^ .c -^ • \° •^•^i L. . i^.:.. •*^- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR rC.G.1 ^(c^) '^-,,._ ' _ WRIT PETITIONCeiNo.; - ^>^11 2011. SA PETITIONER: [In Jail ] ^^ ly ^b^' .A .-••'rtC.^ „ n/<S\ .' $P^' "-V ^y ^ ^ ^ Khoman Bharti, Aged about- 55 years, S/0- Shri Tikam Bharti, At Present in CentraiJail-Ralpur, Prisoner No.1140/99, Throygh His Brother-Umesh Bharti Goswami,S/0 Shri Tikam Bharti, R/0:- Village- Jhalkhamariya, P.S.-Jhalkhamariya, Tahsil-Mahasamund, Disft. Mahasamund [Chhattjsgarh] -:VE RSUS:- RESPONDENTS: - 1. Stateof Chhattisgarh Through the Jail-Secretary, Home-Department, D.K.S. Mantralaya Bhavan, Raipur (Chhattisgarh). ,2. TheSuperintendent, Central-Jail- Raipur, Raipur Dlstrict Raipur [C.G.] 3. The PFObation-Officer (Welfare ^ Probation Officer) Chhattisgarh Rajya Pariviksha Mandal, Jail-Department, Raipur (C.G.) 4. Somdas Goswami,Age-58 Years, S/0 Shri Khuman Das Goswami, R/0-54/1225, ShantiVihar Colony, DanganiYa, Raipur (Chhattisgarh). WRIT L'>ETITION UNDER ARTICLE 226 QF THE CONSTIT'JTION OF INDIA^@R THE ISSUANCijOF iOEECTION (S1 OR ORDER (S). 70 HiGHCOURT OF_CHHATnSGARH : BILASPUR WRIT PETITION (Cr.) N0.5534 OF 2011 PETITIONER Khoman Bharti (In Jail) RESPONDENTS Versus State of Chhattisgarh & Others (Writ Petition underArticle 226 ofthe Constitution of India) Single Bench : Hon'ble Shri Satish K. Agnihotri, J. Present:- Shri J.A. Lohani, Advocate for the petitioner. Shri V.V.S. Murthy, Dy. Adv. General forthe State. •ORDER (Passed on this 26th day of September, 2011) 1. Learned counsel appearing for the petitioner submits that the petitioner as well as respondent No.4 herein were convicted under Sections 302 & 201 of the Indian Penal Code (for short "IPC") and were senteneed to undergo imprisonment for life & to pay a fine of Rs.5,000/- each, in default of payment offine to further undergo R.l. for two years under Section 302 ofthe IPC and to undergo R.l. for two years & to pay a fine of Rs.1,000/- each, in default of payment of fine to further undergo R.l. for six months under Section 201 of the IPC by the 1 Additional Sessions Judge, Baloda Baz.ar, by judgment dated 14-10-2004 passed in Sessions Case No.243/2003. 2. Against the said Judgment ofconviction & order of sentence, the petitioner as well as respondent No.4 preferred appeals before this Court, which were dismissed by the common judgment. The petitioner is in Jail since 3-6-2003. By order dated 5-11-2009 the , co-accused i.e. respondent No.4 has been released from jail after completion of 6 years 5 months & 3 days by mentioning that he has completed more than 8 years jail sentence. 3. Therefore, on the said basis, the prisoner i.e. petitioner moved an application for his release on probation under the provisions of the M.P. Prisoners Release on Probation Act, 1954 (for short 'the Act') and his request has been rejected by the Probation Board by its order dated 28-5-2010 (Annexure P/3) on the ground that he has not completed 7 years jail sentence and he has committed heinous crime. Even the widow of the deceased has also raised an objection for releasing the petitioner on probation. ?/ 4. On the other hand, learned counsel appearing for the State/respondents supported the order dated 28-5-2010. 5. Heard learned counsel appearing for the parties, perused the pleadings and documents appended thereto. 6. At the first instance, while rejecting the prisoner's application for release on probation, the Board has recorded that he had committed a grave offence. It is true that the Probation Board is not bound by the recommendations of the District Magistrate or the Superintendent of Police and it can take its own decision on the basis of materials resting with it but at the same time, it needs to be noticed that the Probation Board cannot act arbitrarily or unreasonably. The reason given by the Probation Board is only that the prisoner had committed a very heinous crime and has not completed 7 years jail sentence. 7. -' This Court exercising its Jurisdiction under Article 226 of the Constitution of India would not interfere with the decision taken by the statutory authority unless the same is either violative of the provisions of law or unless there is defect in the decision making process itself or unless the order suffers from arbitrariness or unreasonableness. Certainly, the writ Court would not act as an appellate authority to substitute its own opinion in the place of opinion formed by the statutory authority on the basis of some material, which is relevant for taking decision. 8. As a result, 1 do not find any illegality in the order passed by the respondent. The petition is accordingly dismissed. 9. However, before parting with the case, on the request of learned counsel appearing for the petitioner, the prisoner is at liberty to make an application for his release on probation before the Chhattisgarh State Probation Board and the Board may reconsider the same, in accordance with law and on its own merits. Sd/- Satish K. Agnihotri Judge