TMI Blog2003 (2) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... spectively]. This appeal was listed before a two-Judges Bench of this Court on 21.8.2002 and it had referred this case to a larger bench stating that two Judges-Bench of this Court in the case of Sadhu Saran (supra) needs reconsideration. A legal question of general importance on the validity of Rule 3(a) of the Rules is before us for consideration. The respondent/prisoner is not represented by counsel. On our request, Shri Rakesh Dwivedi, Sr. Advocate had agreed to assist this Court and to project the possible view in favour of the prisoner. The appellant/State of M.P. is represented by Sr. Advocate, Shri R.P. Gupta who took us through the relevant provisions of the Act and the Rules and almost similar provisions of U.P. Act and the Rules. On completion of more than five years sentence of imprisonment, the respondent/prisoner made an application for his release on probation in accordance with Section 2 of the Act read with the Rules. His application for release on probation under the M.P. Act and Rules was not considered by the State because by Rule 3(a) convicts for offences specifies under Section 396 of Indian Penal Code cannot seek release on probation under the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the Act. It reads thus: An Act to provide for the release of certain prisoners on conditions imposed by the (Madhya Pradesh) Government. [Underlining for emphasis]. Section 2 of the Act which authorises government to release the prisoner on probation on consideration of his antecedents and his conduct in the prison, reads thus :- 2. Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 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. Section 9 of the Act contains the rule making power for carrying into effect the provisions of the Act and sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in Section 2 and Section 8. It permits the making of the rule for that purpose only. When it speaks about the classification of offenders, it means to give power to the State Government to make rules for classifying for purposes of release and not for prohibiting the release of prisoners. A rule framed under the Act cannot eliminate prisoner serving a sentence of imprisonment from the field of eligibility contemplated by Section 2 of the Act. It further holds thus: No rule can be made to prohibit person in jail from getting the benefit of Section 2 of the Act because such a rule will have an effect of destroying the purpose of the Act itself . The purpose of the rule is to give effect to the provisions of the Act and not to make them ineffective. This rule must, therefore, be held to have been made not only in excess of the powers but in violation of the powers conferred under Section 9 of the Act on the State Government. The Lucknow Bench of Allahabad High Court in the said judgment also interpreted comparable provisions of Section 4 and Section 9 of the U.P. Act to hold that it does not permit classification of offenders on the basis of nature of offences but envisa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adhu Saran Shukla). However, we are of the view that if the U.P. Government thinks that in respect of serious offences like Section 396 IPC etc., the prisoners should not be released it is better if they bring about some suitable amendments in the Act, then frame necessary rules . Learned senior counsel appearing for the State of Madhya Pradesh contends that Rule 3 (a) cannot be read and construed to mean that it defeats the object of Section 2 of the Act or exceeds the rule making power conferred under Section 9 (4) of the Act. We have carefully examined the scheme of the Act and particularly the provisions contained in Section 2, 9(4) and Rule 3(a). What we find is that Rule 3(a) is a piece of 'delegated legislation.' Such a delegated legislation is recognised as valid because on certain legislative fields, it is possible for the legislature only to lay down a policy and give sufficient guidelines for the executive authorities to carry it into effect. The legislation before us aims at giving effect to the current penal philosophy of reforming the prisoners while they are undergoing sentences of imprisonment. For the above purpose, Section 2 confers the power on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object to be fulfilled of reformation of those prisoners who show prospects of some reform. Classification can also be made between habitual offenders and non-habitual offenders or between corrigibles and incorrigibles. Such a classification through delegated legislation of a rule cannot be held to be a legislative step defeating the substantive provisions of the Act. In our considered opinion, the judgment of the Lucknow Bench of Allahabad High Court which has been upheld by two Judges Bench of this Court proceeds on misinterpretation and misconception of Rule 3(a). Rule 3(a) which excludes certain offences from the application of the Act for release of the prisoners on probabtion impliedly makes the Act applicable to other kinds of prisoners and in no manner defeats the object of the Act. Thus the Act is intended to be made applicable to categories of offenders - not mentioned in Rule 3(a). The two Judges Bench of this Court in the case of State of U.P. (Supra) has confirmed the judgment of the Lucknow Bench of Allahabad High Court only on the limited finding that Rule 3(a) of U.P. Rules is in excess of the rule making authority and the rule falls outside the ambit of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offenders impliedly permits their classification not merely on the basis of their antecedents and their conduct in the prison but also on the basis of the offences for which they have been convicted and imprisoned. We fail to understand why such classification of offenders based on the nature of offences committed by them is impermissible for application of the Act which aims at reforming a specified and identified classes of prisoners whose release would not be hazardous to society and who show possibilities of turning out to be good citizens if they are given liberty under strict supervision of specified institutions, authorities or individuals. It is not possible for us to uphold the view of two Judges Bench of this Court in the case of Sadhu Saran (Supra) that Rule 3(a) is in excess of rule making power under Section 9(4) and is violative of substantive provisions contained in Section 2 of the Act. In our considered view, the decision of two-Judges Bench in the case of Sadhu Saran (Supra) does not lay down a good law and deserves to be overruled. Lastly, learned Senior Counsel appearing as Amicus Curiae tried to make a submission that rejection of the prayer of the priso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re at the time of enactment of the statute to envisage and encompass in its provisions all penal laws and punishments leading to incarnation of the offenders. The subject of classifying the offenders based on their antecedents and conduct and offences for which they have been convicted, has to be left to the executive authority to determine and specify from time to time by rules and amendments made to it if and when found necessary. Such delegation of power by the legislature to the executive cannot be held to be either in violation of any constitutional provision or in excess of the rule making provision of the Act. We are not prepared to accept the reasoning of the High Court of Allahabad that the rule gives a blanket power to the executive to lay down specified class of offenders in relation to the offences for which they are convicted and put them outside the purview of the Act. Rule 9(4) which enables froming of rules to classify the offenders impliedly permits their classification not merely on the basis of their antecedents and their conduct in the prison but also on the basis of the offence for which they have been convicted and imprisoned. We fail to understand why such cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
