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M.P. Jayaraj Vs. State of Karnataka - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 21012 of 1983
Judge
Reported inILR1985KAR1013
ActsKarnataka Prison Manual, 1978
AppellantM.P. Jayaraj
RespondentState of Karnataka
Appellant AdvocateB. Veerabhadrappa, Adv.
Respondent AdvocateM.R. Achar, Govt. Adv.
Excerpt:
karnataka prison manual, 1978 -- chapter 44 -- manual having force of law, right conferred on prisoner enforceable -- prisoner has right to review of sentence by advisory board and have the recommendation considered by government -- decision of advisory board to be based on majority opinion.;the manual-prepared in consonance with the modern trends in the field of correctional administration-provides for remissions in sentence, release on parole and premature release. thus, a prisoner undergoing rigorous imprisonment, on fulfilling the norms orcriteria laid down in the manual, is entitled to be considered for premature release. in other words, the right to be considered for premature release is conferred on the prisoner.... a right is created in the prisoner.....orderk.a. swami, j.1. in this petition under articles 226 and 227 of the constitution, the petitioner has sought for issue of a writ in the nature of mandamus to the respondents to refer his case to the advisory board for the district prison at , mysore (here inafter referred to as the 'advisory board'), or in thealternative to consider the recommendation of the advisory board for his premature release. the petitioner has also sought for his release on parole. the last prayer does not survive, because the petitioner has been released once on parole during the pendency of the writ petition.2. the petitioner was one of the five accused in sessions case no. 12 of 1977 on the file of the principal district and sessions judge for metropolitan area, bangalore. he along with the other accused.....
Judgment:
ORDER

K.A. Swami, J.

1. In this Petition under Articles 226 and 227 of the Constitution, the Petitioner has sought for issue of a writ in the nature of Mandamus to the Respondents to refer his case to the Advisory Board for the District Prison at , Mysore (here inafter referred to as the 'Advisory Board'), or in thealternative to consider the recommendation of the Advisory Board for his premature release. The Petitioner has also sought for his release on parole. The last prayer does not survive, because the Petitioner has been released once on parole during the pendency of the Writ Petition.

2. The Petitioner was one of the five accused in Sessions Case No. 12 of 1977 on the file of the Principal District and Sessions Judge for Metropolitan area, Bangalore. He along with the other accused was convicted for the offences punish-able under Sections 143, 148, 307 read with Section 149 ; and 324 read with Section 149 of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment for period of three months, one year, 5 years and one year respectively,, and the substantive sentences were ordered to runconcurrently.

3. Aggrieved by the aforesaid order of convictions and sentences, the Petitioner along with the other accused, preferred Criminal Appeal No. 280 of 1978. The State also preferred Criminal Appeal No. 68 of 1979 before this Court. Both the appeals were heard together and decided by a commonjudgment by this Court, on 1-8-1979. This Court confirmed the convictions, however enhanced the sentence from 5 years to 10 years. Pursuant to the aforesaid convictions and sentences, the Petitioner has been undergoing rigorous imprisonment in the District Prison at Mysore.

4. The contentions raised and urged by the Petitioner and the Respondents admit of following points fordetermination.

(i) Whether the Advisory Board, in its proceeding dated 6-4-1983 had or had not recommended for premature release ofPetitioner ?

(ii) If the Advisory Board had not recommended for premature release of the Petitioner., whether the subject ought to have been brought before the Advisory Board subsequent to 6-4-1983 for review of sentence of the Petitioner ?

(iii) If the Advisory Board had recommended for premature release of the Petitioner, whether its recommendation was submitted to the State Government by the 2nd Respondent ?

(iv) Whether the rejection of the Petition filed by the father of the Petitioner for premature release of the Petitioner amounts to rejection of the recommendation of the Advisory Board dated 6-4-1983 If not, whether it is necessary for the StateGovernment to consider the recommendation of the Advisory Board.?

(v) Whether it is a case for directing the State Government to pre-maturely release the Petitioner or or directing the StateGovernment to consider the recommendation of the Advisory Board dated 6-4-1983 for the premature-release of the Petitioner? If the latter is yes whether pending consideration of therecommendation of the Advisory Board is it just and appropriate to to direct the release of the Petitioner on bail ?

(vi) Whether the malice imputed to the 2nd Respondent can be said to have been established If so, what appropriate directions need be given in the matter?

5.1) Point Nos. (i) & (ii): These two points can be dealt together. For carrying out the purposes of the Karnataka Prisons Act, 1963 (hereinafter referred to as the 'Act'), the State Government has framed the Rules known as Karnataka Prison Rules, which have come into force with effect from 25th July, 1974. In addition to this, for thepurpose of prison administration in the State of Karnataka, in consonance with the modern trends in the field of Correctional Administration. The Karnataka Prison Manual of 1978 (hereinafter referred to as 'the Manual') has been prepared and brought into force. The Manual covers the gamut of prison administration. In this case, we are concerned with Chapter 44 of the Manual dealing with Advisory Boards,. According to para 815 of the Manual, the State Government is required to constitute an Advisory Board for each Central Prison and District Prison-Class I, for the purpose of review of long term sentences of convicted criminals. The Advisory Board is required to consist of the Deputy Commissioner of the District as the Chairman with the following members: (1) District and Sessions Judge; (2) Superintendent of Police; (3) District Surgeon and (4) three local non-officials. The Superintendent of the Central Prison or the District Prison, as the case may be, is the Secretary of the Advisory Board. In the case of Central Prison at Bangalore and the District Prison at Mysore, instead of Deputy Commissioner of the district, the Inspector General of Prisons is made the Chair-man of the Advisory Board. The non-official members are appointed for a term of three years, from among the panel of names suggested to the Government by the Deputy Commissioner of the concerned district. They are also eligible for re-appointment. As per para-816 of the Manual, the Advisory Board is required to meet at least twice every year during the months of January and July in the office of the Superintendent, Central Prison or the District Prison, as the case may be. The duty of the Advisory Board is to review sentences of convicted criminals-(i) who have been sentenced to the term of imprisonment of five years, but not exceeding ten years and have undergone the period of one-half of the sentence including remission if any ; and (ii) who have been sentenced to a term of imprisonment of more than ten years and have undergone the period of two-third of the sentence including remission if any. On review of the sentences of all convicted criminals who have becomeeligible for review of sentences it is open to the Advisory Board to recommend to State Government for the release ofconvicted criminals sentenced to long term imprisonment. It is the duty of the Secretary of the Advisory Board to draw up the proceedings of the meeting in the proper form, the Chairman and the members of the Board have to sign the proceedings. The Advisory Board is required to consider each case on its merits and record the recommendations in each case separately in the proceedings, a copy of which is required to be submitted to the State Government along with the case papers. As per para-818 of the Manual, it is the duty of the Secretary to place the records, of the Prisoner who is eligible for review of sentence before the Advisory Board. Para-819 of the Manual provides for the procedure to be adopted by the Secretary of the Advisory Board for the purpose of placing the records before it, of the prisoner eligible for review of sentence. Para-82l of the Manual enumerates the factors and circumstances to be taken into consideration for the purpose of arriving at a conclusion as to whether or not the prisoner to be released prematurely. In case the Advisory Board recommends for the premature release of the prisoner, the Inspector General of Prisons is required to submit the recommendation along with the re-cords to the State Government and obtain its orders. If the Advisory Board postpones consideration of the case of aprisoner for his premature release, the same shall have to be placed before the Advisory Board again when it becomes due along with fresh opinion of the district officers concerned. As per para 819 of Manual, the Chief Jailor with the help of the clerk entrusted with the work of the Advisory Board, shall have to prepare a list of prisoners whose cases are to be reviewed by the Board six months in advance and place it before Superintendent of the Jail (Secretary of the Advisory Board), for his scrutiny. As per para 817 of Manual, the State Government, on receipt of the recommendations of the Advisory Board, shall have to consider the same. On such consideration, it is open to the State Government to direct the release of the prisoner forthwith or to direct that the prisoner be released in the ordinary course on the expiry of the sentence less the period of the remission earned.

5.2) Thus, a birds eye view of the aforesaid provisions of the Manual makes it clear that the Advisory Board isrequired to meet twice a year during the months of January and July in order to review the sentences of all the prisoners who have become eligible for such review for the purpose ofconsideration of their cases for premature release. If the Advisory Board recommends for premature release, the Inspector General of Prisons, is required to submit therecommendation along with the records to the State Government and obtain its orders. Of course, it is open to the StateGovernment to agree or disagree with the recommendation of the Advisory Board or postpone the, consideration of the same. In case the State Government postpones consideration of the same, it shall have to be resubmitted to the StateGovernment as per its direction. It is also open to the State Government to direct that the prisoner shall be released in the ordinary course on the expiry of the sentence less the period of remission earned. Thus, a right is created in the prisoner who has become eligible for review of his sentence for pre-mature release to have his sentence reviewed by the Advisory Board and in case the Advisory Board recommends for his premature release he has also a right to have such recommendation considered by the State Government. Such a right having been conferred on the prisoner by the Manual, which has the force of law is enforceable.

5.3) The Chairman of the Advisory Board for the Dist-net Prison, Mysore, as already pointed out, is the Inspector General of prisons (2nd respondent). As per Chapter 44 of the Manual, the case of the Petitioner came up before the Advisory Board on 6-4-1983. Learned Government Advocate has made available the records of the Advisory Board. From the proceedings of the Advisory Board, dated 6-4-1983, it is clear that out of the seven members of the Board including the Chairman, two members viz, The Superintendent of Police and the District Surgeon did not attend the meeting. However, the other members including the Inspector General of Prisons attended the meeting. The Inspector General of Prisons and the District and Sessions Judge opined against the premature release of the Petitioner; whereas, the other three non-official members opined in favour of the premature release of the Petitioner. The information collected for the purpose of consideration of the case of the Petitioner for premature release, as incorporated in the proceeding of the Advisory Board was as on 31-12-1982. According to that the Petitioner had undergone actual imprisonment for a period of three years ten months and thirteen days and in addition to that he had undergone detention for a period of one year twelve days during the investigation, enquiry or trial. This period of detention is required to be set off against the term of imprisonment imposed on the Petitioner on his conviction as per Section 428 of the Code of Criminal Procedure, 1973, As on 31-12-1982, he had also earned the remission of one year three months fourteen days. The period of remission is also required to be taken into account for the purpose of finding out whether the prisoner is eligible for review of his sentence as per para-816(2) of the Manual. Thus, as on 31-12-l987, the unexpired period of sentence of the Petitioner was only 3 years 9 months and 21 days, In other words, he had undergone more than half of the sentence long prior to 6-1-1983. In fact, his case ought to have been considered in the year 1982 itself, because in that year itself he had completed more than five years of imprisonment. However, his case was taken up for consideration only on 6-4-1983. It is also pertinent to notice that in the proceeding of the Advisory Board dated 6-4-198 , it is noted that the conduct of the Petitioner in the Jail was satisfactory. The recording made against the name of the Petitioner in the proceeding of the Advisory Board is as follows :

'The Sessions Judge and the Chairman have not recommended for premature release.The three non-official members had recommended for premature release and a proceeding is drawn in the matter and submitted'

All the aforesaid five members who attended the meeting, have also signed the proceeding.

5.4) In para-5 of the Statement of objections, the respondents have contended that 'since the Chairman of the Advisory Board and also the Sessions-Judge were of the opinion that this is not a case for premature release, the Advisory Board did not recommend the premature release of the Petitioner to the State Government - ' In para-7 thereof, it is further stated thus :

'The contention that the case of the petitioner for remission of sentence should be considered by the Advisory Board is not tenable inasmuch as after examining the record, the Board did not recommend the case ofthe petitioner for premature release.'

Thus, the contention of the respondents is that as all the five members, who attended the meeting of the Advisory Board and considered the case of the Petitioner for premature release, did not agree for premature release; inasmuch, as two official-members opined against it ; therefore, there was no recommendation of the Advisory Board for premature release of the petitioner, in other words, it is the contention of the. respondents that unless there is an unanimous opinion of the members of the Advisory Board who attend the meeting, it does not result into a recommendation of the Advisory Board for premature release. On the contrary, it is the contention of the petitioner that as the majority of the members of the Advisory Board present, have opined in favour of the premature release of the petitioner, it must be taken as the recommendation of the Advisory Board for premature release. Thus, the question for consideration is whether the opinion of the majority members of theAdvsory Board must be taken as the opinion of the Advisory Board. The Manual does not prescribe the quorum for the meeting of the Advisory Board nor does it provide that all the members of the Advisory Board mustunanimously agree for premature release. Thus, the manual is silent as to how a decision of the Advisory Board for premature release of a prisoner has to be arrived at ; either by simple majority or by special majority or by unanimous opinion. In such a situation, it isusual to decide by a majority opinion. Not only the legislative deliberations are decided' by a majority opinion unless a special majority is required by law, the decisions in the meetings of the Board of Directors of a Company or other Boards are also usually taken by a majority of those present and voting at a meeting. Not only this, judicial decisions also, if required to be taken by only than one member of the judicial body, are arrived at inconsonance with the view of the majority. The, Supreme Court, in the case of Iswar Chandra-v.- Satyanarain has observed thus:

'If, for one reason or the other, one of them could not attend, that does not make the meeting of others illegal. In such circumstances where there is no rule or regulation or any other provision fixingthe quorum, the presence of the majority of tie members would constitute it a valid meeting and matters considered thereat could not be held to be invalid. This proposition is well recognised and it is also so stated in Halsbury's Laws of England, Third Edition (Vol. IX, page 48, para 95) , It is therefore unnecessary to refer to any decisions on the subject.'

This Court, in the case of Virupakshappa -v.- Dangadi Hanumanthappa and others, after referring to the aforesaid decision of the Supreme Court, has held as follows :

'18. It may be fairly assumed that in this country also the general rule is (in the words of S.A. De Smith) 'that aTribunal discharging functions of a public nature neither exceeds jurisdiction nor errs in law merely by arriving at a majority decision', unless the legislature provides otherwise. Since, in the instant case the legislature is silent on the point, it may be inferred, as already stated above, that its intention was that in case of differences of opinion amongst the members of theTribunal, the majority view binds the minority and that would be the decision of the Tribunal.'

Thus, there is no reason whatsoever to doubt the proposition that where no quorum for the meeting is prescribed, theopinion of the majority present and voting would be the opinion of the committee or the board or the Tribunal, as the case may be, and such opinion would be the valid opinion and would bind the minority members of the committee or board or Tribunal. Therefore, the proceeding of the Advisory Board held on 6-4-1983 was a valid proceeding which was attended by five out of seven members of the Advisory Board and the majority of them opined in favour of the premature release of the Petitioner. Therefore, the Advisory Board, in itsproceeding dated 6-4-1983 did recommend for premature release of the Petitioner. Point No. (1) is answered accordingly.

5.5. If Respondents 2 and 3 were of the view that since there was no unanimous opinion for the premature release2. 1978(1) Kar. L.J. 464.of the Petitioner on 6-4-1983, therefore, there was no recommendation of the Advisory Board for the premature release of the Petitioner, they ought to have seen that the next date for consideration of the case of the Petitioner for premature release by the Advisory Board was fixed or at any rate they ought to have placed before the Advisory Board the case of the Petitioner for consideration of his premature release before the expiry of one year from 6-4-1983 as required by para 821(2) of the Manual. It is not in dispute that even to this day the case of the Petitioner for premature release has not been brought before the Advisory Board after 6-4-1983. No doubt, Sri M.R. Achar, Learned Government Advocate, submits that the term of the three non-official members of the Advisory Board expired on 14-10-1983 and thereafter the Advisory Board was constituted only on 5-7-1984; therefore before the expiry of one year the matter could not be brought before the Advisory Board. But, there is no explanation offered for not placing the case of the Petitioner forprema ture release before the Advisory Board after 5-7-1984 upto this, date. This inaction on the part of the 2nd Respondent it is urged on behalf of the Petitioner-lends support to his case that the 2nd Respondent has malice against the Petitioner ; therefore, he is coming in the way of the Petitioner being prematurely released from the jail. Whether the 2ndRespondent has had malice against the Petitioner or not, will be separately dealt with while considering Point No. (vi). There-fore, it is not necessary to consider the same at this stage. As the recommendation made by the Advisory Board on 6-4-1983 had not been placed before the State Government, it was not necessary to bring the subject, before the Advisory Board. Thus, point No. (ii) is answered accordingly.

6. Point Nos. (iii) and (iv) : It is not disputed that the recommendation of the Advisory Board had not been placed before the State Government. It was because of theinterpretation placed by the 2nd Respondent on the proceedingof the Advisory Board dated 6-4-1933 that there was no recommendation of the Advisory Board for the premature release of the Petitioner. But, it is also contended on behalf of the Respondents that even if it is held that the opinion of the majority of the member present would amount to the 'Opinion of the Advisory Board; therefore, there is arecommendation For the premature release of the petitioner, such opinion had been placed before the Government by the 2nd 'Respondent through his letter dated 29-7-1983 bearing No. J2/G-R/333 written in connection with the petition filed before the State Government by the father of the petitioner for the premature release of the petitioner. No doubt, on the petition filed by the father of the petitioner complaining that inspite of the recommendation made by the three non-official members of the Advisory Board, the 2nd Respondent had not taken action in the matter for the premature release of thePetitioner; the State Government called for a report from the 2nd Respondent. Pursuant to that, the 2nd Respondent submitted his report/letter dated 29-7-1983 bearing No. J/2/ CR-300 of 1983 to the State Government stating that the two official members of the Advisory Board viz., himself and the District and Sessions Judge, Mysore, did not favour for the premature release of the Petitioner and that there was an adverse report from the Commissioner of Police, Bangalore and the District Magistrate, Bangalore, even though three non-official members were in favour of the premature release of the Petitioner. In that letter, he also ultimately opined that it was not a fit case for premature release. Thus, he had impressed upon the State Government that there was no recommendation made by the Advisory Board for the premature release of the Petitioner. Records of the case also do not reveal that the 2nd Respondent had submitted to the State Government the recommendation of the Advisory Board, dated 6-4-1983, for the premature 'release of thePetitioner. The State Government, on the basis of the aforesaid report/letter dated 29-7-1983 of the 2nd Respondent, has rejected the Petition filed by the father of the Petitioner for premature release of the Petitioner. The records of the State Government are also produced by the LearnedGovernment Advocate at the instance of the Court.' The State Government has proceeded on the basis that the Advisory Board has opined against the premature release of thePetitioner and further the 2nd Respondent has also not recommended for the premature release of the Petitioner. Thus, at no stage it had been brought to the notice of the State Government that there was a recommendation made by the Advisory Board for the premature release of the Petitioner. Consequently, it follows that the recommendation of the Advisory Board for the premature release of the Petitioner has remained unconsidered by the State Government, as it has not been submitted by the 2nd Respondent before the State Government for consideration. It is the duty of the 2nd Respondent) as per para-821 (iii) read with para 816(5) of the Manual, to place the recommendation of the Advisory Board for the premature release of the Petitioner, before the State Government. This, the 2nd Respondent has failed to perform. That being so, the rejection of the Petition filed by the father of the Petitioner for the premature release of the Petitioner on the erroneous report of the 2nd Respondent that there is no recommendation of the Advisory Board for the premature release of the Petitioner. cannot be held to come in the way of the State Government to consider the recommendation of the Advisory Board dated 6-4-1983 for the premature release of the petitioner. Therefore, it isnecessary for the 2nd Respondent to place before the State Government for its consideration the recommendation of the Advisory Board dated 6-4-1983. Accordingly, point Nos. (iii) and (iv) are answered as follows :

Point No. (iii) : The recommendation of the Advisory Board dated 6-4-1983 for the premature release of the Petitioner had not beensubmitted to the State Government by the 2nd Respondent.

Point No. (iv) : The rejection of the Petition filed by the father of the Petitioner for premature release of the Petitioner did not amount to rejection of the recommendation of the Advisory Board dated 6-4-1983 fur the premature release of the Petitioner. In view of this, therecommendation of the Advisory Board has remained tobe considered by the State Government; therefore, it is necessary for the 2nd Respondent to submit the same to the State Government for its consideration.

7.1) POINT NO. (v) : It is contended on behalf of the Petitioner that in spite of the fact that the Advisory Board had recommended for premature release of the Petitioner in its proceeding dated 6-4-1983, the case of the Petitioner had not been considered by the State Government nearly for over a year, and the conduct of the Petitioner in the Jail had been satisfactory as recorded in the proceeding of the Advisory Board dated 6-4-1983 and as the unexpired period of sentence as on today is only 1 year 1 month and 19 days, it is a case for directing the respondents to release the Petitionerprematurely. In support of this contention, learned Counsel for the Petitioner has placed reliance on the decisions of the Supreme Court reported in Srinivas and others-v.- Delhi Administration and others and Bhagwat Sharan and others -v.-State of Uttar Pradesh & Others. On the contrary, it is contended by Sri M.L. Achar, learned Government Advocate, that if this Court were to come to theconclusion that the Advisory Board in its proceeding dated 6-4-1983 had recommended for the premature release of the Petitioner based on the opinion of the majority of the members of the Advisory Board pre-sent at meeting, then the only consequential order that has to be passed is to direct the State Government toconsider the recommendation of the Advisory Board and not the premature release of the petitioner as that would result indepriving the State Government of its legitimate power to consider the recommendation of the Advisory Board. The delay if any in considering the recommendation of the Advisory3. A.I.R 1982 SC 1394. : (1983)1SCC389 Board has occurred only due to the wrong understanding of the 2nd respondent that there is no recommendation of the Advisory Board for premature release of the petitioner, as all the members present at the meeting have not unanimously opined for the premature release of the petitioner. Learned Government Advocate has placed reliance on a decision of the Supreme Court, inHiralal-v.- State of Jammu and Kashmir.

7.2) However much a person is condemned, there is no doubt that he is entitled to be treated in accordance with law which also means with all reasonableness and free from bias and arbitrariness. Not only this, he is also entitled to enforce the rights guaranteed to him inside and outside the prison. This shows the sublimity of Rule of law which assures fair treatment even to a condemned criminal. The Supreme Court, in Sunil Batra-v.- Delhi Administration, has observed that 'whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods 'right, just and fair', Bhagwati, J. in Maneka Gandhi observed,

'The principle of reasonableness, which legally as well asphilosophically, is an essential element of equality or non-arbitrarinesspervades Article 14 like a brooding omnipresence and the procedurecontemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Article 14. It must be 'right,' just and fair' and not arbitrary, fanciful or oppressive ; otherwise it would be noprocedure at all and the requirement of Article 21 would not be satisfied'.

The Manual-prepared in consonance with the modern trends in the field of Correctional Administration-provides for remissions in sentence, release on parole and premature release. Thus, a prisoner undergoing rigorousimprisonment, on fulfilling the norms or criteria laid down in the Manual, is entitled to be considered for premature release.

In other words, the right to be considered for premature release is conferred on the prisoner. As it is pointed out. earlier, the Petitioner was eligible to be considered for premature release even in the year 1982 itself. But, his case was considered only on 6-4-1983 by the Advisory Board. Even the recommendation of the AdvisoryBoard for the pre-mature release of the Petitioner has not yet been considered by the State Government. Thus, there is no doubt that the case of the petitioner has remained unconsidered by the State Government due. to the default committed by the 2nd respondent in not submitting the recommendation of the Advisory Board to the State Government. In Srinivas's case the Supreme Court has directed premature release of some of the prisoners concerned therein, because there were no sufficient reasons for non-consideration of their cases for premature release, and some cases, the prisoners have also been ordered to be released on bail pending consideration of their cases for premature release with liberty reserved to the concerned authorities to move the Court for appropriate orders after considering their cases for premature release. In Bhagwat Saran's case the only ground given by the State Government for rejecting the recommendation of thecommittee for premature release of the Petitioners therein, was that after considering their cases sympathetically keeping in view the law and order situation, they could not be released. The Supreme Court held that a bold statement like that with-out any attempt to indicate how the law and order situation were likely to be adversely affected by the release of the Petitioners therein, could not be accepted and in fact, there were no reasons why the recommendation of the committee for release of the Petitioners therein could not be accepted; therefore, the Supreme Court directed the release of thePetitioners thereinforthwith. In the case of Hiralal, the Standing Board constituted for considering the premature release had not considered the case of the Petitioners thereinin terms of the relevant rule ; therefore the Supreme Court allowed the petition to that extent and directed the Standing Board to consider the case of the petitioners therein for premature release in terms of the relevant Rules in its next meeting.

7.3) It appears to me that the decisions in the case of Bhagwat Sharan and Hiralal, have no bearing on the facts and circumstances of the present case. In the instant case, the Advisory Board has considered the case of the Petitioner and has recommended for premature release; but on a wrong understanding of the proceeding of the Advisory Board by the 2nd respondent, the recommendation of the Advisory Board has not been placed before the State Government. Therefore, in such a situation, it is necessary that the State Government be directed to consider the recommendation of the Advisory Board. It is not possible to predict at this stage, what would have been the decision of the State Government, on the Petition filed by the father of the Petitioner for the premature release of the Petitioner if only the 2ndRespondent had brought to the notice of the State Government that the Advisory Board in its proceeding dated 6-4-1983 had recommended for premature release of the Petitioner. On the contrary, as pointed out earlier, the State Government was told by the 2nd Respondent that the Advisory Board had opined against the premature release. In fact, only two reasons are given by the State Government for rejecting the Petition filed by the father of the Petitioner for premature release of the petitioner. Those two reasons are, that the Advisory Board has not recommended for the premature release of the petitioner and the 2nd Respondent also has opined against the premature release of the petitioner. Therefore, it is necessary to afford an opportunity to the State Government to exercise its power under para 817 of the Manual on the basis that the Advisory Board hasrecom mended for the premature release of the Petitioner. But, at the same time, having regard to the fact that the case of the Petitioner for premature release ought to have beenconsidered long back and only a short period of sentence has remained to be undergone, it is necessary to impose acondition that the State Government shall take a decision in the matter within a stated period and in case it fails to take a decision within the stated period, the Petitioner shall stand prematurely released. Such a course will enable the State Government to exercise its power and at the same time it will also safeguard the interest of the Petitioner. Thus, the first portion of Point No. (v) is answered accordingly.

7.4) In view of the aforesaid conclusion, the next question for consideration is as to whether pending consideration by the State Government of the recommendation of the Advisory Board for premature release of the Petitioner, is it just and appropriate to release the Petitioner on bail. It has been already pointed out that the case of the petitioner for pre-mature release has remained unconsidered since 1982. Though the Advisory Board considered it once on 6-4-1983 and opined in favour of the premature release of thePetitioner, the said recommendation was not placed before the State Government. The conduct of the Petitioner in the Jail had been satisfactory as recorded in the proceeding of the Advisory Board dated 6-4-1983. He has earned remissions. On verification, Sri Achar, Learned Government Advocate, submits that though the unexpired period of sentence of the Petitioner as on to-day is only 1 year 1 month and 19 days, but nevertheless, it is not a fit case for releasing the Petitioner on bail pending consideration of his case for mature release by the State Government. Under preliminary circumstances, in Srinivasa's case the Supreme Court has directed the release of Sri Pritam Sing - Petitioner in Writ Petition No. 932/82 - on bail pendingconsideration by the Sentence Revising Board for premature release reserving liberty to the concerned authorities to apply for cancellation of the bail. Therefore, having regard to the facts and circumstance of the case, and the lapse on the part of the 2nd Respondent in not placing the recommendation of the Advisory Board for premature release of the Petitioner before the State Government for its consideration, it is just and appropriate, pending consideration, of therecommendation of the Advisory Board, by the State Government, to release the Petitioner on bail on certain conditions. Thus, the latter portion of Point No. (v) is answered accordingly.

POINT No. (vi): The case of the Petitioner is that he was the Editor and publisher of a newspaper under the name and style 'GARIBI HATAO' and he was also an active congress-man; that he had exposed and reported many high-handed acts of the 2nd Respondent during that time; and on account of that, the 2nd Respondent bears ill-will against thePetitioner. He has also produced as Annexure-B a photostat copy of the aforesaid newspaper 'Garibi-Hatao', containing allegations against the 2nd Respondent (C. S.Mallaiah) affecting his conduct as a Government Servant. It is also further alleged in paras 8 and 9 of the petition that the 2nd Respondent is inimically disposed towards the Petitioner and as such, he had acted with bias, and had not considered the application of the Petitioner for parole or rejected it without any basis. It is also further alleged that the 2nd Respondent is ill-disposed towards the Petitioner and as such any action taken by the 2nd Respondent either as a person authorised to grant parole or as Chairman of the Advisory Board, isviolative of principles of natural justice because he has bias against the Petitioner. Annexure-B is an issue of 'Garibi-Hatao' published by the Petitioner from Bangalore. Itcontains serious allegations against the 2nd Respondent affecting his conduct as a Government servant. In the statement of objections filed by the Respondents, it is stated in para-3 that it is not true that the Petitioner had exposed and reported many high-handed acts of the 2nd Respondent; that the photostat copy of the alleged newspaper 'Garibi Hatao' is seen for the first time by the 2nd Respondent only after he has received a copy of the Writ Petition; that the allegations that the 2nd Respondent bears ill-will towards the Petitioner are absolutely false; that there is no reason for the 2nd Respondent to bear ill-will towards the Petitioner. Similar assertions are made in para 8 of the statement of objections. In para 11 thereof, it is further stated that there is no basis for the contention that the Chairman of the Advisory Board (2nd Respondent) is ill-disposed towards Petitioner and the principles of natural justice have been violated. One Sri J. G. Kulkarni, Headquarters Assistant to the Inspector General of Prisons, has sworn to the affidavit filed in support of the statement of objections. In the affidavit, it is stated that the deponent of the affidavit has acquainted himself with the facts of the case from the available records and the statements made in paragraphs 1 to 12 of the statement of objections accompanying the affidavit are based on the information he has gathered from the available records and he believes them to be true. It is brought to the notice of the Court by the Learned Government Advocate that Sri J.G. Kulkarni the deponent of the affidavit, was authorised by the Government to swear to the affidavit filed in support of the statement of objections. No affidavit of Sri C.S. Mallaiah (2nd Respondent), even though he is eonomine made party to the petition, is filed in support of the statement of objections, or at least in support of the statements contained in paragraphs 3, 8 and 11 of the statement of objections. Sri J.G. Kulkarni was not competent to swear to the facts which were in the personal knowledge of the 2nd Respondent. Whether the 2nd Respondent bears ill-will towards thePetitioner ; whether he had received the issue of Garibi Hatao' (Annexure-B) containing allegation ofmisconduct against the 2nd Respondent; whether he bona fide exercised his authority as the chairman of the Advisory Board, were the matters which were within the personal knowledge of the 2nd Respondent which he alone could traverse. Theallegations of ill-will and bias made against the 2nd Respondent in the petition ought to have been traversed by the 2ndRespondent only. The traversal of the same in the statement of objections filed on behalf of the Respondent, cannot beconsidered to be the one made by the 2nd Respondent because there is no verified or sworn statement of the 2nd Respondent to that effect; therefore the allegations ofmala fides made against the 2nd Respondent by the Petitioner must be considered to have remained un traversed by the 2nd Respondent. But, having regard to the nature of the directions that are required to be issued in view of the conclusions reached by me on points (i) to (v), it is not necessary to record a finding as to whether the 2nd Respondent was aware of theallegations of misconduct made against him in the aforesaid issue of 'Garibi Hatao', produced as annexure B.

8.2) It is not in dispute that the newspaper 'Garibi Hatao' (Annexure-B) was published by the Petitioner. Having regard to the aforesaid conclusions, the State Government is now required to consider the recommendation made by Advisory Board on 6-4-l983 for the premature release of the petitioner. It is the apprehension of the petitioner that if the State Government considers the re-commendation of the Advisory Board dated 6-4-1983 on obtaining the opinion on the 2nd respondent, who, havingregard to the allegations contained in petition and Annexure-B, is likely to opine against the petitioner. On the service of notice of the petition, as stated in the statement of objections, the 2nd respondent has come to know of the allegations against him by the petitioner in Annexure-B. The State Government also has come to know of it, as it has also been served with the notice of the petition accompanied by a copy of Annexure-B. In this background, the apprehension of the petitioner that the 2nd respondent is likely to opine against him, cannot be held to be baseless or capricious or unreasonable; therefore, it cannot be brushed aside. Hence it is necessary to exclude such a possibility. Thisapprehension can be allayed and the interest of the petitioner can very well be safeguarded and the possibility of the proceeding, before the Government being affected by the biased opinion of the 2nd respondent can be excluded if the State Government is directed to take a decision in the matter only on the basis of the recommendation of the Advisory Board in its proceeding dated 6-4-1983 for the premature release of the petitioner. In such an event the State Government has to eschew from consideration the letter/report dated 29th July, 1983, bearing No.J2/CR/383 of the 2nd respondent and its decision rejecting the petition filed by the father of the Petitioner for premature release of the Petitioner and take a fresh decision only on the recommendation made by the Advisory Board in its proceeding 6-4-1983 for premature release of the Petitioner. In such an event, the proceedings of the State Government will be free from the biased view of the 2nd respondent. Subject to the aforesaid directions, I am of the view that it is not necessary to record a finding: on question of malice imputed against the 2nd respondent. Point No. (vi) is answered accordingly.

9. For the reasons stated above, subject to the condition that the State Government shall take a decision on the recommendation of the Advisory Board contained in its proceeding dated 6-4-1983 for premature release of the petitioner, on or before the 15th of November, 1984; failing which, the petitioner shall stand prematurely released; the petition is allowed in the following terms : -

(1) The recommendation of the Advisory Board for the District Prison, Mysore, dated 6-4-1983 for premature release of the Petitioner be placed by the 2nd respondent before the State Government on or before 10th October, 1984 without expressing his opinion in any manner :

(2) The State Government shall consider the recommendation of the Advisory Board for the District Prison, Mysore, as incorporated in its proceedings dated 6-4-1983 for the premature release of the Petitioner without reference to its earlier order rejecting the Petition filed by the father of the Petitioner for premature release of the Petitioner and also the letter dated 29-7-1983 bearing No. J2/CR. 300/83 written by the Inspector General of Prisons - Sri C. S. Mallaiah (2nd respondent) and without obtaining his opinion in any manner and take a decision in the light of the observations made in this order on or before the 15th November, 1984;

(3) The Petitioner shall be released on bail from the District Prison, Mysore, subject to the following conditions :

(i) The Petitioner shall furnish two satisfactory sureties for a sum of Rs. 20,000/- each to the satisfaction of the 2nd respondent and shall execute a self-bond for a like sum :

(ii) The Petitioner shall within 24 hours from the time of his release on bail from the District Prison, Mysore, report to the Station House Officer, Wilson Garden, Bangalore;

(iii) He shall reside at the address viz., No. 149, B.T.S. Road, Wilson Garden, Bangalore-30;

(iv) He shall not leave the Corporation Limits of the City of Bangalore, without the prior permission of the DistrictMagistrate, Bangalore:

(v) He shall report Co the Station House Officer, Wilson Garden, Bangalore, daily at the hour and time specified by the Station House Officer;

(vi) He shall not involve himself directly or indirectly in any unlawful activities which are likely to endanger or cause breach of peace and disturb tranquility :

(vii) He shall not associate with notorious bad characters or lead a desolate life :

(viii) He shall maintain good behaviour and shall not commit any offence punishable by law in force, in India;

(ix) The State Government shall take a decision on or before 15-11-1984. In case the State Government takes a decision onconsideration of the recommendation dated 6-4-1983 made by the Advisory Board for the DistrictPrison, Mysore, for the premature release of the Petitioner, and in the light of the observations made in this order, not to release the Petitioner prematurely from the jail, the Petitioner shall, within 24 hours from the time such order is served on him, surrender to the jailauthorities of the District Prison, Mysore. In such a situation, the period spent on bail shall not be taken into account or is not deductible from the period of sentence to be undergone by the Petitioner ;

(x) It is also open to the Petitioner to challenge the decision of the State Government regarding his premature release, if it goes against him. In that event, the aforesaid direction to surrender to the Jailauthorities of the District Prison, Mysore, shall be subject to the order (interim or final) that may he made in such a proceeding;

(xi) If the State Government lakes a decision to prematurely release the Petitioner from jail, the surety-bonds furnished and the self-bond executed by him shall stand automatically cancelled from the date of such decision, without any further order to that effect;

(xii) If the Slate Government fails to take a decision on or before 15-11-1984, either in favour of or against the premature release of the Petitioner pursuant to the recommendation dated 6-4-1983, made by the Advisory Board for the District Prison, Mysore, for the premature release of the Petitioner the self-bond executed by the Petitioner and the surety bonds furnished by him shall stand automatically cancelled with-out any further order tothat effect.


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