Arijit Pasayat, J.-
Leave granted
1. The State of Madhya Pradesh is in
appeal against the judgment of a Division Bench of the Madhya Pradesh
High Court dismissing the Letters Patent Appeal filed by the State. In
the Letters Patent Appeal challenge was to the order dated 30.8.2001
passed by learned Single Judge in Writ Petition No.777 of 2001.
Respondent- a life convict had filed the Writ Petition stating that he
is entitled to be released under the provision of the Madhya 1 Pradesh
Prisoners (Release on Probation) Act, 1954 and the Rules made thereunder.
Plea in the writ petition was that his case had been recommended by the
District Magistrate and the Superintendent of Police but the Probation
Board in its meeting held at 24.1.2001 did not recommend his case for
release on probation.
2. Learned Single Judge by a
practically non-reasoned order held that in view of the recommendation
of the District Magistrate and the Superintendent of Police and the
Probation Officer, the writ petitioner was entitled to be release on
probation. This order was challenged before the Division Bench in a
Letters Patent Appeal. The Division Bench held that there was no
substance in the appeal and also noted that the appeal was barred by 32
days, and, therefore, dismissed the Letters Patent Appeal.
3. Learned counsel for the appellant
submitted that neither learned Single Judge nor the Division Bench
discussed the order of the Probation Board and the reasons given by it
for rejecting the recommendation for release on probation.
4. There is no appearance of the
respondent in spite of service of notice. 2
5. It is to be noted that neither
the learned Single Judge nor the Division Bench discussed the reasons
indicated by the Probation Board. The opinion of the Board shows that
taking into account the gruesome nature of the murder and the background
in which the murder was committed, the recommendations were not
accepted. The State Government, Jail Department accepted the
recommendations of the Probation Board. The Division Bench erroneously
observed that the Single Judge had set aside the order of the Probation
Board. In fact, there is no such finding or conclusion recorded by
learned Single Judge. The parameters in the matter of release on
probation were dealt with by this court in Arvind Yadav v. Ramesh
Kumar [2003(6) SCC 144] in paragraphs 6,7 &8 it was held as follows:
"
6. We are unable to sustain the
impugned judgment of the High Court. Each of the convicts before the
High Court had been found guilty of commission of serious crime. The
impugned judgment notices that offences against the convicts were under
Sections 302/307/394/304-B/498-A/325 of the Indian Penal Code and the
convicts were serving their respective sentences in jail. In all the
cases before the High Court, the recommendations of the Probation Board
that had been accepted by the State Government were against the release
of the convicts. If there was non-application of mind to the relevant
considerations, the appropriate course was to remand the case for fresh
decisions by the authorities except, if in a given exceptional case, for
strong cogent reasons, the High Court may have examined itself the
relevant facts and quashed the order declining the release. The High
Court, instead of adopting this course, has made a general observation
that the remand to the State Government for fresh consideration is bound
to delay the matter causing further injustice to the convicts.
7. Apart from the fact that there
are factual infirmities in the impugned judgment, it is also to be borne
in mind that the 3 victim and the family of the victim who have suffered
at the hands of the convict have also some rights. The convicts have no
indefeasible right to be released. The right is only to be considered
for release on licence in terms of the Act and the Rules. The Probation
Board and the State Government are required to take into consideration
the relevant factors before deciding or declining to release a convict.
In the present case, the Probation Board had not recommended the
release. The State Government had confirmed the order of the Board. The
writ petition had failed before the learned Single Judge. The facts of
individual cases were not considered by the Division Bench. In the case
of Ramesh Kumar, the stand of the State Government was that he along
with six others had formed an unlawful assembly and murdered Jitendra,
son of Shashi Mohan Yadav on 20-9-1994 in Hoshangabad, Madhya Pradesh
causing seventeen injuries on him with swords, knives and gupti and that
Ramesh Kumar was the accused in fourteen cases filed under various
sections of the Indian Penal Code. The manner of commission of crime is
a relevant consideration. In a given case, the manner of commission of
offence may be so brutal that it by itself may be a good sole ground to
decline the licence to release. The Rules provide for a detailed
procedure for consideration of application for release. Once rejected,
again application for release can be made after two years. The Board
comprises of the Home Secretary of the State Government or any other
empowered officer, IG of Prisons or Deputy IG and another member.
8. The affidavit filed by the State
Government in case of Ramesh Kumar also states that he has been released
under the impugned order of the High Court after serving less than 8
years and he is already intimidating people after his release from
prison. The case of the appellant is that no notice was issued to him or
any other member of the family and, therefore, there was no occasion for
the family to object to the release of the convict. Therefore, the High
Court also committed factual error in observing that notice had been
issued to the family members of the victim. The facts are required to be
examined in every case individually which was not done. In a given case,
the mere fact that the family members of the victim were not 4 objecting
or were supporting release may not be sufficient, by itself, so as to
direct the release of the convict on that basis alone. In yet another
case, by itself, it may be a very strong factor. The fact that a
co-accused has been released again, by itself, may not be decisive. In a
nutshell, the facts and circumstances of each case have to be taken into
consideration individually. Likewise, the mere fact that one of the
members of the Board or the District Magistrate or the Superintendent of
Police or the Panchayat has recommended release is by itself of no
consequence. The recommendation is of the Board and not of an individual
member and the decision is to be taken having regard to all the relevant
factors. The State Government and the Board have to take into
consideration not only the conduct of the convict but also his criminal
antecedents; the effect of such release on the victims or their family;
the propensity of the convict to commit further criminal act and other
similar factors which may be considered relevant. The order of the State
Government cannot be interfered with only because another view is
possible."
6. Since the High Court has not
considered the issues in the proper perspective, we set aside the
impugned order of the Division Bench and we direct it to re hear the LPA
on condonation of delay, keeping in view the parameters indicated by
this court in Arvind Yadav's case (supra).
7. The appeal is allowed to the
aforesaid extent.
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