Supreme Court of India

ARVIND YADAVversusRAMESH KUMAR AND ORS.

Citation: 2003 INSC 260
Decided: 28 April 2003
Disposal: Appeal(s) allowed
Bench: Y K SABHARWAL

Holding

Release on licence is permissible only on the recommendation of the Probation Board and approval of the State Government; where the Board refuses, the matter must be remanded for fresh consideration, and the High Court’s order directing release is set aside.

Summary

Arvind Yadav, brother of a murder victim, challenged a Madhya Pradesh High Court order that released several convicted murderers, including Ramesh Kumar, on licence despite the Probation Board’s refusal to recommend release. The High Court had bypassed a remand to the State Government, reasoning that a fresh consideration would cause delay and injustice. The Supreme Court held that release on licence is permissible only on the Probation Board’s recommendation and State Government’s approval; individual recommendations of magistrates or police are irrelevant. It emphasized that each case must be examined on its own facts and that the State Government’s decision cannot be set aside without a fresh, unbiased review. Consequently, the Court set aside the High Court’s order, directed the State Government to reconsider the applications afresh, and ordered the released convicts to surrender.

Issues considered

Whether the High Court could directly order release of convicts on licence despite the Probation Board’s non‑recommendation.
Whether individual recommendations of the District Magistrate, Superintendent of Police or Panchayat have any legal effect in the release process.
Whether the State Government’s decision to reject release can be interfered with on grounds of alleged arbitrariness without a fresh remand.
Whether the rights of victims and their families can override the statutory procedure for release on licence.
Whether the Supreme Court should set aside the High Court’s omnibus order and direct fresh consideration by the State Government.

Legislation cited

Indian Penal Code, 1860s. 302, s. 304, s. 307, s. 325, s. 394, s. 498

Subjects

Probation BoardRelease on licenceMadhya Pradesh Prisoners Release on Probation ActArbitrarinessVictim's rightsRemandHigh Court jurisdictionSupreme Court review

Judgment

ARVIND YADAV A
V.

RAMESH KUMAR AND ORS.

APRIL 28, 2003

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

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 ofthe 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.
F
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 non-
application of mind and arbitrariness on the part of the Probation Board
1005 H
1006 SUPREME COURT REPORTS [2003] 3 S.C.R.

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(
D
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. F
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.
G
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
1008 SUPREME COURT REPORTS 120031 3 S.C.R.

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 f~ctors, 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 I0 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 I0
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 ca~es, 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
1010 SUPREME COURT REPORTS 12003] 3 S.C.R.

A 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
B 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
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
t'
supporting release may not be sufficient, by itself, so as to direct the release H
1012 SUPREME COURT REPORTS [2003] 3 S.C.R.

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.
D
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
E 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.
F
S.K.S. Appeals allowed.

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