STATE OF M.P. & ORS. Vs. KHUMAN SINGH & ANR : Supreme Court - Probation Act, 1954
Supreme Court of India
CRIMINAL APPEAL NO.2562 OF 2014 Judgment Date: Dec 10, 2014
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2562 OF 2014
(ARISING OUT OF SLP (CRL.) NO.1009 of 2007)
STATE OF M.P. & ORS. ...APPELLANTS
VERSUS
KHUMAN SINGH & ANR. ...RESPONDENTS
O R D E R
ADARSH KUMAR GOEL, J.
1. Leave granted.
2. This appeal has been preferred by the State of Madhya Pradesh against
Order dated 5th December, 2003 passed by the High Court of Madhya Pradesh
at Indore in Writ Petition No.1077
of 2003.
3. The question raised for our consideration is whether the High Court
ought to release a person under the provisions of Madhya Pradesh Prisoner's
Release on Probation Act, 1954 read with M.P. Prisoner's Release on
Probation Rules, 1964 (for short "Act and the Rules"), if it is found that
rejection of the prayer for said release by the competent authority was not
proper.
4. The respondent was tried for a charge of murder under Section 302 of
the Indian Penal Code and convicted under the said provision in Session
Trial No.106 of 1988 and sentenced to undergo life imprisonment vide Order
dated 26th July, 1989. He applied for release under the provisions of
aforesaid Act and the Rules. His request was considered by the statutory
Board, in compliance of the Division Bench order of the High Court in Writ
Petition No.1138 of 2002 but he was not found entitled to be released. The
opinion of the Board was accepted by the State Government. The said
opinion and the order of the State Government are as follows :
"In the light of the background of the case, it is clear that the past
antecedents of the prisoners are not good. The prisoner alongwith other co-
accused persons mercilessly murdered the deceased with the knot of the
saree. The District Magistrate has not recommended the release and the
opposite party has also objection on release of the prisoner. The State
Probation Board is of the unanimous opinion that it would not be
appropriate to release the prisoner on probation. Therefore, the State
Government is recommended that it would not be appropriate to release the
prisoner on probation.
Recommendation of the State Probation Board Dt. 23.12.2002 are accepted
vide Memorandum No.F. 3-5/2003/3/Jail dated 3.1.2003 of the Jail
Department, State of Madhya Pradesh."
5. Aggrieved by the above, the respondent preferred a writ petition
which was allowed by Order dated 5th December, 2003. It may be mentioned
that prior to the passing of the impugned order, the Division Bench of the
High Court vide Judgment dated 11th April, 2002 in LPA No.212 of 2001 in
the matter of Subrato Bachaspati vs. State of M.P.[1], had expressed the
view that if the relatives of the victim of the crime do not object and
there is no evidence of extreme brutality, the High Court itself could
direct release notwithstanding the opinion of the Board and the State.
This view was reversed by this Court in Arvind Yadav vs. Ramesh Kumar &
Others[2]. Thereafter, the same view has been followed inter alia in State
of Madhya Pradesh vs. Abdul Kadir and Another[3].
6. We have heard learned counsel for the parties.
7. Learned counsel for the State pointed out that in view of the
Judgment of this Court in Arvind Yadav (supra), the view taken by the High
Court cannot be sustained.
8. In spite of service, no one has entered appearance for the
respondent. However, this Court appointed Mr. Praveen Agrawal, Advocate as
Amicus Curiae to assist the Court.
9. We find force in the contention raised on behalf of the appellant in
view of earlier decision of this Court in Arvind Yadav (supra) wherein this
Court held :
"6. We are unable to sustain the impugned judgment of the High Court. Each
of the convicts before the High Court had been found guilty of commission
of serious crime. The impugned judgment notices that offences against the
convicts were under Sections 302/307/394/304-B/498-A/325 of the Indian
Penal Code and the convicts were serving their respective sentences in
jail. In all the cases before the High Court, the recommendations of the
Probation Board that had been accepted by the State Government were against
the release of the convicts. If there was non-application of mind to the
relevant considerations, the appropriate course was to remand the case for
fresh decisions by the authorities except, if in a given exceptional case,
for strong cogent reasons, the High Court may have examined itself the
relevant facts and quashed the order declining the release. The High Court,
instead of adopting this course, has made a general observation that the
remand to the State Government for fresh consideration is bound to delay
the matter causing further injustice to the convicts.
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9. Having regard to the aforesaid, we are unable to sustain the impugned
judgment of the High Court. It is accordingly set aside."
(emphasis added)
10. Again in State of Punjab vs. Kesar Singh[4], it was observed :
"3. We have heard learned counsel for the parties. In our opinion the
direction given by the High Court was not at all appropriate or permissible
in law. The mandate of Section 433 CrPC enables the Government in an
appropriate case to commute the sentence of a convict and to prematurely
order his release before expiry of the sentence as imposed by the courts.
Clause (b) of Section 433 CrPC provides that the sentence of imprisonment
for life may be commuted for imprisonment for a term not exceeding 14
[pic]years or fine. Undisputedly, the respondent had not completed 14
years' sentence when he filed the petition under Section 482 CrPC seeking
premature release. The direction of the High Court therefore to prematurely
release the respondent and set him at liberty forthwith could not have been
made. That apart, even if the High Court could give such a direction, it
could only direct consideration of the case of premature release by the
Government and could not have ordered the premature release of the
respondent itself. The right to exercise the power under Section 433 CrPC
vests in the Government and has to be exercised by the Government in
accordance with the rules and established principles. The impugned order of
the High Court cannot, therefore, be sustained and is hereby set aside."
11. It is thus clear that even if approach adopted by the Board and the
State is not germane, normally procedure to be followed by the High Court
in exercise of power of judicial review is to remand the matter to the
competent authority in the light of such observations as may be found to be
appropriate, instead of the High Court itself directing release, as has
been done in the present case. There is no reason in the present case to
deviate from this established procedure, in exercise of power in judicial
matter in cases of this nature.
12. Accordingly, we allow this appeal, set aside the impugned order and
direct that the matter may be considered afresh by the competent authority
under the provisions of the Act and the Rules in accordance with law within
three months from the date of receipt of the copy of this order taking into
account upto date developments.
................................................J.
(T.S.
THAKUR)
.................................................J.
(ADARSH KUMAR GOEL)
NEW DELHI
DECEMBER 10, 2014
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