Full Judgment
Shantanu Kemkar, J.
1. Both these petitions are disposed of by this common order.
2. Petitioner Ram Sewak was convicted under Section 302 of the Indian Penal Code and was sentenced for life imprisonment by Additional Sessions Judge, Damoh by judgment dated 17-4-1998. He filed an application for first leave under Section 6 of the Madhya Pradesh Prisoner's Leave Rules, 1989 (for short 'the Rules'). That application was allowed. Thereafter the petitioner filed another application for subsequent leave under Rule 8 of the Rules. The said application was returned by the Inspector General of Prisons to the Superintendent, Central Jail, Jabalpur, relying upon the circular dated 10-9-2004 issued by the Inspector General of Prisons, Bhopal is ultra vires and is contrary to the provisions of the Prisoners Act, 1900 (for short 'the Act') and the Rules. Petitioner contends that the Act and the Rules no where provides that sanctioning authority of the subsequent leave application filed in the next calendar year will be the District Magistrate. He also challenges the insistence of the jail authorities for furnishing surety of Rs. 50,000/- for release on leave on the ground that it is contrary to the circular dated 19-6-2003 issued by the Inspector General of Prisons.
3. Petitioner Vijay Patel was convicted for offence under Section 302/149 of the Indian Penal Code and was sentenced for life imprisonment by the V Additional Sessions Judge, Jabalpur in Sessions Trial No. 56/1983. He contends that he applied for subsequent leave under Rule 8 of the Rules. Though his earlier applications for subsequent leaves were considered and allowed by the Inspector General of Prisons but this time in view of the circular dated 10-9-2004 his application was returned by the Inspector General of Prisons to the Superintendent General Jail treating it to be the first application, as being first application in the calendar year. The petitioner contends that the circular dated 10-9-2004 is ultra vires and is contrary to Rule 8 of the Rules.
4. In the returns filed by the respondents, the respondents have stated that jail authorities sin some of the districts were wrongly construing provisions contained in the Rules inasmuch as they were under the impression that it is only the first application which is required to be considered by the District Magistrate and every second or subsequent application is required to be considered by the Inspector General of Prisons. Thus, jail authorities were referring all subsequent applications to the Inspector General of Prisons for consideration, even if the same was first application for leave in a calendar year. On account of said mistakes on the part of jail authorities, the consideration of applications for leave were being delayed. Thus in order to clarify the correct legal position the third respondent issued a circular dated 10-9-2004 whereby all jail authorities have been informed that every first application for grant of leave submitted in a calendar year is required to be considered by the District Magistrate and only such applications are required to be forwarded to the Inspector General of Prisons which are second in a calendar year. (Emphasis supplied)
5. The Prisoners Act, 1900 has been amended by the Prisoners (Madhya Pradesh Amendment) Act, 1985. Section 31-A deals with grant of leave to prisoners.
'31-A. Grant of leave to Prisoners.- (1) Subject to the provisions to this part and to such conditions as may be prescribed, the State Government or any authority to which the State Government may delegate its powers in this behalf may grant leave to any prisoner who has been sentenced to a term of imprisonment of not less than three years, for a period not exceeding twenty one days in a year, excluding the time required for journeys to the first place of his visit immediately after departure from the prison and from the place of last visit to the person back.
(2) The provisions of sub-section (1) shall not apply to a prisoner who has been classified as a habitual criminal for the purpose of the rules for the time being in force made under the Prisons Act, 1894 (IX of 1894) and who has more than three previous convictions.
(3) Leave shall not be admissible to a prisoner during a year under sub-section (1)-
(i) for more than two occasions;
(ii) for a period of less than ten days; and
(iii) unless a period of three months has elapsed since the expiration of leave last availed of during the year and the commencement of the leave applied for.
(4) No prisoner shall be granted leave under sub- section (1), unless:-
(a) he has at the time of the grant of leave serve one-half of his sentence including remission, or a period of not less than two years of his sentence, including remission, whichever is less;
(b) he has not been punished for a prison offence under Section 46 of the Prisons Act, 1894 (IX of 1894) during twelve months preceding the date of commencement of the leave applied for.
(5) The period of leave of a prisoner under sub- section (1) shall count towards the total period of his sentence.
(6) The authority directing the grant of leave to any prisoner under sub-section (1) may require him to enter into a bond with or without sureties for due observance of conditions specified in the direction.
(7) If any prisoner granted leave under sub-section (1) fails to fulfill any of the conditions imposed upon him under the said sub-section or in the bond entered into by him, the bond shall be declared to be forfeited and any person bound thereby shall be liable to penally thereof.
(8) If a prisoner has violated the conditions of leave or bond, he shall not be entitled to leave under sub-section (1) during the remaining period of his sentence.'
6. Rule 5 of the Rules deals with application for grant of leave. Rule 6 deals with sanctioning authority for first leave. Rule 8 provides for sanctioning authority for subsequent leaves. The aforesaid provisions are extracted below:-
'5. Application for grant of leave.- (a) Request from prisoners for leave, under Section 31A of the Act, shall be made in writing in Form 'F' to the Superintendent of the Jail (hereinafter called 'Superintendent') at the parade on Monday.
(b) The Superintendent shall personally examine the records of the prisoner making the request for leave and satisfy himself that the prisoner fulfills the conditions for grant of leave.
(c) If the prisoner fulfills the conditions of the leave, the Superintendent shall report the first request of the prisoner to the District Magistrate of the concerning district where the prisoner resided before conviction.
6. Sanctioning Authority for First Leave.- (a) If the District Magistrate, after making such enquiry as he may consider necessary, is satisfied that the request for grant to leave can be granted without detriment to public interest, he shall issue to the Superintendent a duly signed and sealed warrant in Form 'A' to the prisoner. The District Magistrate shall enter in the warrant the number of days that will be required for the journeys by the shortest practicable route to and from the place at which during his leave the prisoner proposes to reside or if he proposes to visit more than one place, the farthest place from the jail which he proposes to visit.
Note :.....(not relevant)......
(b) If the District Magistrate considers that the grant of leave to the prisoner is undesirable in the public interest, he shall intimate his opinion to the Superintendent, who shall inform the prisoner that his request has been rejected.
8. Sanctioning authority for subsequent leaves.- (a) Once the prisoner has availed of the leave, the Inspector General of Prisons (hereinafter called 'Inspector General') shall be competent to grant leave as per rule subsequently on fulfillment of the conditions laid down in Rule 4.
(b) Request by the prisoner for subsequent leave shall be made in the same manner as in the first leave.
(c) If the examination of the records of the prisoner shows that the prisoner is eligible for subsequent leave, the Superintendent of the jail shall obtain the enquiry report of the Probation Officer/Welfare Officer concerned and thereafter shall sent the case to the Inspector General.
(d) On receipt of the case from the Superintendent of Jail, the Inspector General shall pass such orders as he may consider necessary.
(e) The prisoner whose leave is sanctioned by the Inspector General shall be granted a release order in Form 'B'.
7. Since the petitioners have called in question the validity of the circular dated 10-9-2004 and the respondents have taken a stand that the said circular provides that every first application for grant of leave submitted in a calendar year is required to be considered by the District Magistrate and only such applications are required to be forwarded to the Inspector General of Prisons which are second in a calendar year, we would deem it fit to extract the relevant portion of the said circular :-
1 vodk'k dh ik=rk%
cUnh vf/kfu;e] 1900 rFkk e/;izns'k vodk'k fu;e] 1989 ,oa ekuuh; mPpre U;k;ky; dh fjV fiVh'ku ua% 169@99 nknw m QZ rqylhnkl fo:) egkjk'V~ jkT; rFkk mPp U;k;ky; tcyiqj dh fjV fiVh'ku dzekad 1550@2001] thou flag oekZ fo:) e/;izns'k 'kklu esa ikfjr vkns'k fnukad 11&5&2001 ds vuqlkj ,u-Mh-ih-,l- ,DV ds cUnh tks fd vodk'k fu;eksa ds vUrxZr vko';d ltk Hkqxr pqds gksa] dks Hkh isjksy dh ik=rk gksxhA
2 I izR;sd ik= cUnh dks dSysaMj o'kZ vFkkZr~ ,d tuojh ls 31 fnlEcj ds e/; dqy 21 fnol ds vodk'k dh ik=rk jgsxh vkSj bl 21 fnol dh vof/k dks dksbZ Hkh dSnh vf/kdre nks volj ij vodk'k ys ldsxkA ysfdu nksuksa vodk'k ds e/; rhu ekg dk vUrj gksuk vko';d jgsxkA
II ;fn fdlh cUnh dh vodk'k gsrq ik=rk o'kZ ds .k/; esa vkrh gS rc Hkh m cUnh dks ml o'kZ esa 21 fnol dh vodk'k dh ik=rk jgxhA
III cUnh vf/kfu;e] 1900 dh /kkjk 31&d; 3 ds vuqlkj o'kZ esa nh tkus okyh nks Nqf;ksa esa ls izFke Nqh ftyk eftLVsV }kjk e/; izns'k cUnh Nqh fu;e 6 ds vuqlkj Lohd`r dh tkosuh rFkk izFke Nqh eatwj gks tkus ds 3 ekg mijkUr i'pkr~orhZ Nqh e/;izns'k Nqh fu;e] 1989 ds fu;e 8 ds vuqlkj egkfujh{kd tsy ds }kjk Lohd`r dh tk;sxhA
IV e/;izns'k cUnh Nqh fu;e] 1989 ds fu;e 5 x ds vuqlkj ftyk eftLVsV dk er /kkjk 31 d ds v/khu o'kZ ds nkSjku nh tkus okyh izFke Nqh gsrq gh izkIr fd;k tk;sxkA 3 ekg mijkUr nh tkus okyh i'pkr~orhZ Nqh gsrq ftyk eftLVsV ds er dh vko';drk ugha jgsxh] ysfdu ifjfo{kk@dY;k.k vf/kdkjh dh tkap fjiks VZ vo'; layXu dh tkosxhA
V e/;izns'k cUnh Nqh fu;e] 1989 ds fu;e 15 ds vUrxZr vkikr Nqh ds ekeys esa 15 fnu rFkk fookg ds ekeys esa 10 fnol dh nh tk ldsxhA ;fn cUnh us ,d ckj ftyk eftLVsV ls Lohd`r Nqh vFkok vkikr Nqh dk mi;ksx dj fy;k gks] rks v/kh{kd vkikr Nqh eatwj djus ds fy, l{ke gksaxsA
VI izR;sd Nqh ij dSfn;ksa dks NksM+s tkus ds fy, tsy eq[;ky; ds Kkiu dzekad 117@okjaV] fnukad 27&11&2003 ls izsf'kr fd, x, tekurukesa o 'kiFki= rLnhd dluk vko';d gksxkA ,u-Mh-ih-,l- ,DV ds cUnh;ksa dks 50]000 dh lkyosUlh izkIr djus ds mijkUr gh Nqh ij NksM+k tk ldsxkA 'ks'k dSfn;ksa dks 50]000 ds tekurukesa ij NksM+k tk ldsxk] ysfdu v/kh{kd cfUn;ksa ds fgLVh fVdV ij mYysf[kr vkpj.k ds fooj.k dks ns[kdj cUnh ls lkyosUlh izkIr dj mUgsa eqDr djus ds fy, vf/kd`r gksaxsA**
8. On going through the relevant provisions contained in the Act, Rules and the Circular, we find that the return of the petitioners' applications and the stand of the respondents in their return is based on misreading of the Act, Rules and Circular. The Act, Rules and Circular nowhere provides that every first application for leave in a calendar year is required to be considered by the District Magistrate and second application for leave in a calendar year is required to be considered by the Inspector General of Prisons. We find that the only prohibition in Section 31A of the Act is to grant of leave to a prisoner for more than two occasions during a year and lor a period of less than 10 days and that the leave shall not be admissible unless a period of three months is elapsed since the expiry of last availed leave during the year and the commencement of the leave applied. Rule 6 of the Rules prescribes the District Magistrate to be the sanctioning authority for first leave (Emphasis supplied). Rule 8 prescribes the Inspector General of Prisons to be the sanctioning authority for subsequent leaves (Emphasis supplied). Thus, Rule 8 is not to the effect that the Inspector General of Prisons would be the sanctioning authority only for the second leave in year. On the other hand it provides that for subsequent leaves (Emphasis supplied), the competent authority would be the Inspector General of Prisons. If the contention of the respondents is accepted it would amount to adding of the words in the rules which is not permissible, and would be contrary to all rules of construction. It is well settled that language of the statute should be read as it is (See Principles of Statutory Interpretation 9th Edition at Page 58 by Hon'ble Shri G.P. Singh, J.). On going through the circular we find that it merely clarifies the rule position. The circular no where says that only such application is required to be forwarded to the Inspector General of Prisons which is second application in a calendar year. It appears that in the return the State Government has taken a stand which is not in consonance with the Act, Rules and the circular dated 10-9-2004. In this view of the matter the circular can not be held to be illegal or ultra vires the rules or the Act.
9. We find that the petitioners' applications have been returned by the third respondent to the second respondent on the ground that their applications were being first in a calendar year and therefore should have been sent to District Magistrate on the basis of circular dated 10-9-2004. The interpretation of the rules and the circular made by the third respondent and the State Government in its return is not correct. As already held Rule 8 clearly provides that sanctioning authority for subsequent leave or leaves would be Inspector General of Prisons, in the circumstances all the subsequent leave applications are required to be considered by the Inspector General of Prisons. As per the rule position as it exists, the District Magistrate is the sanctioning authority only for the first leave application.
10. So far as challenge to the insistence of the second respondent for furnishing of surety of Rs. 50,000/-, we find that the condition of furnishing surety of Rs. 15,000/- in the circular dated 19-4-2003 stands modified by the condition of furnishing surety of Rs. 50,000/- by the subsequent circular dated 10-9-2004. In such circumstances the petitioners' contention on the basis of circular dated 19-4-2003 has got no force.
11. In view of the aforesaid, the return of the petitioners' applications by third respondent treating them to be first applications in the calendar years is based on the misinterpretation of Act, Rules and the circular dated 10-9-2004. We, therefore, direct the respondents to treat the petitioners' applications as applications for subsequent leave under Rule 8 of the Rules and pass appropriate orders if not passed as yet. The petition is partly allowed.