D.S. Tewatia, J. - (1.) WHETHER the provisions of Section 433 -A added to the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) by Act No. 45 of 1978, suffer from the vice of unconstitutionality either for the reason that the parliament was not competent to enact it or that it trenches upon the provisions of the articles 72 and 161 of the Constitution of India or in its application it leads to such discrimination as is frowned upon by Article 14 of the Constitution of India is the significant question that arises for determination in these two writ petitions (Civil Writs Nos. 2089 and 2167 of 1979).
(2.) MR . Balwant Singh Malik, to heighten the impact of his submissions, which shall be presently noticed, has brought into relevancy the facts of Major Singh's case in Civil Writ No. 2089 of 1979 and, therefore, the facts of this case alone require referring to. Major Singh Petitioner in Civil Writ No. 2089 of 1979 was about 20 years of age at the relevant time. He was sentenced to death by the trial Court which was maintained right up to the Supreme Court. He succeeded in getting the same commuted to life sentence on a mercy petition presented to the President of India under Article 72 of the Constitution of India. He had already completed 10 years' actual jail term as on 23rd June, 1979, which with the remissions came to 16 years and 6 months. That in view of the policy decision of the State Government that such life convicts as were under 20 years of age on the date of the commission of crime, and whose death sentence stood commuted to life sentence, be released after they undergo 10 years actual jail detention (exclusive of all remissions), provided they had maintained good conduct throughout, the District Level Committee recommended to the State Government on 28th December, 1978, the release of Major Singh. The Inspector -General of Prisons, Punjab, is alleged to have favourably reacted to the said recommendation when forwarding the same to the State Government. The State Government, however, declined to pass the release order in view of the provisions of Section 433 -A of the Code which by then had become operative with effect from 18th December, 1978.
(3.) IN the return filed on behalf of the State, all the facts recapitulated above from the petition have been admitted excepting the fact that the Inspector -General of Prisons had forwarded the recommendation for the consideration of the State Government and the further fact pertaining to the undergoing of total jail term inclusive of remissions. Regarding these two facts, it has been stated that the Inspector -General of Prisons, in view of the provisions of Section 433 -A of the Code did not forward the recommendation for the consideration of the State Government for the release of the convict Major Singh, and that the period of remissions came to 6 years, 3 months and 28 days instead of 6 years and 6 months as mentioned in the petition and when the parole period of one month and twelve days is deducted therefrom, the total jail term including the one actually undergone by the convict came to 16 years 2 months and 16 days. It was also further asserted that the State Government had laid down guidelines for submission of the rolls of different kinds of convicts after the expiry of certain periods of jail terms for consideration of the Government. These instructions did not give any right to the convicts for their release on the expiry of any such period of sentence.;