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Sitaram Barelal Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 32 of 1969
Judge
Reported inAIR1969MP252; 1969MPLJ539
ActsTransfer of Prisoners Act, 1950 - Sections 3, 3(1) and 3(2); Madhya Pradesh Prisoners Release on Probation Act, 1954 - Sections 2; Madhya Pradesh Prisoners Release on Probation Rules, 1964 - Rule 3
AppellantSitaram Barelal
RespondentState of Madhya Pradesh
Appellant AdvocateS.C. Datt, Amicus Curiae
Respondent AdvocateM.V. Tamaskar, Dy. Govt. Adv.
DispositionPetition allowed
Excerpt:
.....licence, and the inspector general of prisons having agreed with that recommendation, the state government of madhya pradesh issued a licence in form d under rule 7 of the rules, for his conditional release on probation under section 2 ibid, vide licence no. the advisory board on 13th march, 1968, had recommended his premature release under section 401 of the code of criminal procedure and, on the 14th march, 1968, the inspector general of prisons also appears to have agreed with that recommendation but the state government of madhya pradesh in their turn, referred the matter to the state of maharashtra on 23rd april, 1968, for theirconcurrence. 5. as to the first, we are clearly of the view that the powers of the state govern-ment under section 2 ibid are untrammelled by any..........xvi of 1954) having been brought into force on 1st february, 1962, the petitioner applied to the state government or madhya pradesh for his release on probation under section 2 thereof.the petitioner's application was forwarded by the authorities to the district magistrate, chanda, who recommended his case for release and, thereupon, the government of madhya pradesh placed the matter before the advisory board under rule 6 (5) of the madhya pradesh prisoners release on probation rules, 1964 (hereinafter referred to as the 'rules'). the advisory board duly recommended his release on a conditional licence, and the inspector general of prisons having agreed with that recommendation, the state government of madhya pradesh issued a licence in form d under rule 7 of the rules, for his.....
Judgment:

Sen, J.

1. After hearing the parties on merits, we passed an order on 27th January, 1969, to the following effect:

'Having heard the parties, we are satisfied that this petition for grant of a writ of habeas corpus under Article 226 of the Constitution of India, must be allowed. We hereby set aside the order issued by the Secretary to Government of Madhya Pra-desh, Jail Department, bearing No. 1090/ 342/III-Jail, dated Bhopal, the 3rd May 1967, cancelling the petitioner's conditional release on a licence issued under Section 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954.

We accordingly direct the State of Madhya Pradesh, and, in particular, the Superintendent of the Central Jail, Jabalpur, where the petitioner is being detained, to serve him with the original licence of conditional release already issued by the State Govern-ment in Form 'D' under Rule 7 of the Madhya Pradesh Prisoners Release on Probation Rules, 1964, and to afford him every facility to comply with the conditions imposed thereby and to fulfil all other legal requirements and thereafter to release him forthwith in terms of the licence, from the prison where he is being detained. The reasons for our decision shall follow later.'

The reasons for allowing the petition are these.

2. Before stating the reasons, it is necessary for us to set out a few facts which are relevant to the present controversy. On 29th October, 1956, the petitioner was convicted by the Additional Sessions Judge, Chanda, under Sections 302, 452, 453 and 506 (II) of the Penal Code and sentenced to imprisonment for life. The district of Chanda being in Vidarbha Region, he was lodged at the Central Jail, Nagpur, to serve out his sentence. After the States Reorganisation Act (Act No. XXXVII of 1956), came into forceon 1st November, 1956, the entire Vidarbha Region became part of new State of Maharashtra and, since he had been convicted by a Court of Session in that region, the petitioner continued to be a prisoner in the State of Maharashtra, till 23rd April, 1958. As the petitioner desired to be transferred to the Central Jail, Jabalpur, being nearer to his home district, Narsinghapur, the Maharashtra State under the arrangement referred to in Section 3 of the Transfer of Pri-sioners Act (Act No. XXIX of 1950), obtained the sanction of the Government of Madhya Pradesh for his transfer, and, he was, accordingly, on that day, transferred to that Jail, where he is now detained. The Madhya Pradesh Prisoners Release on Probation Act (No. XVI of 1954) having been brought into force on 1st February, 1962, the petitioner applied to the State Government or Madhya Pradesh for his release on probation under Section 2 thereof.

The petitioner's application was forwarded by the authorities to the District Magistrate, Chanda, who recommended his case for release and, thereupon, the Government of Madhya Pradesh placed the matter before the Advisory Board under Rule 6 (5) of the Madhya Pradesh Prisoners Release on Probation Rules, 1964 (hereinafter referred to as the 'Rules'). The Advisory Board duly recommended his release on a conditional licence, and the Inspector General of Prisons having agreed with that recommendation, the State Government of Madhya Pradesh issued a licence in Form D under Rule 7 of the Rules, for his conditional release on probation under Section 2 ibid, vide Licence No. 1191-92/347-III dated the 8th April, 1966, Before that order could, however, be implemented, the authorities concerned felt that they had overlooked the Inspector General of Prisons' Circular No. 6548 dated 2nd April, 1965, which requires the prior concurrence of the State of conviction as a condition precedent for the release of prisoners under Section 2 ibid. Apparently, the State Government of Madhya Pradesh consulted the State of Maharashtra which ultimately did not agree to the release of the petitioner, and hence the order of conditional release passed on 8th April, 1966, was cancelled by the State Government of Madhya Pradesh, by their impugned order No. 1090-342/III-J dated 3rd May, 1967, without assigning any reason whatever. Thereafter, the authorities tried to take steps for his premature release under Paragraph 1018 of the Madhya Pradesh Jail Manual, but their efforts proved to be abortive.

The Advisory Board on 13th March, 1968, had recommended his premature release under Section 401 of the Code of Criminal Procedure and, on the 14th March, 1968, the Inspector General of Prisons also appears to have agreed with that recommendation but the State Government of Madhya Pradesh in their turn, referred the matter to the State of Maharashtra on 23rd April, 1968, for theirconcurrence. That Government, having turned down the recommendation for the premature release of the petitioner, the Government of Madhya Pradesh dropped the proceedings. Hence this petition for a writ of habeas corpus.

3. The State Government of Madhya Pradesh have in their return, asserted that the petitioner cannot be released without the prior concurrence of the State Government of Maharashtra and, they were, therefore, right in revoking their earlier order for his conditional release and in consequence, the confinement of the petitioner in prison was not illegal. Their contention is that so far as remissions in sentence are concerned, the rules applicable to the prisoners in general in Madhya Pradesh, whether from this State or outside, are the same, but as regards premature release of prisoners, the concurrence of the State of conviction is necessary. Presumably, the contention rests on the strength of the Inspector General of Prisons, Circular referred to above. The validity of that Circular being in question, we feel it would be rather convenient to set the same out in extenso. It reads:

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vU; izkUr ds jgus okys cUnh ;fn e/; izns'k esanf.Mr gksdj e/; izns'k ds gh tsyksa esa ltk dkV jgsa gksa rks fu;ekuqlkj mlizkUr esa muds fy;s dksbZ vfHkHkkod ugha feysxkA bl fy;s ;fn os ftl izkUr dsfuoklh gSa ogka ds izksos'ku ,DV dk ykHk mBkuk pkgrsgSa rks ogka viuk LFkkukUrjdjk ysaA

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4. The questions for our consideration in this petition, are-

(1) Whether the powers of the State Government of Madhya Pradesh under Section 2 of the Madhya Pradesh Prisoners Release on Probation Act, 1954 are subject to any prior concurrence of the State of conviction, as envisaged by the impugned Circular? And

(2) Whether the Superintendent of the Central Jail, Jabalpur has a right under Section 3(1) of the Transfer of Prisoners Act, 1950 to detain the petitioner until he serves out his sentence of imprisonment for life, despite the order of the State Government of Madhya Pradesh for his release on licence in Form 'D' under Rule 7 of the Rules?

5. As to the first, we are clearly of the view that the powers of the State Govern-ment under Section 2 ibid are untrammelled by any such condition as was sought to be introduced by the offending circular requir-ing the prior concurrence of the State of conviction as a condition precedent for the exercise of such powers. The terms of that section are clear enough, and it reads, as follows:

'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.'

The use of the words 'it appears to the Government' in the section, prima facie rests the exercise of those powers to the satisfaction of the State Government. Nevertheless, that satisfaction has to be arrived at, only upon a consideration of the conditions mentioned therein.

6. Now, the only two conditions envisaged by that section, are (i) the confinement of a prisoner under a sentence of imprisonment; and (ii) the likelihood of his abstaining from crime and leading a peaceful life, if he is released therefrom, looking to his antecedents and conduct in prison. Upon fulfilment of these conditions, the powers of the State Government to direct a prisoner's conditional release, at once, come into play, subject, of course, to a compliance of the other requirements appearing in the latter part of that section, by the prisoner himself. That con-struction flows from a plain reading of the section itself. The only other requirement is that imported by Rule 3 of the Rules which enumerates the different classes of prisoners who should not be released under the Act. Admittedly, the petitioner does not fall within the mischief of Rule 3, and there was, therefore, no impediment to the applicability of Section 2 ibid to his case. For these reasons, it follows that the powers of the State Government of Madhya Pradesh to release prisoners by licence on conditions prescribed in Section 2 ibid, apart from being jsubject to the conditions specified therein, are not subservient to any further requirement like the prior concurrence of the State of conviction. Neither the State Government of Madhya Pradesh nor their Inspector General of Prisons could, by an executive fiat of this nature like the offending circular in question, curtail the ambit of the statutory powers conferred on the State Government under Sec-tion 2 ibid. The Inspector General of Prisons' Circular in question must, accordingly, be held to be invalid, being in excess of his authority, and the action of the State Government in cancelling the petitioner's conditional release under Section 2 ibid being based on that circular, must also be held to be an wholly unwarranted abdication of their own powers to the caprice or whim of an external authority.

7. We now turn to the second question urged, namely, whether the transfer of the petitioner by the State of Maharashtra being under Section 3 of the Transfer of Prisoners Act (Act No. XXIX of 1950), there could be no remission of his sentence without the previous sanction of that State. We may profitably refer to the legislative history leading to this piece of legislation. Section 29 of the Prisoners Act (Act No. III of 1900) had previously provided, inter alia, for the inter-State transfer of prisoners between the different States mentioned in Parts A, C and D of the First Schedule to the Constitution. There was, however, no provision either in that Act, or, in any other law, for the transfer of prisoners from prisons in those States to prisons in Part B States and vice versa. It appears that cases frequently arose where the transference of prisoners from Parts A, C and D States to Part B States and mutatis mutandis was considered administratively desirable or necessary. The Transfer of Prisoners Act, 1950, was intended to remove this lacuna and was to provide legal sanction to such transfers or removals; and, the words 'or, with the consent of the State Government concerned, to any person in any other State', appearing in Section 29(1)(d) were, consequently, omitted by Section 4 thereof, inasmuch as the Transfer of Prisoners Act (Act No. XXIX of 1950) was now an all pervading measure providing for transfer of prisoners between the different States in India. It extends to the whole of India except the State of Jammu and Kashmir.

8. We are definitely of the view that the continued detention of the petitioner at the Central Jail, Jabalpur, despite the earlier order of the State Government for his conditional release on probation under Section 2 ibid, is wholly illegal. On a reading of Section 3 of the Transfer of Prisoners Act, it would appear that the transfer of the petitioner by the State Government of Maharashtra to the Central Jail, Jabalpur, with the sanction of the Madhya Pradesh Government, did not make his subsequent release on probation, conditional upon the prior concurrence of the State Government of Maharashtra. Under Sub-section (1) of Section 3 of 1950 Act, when any person is confined in any prison of a State, the Government of that State may, with the willingness of the Government of the other State concerned, direct the removal or transfer of the prisoner, from their prison to any prison in that other State. That provision applies to all classes of prisoners, including one like the petitioner, who is undergoing a sentence of imprisonment for life. In terms of this provision, no inter-Sta-tal agreement could possibly be arrived at, which would make the subsequent release of such prisoner on probation or otherwise, by the transferee State, conditional upon the prior concurrence of the State from whose prison he had been transferred. At any rate, no such inter-Statal agreement between the States of Madhya Pradesh and Maharashtra has been brought to our notice, nor have the State Government placed reliance on any of its terms as supporting their action.

9. Apart from this, it is clear upon the transfer of a prisoner from the prisons of one State to that of another, Sub-section (2) of Section 3 comes into play. It reads:

'(2) The Officer in charge of the prison to which any person is removed under Sub-section (1) shall receive and detain him, so far as may be, according to the exigency of any writ, warrant or order of the Court by which such person has been committed, or until such person is discharged or removed in due course of law.'

On a plain construction of this provision, the Officer in charge of the prison to which a prisoner is removed or transferred under subsection (1), has to receive and detain him in that prison, so far as may be, (i) according to the exigencies of any writ, warrant or order of the Court, by which such person had been committed; or (ii) until such person was dis-charged or removed, in due course of law. Normally, the Superintendent of the Central Jail, Jabalpur, has, therefore, under the first part of Section 3(2), a right to detain the petitioner till the completion of his sentence of imprisonment for life, unless he is discharged or removed, in due course of law, under the second part of that section.

10. Now, the expression 'in due course of law', appearing in Sub-section (2) of Sec-tion 8, in the context in which it appears, must be interpreted, as meaning 'under some rule or enactment in force'. In the view, detention of a prisoner is governed not only by the relevant rules and regulations in the Tail Manual of the particular State where he happens to be imprisoned for the time being, but also by all the laws of that State governing all classes of prisoners. The Madhya Pradesh Prisoners Release on Probation Act, 1954 must, in our view, be regarded as a relevant law governing the subject. It accordingly, follows that on other conditions being fulfilled, the petitioner was entitled to benefits of Section 2 thereof, unless he belonged to any of the excepted classes mentioned in Rule 3 of the rules. As already stated, he does not belong to any of the categories enumerated therein, and there was, therefore, no legal impediment to his conditional release on probation under Section 2 ibid. Section 3 of the Transfer of Prisoners Act, 1950, under which the petitioner was transferred by the State of Maharashtra to the Central Jail, Jabalpur, nowhere contemplates that theirprior concurrence, i.e., of the State Government of Maharashtra, would be a condition precedent for the exercise of the powers conferred under Section 2 ibid, i.e., his conditional release on probation, and cannot, therefore, be brought into aid as 'supporting the present action of the State Government of Madhya Pradesh in cancelling their earlier order.

11. The result is that the petition succeeds and is allowed. We, accordingly, direct that a writ of habeas corpus under Article 226 of the Constitution be issued for the release of the petitioner in terms of our interim order dated 27th January, 1969, upon fulfilment of the conditions set forth therein. There shall be no order as to costs in these proceedings. We would, however, like to record our indebtedness to Shri Satish Dutt, Advocate, who had kindly consented to appear as amicus curiae on behalf of the petitioner, for the assistance that he has rendered.


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