M P JAYARAJ Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) In this petition under Articles 226 and 227 of the Constitution, the petitioner has sought for quashing the Government Order dated 12 -11 -1984 bearing No. HD 87 PRR 84, produced as Annexure -E. He has also sought for issue of a writ in the nature of mandamus or any other appropriate writ or order directing the respondents to release him prematurely.

(2.) 1) The petitioner along with four other accused was convicted on 18 -8 -1978 for the offences punishable under Sections 143, 148, 307 read with Section 149; and Section 324 read with Section 149 of the Indian Penal Code, in Sessions Case No. 12 of 1977 on the file of the Principal District and Sessions Judge, Bangalore, and was sentenced to undergo rigorous imprisonment for a period of 3 months, one year, 5 years and one year respectively on each of the aforesaid counts. The substantive sentences were ordered to run concurrently. 2. 2) Being aggrieved by the aforesaid order of convictions and sentences, the petitioner along with other accused preferred Criminal Appeal No. 280 of 1978; and the State also preferred Criminal Appeal No. 68 of 1979 before this Court. Both the appeals were heard and decided together by this Court, on 1st August, 1979. This Court confirmed the convictions and enhanced the sentence from five years to ten years. Pursuant to the order of convictions and sentences, the petitioner has been undergoing imprisonment in the District Prison, Mysore. During the period of trial and after conviction, the petitioner has been on bail for some time and also had been released on parole for some time. 2.3) After the petitioner became eligible for review of sentence, his case was taken up by the Advisory Board for the District Prison, Mysore, on 6 -4 -1983 for review of sentence. The majority of the members of the Advisory Board opined in favour of premature release of the petitioner; whereas the District and Sessions Judge, Mysore and the Inspector General of Prisons, Karnataka did not opine in favour of premature release of the petitioner. Inspite of the majority opinion in favour of premature release of the petitioner, the case of the petitioner for premature release was not put up before the State Government; therefore the petitioner approached this Court in Writ Petition No. 21012/83, ILR 1985 KAR 1013 for issue of a writ in the nature of mandamus to respondents 2 to 4 to refer his case to the Advisory Board for the District Prison, Mysore, or in the alternative to consider the recommendation of the Advisory Board for premature release. That Writ Petition was decided by this Court on 25th September, 1984. It was held : - '(i) the proceeding of the Advisory Board held on 6 -4 -83 was a valid proceeding which was attended by five out of seven members of the Advisory Board and the majority of them opined in favour of the premature release of the petitioner. Therefore, the Advisory Board, in its proceeding dated 6 -4 -1983 did recommend for premature release of the petitioner. (ii) the recommendation made by the Advisory Board on 6 -4 -1983 had not been placed before the State Government ; therefore, it was not necessary to bring the subject before the Advisory Board subsequent to 6 -4 -1983. (iii) it was necessary for the 2nd respondent to submit the recommendation of the Advisory Board dated 6 -4 -1983 for the premature release of the petitioner to the State Government for its consideration.' Accordingly, the 2nd Respondent was directed to place the opinion of the Advisory Board dated 6 -4 -1983 before the State Government on or before the 10th October, 1984 without expressing his opinion in any manner. The State Government was also directed to consider the recommendation of the Advisory Board as incorporated in its proceeding dated 6th April, 1983 for the premature release of the petitioner without reference to its earlier order rejecting the petition filed by the father of the petitioner for the premature release of the petitioner and also the letter dated 29 -7 -1983 bearing No. J2/CR. 300/83 written by the Inspector General of Prisons - Sri C. S. Mallaiah (2nd Respondent) and without obtaining his opinion in any manner and take a decision in the light of the observations made in the order, on or before the 15th November, 1984. It was also further directed that if the State Government failed to take a decision on reconsideration of the recommendation dated 6 -4 -1983 made by the Advisory Board for premature release of the petitioner and in the light of the observations made in the order on or before the 15th November, 1984, the petitioner shall stand prematurely released. On the contrary, if the State Government were to take a decision on or before the 15th November, 1984 not to release the petitioner prematurely from the jail, he was directed to surrender to the jail authorities of the District Prison, Mysore within 24 hours from the time of the service of the order. During the period of consideration, the petitioner was directed to be released on bail on certain conditions. It was also made clear that it was open to the petitioner to challenge the decision of the State Government regarding his premature release if it went against him. 2.4) Accordingly, the State Government has taken a decision by the impugned order dated 12th November, 1984, which is as follows : 'After taking all the relevant factors into consideration and the recommendation contained in the proceedings of the Advisory Board, District Prison, Mysore, dated 6 -4 -1983, Government have come to the conclusion that any lenience shown to convicts of the kind in question would be totally misplaced and would not serve the ends of justice. Government have therefore decided not to accept the recommendation of the Advisory Board, District Prison, Mysore, dated 6 -4 -1983, relating to the premature release of the convict No. 1821, Sri. M.P. Jayaraj. Hence, Government hereby order that the convict No. 1821, Sri M. P. Jayaraj, shall not be released prematurely. It is also hereby ordered that a copy of this order should be served forthwith on the convict No. 1821, Sri M.P. Jayaraj.' It is this order that is assailed in this Writ Petition.

(3.) IT is contended on behalf of the petitioner by Learned Counsel Sri Veerabhadrappa, that the State Government has not taken into consideration the observations made in the decision of this Court in Writ Petition No, 21012 of 1983 ; that the State Government has proceeded on wrong assumption of facts as to the period of sentence undergone ; that the State Government has not taken into consideration the relevant factors and circumstances which are enumerated in para 821 of the Manual ; that the State Government has based its decision mainly on the facts and circumstances and the conduct of the petitioner which led to the conviction and enhancement of sentence ; that the opinion of the Advisory Board has not been considered in the correct perspective ; that the State has not taken into consideration all the relevant factors ; that there is no proper consideration of the case of the petitioner ; that even subsequently the Advisory Board in its meeting held on 8 -10 -1984 has again recommended tor premature release of the petitioner ; that there is nothing seated regarding the conduct of the petitioner while serving the sentence which is very relevant for arriving at a decision whether the petitioner has or has not not to be prematurely released; that the petitioner has by his consistent good conduct in the prison has shown that he has overcome the conduct of the nature which led to his conviction; that he has now become completely different and improved person; that by his consistent good work and conduct in prison, he has shown that he can be trustworthy citizen even if he is released prematurely; that the unexpired portion of sentence being of short duration; that in tune with modern accepted theory of rehabilitation of an offender for the good and safety of the society and on taking into consideration the latest opinion of the Advisory Board; it is submitted that if this Court is of the view that the order of the State Government is not sustainable, instead of directing the State Government to reconsider the matter afresh in the light of the opinion of the Advisory Board dated 8 -10 -1984. it is just and appropriate to direct premature release of the petitioner on such terms and conditions as the Court may deem fit to impose.