Holding

The Supreme Court set aside the High Court's order granting release on probation, directing a rehearing in accordance with the criteria articulated in Arvind Yadav v. Ramesh Kumar.

Summary

The State of Madhya Pradesh appealed against a High Court judgment that granted Abdul Kadir, a life convict for murder, release on probation under the Madhya Pradesh Prisoners (Release on Probation) Act, 1954. Although the District Magistrate and Superintendent of Police recommended release, the Probation Board rejected the application and the State Government accepted the Board’s decision. The Single Judge of the High Court, and subsequently a Division Bench, ignored the Board’s reasons and ordered release. The Supreme Court held that the High Court failed to consider the Probation Board’s findings and therefore set aside its order, directing the High Court to rehear the matter on condonation of delay in line with the parameters laid down in Arvind Yadav v. Ramesh Kumar. The appeal was allowed.

Issues considered

Whether the High Court correctly granted release on probation without examining the Probation Board's reasons for rejection.
Whether the order of the Probation Board can be set aside by the court.
Whether the parameters established in Arvind Yadav v. Ramesh Kumar apply to this case.
Procedural propriety regarding condonation of delay in the Letters Patent Appeal.

Legislation cited

Indian Penal Code, 1860s. 302, s. 304-8, s. 307, s. 325, s. 394, s. 498-A

Subjects

release on probationlife imprisonmentmurderprobation boardcondonation of delaySupreme CourtHigh Courtprocedural fairness

Judgment

[2009] 2 S.C.R. 430

A STATE OF M.P.
V.
ABDUL KADIR & ANR.
Criminal Appeal No.1289 of 2002
FEBRUARY 13, 2009
B
[DR. ARIJIT PASf:>..YAT AND ASOK KUMAR GANGULY,
JJ.]
. Madhya Pradesh Prisoners (Release on Probation) Act,
1954 -Release on probation - Entitlement to - Murder - Life
•, c convict - High Court did not disc.uss the order 9f Probation
Board and the reasons given by it for rejecting
recommendation for his release on probation - Held : High
· Court did not consider the issues in the proper perspective -
Directed High Court to re hear the matter, keeping in view the
D . parameters indicated by this Court in Arvind Yadav's case.
Respondent is a life convict. The District Magistrate
and the Superintendent of Police recommended his re-
lease. on probation. But the Probation Board did not ac-
E cept the recommendations. The State Government ac-
cepted the recommendations of the Probation Board.
Respondent filed writ petition seeking release under the
provisions ·of the Madhya Pradesh Prisoners (Release on
Probation) Act, 1954 and the Rules made thereunder. A
Single Judge of the High Court held that Respondent was
F · entitled to release on probation. The order was upheld by
the Division Bench in Letters Patent Appeal. Hence the
present appeal.
Allowing the appeal, the Court
G HELD: Neither the Single Judge nor the Division
Bench of the High Court discussed the reasons indicated
by the Probation Board. The opinion of the Board shows -•
that taking into account the gruesome nature of the

H 430
--:.. ·
STATE OF M.P. V. ABDUL KADIR & ANR. 431

murder and the background in which the murder was A
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

• I

'I
..
set aside the order of the Probation Board. In fact, there B
is no such finding or conclusion recorded by Single
Judge. Since the High Court has not considered the
issues in the proper perspective, it is directed to re hear
the LPA on condonation of delay, keeping in view. the
parameters indicated by this court in Arvind Yadav's case. c
[Paras 5, 6] [432-F, G; 435-C, D]
Arvind Yadav v. Ramesh Kumar (2003) 6 SCC 144 -
relied on.
Case Law Reference
D
~
.'>
(2003) s sec 144 relied on Para 5
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 1289 of 2002
---\
i
From the final Judgement and Order dated 5.12.2001 of
the High Court of Madhy Pradesh, Indore Bench in Letters Patent E
Appeal No. 412 of 2001.
,,. Vibha Datta Makhija, for the Appellant.
S. Janani, for the Respondent.
The Judgement of the Court was delivered by F
DR. ARIJIT PASAYAT, J.

~ 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 G
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 Pradesh Prisoners (Release on
H
432 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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.
B 2. Learned Single Judge by a practically non-reasoned
o·rder 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
C 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 t-
Appeal.
3. Learned counsel for the appellant submitted that neither
D 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
E service of notice.
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
F background in which the murder was committed, the
recommendations were not accepted. The State Government,
Jail Department accepted the recommendations of the
~robation Board. The Division Bench erroneously observed that
the Single Judge had set aside the order of the Probation Board.
G 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 th is court in Arvind Yadav v. Ramesh
Kumar [2003(6) SCC 144] in paragraphs 6, 7 &8 it was held as
follows:
H "6. We are unable to sustain the impugned judgment of
STATE OF M.P. V. 433
ABDUL KADIR & ANR. [DR. ARIJIT PASAYAT J.]

..!-.
the High Court. Each of the convicts before the High Court A
had been found guilty of commission of serious crime.
The impugned judgment notices that offences against the
convicts were under Sections 302/307/394/304-8/498-
A/325 of the Indian Penal Code and the convicts were
serving their respective sentences in jail. In all the cases B
before the High Court, the recommendations of the
Probation Board that had been accepted by the State
f 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
c
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
D
+
• 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 E
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 F
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
G
__. 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
H
434 SUPREME COURT REPORTS [2009] 2 S.C.R;

A 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 flied under various sections
of the Indian Penal Code. The manner of commission of
B crime is a relevant consideration. lh a given case; the
manner of comniissiori of offence may be so brutal that it
by itself may be a good sole ground to decline the licence
y
to release. The Rules provide for a detailed procedure for ,;_

consideration of application for release; Once rejected,
"
c 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
D 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
E 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 .
J,
victim. The facts are required to be examined in every
F 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 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
G
again, by itself, may not be decisive. In a nutshell, the facts -}-
4_,

and circumstances of each case have to be taken into
consideration individually. Likewise, the mere fact that one
of the members of the Boa~d or the District Magistrate or
the Superintendent of Police or the Panchayat has
H
c
_,

STATE OF M.P. V 435
ABDUL KADIR & ANR. [DR. ARIJIT PASAYAT J.]

,,.._ recommended release is by itself of no consequence. A
-I
The recomrnendatiqn is of the Board and not of an individual
member cind the decision is to be taken having regard to
-t all the relevant factors. fhe State Government and the
Board have to take into consideration not only the conduct
of the convict but also his criminal antecedents; the effect B
. of such release on the victims or their family; the propensity
of the convict to commit further criminal act and other
i
similar factors which may be considered relevant. The
• order of the State Government cannot be interfered with
only because another view is possible." c
6 . Since the High Court has not considered the issues in
!he prpper perspective, we set aside the impugned order of the
Pivjsion Be.nch and we direct it to re hear the LPA on condonation
of delay, keeping in view the parameters indicated by this court
• j_n Arvind Yadav's case (supra). D
~
7. The appecil is allc;>wed to the aforesaid extent.

B.B.8. Appeal allowed .

....

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