S. C. Jain, J. - (1.) THE facts giving rise to this writ petition are that the petitioner alongwith 188 other prisoners undergoing sentence of imprisonment under Section 302 I.P.C. made a representation to the State Government for release on licence under the provisions of U.P. Prisoner's Release on Probation Act, 1938. While their representation was pending for disposal before the State Government they moved the Hon'ble Supreme Court by filing writ petitions seeking release on a writ of mandate issuing direction to the State Government of Uttar Pradesh and the concerned officers to consider and dispose of their application within a period of four months. Hon'ble Supreme Court while disposing of the writ petitions ordered that if. for any reason, the applications are not disposed of within the period of four months the petitioners shall then be released on their furnishing bail to the satisfaction of the concerned District and Sessions Judge and the District and Sessions Judge shall satisfy himself that the applications of the petitioners was not disposed of within the aforesaid period before the grant of bail. As the State Government could not dispose of the application so moved by the petitioners within the said period of four months they were ordered to be released on bail. As per orders of Hon'ble Supreme Court, in the event of applications being ultimately rejected by the State Government it was left open to the State Government to move the concerned District and Sessions Judge for cancellation of bail and liberty was granted to the petitioners to move the concerned High Court, if so advised against that order of cancellation.
(2.) IN this case the State Government has now disposed of the application moved by the petitioner vide order dated 31.7.1984 but the order for cancellation of bail is still to be passed. The matter is still pending before the concerned District and Sessions Judge. It is this order of rejection of application moved by the petitioner which has been challenged in this writ petition after a lapse of about 10 years and they are enjoying the benefit of bail till now. The learned counsel for the petitioner argued that the State Government while rejecting the representation of the applicant did not give any cogent reason. According to the learned counsel, the bail cancellation application has been moved by the State after a long gap of eight years and during this period the petitioner remained on bail without any complaint. His main submission is that the petitioner was released by licence in view of the provisions of Section 2 of U.P. Prisoners' Release on Probation Act, 1938 and, therefore, under Section 4 of this Act the period of release has to be reckoned as imprisonment for computing period of sentence served. If this period is to be taken into account the petitioner has served more than 14 years as period of sentence. He also drew our attention towards Rule 4 of the U.P. Prisoners' Release on Probation Act, 1938 which provides eligibility for release. According to this rule 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. In these circumstances, the learned counsel submitted that the petitioner was convicted prior to 1978 when Section 433A of the Code of Criminal Procedure was inserted in the Code and according to him this Section 433A is prospective in operation. According to him the mandatory minimum of 14 years actual imprisonment under Section 433A will not operate against the petitioner.
(3.) WE have given our considered thought on the submissions made by the learned counsel for the petitioner as well as by the learned Standing Counsel. The main question which requires consideration in this case is whether the release of the petitioner on bail in view of the orders passed by Hon'ble Supreme Court on 2.1.1984 can be termed as release by licence as provided under Section 2 of the U.P. Prisoners' Release on Probation Act, 1938 and if it is a release by licence as provided under Section 2 of the said Act, whether the provisions of Section 4 of the said Act will be applicable?;