ASHOK KUMAR ALIAS GOLU Vs. UNION OF INDIA

JUDGEMENT

(1.) Liberty is the life line of every human being. Life without liberty is liasting'but not 'living'. Liberty is, therefore, considered one of the most precious and cherished possessions of a human being. Any attempt to take liberties with the liberty of a human being is visited with resistance. Since no human being can tolerate fetters on his personal liberty it is not surprising that the petitioner Ashok Kumar alias Golu continues to struggle for his liberty, premature release not fully content with the enunciation of the ' law in this behalf by this Court in Maru Ram v. Union of India, (1981) 1 SCR 1196.

(2.) The questions of law which are raised in this petition brought under Art. 32 of the Constitution arise upon facts of which we give an abridged statement. On the basis of a FIR lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was charge-sheeted for the murder of one Prem Nagpal. The petitioner. was tried and convicted for murder on Decenibei 20, 1978 in Sessions Case No. 32 of 1978 by the learned Sessions Judge, Ganganagar, and was ordered to suffer imprisonmerit for life. His appeal, Criminal Appeal No. 40 of 1979, was dismissed by the High Court of Rajasthan. Since then he is serving time. It appears that he filed a Habeas Corpus Writ Petition No. 2963 of 1987 in the High Court of Rajasthan at Jodhpur for premature release on the plea that he was entitled to be considered for such release under the relevant rules of Rajasthan Prisons (Shortening Of Sentences) Rules, 1958, (hereinafter alluded to as 'the 1958 Rules') notwithstanding the insertion -of Section 433A in the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') with effect from December 18 ' 1978, just two days before his conviction. His grievance was that he was being denied the benefit of early release under the 1958 Rules under the garb of the newly added Section 433A, on the ground that it places a statutory embargo against the release of such a convict 'unless he has 'served at least 14 years of imprisonment'. He contended that the said provision could not curtail the constitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice could be based on a variety of considerations including the provisions of the 1958 Rules. The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioner's two representations, one to the Governor and another to the State Home Minister, were pending consideration. The High Court directed that they should be disposed of within one month. In this view of the matter the High Court did not deem it necessary to consider the various questions of law raised in the petition on merits. After the rejection of his writ petition by the High Court, the petitioner through his counsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court. Failing to secure his early release notwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution.

(3.) The petitioner's case (supra) in a nutshell is that under the provisions of the 1958 Rules, a 'lifer' who has served an actual sentence of about 9 years and 3 months is entitled to be considered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour. However, the petitioner contends, his case for premature release is not considered by the concerned authorities in view of the newly added S. 433A of the Code on the interpretation that by virtue of the said provision the case of a 'lifer' cannot be consi 'dered for early release unless he has completed 14 years of actual incarceration, the provisions of Ss. 432 and 433 of the Code as well as the 1958 Rules notwithstanding. According to him, even if the provisions of Ss. 432 and 433 of the Code do not come into play unless a convict sentenced to life imprisonment has completed actual incarceration for 14 years as required by S. 433A, the authorities have failed to realise that S. 433A cannot override the constitutional power conferred by Arts. 72 and 161 of the Constitution on the President and the Governor, respectively, and the State Government i.e., the Council of Ministers could advise the Governor to exercise power under Article 161 treating the 1958 Rules as guidelines. Since the petitioner had already moved the G0vernor under Art. 161 of the Constitution it was incumbent on the State Government to consider his request for early release, notwithstanding S. 433A, and failure to do so entitled the petitioner to immediate release as his continued detention was wholly illegal and invalid. In support of this contention the petitioner has placed reliance on the ratio of Maru Ram's decision (supra).