Bala Ram vs State of M.P.

S.K. Dubey, J.

This order shall also govern the desposal of writ petition No. 3136/94 (Amolsingh and another Vs. State of M. P. and another.)

By this petition under Articles 226/227 of the Constitution of India, the petitioner-convict has challenged the order dated 10.6.94 of the State Government, whereby after considering the report of the Probation Board dated 6.6.94 the State Government has rejected the petitioner''s application u/s 2 of the M. P. Prisoners'' Release on Probation Act, 1954, Act No. 16 of 1994 (for short the Act) on the ground that the District Magistrate on his determination under Rule 14 of the M. P. Prisoner''s Release on Probation Rules, 1964 (for short the ''Rules'') informed his opinion to the State Government that the proposed guardian is not fit to act as such having regard to his status, antecedents and degree of control that he may exercise on the prisoner after his release as there is likelyhood of the breach of peace because of the group rivalry in the village.

Learned counsel for the petitioner submitted that the District Magistrate after determination of the fitness of the proposed guardian, if was of the opinion that the guardian is not fit to act, the District Magistrate ought to have returned the application informing the petitioner that the proposed guardian is not fit to act as guardian ought to have directed the petitioner to propose another guardian who in the circumstances of the case may be a fit person to act as such; but that was not done at that stage. Therefore, in the circumstances, the order passed on the application of the petitioner is illegal and deserves to be set aside. To support the contention learned counsel placed reliance on two unreported decisions of this Court, M. P. No. 1607/94 Ramesh Vs. State of M. P. decided on 26.7.94 and M. P. No. 1673/94 Narbada Vs. State of M. P. decided on 3.10.94.

Shri V. K. Shukla learned Government Advocate placing reliance on a full Bench decision of this Court in Gangacharan Baijnath Prasad Vs. State of Madhya Pradesh and Others, Contended that in fact after considering the antecedents of the petitioner and the circumstances, the Probation Board has rejected the application. It was further submitted that Rule 14 casts a duly on the District Magistrate of his determination about the fitness of proposed guardian after taking into consideration the relevant factors enumerated in rule 14(1) of the Rules, and then to infrom his opinion to the State Government. No duty is casted upon the District Magistrate to intimate that stage about the in fitness of the guardian to prisoner who has applied for releasing him on license, hence, the order of rejection of the application for releasing the petitioner on license on the ground of unfitness of the guardian is legal and proper.

To appreciate the contentions raised it would be appropriate to refer section 2 of the Act and Rules 6 & 14 of the Rules which read thus :-

Section 2 Power of Government to release by licence on conditions

imposed by it: Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1988 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.

Explanation;

The expression "Sentence of imprisonment" in this section shall include imprisonment in default of payment of fine and imprisonment for failure to furnish security under, Chapter X of the Code of Criminal Procedure.

Rule 6 Procedure;

(1) Any prisoner eligible for release under these rules may make an application in form A to the Superintendent. Such form shall be printed at the cost of the Government and supplied free of charge to prisoners, to their relative and to persons offering themselves as their guardians.

(2) On the receipt of the application the Superintendent shall examine the application to see if the prisoner and his proposed guardian have duly filled in the colums of the application, meant to be filled in by them. 11 the application is in order, the Superintendent shall entertain it and cause it to be entered in a register maintained in Form 8. If the prisoner is in eligible under rule 3 he shall reject the application and inform the prisoner of his order. If the prisoner is eligible for release under rule 4 he shall fill in the columns in the application meant to be filled in by him and forward the same as soon as may be, to the District Magistrate of the District in which the prisoner was convicted. If the application is not in order the Superintendent shall return it to the prisoner for necessary correction of supplying the omissions.

(3) On receipt of an application under sub-rule (2) the District Magistrate shall immediately consult the Superintendent of Police and the Probation Officer where one is appointed and, if necessary, the District Magistrate of the District in which the prisoner ordinarily resides and on receipt of their reports fill in the entries meant to be filled in by him and shall without delay, forward the same to the Inspector-General of Prisons, Madhya Pradesh.

(4) The District Magistrate shall maintain a register in form C in which all applications received from the Superintendent under Sub-rule (2) shall be duly entered.

(5) The applications received from the Districts by the Inspector-General of Prisons shall be considered by a Board consisting of the Home Secretary to the Government of Madhya Pradesh in the Home Department or any other officer empowered in this behalf by the Government, the Inspector-General of Prisons, Madhya Pradesh or the Deputy Inspector-General or the Deputy Inspector-General of Prisons as the case may be, and a non-official member to be appointed by the Government. Meeting of the Board shall be held ordinarily one every month to make necessary recommendations. The Secretary to the Government in the Home Department or any other officer on empowered in this behalf by the Government shall be the Chairman of the Board. A non-official member shall unless the State Government terminates his appointment earlier hold office for a term of three years.

(6) The Government shall, on the receipt of recommendation of the Board, pass such orders as it may deem proper.

Rule 14 Guardians

(1) In each case the District Magistrate shall determine whether or not the proposed guardian is fit to act as such having regard to his status, anticident, and the degree of control that he may exercise on the prisoner, and inform the Government of his opinion.

(2) Parents or relatives of a prisoner may he appointed guardian if the District Magistrate is satisfied that they are fit to act as such guardians.

(3) A officer of a prison shall in no case be eligible to act as guardian unless the Inspector-General of Prisons, Madhya Pradesh sanctions it.

A bare look to the order impugned, it is amply clear that the application of the petitioner convict has not been rejected on the grounds enumerated u/s 2 of the Act, but the same has been rejected on the ground that the proposed guardian is not fit to act and the degree of control over the petitioner taking into consideration the circumstances prevailing in the village because of the party faction. True, Rule 14 does not require that a District Magistrate has to intimate or inform a prisoner applying for releasing him on license at that stage about the unfitness of the guardian, before the application is forwarded to the Probation Board for consideration. However, if in the opinion of the District Magistrate, the guardian is not fit there is not occasion to forward such an application of a prisoner for consideration of the Probation Board The application is to be forwarded under rule 6 (2) to the district Magistrate if it fulfills all the requirements. After receipt of the application the District Magistrate has to act in accordance with Rule 6 (3) and thereafter to fill the columns of which the entries are to be made as required by rule 6 (3), and then to forward the same to the Inspector-General of Priosns. On receipt of such application in the manner prescribed in sub-rule (5) of Rule 6, the Probation Board has to consider the application of the prisoner within the parameters of section 2 of the Act. Therefore by reading the Rule 6 and 14 together, it is clear that the scrutiny of the application is to be made before, it is forwarded for the consideration of the Probation Board, that it is complete in all respects, if the guardian on determination by the District Magistrate is not fit or is incompetent, it does not comply Rule 6 (3), therefore, such an application need not be forwarded to the Inspector General of Prisons for consideration of the Probation Board, but should be returned to such a prisoner to propose another guardian who may be lit person as required by Rule 14. Of course under Rule 14 the District Magistrate has to inform its opinion to the Government about the fitness of the guardian so that after the recommendation of the Probation Board, the Government may pass such orders as it may deem proper on taking into consideration the relevant factors as required by section 2 of the Act.

The Full Bench decision in case of Gangadharan (supra) has no application as in that question of "antecedents'' of a prisoner was considered in relation to section 2 of the Act. and not relating to fitness of the guardian.

As a result of the above discussion the order of the State Government and that of Probation Board are quashed, the District Magistrate is directed to return the application of the petitioner informing him to propose other guardian. After the fresh guardian is proposed, the District Magistrate shall determine the fitness of the guardian in accordance with Rule 16 and then shall forward the application of the petitioner for consideration of the Probation Board Inspector-General of Prisons, on that Probation Board shall take a decision for recommending the case of the petitioner in accordance with law but all that shall be done within a period of six months.

Accordingly, the petition is allowed in the manner aforesaid.