DWARKA PRASAD, J. - (1.)AS all these petitions raise identical questions they are disposed of by a common order.
(2.)THE petitioners have filed habeas corpus petitions stating that they were convicted for offences under Section 302 IPC and were sentenced to imprisonment for life and that each one of them have undergone imprisonment for a period of more than 14 years. As such it has been prayed that the respondents may be directed to release the petitioners forthwith and set them at liberty.
Notices of these petitions were given to the Superintendent, Central Jail, Jaipur, who had produced before us a statement of the sentences undergone by each one of the petitioners as on December 3, 1984. We have perused the statement produced by the Superintendent, Central Jail, Jaipur and the reply filed on his behalf. We have to consider from the record produced before us as to whether the petitioners have served 2/3 of the sentence including jail remissions earned by them. The decision in these matters shall be governed by the provisions of clause (iii) para 139 of the Rules made under Section 59 (27) and (28) of the Prisons Act, relating to admission, custody, employment, dieting, treatment and release of prisoners. The relevant portion of para 139 reads as under :- "para 139, Prisoners eligibility for consideration by the Advisory Board:-The Advisory Board shall be entitled to consider cases of the following types of prisoners only:- (i) A prisoner other than habitual Criminal undergoing a substantive sentence of three years or over who has completed two years imprisonment or half of his sentence whichever is greater, including remission. (ii) A prisoner being a habitual criminal who has served 2-1/2 years of his substantive sentence, including the period of remission or has served two-third of his sentence including the period of remission whichever is greater. (iii) A prisoner sentenced to more than 14 years imprisonment or transportation for life or to transportation and imprisonment for terms exceeding in the aggregate 14 years and has to serve two-third of his sentence including remission. A sentence for transportation for life will be construed to be one of imprisonment for 20 years for this purpose in each case. The period of imprisonment shall include sentences in default of payment of fine, if the same has not been paid. The remission actually earned by a person shall be taken into account by the Advisory Board, not a special remission granted in celebration of public function, for example, Independence Day, Republic Day, etc. (iv) Prisoners awarded long term sentences by Court Martial and have served two-third of their sentences including the period of remission. (v) Prisoners suffering from infectious disease, such as Leprosy, Tuberculosis, provided their disease is likely to be dangerous to other prisoners and conditions prescribed in Para 38 are fulfilled. (vi) Prisoners who have attained the age over 65 years in case of male prisoners an over 55 years in case of women prisoners in whose case no public interest is likely to be served by keeping them in prison provided they are serving sentences for their first and only conviction. Thus according to clause (iii) of the aforesaid provisions, a sentence of imprisonment for life, which is equivalent to transportation for life, shall be construed as one of imprisonment for 20 years for this purpose and a prisoner sentenced to imprisonment for life has to serve 2/3 of his sentence, including remissions actually earned by him. After the prisoner has undergone 2/3 of the sentence for imprisonment for life construed as one for 20 years, he shall be entitled to get his case considered by the Advisory Board constituted for the purpose. It has been made clear in the aforesaid provisions that special remissions granted in celebration of public functions would not be counted for the purpose of referring the case of the prisoner to the Advisory Board, but the remission actually earned by a person shall only be taken into account by the Advisory Board. Para 142 provides that the Advisory Board shall submit its recommendations with the history of each case to the State Government. The Advisory Board, while making its recommendations on the basis of the material placed before it, may advise the State Government that the prisoner may be prematurely released conditionally or unconditionally or that his premature release be refused or the consideration of the case of the prisoner may be postponed for a definite period to be specified in the recommendations. Thereafter, on receipt of the proceedings of the Advisory Board and other relevant papers under the provisions of Para 150, the State Government shall order release of the prisoner in whose case, having regard to all the circumstances, it considers that the prisoner may be released without any danger to the society.

Learned Public Prosecutor submitted in the first instance that the period for which the prisoner was released on parole should not be counted for calculating the 2/3 period of sentence under clause (iii) of Para 139. The aforesaid provision clearly lays down that such a prisoner who has been sentenced to imprisonment for life has to serve two-third of the period of 20 years including remissions actually earned. Thus the period spent on parole cannot be counted for the purposes of calculating the 2/3 period of sentence. It was then submitted by the learned Public Prosecutor that the period of custody of the prisoner during investigation, enquiry or trial should not also be set off in the case of a person sentenced to imprisonment for life. His contention is that Section 428 of the Criminal Procedure Code is not applicable to the case of a person sentenced to imprisonment for life. Section 428 of the Criminal Procedure Code reads as under: - "428. Period of detention undergone by the accused to be set off against the sentence of imprisonment: - Where an accused person has, on conviction, been sentenced to imprisonment for a term, (not being imprisonment in default of payment of fine), the period of detention, if any, undergone by him during the investigation, inquiry or trial of the same case and before the date of such conviction, shall be set off against the term of imprisonment imposed on him on such conviction shall be restricted to the remainder, if any, of the term of imprisonment imposed on him "

Learned Public Prosecutor appears to be right in submitting that the provisions of Section 428 Cr. P. C. would not be applicable to an accused person who has been sentenced to imprisonment for life because the section speaks of "imprisonment for a term", while imprisonment for life does not relate to any specified term of imprisonment but it relates to the rest of the life of the convicted person. Thus in our view the provisions of Section 428 of the Criminal Procedure Code are not attracted to the case of a person sentenced to imprisonment for life and so benefit of the period which the concerned person remained under custody during investigation, enquiry or trial cannot be given to such a person.

In Gopal Vinayak Godse vs. The State of Maharashtra (l), it was held by their Lordships of Supreme Court that the sentence of transportation for life or its present equivalent, the life imprisonment, is one of indefinite duration, the remissions earned do not in practice help such a convict as it is not possible to predicate the time of his death. It is because of this reason that the rules provide for a procedure to enable to the appropriate Government to remit the sentence under Section 401 of the Code of Criminal Procedure, on a consideration of the relevant factors, including the period of remissions earned by the prisoner. The question of allowing remissions is exclusively within the province of the appropriate Government; and although the rules made by the Government make provisions for remissions, the entire sentence is not remitted.

(3.)THE same view was later expressed by their Lordships of the Supreme Court in State of Madhya Pradesh vs. Ratan Singh (2), wherein it was observed that a sentence for life would enure till the life time of the accused, as it is not possible to fix a particular time of the prisoners death; so any remissions allowed under the rules could not be regarded as a substitute for a sentence in the case of imprisonment for life. THE Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer, but they merely amount to administrative instructions with regard to the various remissions to be given to the prisoner from time to time.
The decision in Gopal Vinayak Godse's case (supra) was again followed by their lordships of Supreme Court in Maru Ram vs. Union of India (3), and it was observed as under: - "a sentence of imprisonment for life was nothing less and nothing else than an imprisonment which lasted till the last breath. Since death was uncertain, deduction by way of remission did not yield any tangible date for release and so the prayer of Godse was refused The nature of a life sentence is incarceration until death, judicial sentence of imprisonment for life cannot be in jeopardy merely because of ling accumulation of remissions. Release would follow only upon an order under Section 401 of the Criminal Procedure Code, 1898 (corresponding to Section 432 of the 1973 Code) by the appropriate Government or on a clemency order in exercise of power under Arts. 72 or 161 of the Constitution. Godse (supra) is authority for the proposition that a sentence of imprisonment for life is one of imprisonment for the whole of the remaining period of the convicted person's natural life. "

We may also refer to the provisions of Section 433-A of the Code of Criminal Procedure, which was introduced by the Criminal Procedure Code (Amendment) Act, 1978, wherein it has been provided that in case a sentence of imprisonment for life is imposed, the convicted person shall not be released from prison unless he had served at least fourteen years of imprisonment. In Maru Ram's case (supra), their Lordships of the Supreme Court held that the provisions of Section 433-A are prospective in nature and would not be applicable to persons who were convicted by the Sentencing Court before December 18, 1978, when the Amendment Act of 1978 came into force. Thus, persons who were convicted and sentenced to imprisonment for life before December 18, 1978, are entitled to the benefit accruing to them from the remission scheme, as Section 433-A did not stand in their way. The cases before us are of those persons who were convicted before 18th December 1978 and as such Section 433-A shall not stand in their way in getting benefit of the provisions of Para 139 of the Rules, which we have quoted above.