STATE v. BHOLA (2003) 3 SCC 1

FACTS OF THE CASE

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 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 the opportunity to lead a crime free and peaceable life. Such a 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.

ISSUES

Whether, An Act to provide for the release of certain prisoners on conditions imposed by the (Madhya Pradesh) Government?

ARGUMENT 

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 :-

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 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;

[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.

JUDGEMENT

The two-Judge Bench of this Court in the case of the 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 are 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 necessarily 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 a 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.

REFERENCES

https://www.casemine.com

This Article is written by Sarthak Dwivedi of Vikramajit Singh Sanatan Dharma College, Intern at Legal Vidhiya. 

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