Rajeev Ranjan Prasad, J. – The two petitioners in the present writ application are questioning the decision of the State Sentence Remission Board (hereinafter referred to as the ‘Board’) taken on 19.05.2021 in the matter of premature release of the petitioner no. 1 on completion of their 14 years of physical incarceration and 20 years with remission. Further, they are seeking a ‘Mandamus’ to the ‘Board’ to consider their premature release.

Case of the Petitioner

2. The petitioners were charged for the offence under Sections 302 and 120B of the Indian Penal Code (in short ‘IPC’) in Sessions Trial No. 390 of 2000/634 of 2006 arising out of Khanpur P.S. Case No. 53 of 1999 in the court of learned Additional Sessions Judge, F.T.C. No. 5, Samastipur. The petitioner no. 1 namely, Ganesh Sah was convicted and sentenced to death and rigorous imprisonment for seven years respectively. His wife (petitioner no. 2) was also convicted for the same offences and was awarded life imprisonment for the offence under Section 302 IPC and rigorous imprisonment for 7 years for the offence under Section 120B of the Indian Penal Code. The petitioner no. 2 has been further ordered to pay a fine of Rs. 50,000/- out of which Rs. 40,000/- is payable to the wife of the deceased Suresh Sah and in default the petitioner no. 2 shall undergo R.I. for a further period of two years. Her sentences are to run concurrently.

3. On reference under Section 366 of the Code of Criminal Procedure (in short ‘Cr.P.C.’) made by the learned Presiding Officer of the trial court, Death Reference No. 2 of 2007 (The State of Bihar vs. Ganesh Sah) was registered and the same was heard along with Cr. Appeal (DB) No. 649 of 2007 (Ganesh Sah vs. State of Bihar) and Cr. Appeal (DB) No. 625 of 2007 (Dana Devi vs. The State of Bihar). The Hon’ble High Court maintained the conviction of both the appellants, however, on the award of death sentence of appellant no. 1 Ganesh Sah the Hon’ble Court found that the appellant had indulged in the murders because of his mental perception of partiality of his father in not giving him proper share of land. The sentence for the offence under Section 302 IPC was commuted to sentence of life imprisonment and also fine of Rs. 50,000/- and in case of default he will undergo further rigorous imprisonment for two years. If the fine is realized then Rs. 40,000/- out of the same shall go to the wife of the deceased. The date of conviction of the petitioners is 23.03.2007/29.03.2007.

4. While assailing the impugned order of the Board as contained in Annexure ‘P-5’ to the writ application, learned counsel for the petitioners submits that both the petitioners have completed more than 18 years of actual physical incarceration and 20 years with remission.

5. It is submitted that the State Government has come out with a notification in exercise of its power conferred under Section 59 of the Prison Act 1894 (hereinafter referred to as the ‘Act of 1894’) contained in Memo No. 3106 dated 10.12.2002 whereby and whereunder Rule 529 of the Bihar Jail Maunal has been amended by substituting a new Rule. According to Clause (iii) (?k) of the Notification Dated 10.12.20002 a convict who is undergoing sentence of life imprisonment shall on completion of 65 years of age, if he has completed 7 years of sentence with remission, such convict shall be eligible to be considered for premature release. It is submitted that the petitioners are more than 70 years of age, therefore, the aforesaid provisions shall apply in their case.

6. Learned counsel for the petitioners submits that the Jail Superintendent, Khudi Ram Bose Jail, Muzaffarpur, the Superintendent of Police, Muzaffarpur and the Probation officer recommended the case of the petitioners for premature release but the Presiding Officer of the court did not recommend for premature release of the petitioner no. 1.

7. It is submitted that the proposal of the petitioner no. 1 for his premature release was placed in the meeting of the