Madhya Pradesh High Court
The State Of Madhya Pradesh vs Lachu @ Laxminarayan on 22 April, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:10359
1 W.A. No. 576 of 2025
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 22nd OF APRIL, 2025
WRIT APPEAL No. 576 of 2025
THE STATE OF MADHYA PRADESH AND OTHER
Versus
LACHU @ LAXMI NARAYAN
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Appearance:
Shri Bhuwan Gautam - Govt. Advocate for the appellant/State.
Ms. Dixita Gupta - Advocate for the respondent.
Reserved on : 07.04.2025
Pronounced on: 22.04.2025
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ORDER
Per: Justice Vivek Rusia
The State of Madhya Pradesh and others have filed this writ
appeal under Section 2(1) of Madhya Pradesh Uchha Nyayalaya (Khand
Nyaypith Ko Appeal) Adhiniyam, 2005 against the order dated
21.01.2025 passed in W.P. No.1716/2024 by the Single Bench in favour
of the respondent/writ petitioner.
2. The details of the case are already mentioned in the impugned
order of the Writ Court, but for the sake of convenience, they are
reproduced in nutshell.
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2.1 The respondent/ writ petitioner was sentenced with L.I. for the
offence under Section 302 of the Indian Penal Code vide judgment dated
13.01.1997 passed by the learned 13th Additional Sessions Judge,
Indore.
2.2 The respondent/ writ petitioner preferred an application for
release on probation under Section 2 of the M.P. Prisoner's Release on
Probation Act, 1954 (in short "Act of 1954"). Vide order dated
12.02.2021, the application was rejected by the competent authority.
2.3 The respondent challenged the rejection by way of W.P.
No.1523/2001 and vide order dated 17.04.2002 the writ petition was
allowed by directing the State to release the writ petitioner on probation
within a period of 1 month.
2.4. In compliance with the order passed by the Writ Court the writ
petitioner was released on 07.06.2002 by issuing a licence under the Act
of 1954. Simultaneously, the State preferred an L.P.A. No.307/2002
challenging the order of Writ Court, therefore, the conditional licence
was issued that it would be subjected to the final outcome of the appeal.
The Division Bench of this Court vide order dated 21.10.2003 set aside
the order of Writ Court and directed the writ petitioner to surrender to
the Police and, submit a fresh application for release on probation before
the competent authority.
2.5. After the aforesaid order, neither the writ petitioner surrendered
before the police, nor he was arrested by the police, and he enjoyed
probation from 07.06.2002 to 25.08.2023 i.e. almost 21 years. On
25.08.2023 he was arrested and sent to jail.
3. The writ petitioner again approached this Writ Court by way of
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writ petition seeking the following reliefs:-
(1) That the respondents may kindly be directed or consider the
case of the petitioner for issuance or grant of certificate of
completion of sentence u/r 350 of MP Jail Manual 1968 or;
(2) That the respondents may kindly be directed to suspend or remit
the sentence or issue premature release of the petitioner under the
MP Prisoner Release on Probation Act 1954 and its Rules 1964.
(3) That, respondents may kindly be directed to decide the pending
representations dated 11.11.2023 of the petitioner within the
stipulated time and further direct to release the petitioner on
undergoing the requisite sentence as per Rule 4 of MP Prisoner's
Release on Probation Rules 1964.
(4) That, by way of writ of the appropriate writ or the writ of
certiorari, quash the order dated 25.08.2023 (P/6) passed by
Learned Magistrate and further directed to consider the case of the
petitioner for premature release by Section 4 of Act 1954 and in
light of guidelines stipulated in Laxman Naskar vs. Union of India
(2000) 2 SCC 595 as well as Rajwa @ Rajendra Mandal vs. the
State of Bihar and Ors WP (CRI.) No.252/2023.
(5) Any other relief which this Hon'ble Court may deem fit may
also be kindly given to the petitioner along with cost and oblige.
4. That the petitioner sought the above relief inter alia on the
ground that firstly he had already undergone the requisite sentence as
per Sections 4 and 5 of the Act of 1954 and Rules of 1964, secondly,
during these 21 years he has not committed any other crime and leading
peaceful life, thirdly, he has attained the age of 61 years; no purpose will
be served to send him to the jail again & lastly, that the representation
submitted by the writ petitioner has not been considered till date.
5. The learned counsel for the writ petitioner argued before the
Writ Court as well as before us that the order passed by the Division
Bench in L.P.A. No.307/2002 was never communicated to the writ
petitioner by the counsel engaged by him as well as by the State
Government. The licence dated 31.05.2002 is still in force and the same
has not been cancelled by the competent authority of the State
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Government. It is also submitted by learned counsel that by virtue of
Rule 11, "the period during which a prisoner is absent from the prison
under the Act of license which is in force shall be reckoned as a part of
the period of remission to which he was sentenced for the purpose of
computing the period of sentence".
6. The State of MP opposed the petition by submitting that the
license under the Act of 1954 was issued subject to the outcome of the
L.P.A. No.307/2002. The Division Bench allowed the LPA and set aside
the order of Writ Court, therefore, the license is deemed to have been
cancelled since the writ petitioner was represented by his counsel in
LPA, therefore, he knew the order passed by the High Court and he
ought to have surrendered before the police. It is further submitted that
the petitioner underwent incarceration of 7 years and 7 days and as per
the policy of the State Government being a convict under Section 302,
he cannot be released before undergoing 14 years of jail sentence.
7. Learned the Writ Court has allowed the writ petition on the
ground that firstly, the order dated 21.10.2003 passed by the Division
Bench in L.P.A. No.307/2003 was not served on the writ petitioner and
there was no notice issued by the State informing the writ petitioner that
his licence stands cancelled on account of the Court order. Secondly, the
order dated 21.10.2003 was not communicated to the writ petitioner by
his counsel. Thirdly, under Rule 11, the period during which he was
absent from prison under the licence shall be reckoned as a part of a
period of imprisonment. Fourthly, the writ petitioner was under the
bonafide belief that his licence continued to remain in force until he was
arrested and finally held that the writ petitioner was deemed to have
NEUTRAL CITATION NO. 2025:MPHC-IND:10359
been served the entire period of incarceration, and he was released
forthwith from the prisons under the licence issued under the provisions
of Sections 2/3 of Act of 1954.
We have heard learned counsel for the parties and perused the
record.
8. The application for release on probation was rejected by the
Board vide order dated 12.02.2001, which was challenged by the writ
petitioner by way of W.P. No.1523/2001. The writ petition was allowed
and he was directed to be released on probation as per Rules. After the
aforesaid order, the competent authority issued a licence dated
31.05.2002 for releasing him by giving him the benefit of probation. It is
specifically mentioned in it that this licence would be subject to the
appeal to be filed by the State Government before the Competent Court.
Thereafter, the State Government preferred an L.P.A. in which the notice
was issued to the writ petitioner and he appeared through his counsel.
The Division Bench of this Court examined the validity of the report
submitted by the Investigating Officer of the Police Station Tukoganj
dated 11.02.1998 and held that under the Rules of 1964, the report of
S.P. concerned should have been taken into consideration and the matter
should have been directed to be referred the Probation Board for
reconsideration by the Writ Court and accordingly set aside the order of
learned Single Bench and directed the respondent/ writ petitioner to
surrender forthwith failing which the appropriate action shall be taken
by the State to secure his custody. However, he was given the liberty to
move a fresh application for being released on probation. The aforesaid
order was passed in the presence of the respondent/writ petitioner,
NEUTRAL CITATION NO. 2025:MPHC-IND:10359
therefore, there is a presumption that he had knowledge about this order
and despite that, he did not surrender. The Writ Court has wrongly held
that due to non-communication of a copy of this order by the State as
well as by the counsel, the respondent/ writ petitioner under the
bonafide belief that his licence is still in force. The Writ Court in para 26
of the impugned order opined that after the order passed in LPA
although no separate order of cancellation of licence was required to be
passed, therefore, after the order passed in LPA the licence issued in
favour of the respondent/ writ petitioner stands cancelled, the writ
petitioner could not be given the benefit of Section 11 for the purpose of
counting the period of absent as part of the period of imprisonment. In
para 29 also the Writ Court has held that the effect of the order passed
by the Division Bench in LPA was the revocation of the licence. The
State Government has also not taken any step to secure the custody of
the respondent/writ petitioner.
9. Admittedly, in LPA the Division Bench set aside the order of
Writ Court and treated the licence cancelled by directing the writ
petitioner to surrender and submit a fresh application for release on
probation, therefore, once the licence had been treated to be cancelled,
the benefit of Section 11 has wrongly been granted to the respondent/
writ petitioner by the Writ Court. The Writ Court has also wrongly held
that the writ petitioner was under bonafide belief that his licence
continued to remain in force until he was arrested.
10. The Writ Court has also committed a grave error of law by
declaring that the petitioner has deemed to have been served the entire
period of incarceration. The writ petitioner was sentenced to undergo
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L.I. after conviction under Section 302 of I.P.C. The sentence of L.I.
means "the sentence till last breath". The convict cannot be released in a
sentence of life imprisonment by any Court by declaring that the
accused / convict has undergone the entire period of incarceration, he
can be released either by way of acquittal, pardon or under the Act of
1954 and Rules of 1964 by the State Government. Therefore, the order
passed by the Writ Court is unsustainable and liable to be set aside.
11. The respondent/writ petitioner is directed to surrender before the
jail authorities forthwith. This Court in LPA had already granted him
liberty to submit a fresh application; therefore, the said liberty is still
available to him. If the respondent/writ petitioner applies, the same shall
be considered in accordance with law. The writ petitioner was directed
to surrender, and the liberty was given to apply for being released on
probation in the year 2003. Thereafter, Rule 4 has been amended by the
State Government vide notification dated 24.03.2008 whereby, the
convict of 302 and 305 can be released only after undergoing the actual
sentence of 14 years. The Writ Court has wrongly held that the said
amendment will not apply in the case of the writ petitioner because this
amendment came into force after his release on probation vide order
dated 31.05.2002. Had the writ petitioner submitted an application after
the surrender in the year 2003 i.e. before the amendment on 24.03.2008,
his application would have been considered under the existing law but
he remained to abscond for 21 years and as held above, this period
would not be liable to be counted in the period of sentence and during
this period the amendment has been brought in Rule 4. Therefore, now
the fresh application is liable to be considered on the date of filing of the
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application.
12. The Writ Court has wrongly applied the judgment passed in the
case of Gori Shankar vs. State of Madhya Pradesh and others in W.P.
No.9034/2008 decided on 16.03.2009 in favour of the petitioner
whereas, in the said writ petition the petitioner's claim was rejected for
release on probation on the ground that he did not complete the actual
sentence of 14 years by virtue of amendment brought in the year 2008 in
Rule 4. The Division Bench dismissed the writ petition by
distinguishing the decision rendered in the case of State of Haryana vs.
Mahendra Singh and Others reported in 2008 Cr.L.J. 444 (SC) and
State of Haryana vs. Bhup Singh and others reported in JT 2009 (1)
SC 535. The Division Bench has specifically held that we do not find
the Rule to be ultra vires, section 433A of the Code or any provision of
the Act and declared it intra vires.
13. In the case of Mahendra Singh (supra) it was held that Rule
would prevail keeping in view the right to ask for remission of sentence
by LI convict would be under the law as was prevailing on the date
which the judgment of conviction and sentence was passed but the
Division Bench in the case of Gori Shankar (supra) has held that now
the Rules have been framed in exercise of powers vested under Section
9 of the Act of 1954 and Rules of 1964, therefore, the decision rendered
in Mahendra Singh (supra) and Bhup Singh (supra) is distinguishable
and dismissed the writ petition. Therefore, the application of the writ
petitioner is liable to be considered under the existing law.
14. In view of the above, the order dated 21.01.2025 passed in W.P.
No.1716/2024 by the Single Bench in favour of the respondent/writ
NEUTRAL CITATION NO. 2025:MPHC-IND:10359
petitioner is set aside, the writ petition is dismissed and the writ appeal
is hereby allowed. No order as to costs.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
Vatan
