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2003 Supreme(MP) 235
2004(1) JLJ 288
(SUPREME COURT)
S. Rajendra Babu, D.M. Dharmadhikari and G.P. Mathur, JJ.
State of M.P. and another v. Bhola @ Bhairon Prasad Raghuvanshi
Cri. Appeal No. 92 of 2002; against the order of M.P. High Court, passed in
W.P. No. 3603 of 1999;
Decided on 6.2.2003.
R.P. Gupta with Ms. Priyanka Sardana for appellants;
Rakesh Dwivedi with Ms. Niranjana Singh for respondent.
Headnote:(1) Prisoners‘ Release on Probation Act, 1954 (M.P.) -- Ss. 2 and 9(4) -- M.P. Prisoners‘ Release on Probation Rules, 1964 -- R. 3(a) -- R. 3(a) is a piece of delegated legislation -- S. 9(4) clearly authorises the State Government -- offenders undergoing sentences of serious offences specified under R. 3( a) are not eligible to be released on probation.
This appeal has been preferred by the State of Madhya Pradesh against judgment dated 16.1.2001 of the High Court of Madhya Pradesh in Writ Petition (Cr.) No. 3603 of 1999. By placing reliance on two-Judges Bench decision of this Court in State of U.P. v. SadhuSaran Shukla (1994)2 SCC 445, the High Court has held that rule 3(a) of the Madhya Pradesh Prisoners‘ Release on Probation Rules 1964 is ultra vires section 2 of Madhya Pradesh Prisoners‘ Release on Probation Act, 1954. [Para 1
Learned senior counsel appearing for the State of Madhya Pradesh contends that rule 3(a) cannot be read and construed to mean that it defeats the object of section 2 of the Act or exceeds the rule making power conferred under section 9(4) of the Act. [Para 17
Held: We have careful1y examined the scheme of the Act and particularly the provisions contained in section 2, 9(4) and rule 3(a). What we find is that rule 3(a) is a piece of ‘delegated legislation‘. Such a delegated legislation is recognised as valid because on certain legislative fields, it is possible for the legislature only to lay down a policy and give sufficient guidelines for the executive authorities to carry it into effect. The legislation before us aims at giving effect to the current penal philosophy of reforming the prisoners while they are undergoing sentences of imprisonment. For the above purpose, section 2 confers the power on the authorities to release a prisoner on probation keeping in view his antecedents and his conduct in the prison. Section 9 contains the rule making power and sub-section (4) clearly authorises the State Government to frame rules to define or specify the class of offenders who can be conditionally released. By specifying in rule 3(a) the offenders undergoing imprisonment under certain offences of serious nature as not eligible for release on licence, there is implied specification of offences excluded in rule 3(a) to be the class of offenders whose cases can be considered for release• on probation under the Act. [Para 18
It is not possible for us to uphold the view of two Judges Bench of this Court in the case of Sadhu Saran [(1994)2 SCC 445] that rule 3(a) is in excess of rule making power under section 9(4) and is violative of substantive provisions contained in section 2 of the Act. In our considered view, the decision of two-Judges Bench in the case of Sadhu Saran (supra) does not lay down a good law and deserves to be overruled. Order of the High Court reversed. (1994)2 SCC 445 overruled. [Para 23
(2) Criminal Practice -- imprisonment -- should not necessarily be ‘retributory‘ and ‘deterrent‘ -- it should be ‘rehabilitative‘ -- ‘reform is to be effected through punishment‘.
Penologists hold the view that imprisonment should not necessarily be ‘retributary‘ and ‘deterrent‘ but should be ‘rehabilitative‘. Hegel‘s theory of punishment says that ‘reform is to be effected through punishment‘. The modem reformists hold a view that "reform should accompany punishment." Hegel asserts that‘ ‘object of punishment is to make the criminal repent his crime, and by doing so to realise his moral character, which has been temporarily obscured by his wrong action, but which is his deepest and truest nature." Theory of Punishment by Hegel and Justice through punishment by Barbara Hudson, relied on. [Para 7
¼1½ cafn;ksa dks ifjoh{kk ij NksM+k tkuk vf/kfu;e] 1954 ¼e-iz-½ && /kkjk 2 rFkk 9¼4½ e-iz- cafn;ksa dks ifjoh{kk ij NksM+k tkuk fu;e] 1964 && fu- 3¼d½ && fu- 3¼d½ izR;k;ksftr fo/kku dk [kaM gS && /kkjk 9¼4½ esa Li"Vr% jkT; ljdkj izkf/kd`r gS && fu- 3¼d½ ds v/khu fofufnZ"V xaHkhj vijk/kksa ds naMkns‘k Hkksxus okys vijk/kh ifjoh{kk ij NksM+s tkus ds ik= ugha gSA
;g vihy fjV ;kfpdk ¼nkafMd½ Ø- 3603 lu~ 1999 esa e-iz- mPp U;k;ky; ds vkns‘k fnukad 16-1-2001 ds fo#) e/; izns‘k jkT; }kjk Qkby dh xbZ gSA mÙkj izns‘k jkT; fo- lk/kq lj.k ‘kqDyk ¿¼1994½ 2 ,l lh lh 445À ds ekeys esa bl U;k;ky; dh ;qxy U;k;ihB ds fofu‘p; dk voyac ysrs gq, mPp U;k;ky; ds vfHkfu/kkZfjr fd;k gS e-iz- cafn;ksa dks ifjoh{kk ij NksM+k tkuk fu;e] 1964 dk fu;e 3¼d½ e-iz- cafn;ksa dks ifjoh{kk ij NksM+k tkuk vf/kfu;e] 1954 /kkjk 2 ds vf/kdkfjrk gSA ¿ iSjk 1À
e/; izns‘k jkT; dh vksj milatkr fo}ku T;s"B dkmUlsy us ladFku fd;k gS fu;e 3¼d½ dk ikB vkSj vFkkZUo;u bl vFkZ eas ugha fd;k tk ldrk fd mlls vf/kfu;e dh /kkjk 2 dk mÌs‘; foQy gks tk, ;k vf/kfu;e dh /kkjk 9¼4½ }kjk iznÙk fu;e cukus dh ‘kfDr vfrØe.k gksrk gSA ¿ iSjk 17À
vfHkfu/kkZfjr % geus vf/kfu;e dh ;kstuk dk] fof‘k"Vr% /kkjk 2] 9¼4½ vkSj fu;e 3¼d½ esa varfoZ"V mica/kksa dks /;kuiwoZd fd;k gSA gekjk fu"d"kZ gS fd fu;e 3¼d½ izR;k;ksftr fo/kku dk [kaM gSA ,slk izR;k;ksftr fo/kku fof/kekU; ekuk tkrk gS D;ksafd dfri; fo/kk;h {ks=ksa esa fo/kku&eaMy dsoy uhfr fu/kkZfjr dj ldrk gS vkSj mls izHkkoh :i nsus ds fy, dk;Zikyd izkf/kdkfj;ksa dks i;kZIr ekxZn‘kZu nsuk gh laHko gks ikrk gSA gekjs le{k tks fo/kku gS] mldk mÌs‘; dkjkokl dk naM Hkksxrs le; cafn;ksa dks lq/kkjus ds orZeku nkafMd n‘kZu dks izHkkoh :i nsuk gSA mi;qZDr iz;kstu ds fy, /kkjk 2 esa izkf/kdkfj;ksa dks ifjoh{kk/khu canh dks dkjkxkj esa mlds iwoZo`Ùk vkSj vkpj.k n`f"V esa j[k dj mls NksM+us dh ‘kfDr iznÙk dh xbZ gSA /kkjk 9 ds fu;e cukus dh ‘kfDRk varfoZ"V gS vkSj mi/kkjk ¼4½ esa jkT; ljdkj dks mu vijkf/k;ksa dk oxZ ifjHkkf"kr ;k fofufnZ"V djus ds fy, izkf/kd`r fd;k x;k gS ftUgsa l‘krZ NksM+k tk ldrk gSA fu;e 3¼d½ esa dfri; xaHkhj izd`fr ds vijk/kksa ds dkj.k dkjkokl Hkksxus okys vijkf/k;ksa dks ykblsUl in NksM+s tkus ds ik= ugha gksus ds :i esa fofufnZ"V dj ds fu;e 3¼d½ eas vioftZr vijk/kksa dk foof{kr fd;k x;k gS ftuls vijkf/k;ksa dks og oxZ curk gS ftuds ekeyksa ij vf/kfu;e ds v/khu ifjoh{kk ij NksM+s tkus ds fy, fopkj fd;k tk ldrk gSA ¿ iSjk 18À
gekjs fy, lk/kq lj.k ds ekeys ¿ ¼1994½ 2 ,l lh lh 445À esa bl U;k;ky; dh ;qxy U;k;ihB }kjk vaxhd`r ;g n`f"Vdks.k ekU; Bgjkuk laHko ugha gS fd fu;e 3¼d½ ls /kkjk 9¼4½ ds v/khu fu;e cukus dh ‘kfDr dk vfrØe.k gksrk gS vkSj vf/kfu;e dh /kkjk 2 esa varfoZ"V vf/k"Bk;h mica/kksa dk vfrya?ku gksrk gSA gekjh lqfopkfjr jk; esa] lk/kq lj.k ds ekeys ¼iwoksZDr½ eas ;qxy U;k;ihB ds fofu‘p; esa ekU; fof/k vf/kdfFkr ugha gS vkSj og myVs tkus ;ksX; gSA mPp U;k;ky; dk vkns‘k myVk tkrk gS ¼1994½ 2 ,l lh lh 445 myVk x;kA ¿ iSjk 23À
¼2½ nkafMd izFkk && dkjkokl && vko‘;d ugha fd *izfrdkjh vkSj* Hk;ksijfrdkjh* gks && *lq/kkjkRed* gksuk pkfg, && naM ds ek/;e esa lq/kkj fd;k tkuk pkfg,A
naM ‘kkfL=;ksa dh jk; gS fd vko‘;d ugah gS fd dkjkokl *izfrdkjh* vkSj *Hk;ksijfrdkjh* gks] vfirq mls *lq/kkjkRed* gksuk pkfg,A naM ds fo"k; esa gstsy dk fl)kar gS fd naM ds ek/;e ls lq/kkj fd;k tkuk pkfg,A vk/kqfud lq/kkjdksa dh jk; gS fd naM ds lkFk&lkFk lq/kkj gksuk pkfg,A gstsy dk izdFku gS fd *naM dk mÌs‘; gS fd vijk/kh vius vijk/k ds fy, izk;f‘pr djs] vkSj ,slk dj ds og vius uSfrd vkpj.k dks lkdkj djs] tks mlds xyr d`R; ls vLFkk;h rkSj ij /kwfey gks x;k gS fdarq tks mldh lcls ewy vkSj lR; izd`fr gSA **gstsy d`r F;ksjh vkQ ifj‘kesaV ckjcjk gMlu d`r ftLVl Fkzw ifj‘kesaV voyafcrA ¿ iSjk 7À
Dharmadhikari, J. -- 1. This appeal has been preferred by the State of Madhya Pradesh against judgment dated 16.1.2001 of the High Court of Madhya Pradesh in Writ Petition (Cr.) No. 3603 of 1999. By placing reliance on two-Judges Bench decision of this Court in State of U.P. v. Sadhu Saran Shukla (1994)2 SCC 445, the High Court has held that rule 3(a) of the Madhya Pradesh Prisoners' Release on Probation Rules 1964 is ultra vires section 2 of Madhya Pradesh Prisoners' Release on Probation Act, 1954. [hereinafter referred to as 'the Rules' and 'the Act' respectively].
2. The two-Judges Bench of this Court in the case of Sadhu Saran (supra) declared similar rule 3(a) of D.P. Prisoners' Release on Probation Rules as ultra vires section 9 and section 2 of the D.P. Prisoners' Release on Probation Act, 1938 [hereinafter shortly referred to as 'the D.P. Rules' and 'the D.P. Act' respectively].
3. This appeal was listed before a two-Judges Bench of this Court on 21.8.2002 and it had referred this case to a larger Bench stating that two Judges-Bench of this Court in the case of Sadhu Saran (supra) needs reconsideration.
4. A legal question of general importance on the validity of Rule 3(a) of the Rules is before us for consideration. The respondent-prisoner is not represented by counsel. On our request, Shri Rakesh Dwivedi, Senior Advocate had agreed to assist this Court and to project the possible view in favour of the prisoner. The appellant-State of M.P. is represented by Senior Advocate Shri R.P. Gupta who took us through the relevant provisions of the Act and the Rules and almost similar provisions of D.P. Act and the Rules.
5. On completion of more than five years sentence of imprisonment, the respondent-prisoner made an application for his release on probation in accordance with section 2 of the Act read with the Rules. His application for release on probation under the M.P. Act and Rules was not considered by the State because by rule 3(a), convicts for offences specified under section 396 of Indian Penal Code cannot seek release on probation under the Act.
6. The prisoner approached the High Court in the writ petition. By placing reliance on the decision of Sadhu Saran (supra), the writ petition was allowed by the impugned order and directions were issued to the State Government to consider the application of the prisoner for release on merits in accordance with the provisions of the Act and the Rules.
7. The legislation contained in the Act and Rules and its counterpart D.P. Art and Rules is to give effect to the current penal philosophy on sentences. Penologists hold the view that imprisonment should not necessarily be 'retributary' and 'deterrent' but should be 'rehabilitative' Hegel's theory of punishment says that 'reform is to be effected through punishment'. The modem reformists hold a view that "reform should accompany punishment." Hegel asserts that "object of punishment is to make the criminal repent his crime, and by doing so to realise his moral character, which has been temporarily obscured by his wrong action, but which is his deepest and truest nature." [See justice through punishment by Barbara Hudson pg. 3].
8. The legislation - for consideration before us gives effect to this penal philosophy recommending rehabilitation of the criminals so that they come out of the prison to return to society as law abiding citizens. Under the scheme of the two Acts - certain classes of prisoners which appear to the government from their antecedents and their conduct in the prison as likely to abstain from crime and lead a peaceable life, can be released on a "licence" but their conduct outside prison shall be supervised by specified individuals or institutions. The period of release on licence or probation granted to them would give them opportunity to lead a crime free and peaceful life. Such period shall be counted towards the sentence of imprisonment imposed on them. Such licensed releases legislatively sanctioned have
