RAMJIYA @ RAMJILAL Vs. STATE OF M.P.

JUDGEMENT

(1.) THIS a reference at the instance of a Division Bench of this Court (Gwalior Bench) as on consideration of some decisions of Supreme Court, in the opinion of the Division Bench, the case of Lalji v. State of M P. 1988 MPLJ 127 decided by a Full Bench of this Court required reconsideration by a still larger Bench. The question which has been referred by the Division Bench for our opinion is as follows: Whether this Court, on the writ side, can make any direction to the State Government and concerned authorities for reconsideration of any application for release on probation made under M.P. Prisoners Release on Probation Act, 1954, when the Court finds that the application had been illegally rejected and whether the decision in Lalji's case : 1988 MPLJ 127, lays down the law correctly? Before we proceed to examine the correctness of Full Bench decision in Lalji's case (supra) and answer the question referred for our opinion, it would be relevant to set out the brief facts of this petition as well as the facts giving rise to this reference. The facts lie in a very narrow compass. Some of the prisoners including the present Petitioner, who are suffering life imprisonment, made applications to the State Government, purporting to be one under Section 2 of the M. P. Prisoners Release on Probation Act, 1954 (For brevity referred to as 'the Act') read with Rule 4 of M.P. Prisoners Release on Probation Rules, (For brevity referred to as 'the Rules') for their release on licence. The Probation Board constituted under Sub -rule (5) of Rule 6 did not recommend the release of the Petitioner and other prisoners on licence and, therefore, the Government accepting the recommendations of the Probation Board, rejected the said explications for release on licence. The Petitioner as well as other prisoners whose applications were rejected, challenged the order of the State Government and its officers in writ petitions under Article 226 of the Constitution and sought a writ of certiorari to quash the said orders as well as a writ of mandamus directing the Government to reconsider the case for their premature release under the provisions of the Act and the Rules framed thereunder.

(2.) DURING the course of the arguments, learned Deputy Advocate General, relying on the Full Bench decision of this Court in the case of Lalji (supra) took the stand that a prisoner whose application for release on probation has been once rejected by the State Government, cannot apply for second time for his release nor he can seek a writ or direction from the High Court against the State Government for reconsideration of his application for release on licence and as such the relief is specifically barred under the provisions of the Act and the Rules framed thereunder. Relying on certain decisions of Gwalior Bench of this High Court as well as decisions of the Supreme Court, the Division Bench felt that the Full Bench decision rendered in the case of Lalji (supra) requires reconsideration by a Bench of 5 Judges in the wider interest of prison justice. This is how this petition has been placed before this larger Bench of 5 Judges to answer the question quoted in the beginning of this order. It is an undisputed fact that premature release of a prisoner on licence is governed by the provisions of the Act and the Rules framed thereunder. We shall, therefore, first look to the relevant provisions governing the release of a prisoner on probation. Section 2 of the Act relates to the power of the Government to release a prisoner by licence on certain conditions, on being satisfied as to the antecedent and conduct of the prisoner in the prison if he is likely to abstain from crime and lead a peaceable life in future. Section 9 of the Act empowers the Government to make rules consistent with the Act for the purposes of giving effect to the provisions of the Act. Sub -section (1) of Section 9 reads as under: Section 9 (1) -The Government may make rules consistent with this Act -for the form and conditions of licence on which prisoners may be released.

(3.) FURTHER Rule 6 provides the procedure for making an application for release on licence by an eligible prisoner and the manner in which it is to be processed and dealt with by different authorities and the Probation Board. Rule 4 prescribes the eligibility of a prisoner for his release on licence. It lays down that except those prisoners who are specified in Rule 3, may be released by the Government on licence, if he has served out one third of his sentence of imprisonment or a total period of Five Years with remissions, whichever is less. Rule 3 lays down an embargo on the release of certain classes of prisoners under the provisions of the Act, the relevant part of which is reproduced hereunder: