Holding

Rule 3(a) is a valid exercise of the rule‑making power under Section 9(4) and does not defeat the object of Section 2; therefore it is not ultra vires.

Summary

The petitioner, State of Madhya Pradesh, appealed against a High Court order that directed it to consider a prisoner's application for release on probation. The prisoner, convicted under IPC section 396, had applied under the Madhya Pradesh Prisoners' Release on Probation Act, 1954, but his request was rejected because Rule 3(a) of the 1964 Rules excluded offences such as his from eligibility. The Supreme Court examined whether Rule 3(a) was ultra vires the Act’s Section 2 and the rule‑making power in Section 9(4), and whether it violated constitutional principles. It held that the rule is a valid piece of delegated legislation, permissible under Section 9(4), and does not defeat the object of Section 2. Consequently, the Court overruled the earlier Sadhu Saran decision and set aside the High Court judgment, allowing the appeal.

Issues considered

Whether Rule 3(a) of the Madhya Pradesh Prisoners' Release on Probation Rules, 1964, which excludes certain offences from eligibility for release on probation, is ultra vires Section 2 and Section 9(4) of the Madhya Pradesh Prisoners' Release on Probation Act, 1954.
Whether the rule violates any constitutional provision, particularly the principle of equality under Article 14.
Whether the State is obligated to consider the prisoner's application despite the exclusion in Rule 3(a).

Legislation cited

Code of Criminal Procedures. 432
Code of Criminal Procedure, 1898s. 40 I
Uttar Pradesh Prisoners (Release on Probation) Act, 1938s. 2, s. 9

Subjects

release on probationdelegated legislationrule‑making powerultra viresclassification of offendersSection 2Section 9Madhya Pradesh Prisoners' Release on Probation Actconstitutional validityArticle 14

Judgment

A STATE OF MADHYA PRADESH AND ANR.
v.

BHOLA @ BHAIRON PRASAD RAGHUVANSHI

FEBRUARY 6, 2003
B
[S. RAJENDRA BABU, D.M. DHARMADHIKARI AND
G.P. MATHUR, JJ.]

C Madhya Pradesh Prisoners' Release on Probation Act, 1954/Madhya
Pradesh Prisoners' Release on Probation Rules, 1964 -Sections 2 and 9(4)/
Rule 3(a)-Release on probation-Rule. excluding certain offences from
application of the Act-Validity of the Rule-Held, the Rule is not ultra vires
the Act-Act is intended to be made applicable to less serious offences-The
Rule is a delegated legislation and it is open to the legislature to lay down
D a general policy permitting reformative method ofpunishment but by limiting
its application to less serious crimes-U.P. Prisoners' Release on Probation
Act, 1938-Sections 2 and 9-U.P. Prisoners' Release on Probation Ru/es-
Rule 3(a).

Administrative law :
E
Delegated legislation-Criteria for considering validity of-Held,
delegated legislation can be declared invalid if it violates any provision of the
Constitution and if it violates the enabling Act-But when the enabling Act
itself permits ancillary and subsidiary functions of the legislature to be
F pe1formed by the executive as its delegate, the legislation cannot be held to
be violative of enabling Act.

Respondent-prisoner, who was a convict for offence u/s 396 IPC, on
completion of more than five years sentence of his imprisonment, applied
for release on probation under Madhya Pradesh Prisoners' Release on
G Probation Act, 1954. His application was not considered by the State,
because by Rule 3(a) of Madhya Pradesh Prisoners' Release on Probation
Rules, 1964, convicts for offences u/s 396 IPC cannot seek release on
probation under the Act.

In writ petition against the rejection of the application,Jf igh Court
H 906
STATE OF M.P. ''·BHOLA @BHAIRON PRASAD RAGHUVANSHI 907

directed the State lo consider the application as per the provisions of the A
Act and the Rules.

In appeal to this Court, appellant-State contended that Rule 3(a)
cannot be construed to mean that it defeats the objects of Section 2 of the
Act or exceeds the rule making power conferred under Section 9(4) of the
Act. B
Allowing the appeal, the Court

HELD: I. Madhya Pradesh Prisoners' Release on Probation Act,
1954 aims at giving effect to the current penal philosophy of reforming
the prisoners while they are undergoing sentences of imprisonment. For C
the above purpose, Section 2 confers the power on the authorities to release
a prisoner on probation keeping in view his antecedents and his conduct
in the prison. Section 9 contains the rule making power and sub-section
4 authorizes the State Government to frame rules to define or specify the
class of offenders who can be conditionally released. By specifying in Rule D
3(a) of Madhya Pradesh Prisoners' Release on Probation Rules, 1964, the
offenders undergoing imprisonment under certain offences of serious
nature as not eligible for release on licence, there is implied specification
· "- of offences excluded in Rule 3(a) lo be the class of offenders whose cases
can be considered for release on probation under the Act. The preamble
of the Act. indicates the intention of the legislature that the benefit of E
release on probation for good conduct in prison is lo be made available
not to all but to "certain prisoners" meaning prisoners ofa particular class.
Thus they can be classified in relation to the offences committed by them
for which they are sentenced. Reformative system of punishment by
releasing prisoners on the basis of their good conduct in prison and for F
turning them out as good citizens after they serve out their periods of
sentences is not to be resorted to indiscriminately without reference to the
nature of offence for which they are convicted. [914-G, H; 915-A-B; C-01

Maru Ram v. Union of India, [1981[ I SCC JOO, relied on.
G
'Justice through Punishment' by Barbara Hudson, referred to

2. Rule 3(a) is a piece of delegated legislation. Such a delegated
legislation is recognized as valid because on certain legislative fields, it is
possible for the legislature only to lay down a policy and give sufficient
guidelines for the executive authorities lo carry ii into effect. It is open H
,
•
908 SUPREME COURT REPORTS [2003] I S.C.R.

A to the legislature to lay down a general policy permitting reformath•e
method of punishment but by limiting its application to less serious crimes.
Gravity of offence is an integral dimension in deciding whether a prisoner
should be released or not. The offenders could be classified thus
reasonably with the object to be fulfilled of reformation of those prisoners
B who show prospects of some reform.' Classification can also be made
between habitual offenders and non-habitual offenders or between
corrigibles and incorrigibles. Such a classification through delegated
legislation of a rule cannot be held to be a legislative step defeating the
substantive provisions of the Act. Rule 3(a) which excludes certain offences
from the application of the Act for release of the prisoners on probation
C impliedly makes the Act applicable to other kinds of prisoners and in no
manner defeats the object of the Act. Thus the Act is intended to be made .
applicable to categories of offenders - not mentioned in Rule 3(a). Section
9(4) which enables framing of rules to classify the offenders impliedly
permits their classification not merely on the basis of their antecedents
D and their conduct in the prison but also on the basis of the offences for
which they have been convicted and imprisoned.
1914-F, G; 915-F-G; H; 916-A; 917-A-B)

State of U.P. v. Sadhu Saran Shukla, 1199412 SCC 445, overruled.

,E 3. A delegated legislation can be declared invalid by Court mainly
on two grounds firstly that it violates any provision of the Constitution
and secondly it is violative of the enabling Act. If the delegate which has
been given a rule making authority exceeds its authority and makes any
provision inconsistent with the Act and thus overrides it, it can be held to
be a case of violating the provisions of the enabling Act but where the
F enabling Act itself permits ancillary and subsidiary functions of the
legislature to be performed by the executive as its delegate, the delegated
legislation cannot be held to be in violation of the enabling Act 1916-D-E)

4. In the instant case, the legislative policy of permitting release of
prisoners on probation, after considering their antecedents and conduct
G in the prison, is laid down in the provision of Section 2 read with the
preamble and other provisions of the Act. It was not possible for the
·legislature at the time of enactment of the statute to envisage and
encompass in its provisions all penal laws and punishments leading to
incarceration of the offenders and desirability for releasing them on
H probation. The subject of classifying the offenders based on their
STATE OF M.P. v. BHOLA@BHAIRON PRASADRAGHUVANSHI [DHARMADHIKARl.J.) 909

antecedents and conduct and/or offences for which they have been A
convicted, has to be left to the executive authority to determine and specify
from time to time by rules and amendments to be made to it if and when
found necessary. Such delegation of power by the legislature to the
executive cannot be held to be either in violation of any constitutional
provision or in exces,s of the rule making provision of the Act. The rule B
does not prohibit release of specified classes of offenders in relation to the
offences for which fliey are convicted and thus does not defeat the object
of the Act. 1916-E-H; 917-AI

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 92 of 2002.

From the Judgment and Order dated 16.1.2001 of the High Court of
c

.' .\
M.P. in WP. 3603/99.

R.P. Gupta, Ms. Priyanka Sardana and Ms. Kamakshi S. Mehlwal, for
the Appellant.
D
Rakesh Dwivedi (AC), Ms. Niranjana Singh and Abhishek Chaudhary,
for the Respondents.

The Judgment of the Court was delivered by

' . DHARMADHIKARI, J. This appeal has been preferred by the State
of Madhya Pradesh against judgment dated 16.1.2001 of the High Court of
E

Madhya Pradesh in Writ Petition (Crl.) No. 3603of1999. By placing reliance
on two Judges Bench decision of this Court in State of U.P. v. Sadhu Saran
Shukla, [ 1994] 2 SCC 445 the High Court has held that Rule 3 (a) of the
Madhya Pradesh Prisoner's Release on Probation Rules, 1964 is ultra vires F
Section 2 of Madhya Pradesh Prisoner's Release on Probation Act 1954
[hereinafter referred to as 'the Rules' and 'the Act' respectively].

The two-Judges Bench of this Court in the case Sadhu Saran (Supra)
declared similar Rule 3 (a) of U.P. Prisoners' Release on Probation Rules as
ultra vires Section 9 and Section 2 of the U.P. Prisoners' Release on Probation G
Act, 1938 [hereinafter shortly referred to as 'the U.P. Rules' and 'the U.P.
Act' respectively].
.. T;.,
.
,..r This appeal was listed before a two-Judges Bench of this Court on
21.8.2002 and it had referred this case to a larger bench stating that two
Judges-Bench of this Court in the case of Sadhu Saran (supra) needs H
'910 SUPREME COURT REPORTS (2003) I S.C.R.

A reconsideration.
A tegal qtre~lion of general importance on the validity of Rule 3(a) of
· the Rules ti before us for consideration. The respondent/prisoner is not
te~nted by counsel. On our request, Shri Rakesh Dwivedi, Sr. Advocate
had agreed to assist this Court and to project the possible view in favour of
B the prisoner. The appellant/State of M.P. is represented by Sr. Advocate, Shri
R.P. Gupta wh\> took us through the relevant provisions of the Act and the
Rules amt almost similar provisions of U.P. Act and the Rules. ~,
On completion of more than five years sentence of imprisonment, the
respondent/prisoner made an application for his release on probation in
C accordance with Section 2 of the Act read with the Rules. His application for
release on probation under the M.P. Act and Rules was not considered b}' the
State because by Rule 3(a) convicts for offences specifies under Section 396 -/,.
of Indian Penal Code cannot seek release on probation under the Act.

D The prisoner approached the High Court in the Writ Petition. By placing
reliance on the decision of Sadhu Saran (supra) the Writ Petition was allowed
by the impugned order and directions were issued to the State government to
consider the application of the prisoner for release on merits in accordance
with the provisions of the Act and the Rules.

E The legislation contained in the Act and Rules and its counterpart U.P.
Act and Rules is to give effect to the current penal philosophy on sentences.
Penologists hold the view that imprisonment should not necessarily be
'retributary' and 'deterrent' but should be 'rehabilitative'. Hegel's theory of
punishment says that 'reform is to be effected through punishment.' The
modern reformists hold a view that "reform should accompany punishment."
F Hegel asserts that "object of punishment is to make the criminal repent his .(
crime, and by doing so to realise his moral character, which has been
temporarily obscured by his wrong action, but which is his deepest and truest
nature." [See Justice through Punishment by Barbara Hudson pg. 3}

G The legislation - for consideration before us gives effect to this penal
philosophy recommending rehabilitation of the criminals so that they come
out of the prison to return to society as law abiding citizens. Under the
scheme of the two Acts certain classes of prisoners which appear to the .....
Government from their antecedents and their conduct in the prison as likely
to abstain from crime and lead a peaceable life, can be released on a "licence"
H but their conduct outside prison shall be supervised by specified individuals
STATEOFM.P. v. BHOLA@BHAIRONPRASADRAGHUVANSHI[DHARMADWKAIU.J.] 911

or institutions. The period of release on licen~e or probation granted to them A
would give them opportunity to lead a crime free and peaceable life. Such
period shall be counted towards the sentence of imprisonment imposed on
them. Such licensed releases legislatively sanctioned have been recognised as
valid law by this Court in the case of Maru Ram v. Union of India. [1981)
I sec 100 at paragraph 71 pg. 152-153. Release on licence is an experiment B
with prisoners for open jails or as the Court describes it is an "imprisonment
of loose and liberal type".

A brief survey of the scheme of the Act and the Rules with detailed
examination of the impugned provisions would be necessary. The preamble
of the Act is meaningful and conveys the object of the Act. It reads thus: C
"An Act to provide for the release of certain prisoners on conditions
imposed by the (Madhya Pradesh) Government.
••
[Underlining for emphasis].

Section 2 of the Act which authorises government to release the prisoner D
on probation on consideration of his antecedents and his conduct in the
prison, reads thus :-

"2. Notwithstanding anything contained in Section 40 I of the Code
of Criminal Procedure, 1898 where a person is confined in a prison E
under a sentence of imprisonment, and it appears to the Government
from his antecedents and his conduct in the prison that he is likely to
abstain from crime and lead a peaceable life, if he is released from
prison, the Government may by licence permit him to be released on
condition that he be placed under the supervision or authority of a
Government Officer or of a person professing the same religion as F
the prisoner or such institution or society as may be recognised by
the Government for the purpose, provided such other person, institution
or society is willing to take charge of him."

Section 9 of the Act contains the rule making power for carrying into
effect the provisions of the Act and sub-section 4 which is relevant for our G
purposes is also required to be reproduced for its proper interpretation.

"9. The Government may make rules consistent with this Act :-

(1) for the form and conditions of licence on which prisoners may
be released; H
912 SUPREME COURT REPORTS [2003] I S.C.R.

A (2) for the appointment of Government Officer, the recognition of
Institution, Societies and persons referred to in Section 2;

(3) for defining the powers and duties of Government Officer,
Institutions, or persons, under whose authority or supervision
conditionally released prisoners may be kept;
B (4) for defining the classes of offenders who may be conditionally
released, and the periods of imprisonment after which they may
;
be so released;
(5) ................... .

c (6) .................. ..
(7)
[Underlinini; for pointed attention]

In exercise of its rules making power, the State Government framed the
D Rules of 1964 and Rule 3 (a), which was challenged in the High Court by
the prisoner, reads thus :-

"3. The following classes of prisoners shall not be released under Act
:- (a) Those convicted of offences under the Madhya Barat Vagrants,
Habitual Offenders and Criminals (Restrictions and Settlement) Act,
E 1952, or any law in force in any region of the State corresponding to
the said Act, or the Explosive Substances Act, 1908 or under the
following Chapters or sections of the Indian Penal Code, Chapters V-
A, VI and VII and Section 216-A, 224 and 225 (if it is a case of an
escape from a jail), 231, 232, 303, 311, 328, 361, 376, 382, 386 to
389, 392 to 402, 413, 459, 460 and 489-A."
F ,(

{see 396 /PC mentioned as excluding application of Section 2 of the
Act}

In the impugned judgment of the High Court of Madhya Pradesh,
reliance has been placed on the decision of two Judges Bench of this Court
G in the case of Sadhu Saran (Supra) which had arisen from almost identical
provisions of U.P. Act and Rules and they have been quoted in the said
judgment. We have also perused the judgment of the Lucknow Bench of
Allahabad High Court dated 11.9.1980 in Writ Petition No. 2070 of 1978
from which Crl. Appeal No. 163 of 1983 decided on I 2.1.1994 in the case
H of Sadhu Saran (Supra) had arisen. The Lucknow Bench of Allahabad High
STATE OF M.P. ,.. BHOLA@ BHAIRON PRASAD RAGHINANSHI IDHARMADHIKARI, J.] 9 J3

Court in taking the view as it did that Rule 3(a) is in excess of the rule A
_, making power and defeats the purposes of the Act contained in Section 2,
observed thus:-

"The purpose of Section 9 is to achieve the objective contained in
Section 2 and Section 8. It permits the making of the rule for that
purpose only. When it speaks about the classification of offenders, it
B
means to give power to the State Government to make rules for
classifying for purposes of release and not for prohibiting the release
of prisoners. A rule framed under the Act cannot eliminate prisoner
serving a sentence of imprisonment from the field of eligibility
contemplated by Section 2 of the Act." c
It further holds thus:
.~

"No rule can be made to prohibit person in jail from getting the
benefit of Section 2 of the Act because such a rule will have an effect
of destroying the purpose of the Act itself... ................. The purpose of D
the rule is to give effect to the provisions of the Act and not to make
them ineffective. This rule must, therefore, be held to have been
made not only in excess of the powers but in violation of the powers
conferred under Section 9 of the Act on the State Government.
...................
E
The Lucknow Bench of Allahabad High Court in the said judgment
also interpreted comparable provisions of Section 4 and Section 9 of the U.P.
Act to hold that it does not permit classification of offenders on the basis of
nature of offences but envisages their classification on the basis of "their age
and sex having some nexus with their individual personalities." Rule 3(a) of F
> the UP Rules was struck down by the Lucknow Bench also on the ground of
'
it being violative of Article 14 of the Constitution of India. According to it,
"it classifies prisoners on the basis of the offences committed by them and
not on the basis of their antecedents and their conduct in the prison which
alone could have been the nexus with the object of the Act."
G
In appeal carried by State of U.P to this Court against the judgment of
Lucknow Bench of Allahabad High Court, this Court upheld the judgment of
the High Court but only to a limited extent and on its reasoning that "Rule
3(a) in effect precludes the government for considering the release of the
prisoners though they satisfy the requirement of Section 2 of the Act".
H
914 SUPREME COURT REPORTS [2003) I S.C.R.

A For better·appreciation of the contention advanced in this case before
us, it would be necessary to reproduce the relevant part of the judgment of
the two-Judges Bench of this Court in the case of State of U.P. (Supra) which
reads thus :-

"It can be seen that Rule 3(a) in effect precludes the Government
B from considering the release of the prisoners though they satisfy the
requirements of Section 2 of the Uttar Pradesh Prisoners' Release on 1:
Probation Act, 1938. It is also rightly contended that this rule is
beyond the power conferred under Section 9 of the Act and if the rule
is given effect to, it defeats the object of Section 2.
c We have carefully perused the reasoning of the High Court and we
are in agreement with the High Court to this extent namely that
Section 9 of the Act has to be held as complementary and 1·
". supplementary provision to Section 2 and Rule 3 cannot frustrate the
very purpose by negativing the rights of those prisoner~ to claim the
D benefit of Section 2 of the Act.

Mr. Pramod Swamp, learned counsel for the State of U.P. submitted
that by virtue of this judgment the entire Rule 3 stands struck down.
We do not think that the High Court has gone that far. What all the ~

High Court has held ultimately is that to the extent the rule debars a
E person convicted of an offence under Section 396 IPC from being
considered for release under Section 2 is ultra vires and to that limited
extent again the High Court gave a direction to the State Government
to consider the petitioner's case (Sadhu Saran Shukla).

However, we are of the view that if the U.P. Government thinks that
F in respect of serious offences like Section 396 !PC etc., the prisoners
.....~,
,.
should not be released it is better if they bring about some suitable
amendments in the Act, then frame necessary rules". ·

Learned senior counsel appearing for the State of Madhya Pradesh
contends that Rule 3 (a) cannot be read and construed to mean that it defeats
G
the object of Section 2 of the Act or exceeds the rule making power conferred
under Section 9 (4) of the Act.

We have carefully examined the scheme of the Act and particularly the
provisions contained in Section 2, 9(4) and Rule 3(a). What we find is that
H Rule 3(a) is a piece of 'delegated legislation.' Such a delegated legislation is
STATEOFM.P. v. BHOLA@BHAIRON PRASAD RAGHUVANSHI [DHARMADHIKARl,J.J 915

~cognised as valid because on certain legislative fields, it is possible for the A
legislature only to Jay down a policy and give sufficient guidelines for the
executive authorities to carry it into effect. The legislation before us aims at
giving effect to the current penal philosophy ofreforming the prisoners while
they are undergoing sentences of imprisonment. For the above purpose, Section
2 confers the power on the authorities to release a prisoner on probation B
keeping in view his antecedents and his conduct in the prison. Section 9
contains the rule making power and sub-section 4 clearly authorises the State
~·
Government to frame rules to define or specify the class of offenders who
can be conditionally released. By specifying in Rule 3(a) the offenders
undergoing imprisonment under certain offences of serious nature as not
eligible for release on licence, there is implied specification of offences C
excluded in Rule 3(a) to be the class of offenders whose cases can be
considered for release on probation under the Act. It was, therefore, an error
of interpretation on the part of the Lucknow Bench of Allahabad High Court
that specification of offenders under certain sections of penal provisions in
Rule 3(a) frustrates the object of the Act contained in Section 2. The preamble D
of the Act has been quoted by us. It indicates the intention of the legislature
that the benefit of release on probation for good conduct in prison is to be
made available not to all but to "certain prisoners" meaning prisoners of a
particular class. Thus they can be classified in relation to the offences
committed by them for which they are sentenced. Reformative system of
punishment by releasing prisoners on the basis of their good conduct in E
prison and for turning them out as good citizens after they serve out their
periods of sentences is not to be resorted to indiscriminately without reference
to the nature of offence for which they are convicted. It is open to the
legislature to Jay down a general policy permitting reformative method of
punishment but by limiting its application to less serious crimes. Gravity of
offence is an integral dimension in deciding whether a prisoner should be F
released or not. If we see the offences mentioned in rule 3(a), in the category
of exclusion therein are such serious or heinous offences which are against
community and society in general where even release on probation may be
found hazardous because of the possibility of the crime being repeated or the
, prisoner escaping. Habitual offenders or those dealing in explosive substances G
or involved in dacoities and robberies are treated as criminals guilty of heinous
crimes who deserve to be treated differently from other offenders guilty of
Jess serious crimes. The offenders could be classified thus reasonably with
the object to be fulfilled of reformation of those prisoners who show prospects
of some reform. Classification can also be made between habitual offenders
and nan-habitual offenders or between carrigibles and incorrigibles. Such a H
916 SUPREME COURT REPORTS [2003] l S.C.R.

A classification through delegated legislation of a rule cannot be held to be a
legislative step defeating the substantive provisions of the Act. ln our
~
considered opinion, the judgment of the Lucknow Bench of Allahabad High
Court which has been upheld by two Judges Bench of this Court proceeds on
misinterpretation and misconception of Rule 3(a). Rule 3(a) which excludes
I
certain offences from the application of the Act for release of the prisoners '
B on probation impliedly makes the Act applicable to other kinds of prisoners
and in no manner defeats the object of the Act. Thus the Act is intended to
be made applicable to categories of offenders-not mentioned in Rule 3(a). ~

The two Judges Bench of th is Court in the case of State of U.P. (Supra)
c has confirmed the judgment of the Lucknow Bench of Allahabad High Court
only on the limited finding that Rule 3(a) of U.P. Rules is in excess of the
rule making authority and the rule falls outside the ambit of section 2 of the
Act. In the concluding part of its judgment, the two-Judges Bench observes ~:.,.
that it would be open to the State Legislature to make the impugned rule 3
(a) as part of the Act itself. The above observation necessarily leads to an
D inference that the Bench was also of the opinion that the contents of the
impugned rule could have formed the part of the main Act. The only vice
found in the rule was that it was in excess of the rule making authority.

A delegated legislation can be declared invalid by the Court mainly on .i
.
~
two grounds firstly that it violates any provision of the Constitution and
E secondly it is violative of the enabling Act. If the delegate which has been
given a rule making authority exceeds its authority and makes any provision
inconsistent with the Act and thus overrides it, it can be held to be a case of
violating the provisions of the enabling Act but where the enabling Act itself
permits ancillary and subsidiary functions of the legislature to be performed
F by the executive as its delegate, the delegated legislation cannot be held to
be in violation of the enabling Act.
...
\.

In the instant case, the legislative policy of permitting release of prisoners
on probation, after considering their antecedents and conduct in the prison, ~

is laid down in the provision of Section 2 read with the preamble and other
G provisions of the Act. It was not possible for the legislature at the time of 'l

enactment of the statute to envisage and encompass in its provisions all penal
,•
laws and punishments leading to incarceration of the offenders and desirability
~·
for releasing them on probation. The subject of classifying the offenders
based on their antecedents and conduct and/or offences for which ·they have
H been convicted, has to be left to the executive authority to determine and
STATE OF M.P. v. BHOLA@ BHAIRON PRASAD RAGHlN ANSHI [DHARMADHIKARI, J.] 9 J7

specify from time to time by rules and amendments to be made to it if and A
when found necessary, Such delegation of power by the legislature to the
executive cannot be held to be either in violation of any constitutional provision
or in excess of the rule making provision of the Act. We are not prepared to
accept the reasoning of the High Court of Allahabad that the rule prohibits
release of specified classes of offenders in relation to the offences for which B
they are convicted and thus defeats the very object of the Act.

Section 9(4) which enables framing of rules to classify the offenders
impliedly permits their classification not merely on the basis of their
antecedents and their conduct in the prison but also on the basis of the
offences for which they have been convicted and imprisoned. We fail to C
understand why such classification of offenders based on the nature of offences
committed by them is impermissible for application of the Act which aims
._... at reforming a specified and identified classes of prisoners whose release
would not be hazardous to society and who show possibilities of turning out
to be good citizens if they are given liberty under strict supervision of specified
institutions, authorities or individ"als. D
It is not possible for us to uphold the view of two Judges Bench of this
Court in the case of Sadhu Saran (Supra) that Rule 3(a) is in excess of rule
making power under Section 9(4) and is violative of substantive provisions
cnntained in Section 2 of the Act. In our considered view, the decision of E
two-Judges Bench in the case of Sadhu Saran (Supra) does not lay down a
good law and deserves to be overruled.

Lastly, learned Senior Counsel appearing as Amicus Curiae tried to
make a submission that rejection of the prayer of the prisoner to be released
under the Act should not come in his way of claiming remission in accordance F
with Section 432 of Code of Criminal Procedure. It is not necessary for us
to express any opinion on the same. If the prisoner has any recourse available
in law for seeking remission, it would be open to him to avail of the same.
Before parting with the case, we thankfully record our appreciation for the
valuable assistance given by Shri Rakesh Dwivedi, learned Senior Advocate
who had appeared as Amicus Curiae in this matter. G
Consequent upon the aforesaid discussion, this appeal succeeds and is
allowed. The impugned judgment dated 16.1.2001 of the High Court of
Madhya Pradesh in Writ Petition No. 3603 of 1999 is hereby set aside.

K.K.T. Appeal allowed. H