A life convict who has completed 8-1/2 years of substantive sentence is entitled to be considered for premature release under the instructions prevalent at the time when he had completed his 8-1/2 years of substantive sentence.

Jai Singh Sekhon, J.

1. Gurmej Singh petitioner was sentenced to death by the learned Sessions Judge, Ambala, for the offence punishable under Section. 302 of the Indian Penal Code, on March 16, 1974. The death sentence was confirmed by the High Court. It was ultimately commuted to imprisonment for life by the Honble Governor of Haryana. He has invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for issuing a writ directing the State to set him at liberty as his further detention is illegal because he has undergone 11 years 8 months and 29 days substantive imprisonment including his detention during the pendency of the case besides having earned 7 years and 6 months by way-of remission in view of his good conduct in the jail. It was also stressed that provisions of Section 433-A of the Code of Criminal Procedure were not applicable to his case as the conviction order was passed by the learned Sessions Judge on March 16, 1974. It was further contended that paragraph 516-B of the Punjab Jail Manual which is based upon Government of Indias resolution No. M-159-167 dated 6.9.1905, would override the instructions issued by the State of Haryana in this regard in view of the provisions of Article 372 read with Article 246 of the Constitution. The instructions issued by the Haryana Government vide memo No. 7882JJ/77/30099 dated November 28, 1977 were stressed in order to persuade the Court that a life convict having undergone 8-1/2 years of substantive sentence and 14 years in all including the remission, is entitled to be considered for premature release.

2. In the return filed by the State, it is admitted that the petitioner has undergone 11 years 8 months and 12 days of substantive sentence but maintained that imprisonment for life means sentence for the entire life of the individual and it is the prerogative of the Government to prematurely release him in view of the instructions issued from time to time. It was, however, admitted that provisions of Section 433-A of the Code of Criminal Procedure were not applicable to the case of the petitioner. On the other hand, it was maintained that the case of a life convict whose death sentence has been commuted to life imprisonment by the Governor, could not be considered for premature release unless he has undergone 14 years of substantive sentence as per the instructions issued by the Haryana Government vide. memo No. 43/19/83-JJ (2) dated February 27, 1984.

3. I have heard the learned counsel for the parties beside perusing the record.

4. In Maru Ram v. Union of India, AIR 198O Supreme Court 2147 their Lordship of the Supreme Court after elaborate discussion of the constitutional vires of Section 433-A of the Code of Criminal Procedure as well as its prospective application and prerogative of the Government of India and the State Government under Articles 72/161 of the Constitution respectively have held as under :-

"(1) We repulse all the thrusts on the vires of Section 433-A. May be, penologically the prolonged term prescribed by the Section is supererogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation.

"But course is to construe, not construct, to decode, not to make a code.

(2) We affirm the current supremacy of Section 433-A over the Remission Rules and short-sentencing statutes made by the various States.

(3) We uphold all remissions and short-sentencing passed under Articles 72 and 161 of the Constitution but release will follow in life sentence cases, only on Government making an order enmasse or individually in that behalf.

(4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433-A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.

(5) We negat