Madhya Pradesh High Court
Lachu @ Laxminarayan vs The State Of Madhya Pradesh on 21 January, 2025
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
st
ON THE 21 OF JANUARY, 2025
WRIT PETITION No. 1716 of 2024
LACHU @ LAXMINARAYAN
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Ms. Dixita Gupta, learned counsel for the petitioner
Shri Anirudh Malpani, learned counsel for the respondent/State.
Reserved for order : 11.12.2024
Pronounced on : 21.01.2025
ORDER
1] This petition under Article 226 of the Constitution of India has been
filed by the petitioner, seeking the following reliefs:-
"7.4 That, by way of writ of appropriate writ or the writ
of certiorari, quash the order dated 25.08.2023
(Annexure P/6), passed by the learned Magistrate and
further directed to consider the case of petitioner for
premature release in accordance with Section 4 of Act
1954 and in light of guidelines stipulated in Laxman
Naskar vs. Union of India (2000) 2 SCC595 as well as
Rajwa @ Rajendra Mandal vs. the State of Bihar and
others WP (CRL.)no.252/2023."
2] The petitioner is aggrieved by the order dated 25.08.2023
(Annexure P/6), passed by the Chief Judicial Magistrate, Indore
whereby, the petitioner has been sent to suffer the remaining jail
sentence awarded to him in connection with his conviction under
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Sections 302,34 of the Indian Penal Code 1860 in S.T. no.313/1995.
3] In brief, the facts of the case are that the petitioner is facing the
aforesaid trial for murder wherein, he was convicted by the learned
Judge of the trial court vide his judgment dated 13.01.1997, in which,
the petitioner was sentenced to life imprisonment. The criminal appeal
preferred by the petitioner before this Court has already been dismissed.
4] The case of the petitioner is that after he underwent the requisite
sentence, he was released on probation on 31.05.2002, under s.2 of M.P.
Prisoners' Release on Probation Act 1954 (hereinafter referred to "the
Act of 1954"). However, he has again been arrested without any prior
intimation on 25.08.2023, and has been sent to jail by the Chief Judicial
Magistrate, Indore vide its order dated 28.5.2023, to serve the remaining
jail sentence.
5] Ms. Dixita Gupta, learned counsel appearing for the petitioner has
vehemently argued before this Court and it is submitted that after the
petitioner had already undergone the requisite sentence as provided
under Section 4 of the Act of 1954 and Rule 5 of the Prisoners' Release
on Probation Rules, 1964 (hereinafter referred to "the Rules of 1954"),
the respondents had no reason to arrest the petitioner to suffer the
remaining jail sentence. Counsel has also submitted that the identical
matter has also been considered by the respondents favuorably in the
case of another prisoner viz., Samandar Singh, whose order dated
25.03.2014 (Annexure P/5) is also filed on record.
6] Counsel for the petitioner has further submitted that the petitioner
is aged about 61 years and is leading a peaceful life since last 20 years.
Thus, it is submitted that the impugned order be quashed and the
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petitioner be directed to be released forthwith.
7] A reply to the petition has also been filed and it is submitted that
no case for interference is made out.
8] The respondents' contention is that the petitioner had earlier filed
a petition bearing Writ Petition No.1523/2001 seeking his release under
the provisions of the Act of 1954 which was allowed vide the order was
passed by this Court on 17.04.2002, but the said order was challenged
by the State in LPA no.307/2002 in which, on 21.10.2003, the order
dated 17.04.2002 was set aside and the petitioner was directed to
surrender immediately, but the petitioner, despite being served a notice
dated 29.11.2003, did not surrender, and hence, with a view to ensure
that he suffers the entire sentence he has been arrested on 25.08.2023.
9] It is also stated that although, as per the Act of 1954, the convicts
facing trial or facing life imprisonment can be released on probation
after completing five years of actual incarceration, however, in the
Notification dated 24.03.2008, the aforesaid provision has been
amended, and it has been directed that after competition of 14 years of
incarceration, the convicts shall be entitled to be released on probation.
The aforesaid amendment is also placed on record as Annexure R/4.
10] It is also stated that the petitioner was earlier released on
probation licence on 07.06.2002, by that time he had already suffered
seven years and seven days of incarceration, and during the pendency of
the LPA no.307/2002 he has further suffered one year four months and
twenty days of incarceration, and thus, the petitioner, as on 25.08.2023,
has suffered the actual sentence of eight years five months and five
days, and again as on 28.2.2024, he has suffered eight years and eleven
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months of incarceration, and since the petitioner did not surrender even
after a specific direction issued by the division bench of this Court in
LPA no.307/2002, he has been arrested after 20 years and has been sent
to jail to suffer the remaining sentence of at least 14 years. And thus, it
is stated that since the petitioner has completed only eight years and
eleven months of incarceration, he is not entitled to get the benefit of
probation.
11] A rejoinder to the aforesaid reply has also been filed by the
petitioner, and it is denied that the petitioner was aware about the order
dated 21.10.2003, passed by the Division Bench of this Court in LPA
no.307/2002, and despite the fact that the presence of the petitioner'
advocate is also noted in the aforesaid order, he was not informed about
the order by his lawyer, and thus, could not surrender before the
authorities and was under the impression that his licence dated
31.05.2002, is still in force. It is submitted that the petitioner was never
issued any notice for compliance of the aforesaid order which is also
reflected in the order dated 25.08.2023 itself, passed by the Chief
Judicial Magistrate in which, there is no reference that the petitioner was
ever issued any notice to surrender after he was directed to surrender in
LPA no. 307/2002.
12] In support of her submissions, Ms. Gupta has relied upon S. 3 and
4 of the Act of 1954, which respectively provide for the period of licence
which is in force, and the period of release to be reckoned as
imprisonment for computing period of sentence served.
13] Counsel for the petitioner has also relied upon the rule 11 of the
Rules of 1964 to submit that the licence granted to the petitioner on
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31.05.2002 was to remain in force till the date it is cancelled or revoked
or discharged, in accordance with Section 3 of the Act of 1954 read with
rule 11 of 1964. And in such circumstances, the petitioner is eligible for
premature release, in accordance with Section 4 r/w. Rule 5 of the Rules
of 1964, as he shall be deemed to have undergone more than 29 years of
actual imprisonment as he shall be deemed to be in custody from
07.06.2002 to 21.02.2023.
14] It is also submitted that otherwise also the amendment dated
24.03.2008, to the Rules of 1964 is also not applicable to the case of the
petitioner as he was convicted in the year 1997, and since the licence of
probation under Section 2 of the Act of 1954 was issued to him on
31.05.2002, the amendment cannot be applied retrospectively and has to
be strictly construed prospectively only.
15] In support of her submissions, counsel for the petitioner has also
relied upon the decision rendered by the Supreme Court in the case of
State of Haryana vs. Rajkumar reported as (2021) 9 SCC 292, para 3 to
submit that when the policy on the date of conviction and on the date of
consideration for premature release are different, the policy prevailing
on the date of conviction would be applicable. Whereas in the case of
State of Haryana vs. Jagdish it has been held that when a liberal policy
is in force at the time of release of the prisoner, the same shall be
applied.
16] It is also submitted by Ms. Gupta that there is no document filed
on record to demonstrate that the petitioner was ever served a copy of
the aforesaid order passed in LPA no. 307/2002, hence hecannot be
punished for the non-service of the aforesaid order.
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17] In rebuttal, counsel for the respondent has submitted that since the
petitioner's advocate had appeared in the aforesaid case, it has to be
presumed that the petitioner had the knowledge of the case being
disposed of with a direction to him surrender immediately.
18] Heard the counsel for the parties and perused the record.
19] Before proceeding with the merits of the case, it would be relevant
to referred to the applicable provisions of the Act of 1954 as also the
Rules made thereunder the Rules of 1964.
20] So far as the preamble of the Act of 1954 is concerned, the
relevant provisions of the same reads as under :-
Preamble: An Act to provide for the release of certain
prisoners on condition imposed by the Madhya Bharat
Government.
Sections 2, 3, 4 & 6 of the same read as under:
2. Power of Government to release by licence on conditions
imposed by it.- Notwithstanding anything contained in sector
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 recognized by the Government
for the purpose, provided such other person, institution or society
is willing to take charge of him.
3.Period for which licence is to be in force.- A licence granted
under the provisions of Section 2 shall be in force until the date on
which the person released would in the execution of the order of
warrant authorizing his imprisonment have been discharged from
prison had he not been released on licence, or until the licence is
revoked, whichever is earlier.
4. Period of release to be reckoned as imprisonment for
computing period of sentence served.- The period during which a
person is absent from prison under the provisions of this Act on a
licence which is in force shall be reckoned as part of the period of
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imprisonment to which he was sentenced, for the purpose of
computing the period of his sentence and for the purpose of
computing the amount of remission of sentence which might be
awarded to him under any rules in force relating to such remissions.
xxxxxxx
6. Power to revoke licence.- The Government may at any time for
reasons to be recorded in writing revoke a licence granted under the
provisions of Section 2 :
Provided that no licence shall be revoked on the ground of a
breach of a condition of the licence without giving an
opportunity to the person concerned to present his case
before the District Magistrate of the District in which he is
residing at the time.
(2) An order of revocation passed under the provision of sub-
section (1) shall specify the date with effect from which the
licence shall cease to be in force, and shall be served, in such
manner as the Government may by rule prescribe, upon the
person whose licence has been revoked.
and Rules 4, 10 & 11 of the Rules of 1964:-
Rule 4 of the Rules of 1964 as it existed prior to 18.04.2008 or the
Notifiacation dated 24.03.2008 relied upon by the Respondent in their
reply:
Rule 4. Eligibility for release.- Save the prisoners
specified in rule 3 any other prisoner who has served
one third of his sentence of imprisonment or a total
period of five years with remissions, whichever is less,
may be released by the Government on licence.
Amended Rule 4 reads as under:-
Rule 4. Eligibility for release.- Save the prisoners
specified in Rule 3 any other prisoner who has served
one-third of his sentence of imprisonment or a total
period of five years [without remission], whichever is
less, may be released by the Government on licence:
[Provided that in case of such prisoners who have
been sentenced for life imprisonment, under
Sections 302 and 305 of the Indian Penal Code,
1860 (No. 45 of 1860) or under the provisions of
other penal laws in which death sentence is also
one of the punishments subject to the conditions
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that such prisoners are not barred for such
consideration under the provisions of such laws,
will be considered for premature release from the
prison. The eligibility for release shall be after
undergoing the sentence of 14 years of actual
imprisonment without remission of his sentence :
Provided further that all other prisoners,
undergoing the sentence of life imprisonment, will
be considered for premature release only after they
have undergone at least 10 years of imprisonment
with remission and after the completion of 7 years
of actual imprisonment without remission in
sentence :
Provided also that nothing in the above provisions
shall apply to the prisoners whose cases are being
sent to the Hon'ble Governor for consideration
under Article 161 of the Constitution of India, on
special reasons of humanitarian grounds].
xxxxxxxxxxxx
10. Revocation.- (1) The District Magistrate, on
receiving information from the guardian or any other
source, of the breach by the licensee of the conditions of
the licence, shall cause a notice to be served on the
licensee to show cause why his licence should not be
revoked. If the licensee presents himself in response to
the notice, then, after hearing him and, if he does not
present himself, then without hearing him, the District
Magistrate shall consider and decide whether or not to
recommend to the Government for the revocation of the
prisoner's licence and shall act accordingly.
(2) In case the District Magistrate decides to recommend
the revocation of the licence, he may, at the same time, if
he considers that the licensee is unfit to be allowed to
remain at large under the licence, order his arrest and
detention in the prison pending the receipt of the orders
of the Government.
(3) The Government shall on receipt of the District
Magistrate's recommendation pass such orders as it may
deem proper.
(4) An order of revocation of licence shall be in Form 'E'
and shall be served upon, the licensee if detained in
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prison by the Superintendent, and, if not detained in
prison by the officer in charge of police station.
(5) The order of revocation shall be noted on the licence
and in the registers maintained by the District Magistrate
and the Superintendent.
(6) If a prisoner released on licence under the Act
escapes from the supervision or authority of a guardian
or fails to return to prison on revocation of his licence,
the guardian shall immediately inform the District
Magistrate and the Superintendent and report to the
nearest police station, and action shall he taken against
the prisoner as in a cognizable case.
11. Warrant of commitment.- On release of a prisoner
under the Act the Superintendent shall retain the warrant
under which the prisoner was committed to a prison by the
Court which sentenced him until the period of his sentence
with remissions, if any, earned by him during the period of
his confinement in jail has expired. The period during
which a prisoner is absent from prison under the
provisions of the Act on a licence which is in force shall
be reckoned as part of the period of imprisonment to
which he was sentenced for the purpose of computing the
period of his sentence. When the convict released on
licence has finished the sentence, the Superintendent shall
return the warrant or warrants to the Court which issued it
or them."
21] A perusal of the record reveals that this Court in Writ Petition
No.1523/2001 vide its order dated 17.4.2002, had directed that the
petitioner-Lachu @ Laxminarayan be released on probation, as per the
Rules applicable, and pursuant to which, he was also released from jail
on 31.05.2002. According to the respondents the State had also preferred
LPA No.307/2002 against the order passed by the Writ Court dated
17.4.2002, and the Division Bench of this Court on 21.10.2003, while
setting aside the order passed by the Writ Court, directed the petitioner
to surrender forthwith, failing which appropriate action was to be taken
against him to secure his custody.
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22] As provided under Section 3 of the Act, a licence granted
under the provisions Section 2 shall be in force until the entire period
of imprisonment for which the prisoner was sentenced, has expired or
until the licence is revoked which ever is earlier. Whereas, the
revocation of licence takes place under Section 6 which also provides
for an opportunity of hearing to the prisoners before revocation of his
licence. Whereas, as per Section 4, it is provided that the period
during which a person is absent from prison under provisions of this
Act, on a licence which is in force shall be reckoned as part of period
of imprisonment to which he was sentenced for the purposes of
commuting the period of his sentence as also his remission. Thus,
when the order dated 21.10.2003, which was passed by the Division
Bench of this Court in LPA No.307/2003, filed by the State, was not
served on the petitioner and there was no notice issued by the State
also informing the petitioner that his licence stands cancelled on
account of the court order and there is nothing on record to suggest
that during all this period he ever remained absconded, this Court is
of the considered opinion that the petitioner deserves to be given the
benefit of Section 4 of the Act of 1954, i.e., the period during which
a person is absent from prison under provisions of this Act, on a
licence which is in force shall be reckoned as part of period of
imprisonment to which he was sentenced for the purposes of
commuting the period of his sentence as also his remission; as also
s.6, which prescribes that no licence shall be revoked without
affording an opportunity of hearing to the convict.
23] It is also found that in the license dated 31.05.2002, issued to the
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petitioner pursuant to the order dated 17.04.2002, passed by the Writ
Court in W.P.No.1523/2001, there is no mention that it was for any
limited period only, although it is also apparent that the order dated
21.10.2003, passed by the Division Bench in LPA No.307/2002, was in
the presence of the counsel for the petitioner, however, according to the
petitioner, it was never communicated to him either by his counsel or by
any other State authority, and in rebuttal of the same, there is nothing on
record filed by the respondents to demonstrate that this order was indeed
served on the petitioner.
24] It is also found that that even the respondents have also not
complied with the aforesaid order passed by the Division Bench on
21.10.2003 in LPA, of securing the custody of the petitioner after the
order was passed. So far as the presence of the counsel for the
petitioner in the LPA No.307/2002 is concerned, again, in the absence of
any evidence to the contrary, this court cannot presume that the order
dated 21.10.2003, passed by the Writ Appellate Court was actually
served on the petitioner when he contends that it was not served on him,
thus he deserves the benefit of Rule 11 of the Rules of 1964 also which
provides that, "The period during which a prisoner is absent from prison
under the provisions of the Act on a licence which is in force shall be
reckoned as part of the period of imprisonment to which he was
sentenced for the purpose of computing the period of his sentence".
25] It is true that the petitioner and the respondents were required to
comply with the order passed by the Division Bench in its true letter and
spirit, however, in absence of any intimation to the petitioner, he cannot
be held liable for the non-compliance of the same.
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26] In such circumstances, taking into account the aforesaid provisions
of the Act of 1954 and the Rules made thereunder, this court is of the
considered opinion that after the order was passed in LPA, although no
separate order of cancellation of licence was required to be passed, but it
was incumbent upon the respondents to serve a copy of the said order to
the petitioner. Whereas, there is nothing on record to suggest that the
respondents ever made any efforts to serve the said order to the
petitioner, and it is also not the case of the respondents that the
petitioner was absconding since last 24 years.
27] The respondents have also relied upon the Notification dated
24.3.2008, in which, Rule 4 of the Rules of 1964 has been amended to
the effect that in place of five years it should be read as fourteen years in
cases, in which, the accused has been convicted under Sections 302 and
304 of the IPC.
28] Apparently, the aforesaid provision was not enforced at the time
when the petitioner's licence was initially issued on 31.05.2002, on
which date he was released on probation under Section 2 of the Act of
1954, and it is trite that such change of law which is penal in nature and
affects the right of a person, cannot be applied retrospectively, as has
also been held by the Division Bench of this Court in the case of Gori
Shankar vs. State of Madhya Pradesh and others {Writ Petition
No.9034/2008 decided on 16.3.2009} authored by Shri Deepak Mishra
J. as His Lordship then was, para 24 of which reads as under:-
"24. The next limb of submission of Mr.Bhargava and Mr.
Pateria, learned counsel, is that the cases of the petitioners
should have been considered under the old rules as the
amended provisions rule cannot be made applicable to
them. To bolster the said submission, they have
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commended us to the decisions rendered in Mahendra
Singh (supra) and State of Haryana v. Bhup Singh and
others, JT 2009 (1) SC 535. To appreciate the said
submission, we have carefully perused both the decisions.
It is perceivable that the decision in Bhup Singh (supra) is
based on Mahendra Singh. In the case of Mahendra
Singh (supra), their Lordships were dealing with the
validity of the policy decision vis a'vis Prison Rules and in
that context, held that the Rules would prevail keeping in
view that the right to ask for remission of sentence by a life
convict would be under the law as was prevailing on the
date on which the judgment of conviction and sentence was
passed. In the case at hand, the Rules have been amended.
Needless to emphasize, they are statutory in nature. They
have been framed in exercise of powers vested under
Section 9 of the 1954 Act. They are not executive
instructions. In view of the aforesaid, the decisions
rendered in Mahendra Singh (supra) and Bhup Singh
(supra) are distinguishable."
29] This Court is also of the considered opinion that although the
effect of the order passed by the Division Bench of this Court in LPA
was the revocation of the licence of the petitioner however, in the
absence of the service of the aforesaid order on the petitioner, it cannot
be said that his licence should be deemed to be held cancelled from the
date of the order passed in LPA, especially when the order of
probation/licence issued to the petitioner after his writ petition was
allowed, clearly demonstrate that it was not an order for any specific
period although the respondents' contention is that it was for a period of
one month only, and thus, the petitioner was under the bonafide belief
that his licence continued to remain in force until he was arrested.
30] In such facts and circumstances of the case, the entire time from
17.04.2002 to 21.10.2003, spent by the petitioner on bonafide belief that
his licence was in operation during all these years, is liable to be treated
as the period already undergone or suffered by him in jail as prescribed
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under the Act of 1954. Thus, this Court is of the considered opinion that
the petitioner has made out a case for interference.
31] Accordingly, the petition stands allowed and the impugned order
dated 25.08.2023 (Annexure P/6) is hereby quashed. Since the petitioner
has deemed to have suffered the entire period of incarceration, he be
released forthwith from prison under licence under the provisions of
Sections 2/3 of the Act of 1954, if not required in any other case.
32] The Writ Petition stands allowed and disposed of.
(SUBODH ABHYANKAR)
JUDGE
moni
