JUDGMENT

TULZAPURKAR, J. :— This writ petition raises, the question whether persons sentenced to imprisonment for life are entitled to set-off their undertrial period of detention against their sentence under Sec. 428 of the Criminal Procedure Code ?

2. The facts giving rise to the aforesaid question may be stated. The three petitioners (Kartar Singh, Mukhtiar Singh and Baljit Singh) on conviction under Sec. 302, Indian Penal Code were sentenced to imprisonment for life, the first two on 20th February, 1973 and the last on 17th September, 1975 and each one of them is at present undergoing his sentence in one or the other jails at Hissar in the State of Haryana. The petitioners have pointed out that in Maru Ram. v. Union. of India, (1981) 1 SCR 1196 this Court while upholding the constitutional validity of See; 433-A of Criminal Procedure Code, has held the section-to be prospective in effect, that is to say, the mandatory minimum of 14 years actual imprisonment specified therein will not operate against those whose, cases were decided by the trial court before 18th December, 1978 when the section came into force and, that all lifers whose conviction by the court of the first instance was entered prior to that date would be entitled to consideration by Government for premature release on the strength of the remissions earned under the relevant rules and according to them under Para 516-B of the Punjab/Haryana Jail Manual life convicts below the age of 20 at the date of their conviction are entitled to be considered for premature release on their completing 6 years of substantive imprisonment and 10 years of imprisonment including remissions while life convicts above the age of 20 at the date of their convictions are entitled to be considered for premature release on their completing 81/2 years of substantive imprisonment and 14 years of imprisonment including remissions. The petitioners say that their case falls in the second category and according to them they are entitled to be considered for premature release if to their total period of imprisonment inclusive of remissions, is added the period of their under-trial detention (which in the case of the first two petitioners is 612 days and in the case of the third petitioner is 2 years 1 month and 14 days) as on such reckoning the total detention exceeds 14 years and their, continued detention is illegal, but the Respondent State has issued an Order No. 1953/59/G1/G.3/T-19(11) dated 2nd February 1981 to all Jail Superintendents in the State whereunder instructions have been issued that for the purpose of considering cases of premature release while calculating 81/2 years substantive sentence and 14 years imprisonment including remissions the benefit of under-trial period is not to be given to life convicts who have been. convicted before 18th December, 1978. The petitioners have challenged the legality and/or validity of the said Order as being contrary to law and violative of Arts. 14 and 21 of the Constitution. In substance the petitioners have contended that the said Order illegally and wrongfully denies to life convicts the benefit of a set-off contemplated under Sec. 428 Cr. P. C. and therefore the petitioners have sought a mandamus directing the Respondent State to consider their cases for release under Para 516-B of the Punjab/Haryana Jail Manual after giving them the benefit of said set-off against their sentences.

3. In the counter-affidavit filed on behalf of the Respondent State the legal position obtaining as a result of this Courts decision in Maru Rams case (supra) has been accepted : similarly the effect of Para 516-B of the Punjab/Haryana Jail Manual as set out by the petitioners is also accepted. It is, however, denied that the Order No. 1953/59/ G1/G.3/T-19 (11) dated. 2nd February, 1981 is illegal or invalid for any reason or is contrary to Sec. 428, Cr. P. C. It has been contended that the benefit of a set-off contemplated. by Sec. 428 Cr. P. C. is not availab