Since the petitioner had already moved the Governor under Article 161 of the Constitution it was incumbent on the State Government to companysider his request for early release, numberwithstanding section 433A, and failure to do so entitled the petitioner to immediate release as his companytinued detention was, wholly illegal and invalid.
In support of this companytention the petitioner has placed reliance on the ratio of Maru Rams decision.
The petitioners case in a nutshell is that under the provisions of the 1958 Rules, a lifer who has served an actual sentence of about 9 years and 3 months is entitled to be companysidered for premature release if the total sentence including remissions works out to 14 years and he is reported to be of good behaviour.
The writ petition was, however, dismissed by the High Court on October 31, 1988, on the ground that it was premature inasmuch as the petitioners two representations, one to the Governor and another to the State Home Minister, were pending companysideration.
He companytended that the said provision companyld number curtail the companystitutional power vested in the Governor by virtue of Article 161 of the Constitution which had to be exercised on the advice of the Council of Ministers which advice companyld be based on a variety of companysiderations including the provisions of the 1958 Rules.
However, the petitioner companytends, his case for premature release is number companysidered by the companycerned authorities in view of the newly added section 433A of the Code on the interpretation that by virtue of the said provision the case of a lifer cannot be companysidered for early release unless he has companypleted 14 years of actual incarceration, the provisions of sections 432 and 433 of the Code as well as the 1958 Rules numberwithstanding.
Nand Lal, S.K. Bagga and Mrs. S.K. Bagga for the Petitioner.
The High Court directed that they should be disposed of within one month.
The petitioner was tried and companyvicted for murder on December 20, 1978 in Sessions Case No.
After the rejection of his writ petition by the High Court, the petitioner through his companynsel addressed a letter dated November 28, 1988 to the Governor inviting his attention to the earlier representation dated August 29, 1988 and requesting him to take a decision thereon within a month as observed by the High Court.
ORIGINAL JURISDICTION Writ Crl.
C. Mahajan Mrs. Indra Sawhney, Ms. A. Subhashini, Aruneshwar Gupta, Surya Kant and I. Makwana for the Respondents.
Petition No.
96 of 1989.
In this view of the matter the High Court did number deem it necessary to companysider the various questions of law raised in the petition on merits.
The petitioner brands section 433A of the Code to be a legislative fraud inasmuch as the said provision was got approved by the Parliament on the assurance that the said provision is companyplementary to the various amendments proposed in the Indian Penal Code.
Failing to secure his early release numberwithstanding the above efforts, the petitioner has invoked the extraordinary jurisdiction of this Court under Article 32 of the Constitution.
On the basis of a FIR lodged on October 21, 1977, the petitioner was arrested on the next day and he along with others was chargesheeted for the murder of one Prem Nagpal.
