JUDGMENT
V.S. Kokje, J.
1. The petitioner is a convict under going life sentence in Central jail Bikaner. According to him, he has served over 22 years sentence so far. He had filed a criminal writ petition No. 523/92 in the Supreme Court of India. The petition was dismissed, but a direction to the Govt. to re-consider the premature release of the petitioner after a period of one year from the date of the order i.e. 16-8-1993 was issued. The petitioner filed D. B. C. writ petition (Habeas Corpus) No. 3985/93″in this Court complaining that the Supreme Court’s direction had not been carried out. Following order was passed disposing of that case on 22-8-1994.
“Mr. Bhandawat is directed to accept summons on behalf of State Govt. In this case the Hon’ble Supreme Court dismissed the appeal of the petitioner and gave direction that his case be reconsidered for release after expiry of one year. The petitioner having been convicted under Section 397, I.P.C. along with 362 I.P.C. the Advisory Board declined to consider the case for pre-mature release because the case is not covered by Rule 9(1) of the Raj Prisons (Shortening of sentences) Rules, 1958, but the petitioner is entitled for the consideration of his case for release in pursuance of direction of their lordships of Hon’ble Supreme Court under Rule 135 of the Raj Prisons Rules, 1951 and accordingly Mr. S. S. Bhandawat has no objection if a direction is issued by this Court that his case be considered for submission to the Govt. within a period of 2 months from today. The Govt. is directed to decide the case of the petitioner for release after due consideration within 3 months thereafter. The directions are accordingly issued and habeas corpus petition stands disposed of. Copy of the order be sent to Supdt. of Police, Central Jail, Bikaner and Home Secretary Jaipur for necessary compliance.”
The petitioner contended that in obedience of the order of the Supreme Court and the High Court meeting of Advisory Board was convened on 4-10-94 at Bikaner and in that meeting the Advisory Board recommended for the premature release of the petitioner. The petitioner contends that in view of this recommendation he should have been released under Rule 12 of the Rajasthan Prisons (Shortening of Senetences) Rules, 1958. The petitioner also submits that he is entitled to be released under Rule 135 of the Rajasthan Prisons Rules, 1951 also on the basis of the Advisory Board’s recommendation.
2. The respondents have denied the fact that the Advisory Board has recommended the premature release of the petitioner. In paragraph 8A of the reply to the amended writ petition it has been categorically denied that State Govt. had rejected the recommendation of the Advisory Board. It was contended that infact the petitioner’s case was not considered by the Advisory Board nor its recommendations were sent to the State Govt. It is contened that as per the order of the High Court the case of the petitioner was sent to the State Govt. through the Inspector General of Prisons under Para 135 of para 25 of the Rajasthan Prisons Rules, 1951 with full information regarding the character of his crime, his conduct in prison and the probability of his reverting after release to criminal habits. The State Govt. after considering the entire material rejected the petitioner’s case for premature release and communicated the same to the supdt.Jail, Bikaner vide letter dated 23-11 -94. It was contended that the case of the petitioner was directly sent to the Govt. through the Inspr. Genl. of prisons under Rule 135 of the Rules and it, was therefore, contended that Rule 150 would have no application in the case.
3. The factual position that after the order of the Division Bench of this Court, the petitioner’s case for premature release was not recommended by the Advisory Board is very clear. Actually, the proceedings of the meeting dated 4-10-94 of the Advisory Board reproduced in the petition itself show that the Advisory Board resolved unanimously that if under the orders of the Rajasthan High Court dated 22-8-94 any benefit could be given to the prisoner under Rule 135 of the Raj. Prisons Rules, 1951, the Advisory Board has no obejetion and the Supdt. Central Jail, Bikaner was himself competent to take action in the matter. The Advisory Board, therefore directed the Supdt. Jail, Bikaner to take necessary action in the matter and send a report about the case of the petitioner through proper channel to the Govt. of Rajasthan for consideration in accordance with the spirit of the orders of the Supreme Court and the High Court. This can hardly be said to be a recommendation. Infact, the Advisory Board has not considered the matter on merits and has thought that under the directions of the Supreme Court and the High Court the matter has to be decided by the State Govt. without any reference to the Advisory Board.
4. The matter was sent by the Supdt. Central Jail, Bikaner to the State Govt. on 13-1 -94 and on 23-11-94 the State Govt. wrote to the Supdt. Central Jail, Bikaner that the State Govt. did not think it proper to release the petitioner before serving the full sentence. The grounds mentioned in the letter were that the convict was the habitual offender, that he was detained in four cases, out of which, three were releted to murder, dacoity, robbery and attempt to murder while committing dacoity. The fourth case was related to an assault on a public servant because of personal enmity. It was also stated in the letterthat Distt. Collectors and Police Supdt. of jalore and Jodhpur had not recommended to release the petitioner before serving out full sentence.
5. To our mind, the respondents have misdirected themselves into believing that the matter could be decided by the Govt. without it being placed before the Advisory Board and without the matter being considered and recommended one way or the other by the Advisory Board. Neither the order of the Supreme Court nor of the Division Bench of this Court directed the Govt. to do so. When the matter was directed to be considered under Rule 135 of the Rajasthan Prisons Rules, 1951 what is meant is that the procedure applicable to all such cases should be followed. Rule 135 relates to release of prisoners under the 14 year rule. Section IV of the Rajasthan Prisons Rules, 1951 relates to Advisory Boards. Rule 136 provides for constitution of Advisory Board, Rule 137 for the meetings of the Advisory Board. Rule 138 provides for scrutiny by the Advisory Board and Rule 139 provides for eligibility criteria for consideration of cases by the Advisory Board. Rule 138 provides that before Advisory Board recommends shortening of sentence or premature release of the prisoners it shall examine the circumstances, in which the offence was committed and the punishment awarded by the Court, previous history and character in the district of his residence, prisoner’s conduct in the prison and result of imprisonment already undergone by him, opinion of the Distt. Magistrate and the Supdt. of Police of the district inwhich the prisoners reside etc. Rule 139 (iii) provides that a prisoner sentenced to more than 14 years imprisonment or transportation for life or to transportation and imprisonment for terms exceeding in the aggregate 14 years and has to serve two third of his sentence including remission shall be entitled for consideration by the Advisory Board. Further provisions of Section IV aforesaid provide for the procedure etc. of the Advisory Board. Rule 150 provides for consideration by the Govt. of the recommendations of the Advisory board. If w,e interpret Rule 135 as a power given to the Govt. independent of consideration and recommendation of the Advisory Board it would lead to anomalous situation in which a person whose case is not recommended by the Advisory Board may even be released by the State Govt. without looking into the recommendation of the Advisory Board. When these provisions are harmoniously construed, the result is that compliance with Rule 136 to 152 relating to Advisory Boards will have to be made before action under Rule 135 is taken. If we interpret the rules otherwise, then the very existence of Rule 136 to Rule 152 so far as persons who have been sentenced for more than 14 years imprisonment will become meaningless. There would have been no necessity to include prisoners sentenced to more than 14 years imprisonment under the eligibility criteria provided by Rule 139 of the rules because such cases could be referred to the Govt. directly without taking them to the Advisory Board under Rule 135. It has, therefore, to be interpreted that even for action under Rule 135 the case has to go through the Advisory Board.
6. In the present case, the case has not been considered by the Advisory Board. It is, therefore, directed that the respondents shall place before the Advisory Board the case of the petitioner for consideration for his premature release and the entire exercise under the rules shall be completed within a period of three months and the Govt. shall take a decision on the basis of the recommendation of the Advisory Board within that period. The petition is allowed. There shall be however, no order as to costs.