Judgment:
ORDER
U.L. Bhat, C.J.
1. Petitioners have been convicted, under Section 302, Indian Penal Code on two counts and have been sentenced to imprisonment for life on each count under Section 394 and 397, Indian Penal Code and sentenced to undergo R.I. for seven years and under Section 449, Indian Penal Code and sentenced to undergo R.I. for three years. Sentences have been directed to run concurrently. Having undergone seven years of sentence, they moved the State Government for release on licence under the provisions of the M. P. Act No. 15 of 1954 and the rules made thereunder. After intervention by this Court in three successive writ petitions, the State Government ultimately rejected the application on the ground that the petitioners are ineligible under Rule 3(a) of the Rules of 1964. This order was unsuccessfully challenged in M. P. No. 1688 of 1993. They have now filed this writ petition challenging the vires of Rule 3(a) of the Rules of 1964 and seeking consequential reliefs.
2. A Division Bench referred the case to a Full Bench on the ground that the law laid down in the previous writ petition requires reconsideration. Ordinarily we would not have entertained the present writ petition since the relief claimed by the petitioners against the rejection of their applications by the State Government was denied to them in the earlier writ petition. On that count, the petitioners have challenged vires of Rule 3(a) of the Rules. Therefore, we are inclined to consider the writ petition on its merits. On a correct interpretation of Rule 3 of the Rules, we are satisfied that the petitioners have acquired eligibility under the Act and the Rules. It is, therefore, unnecessary to consider challenge against Rule 3 (a) of the Rules.
3. The broad Scheme of the Act and the Rules is to provide for release on licence of prisoners undergoing sentence. Section 9(4) of the Act empowers the Government to make rules consistent with the Act for defining the classes of offenders who may be conditionally released and the period of imprisonment after which they may be so released. Rule 4 of the Rules states that a prisoner who has served one third of his sentence of imprisonment or a total period of five years without remissions, whichever is less, may be released by the Government on licence. Rule 3 prescribes the classes of prisoners who shall not be released under the Act. Rule 3(a) of the Rules reads as under :
'3(a) Those convicted of offences under the Madhya Bharat Vagrants, Habitual Offenders and Criminals (Restrictions and Settlement) Act, 1952, or any law in force in any region of the State corresponding to said Act, or the Explosive Substances Act, 1908 or under the following chapters or sections of the Indian Penal Code, Chapters V-A, VI and VII and Sections 216A, 224 and 225 (if it is a case of an escape from a jail), 231, 232, 303, 311, 328, 264, 376, 382 to 389, 392 to 402, 413, 459, 460 and 489-A.'
4. Rule 3 (a) refers to several offences and those convicted of such offences are rendered ineligible for release. The classes take in offenders under the Madhya Bharat Vagrants, Habitual Offenders and Criminals (Restrictions and Settlement) Act, 1952, Explosive Substances Act, offences included in Chapters V-A, VI and VII of the Indian Penal Code and some of the provisions of the Indian Penal Code including Sections 394 and 397, Indian Penal Code. The offences referred to in Rule 3(a) are very grave offences involving serious detriment to public law and order. For that reason, prisoners convicted of these offences have been denied the benefit of the Act and the Rules.
5. The denial of benefit is to 'those convicted of offences under...........' including offences under Sections 394 and 397, Indian Penal Code. This does not mean that those prisoners who are convicted of these offences and other offences are ineligible for the benefit during the entire period irrespective of the question whether they have fully undergone the sentence for these offences. 'Those convicted of offences under' mean those convicted and are undergoing sentence imposed consequent to such conviction. If a person has been convicted only under Section 394 read with Section 397, Indian Penal Code and sentenced to undergo R.I. for seven years, as in this case, at the end of seven years or even earlier if he earns remissions due to good conduct, he will be discharged from prison.
6. Persons convicted under Section 302, Indian Penal Code and sentenced to undergo imprisonment for life have eligibility under the Rules. If a person is convicted only under Section 302, Indian Penal Code and sentenced to undergo imprisonment for life, he may be eligible to be dealt with under the provisions of the Act. But if the same person is convicted both under Section 302 and Section 394, Indian Penal Code and duly sentenced, it cannot be that he would be eligible to come out of the prison in regard to each offences separately, but is ineligible to come out of the prison having regard to conjunction of the two offences. The petitioners are persons convicted of offences under Section 302 and Section 394 read with Section 397, Indian Penal Code. Sentence has been imposed on petitioners under Section 394 read with Section 397, Indian Penal Code. That sentence has already been undergone. After the expiry of period of sentence so imposed, they cannot any longer be regarded as undergoing sentence thereunder though they are undergoing sentence under Section 302, Indian Penal Code and hence are eligible to be considered for release on licence. This aspect of the matter was not adverted to by the Division Bench in M. P. No. 1688 of 1993. We, therefore, hold, with respect, that the decision does not lay down good law.
7. We hold that the petitioners are eligible for consideration. We direct the State Government to consider applications of the petitioners for release on merits treating them as eligible for purposes of the Act and the Rules. The State Government will pass final orders on the applications within three months of the date of receipt of a copy of this order. A copy of this order be forwarded to the Secretary to the Government of M. P. in the Home Department. Issue copy of the order to the petitioners also. Petition is accordingly disposed of.