The court has no jurisdiction to interfere in the exercise of the power of mercy by the Governor under Art.161 of the Constitution.

1. This is a petition by a life convict seeking a writ in the nature of habeas corpus. It is based on the premises that he was entitled to have his case considered for premature release under Art.161 of the Constitution and since the State was sitting tight over it, he has asked for a suitable direction in his favour.

2. The petitioner was sentenced to death by the Additional Sessions Judge, Amritsar, on 21-11-1978 but his sentence was converted to life imprisonment on appeal to this Court. His case is obviously to be governed under Sec.433A of that Cr. P.C. where under there is a bar put on the release of a convict sentenced to life imprisonment, unless he had served at least 14 years of imprisonment. The said Sec.433A begins with a non-obstante clause, cutting down the power under Sec.432 of the Cr.P.C., resting with the Government to suspend or remit the sentences. Any doubt in that regard was set at rest by the Supreme Court in Maru Ram V/s. Union of India, AIR 1988 SC 2147 : (1980 Cri LJ 1440). The State Government had, in order to guide its power under Sec.432, Cr.P.C., issued executive instructions and the same ware contained in Punjab Jail Manual, prominent of which was para 516B wherein a male convict about 20 years of age having undergone actually 81/2 years of sentence, and with remission 14 years sentence, was entitled to have his case moved for premature release. Now that source of Sec.432, Cr. P.C., and its attendant para 516B of Punjab Jail Manual, having been overpowered by Sec.433, Cr. P.C., the State Government of Punjab surprisingly made another outlet for the same purpose through Art.161 of the Constitution.

3. Annexure P2, appended to the petition, are instructions dated 7th Sept., 1979. It embodies the decision of the Government that in future, the cases of eligible convicts be forwarded to the Punjab Government under Sec.161 of the Constitution of India for remission of the sentence. Those convicts were said to be covered for premature release who had completed the requisite actual sentence as per earlier policy and who had satisfactory conduct in jail, and in whose cases the District Level Committee had made requisite recommendations. Now, this practically meant that the old policy under the Punjab Jail Manual in para 516B thereof, though dead for the purposes of Sec.432 Cr.P.C., was activated for the purposes of Art.161 of the Constitution. It was old wine in a new bottle. Instructions Annexure-P3 dt. 26th March, 1985, clarified that the State Level Committee constituted for the purposes of Sec.432, Cr. P.C., would be the State Level Committee for making recommendations on mercy petitions of the convicts. Annexure P4 are executive instruction dt. 12th Dec., 1986, which specifically say that since every premature release case of a life convict will be taken up after he completes 14 years of actual sentence in jail under Sec.433A of the Cr.P.C., operative with effect from 18th December, 1978, the minimum period of five or six years for juvenile and women prisoners and 71/2 and 81/2 years for adult male prisoners can be taken as one of the guidelines for release on mercy petitions. Other guidelines too are embodied therein, such as serious illness, fixing responsibility in a gang murder, age, sex, mental deficiency, etc., and other compassionate grounds.

4. With regard to the instructions of 1979 (Annexure P2), the State in para 3 of its Return, has taken the stand that those I instructions were issued at a time when it was not sure whether Sec.433A, Cr. P.C., would be prospective in nature, or would operate retrospectively. With regard to the creation of the State Level Committee under Annexure P3, it is submitted that the State Level Committee has since been suspended in the year 1987 and those instructions automatically fail. Still in the return it is not specifically denied that the power under Art.161 of the Constitution is being exercised by the State Government and to regulate the procedure