Holding

The circular is ultra vires and illegal; it cannot prohibit the filing of an application for release on probation.

Summary

The respondent, convicted of murder and sentenced to life imprisonment, applied for release on probation under the Madhya Pradesh Prisoners' Release on Probation Act, 1954. The State issued a circular on 3 August 2005 stating that convicts whose bail applications were rejected and whose appeals were pending could not even file an application for release on probation. The respondent challenged the circular before the High Court, which quashed it as sweeping, inconsistent with the Act and Rules, and based on a misinterpretation of an earlier High Court decision. The State appealed to the Supreme Court, arguing that the circular merely implemented the parameters highlighted by the earlier decision. The Supreme Court held that the earlier decision only identified considerations for granting probation and never barred the filing of an application; consequently, the circular was ultra vires and illegal. The Court dismissed the appeal, affirming that there is no prohibition on making an application for release on probation, though the merit of each application remains a separate question.

Issues considered

Whether the circular issued by the Inspector General of Prisons is valid under the Madhya Pradesh Prisoners' Release on Probation Act, 1954 and the corresponding Rules.
Whether a government circular can bar a convict from filing an application for release on probation when the convict's bail application has been rejected and an appeal is pending.
Whether the earlier High Court decision cited by the State authorises such a restriction.

Subjects

release on probationcircularultra viresMadhya Pradesh Prisoners' Release on Probation Actbailpending appealadministrative lawwrit petition

Judgment

STATE OF M.P. A
v.
KUSUM

JULY 19, 2007

[DR. ARIJIT PASA YAT AND P.P. NAOLEKAR, JJ.] B

Madhya Pradesh Prisoners' Release on Probation Act, 1954-Madhya
Pradesh Prisoners' Release on Probation Rules, 1964-Release on
probation-Circular issued by State stipulating that convicts, whose
applications for bail had been rejected and whose appeals were pending
c
before the Appellate Court, were not entitled to be considered for release on
probation-By the Circular, even making of application for release on
probation was provided to be impermissible-Held: The Circular is liable to
be quashed-There cannot be any bar for making application for release
on probatiorr-Whether prayer contained in the application is to be accepted D,
or not is another question.

A Circular was issued by the State stipulating that convicts, whose
applications for bail had been rejected and whose appeals were pending before
the Appellate Court, were not entitled to be considered for release on probation.
By the Circular, even making of application for release on probation was E
provided to be impermissible.

A writ petition was filed before the High Court questioning the legality
of the said circular. High Court quashed the circular holding that the circular
/: was absoluiely general, sweeping and inconsistent with the Madhya Pradesh F
Prisoners' Release on Probation Act, 1954 and the M.P. Prisoners' Release
on Probation Rules, 1964. The Court held that the concerned authorities
misconstrued an earlier High Court decision which purportedly formed the
foundation of the circular in question. Hence the present appeal.

Dismissing the appeal, the Court
G
HELD: The earlier High Court decision only highlighted the parameters
· of cvnsideration for release on probation. It never held that even making of
an application for release on probation is to be barred. Therefore, the Circular
has been rightly held to be illegal by the High Court. There cannot be any
411 H
412 SUPREME COURT REPORTS [2007) 8 S.C.R.

A bar for making an application. Whether the prayer as contained in the
application is to be accepted or not is another question.
(Paras 6 and 7) (413-H; 414-C, DJ

Arvind Yadav v. Ramesh Kumar and Ors., (200316 SCC 144, referred
to.
B
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 913 of
2007.

From the Judgment & Order dated 06.02.2006 of the High Court of
Madhya Pradesh at Jabalpur, in W.P. No. 1618 of 2006.
c
Govind Goel, C.D. Singh and Sunny Chowdhary for the Appellant.

Shiv Sagar Tiwari and Priyanka Singh for the Respondent.
-"

The Judgment of the Court was delivered by
D DR. ARIJIT PASAYAT,J. I. Leave granted.
+
2. Challenge in this appeal is to the judgment of a Division Bench of
the Madhya Pradesh High Court at Jabalpur quashing the Circular dated
3.8.2005 issued by the State.
E 3. Background facts in a nutshell are as follows:

Respondent is convicted for offence punishable under Section 302 of
the Indian Penal Code, 1860 (in short the 'IPC') and was sentenced to rigorous
imprisonment for life. She filed an application for release under the Madhya
F Pradesh Prisoners' Release on Probation Act, 1954 (in short the 'Act') and
the rules framed thereunder. On 3.8.2005 a Circular was issued by the Inspector
General of Prisons that persons whose appeals are pending before the Appellate
Court are not entitled to be considered for the purpose of release on probation.
The Circular was purportedly issued on the basis of the decision rendered by
a Division Bench of the Madhya Pradesh High Court, Gwalior Bench in Writ
G Petition No.941 of2004 dated 14.10.2004.

Respondent's prayer was rejected by the Probation Board on 8.8.2005.
The State Government formally approved the rejection by rejecting the prayer
for release by order dated 29.10.2005. A writ petition was filed before the High
Court questioning the legality of the Circular dated 3.8.2005. Primary stand
H taken was that the same was contrary to the provisions of the Act. The High
STATEOFM.P. v. KUSUM[PASAYAT.J.] 413
Court noted that the Division Bench in the earlier case had adverted to the A
concept of conditions precedent and the irregularity in release on probation
of certain convicts particularly those whose applications for bail had been
rejected and their appeals were pending. The High Court noted that in the
said case there was a question mark over the decision making process of the
Probation Board as in some cases where prayer for bail had been rejected
convicts have been released on probation. The High Court further noted that B
the concerned authorities by the Circular dated 3.8.2005 have directed that the
Probation Board should not consider the case of convicts whose appeals are
pending in the Hig~ Court. That apart, there has been a direction not to
consider the mercy application for grant of release. According to the tligh
Court, the earlier Division Bench's decision was rendered to curb the illegality C
in the decision making process. But the Circular to the effect that no case
would be considered by the Probation Board where the appeal is pending
could not have been issued. The entertainment of mercy petition was also not
prohibited by the earlier Division Bench. Therefore, the same cannot be
prohibited by the Circular if otherwise entertainable in Jaw. The High Court
noted that the Circular was absolutely general, sweeping and inconsistent D
with the Act and M.P. Prisoners' Release on Probation Rules, 1964 (in short
the 'Rules'). It was noted that the judgment of the earlier decision of the High
Court was mis-construed by the authorities concerned. The writ petition was
allowed by quashing the Circular.

4. In support of the appeal, learned counsel for the appellant submitted
E
that the observations and views expressed in the earlier Division Bench's
judgment have not been properly appreciated by the Division Bench in the
instant case. It has been pointed out that the High Court had deprecated the
practice of releasing the convicts whose applications had been rejected. The
Circular therefore was not illegal and had only encompassed what was decided F
in the earlier case.

5. Learned counsel for the respondent on the other hand submitted that
the High Court i_n the earlier decision had not in any way prohibited making
of an applications. Whether the applications would be entertained and/or
were to be allo~ed or not is another matter. But by the Circular even making G
of an application was provided to be impermissible.

6. The observations of the Division Bench in the earlier decision which
fonn the foundation of the Circular reads as follows:

"It may be mentioned that after rejection of earlier application by the H
414 SUPREME COURT REPORTS (2007) 8 S.C.R.

A subsequent order after the remand, the Board has passed similar order
rejecting the application and Board has not considered the directions
---
given by this Court. We have also issued notice to State to show
cause why persons have been released on 5 years and the reasons
for releasing them on 5 years or 6 years. No explanation has been I
submitted by the respondents. It appears that there are some
B irregularities in the release of probationers on probation particularly
those dreaded criminal whose application for bail has been rejected
and their appeal are pending, they too had been released. This Court
has come across number of appeals thereafter rejection of bail '>-
application the convicts had been released on bail. This act of
c probation puts a question mark on their decision making process."

7. The parameters of consideration were only highlighted by the Division
Bench. It never h~ld that even making of an application is· to be barred.
Therefore, the Circular has been rightly held to be illegal by the High Court.
There cannot be any bar for making an application. Whether the prayer as
D contained in the application is to be accepted or not is another question. It
~
needs no re-iteration that while considering an application the principles set --I-
out by this Court in Arvind Yaden' v. Ramesh Kumar and Ors., [2003) 6 SCC
144 are to be kept in view. Para 7 of the judgment reads as follows:

"Apart from the fact that there are factual infirmities in the impugn-ed
E judgment, it is also 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 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 Government
are required to take into consideration the relevant factors before
F ~
deciding or declining to release a convict. .Jn 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
G Ramesh Kumar, the stand of the State Government was that he along
with six others had formed an unlawful assembly and murdered Jitendra,
son of Shashi Mohan Yadav on 20.9.1994 in Hoshangabad, Madhya
Pradesh causing seventeen injuries on him and swords, knives and r--
gupti and that Ramesh Kumar was the accused in fourteen cases filed
under various sections of the Indian Penal Code. The manner of
H
STATEOFM.P. v. KUSUM[PASAYAT,J.] 415
commission of crime is a relevant consideration. In a given case, the A
manner of commission of offence may be so brutal that it by itself may
be a good sole ground to decline the licence to release. The Rules
provide for a detailed procedure for consideration of application for
release. Once rejected, again application for release can be made after
two years. The Board comprises of the Home Secretary of the State B
Government or any other empowered officer, IG of Prisons or Deputy
IG and another member."
·-.
8. The appeal is, therefore, dismissed.

B.B.B. Appeal dismissed.