ARVIND YADAV

RAMESH KUMAR AND ORS.

APRIL 28, 2003

[Y.K. SABHARWAL AND H.K. SEMA, JJ.]

Madhya Pradesh Prisoners Release on Probation Act, 1954 and rules thereunder:

Murder-Conviction by the trial court-Pending appeals in the High C Court, application for release on licence flied by the accused-probation Board passing an order not recommending release of convicts-Affirmed by the State -Challenge to--Dismissed by the Single Judge of the High Court- Reversed by the Division Bench of the High Court directing release of the convicts on the ground that Probation Board had not applied its mind and D acted arbitrarily-On appeal, Held: accused have no indefensible right to be released except for release on licence on the recommendations of the Probation Board and approval of the State Government thereon-Individual recommendations of authorities/members is of no consequence-State Government/Board considers relevant facts before recommending/not recommending for release-High Court on noticing flaws in the E recommendations could appropriately remand the matter to State Government!

Board for consideration afresh and could have refrained itself in examining the facts except for strong cogent reasons-Hence malter remanded to State Government to decide afresh-Directiorls issued-Penal Code, 1860- Sections 302, 304, 307, 325, 394 and 498-A.

Respondent, one of the accused in a murder case, was convicted by the Court of Sessions, against which an appeal was pending before the High Court. Jn the meanwhile, an application for release on licence was filed by

the convict under the provisions of Madhya Pradesh Prisoners Release on

Probation Act and Rules the Probation Board did not recommend the G release of the convict. The order was affirmed by the State Government.

Respondent and other convicts challenged the order. Single Judge of the High Court dismissed the writ petitions. On appeal, the Division Bench of the High Court directed the release of the convicts on the ground of nonapplication of mind and arbitrariness on the part of the Probation Board

1005 H

A in not recommending their release on licence. Hence the present appeals.

Allowing the appeals, the Court

HELD: I.I. The High Court without examining the facts of the individual case held that the District Magistrate, Superintendent of Police and Panchayat had recommended the release on probation but the Board, B without recording any reason, did not accept those reports and the State

Government simply accepted the recommendations of the Board and that the allegation of non-applicability of mind and arbitrariness was clear from the order of the State accepting the recommendations of the Board; and that since the remand to the State Government for fresh consideration C would delay the matters and cause further injustice to the convicts, The High Court directed the release of each of the appellants in the Letters Patent Appeals by a single omnibus order instead of remanding the cases to the State Government. Each of the convicts had been found guilty of commission of serious crime and they were serving their respective sentences in jail. In all these cases, the recommendations of the Probation D Board that had been accepted by the State Government were against the release of tht: convicts. If there was non-application of mind to the relevant considerations, the appropriate course was to remand the case for fresh decision by the authorities except, if in a given exceptional case, for strong cogent reasons, the High Court might have examined itself the relevant facts E and quashed the order declining the release. Instead, the High Court has made a general observation that the remand to State Government for fresh consideration is bound to delay the matter causing further injustice to the convicts. (1010-E-H; 1011-A(

1.2. There are factual infirmities in the impugned judgment. It is also F to be borne in mind that the victim and the family of the victim who have suffered at the hands of the convict have also some rights. The convicts have no indefensible right to be released. The right is only to be considered for release on licence in terms of the Madhya Pradesh Prisoners Release on Probation Act and the Rules. The Probation Board and the State G Government are .required to take into consideration the relevant factors before deciding or declining to release a convict. The Probation Board had not recommended the release. The State Government had confirmed the order of the Board and that the stand of the State Government was that the respondent along with six others had formed an unlawful assembly and murdered the deceased causing 17 injuries on him with swords, knives and H gupti and that the respondent was the accused in 14 cases filed under

ARVlNDYADAV v. RAMESH KUMAR (SABHARWAL .I.) 1007

various sections of the Indian Penal Code. The manner of commission of A crime is a relevant consideration. Since the manner of commission of offence was so brutal that by itself might be a good rnle ground to decline the licence to release. (1011-B-D]

1.3. The facts and circumstances of each case have to be taken into consideration individually. Likewise, the mere fact that one of the members B 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 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 C 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. (1012-A-C(

1.4. The State Government is directed to decide afresh the question of release of the convicts in. accordance with law after taking them back into custody and without being influenced by any observation on merits made by the High Court or this Court. (1012-DI

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. E 641-652 of 2003.

From the Judgment and Order dated 11.4.2002 of the Madhya Pradesh High Court in LP.A. Nos. 6, 612, 224/2002, 284, 254/2001, 212, 122, 128, 59, 137, 121/2002 and 245 of 2001.

R.P. Gupta, Uday Umesh Lalit, R.K. Rathore, Sakesh Kumar. Ms.

Kamakshi S. Mehlwal, A.P.Sahay for C.S. Ashri, S.K. Sabharwal, Vishwajit Singh, D.D. Bhargav, U.B. Chaurasia, Shiv Sagar Tiwari, B.S. Rajesh Roshan, Y.K. Prasad, Varinder Kumar Sharma for the appearing parties.

The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. Leave granted.

By the impugned common judgment, the High Court allowed number

of Letter Patent Appeals and directed the authorities to release all the H

A appellants, who were before the Division Bench, from prison within a period of 15 days. In criminal appeal arising out of SLP (Crl.) No. 3759/02, the judgment of the High Court directing release of Ramesh Kumar who was found guilty of offence under Section 302 !PC for murder of deceased Jitendra, has been challenged by his brother-Arvind Yadav on permission granted to him to file the Special Leave Petition. The State has also filed appeal B challenging the direction of the High Court for release of Ramesh Kumar

(Crl. A. arising out of SLP (Crl.) No. 4397/02. The directions of High Court to release other convicts are subject matter of challenge in connected appeals.

The crime was committed in the year 1994. The Sessions Court, by C judgment and order dated 26th August, 1997 convicted Ramesh Kumar for offence under Section 302 !PC. The appeal filed by Ramesh Kumar challenging his conviction is pending before the High Court. Release from prison has been sought by Ramesh Kumar under Madhya Pradesh Prisoners' Release on Probation Act, 1954 and the Rules framed thereunder. Under the Act, release on licence is not for a limited period and is for entire duration of the sentence D or until the licence to release is revoked. The Probation Board under the Act and the Rules did not recommend the release of the convict. The orders of the Probation Board dated 10th April, 2001 and affirmed by the State Government on 25th April, 2001 were challenged by the convict in the High Court in Writ Petition No. 4532/01. The writ petition was dismissed by a E learned Single Judge holding that the Board had taken note of factual scenario and had observed that the convict along with others had preplanned murder of the decease and committed the murder in most cruel manner by lethal weapons and that the manner in which the murder is committed comes within the realm of 'antecedents'. It was held that the order passed by the Probation Board was just and proper and did not call for interference and accordingly F the writ petition was dismissed.

The Division Bench in the judgment under appeal allowing the Letter Patents Appeals has observed that the opinion to release or not is to be based on consideration of all the aspects of convict's antecedents preceding his entry into prison including antecedents prior to 'the crime; circumstances of G the case; conduct subsequent to crime and in prison and no single aspect by itself would be decisive nor can it be ignored and the total picture is relevant.

The Division Bench has also observed that for formation of opinion, it is also to be considered \Vhether the convict would abstain from the crime, lead peaceful life if released no probation and not repeat the offence and revert H back to the life of criminality and has no potentiality to commit crime. The

ARVIND YADAV 1. RAMES! I KUMAR !SABI IAR\\'AL. .I.] ] 009

other aspects that can be considered are age, his soc'ial and economic A conditions, the relationship with the family of the victim etc. and on consideration of other similar fctors, opinion is required to be formed whether the convict is entitled to premature release on licence under the provisions of the Act or not. Having reached the aforesaid conclusions, the learned Division Bench noticed that in all cases, Superintendent of Police, District Magistrate B and Probation Officer had recommended the cases of petitioners for release on licence and in cases noticed in para I 0 of the impungned judgment, the non-official member of the Board had recommended the release of convicts on probation and in none of the cases the relation of the victims had objected to their releases on probation and that there was no evidence suggesting extreme brutality in the commission of crime. It would be useful to reproduce C the reasons that prevailed with the Division Bench in directing the release of all the appellants who had filed letters patent appeal, as contained in para I 0 of the impugned judgment which reads as under:

"Having come to the aforesaid conclusion, we advert to these appeals.

At the cost of repletion, the offences aga"inst prisoners are under D Sections 302/307/394B/498A/325 etc. Indian Penal Code. They are lodged in jail, serving their respective sentences. They are qualified for applying for release on licence under the Probation Act 1954. In all the cases the Superintendent of Police, District Magistrate and Probation Officers have recommended the cases of petitioners/ E appellants for release on licence. In Letters Patent Appeal No. 255 of 2001 (Anil Kumar v. State ofM.P.) L.P.A. No. 284 of2001 (Ram Raj

v. Stale of M.P.) L.P.A 304 of 2002 (Manohar v. State of M.P.) L.P.A No. 6 of 2002 (Ramesh Kumar v. Slate of MP.) L.P.A. No. 12 of 2002 (Manohar and Other v. State of M.P.) L.P.A. No. 59 of2002 Hari alias (Harish Chand v. State of M.P.) L.P.A. No. 122 of 2002 F (Gheese Lal v. State of M.P.) L.P.A No. 128 of 2002 (Raj Kumar v.

State of M.P.) and L.P.A. No. 137 of 2002 (Rajesh and Ors. v. Stale of M.P.) the non-official member has also recommended their release on probation. In none of the caes, the relations of victims have objected their release on probation. In none of the cases, the relations G of victims have objected their release on probation. Rather, in some of the cases, namely, L.P.A. No. 224 of 200 I (Shambhu Prasad alias Choota v. Slate of MP.) Smt. Sonia (wife of deceased) Shri Ramanuj (son of deceased) and Shri Brajwasi (brother of deceased) speak for his release on probation and Bhagwandin, co-accused has since been released on probation by the State Government. Similarly Shyamlal H

co-accused in L.P.A. No. 255 of 200 I (Anil Kumar v. State of M.P.) because of whom the quarrel stai1ed has also ben released on probation.

In L.P.A. No. 237 of2001 (Makhhan v. State ofM.P.) son of deceased has not objected to the release of prisoner on probation by furnishing document executed in presence of Sarpanch, Gram Panchayat Batori.

In all these cases, there is no evidence of involvement of any of the accused in any other crime or of leading life of criminality prior to the commission of the crime involved in these appeals. There is no evidence suggesting extreme brutality commission of the crimes which have been committed in routine manner, nor there is evidence of bad antecedents after commission and lodgment in prison. There is no C whisper from any person, relation or witness suggesting or indicating repetition of crime by the prisoner, causing of violence, propensity to commit breach of peace, nor the abnormality of crime is such which is likely to affect the society."

The High Comt did not examine the facts of each case. By a common D judgment, without examining facts of individual case, the High Court held that the District Magistrate, Superintendent of Police and Panchayat had recommended the release on probation but the Board, without recording any reason, did not accept those reports and the State Government simply accepted the recommendations of the Board and that the allegation of non-applicability E of mind and arbitrariness was clear from the order of the. State accepting the recommendations of the Board. Further, observing that the remand to the State Government for fresh consideration would delay the matters and cause further injustice to the convicts, the High Court, instead of remanding the cases to the State Government, directed the release of each of the appellant in the Letter Patent Appeals by a single omnibus order.

F We are unable to sustain the impugned judgment of the High Court.

Each of the convict 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 302/307/394/304B/498A/325 of the Indian Penal Code and the convicts were serving their respective sentences in jail. In all G 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 H cogent reasons, the High Court may have examined itself the relevant facts

' ' t'

ARVINDYADAV v.RAMESHKUMAR[SABHARWAL, J.] 1011

and quashed the order declining the release. The High Court instead of adopting A this course, has made a general observation that the remand to State Government for fresh consideration is bound to delay the matter causing further injustice to the convicts.

Apart from the fact that there are factual infinnities in the impugned judgment, it is also to be borne in mind that the victim and the family of the B victim who have suffered at the hands of the convict have also some rights.

The convicts have no indefensible 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 C 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 ofShashi Mohan D Yadav on 20th September, 1994 in Hoshangabad, Madhya Pradesh causing 17 injuries on him with swords, knivas and gupti and that Ramesh Kumar was the accused in 14 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 E itself may be good sole ground to decline the licence. to release. The Rules provide for detailed procedure for consideration of application for release.

Once rejected, again application of release can be made after two years. The Board comprises of Home Secretary of State Government or any other empowered officer, !.G. of Prisons or Deputy l.G. and another member.

F 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 G High Court also committed factual error in observing that notice had been issued to the family members of the victims. 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 objecting or were supporting release may not be sufficient, by itself, so as to direct the release H

A 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 nutshell, the f.j!cts 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 B Superintendent of Police or the Panchayat has recommended release Ifs by

itself of no consequence. The recommendation is of the Board and not of 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 C propensity of the convict to commit further criminal act and dther similar

factors which may be considered relevant. The order of the State Government cannot be interfered with only because another view is possible.

Having regard to the aforesaid, we are unable to sustain the impugned judgment of the High Comt. It is accordingly set aside.

We direct the State Government to decide afresh the question of release Ji the convicts in accordance with law without being influenced by any observation on merits made by the High Court or this Court. The convicts released pursuant to the impugned judgment are directed to surrender forthwith failing which, immediate steps shall be taken to take them into custody. The State Government shall consider afresh the cases of the convicts for release only when they are in custody undergoing the remaining part of sentence. On surrender/arrest of the convicts, the State Government. shall decide their respective case within two months.

The appeal are accordingly allowed.

S.K.S.

Appeals allowed.