Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2562 OF 2014
(ARISING OUT OF SLP (CRL.) NO.1009 of 2007)
STATE OF M.P. & ORS. …APPELLANTS
VERSUS
KHUMAN SINGH & ANR. …RESPONDENTS
O R D E R
ADARSH KUMAR GOEL, J.
1. Leave granted.
2. This appeal has been preferred by the State of Madhya
th
Pradesh against Order dated 5 December, 2003 passed by
the High Court of Madhya Pradesh at Indore in Writ Petition
No.1077
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of 2003.
3. The question raised for our consideration is whether the
High Court ought to release a person under the provisions of
Madhya Pradesh Prisoner’s Release on Probation Act, 1954
read with M.P. Prisoner’s Release on Probation Rules, 1964 (for
short “Act and the Rules”), if it is found that rejection of the
prayer for said release by the competent authority was not
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proper.
4. The respondent was tried for a charge of murder under
Section 302 of the Indian Penal Code and convicted under the
said provision in Session Trial No.106 of 1988 and sentenced to
th
undergo life imprisonment vide Order dated 26 July, 1989.
He applied for release under the provisions of aforesaid Act
and the Rules. His request was considered by the statutory
Board, in compliance of the Division Bench order of the High
Court in Writ Petition No.1138 of 2002 but he was not found
entitled to be released. The opinion of the Board was accepted
by the State Government. The said opinion and the order of
the State Government are as follows :
“In the light of the background of the case, it
is clear that the past antecedents of the
prisoners are not good. The prisoner
alongwith other co-accused persons
mercilessly murdered the deceased with the
knot of the saree. The District Magistrate has
not recommended the release and the
opposite party has also objection on release
of the prisoner. The State Probation Board is
of the unanimous opinion that it would not be
appropriate to release the prisoner on
probation. Therefore, the State Government
is recommended that it would not be
appropriate to release the prisoner on
probation.
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Recommendation of the State
Probation Board Dt. 23.12.2002 are
accepted vide Memorandum No.F. 3-
5/2003/3/Jail dated 3.1.2003 of the Jail
Department, State of Madhya
Pradesh.”
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5. Aggrieved by the above, the respondent preferred a writ
th
petition which was allowed by Order dated 5 December,
2003. It may be mentioned that prior to the passing of the
impugned order, the Division Bench of the High Court vide
th
Judgment dated 11 April, 2002 in LPA No.212 of 2001 in the
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matter of Subrato Bachaspati vs. State of M.P. , had
expressed the view that if the relatives of the victim of the
crime do not object and there is no evidence of extreme
brutality, the High Court itself could direct release
notwithstanding the opinion of the Board and the State. This
view was reversed by this Court in Arvind Yadav vs. Ramesh
2
Kumar & Others . Thereafter, the same view has been
followed inter alia in State of Madhya Pradesh vs. Abdul
3
Kadir and Another .
6. We have heard learned counsel for the parties.
7. Learned counsel for the State pointed out that in view of
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the Judgment of this Court in Arvind Yadav (supra), the view
taken by the High Court cannot be sustained.
8. In spite of service, no one has entered appearance for the
respondent. However, this Court appointed Mr. Praveen
Agrawal, Advocate as Amicus Curiae to assist the Court.
9. We find force in the contention raised on behalf of the
1
(2003) 1 JLJ 6
2
(2003) 6 SCC 144
3
(2009) 3 SCC 450
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appellant in view of earlier decision of this Court in Arvind
Yadav (supra) wherein this Court held :
“6. We are unable to sustain the impugned
judgment of the High Court. Each of the convicts
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 302/307/394/304-
B/498-A/325 of the Indian Penal Code and the
convicts were serving their respective sentences
in jail. In all 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 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 observation that the remand to the
State Government for fresh consideration is
bound to delay the matter causing further
injustice to the convicts.
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9. Having regard to the aforesaid, we are unable
to sustain the impugned judgment of the High
Court. It is accordingly set aside.”
(emphasis added)
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10. Again in State of Punjab vs. Kesar Singh , it was
observed :
“ 3. We have heard learned counsel for the
parties. In our opinion the direction given by the
High Court was not at all appropriate or
permissible in law. The mandate of Section 433
CrPC enables the Government in an appropriate
case to commute the sentence of a convict and to
prematurely order his release before expiry of the
4
(1996) 5 SCC 495
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sentence as imposed by the courts. Clause (b) of
Section 433 CrPC provides that the sentence of
imprisonment for life may be commuted for
imprisonment for a term not exceeding 14
years
or fine. Undisputedly, the respondent had not
completed 14 years’ sentence when he filed the
petition under Section 482 CrPC seeking
premature release. The direction of the High
Court therefore to prematurely release the
respondent and set him at liberty forthwith could
not have been made. That apart, even if the High
Court could give such a direction, it could only
direct consideration of the case of premature
release by the Government and could not have
ordered the premature release of the respondent
itself. The right to exercise the power under
Section 433 CrPC vests in the Government and
has to be exercised by the Government in
accordance with the rules and established
principles. The impugned order of the High Court
cannot, therefore, be sustained and is hereby set
aside.”
11. It is thus clear that even if approach adopted by the
Board and the State is not germane, normally procedure to be
followed by the High Court in exercise of power of judicial
review is to remand the matter to the competent authority in
the light of such observations as may be found to be
appropriate, instead of the High Court itself directing release,
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as has been done in the present case. There is no reason in
the present case to deviate from this established procedure, in
exercise of power in judicial matter in cases of this nature.
12. Accordingly, we allow this appeal, set aside the impugned
order and direct that the matter may be considered afresh by
the competent authority under the provisions of the Act and
the Rules in accordance with law within three months from the
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date of receipt of the copy of this order taking into account
upto date developments.
…………………………………………J.
(T.S. THAKUR)
.…………………………………………J.
(ADARSH KUMAR GOEL)
NEW DELHI
DECEMBER 10, 2014
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