R.R.PRASAD,J. - (1.) R.R.PRASAD,J. Before proceeding with the matter, the order passed in this case on 7.5.2015 needs to be recorded which reads as follows: "The petitioner, Benjamin Minj along with few others were put on trial for committing murder of three persons. The petitioner,Benjamin Minhj and also Sunil Tirkey on being found guilty were awarded death sentence, vide order dated 7.5.1997 in Sessions Trial No.177 of 1995. This Court on appeal being preferred, vide Cr.App.No.103 of 1997(R) commuted death sentence into sentence for imprisonment for life on 6.2.1998. When the petitioner served sentence for 14 years, the then S.P, Gumla, vide its letter no.38 dated 25.1.2010 wrote to the Superintendent, Birsa Munda Central Jail, Hotwar, Ranchi that the petitioners do not have any criminal history and there is no likelihood of repeating crime. At the same time, Probation Officer, Gumla, vide its letter dated 22/24.12.2008 was also reported that though petitioner is aged about 35 years but his physical potentiality has decreased and as such, he is incapable of committing crime. He also made recommendation for its pre-mture release as the petitioner was in custody since 13.9.1994 in connection with the case in which he was found guilty. The matter relating to his pre-mature release was placed before the State Sentence Review Board and the Board, vide its decision dated 24/25.2.2009 rejected the claim for pre-mature release by holding that the petitioner may repeat the crime. In that view of the matter, writ petition filed by the petitioner, vide W.P (Cr.) No.295 of 2008 for his early release was rejected on 28.7.2009. In the year 2010, a prayer for pre-mature release was again rejected. Subsequently, after one year, the claim for pre-mature release was again rejected by the State Sentence Review Board on 20/25/27.5.2011. Those orders were challenge in W.P.(Cr.) No.32 of 2011. The point which was raised on behalf of the petitioner was that since the petitioner was convicted and sentenced in the year 1997, his case should have been considered by the Government in the light of the policy decision of the year 1984 as contained in Law Departments Letter No.550 dated 21.1.1984 and not in the light of the police decision of the State of Jharkhand, vide Notification No.1315 dated 18.4.2007. In this regard it was highlighted that as per 1984 policy decision only condition which was put in for early pre-mature release for a convict was that he should serve sentence for 14 years in actual and 20 years with remission whereas in the policy, subsequently framed by the State of Jharkhand in the year 2007 wherein number of conditions put in which on being fulfilled, one was entitled to be released pre-maturely but the case of the petitioner required to be considered in the light of the policy decision of the year 1984 in view of the decision rendered in a case of State of Haryana and others v. Jagdish [(2010) 4 SCC 216] . However, the stand which was taken on behalf of the State is that matter for pre-mature release could have been placed only on completion of 14 years of custody and by the time the petitioner completed 14 years, the State of Jharkhand after coming into being took the policy decision in the year 2007 and therefore, on completion of 14 years,when the matter was placed before the State Sentence Review Board, the Board after taking into account the relevant reports did not find the case of the petitioner suitable for pre-mature release and hence, rejected the claim. After having regard to the submissions advanced on behalf of the parties and also the observation made by the Hon'ble Supreme Court in a case of State of Haryana and others v. Jagdish (supra), the writ petition was disposed of directing the State Sentencing Review Board to consider the case of the petitioner for its pre-mature release in the light of the policy decision of the year 1984. Against that order, the State preferred an S.L.P (Cr.) No.5695 of 2012 which was dismissed on 29.4.2014. Against that order, a Review application was filed, vide Civil Review No.659 of 2014 which was also dismissed on 20.11.2014. Thereupon this writ application was filed for quashing of the order dated 7.4.2012 passed by the State Sentencing Review Board whereby again the prayer for pre-mature release was rejected on the ground that State Sentencing Review Board in complete disregard to the order passed by this Court has passed an order as prayer for premature release has been refused on the ground that there is every likelihood of repeating the crime by the petitioner and that crime committed by the petitioner was quite heinous which factors were never required to be taken into account as the same were never part of the policy decision of the year 1984. A counter affidavit has been filed wherein it has been stated that keeping in view the policy decision of the year 1984 and after having detailed deliberation, proposal for pre-mature release was again rejected keeping in view the gravity of the offence. Further it was pointed out that now the Hon'ble Supreme Court in a case of Union of India v. Sriharan @ Murugan and others [W.P.(Crl.) No.48 of 2014] has issued notice to all the State Governments. Meanwhile, the State Governments have been restrained from exercising power of remission to life convicts. Mr. R.B.Gupta, learned counsel appearing for the petitioner submits that this order has been passed by the Hon'ble Court subsequent to the dismissal of the Special Leave to Appeal and thereby that order passed in a case of Union of India v. Sriharan @ Murugan and others (supra) would not be applicable so far this petitioner is concerned. From the order passed by the Hon'ble Supreme Court in the case referred to above, it appears that the State Governments have been restrained from exercising power of remission to life convicts and therefore, at this stage, it would not be proper to pass an order for release of the convict, even if it is found that the order passed by the State Sentencing Review Board is not inconsonance with the order passed by this Court. Therefore,it would be desirable that the case be adjourned for three months awaiting final decision of the case pending before the Hon'ble Supreme Court. "
(2.) When the matter was taken up, Mr. Rajendra Prasad Gupta, learned counsel appearing for the petitioner submits that the said case [W.P.(Cr.) No.48 of 2014] has already been decided by the Hon'ble Supreme Court whereby it has been held that accused does have right to be released prematurely in terms of the provision as contained in Sections 432/433 of the Code of Criminal Procedure. At the same time, that power under Sections 432 and 433 are to be exercised by the appropriate Government statutorily meaning thereby that right of a convict is there of being prematurely released in terms of the provision as contained in Sections 432 and 433 of the Code of Criminal Procedure.
(3.) Having perused the judgment referred to above, it be stated that number of questions were framed among which the question no.52.2 was also there which reads as follows: "Whether the 'appropriate Government' is permitted to exercise the power of remission under Sections 432/433 of the Code after the parallel power has been exercised by the President under Article 72 or the Governor under Article 161 or by this Court in its constitutional power under Article 32 as in this case.";