JUDGMENT
S.S. Nijjar, J.
1. This order will dispose of Cr). Misc. 25903-M of 1998 and Crl. Misc. 25907-M of 1998. These two petitions have been filed under Section 482 of the Code of Criminal Procedure read with Articles 226/227 of the Constitution of India seeking the issuance of an appropriate writ quashing the orders dated 26.8.1998/26.6.1998, An-nexure P4,to Crl. Misc. 25903-M of 1998 and order dated 26.8.1998, AnnexureP4, and 12.10.1998, Annexure P5, to Crl. Misc. 25907-M of 1998, declining the premature release case of the petitioners. The petitioners father seek a direction to the respondents to consider and decide their cases for premature release as per instructions dated 28.11.1977/27.2.1984, Annexure P2, which were applicable on the date of the convic-
tion of the petitioners.
2. The undisputed facts of the two petitions are that FIRNo. 128 dated 14.8.1976 was registered against the petitioners, under Sections 148, 302/149. 307/149, 324/149 and 323/149 of the Indian Penal Code at Police Station Samalkha, District Karnal (now Pani-pat). The petitioners were arrested on 15.8.1976. They were convicted and sentenced to undergo imprisonment for life. The petitioners were convicted on 6.12.1977 and were sentenced on 9.12.1977.
3. After serving the necessary sentence the case ofthe petitioners was to be considered for premature release under the instructions issued by the State of Haryana. The necessary instructions were issued by the State of Haryana on 28.11.1977 which were subsequently clarified on 21.10.1984. The relevant portion of the instructions is reproduced as under :
“Sub : Premature release of life convicts.
Reference your Memo No. 3278/GI/G-3 dated 21.2.1984 on the subject noted above.
The Haryana Government vide letter No. 7483/2JJ/77/30099 dated 28.11.1977 had directed that cases of life convicts of the following two categories be put up to the State Level Committee for review of their premature release and final decision of the State Government thereon. The categories are :-
1. Adult male life convicts
After completion of 8-1/2 years
of substantive
sentence and 14 years sentence including remission.
2. Female and Juvenile life convicts who were below
20 years
of age of the lime of commission of offence.
After completion of 6 years
of substantive
sentence and 10 years sentence including remission.
In this connection it is clarified that the instructions contained in the aforesaid memo are not applicable to life convicts whose death sentence has been commuted to life imprisonment by the President of India or.by the Governor of a State on acceptance of mercy petitions. The cases of these life convicts for their premature release continue to be considered on basis of the guidelines as envisaged in the Government Policy decision dated 12.12.1967 which are reproduced below:
i. The adult male life
convicts whose death sentence has been commuted to life imprisonment.
After completion of 14 years
of substantive
sentence.
ii. The female and Juvenile
life convicts who were below 22 years of age at the lime of commission of offence and
whose death sentence has been commuted to life imprisonment.
After completion of 10 years substantive
sentence
You-are, therefore, requested that this clarification may be brought to the notice of all Jail Superintendents in the Haryana and they may be asked to act according to this clarification meticulously and submit the cases of the life convicts for consideration of their premature release accordingly.”
4. A perusal of the instructions reproduced above makes it clear that the premature release case ofthe petitioners, they being adult male life convicts, was to be considered on their completion of 8-1/2 years of substantive sentence and 14 years sentence including remission. It is not disputed that both the petitioners have completed 8-1/2 years of substantive sentence and 14 years sentence including remission.
5. The short controversy which has been raised is with regard to the instructions which would be applicable in the present case. According to Mr. Chaudhary, learned counsel for the petitioners, the matter is no longer res Integra, it being covered by the judgment ofthe Supreme Court in the case of Maru Ram v. Union of India and others, 1981(1) Supreme Court Cases 107. In the aforesaid judgment, after considering the entire matter the Supreme Court gave conclusion in para 72. The relevant portion for the purpose of this case is contained in para 72, sub-para (7), which is reproduced as under :
“We declare that Section 433A, in both its limbs (i.e., both types of life imprisonment
specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years actual imprisonment will not operate against those whose cases were decided by the trial Court before December 18, 1978 when Section 433A came into force. AH Lifers whose conviction by the court of first instance was entered prior to that date are entitled to consideration by government for release on the strength of earned remissions although a release can take place only if government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short- sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.”
6. To support his submission Mr. Sarup, learned AAG Haryana has, however, relied on a judgment of the Supreme Court in the case of State of Haryana and others v. Bal-wan etc., 1999(4) RCR (CrL) 65 (SC): 1999(2) Judicial Reports (CrL) 678. Relying on this judgment, learned State counsel has submitted that the cases of the petitioners have to be considered on the basis of the latest instructions. According to the learned State counsel, the latest instructions were issued on 18.3.1999. According to these instructions that adult life convict has to serve 14 years actual sentence excluding remission. Since both the petitioners have not served 14 years of actual sentence, they would not be entitled to be released.
7. I have considered the entire matter. I am of the considered opinion that the case is squarely covered by the judgment of the Supreme Court in Maru Ram’s case (supra). The petitioners’ cases have to be considered by the respondents-State on the basis of the instructions dated 28.11.1977. A perusal of the judgment in Balwan’s case (supra) shows that it pertains to a conviction on a date after December 18, 1978. That was the date on which Section 433A of the Code of Criminal Procedure came into operation. In para 2 of the judgment, it is categorically held thai it is not necessary to refer to the facts of these cases or the Government instructions issued prior to December 18, 1978 when Section 433A came to be inserted into the Code of Criminal Procedure. The premature release cases of those convicted before that date had to be considered on the basis of the relevant Government instructions and the dates of their convictions. As regards those persons who have been convicted after Section 433A came into force and thus fall within the purview of that section, their cases will have to be considered consistently with Section 433A and if life convicts are to be given a larger benefit, it can only be done now under Articles 72 and 161 of the Constitution.
8. The aforesaid makes it evident that the case of the petitioners had to be considered on the basis of the instructions which were in existence on the date of their conviction. Thus, the case of the petitioners has to be considered on the basis of the instructions dated 28.11.1977 as clarified on 27.2.1984.
9. In view of aforesaid, both the petitions are allowed. The impugned orders in both the petitions bejng Annexures P4 and P5 are hereby quashed. The respondent-State is directed to consider the cases of the petitioners in accordance with law laid down in Maru Ram’s case (supra) i.e. on the basis of the instructions dated 28.11.1977 as clarified on 27.2.1984. Let the case of the petitioners be considered within a period of two months of the receipt of a copy of this order. No costs.
10. Petitions allowed.