A convict sentenced to rigorous imprisonment is entitled to premature release under Rule 518 of the Orissa Jail Manual after serving a period of detention together with the remissions earned for fourteen years.

P. C. MISRA, J.

( 1 ) THIS writ application has been filed by the petitioner who is undergoing his sentence in the Circle Jail at Cuttack praying for his release.

( 2 ) THE petitioner, Arjun Charan Samal along with fifteen others was tried under Ss. 148/302/34, I. P. C. for causing the death of one Rama Naik on 11-2-1973. The petitioner and three other accused persons were also charged under S. 324, I. P. C. All of them were tried in S. T. No. 48-C of 1973 in the Court of the Additional Sessions Judge, Cuttack, and by judgment dt. 14-8-1974. the petitioner was convicted under Ss. 302 and 324, I. P. C. and was sentenced to undergo rigorous imprisonment for life under S. 302, I. P. C. and for six months under S. 324, I. P. C. , both the sentences were directed to run concurrently. The other accused persons were acquitted. Against the aforesaid judgment, the petitioner preferred an appeal in Criminal Appeal No. 173 of 1974 and the State of Orissa filed Government Appeal No. 9 of 1975. This Court by a common judgment dt. 27-1-1976 dismissed both the appeals. Consequently, the order of acquittal in respect of the other accused persons as also the order of conviction of the petitioner was upheld.

( 3 ) THE petitioner is in custody as an under-trial prisoner and after his conviction, he underwent the sentences. In this writ application, the petitioner has averred that he has been in custody for more than 14 years and his case should have been referred for consideration for premature release under Rule 518 of the Orissa Jail Manual. He has also referred to the mercy petition submitted by his wife for his release and it is stated that the Governor has rejected the same in exercise of the powers conferred on him under Art. 161 of the Constitution. He claims that he is entitled to be released taking into consideration the remissions granted to the prisoners under the rules of the Jail Manual.

( 4 ) A counter-affidavit has been filed on behalf of the opposite party, namely, the State of Orissa through the Deputy Secretary to the Government, Law Department, wherein it has been stated that while the petitioner was in jail custody after his conviction his wife Smt. Ushamani Samal made a mercy petition to the Governor of Orissa which after the consideration was dismissed by the Governor on 3-6-1982. Thereafter his wife filed a second petition addressed to the Governor of Orissa which was rejected on the ground that his case did not justify premature release. The wife of the petitioner had also filed an appeal petition under Art. 161 of the Constitution before the Governor of Orissa during the pendency of the present writ application which, it was stated to be pending at that time. Among other things, it has been stated that the petitioner had committed a pre-planned cold blooded murder and he is bound in law to serve a life term in prison unless the said sentence is commuted or remitted by the appropriate authority. At any rate, it has been contended that there are no grounds, far less sufficient grounds, for interference in this case by this Court under Art. 226 of the Constitution. One of the contentions is also that it is not open to the Court to interfere in the executive functions to be exercised by the head of the State under Art. 161 of the Constitution and ultimately the rejection of the writ petition has been prayed for.

( 5 ) A supplementary affidavit has been filed by the State sworn to by the Inspector-General of Prisons giving the details as to the term of the sentence actually undergone by the petitioner together with the period of remission earned by him. It has been stated that the petitioner's case was recommended to the governor on 17-6-1983 for premature release but the same appears to have been made by mistake without consideration of the amended Rule 708-A of the Jail Manual which prescribed that the question of release of life convict shall be referred to the State Government after 20 years of imprisonment including