State Probation Rules Cannot Be In Total Contradiction To Section 433A CrPC: SC [Read Order]

The Supreme Court has observed that there cannot be State Probation Rules in total contradiction to the Section 433A of the Code of Criminal Procedure.

Section 433, the Court noted, states that where a sentence of imprisonment for life is imposed for an offence which is punishable by death sentence, such person shall not be released from prison unless he has served 14 years of imprisonment.

The bench comprising Justice Deepak Gupta and Justice Surya Kant observed that the proviso inserted to Madhya Pradesh Prisoners' Release on Probation Rules, 1964 has been inserted to make the State Rules consistent with the Central Act. It said:

"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. 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 offence 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."

One of the provisos added to the Rules in 2008 reads as follows:

"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:"

Probation Application Should Be Considered As Per The Law As It Stood On The Date When The Application Is Decided

The court was considering an appeal against the Madhya Pradesh High Court order which held that release on probation had to be considered as per the law as it stood on the date when the application was decided.

The case of the appellant Siya Ram [a murder convict serving life imprisonment] was that 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. The Rule [as it stood then] 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. The bench said:

"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." 

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