ORDER
K.B. Sinha and S. Hoda, J.
1. This case has been registered under the orders of Hon’ble the Chief Justice treating an application filed by one Shyam Rati Devi as criminal writ petition.
2. The petitioner claims to be the wife of one Ram Naresh Mahto, who was convicted on 19.5.1990 under Section 302 and other sections of the Indian Penal Code (hereinafter referred to as ‘the Penal Code’) and sentenced to imprisonment for life. He was arrested and taken in custody on 7.6.1977 and since then he is in jail. According to the petitioner, her husband remained in jail for twelve years, five months and twelve days till 22.1.1990 when this petition was sent to this Court. It is stated in the petition that Ram Naresh Mahto earned remission of ten months and eighteen days on the Birth Centenary Celebration of late Dr. Rajendra Prasad, the first President of this country. He earned further remission of seven months on the occasion of the Birth Centenary of late Pt. Jawahar Lai Nehru, the first Prime Minister of India. The total period of detention, together with the remission earned by the husband of the petitioner, would be more than fourteen years and, thus, he is entitled for premature release from jail. It is also stated that the petitioner is issueless and there is none to look after her and hence this petition deserves sympathetic consideration.
3. A counter-affidavit was filed on 8.3.1990 on behalf of respondent No. 3, the Superintendent, Central Jail, Patna, from which it appears the husband of the petitioner was convicted on 19.5.1990 under Section 302 read with Section 149 of the Penal Code by the IInd Additional Sessions Judge, Patna, in Sessions Trial No. 16 of 1978 and was sentenced to undergo imprisonment for life. It is not denied that Ram Naresh Mahto was arrested and remanded to jail custody on 7.6.1977 and remained there as undertrial prisoner till 18.5.1980. It is mentioned therein that as a convict, he had remained in jail for nine years, nine months and nineteen days on the date of filing of the counter-affidavit. It is also stated in the counter-affidavit that he has earned remission of five years, two months and three days. Thus, upon calculation, the period of detention of the husband of the petitioner, together with remission earned, would be seventeen years, eleven months and two days. According to the said respondent, Ram Naresh Mahto is not legally emitted for premature release from jail.
4. Mr. Ashok Priyadarshi, who was good enough to appear amicus curiae to assist the court, referred to the order dated 8.8.1989, issued by the Government of Bihar in exercise of the power conferred under Section 432(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) on the occasion of the Birth Centenary Celebration of late Pt. Jawahar Lal Nehru, the first Prime Minister of India and the Fortieth Year of the Independence day. By the said order, remission in sentence, imposed on the convicts lodged in jail on the date of issuance of the said order, was allowed by the State Government. A copy of the said order has been filed as Annexure ‘A’ to the counter affidavit. It was urged that according to paragraph 2 of the said order, the husband of the petitioner was entitled to remission in sentence of six months further as he was sentenced to undergo rigorous imprisonment for life for conviction under Section 302 of the Penal Code. It was argued that if the said paragraph was not held to be applicable to the case of the husband of the petitioner, then he would be entitled to remission of four months in sentence, as mentioned in sub-paragraph (2) of the said order. Paragraph 2(3) of the said order (Annexure-A) states that a prisoner, who has been awarded sentence of more than ten years, would be entitled to remission of four months in the sentence. It was submitted that the total period of detention of husband of the petitioner, including the remission earned by him, was more than fourteen years and, thus, he was entitled to be released from Jail forthwith, and his further detention would be illegal.
5. Mr. G.P. Jaiswal learned Counsel for the State, the other hand, urged that the case of husband of the petitioner was covered by paragraph 2(2) of Annexure-‘A’ according to which ho was not entitled to any remission in the sentence as he had not served the sentence of fourteen years and, thus, no relief could be granted to him. He placed reliance on the case of Bhagirath v. Delhi Administration .
6. In support of his contention, Mr. Priyadarshi placed reliance on the case of Sukhlal Hansada v. State of Bengal 1986 SCC page 433, Vo 14. In that case, a batch of 24 prisoners lodged in Midnapur Central Jail had made a complaint that they had been in jail for a very long period. Some of them had been detained for a longer priod than what was warranted by the order of conviction and sentence imposed on them and yet their case for release was not considered.
It appears that in that case most of the prisoners had undergone imprisonment for period exceeding fourthen years taking into account the remission earned by them. The stand taken on behalf of the State was that according to Section 433-A of the Code, the petitioners were not entitled to be released without serving sentence of imprisonment for fourteen years. As the petitioners had not sufferred actual imprisonment for fourteen years, their case could not be considered for premature release.
The primary question for consideration in that case was whether the writ petitioners were entitled to the benefit of Section 432 of the Code; that is to say whether the period of detention undergone by them, prior to their conviction as undertrial prisoners, would be set-off against the sentence of life imprisonment imposed upon them.
7. In that case, the Supreme Court categorised the prisoners on the basis of the sentence of imprisonment undergone by them together with the remission earned and issued direction to the Government of West Bengal to consider thier case according to the provisions of the West Bengal Jail Code.
8. In the case of Bhagirath (supra), a number of earlier decisions of the Supreme Court, including that of Sukhalal Hansada (supra), was surveyed. Provisions of Sections 52, 53(A) and (b), 57, 65 and 511. of the Penal Code as well as Sections 428, 432, 433 and 433-A of the Code were taken into consideration. It was observed that the question of setting-oil the period of detention undergone by an accused as an undertrial prisoner against the sentence of life imprisonment would arise only if an order was passed by the appropriate authority under Section 432 or Section 433 of the Code. In the absence of such an order, passed generally or specially, and apart from the provisions, if any, of the relevant Jail Manual, imprisonment for life would mean imprisonment for the remainder of life, as was held in Gobind Gopal Vinayak Godse v. State of Maharashtra . It was further held that the period of detention undergone by an accused as an undertrial prisoner would be set-off against the sentence of life imprisonment imposed upon him, subject to the provision contained in Section 473-A and, provided that orders had been passed by the appropriate authority under Section 432 or Section 433 of the Code. It was specifically mentioned that the point, considered in this case, was not discussed in the case of Sukhlal Hansada (supra). Thus, the controversy, revised with regard to the scope of Section 432 and Section 433-A of the Code was set at rest by this decision.
It is, therefore, clear that Sukhalal Hansada’s case (supra) is not an authority on the point, which arises for determination in the instant case.
9. In order to appreciate the rival contentions urged on behalf of the parties, it would be relevant to notice different paragraphs of the said order of the Government (Annexure-A). Under paragraph 2(1) of the order, provisions for remission in sentence of blind or diseased person have been made. Paragraph 2(2) states that where a sentence of imprisonment of life has been imposed on a prisoner for an offence, for which death is one of the punishments provided by law, or where a sentence of death imposed in a prisoner has been commutted into one of imprisonment of life and who has served fourteen years of sentence, such prisoner will be entitled to remission of six months. According to paragraph 2(3) of the said order, four months ‘remission can be given to a person, who has been awarded sentence of imprisonment of more than ten years. The other sub-paragraphs of the said Government Order (Annexure-‘A’) are not relevant for the purpose of this case. It has specifically been, stated in Annexure-‘A’ that the said order of the Government was operative only on the 15th of August, 1989.
10. It appears that provision for remission in sentence, as mentioned in paragraph 2(3) of the said Government Order (Annexure-‘A’) has been made keeping in view the provision of Section 433-A of the Code, which is thus:
433-A–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 OE 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 commutted 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.
11. On plain reading of the relevant provisions of the said order of the State Government (Annexure-A), it is manifest that different period of remission in sentence was allowed to different categories of prisoner, depending on the nature of offence committed and the sentence of imprisonment imposed upon them, it is specifically mentioned in paragraph 2(2) of the said order that a prisoner, who has been awarded sentence of imprisonment for life on conviction for an offence, for which death is one of the punishments provided under the law or where the sentence of death imposed on him has been commuted into one of imprisonments for life, shall be entitled to remission in sentence for six months if he had served sentence of imprisonment for fourteen years. In other words, unless such a prisoner has served a minimum period of fourteen years’ imprisonment, the remission earned by him cannot be taken into consideration for his premature release from detention. Sub-paragraph (3) of the said order (Annexure-A) deals with absolutely a different catagory of prisoner. Under this sub-paragraph, it has been provided that the prisoner, on whom sentence of more than ten years has been imposed, would be entitled to remission in sentence of four months. Therefore, it is obvious that this sub-paragraph is not applicable to the case of husband of the petitioner.
12. In the instant case, specific averment has been made in the counter-affidavit that the husband of the petitioner served sentence of imprisonment only for nine years and few months, which has not been controverted. Though, according to the counter-affidavit, Rain Naresh Mahto, the husband of the petitioner, had earned remission of five years, two months and three days, but he cannot get the benefit of remission at this stage in view of the restriction inposed under the provision of Section 433-A of the Code.
13. In view of the foregoing discussion, this writ application is dismissed.
14. Before parting with this order, we would like to observe that the authority concerned will consider the case of the husband of the petitioner for premature release as soon as he serves the sentence of rigorous imprisonment for fourteen years in jail.
15. Let a copy of this order be sent to the petitioner.