^)'/^ IN THEJIKMICOURT OF JUDICATURE AT BILASPUR WRIT PETITIONJcUaO.54^^72007 PETITIONER ><•• .--^ ^^ •^^y^ ^^y ^-- .^" Wahid Hussain, S/o Shri Shabbir Hussain, aged 37 years, R/o Bandhwapra, Sarkanda, District- Bilaspur (C.G.) VERSUS RESPONDENTS '(;<i«;"'''^;\ y-^ '-»*i LR. Kas {^/ii} h~^~^'?7 1^'1'A^. ^•' 0^7 ^^^ \^^' ^•' 1. State of Chhattisgarh, through Secretary, Department of Home, D.K.S. Bhawan, Mantralaya, Raipur (C.G). 2. Chainnan, Probation Board of Chhattisgarh, Raipur, District- Raipur (C.G.) 3. Inspector General of Prison State of Chhattisgarh, Raipur (C.G.) 4. Deputy Inspector General of Prison, Chhattisgarh, Raipur (C.G.) 5. Superintendent, Central Jail, Raipur (C.G.) 6. Collector, Bilaspur, District- Bilaspur (C.G.) , 7. Superintendent of Police, Bilaspur, District, Bilaspur (C.G.) y ^-"" r7n z-fl'* HiQH COURT OF CHHATTiSGARH : BiLASEUR Singie Bench: Hon'ble Shri Manindra Mohan Shrivastava, J. PETiTiONER EE WRiT PETiTiON (C] N0.3440/07 Wahid Hussain Versus Stateof Chhattisgarh and others. Present: - Shri Rajeev Shrivasteva, counsei for the petitioner. Shri v.v.s.Murthy, Deputy Advocate GeneraJ a!ong with Shri Satish Gupta, Govt. Advocate for the State/respondents. ORAL ORDER (Passed on 24ttl January, 201 1) By this petition, the petitioner has caiied in question the iegaiity and vaiidity of order 27/11/06 passed by the Probation Board whereby the petitioners appiication for reiease of iicense has been rejected. 2. Brieffacts necessary for adjudication invoived in this petition are that the petitioner was charge sheeted for commission of ofFence punishable under Sections 302 and 376 of the indian Penai Code vide judgment of conviction and order of^entence dated 30/8/1993 passed in Sessions Triai No.379/91. The Sessions Judge, Biiaspur convicted the petitioner and sentenced to undergo imprisonment for life for commission of offence under Section 302 IPC and R.i. for seven years under Section 376 iPC. Against the judgment of convictton, an appeal was preferred before this Court, registered as Criminal Appeai No.934/93 wherein the appeliant has been granted bail. The petitioner was taken into custody on 15/2/91 and continued to sen/e in thejaii untii he was reieased on baii by this Court vide order dated 5/9/01. y!i| ^../—^rt •^lff^l^yiifV^^' ^•"-•i•.;•;-.•^•^;-^;. ^.:- •. ?r .^.' .r^-;-^- ] 3——.— i££g^;^^^^E^^--E=£uss...i»u, 3. In order to seek benefit of the provisions contained in the Chhattisgarh Prisoners Reiease on Probation Act, 1954 (hereinafter referred to as ' the Act of 1954'), petitioner submitted an application under Section 2 ofthe said Act before the Probation Board for his reiease by grant of iicense on such condition, as may be imposed. That appiication was rejected by the Board, which was communicated to the petitioner on 6/9/01, by recording reasons as contained in the minutes of meeting of the Board, filed as Annexure P/2. The rejection of the &pplication was cailed in question by filing a writ petition i.e. W.P.No.2325/01 which was eventuaily disposed off vide order dated 6/12/05. The order was quashed and the Probation Board was directed to reconsider the request of the petitioner for release on iicense under the Act of 1954, strictiy in conformity with the provisions or the Act and in the light of the observations made in that order. 4. After the order passed by this Court as aforesaid, the Board considered the case of the petitioner and a fresh decision was taken, not to release the petitioner.communicated vide ~\ 4/2/07 (Annexure P14). it is this decision and order, which is under chaltenge in this petition. 5. Shri Rajeev Shrivastava, iearned counsel for the petitioner vehementiy argued that the new decision takenand order passed by the respondents is not only iilegai and violative of the provisions contained in Section 2 of the Act of 1954 but also noi in accordance with the observations made by this Court eariier in its order dated 6/12/05 in W.P.No.2325/01. Learned counsei for the petitioner wouid contend that this Court while aiiowing the earlier petition, observed that the Probation Board cannot act, arbitrariiy or unreasonably and the operative reason for rejection of eariier appiication was found to have rested soieiy on the subjective satisfaction of the Probation Board without objective consideration of f^^' K^s SS^^? •/y^ "•*, ^S^SS^sg^ ^ ^' ^ '%e-^.^ ''••^S.sfl^ \v any other reievant materiai. In his submission, while considering the matter afresh after the order of this Court, the Board was obiiged under the iaw to take into consideration. reievant materiais and decide the material after due consideration on objective basis, which has not been done. Learned counsei further submits that even eariier, when the decision was taken in the year 2001, the Board did consider the circumstances in which ofrence of murcter was committed, therefore, rejection of the application on considerations of gravity of ;offence, was not permissibie and infact in this process, the Board has made an attempt to overreach the orders and proceedings of this Court. Learned counsei for the Detitioner submits that the entire exercise which has been done whieh culminated in issuance of impugned order is nothing but a subjective satisfaction without any materiai, repeating the iliegality committed eariier, in the teeth of observations by this Court. 6. On the other hand, iearned Deputy Advocate Generai would submit that after the order was passed by this Court eariier in W.P.No.2325/01, the matter was reconsidered by the authority strictly in accordance with law and the observations made by this Court whereafter, it was found that the circumstances in which the offence was committed, reflected that a heinous crime was »- committed and considering the gravity of offence, the Board arrived at the conciusion that the petitioner was not entitied to benefit of reiease on license under the provisions ofthe Act of 1954. 7. I have considered the submissions made by learned counsel for the parties and perused the records. ;;^^@K;i^RBjl^^^l^^^ ^•'^^sftS^SgS^^s^s^^ff .'.^:\. ''-^- ' '"^. ;j •...^,...^''' 8. At the first instance, whiie rejecting the petitioners application for reiease on probation, the Board had recorded that his antecedents were not proper and it was a case of pianned murder. A subjective satisfaction was arrived at that it is the primary responsibilify of the State to maintain iaw and order and to protect the iife of the prisoner, release of the petitioner wouid not be proper. It was in this background of the decision taken by the Board that this Court held that the reason given by the Board rested on the subjective satisfaction and not on the oojective consideration of any reievant material. 9. The observations made by this Court obiiged the Board to consider the matter in a reasonabie manner, free from arbitrariness and on objective consideration of any reievant matenas and in conformity with the provisions of the Act. The impugned decision taken by the Board records that the petitioner had committed rape on the deceased-Kunti Bai and thereafter, kerosene was poured on her and she was set on fire. Taking into consideration the circumstances of the crime, the Board came to the conclusion that as the nature of crime was heinous and it is of grave nature, the application is iiabie to be rejected. The minutes qf the meeting, piaced on record by the respondent as Annexure R/1 supported the communications made to the petitioner vide Annexure P/4. The circumstances of the crime in which the conviction has been ordered. are reievant for consideration in view of the provisions contained in Section 2 of the Act of 1954. Section 2 of the Act provides that where a person is confined in a prison under a sentence of imprisonment and it appears to the Government from his antecedents and his conduct in the prison that he is likely to abstain from crime and iead a peaceful iife, if he is reieased from prison, the Government may, by iicense, permit him to be reieased on conditions stated therein. r.l -:K:'.:J^ /SF Therefore, in the maiter of formation of an opinion, the antecedents and the conduct in the prison are reievant for consideration. The word "antecedents" which occurs in Section 2 of the Act has been interpreted by a ruli bench of ths High Court of Madhya Pradesh in the case of Ganaacharan Baijnath Prasad v. State of Madhva Pradesh and others, 1994 MPLJ 792, wherein it was hetd - "9. There is no togic in restricting the sweep of the word "antecedents" to the perioci prior to the commission of crime. A person who commits a crime may be at iarge for a considerable period or he might have been in judiciai custody for a considerabte period. It may be that conviction takes piace severai years after the crime. Legisiative intention could not have been to ignore as irreievant the conduct ofthe Drisoner between the date ofthe crime and the date of his entry into prison. So aiso, the nature and circumstances of the crime cannot be irreievant in deciding whether a prisoner is to be reieased on iicense. Background, sstting and modus operandi of crimes couid be different. A crime can be carefuiiy premeditated and sxecuted or ii can be committed on the spur of the moment. A crime can be committed for strong motive or for insignificant or no motive. A crime may be gruesome or otherwise. it may be committed for monetary gain or for no gain. The cireumstances of the crime wili be heipfui in throwing a flood of iight on the personaiity of the criminai. it couid not be the legisiative intention to ignore these vaiuabie ciues to his personaiity. The decision of the government to reiease or not is dependent on its opinion whether the prisoner is likely to abstain from crime and iead a peaceable iife. The opinion is to be based on the consideration of his antecedents and his conduct in prison. Ail aspecis of his antecedsnts preceding his entry into prison-which wili inciude antecedents prior to the crime, the circumstances of the case- conduct subsequent to crime and in prison have to be taken into consideration in the process of formation of opinion on the cruciai question whether he is likely to abstain from crime and iead a 1 peaceable life. No aspect by itseif may be decisive. No aspect is ^^-^^t.. to be ignored. The totai picture and the coiours which go to make up the picture are reievant. This is implied in the words used in Section 2 as weli as the Hindi text ofthe provision. 10. The crucial words in Section 2 are "from his antecedents and his conduct in the prison." There was a view presented before the refemng Bench that the antecedents must be connned to his tife in prison. Such a view would be wholiy iiiogical. The Legislature has not stated "from his antecedents and conduct in the prison". The word "his" has been used twice, to qualify "antecedents" as weli as "conduct in prison". The expression "his antecedents" by itseif is capable of comprehending within its ambit "his conduct in prison" aiso since "antecedents" would mean "antecedent to fne consideration by the State Government of the prisoners request for reiease." The Legislature evidentiy desired to give due importance to "conduct in prison". That must be the reason why words "his conduct in prison" have been incorporated in the provision though even in the absence of such words, his conduct in prison being antecedent to the conviction, wouid be reievant. There is nothing in the scheme of the Act or the Drovision of Section 2 of the Act to indicate that "antecedents" are restricted to any period. By "antecedents" is meant, "anteceaents" before his entry into prison, whether before or afEer the crime which ied to the conviction. That the Statute is based on the reformatory aspect of penoiogy is no reason to hoid that the expression "antecedents" shouid be confined either to the period prior to the commission of the crime or to the period spent in prison. 11. We, therefore, hold that the word "antecedents" relates to the period prior to the commission of the crime, fte circumstances underwhich the crime was committed and the period subsequentto the commission ofthe crime." 10. Therefore, the antecedents would also include the circumstances in which the crime was committed. From the order passed by the Board, it is found that DeepE! the operative reason for rejection or the apptication is consideration or the cireumstances of commission of crime. Therefore, this Court is of the considered opinion that the consideration was retevant and cannot be said to be extraneous nor vioiative of the provisions contained in Section 2 of the Act of 1954. This asoect of the matter was neither considered nor was made a basis ror reiection of the appiication earfier. in this petition under Articie 226 of the Constitution of india, this Court wouid not interfere with the decision taken by the statutory authority uniess the same is either vioiative of ths provisions of iaw or unless there is defect in the decision making process itself or untess the orders suffer from arbitrariness or unreasonabieness. Certainly, the writ Court wouid not act as an appeiiate authoriiy to substitute its own opinion in the place of opinion formed by the statutory authority on the basis or some materiai, which is reievant for taking decision. 11. As an upshot of discussion as above, i do not find any iiiegality in the order passed by the respondent. The petition is therefore dismissed. 12. Learned counsei for the petitioner, before parting wsffi\ the case prayed for ciarification that this order may not come in the way of consideration of the case y- or the petitioner after expiry of two years as provided in Rule 6 Sub-Ruie 7 of Chhattisgarh Prisoners Release on Probation Act, 1954 (Annexure R/2). 13. Prayer appears to be reasonabie. 14. it is clarified that this order would not come in the way of fresh consideration ofthe case of the petitioner, in accordance with taw. Sd/- M.M. Shrivastava Judge