ANNI ALIAS RAMESH Vs. STATE OF MP

JUDGEMENT

(1.) The present petition, filed under Article 226 of the Constitution, has been referred to us pursuant to order dated 13-2-2008 passed by a Division Bench of this Court.

(2.) The petitioner has been found guilty for an offence punishable under Section 302 of the Indian Penal Code and, therefore, he is undergoing sentence of life imprisonment in jail since 3-11-1997. He, on completing more than 11 years in jail, applied for release on probation under the provisions of the Madhya Pradesh Prisoners' Release on Probation Act, 1954 (in short "the Act") which provides for the release of certain prisoners on conditions imposed by the State Government. But the application was rejected by a communication dated 1 -5-2008, Annexure P-1, on the ground that he was not eligible for release under Rule 4 of the Madhya Pradesh Prisoners' Release on Probation Rules, 1964 (for short "the Rules") as he had not completed 14 years of actual imprisonment without remission of his sentence. The communication also referred to notification dated 24-3-2008 of the State Government issued under Section 9 of the Act by which proviso to Rule 4 of the Rules has been introduced. Aggrieved, the petitioner filed this writ petition challenging the vires of proviso to Rule 4 on the ground that its introduction.jby the State Government was beyond its rule making power under Section 9 of the Act. The State Government, in its return, informed that notification dated 24-3-2008 introducing the impugned proviso was challenged earlier also in Writ Petition Nos. 9034/2008, 13593/2008 and 15027/2008 and these petitions were dismissed after full consideration on merits by a Division Bench of this Court vide order dated 16-3-2009 and, therefore, the present petition be also dismissed.

(3.) On 3-7-2009 the petition came up for hearing before a Division Bench which observed that in the earlier writ petitions the impugned proviso was challenged mainly on the ground that it is ultra vires Sections 432, 433 and 433-A of the Code of Criminal Procedure whereas the issue raised in the present petition is that proviso is ultra vires the rule making power under Section 9 of the Act. With this observation the Division Bench directed the State Government to file fresh return within four weeks.