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2006 Supreme(MP) 199
2007(2) JLJ 9
Dipak Misra and S.K. Pandey, JJ.
Kusum v. State of M.P. and others
Writ Petitions No. 1618, 1619, 1671 and 1672 of 2006 (Jabalpur);
Decided on 6.2.2006.
D.D. Bhargava for petitioners;
Vinod Mehta, Government Advocate for respondents.
Headnote:Prisoners‘ Release on Probation Act, 1954 (M.P.) -- Ss.2 and 6 -- M.P. Prisoners‘ Release on Probation Rules, 1964 -- Rr.4 and 6 -- direction -contained in circular dated 3.8.2005 for non-consideration of cases in which appeals are pending-- the circular is supplanting the rules -- even mercy petition which was not subject matter in previous petition has been prohibited consideration -- circular is invalid and ultra vires.
What the present circular has stipulated is that in all cases, where appeals filed by the convicts are pending, their cases for consideration on release on licence are not to be considered. [Para 12
Held: In our considered opinion, the said circular is absolutely general, sweeping and not in consonance with the Act and the Rules. The cases which are not to be considered under the rules by exclusion could have been segregated by giving instructions to the concerned authorities but a circular of this nature could not have been issued by directing the Probation Board not to consider the cases of prisoners where appeals are pending. There can be no trace of doubt the said circular supplants the rules. The authority that had issued the circular, if we allow ourselves to say so, has misconstrued the Division Bench judgment and also not kept in view the rules which are in vogue. The jurisdiction vested in an authority has to be exercised as per rules. Be it noted, the Division Bench decision of this Court was rendered to curb the illegality in the decision making process, but a circular to the effect that no case would be considered by the Probation Board where the appeal is pending could not have been issued. The entertainment of mercy petition was not prohibited by the Division Bench. Hence, the same cannot be prohibited by the circular, if otherwise entertain-able in law.
In view of the aforesaid, we unhesitatingly declare that the circular dated 3.8.2005, Annexure P-1 is invalid and ultra vires. We only command the respondents to consider the cases of the petitioners afresh keeping in view the observations and directions issued in Writ Petition No.941 of 2005. AIR 1980 SC 2147 and 2004(1) JLJ 288 (SC) followed. [Paras 13 & 14
cafn;ksa dk ifjoh{kk ij NksM+k tkuk vf/kfu;e] 1954 ¼e-iz-½ && /kkjk 2 rFkk 6 && e-iz- cafn;ksa dk ifjoh{kk ij NksM+k tkuk fu;e] 1964 && fu-4 rFkk 6 && ifji= fnukad 3-8-2005 esa ,sls ekeyksa ij fopkj ugha fd, tkus dk funs‘k ftuesa vihy yafcr gS && ifji= fu;eksa dk LFkku ys jgk gS && n;k ;kfpdk ij Hkh] tks iwoZrj ;kfpdk dh fo"k;&oLrq ugha Fkh] fopkj fd;k tkuk izfrf"k) && ifji= vfof/kekU; rFkk vf/kdkjkrhr gSA
izLrqr ifji= esa tks vuqc) fd;k x;k gS og ;g gS fd mu lHkh ekeyksa esa tgk¡ fl)nks"k O;fDr;ksa }kjk Qk;y dh xbZ vihysa yafcr gSa] muds vuqKfIr ij NksM+s tkus gsrq fopkjk/khu ekeyksa ij fopkj fd;k tk,xkA ¼iSjk 12
vfHkfu/kkZfjr % gekjh lqfopkfjr jk; esa] mDr ifji= iw.kZr% O;kid] vfrO;kfriw.kZ gS rFkk vf/kfu;e vkSj fu;eksa ds vuq:i ugha gSA viotZu }kjk ftu ekeyksa ij fu;eksa ds v/khu fopkj ugha fd;k tkuk gS] mUgsa lac) izkf/kdkfj;ksa dks vuqns‘k ns dj i`Fkd~ fd;k tk ldrk Fkk ijarq ifjoh{kk eaMy dks mu cafn;ksa ds ekeyksa ij ftudh vihysa yafcr gSa] fopkj ugha djus dk funs‘k nsrs gq, bl izd`fr dk ifji= tkjh ugha fd;k tk ldrk FkkA blesa ys‘kek= Hkh lansg ugha gS fd mDr ifji= fu;eksa dk LFkku ys jgk gSA ge dg ldrs gSa fd ftl izkf/dkkjh us ifji= tkjh fd;k gS mlus [kaM U;k;ihB ds fu.kZ; dk xyr vFkkZUo;u fd;k gS rFkk og fu;e Hkh n`f"V esa ugha j[ks gSa tks izo`Ùk gSaA izkf/kdkjh esa fufgr vf/kdkfjrk dk iz;ksx fu;eksa ds vuqlkj fd;k tkuk gksrk gSA /;krO; gS fd bl U;k;ky; dh [kaM U;k;ihB dk fofu‘p;] fofu‘p; djus dh izfØ;k esa voS/krk de djus ds fy, fn;k x;k Fkk ijarq bl vk‘k; dk ifji= fd ifjoh{kk eaMy }kjk ,sls fdlh ekeys ij fopkj ugha fd;k tk,xk ftldh vihy yafcr gS] tkjh ugha fd;k tk ldrk FkkA n;;k ;kfpdk dk xzg.k [kaM U;k;ihB }kjk izfrf"k) ugha fd;k x;k FkkA vr% og ifji= }kjk izfrf"k) ugha fd;k tk ldrk ;fn vU;Fkk fof/k esa xzkg~; gSA
iwoksZDr dh n`f"V ls] ge fu%ladksp ?kks"k.kk djrs gSa fd ifji= fnukad 3-8-2005 mikca/k ih&1 vfof/kekU; vkSj vf/kdkjkrhr gSA ge izR;FkhZx.k dks fjV ;kfpdk Ø-941 lu~ 2005 esa dh xbZ leqfDr;ksa vksj tkjh fd, x, funs‘kksa dks gh /;ku esa j[krs gq, ;kphx.k ds ekeyksa ij u, fljs ls fopkj djus dk vkns‘k nsrs gSaA , vkb vkj 1980 ,l lh 2147 rFkk 2004¼1½ ts ,y ts 288 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 13 ,oa 14
Misra, J. -- 1. Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners in each of the writ petitions have called in question the validity of the circular dated 3.8.2005 on the foundation that the same is contrary to the M.P. Prisoners Release on Probation Act, 1954 (in short "the Act") and sought for issue of a writ of certiorari for quashment of the same.
2. For the sake of clarity and convenience, we shall advert to the factual scenario in Writ Petition No.1618 of 2006. The petitioners, Kukum, was convicted under section 302 of the Indian Penal Code (in short "the IPC") and sentenced to rigorous imprisonment for life in the Sessions Trial N 0.17 6 of 1997 by the learned Additional Sessions Judge, Damoh. After completing five years of incarceration, she filed an application to be released on licence under the aforesaid enactment and the rules framed there under. Her prayer for release on probation was rejected by the Probation Board on 8.8.2005, which was conferred the stamp of approval by the State Government on 29.10.2005. It is contended that the Inspector General of Prisons had issued a circular dated 3.8.2005 indicating that the prisoners whose appeals are pending before the appellate Court are not entitled to be considered for the purpose of release on probation which is absolutely impermissible as the same runs counter to the express 'revisions of the Act and the Rules.
3. Mr. D.D. Bhargava, learned counsel appearing for the petitioner propounded that such a circular contravenes to the provisions of the Act and the M.P. Prisoners' Release on Probation Rules, 1964 (in short "the Rules") and a circular, by no stretch of imagination, can transgress the mandate of the Act or Rules. It is urged by him that a circular cannot supplant any provision of the Act and if there is any repugnancy, the circular has to pave the path of vitiation.
4. Mr. Vinod Mehta, learned Government Advocate, submitted that the circular has been issued keeping in view the direction issued in Writ Petition No.941 of 2005 and, therefore, it should be held as intra vires being the sequitur of the decision rendered by the Division Bench.
5. To appreciate the rivalised submission raised at the Bar, it is thought seemly to understand and appreciate the decision rendered in Writ Petition No.941 of 2005. In the aforesaid case, the Division Bench was dealing with tl}e grievance of-one Vinod Kumar Nigam, who had called in question the rejection of grant of benefit of probation by the Probation Board and affirmation thereof by the State Government, on many a ground. The Division Bench referred to the earlier writ petition filed by said Vinod Kumar Nigam forming the subject-matter of Writ petition No.2319 of 2002 which had faced rejection. In course of hearing of the writ petition, the Division Bench adverted to the concept of conditions precedent and the irregularities in release on probation of certain convicts particularly those whose applications for bail had been rejected and their appeals are pending. In this backdrop, the Division Bench directed as under:
"We are, therefore, of the opinion that all the cases where probationers, have been released and where appeals are pending or on mere completion of 5 years or 6 years should be reviewed again. Board is directed to review all the cases and shall also decide the application of the petitioner in the light of the directions given above. Order rejecting the application of petitioner passed by the Board is quashed with a direction to the Board to reconsider the case in the light of judgment in the case of Arvind Yadav v. Ramesh Kumar and others and State of M.P. v. Bhola (supra), and earlier order passed. As petitioner has remained in jail for more than 13 years, Board is directed to reconsider the case of petitioner within a period of two months from today."
6. At this juncture, it is condign to mention that the Division Bench had also observed t
