Khuman Singh Vs. Jail Superintendent, Central Jail and ors. - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - prisoners' release on probation rules, 1964. 2. although, concerned district magistrate, superintendent of police and jail superintendent have recommended the case of petitioner for his release on probation in terms of rules applicable, the board by impugned order dated 2342-2002 (annexure p-1) rejected the prayer of petitioner essentially or rather only on the ground that the nature in which the offence was committed by the petitioner does not entitle him to seek his release on probation. it is much more so when all other conditions contemplated in section 2 read with rules are fully satisfied by the petitioner.ordera.m. sapre, j.1. by this petition filed under article 226 of constitution of india, the petitioner prays for his release on probation under the provisions of m.p. prisoners' release on probation act, 1954 read with m.p. prisoners' release on probation rules, 1964.2. although, concerned district magistrate, superintendent of police and jail superintendent have recommended the case of petitioner for his release on probation in terms of rules applicable, the board by impugned order dated 2342-2002 (annexure p-1) rejected the prayer of petitioner essentially or rather only on the ground that the nature in which the offence was committed by the petitioner does not entitle him to seek his release on probation. it is against this rejection, the petitioner is in writ.3. heard smt. sonali gupta, learned counsel for the petitioner, shri p. verma, learned government advocate for respondent nos. 1 and 2 and shri p.r. bhatnagar, learned counsel for respondent no. 3.4. having heard learned counsel for the parties and having gonethrough with the record of the case, i find substance in the writ and hence, itdeserves to be allowed resulting in quashing of order dated 23-12-2002 (annexure p-1).5. as noted supra, the only ground on which the petitioner's prayer was rejected by the board is his role in which, he participated in crime which resulted in his conviction. as also taken note for all other authorities, i.e., d.m. ratlam and welfare office, ujjain and superintendent jail have made recommendations in favour of petitioner for release him on probation. in my opinion though to some extent, the involvement of petitioner in crime may be relevant while looking his antecedent as contemplated in section 2 of m.p. prisoner's release on probation act, 1954 but that by itself should not be made as the sole ground to refuse the prayer. it is much more so when all other conditions contemplated in section 2 read with rules are fully satisfied by the petitioner. that apart, even while considering the antecedents of petitioner no other incident was taken into account except the incident of crime in which he was convicted.6. taking into consideration aforesaid facts, in my opinion, the petitioner is entitled to be released on probation. as a result, petition succeeds and is allowed. impugned order dated 23-12-2002 (annexure p-l) is set aside. the petitioner be released on probation by the respondents after ensuring full compliance of rules for a period prescribed for release of any prisoner on probation. let formalities to that effect be done within one month. state counsel to send copy of order to respondents for ensuring compliance.c.c. within three days.

Judgment:
ORDER

A.M. Sapre, J.

1. By this petition filed under Article 226 of Constitution of India, the petitioner prays for his release on probation under the provisions of M.P. Prisoners' Release on Probation Act, 1954 read with M.P. Prisoners' Release on Probation Rules, 1964.

2. Although, concerned District Magistrate, Superintendent of Police and Jail Superintendent have recommended the case of petitioner for his release on probation in terms of Rules applicable, the Board by impugned order dated 2342-2002 (Annexure P-1) rejected the prayer of petitioner essentially or rather only on the ground that the nature in which the offence was committed by the petitioner does not entitle him to seek his release on probation. It is against this rejection, the petitioner is in writ.

3. Heard Smt. Sonali Gupta, learned Counsel for the petitioner, Shri P. Verma, learned Government Advocate for respondent Nos. 1 and 2 and Shri P.R. Bhatnagar, learned Counsel for respondent No. 3.

4. Having heard learned Counsel for the parties and having gonethrough with the record of the case, I find substance in the writ and hence, itdeserves to be allowed resulting in quashing of order dated 23-12-2002 (Annexure P-1).

5. As noted supra, the only ground on which the petitioner's prayer was rejected by the Board is his role in which, he participated in crime which resulted in his conviction. As also taken note for all other authorities, i.e., D.M. Ratlam and Welfare Office, Ujjain and Superintendent Jail have made recommendations in favour of petitioner for release him on probation. In my opinion though to some extent, the involvement of petitioner in crime may be relevant while looking his antecedent as contemplated in Section 2 of M.P. Prisoner's Release on Probation Act, 1954 but that by itself should not be made as the sole ground to refuse the prayer. It is much more so when all other conditions contemplated in Section 2 read with Rules are fully satisfied by the petitioner. That apart, even while considering the antecedents of petitioner no other incident was taken into account except the incident of crime in which he was convicted.

6. Taking into consideration aforesaid facts, in my opinion, the petitioner is entitled to be released on probation. As a result, petition succeeds and is allowed. Impugned order dated 23-12-2002 (Annexure P-l) is set aside. The petitioner be released on probation by the respondents after ensuring full compliance of rules for a period prescribed for release of any prisoner on probation. Let formalities to that effect be done within one month. State Counsel to send copy of order to respondents for ensuring compliance.

C.C. within three days.