Decided on February 12,1969



- (1.) AFTER hearing the parties on merits, we passed an order on 27th January, 1969, to the following effect: "having heard the parties, we are satisfied that this petition for grant of a writ of habeas corpus under Article 226 of the Constitution of India, must be allowed. We hereby set aside the order issued by the Secretary to Government of Madhya Pra-desh, Jail Department, bearing No. 1090/ 342/iii-Jail, dated Bhopal, the 3rd May 1967, cancelling the petitioner's conditional release on a licence issued under Section 2 of the Madhya pradesh Prisoners Release on Probation Act, 1954. We accordingly direct the State of Madhya Pradesh, and, in particular, the Superintendent of the Central Jail, Jabalpur, where the petitioner is being detained, to serve him with the original licence of conditional release already issued by the State Govern-ment in Form 'd' under Rule 7 of the Madhya Pradesh Prisoners Release on Probation Rules, 1964, and to afford him every facility to comply with the conditions imposed thereby and to fulfil all other legal requirements and thereafter to release him forthwith in terms of the licence, from the prison where he is being detained. The reasons for our decision shall follow later. " The reasons for allowing the petition are these.
(2.) BEFORE stating the reasons, it is necessary for us to set out a few facts which are relevant to the present controversy. On 29th October, 1956, the petitioner was convicted by the Additional Sessions Judge, Chanda, under Sections 302, 452, 453 and 506 (II) of the Penal Code and sentenced to imprisonment for life. The district of Chanda being in Vidarbha Region, he was lodged at the Central Jail, Nagpur, to serve out his sentence. After the States Reorganisation Act (Act No. XXXVII of 1956), came into force on 1st November, 1956, the entire Vidarbha Region became part of new State of Maharashtra and, since he had been convicted by a court of Session in that region, the petitioner continued to be a prisoner in the state of Maharashtra, till 23rd April, 1958. As the petitioner desired to be transferred to the Central Jail, Jabalpur, being nearer to his home district, narsinghapur, the Maharashtra State under the arrangement referred to in Section 3 of the Transfer of Pri-sioners Act (Act No. XXIX of 1950), obtained the sanction of the Government of Madhya Pradesh for his transfer, and, he was, accordingly, on that day, transferred to that Jail, where he is now detained. The Madhya pradesh Prisoners Release on Probation Act (No. XVI of 1954) having been brought into force on 1st February, 1962, the petitioner applied to the State Government or Madhya Pradesh for his release on probation under Section 2 thereof. The petitioner's application was forwarded by the authorities to the District magistrate, Chanda, who recommended his case for release and, thereupon, the government of Madhya Pradesh placed the matter before the Advisory Board under Rule 6 (5) of the Madhya Pradesh Prisoners Release on Probation Rules, 1964 (hereinafter referred to as the 'rules' ). The Advisory Board duly recommended his release on a conditional licence, and the Inspector General of prisons having agreed with that recommendation, the State Government of madhya Pradesh issued a licence in Form D under Rule 7 of the Rules, for his conditional release on probation under Section 2 ibid, vide Licence No. 119192/ 347-III dated the 8th April, 1966, Before that order could, however, be implemented, the authorities concerned felt that they had overlooked the inspector General of Prisons' Circular No. 6548 dated 2nd April, 1965, which requires the prior concurrence of the State of conviction as a condition precedent for the release of prisoners under Section 2 ibid. Apparently, the State government of Madhya Pradesh consulted the State of Maharashtra which ultimately did not agree to the release of the petitioner, and hence the order of conditional release passed on 8th April, 1966, was cancelled by the State government of Madhya Pradesh, by their impugned order No. 1090-342/iii-J dated 3rd May, 1967, without assigning any reason whatever. Thereafter, the authorities tried to take steps for his premature release under Paragraph 1018 of the Madhya Pradesh Jail Manual, but their efforts proved to be abortive. The Advisory Board on 13th March, 1968, had recommended his premature release under Section 401 of the Code of Criminal Procedure and, on the 14th march, 1968, the Inspector General of Prisons also appears to have agreed with that recommendation but the State Government of Madhya Pradesh in their turn, referred the matter to the State of Maharashtra on 23rd April, 1968, for their concurrence. That Government, having turned down the recommendation for the premature release of the petitioner, the Government of Madhya Pradesh dropped the proceedings. Hence this petition for a writ of habeas corpus.
(3.) THE State Government of Madhya Pradesh have in their return, asserted that the petitioner cannot be released without the prior concurrence of the State government of Maharashtra and, they were, therefore, right in revoking their earlier order for his conditional release and in consequence, the confinement of the petitioner in prison was not illegal. Their contention is that so far as remissions in sentence are concerned, the rules applicable to the prisoners in general in Madhya pradesh, whether from this State or outside, are the same, but as regards premature release of prisoners, the concurrence of the State of conviction is necessary. Presumably, the contention rests on the strength of the Inspector general of Prisons, Circular referred to above. The validity of that Circular being in question, we feel it would be rather convenient to set the same out in extenso. It reads:. . (VERNACULAR MATTER OMMITED ). .;

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