Thursday, 18 July 2019

Whether State Probation Rules Can Be In Total Contradiction To Section 433A CrPC ?

Section 433A had come into force with
effect from 18.12.1978 by Act No. 45 of 1978.
It specifically provides that where a
sentence of imprisonment for life is imposed
for an offenc which is punishable by death
sentence, such person shall not be released
from prison unless he has served 14 years of
imprisonment. These are central amendments
and there cannot be State Rules in total
contradiction to the Central enactment. The
proviso has obviously been inserted to make
the State Rules consistent with the Central
Act.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9540 OF 2013

SIYA RAM  Vs STATE OF MADHYA PRADESH 
Dated:JUNE 20, 2019.

O R D E R
1. By means of this appeal, the appellant
has challenged the decision of the High Court
of Madhya Pradesh, dated 30.10.2012 passed in
WA No. 915/2011, whereby the High Court has
rejected the plea of the appellant to be
released on probation in terms of the M.P.
Prisoners' Release on Probation Rules, 1964
(for short, "the Rules"), as they stood prior
to their amendment on 24.03.2008.
2. The appellant along with 10 others was
convicted by the Trial Court for having
committed various offences, including, an

offence punishable under Section 302, IPC and
sentenced to undergo life imprisonment.
On appeal being filed by 11 convicted
persons, two persons were acquitted by the
High Court and the conviction of the
appellant and 8 others was upheld. The case
of the appellant is that he applied for
grant of probation under the Rules, as they
stood prior to the amendment. At the
relevant time, the relevant Rule read as
under:
"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 [:]"
3. This Rule provided that any person who
had served one-third of his sentence or a
total period of 5 years without remission,
whichever, is less may be released by the

Government on licence.
4. A proviso was added on 24.03.2008,
which reads as under :
"[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 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]."
5. The first proviso clearly lays down
that in case of persons convicted under
Section 302 IPC and sentenced to undergo life
imprisonment their case for release can only
be considered after they have undergone 14
years of actual imprisonment without
remission. The High Court held that on the
date when the application was considered, the
proviso had come into force and, therefore,
rejected the claim of the appellant to be
released in terms of the unamended Rules, as
he had not undergone 14 years of
imprisonment.

6. The learned counsel for the appellant
submits that the proviso has not been made
retrospective and according to him, his
application should have been considered as
per the law as it stood prior to its
amendment at the time when he made
application for his release on probation. It
is also submitted that other co-accused were
granted probation as per the unamended Rules
and, therefore there is discrimination so far
as the appellant is concerned.
7. We are unable to accept the contentions
raised by the appellant. His application for
release on probation had to be considered as
per the law as it stood on the date when the
application was decided. Merely because the
application was made earlier and the
application was decided later, does not mean
that retrospective effect has been given to
the provision. The provision is being given

effect to as it stood on the date when the
application was decided and that does not
make it retrospective operation.
8. We may also refer to Sections 433 and
433A of the Code of Criminal Procedure which
read as under :
"433. Power to commute sentence.
The appropriate Government may,
without the consent of the person
sentenced, commute-
(a) a sentence of death, for any other
punishment provided by the Indian Penal
Code;
(b) a sentence of imprisonment for life,
for imprisonment for a term not exceeding
fourteen years or for fine;

(c) a sentence of rigorous imprisonment,
for simple imprisonment for any term to
which that person might have been
sentenced, or for fine;
(d) a sentence of simple imprisonment, for
fine.
433A. Restriction on powers of
remission or Commutation in certain
cases. Notwithstanding anything
contained in section 432, where a
sentence of imprisonment for life
is imposed on conviction of a
person for an offence for which
death is one of the punishments
provided by law, or where a
sentence of death imposed on a
person has been commuted under
section 433 into one of
imprisonment for life, such person
shall not be released from prison
unless he had served at least
fourteen years of imprisonment."
9. Section 433 permits commutation of
sentence under certain circumstances and
Section 433 A makes it clear that a sentence
of imprisonment for life cannot be commuted
for a period of sentence less than 14 years.
This provision existed in the Code of
Criminal Procedure right from the very
beginning.

10. Section 433A had come into force with
effect from 18.12.1978 by Act No. 45 of 1978.
It specifically provides that where a
sentence of imprisonment for life is imposed
for an offenc which is punishable by death
sentence, such person shall not be released
from prison unless he has served 14 years of
imprisonment. These are central amendments
and there cannot be State Rules in total
contradiction to the Central enactment. The
proviso has obviously been inserted to make
the State Rules consistent with the Central
Act.
11. In this case, the appellant who was
convicted in the year 1981 has merely
suffered 7 years of actual imprisonment and
has been out on bail on one ground or the
other. This is a travesty of justice. We
find no merit in this appeal, which is
accordingly, dismissed.
12. The appellant is directed to surrender

before the appropriate authorities within two
weeks.
..................J.
[ DEEPAK GUPTA ]
...................J.
[ SURYA KANT ]
NEW DELHI,
JUNE 20, 2019

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