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SUPREME COURT OF INDIA
T.S. Thakur, Adarsh Kumar Goel, JJ.
State of M.P. & Ors. — Appellants
versus
Khuman Singh & Anr. — Respondents
Criminal Appeal No.2562 of 2014
(Arising out of SLP (Crl.) No.1009 of 2007)
Decided on : 10-12-2014
IMPORTANT POINT
Even if approach adopted by Probation Board is not germane, High Court ought to remand matter to competent authority with observation, if any, instead of itself ordering release.
Headnote:Administration of Justice – Judicial review – Release on probation under Madhya Pradesh Prisoner’s Release on Probation Act, 1954 read with M.P. Prisoner’s Release on Probation Rules, 1964 – Respondent convicted and sentenced u/s 302 IPC – Probation Board not recommending release – Recommendation accepted by State Government – Even if approach adopted by Probation Board is not germane, High Court ought to remand matter to competent authority with observation, if any – It could not order release. (Para 11)
(2003) 6 SCC 144; (2009) 3 SCC 450; (1996) 5 SCC 495 – Relied upon
(2003) 1 JLJ 6 – Referred
Facts of the case:
The respondent was tried for a charge of murder under Section 302 of the Indian Penal Code and convicted and sentenced to undergo life imprisonment.
He applied for release under the provisions of Madhya Pradesh Prisoner’s Release on Probation Act, 1954 read with M.P. Prisoner’s Release on Probation Rules, 1964.
His request was considered by the statutory Board, in compliance of the Division Bench order of the High Court in Writ Petition No.1138 of 2002 but he was not found entitled to be released. The opinion of the Board was accepted by the State Government.
The respondent preferred a writ petition which was allowed.
Finding of the Court:
High Court ought not itself direct release of the convict on probation.
Result : Appeal allowed.
ORDER
Adarsh Kumar Goel, J.
1. Leave granted.
2. This appeal has been preferred by the State of Madhya Pradesh against Order dated 5th December, 2003 passed by the High Court of Madhya Pradesh at Indore in Writ Petition No.1077 of 2003.
3. The question raised for our consideration is whether the High Court ought to release a person under the provisions of Madhya Pradesh Prisoner’s Release on Probation Act, 1954 read with M.P. Prisoner’s Release on Probation Rules, 1964 (for short “Act and the Rules”), if it is found that rejection of the prayer for said release by the competent authority was not proper.
4. The respondent was tried for a charge of murder under Section 302 of the Indian Penal Code and convicted under the said provision in Session Trial No.106 of 1988 and sentenced to undergo life imprisonment vide Order dated 26th July, 1989. He applied for release under the provisions of aforesaid Act and the Rules. His request was considered by the statutory Board, in compliance of the Division Bench order of the High Court in Writ Petition No.1138 of 2002 but he was not found entitled to be released. The opinion of the Board was accepted by the State Government. The said opinion and the order of the State Government are as follows :
“In the light of the background of the case, it is clear that the past antecedents of the prisoners are not good. The prisoner alongwith other co-accused persons mercilessly murdered the deceased with the knot of the saree. The District Magistrate has not recommended the release and the opposite party has also objection on release of the prisoner. The State Probation Board is of the unanimous opinion that it would not be appropriate to release the prisoner on probation. Therefore, the State Government is recommended that it would not be appropriate to release the prisoner on probation.
Recommendation of the State Probation Board Dt. 23.12.2002 are accepted vide Memorandum No.F. 3-5/2003/3/Jail dated 3.1.2003 of the Jail Department, State of Madhya Pradesh.”
5. Aggrieved by the above, the respondent preferred a writ petition which was allowed by Order dated 5th December, 2003. It may be mentioned that prior to the passing of the impugned order, the Division Bench of the High Court vide Judgment dated 11th April, 2002 in LPA No.212 of 2001 in the matter of Subrato Bachaspati vs. State of M.P. (2003) 1 JLJ 6, had expressed the view that if the relatives of the victim of the crime do not object and there is no evidence of extreme brutality, the High Court itself could direct release notwithstanding the opinion of the Board and the State. This view was reversed by this Court in Arvind Yadav vs. Ramesh Kumar & Others, (2003) 6 SCC 144. Thereafter, the same view has been followed inter alia in State of Madhya Pradesh vs. Abdul Kadir and Another., (2009) 3 SCC 450.
6. We have heard learned counsel for the parties.
7. Learned counsel for the State pointed out that in view of the Judgment of this Court in Arvind Yadav (supra), the view taken by the High Court cannot be sustained.
8. In spite of service, no one has entered appearance for the respondent. However, this Court appointed Mr. Praveen Agrawal, Advocate as Amicus Curiae to assist the Court.
9. We find force in the contention raised on behalf of the appellant in view of earlier decision of this Court in Arvind Yadav (supra) wherein this Court held :
“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 conside
