GORI SHANKAR Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) IN this batch of writ petitions, the constitutional validity of the notification dated 24-3-2008 by which Rule 4 of the M. P. Prisoners Release on Probation rules, 1964 (hereinafter referred to as 'the Rules') framed under Section 9 of the M. P. Prisoners Release on Probation Act, 1954 (for brevity 'the Act') has been amended is called in question. For the sake of clarity and convenience, it is thought apt to adumbrate the facts in W. P. No. 13593/2008.

(2.) BEREFT of unnecessary details, the factual matrix, as has been unfurled, is that the petitioner has been convicted under Section 302 of the indian Penal Code (for brevity 'the IPC) and sentenced to Rigorous imprisonment for life by judgment dated 5-6-1994 in Sessions Trial No. 138/90 by the Additional Sessions Judge, Ratlam which has been affirmed by this Court in Criminal Appeal No. 567/1994. After completion of 5 years of imprisonment, the petitioner submitted an application duly signed by his guardians under the rules seeking the benefit of probation under the Rules. But the State government by order dated 8-8-2008 intimated him that his application shall be considered on completion of actual sentence of 14 years. It is contended that though the petitioner has completed 10 years of incarceration, yet the application has not been considered singularly on the ground that there has been an amendment in Rule 4 which, according to the respondents, disentitles him for consideration. It is averred that the amendment to Rule 4, violates section 433- A of the Code of Criminal Procedure (for short 'the Code') and the intrinsic conceptually of the Rules itself. On this foundation, a prayer has been made for quashment of the declaration of the said amendment as unconstitutional and to issue a command to the respondents to consider his case and pass an order of release on licence under the relevant Rules.

(3.) A counter-affidavit has been filed by the answering respondents contending, inter alia, that the Rules have been framed under the provisions of the 1954 Act and Rule 4 postulates the eligibility for release. While the said Rule was in force, Section 433-A of the Code came into force on 18-12-1978, which lays down certain restrictions on powers of remission or commutation in certain cases and keeping in view the provisions contained in Sections 432, 433 and 433-A and also keeping in view the decision rendered in Maruram Vs. Union of india, AIR 1980 SC 2147, the Rules have been amended. It is put forth that earlier the Rule had become unworkable and deserved suitable modifications and hence, it has been amended. It is set forth that the amendment does not violate or runs counter to Section 433-A of the Code. On the contrary, it is asserted that the same is in consonance with Section 433-A of the Code.