Sitabai Vs. State of M.P. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/506796
SubjectCriminal
CourtMadhya Pradesh High Court
Decided OnJun-19-1990
Case NumberM.P. No. 1399 of 1989 etc.
JudgeA.G. Qureshi and ;Y.B. Suryavanshi, JJ.
Reported in1990CriLJ2226
ActsMadhya Pradesh Prisoners Release on Probation Act, 1954 - Sections 8; Madhya Pradesh Prisoners Release on Probation Rules 1964 - Rule 15; ;Code of Criminal Procedure (CrPC) - Sections 433 and 433A; Indian Penal Code (IPC) - Sections 302
AppellantSitabai
RespondentState of M.P. and ors.
Appellant AdvocateGokhale, Adv.
Respondent AdvocateS. Waghmare, Dy. Govt. Adv.
Excerpt:
- a.g. qureshi, j. 1. this order shall also govern the disposal of misc. petitions nos. 1384/1989, 1575/1989, 129/1990, 46/1990, 49/1990, 115/1990, 254/1990, 118/1990 and 116/1990 filed by the prisoners, claiming the benefit of section 8 of the m.p. prisoners release on probation act, 1954.2. the grievance of the petitioners in all the petitions is identical. according to them, the prisoners are entitled to get the benefit of section 8 of the m.p. prisoners release on probation act, 1954 (hereinafter referred to as the act). according to the petitioners in all the petitions, they fulfil all the conditions for being considered for release under section 8 of the act, still their cases are not being considered. therefore, a directions be issued to the respondent to consider the prayer of the petitioners under section 8 of the act, the petitions have been mainly resisted on the ground that according to the policy of the government since 1961 as has been contained in r/1 the circular issued to the superintendent of jails by the inspector general of prisons, the action under section 8 of the act is generally taken only in cases in which the sentences do not exceed six months and the offence is not of the serious nature. other instructions pertaining to forwarding the applications are also contained in the said circular. the respondents have, therefore, submitted that in view of the aforesaid circular, the cases of the prisoners, who are convicted for serious offences, cannot be considered.3. the learned counsel, who appeared on behalf of the petitioners, who are represented, vehemently argued that the circular of the inspector general of prisons is meaningless because the circular is of a date which was prior to the framing of the rules for the release of the prisoners on probation. according to the learned counsel, the madhya pradesh prisoners release on probation rules were brought into effect from 23-9-1964. therefore, after the formation of the rules, the circular is meaningless and the action has to be taken in accordance with the rules.4. on the other hand, it has been argued by the learned deputy government advocate that the power to remit whole or part of the sentence of the prisoner contained in section 8 of the act is a discretionary power and, therefore, the petitioners cannot claim to get the benefit of that discretionary power of remission of sentence as of right. the word 'remit' means, pardon or forgive and it is in the exercise of its sovereign powers to exercise clemency that the state government remits part or whole of the sentence. remission cannot be demanded as a matter of right by the convicts. it is exclusively within the province of the appropriate government to grant remission and the remission must be earned to the satisfaction of the state government because it is a matter of concession and not a matter of right.5. after giving our anxious consideration to the arguments of the parties, we are of the view that none of the petitions has any merit. we agree with the learned deputy government advocate, smt. s. waghmare, that the remission cannot be claimed by a prisoner as of right because the dictionary meaning of the word 'remit' is to pardon or forgive, and it is for the state government to grant remission after examining the conduct of the prisoner in the jail. however, the government also does not have a free hand in exercise of the powers under section 8 of the act, because while exercising the powers under section 8 of the act, the state has to take into consideration the provisions of section 433a of the criminal procedure code, according to which where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commutted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of imprisonment. therefore, while exercising the powers under section 8 of the act, the provisions of section 433a have to be taken into consideration. in this bunch of petitions, only petitions nos. 115/90, 116/90, 118/90 and 254/1990 are the petitions wherein the petitioners have not been convicted for an offence which is punishable with death under the law. in all the other petitions, the petitioners have been convicted for offences which under the law are punishable for death and although they are undergoing the imprisonment for life, still while remitting the sentence of the aforesaid petitioners, the provisions of section 433a of the criminal procedure code cannot be ignored. as such, we are of the view that the cases of those petitioners, who have been convicted for an offence under section 302 ipc cannot be considered under section 8 of the act unless the petitioners have actually served at least 14 years of imprisonment. as regards the other petitioners, who have not been convicted for an offence wherein death sentence is provided for that offence under the law, the government is always free to consider their cases for remission.6. this leads us to the other point raised by the state that in view of the circular of the inspector general of prisons in the year 1961 only the cases of those prisoners, who have served a short sentence can be considered under section 8 of the act. in our opinion, after the enactment of the m.p. prisoners release on probation rules, 1964, the circular of the inspector general of prisons is of no avail to the state. the state has to proceed in accordance with rule 15 of the m.p. prisoners release on probation rules 1964 and if the government finds a fit case for extending the benefit of sections 8 of the act to any of the prisoners, it is free to do so because neither the act nor the rules framed thereunder provide for any restriction in case of considering the remission to be granted to a prisoner, but as held above the aforesaid exercise of powers is subject to the provisions contained in section 433a of the act. section 8 of the act does not start with a non obstante clause and as such, it would have no overriding effect on the provisions of section 433a of the criminal procedure code.7. in the result, these petitions are dismissed in view of the fact that the petitioners who have been convicted for offences punishable with death have no right to get their cases considered under the provisions of section 8 of the act, unless they have actually served the sentence of 14 years. as regards the other petitioners, who are not convicted for the offences punishable with death, the government may consider their cases if an application is made to the government in accordance with rule 15 of the m.p. prisoners release on probation rules, 1964; but this court cannot issue any direction to the state to consider the cases of even those petitioners, who are not covered by section 433a of the criminal procedure code. it is entirely within the discretion of the state government to consider their cases in view of their conduct in the jail and the circumstances and the reports enumerated in rule 15 of the m.p. prisoners release on probation rules, 1964.
Judgment:

A.G. Qureshi, J.

1. This order shall also govern the disposal of Misc. Petitions Nos. 1384/1989, 1575/1989, 129/1990, 46/1990, 49/1990, 115/1990, 254/1990, 118/1990 and 116/1990 filed by the prisoners, claiming the benefit of Section 8 of the M.P. Prisoners Release on Probation Act, 1954.

2. The grievance of the petitioners in all the petitions is identical. According to them, the prisoners are entitled to get the benefit of Section 8 of the M.P. Prisoners Release on Probation Act, 1954 (hereinafter referred to as the Act). According to the petitioners in all the petitions, they fulfil all the conditions for being considered for release under Section 8 of the Act, still their cases are not being considered. Therefore, a directions be issued to the respondent to consider the prayer of the petitioners under Section 8 of the Act, The petitions have been mainly resisted on the ground that according to the policy of the Government since 1961 as has been contained in R/1 the circular issued to the Superintendent of Jails by the Inspector General of Prisons, the action under Section 8 of the Act is generally taken only in cases in which the sentences do not exceed six months and the offence is not of the serious nature. Other instructions pertaining to forwarding the applications are also contained in the said Circular. The respondents have, therefore, submitted that in view of the aforesaid Circular, the cases of the prisoners, who are convicted for serious offences, cannot be considered.

3. The learned counsel, who appeared on behalf of the petitioners, who are represented, vehemently argued that the Circular of the Inspector General of Prisons is meaningless because the Circular is of a date which was prior to the framing of the Rules for the release of the prisoners on probation. According to the learned counsel, the Madhya Pradesh Prisoners Release on Probation Rules were brought into effect from 23-9-1964. Therefore, after the formation of the Rules, the Circular is meaningless and the action has to be taken in accordance with the Rules.

4. On the other hand, it has been argued by the learned Deputy Government Advocate that the power to remit whole or part of the sentence of the prisoner contained in Section 8 of the Act is a discretionary power and, therefore, the petitioners cannot claim to get the benefit of that discretionary power of remission of sentence as of right. The word 'remit' means, pardon or forgive and it is in the exercise of its Sovereign Powers to exercise clemency that the State Government remits part or whole of the sentence. Remission cannot be demanded as a matter of right by the convicts. It is exclusively within the province of the appropriate Government to grant remission and the remission must be earned to the satisfaction of the State Government because it is a matter of concession and not a matter of right.

5. After giving our anxious consideration to the arguments of the parties, we are of the view that none of the petitions has any merit. We agree with the learned Deputy Government Advocate, Smt. S. Waghmare, that the remission cannot be claimed by a prisoner as of right because the dictionary meaning of the word 'remit' is to pardon or forgive, and it is for the State Government to grant remission after examining the conduct of the prisoner in the jail. However, the Government also does not have a free hand in exercise of the powers under Section 8 of the Act, because while exercising the powers under Section 8 of the Act, the State has to take into consideration the provisions of Section 433A of the Criminal Procedure Code, according to which where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commutted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least 14 years of imprisonment. Therefore, while exercising the powers under Section 8 of the Act, the provisions of Section 433A have to be taken into consideration. In this bunch of petitions, only petitions Nos. 115/90, 116/90, 118/90 and 254/1990 are the petitions wherein the petitioners have not been convicted for an offence which is punishable with death under the law. In all the other petitions, the petitioners have been convicted for offences which under the law are punishable for death and although they are undergoing the imprisonment for life, still while remitting the sentence of the aforesaid petitioners, the provisions of Section 433A of the Criminal Procedure Code cannot be ignored. As such, we are of the view that the cases of those petitioners, who have been convicted for an offence under Section 302 IPC cannot be considered under Section 8 of the Act unless the petitioners have actually served at least 14 years of imprisonment. As regards the other petitioners, who have not been convicted for an offence wherein death sentence is provided for that offence under the law, the Government is always free to consider their cases for remission.

6. This leads us to the other point raised by the State that in view of the Circular of the Inspector General of Prisons in the year 1961 only the cases of those prisoners, who have served a short sentence can be considered under Section 8 of the Act. In our opinion, after the enactment of the M.P. Prisoners Release on Probation Rules, 1964, the Circular of the Inspector General of Prisons is of no avail to the State. The State has to proceed in accordance with Rule 15 of the M.P. Prisoners Release on Probation Rules 1964 and if the Government finds a fit case for extending the benefit of Sections 8 of the Act to any of the prisoners, it is free to do so because neither the Act nor the Rules framed thereunder provide for any restriction in case of considering the remission to be granted to a prisoner, but as held above the aforesaid exercise of powers is subject to the provisions contained in Section 433A of the Act. Section 8 of the Act does not start with a non obstante clause and as such, it would have no overriding effect on the provisions of Section 433A of the Criminal Procedure Code.

7. In the result, these petitions are dismissed in view of the fact that the petitioners who have been convicted for offences punishable with death have no right to get their cases considered under the provisions of Section 8 of the Act, unless they have actually served the sentence of 14 years. As regards the other petitioners, who are not convicted for the offences punishable with death, the Government may consider their cases if an application is made to the Government in accordance with Rule 15 of the M.P. Prisoners Release on Probation Rules, 1964; but this Court cannot issue any direction to the State to consider the cases of even those petitioners, who are not covered by Section 433A of the Criminal Procedure Code. It is entirely within the discretion of the State Government to consider their cases in view of their conduct in the Jail and the circumstances and the reports enumerated in Rule 15 of the M.P. Prisoners Release on Probation Rules, 1964.