Full Judgment Text
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CASE NO.:
Appeal (crl.) 92 of 2002
PETITIONER:
State of Madhya Pradesh & Anr.
RESPONDENT:
Bhola @ Bhairon Prasad Raghuvanshi
DATE OF JUDGMENT: 06/02/2003
BENCH:
S. Rajendra Babu, D. M. Dharmadhikari & G. P. Mathur.
JUDGMENT:
J U D G M E N T
DHARMADHIKARI, J
This appeal has been preferred by the State of Madhya Pradesh
against judgment dated 16.1.2001 of the High Court of Madhya
Pradesh in Writ Petition (Crl.) No. 3603 of 1999. By placing reliance
on two Judges Bench decision of this Court in State of U.P. vs.
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 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 Act, 1938 [hereinafter shortly
referred to as ’the U.P. Rules’ and ’the U.P. Act’ respectively].
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 reconsideration.
A legal question of general importance on the validity of Rule
3(a) of the Rules is before us for consideration. The
respondent/prisoner is not represented 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 the prisoner. The
appellant/State of M.P. is represented by Sr. Advocate, Shri R.P.
Gupta who took us through the relevant provisions of the Act and the
Rules and 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 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 by 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.
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
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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.
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."
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]
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" but their conduct
outside prison shall be supervised by specified individuals or
institutions. The period of release on licence or probation granted to
them 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 vs. Union of India [1981 (1) SCC 100] at
paragraph 71 pg. 152-153. Release on licence is an experiment 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:
"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 on probation on consideration of his antecedents and his
conduct in the prison, reads thus :-
"2. Notwithstanding anything contained in Section 401 of the
Code of Criminal Procedure, 1898 where a person is confined in
a prison 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 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
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relevant for our 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;
(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;
(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) ..
(6) ..
(7) ..
[Underlining for pointed attention]
In exercise of its rules making power, the State Government
framed the 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, 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."
[see 396 IPC 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 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 12.1.1994 in the case of Sadhu Saran
(Supra) had arisen. The Lucknow Bench of Allahabad High Court in
taking the view as it did that Rule 3(a) is in excess of the rule 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 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."
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".
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.. The purpose of 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.
.."
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 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."
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".
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 from considering the release of the prisoners
though they satisfy the requirements of Section 2 of the
Uttar Pradesh Prisoners’ Release on 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.
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 supplementary provision to Section 2
and Rule 3 cannot frustrate the very purpose by negativing
the rights of those prisoners to claim the benefit of Section 2
of the Act.
Mr. Pramod Swarup, 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 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 in respect of serious offences like Section 396 IPC
etc., the prisoners should not be released it is better if they
bring about some suitable amendments in the Act, then
frame necessary rules".
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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 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 Rule 3(a) is a piece of ’delegated legislation.’
Such a delegated legislation is recognised 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 to
carry it into effect. The legislation before us aims at giving effect to
the current penal philosophy of reforming 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 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 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 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 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 lay 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
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 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 less 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
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. In 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 certain offences from the
application of the Act for release of the prisoners on probabtion
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).
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The two Judges Bench of this Court in the case of State of U.P.
(Supra) 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 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 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 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.
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 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 probation. The subject of classifying the
offenders based on their antecedents and conduct and/or offences for
which they have been 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 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 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 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 individuals.
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 contained in Section 2 of the Act. In our
considered view, the decision of 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
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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 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.
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.
The two-Judge Bench of this Court in the case of State of U.P.
(Supra) 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 because and the rule
goes contrary to 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 necessary leads to an
inference that the Bench was also of the opinion that the contents of
the 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 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
overwrides 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 by a
delegate - the delegated legislation cannot be held to be in violation
of the enabling Act. In the instant case, the legislative policy of
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 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 incarnation of the offenders. The subject of
classifying the offenders based on their antecedents and conduct and
offences for which they have been convicted, has to be left to the
executive authority to determine and specify from time to time by
rules and amendments 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 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 gives a
blanket power to the executive to lay down specified class of
offenders in relation to the offences for which they are convicted and
put them outside the purview of the Act. Rule 9(4) which enables
froming 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 offence for which
they have been convicted and imprisoned. We fail to understand why
such classification of offenders in relation to the nature of offences
committed by them is impermissible for a limited 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 given liberty
under strict supervision of specified institutions, authorities or
individuals.
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