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High Court Of Madhya Pradesh
A. P. Sen and G. P. Singh, JJ.
SITARAM BARELAL - Appellant
Versus
STATE OF MADHYA PRADESH - Respondents
Misc. Petn. 32 Of 1969
Decided On : 02/12/1969
The powers of the State Government of Madhya Pradesh to release prisoners by licence on conditions prescribed by section 2 or the Act and Rule 3 of the Rules, apart from being subject to the conditions specified therein, are not subservient to any further requirement like the prior concurrence of the State of conviction. Neither the State Government nor the Inspector General of Prisons could by an executive circular curtail the ambit of the statutory power conferred on the State Government under section 2 of the Act. The circular of the Inspector General of Prisons imposing the conditions of prior consent of the State of conviction is invalid.
The State Government could not, on the basis of this circular cancel the conditional release of a prisoner made under section 2 of the Act.
(Para 5)
(2) Transfer of Prisoners' Act, 1950-S. 3 (1)-prisoner transferred from one State to another-subsequent release on probation or otherwise by transferring State-prior consent of transferring State not necessary nor can this be made necessary by an inter-State agreement.
Under sub-section (1) of section 3, when any person is confined in any prison of a State, the Government of that State may, with the willingness of the Government of the other State concerned direct the removal or transfer of the prisoner, from their prison to any prison in that other State. That provision applies to all classes of prisoners, including one like the petitioner, who is undergoing a sentence of imprisonment for life. In terms of this provision, no inter-State agreement could possibly be arrived at which would make the subsequent release of such prisoner on probation or otherwise by the transferee State, conditional upon the prior concurrence of the State from whose prison he had been transferred.
(Para 7)
(3) Transfer of Prisoners' Act, 1950-S. 3 (2)-right of the Superintendent of the jail to whom a prisoner is transferred from another State-term 'due course of law'-import of-includes provisions of the laws of the State including the M.P. Prisoners' Release on Probation Act, 1954.
On a plain construction of sub-section (2) of section 3 of the Transfer of Prisoners' Act, 1950, the officer-in-charge of the prison to which a prisoner is removed or transferred under sub-section (1), has to receive and detain him in that prison, so far as may be, (i) according to the exigencies of any writ, warrant or order of the Court, by which such person had been committed or (ii) until such person was discharged or removed, in due course of law.
The expression 'in due course of law' must be interpreted in the context in which it appears, as meaning 'under some rule or enactment in force.' In that view, the detention of a prisoner is governed not only by the relevant rules and regulations in the Jail Manual of the particular State where he happens to be imprisoned for the time being, but also by all laws of that State governing all classes of prisoners. The Madhya Pradesh Prisoners' Release on Probation Act, 1954 must, be regarded as a relevant law governing the subject.
(Paras 8 & 9)
( 1 ) AFTER hearing the parties on merits, we passed an order on 27th January, 1969, to the following effect:
"having heard the parties, we are satisfied that this petition for grant of a writ of habeas corpus under Article 226 of the Constitution of India, must be allowed. We hereby set aside the order issued by the Secretary to Government of Madhya Pra-desh, Jail Department, bearing No. 1090/ 342/iii-Jail, dated Bhopal, the 3rd May 1967, cancelling the petitioner's conditional release on a licence issued under Section 2 of the Madhya pradesh Prisoners Release on Probation Act, 1954. We accordingly direct the State of Madhya Pradesh, and, in particular, the Superintendent of the Central Jail, Jabalpur, where the petitioner is being detained, to serve him with the original licence of conditional release already issued by the State Govern-ment in Form 'd' under Rule 7 of the Madhya Pradesh Prisoners Release on Probation Rules, 1964, and to afford him every facility to comply with the conditions imposed thereby and to fulfil all other legal requirements and thereafter to release him forthwith in terms of the licence, from the prison where he is being detained. The reasons for our decision shall follow later. "
The reasons for allowing the petition are these.
( 2 ) BEFORE stating the reasons, it is necessary for us to set out a few facts which are relevant to the present controversy. On 29th October, 1956, the petitioner was convicted by the Additional Sessions Judge, Chanda, under Sections 302, 452, 453 and 506 (II) of the Penal Code and sentenced to imprisonment for life. The district of Chanda being in Vidarbha Region, he was lodged at the Central Jail, Nagpur, to serve out his sentence. After the States Reorganisation Act (Act No. XXXVII of 1956), came into force on 1st November, 1956, the entire Vidarbha Region became part of new State of Maharashtra and, since he had been convicted by a court of Session in that region, the petitioner continued to be a prisoner in the state of Maharashtra, till 23rd April, 1958. As the petitioner desired to be transferred to the Central Jail, Jabalpur, being nearer to his home district, narsinghapur, the Maharashtra State under the arrangement referred to in Section 3 of the Transfer of Pri-sioners Act (Act No. XXIX of 1950), obtained the sanction of the Government of Madhya Pradesh for his transfer, and, he was, accordingly, on that day, transferred to that Jail, where he is now detained. The Madhya pradesh Prisoners Release on Probation Act (No. XVI of 1954) having been brought into force on 1st February, 1962, the petitioner applied to the State Government or Madhya Pradesh for his release on probation under Section 2 thereof. The petitioner's application was forwarded by the authorities to the District magistrate, Chanda, who recommended his case for release and, thereupon, the government of Madhya Pradesh placed the matter before the Advisory Board under Rule 6 (5) of the Madhya Pradesh Prisoners Release on Probation Rules, 1964 (hereinafter referred to as the 'rules' ). The Advisory Board duly recommended his release on a conditional licence, and the Inspector General of prisons having agreed with that recommendation, the State Government of madhya Pradesh issued a licence in Form D under Rule 7 of the Rules, for his conditional release on probation under Section 2 ibid, vide Licence No. 119192/ 347-III dated the 8th April, 1966, Before that order could, however, be implemented, the authorities concerned felt that they had overlooked the inspector General of Prisons' Circular No. 6548 dated 2nd April, 1965, which requires the prior concurrence of the State of conviction as a condition precedent for the release of prisoners under Section 2 ibid. Apparently, the State government of Madhya Pradesh consulted the State of Maharashtra which ultimately did notagree to the release of the petitioner, and hence the order of conditional release passed on 8th April, 1966, was cancelled by th
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