KUSUM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) INVOKING the extra-ordinary jurisdiction of this Court under Article 226 of the Constitution of India, the petitioners in each of the writ petitions have called in question the validity of the circular dated 3-8-2005 on the foundation that the same is contrary to the M. P. Prisoners Release on Probation Act, 1954 (in short 'the Act') and sought for issue of a writ of certiorari for quashment of the same.

(2.) FOR the sake of clarity and convenience, we shall advert to the factual scenario in W. P. No. 1618 of 2006. The petitioner, Kusum, was convicted under Section 302 of the Indian Penal Code (in short, 'the IPC') and sentenced to rigorous imprisonment for life in the Sessions Trial No. 176 of 1997 by the learned Additional Sessions Judge, Damoh. After completing five years of incarceration, she filed an application to be released on license under the aforesaid enactment and the rules framed thereunder. Her prayer for release on probation was rejected by the Probation Board on 8-8-2005, which was conferred the stamp of approval by the State Government on 2940-2005. It is contended that the Inspector General of Prisons had issued a circular dated 3-8-2005 indicating that the prisoners whose appeals are pending before the Appellate Court are not entitled to be considered for the purpose of release on probation which is absolutely impermissible as the same runs counter to the express provisions of the Act and the Rules.

(3.) MR. D. D. Bhargava, learned Counsel appearing for the petitioner propounded that such a circular contravenes to the provisions of the Act and the M. P. Prisoners' Release on Probation Rules, 1964 (in short 'the Rules') and a circular, by no stretch of imagination, can transgress the mandate of the Act or Rules. It is urged by him that a circular cannot supplant any provision of the Act and if there is any repugnancy, the circular has to pave the path of vitiation.