STATE OF M.P. versus KUSUM

Citation: [2007] 8 S.C.R. 411 · Decided: 19-07-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

ST A TE OF M.P. 
v. 
KUS UM 
JULY 19, 2007 
[DR. ARIJIT PASA YAT AND P.P. NAOLEKAR, JJ.] 
Madhya Pradesh Prisoners' Release on Probation Act, 1954-Madhya 
Pradesh Prisoners' Release on Probation Rules, 1964-Release on 
probation-Circular issued by State stipulating that convicts, whose 
applications for bail had been rejected and whose appeals were pending 
before the Appellate Court, were not entitled to be considered for release on 
probation-By the Circular, even making of application for release on 
probation was provided to be impermissible-Held: The Circular is liable to 
be quashed-There cannot be any bar for making application for release 
A 
B 
c 
on probatiorr-Whether prayer contained in the application is to be accepted D, 
or not is another question. 
A Circular was issued by the State stipulating that convicts, whose 
applications for bail had been rejected and whose appeals were pending before 
the Appellate Court, were not entitled to be considered for release on probation. 
By the Circular, even making of application for release on probation was E 
provided to be impermissible. 
A writ petition was filed before the High Court questioning the legality 
of the said circular. High Court quashed the circular holding that the circular 
/: 
was absoluiely general, sweeping and inconsistent with the Madhya Pradesh F 
Prisoners' Release on Probation Act, 1954 and the M.P. Prisoners' Release 
on Probation Rules, 1964. The Court held that the concerned authorities 
misconstrued an earlier High Court decision which purportedly formed the 
foundation of the circular in question. Hence the present appeal. 
Dismissing the appeal, the Court 
HELD: The earlier High Court decision only highlighted the parameters 
· of cvnsideration for release on probation. It never held that even making of 
an application for release on probation is to be barred. Therefore, the Circular 
has been rightly held to be illegal by the High Court. There cannot be any 
G 
411 
H 
412 
SUPREME COURT REPORTS 
[2007) 8 S.C.R. 
A bar for making an application. Whether the prayer as contained in the 
application is to be accepted or not is another question. 
B 
c 
D 
E 
(Paras 6 and 7) (413-H; 414-C, DJ 
Arvind Yadav v. Ramesh Kumar and Ors., (200316 SCC 144, referred 
to. 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 913 of 
2007. 
From the Judgment & Order dated 06.02.2006 of the High Court of 
Madhya Pradesh at Jabalpur, in W.P. No. 1618 of 2006. 
Govind Goel, C.D. Singh and Sunny Chowdhary for the Appellant. 
Shiv Sagar Tiwari and Priyanka Singh for the Respondent. 
-" 
The Judgment of the Court was delivered by 
DR. ARIJIT PASAYAT,J. I. Leave granted. 
2. Challenge in this appeal is to the judgment of a Division Bench of 
the Madhya Pradesh High Court at Jabalpur quashing the Circular dated 
3.8.2005 issued by the State. 
3. Background facts in a nutshell are as follows: 
Respondent is convicted for offence punishable under Section 302 of 
the Indian Penal Code, 1860 (in short the 'IPC') and was sentenced to rigorous 
imprisonment for life. She filed an application for release under the Madhya 
F Pradesh Prisoners' Release on Probation Act, 1954 (in short the 'Act') and 
the rules framed thereunder. On 3.8.2005 a Circular was issued by the Inspector 
General of Prisons that persons whose appeals are pending before the Appellate 
Court are not entitled to be considered for the purpose of release on probation. 
The Circular was purportedly issued on the basis of the decision rendered by 
a Division Bench of the Madhya Pradesh High Court, Gwalior Bench in Writ 
G Petition No.941 of2004 dated 14.10.2004. 
Respondent's prayer was rejected by the Probation Board on 8.8.2005. 
The State Government formally approved the rejection by rejecting the prayer 
for release by order dated 29.10.2005. A writ petition was filed before the High 
Court questioning the legality of the Circular dated 3.8.2005. Primary stand 
H taken was that the same was contrary to the provisions of the Act. The High 
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STATEOFM.P. v. KUSUM[PASAYAT.J.] 
413 
Court noted that the Division Bench in the earlier case had adverted to the A 
concept of conditions precedent and the irregularity in release on probation 
of certain convicts particularly those whose applications for bail had been 
rejected and their appeals were pending. The High Court noted that in the 
said case there was a question mark over the decision making process of the 
Probation Board as in some cases
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