JUDGMENT :

Rajeev Ranjan Prasad, J.

The petitioner in the present case is seeking a direction to the respondent nos. 1 to 4 to consider the premature release of the father of the petitioner who, according to him, has completed 14 years of actual custody and 20 years with remission in terms of the remission policy of the government on the date of his conviction. According to the petitioner, his father is entitled to be considered for his premature release.

2. The short facts of the case are as under:-

The father of the petitioner was an accused in Tekari P.S Case No. 93 of 1994 registered under Sections 364, 302 and 34 of the Indian Penal Code. He was convicted by the learned trial court presided by the 2nd Additional District and Sessions Judge, Gaya and was awarded rigorous imprisonment for life.

3. The father of the petitioner preferred Criminal Appeal No. 86 of 1998 before this Court which was eventually allowed and he was acquitted from the charges levelled against him. The judgment of this Court was, however, challenged by the informant before the Hon'ble Supreme Court in Criminal Appeal No. 553-554 of 2001. The said Criminal Appeal before the Hon'ble Supreme Court was allowed. The father of the informant was directed to surrender to serve the remaining sentence.

4. It is stated that on 29.08.2011, the father of the petitioner surrendered in the learned court below. On 15.11.2018 he filed an application before the Chairman, Remission Board, Patna through the Jail Superintendent, Central Jail, Gaya for his premature release. Thereafter, he also filed a writ application being Cr.W.J.C. No. 750 of 2019 before this Court. At the relevant time he had completed only 13 years of actual custody. On 20.06.2019, the said writ application was disposed of with an observation that as per the Government's policy the father of the petitioner was not entitled to move the application at this stage without completing the years of incarceration in terms of the policy applicable in the year 1994.

5. In the aforementioned circumstance, on 02.08.2019 the petitioner filed a representation before the respondent authorities for release of his father claiming therein that his father had already completed 14 years of custody without remission and 20 years with remission. The grievance of the present petitioner was that the respondent authorities were sitting over the matter and they were not taking any decision.

6. Learned counsel for the petitioner submits that in terms of the settled pronouncement of the Hon'ble Supreme Court in the case of State of Haryana versus Jagdish, 2010 (4) SCC 2016 the remission policy as existing on the date of conviction of the father of the petitioner would be applicable. The father of the petitioner was convicted in the year 1997, therefore, the remission rule of that time would be applicable in his case. It is his submission that as per the prevailing policy of the government in the year 1997 premature release were allowed upon 14 years of actual custody and 20 years with remission.

Stand of the State

7. In response to the writ application, a counter affidavit came to be filed on behalf of the respondent nos. 1 to 4. In the counter affidavit, a plea has been taken in paragraph 6' that for consideration of a case for premature release of a life convict, it is mandatory that the convict must have completed the actual custody of 14 years and 20 years of custody with remission. In paragraph 7' of the counter affidavit it is stated as under:-

".......That the father of the petitioner has completed the actual custody of 15 years 4 months and 20 days as on 15.03.2021 and total custody with remission as on 15.03.2021 is 19 years 3 months and 11 days......"

8. A plea has been taken by the State respondent nos. 1 to 4 that because he has not completed his custody of 20 years with remission so his proposal for consideration of premature release cannot be sent to the Remission Board. As soon as he completes the said period, the proposal f