact that the family members of victim were not objecting or were supporting release may not be sufficient by itself so as to direct the release of convict on that basis alone - In yet another case by itself it may be a very strong factor that co-accused has been released again by itself may not be decisive - In nutshell and circumstances of each case have to be taken into consideration individually - Likewise mere fact that one of the members of Board or District Magistrate or Superintendent of Police or Panchayat has recommended release is by itself of no consequence - appeal allowed
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 Kumar [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 co
