M.WAHAJUDDIN, J. - (1.) THE present Criminal Habeas Corpus petition has been preferred by Peoples' Union of Civil Liberties Allahabad Branch as well as by Sri Rakesh Dwivedi. Advocate, High Court. The prayer made in the application is that this Court be pleased to pass ad interim mandamus directing the respondents to decide the representation made in October 1981 and received on 21 -10 -8! and/or pass such other orders as it deems fit. The application purports to have been preferred on behalf of the following 24 persons as laid below who were convicted in Sessions Trial No. 202 of 1969, State of Uttar Pradesh v. Ghanshyam Shukla under Section 302, I.P.C. for committing murder and were sentenced to life imprisonment: (1) Dwarika (2) Ghanshyam Shukla. (3) Ram Narain. (4) Moharram, (5) Ram Nath, (6) Suray Mani. (7) Gajral. (8) Sunian, (9) Bansraj, (10) Jagdamba, (11) Shankar. (12) Chandrika. (13) Subhag, (14) Lalji. (15) Basant. (16) Sahadat. (17) Tanse, (18) Gopal. (19) Shiv Piara. (20) Ram Briksha. (21) Gena, (22) Damodar, (23) Sukhari. (24) Tessur. Shyawi Narain Tiwari and two others were awarded death sentence which was later by superior court in appeal finally commuted to life imprisonment. It was maintained that the powers vested and conferred tinder Articles 161 and 92 of the Constitution and Sections 432 and 433 Cr. P.C. are not to be exercised arbitrarily. Stress was laid upon the principles and guidelines laid down in the case of Maru Ram v. Union of India : 1980CriLJ1440 . It is maintained that the persons on whose behalf the petition has been preferred are not ordinary criminals but are communist revolutionaries who believed in the ideology of nationalised movements. It is further urged that Marxists Naxalites no more pursue the policy of individual annihilation and there has been a change in their ideologies. It was further urged that most of them have already served a long term of sentence and as regards their general conduct, etc. they have earned remission and their conduct has been satisfactory and in the circumstances their cases called for examination by the State Government and for prematur release. It is. also submitted that Section 433 Cr. P.C. as held in the case of Maru Ram (supra) is only prospective and not retrospective and conviction of the persons involved took place much before Section 433, Cr. P.C. was introduced. There is no legal bar to their premature release even before serving 14 years' period in jail. The stand is that the guidelines for premature release of convicts are contained in the U.P. Prisoners' Release on Probation Act of 1933 and the Jail Manual and in view of such provisions their cases for premature release can be considered even after serving 6 or 7 years in jail and there is no bar to considering their easts for release.
(2.) SECTION 8, U.P. Prisoners Releason probation Act. runs as follows: Section 8. The State Government may remit the whole or a part of the sentence of a person sentenced to imprisonment for an offence under any Act. on such person entering into a bond. with one or more sureties, in such amount and for such period as the State Government may direct, to be of good behaviour and to observe such conditions as to residence or otherwise as the State Government may impose. Section 8 provides for a remission of the whole or a part of the sentence by the State Government and also provides that bonds may be taken Sub -section (3) deals with the consequences of the failure to observe the conations of the bond. While Sub -section (3) no doubt deals with the cases where release is on remission of sentence, as a principle it would indicate that when there is a temporary release on a short term parole and there is overstay as a logical consequence that factor may also weigh adversely against the prisoner concerned although we agree with the submission that any single factor cannot necessarily be decisive factor and a number of facts and circumstances are to be taken into consideration in the matter of premature release.
(3.) RULE 4 and Rule 15 of the Rules framed under the U.P. Prisoners Release on Probation' Act, have again 'been referred to and we may lay down those rules: Rule 4: Eligibility for release. 'Save 'the prisoners specified in Rule 3, any ?other prisoner who has served one third of his sentence of imprisonment or a total period of five years with remissions, whichever is less, may be released by the State Government on a licence.' Rule 15. Remission of Sentence ' (1) An application for remission of sentence under Section 8 of the Act shall be made by the prisoner or by the person offering himself as his surety to the District Magistrate of the district in which he was convicted or where he was convicted in more than one district then to the District Magistrate of any such district. (2) The District Magistrate shall, on a consideration of the antecedents of the prisoner, his conduct in jail and his environments and after consulting the Probation Officer where one is appointed, and such other authorities as he may think proper, within one month of the receipt of the application forward it to the State Government stating his opinion whether the prisoner is likely to abstain from crime and lead a peaceful life if released from prison. (3) The State Government may on receipt of such application, release the prisoner on his entering into a bond with one or more sureties for such amount and for such period as the State Government may direct to be of good behaviour and to observe such conditions as the State Government may impose. (4) If any prisoner released under Sub -section (1) of Section 8 of the Act fails to observe the conditions of the bond, the District Magistrate or the Sub -Divisional Magistrate, if authorised by the District Magistrate may take proceedings under Section 514, Cr. P.C. 1898 and report to the State Government for the cancellation of the order remitting the sentence passed under Sub -section (IV of Section 8 of the Act, and the State Government may pass such orders in accordance with Sub -section (3) of 8 as it may deem fit 4A. Chapter VI of the Jail Manual contains various paras concerning release of prisoners. We may refer to para 92 providing for check dates. The provisions cover convicts who have been sentenced to transportation for life or for a term of more than fourteen years or to rigorous imprisonment for a term exceeding in the aggregate fourteen years. Para 198 (a) of the U.P. Jail Manual contained in Chap. VIII provides for submission of nomination rolls of convicts under fourteen year rule through the Superintendent of Police and the District Magistrate of the District of conviction for the consideration and the orders of the State Government. As it is an important provision we may again quote the same. 198. (a) The superintendent shall submit through the Superintendent of Police and the District Magistrate of the district of conviction for the consideration and the orders of the State Government under Section 401 Cr. P.C. 1898, the nominal roll in duplicate of every life -convict and of every convict sentenced to more than fourteen years' imprisonment or transportation or to transportation and imprisonment for terms exceeding fourteen years in the aggregate, as soon as the term of imprisonment undergone by the convict together with any remissions earned by him under the rules amounts to fourteen years. Before forwarding the roll to the Government, the district magistrate shall, after consulting through the superintendent of police the district magistrate of the district of residence if such district of residence is other than the district of conviction, record on the roll (1) his opinion whether there is any objection to the immediate release of the convict: (2) if there is any objection to the immediate release of the convict, his suggestion as to the total period of imprisonment inclusive of remission which the convict should serve; and (3) a brief account of the circumstances of the crime or crimes for which the convict was convicted. In the case of convicts convicted in other States the provisions of para 206 shall also be observed, (b) The case of a convict repatriated from the Andamans shall be submitted to the State Government under this para when two thirds of the actual period spent by him in the Andamans including remissions together with the period spent in Indian Jails including remissions, before deportation to and after repatriation from the Andamans, amounts to fourteen years. The special remission of one -third of sentence granted to repatriated convicts shall not be taken into account in calculating such period of fourteen years'. (c) If the State. Government in any case direct that such convict shall be released after he has served a specified period of sentence or that his case should be resubmitted for consideration after a specified period, then the period should be counted from the date of commencement of the convict's sentence and the entire period served in the Andamans, shall be counted and in calculating the remissions earned by him the one -third remission earned by him in the Andamans should also be taken into account. ;