P.C. Misra, J.
1. This writ application has been filed by the petitioner who is undergoing his sentence in the Circle Jail at Cuttack praying for his release.
2. The petitioner, Arjun Charan Samal along with fifteen others was tried under Sections 148/302/34, I.P.C. for causing the death of one Rama Naik on 11-2-1973. The petitioner and three other accused persons were also charged under Section 324,I.P.C. All of them were tried in S.T. No. 48-C of 1973 in the Court of the Additional Sessions Judge, Cuttack, and by judgment dt. 14-8-1974, the petitioner was convicted under Sections 302 and 324, I.P.C. and was sentenced to undergo rigorous imprisonment for life under Section 302, I.P.C. and for six months under Section 324, I.P.C, both the sentences were directed to run concurrently. The other accused persons were acquitted. Against the aforesaid judgment, the petitioner preferred an appeal in Criminal Appeal No. 173 of 1974 and the State of Orissa filed Government Appeal No. 9 of 1975. This Court by a common judgment dt. 27-1-1976 dismissed both the appeals. Consequently, the order of acquittal in respect of the other accused persons as also the order of conviction of the petitioner was upheld.
3. The petitioner is in custody as an under-trial prisoner and after his conviction, he underwent the sentences. In this writ application, the petitioner has averred that he has been in custody for more than 14 years and his case should have been referred for consideration for premature release under Rule 518 of the Orissa Jail Manual. He has also referred to the mercy petition submitted by his wife for his release and it is stated that the Governor has rejected the same in exercise of the powers conferred on him under Article 161 of the Constitution. He claims that he is entitled to be released taking into consideration the remissions granted to the prisoners under the rules of the Jail Manual.
4. A counter-affidavit has been filed on behalf of the opposite party, namely, the State of Orissa through the Deputy Secretary to the Government, Law Department, wherein it has been stated that while the petitioner was in jail custody after his conviction his wife Smt. Ushamani Samal made a mercy petition to the Governor of Orissa which after the consideration was dismissed by the Governor on 3-6-1982. Thereafter his wife filed a second petition addressed to the Governor of Orissa which was rejected on the ground that his case did not justify premature release. The wife of the petitioner had also filed an appeal petition under Article 161 of the Constitution before the Governor of Orissa during the pendency of the present writ application which, it was stated to be pending at that time. Among other things,, it has been stated that the petitioner had committed a pre-planned cold blooded murder and he is bound in law to serve a life term in prison unless the said sentence is commuted or remitted by the appropriate authority. At any rate, it has been contended that there are no grounds, far less sufficient grounds, for interference in this case by this Court under Article 226 of the Constitution. One of the contentions is also that it is not open to the Court to interfere in the executive functions to be exercised by the head of the State under Article 161 of the Constitution and ultimately the rejection of the writ petition has been prayed for.
5. A supplementary affidavit has been filed by the State sworn to by the Inspector-General of Prisons giving the details as to the term of the sentence actually undergone by the petitioner together with the period of remission earned by him. It has been stated that the petitioner's case was recommended to the Governor on 17-6-1983 for premature release but the same appears to have been made by mistake without consideration of the amended Rule 708-A of the Jail Manual which prescribed that the question of release of life convict shall be referred to the State Government after 20 years of imprisonment including the remission earned. It has also been stated that the amended Rule 518 of the Jail Manual would not apply to the petitioner as the amendment was made on 2-5-1977 much after the conviction of the petitioner.
6. Several Acts and Regulations govern the establishment and management of the jails, for confinement and treatment of persons therein and the maintenance of discipline amongst them. A set of Rules have been framed in the year 1942 for the guidance of the jails in Orissa to supplement the law in the Acts and the Regulations in a consolidated manual (hereinafter called the Jail Manual). Rule 518 of the Jail Manual reads thus:
Every case in which a convict sentenced to rigorous imprisonment or transportation or both has undergone in a jail or jails elsewhere than at Port Blair, a period of detention amounting together with remission earned to fourteen years, shall be submitted through the Inspector-General of Prisons for the orders of the Provincial Government not less than five not more than six months before the expiry of the period. In reporting these cases to Government, the Inspector-General of Prisons will note if the convict has been undergoing imprisonment in lieu of a sentence of transportation.
The aforesaid rule has been substituted by a new rule by notification No. 20352 dt. 2-5-1977 issued by the Home Department which reads thus:
(1) Every case in which a convict is sentenced to rigorous imprisonment has undergone in a jail or jails a period of detention amounting together with ordinary and special remission earned to fourteen years shall be submitted through the Inspector-General of Prisons as per note to Rule 708 of Orissa Jail Manual for the orders of the State Govt. not less than five and not more than six months before the expiry of the period.
(2) Every case in which a convict sentenced to life imprisonment has undergone in a jail or jails a period of detention amounting together with ordinary and special remission earned to twenty years shall be submitted to the Inspector-General of Prisons as per Rule 708-A (Orissa Jail Manual) for the orders of State Govt. not less than five and not more than six months before the expiry of the period.
(3) No case referred to in Rule 709 of the Orissa Jail Manual in which a convict sentenced to death penalty later on commuted to life imprisonment shall be referred to the State Govt. unless specially called for by the Inspector-General of Prisons for the orders of Govt.
Thus unamended Rule 518 did not make a distinction between a convict sentenced to life imprisonment and one who has been sentenced to R.I. for more than 14 years whereas the new Rule 518 after amendment makes out such a distinction. The old Rule 518 stated that every case in which a convict sentenced to R.I. or transportation or both has undergone in a jail a period of detention amounting together with remission of 14 years should be reported to the Provincial Government for orders, evidently for a consideration as to whether the, convict is entitled to premature release. In the new Rule 518 as amended it has been prescribed that in case of a convict sentenced to life imprisonment such a report shall be submitted only after he has undergone a period of detention of 20 years taking into account the ordinary and special remissions earned by him. The amended Rule 518(1) which deals with convicts other than life convicts makes a reference to Rule 708 of the Jail Manual and Rule 518(2) which deals with the life convicts requires the report to be submitted as per Rule 708-A. Rule 708 had undergone some changes by way of amendment which came into effect by the notification dt. 8-1-1963 issued by the Home Department under Section 59(5) of the Prisons Act, 1894. By the same notification, a new Rule 708-A was introduced which says that the question of release of a life convict shall be referred to the Government after 20 years of imprisonment including the remissions earned. Thus, even though Rule 708-A was introduced in 1963, Rule 518 was not amended till 1977 as a consequence of which there cropped up certain inconsistencies in the Rules. As already stated, R/518, as it stood up to 1977, required that the case of every convict who had undergone a detention of 14 years including the remissions earned would be referred to the Government for orders for a consideration as to whether he was entitled to be released prematurely whereas Rule 708-A which came into existence in 1963 requires the case of a life convict to be referred for the above purpose only after 20 years of detention including the period earned by way of remission.
7. Section 432 of the Criminal P.C. deals with the power of the appropriate Government to suspend and remit the sentences. Section 433 of the Cr. P.C. empowers the appropriate Government to commute the sentences in the manner enumerated therein. Section 433A, Cr. P.C. inserted by the Amendment Act of 1978 obligates the actual detention in prison for full 14 years as a mandatory minimum in the two classes of cases where the Court could have punished the offenders with death but did not or where the Court did punish the culprit with death but he survived through the conviction to life imprisonment granted under Section 433, Cr. P.C. In the case of Maru Ram v. Union of India : 1980CriLJ1440 , the Supreme Court elucidated the law on the subject and held that Section 433A is prospective in its application. It was also held therein that every person who had been convicted by the sentencing court before December, 1978 (when the Amendment Act of 1978 came into force) would be entitled to the benefits accruing to him from the remissions scheme or short sentencing projects as if Section 433A did not stand in his way.
8. In the supplementary affidavit filed on behalf of the State, it has been rightly stated that Rule 518 as amended in 1977 has no application to the case of the petitioner inasmuch as he was convicted prior to the amendment came into force. It has, however, been stated that the recommendation made on 17-6-1983 by the Inspector-General of Prisons in the case of the petitioner was in ignorance of Rule 708-A. The same position does not appear to us to be correct in view of the fact that Rule 518 prior to the amendment in 1977 required the case of every convict sentenced to R.I. to be referred to the appropriate Government for consideration after a period of detention together with the remissions earned has been undergone for 14 years. Even though Rule 708-A was introduced in the year 1963 restricting such references in case of life convicts to be made only after 20 years of sentence including the remissions earned by them, the same could not be made applicable to the petitioner in the absence of suitable amendment to Rule 518 which ultimately was made in the year 1977. The learned Standing Counsel during the course of argument, however, indicated that the recommendation of the Inspector-General of Prisons in respect of the petitioner has been referred to the Home Department which is under consideration. As Rule 518, as it stood up to 1977, is applicable to the petitioner, his recommendation cannot be thrown out as premature. The appropriate authority is directed to dispose of the recommendation as required by the Rules on its own merits within a period of two months from today.
9. The writ application is accordingly disposed of. There would, however, be no order as to costs.
G.B. Patnaik, J.
10. I agree with the conclusion and the direction given by my learned Brother, but I would like to add a few words as in my opinion, the petitioner is languishing in jail because of some misapprehension in the minds of the authorities dealing with his case.
11. The petitioner being convicted for an offence under Section 302, Penal Code, and having been sentenced to undergo rigorous imprisonment for life, is continuing to serve the said sentence. As an undertrial prisoner, he was in custody for one year six months and one day and after his conviction, by 18th of January, 1985, he had served the sentence of 11 years 7 months and 4 days. The petitioner has asserted, and to which no counter has been filed, that the total amount of remission earned by the petitioner is four years nine months and eight days up to the end of December, 1984 and thus the petitioner has served the sentence for a total period of seventeen years ten months and eight days up to 18-1-1985 including the remission granted by the authorities and including the period he was in custody as, an undertrial prisoner. Sections 432 and 433 of the Criminal P.C. confer powers on the State Government to suspend, remit and commute sentences and Section 433(b) specifically lays down the power of the State Government to commute a sentence of imprisonment for life, for a term not exceeding fourteen years or for fine. The Orissa Jail Manual which is also a statutory one having been framed under the Prisons Act also provides procedure as to how the case of a life convict is to be dealt with after he has undergone sentence of fourteen years, including the remissions earned by him. Under the said Jail Manual, more particularly, under Rule 518 of the Jail Manual, a convict sentenced to rigorous imprisonment after serving a period of detention together with remissions earned for fourteen years, is entitled to have his case considered by the State Government for the purpose of his release. The procedure contained in the provisions of the Jail Manual to submit the case of a convict to the appropriate Government is obviously for the purpose of Government exercising its power under Section 433 of the Criminal P.C. This right of a convict cannot be equated with the constitutional right of a convict to get pardon or the sentence being commuted by the Governor under Article 161 of the Constitution. This power of the Governor under Article 161 of the Constitution and the consequential right of a convict to pray for mercy of the Governor is in addition to or bereft of any other rights of the convict to have his case considered by any other authority in the matter of remission or commutation of sentence, like the power of the State Government under Section 433 of the Code read with the provisions of Rule 518 of the Orissa Jail Manual. From the counter-affidavit filed by the Deputy Secretary to the Government in the Law Department, it appears that the competent authorities were under a misapprehension that since the Governor has rejected the mercy petition filed by the petitioner's wife, the petitioner has no further right under any provision of the statute. This in my opinion, is certainly not the correct position of law. The order of the Governor rejecting the mercy petition filed by the wife of the detenu is in relation to the exercise of his power under Article 161 of the Constitution. Negation of the said right of the detenu does not take away his right to be considered by the State Government under Section 433 of the Code read with Rule 518 of the Orissa Jail Manual and every application which is contemplated to be forwarded by the Inspector General of Prisons under Rule 518 of the Orissa Jail Manual has to be considered and disposed of by the State Government obviously meaning thereby, by the concerned Minister who under the Rules of Business is exercising the said power and admittedly, as stated in the counter affidavit filed by the Inspector General of Prisons, this application of the petitioner has not yet been considered by the State Government.
12. 1 am also entirely in agreement with the conclusion of my learned brother that the prisoner's case is governed by the unamended provisions of Rule 518 of the Orissa Jail Manual, I would like to refer to the judgment of the Supreme Court in the case of Shri Niwas v. Delhi Administration : AIR1982SC1391 which would be an appropriate guide for the State Government to exercise its power in disposing of the representation which has been forwarded to the State Government by the Inspector General of Prisons. In the said judgment, the Supreme Court itself had directed release of the detenu in all cases where from the counter-affidavit filed by the Delhi Administration, nothing adverse has been indicated. In the present case also in the two counter-affidavits filed on behalf of the State authorities nothing adverse has been indicated with regard to the conduct of the petitioner as a prisoner inside the jail. In fitness of things, I sincerely hope that the State Government while disposing of the pending representation of the petitioner would apply its mind to the aforesaid decision of the Supreme Court.