DAVE, J. - (1.) THIS Habeas Corpus Writ Petition has been filed by the petitioner Masoom Bai, who is mother of accused Salim, who was arrested in a case for the offence under Section 302 IPC on 3. 11. 76. He was tried by the learned District Judge, Jhalawar, who by his judgment dated 28. 05. 1977 convicted him for offence under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs. 1000/ -. Salim had one more case against him being case No. 32/78, wherein he was convicted and sentenced under Section 326 and 147 IPC but the sentence in the later case was only one year nine months and a fine of Rs. 100/ -. Thus, Salim was in jail eversince 1976. According to the petitioner he was entitled to the benefit of the Rajasthan Prisoners (Shortening of Sentence) Rules 1958, (hereinafter referred to as the 'rules 1958' ). Sub-rule (iii) of Rule 8 of the Rules, 1958 reads as under: " 8 (iii) Prisoners eligibility for consideration by the Advisory Board: A Prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the aggregate 14 years and has served two thirds of his sentence including remission. A sentence for trasportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentences in default of payment of fine. If the same has not been paid. " Since Salim had served out two third of the sentence his case therefore, was likely to be considered by the Advisory Board and it was not so considered, therefore, he preferred a writ petition before this Court vide D. B. Civil Writ Petition No. 1243/87, Salim vs. State of Rajasthan. In the aforesaid writ petition, this Court vide order dated 4. 10. 88 directed that Advisory Board be convened within two months and in that meeting the matter of Salim be considered. The case of the petitioner is that even though this direction was given in October 1988, that the Advisory Board should be convened within two months, yet the order of this Hon'ble Court had not been complied with till July, 1989. The submission of the petitioner is that the Advisory Board thereafter recommended Salim's case for pre-mature release in its meeting dated 21. 7. 89, but the recommendation was not accepted and order for release were not passed. The submission of the petitioner is that the Advisory Board had thereafter considered the case of Salim on 19. 10. 89,9. 1. 90 and 21. 6. 90 and subsequently also recommended the case for pre-mature release. It is further submitted that in the meeting dated 23. 01. 1990, the Advisory Board advised the pre-mature release of Salim. However, the State Government declined the recommendations of the advisory Board dated 23. 01. 1990. It is submitted that the State Govt. has neither assigned the reason for taking a view different then the view taken by the Advisory Board nor opportunity of hearing has been given Salim before declining the recommandations. The petitioner's case is that Salim's case does not fall within the scope of Section 433 A Cr. P. C. which came into force in 1978 and therefore, he had a right to be considered under the rules then existing. Even otherwise, it is submitted that Salim is now in jail for nearly 15 years. Assuming for a moment that Section 433- A Cr. P. C. would be applicable even then now he has undergone 14 years in side the jail. It is submitted that the Advisory Board is a high powered committee which consists of Home Secretary to the Government as the Chairman, a Judicial Officer next to the District and Sessions Judge in whose jurisdiction the Central Jail is situated, and two non-official persons preferably local members of the State Legislature or Parliament, nominated by the Government and the Superintendent of Central Jail concerned as Secretary and it was obligatory to the State Government to have accepted the recommendations made by it. The State Government in its reply admitted that the accused Salim is in Jail since 3. 11. 76 and by 18. 12. 1990, he has served 13 years, I month and 26 days period of his imprisonment. He also remained in jail for six months 25 days as under trial prisoner and after remission it comes to 18 years, 7 months and 4 days. The period of special remission given by the State Government has not however been counted for pre-mature release. It is submitted that earlier on 24. 11. 88 this Court had directed the State Government to convene the meeting of the Advisory Board and according to the learned counsel of the petitioner, the case of Salim was not considered because the orders could not be conveyed in time and were conveyed on 8. 12. 88. Thereafter, the record was called from the District Jail, Jhalawar and there being strike of the employees on 19. 01. 1989, the meeting could only be convened on 21. 07. 1989 wherein the case of the petitioner was placed for consideration and it is submitted that the Advisory Board looking to the seriousness and gravity of the offence after calling a report from the S. P. Jhalawar rejected his prayer for pre-mature release. The case of Salim was also placed before Board on 19. 12. 89. THIS time, also the S. P. and the District Magistrate concerned gave adverse report. However, the Advisory Board by majority view recommended the case of Salim for early release but the State Government did not agree with the recommendations of the Advisory Board and rejected the same. On 9. 01. 1990, though there was a meeting of the Advisory Board but the case of Salim was not considered by the Advisory Board on the simple ground that his case has already been recommended by the Advisory Board prior to that and final orders have not been passed by the State Government and it was again placed before the Advisory Board on 21. 6. 90. The case of Salim was reconsidered by the Advisory Board on 21. 6. 90 and again the Advisory Board recommended his case for premature release but the State Government did not agree and vide order dated 27. 1. 90 said that there was non-compliance of Rule 7 and 11 of the Rules, hence his case was sent back to the Suptd. Central Jail, Jaipur for sending it back with recommendations to the Advisory Board. It is submitted that Salim's case was again considered on 11. 12. 90 but no decision was taken in this case. It is submitted that the case of Salim will not be considered in the next meeting of the Advisory Board.
(2.) WE called for the original record where the case of Salim has been dealtwith by the Advisory Board from time to time as well as by the State Government. WE have also heard the learned counsel for the parties and perused the aforesaid record. The Rajasthan Prisons (Shortening of Sentences) Rules, 1988 have been framed in exercise of powers by clause (5) of section 59 of the Prisons Act 1894. A high powered Advisory Board is required to be constituted as per Rule 3 for every Central Jail or District Jail to investigate and recommend to the Government on sentences of certain classes of prisoners with a view to release a member of such reformed prisoners who have served sufficiently deterrent period of the punishment. The Advisory Board which is meant for the Central Jail, Jaipur consists of Home Secretary to the Government of Rajasthan as a Chairman, next senior most Judicial Officer to the District and Sessions Judge within whose jurisdiction the Central Jail is situated, and two non-official persons preferably local members of the State Legislature or Parliament nominated by the Government and the Superintendent of Central Jail, Jaipur. According to sub-rule (iii) of Rule 8 of the Rules, a prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the. aggregate 14 years, and have served two third of his sentence including remission is entitled to be considered by the aforesaid Advisory Board. A sentence for. transportation for life will be construed to be one of imprisonment for 20 years for this purpose and the period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid. It may be mentioned here that the Advisory Board is required to meet at least twice in a year in the Central Jail and normally the meetings should be in the months of January and July every year. The Board, so constituted is required to scrutinise the record as mentioned in rule 7. Certain classes of prisoners have been excluded from consideration which have been mentioned in Rule 9 but we are not concerned with them in this case as it is neither the case of the State nor the case of Salim that his case comes within the aforesaid class. After following the prescribed procedure the Advisory Board submits its recommendations with full history of each case in a prescribed form given in appendix to the Rules to the Govt. while recommending, the Advisory Board is also competent to make a recommendation regarding imposing certain stringent conditions on the prisoner and the same are required to be entered into a bond in the Form-2, which is given in the Apendix to the Rules. After the recommendations reach the Government they are required to be considered according to the provisions of Rule 12 and other relevant papers, the Government shall order release of prisoner in cases for which having regard to all the circumstances of the case, it considers that the prisoner may be released without any danger to the society. A careful consideration of the aforesaid rules show that the Advisory Board, which is a high powered Board is constituted to carefully scrutinize the case of each of the prisoner whose sentences require shortening under the rules and thereafter a like choice has been given to the Government that it can reject the recommendations in case the accused is a danger to the society. From a reading of Rule 12 it is reveal that the Government shall order release of prisoner and the only rider is having regard to the circumstances of the case it considers that the prisoner may be released without any danger to the society. In this case there is nothing on the record to show that the accused would be a danger to the society and therefore, the recommendations of the Advisory Board can not be rejected. If any other interpretation is taken it will make the findings of the Advisory Board a formal consideration. It is borne out from the record that twice the Advisory Board has recommended the case of Salim for pre-mature release. We find from the record that in the meeting which took place on 19-10-1989, cases of 40 persons were placed for consideration. The case of Salim was considered in details and his case was recommended for pre-mature release. When the matter was considered by the Special Secretary to the Government he discussed the matter with the Chief Secretary as is borne out from the record and it was also considered that Sec. 433 A Cr. P. C. is not applicable as he had been convicted prior to 1978 when the law was amended. A copy of the amendment was also placed on record and the matter was sent for consideration before Hon'ble the Chief Minister and his Excellency Governor of Rajasthan. The record shows that the then Chief Minister Shri Harideo Joshi also recommended the release of Salim on 11. 12. 89. However, the government's recommendation was rejected by the Governor on 17. 1. 90 by writing only one line: Rhuksa cafn;ksa dks le; iwoz fjgk djus dk dksbz dkj. k ugha gsa** Thus, it is clear from the perusal of the record that Salim's case was given due consideration by the Advisory Board, who in accordance with law recommended the same for consideration of the Government. The Government according to rules of business placed the matter before the various authorities including the then Chief Minister and as mentioned above, after considering the various provisions of law including S. 433-A Cr. P. C. the then Chief Minister of Rajasthan, Shri Harideo Joshi gave his approval for the release of Salim. It is thereafter that the matter remained pending with the Governor for more than a month and then the recommendations of the Govt. were turned down by his Excellency the Governor, as aforesaid mentioned, in one line. The order passed by his Excellency the Governor is neither a speaking order nor it discloses that the material was placed before him and he had occasion to peruse. It may be mentioned here that the law contemplates the consideration of the case of pre-mature release by the Board and the State Government has been given a limited power to refuse the recommendation of the Board, since the order is required to be in consonance with Rule 12 of the Rules and for that it has to be shown that the release of such a prisoner should be a danger to the society. Therefore, before a finding is arrived at that the prisoner is a danger to the society and therefore, he may not be released but there must be material on record which can be collected by the Government i. e. by the Home Department even post recommendation of the Advisory Board, though practically speaking since Home Secretary is one of the members of the board it is normally presumed that the material was available with the Home Department including the report of the District Superintendent of Police and the District Magistrate of the District concerned. Therefore, the only rider which the Legislature has put in for not releasing the prisoner even after the recommendations of the Board is that he should be a danger to the society. Under the rules of business and in pursuance of the provisions of Chapter II of the Constitution of India the Governor is to act at the advice of the State Government. In the instant case the State Government has advised the Governor to direct pre-mature release of Salim. Papers had been submitted before the Governor with the recommendation of the Chief Minister and the Governor was bound to act on his advice. If he had any other material directly received by him to come to a different conclusion he could have mentioned the reasons and placed that material on record and that matter could have been sent for reconsideration to the Government but he had no jurisdiction express or implied to reject the recommendation in that manner it has been done. Neither the Act nor the Rules applicable in the instant case nor the rules of business of the Govt. empower the Governor to pass an order which has been made in the instant case. Hence, Salim was entitled to be released in accordance with the provisions of law when the State Government had concurred with the recommendation of the Advisory Board and there was no material on record and which is not available on record which could have been placed before the Governor. We have no hesitation in coming to the conclusion that the order of rejection, dated January 17, 1990 was not in accordance with law. Firstly the Governor did not record his satisfaction muchless under Rules 12 of the Rules of 1958. The nothing shows neither an objective approach nor a subjective satisfaction while rejecting the recommendation of the State Government and the Board for a pre-mature release, there is nothing to show proper application of mind rather the order is contrary to the Constitutional mandate as well as Rules of 1958. For the discussions made above, we are of the opinion that the accused Salim is required to be released forthwith. The writ petition is accordingly allowed and it is directed that Salim S/o Yasin shall be released forthwith if not required in any other case. . ;