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2003 Supreme(MP) 587
2003(2) JLJ 97
(SUPREME COURT)
Y.K. Sabharwal and H.K. Serna, JJ.
Arvind Yadav v. Ramesh Kumar and others
Cri. Appeal Nos. 641-52 of 2003; against the judgment M.P. High
Court passed in L.P.A. Nos. 6. 612. 224/2002, 284, 254/2001.212.
122,59, 137,121 of 2002 and 245 of 2001; Decided on 28.4.2003.
R.P. Gupta with Uday Umesh Lalit....
Y.K. Prasad with Varinder Kumar Sharma for appearing parties.
Headnote:Prisoners‘ Release on Probation Act, 1954 (M.P.) -- S. 2 -- M.P. Prisoners Release on Probation Rules, 1964 -- Rr. 4 and 6 -- release of prisoners serving sentence under Ss. 302/307/394/304B/498A and 325 of IPC -- victims and their families have also some rights -- convicts have no defensible right of release -- State Government are required to consider relevant factors n facts of individual case should be Considered.
By the impugned common judgment, the High Court allowed a number of letters patent appeals and directed the authorities to release all the appellants, who were before the Division Bench, from prison within a period of 15 days. In criminal appeal arising out of SLP (Crl.) No. 3759/02, the judgment of the High Court directing release of Ramesh Kumar who was found guilty of offence under section 302, IPC for murder of deceased Jitendra, has been challenged by his brother Arvind Yadav on permission granted to him to file the special leave petition. The State has also filed an appeal challenging the direction of the High Court for release of Ramesh Kumar. The directions of High Court to release other convicts are subject matter of challenge in connected appeals. [Para 2
Held: 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 indefensible 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 convict. In the present case, the Probation Board had not recommended the release. The State Government had confirmed the order of the Board. The writ petition had failed before the learned Single Judge. The facts of individual cases were not considered by the Division Bench. . [Para 7
The facts are required to be examined in every case individually which was not done. In a given case the mere fact that the family members of the victim were not objecting or were supporting release may not be sufficient by itself so as to direct the release of the convict on that basis alone. In yet another case, by itself, it may be a very strong factor. The fact that a co-accused has been released again, by itself, may not be decisive. In nutshell, the facts and circumstances of each case have to be taken into consideration individually. Likewise, the mere fact that one of the members of the Board or the District Magistrate or the Superintendent of Police or the Panchayat has recommended release, is by itself of no consequence. Judgment of High Court reversed. [Para 8
cafn;ksa dks ifjoh{kk ij NksM+k tkuk vf/kfu;e] 1954 ¼e-ç-½&/kkjk 2&e-ç- cafn;ksa dks ifjoh{kk ij NksM+k tkuk fu;e] 1964&fu- 4 rFkk 6&naM lafgrk dh /kkjk 302@307@394@304[k@498d rFkk 325 ds v/khu naMkns‘k Hkksx jgs cafn;ksa dk NksM+k tkuk&vkgr O;fDr;ksa rFkk muds dqVqacksa ds Hkh dqN vf/kdkj gSa&fl)nks"k O;fDr;ksa dks NksM+s tkus dk leFkZuh; vf/kdkj ugha gSa&jkT ljdkjksa ls lqlaxr ckrksa ij fopkj visf{kr gS&çR;sd ekeys ds rF;ksa ij fopkj fd;k tkuk pkfg,A
vkf{kIr lkekU; fu.kZ; }kjk mPp U;k;ky; us vusd ysVlZ isVsaV vihysa eatwj dh rFkk [kaM U;k;ihB ds le{k vk, vihykFkhZx.k dks ianzg fnu ds Hkhrj dkjkxkj ls NksM+us ds fy, çkf/kdkfj;ksa dks funs‘k fd;kA fo‘ks"k btktr ;kfpdk ¼nkafMd½ Ø- 3759@02 ls mn~Hkwr nkafMd vihy esa] e`r ftrsanz dh gR;k ds fy, naM lafgrk dh /kkjk 302 ds v/khu vijk/k ds fy, nks"kh ik, x, jes‘k dqekj dks NksM+s tkus dk funs‘k djus okyk mPp U;k;ky; dk fu.kZ; mlds HkkbZ vjfoan dqekj }kjk] ftls fo‘ks"k btktr ;kfpdk Qkby djus dh vuqKk çnÙk dh xbZ gS] vkf{kIr fd;k x;k gSA jkT; }kjk Hkh jes‘k dqekj dks NksM+us ds mPp U;k;ky; ds funs‘k ij vk{ksi djrs gq, vihy Qkby dh xbZ gSA vU; fl)nks"k O;fDr;ksa dks NksM+us ds mPp U;k;ky; ds funs‘k] lacaf/kr vihyksa esa vk{ksi dh fo"k;&oLrq gSaA ¿iSjk 2
vfHkfu/kkZfjr % ;g Hkh /;ku esa j[kk tkuk gksxk fd vkgr O;fDr rFkk mlds dqVqac ds Hkh] ftUgsa fl)nks"k O;fDr ds dkj.k Hkksxuk iM+k gS] dqN vf/kdkj gSA fl)nks"k O;fDr;ksa dks NksM+s tkus dk vleFkZuh; vf/kdkj ugha gSA vf/kdkj dsoy vf/kfu;e rFkk fu;eksa ds vuqlkj vuqKfIr ij NksM+s tkus dk fopkj fd, tkus dk gSA ifjoh{kk eaMy rFkk jkT; ljdkj ls visf{kr gS fd fl)nks"k O;fDr dks NksM+us vFkok ugha NksM+us dk fofu‘p; djus ls iwoZ lqlaxr dkjdksa ij fopkj djsaA çLrqr ekeys esa ifjoh{kk eaMy }kjk NksM+s tkus dh flQkfj‘k ugha dh xbZ FkhA jkT; ljdkj }kjk eaMy ds vkns‘k dh iqf"V dh xbZ FkhA fo}ku ,dy U;k;k/kh‘k ds le{k ;kfpdk fu"Qy gks xbZ FkhA [kaM U;k;ihB }kjk çR;sd ekeys ds rF;ksa ij fopkj ugha fd;k x;kA ¼iSjk 7½
çR;sd ekeys ds rF;ksa ij vyx&vyx fopkj fd;k tkuk visf{kr gS] ,slk ugha fd;k x;kA fdlh ekeys esa] dsoy ;g rF; fd vkgr O;fDr ds dqVqac ds lnL; fl)nks"k O;fDr ds NksM+s tkus ij vkifRrÙk ugha dj jgs Fks vFkok mldk leFkZu dj jgs Fks] vius vki esa ,dek= bl vk/kkj ij fl)nks"k O;fDr dks NksM+us dk funs‘k djus ds fy, i;kZIr ugha Hkh gks ldrkA ogha fdlh vU; ekeys esa og vius vki esa cgqr çcy dkjd gks ldrk gSA fQj ;g rF; fd lg&vfHkqDr NksM+ fn;k x;k gS] vius vki esa fu‘pk;d ugha Hkh gks ldrkA la{ksi esa] çR;sd ekeys ds rF;ksa rFkk ifjfLFkfr;ksa ij vyx&vyx fopkj fd;k tkuk gksrk gSA blh çdkj] dsoy ;g rF; vius vki esa egRoghu gS fd eaMy ds ,d lnL; vFkok ftyk eftLVªsV vFkok iqfyl v/kh{kd vFkok iapk;r us NksM+s tkus dh flQkfj‘k dh gSA mPp U;k;ky; dk fu.kZ; myVk x;kA ¼iSjk 8½
Sabharwal, J. -- 1. Leave granted.
2. By the impugned common judgment the High Court allowed a number of letters patent appeals and directed the authorities to release all the appellants, who were before the Division Bench, from prison within a period of 15 days. In criminal appeal arising out of SLP (Crl.) No. 3759/02. the judgment of the High Court directing release of Ramesh Kumar who was found guilty of offence under section 302. IPC for murder of deceased Jitendra, has been challenged by his brother Arvind Yadav on permission granted to him to file the special leave petition. The State has also filed an appeal challenging the direction of the High Court for release of Ramesh Kumar [Crl. A. arising out of SLP (Crl.) No. 4397/02]. The directions of High Court to release other convicts are subject matter of challenge in connected appeals.
3. The crime was committed in the year 1994. The Sessions Court, by judgment and order dated 26th August, 1997. convicted Ramesh Kumar for offence under section 302 IPC. The appeal filed by Ramesh Kumar challenging his conviction is pending before the High Court. Release from prison has been sought by Ramesh Kumar under Madhya Pradesh Prisoners Release on Probation Act. 1954 and the Rules framed there under. Under the Act. release on licence is not for a limited period and is for entire duration of the sentence or until the licence to release is revoked. The Probation Board under the Act and the Rules did not recommend the release of the convict. The orders of the Probation Board dated 10th April, 2001 and affirmed by the State Government on 25th April, 2001 were challenged by the convict in the High Court in Writ Petition No. 4532/01. The writ petition was dismissed by a learned Single Judge holding that the Board had taken note of factual scenario and had observed that the convict along with others had preplanned murder of the deceased and committed the murder in most cruel manner by lethal weapons and that manner in which the murder is committed comes within the realm of antecedents. It was held that the order passed by the Probation Board was just and proper and did not call for interference and accordingly the writ petition was dismissed.
4. The Division Bench in the judgment under appeal allowing the letters patent appeals has observed that the opinion to release or not is to be based on consideration of all the aspects of convict's antecedents preceding his entry into prison including antecedents prior to the crime; circumstances of the case; conduct subsequent to crime and in prison and no single aspect by itself would be decisive nor can it be ignored and the total picture is relevant. The Division Bench has also observed that for formation of opinion, it is also to be considered whether the convict would abstain from the crime, lead peaceful life if released on probation and not repeat the offence and revert back to the life of criminality and has no potentiality to commit crime. The other aspects that can be considered are age, his social and economic conditions, the relationship with the family of the victim, etc. and on consideration of other similar factors, opinion is required to be formed whether the convict is entitled to premature release on licence under the provisions of the Act or not. Having reached the aforesaid conclusions, the learned Division Bench noticed that in all cases, Superintendent of Police, District Magistrate and Probation Officer had recommended the cases of petitioners for release on licence and in cases noticed in para 10 of the impugned judgment, the non-official member of the Board had recommended the release of convicts on probation and in none of the cases the relation of the victims had objected to their release on probation and that there was no evidence suggesting extreme brutality in the commission of crime. It would be useful to reproduce the reasons that prevailed with the Division Bench in directing the release of all the appellants w
