The manner of commission of the offence is a relevant consideration for release on probation, and in some cases, it may be a sole ground to decline release under the applicable Act and Rules.

R.S. Jha, J.

1. The Petitioners have filed this petition being aggrieved by the orders dated 18-1-2008 and 7-3-2008 (Petitioner No. 1) and orders dated 13-12-2007 and 21-2-2008 (Petitioner No. 2) by which their applications seeking release on probation under the provisions of M.P. Prisoners Release on Probation Act, 1954 (for brevity "the Act") and the M.P. Prisoners Release on Probation Rules, 1964 (for brevity "the Rules") have been rejected.

2. It is submitted by the learned Counsel for the Petitioners relying upon several unreported judgments, that the authority is required to look into each and every factum specifically antecedents and conduct of the prisoners in the prison and thereafter take a decision but in the instant case the authority has rejected the application for release on probation solely on the ground that the manner in which the Petitioners have committed the offence was extremely brutal and heinous which is impermissible. It is also submitted that the impugned order passed by the Respondent suffers from non-application of mind, therefore, deserves to be quashed.

3. Per contra, learned Government Advocate appearing for the State/Respondents submits that the authority under the Act and Rules has considered the application filed by the Petitioners and taking into consideration the brutal and heinous manner in which the offence was committed, has rejected the applications of the Petitioners for release on probation relying upon the judgment of Supreme Court rendered in the case of State of M.P. v. Kusum (2007) 10 SCC 799.

4. I have heard the learned Counsel for the parties at length.

5. From a perusal of the record and the impugned order, it is clear that the Petitioners along with Jageshwar, Damodar and others brutally assaulted Rajkumar with stick and continued to do so till he died and in such circumstances, the Petitioners being found guilty have been sentenced to life imprisonment by the Sixth Additional Sessions Judge, Jabalpur in S.T. No. 63/83 under Sections 302, 149, 323 and 149 of the IPC.

6. It is also apparent from the perusal of the impugned orders that the authority, after taking into consideration the manner of commission of the offence, has rejected the applications of the Petitioners for release on probation on the ground that the Petitioners were not entitled to be released on probation in view of the manner in which the offence was committed by them by forming an unlawful assembly and brutally committing the murder with lethal weapons.

7. In the case of Kusum (supra), the Supreme Court while affirming the order passed by this Court quashing the circular dated 3-8-2005 with regard to prohibition to entertain applications for release on probation, has reaffirmed the relevant factors that are required to be considered by the authorities while dealing with an application for release on probation and has quoted Paragraph 7 of the judgment, rendered in the case of Arvind Yadav v. Ramesh Kumar and Ors. (2003) 6 SCC 144. Paragraph 7 of the aforesaid judgment is in the following terms:

7. Apart from the fact that there are factual infirmities in the impugned judgment, 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 indefeasible 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. In the case of Ramesh Kumar, the stand of the State Government was that he along with six others had formed an unlawful assembly and