JUDGMENT

Yadav, J. -- 1. This appeal under section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, is directed against the order dated 5.3.2019 passed in Writ Petition No. 5038/2018.

2. In Writ Petition, the respondent, a life convict, as per judgment dated 1.10.1994 in Sessions Trial No. 42/1990 for causing dual murder, raised grievance against the discriminatory act of the State Government in extending the benefit of remission to co-convict Mahendra Singh by order dated 16.12.2008; whereas, the application by the petitioner was rejected on 21.12.2017. Evidently, the main reason for not releasing the respondent was the change of policy. It was stated that at the time when co-accused was released on 26.1.2009 by order dated 16.12.2008, the policy in vogue contemplated 14 years actual custody. And the co-convict having undergone the said period was released. Whereas, the respondent, having not completed 14 years’ actual custody in 2008, was declined the remission as he was found to be on bail during trial. The respondent questioned the rejection of his application on the anvil of the decision in “State of Haryana and others v. Jagdish [(2010)4 SCC 216]”; wherein, as per the respondent, the controversy which existed on the issue of applicability of policy of remission prevailing at the time of conviction or not was sorted out that the policy prevalent at the time of conviction will be applicable. Learned Single Judge finding substance in the contention of the petitioner set aside the order dated 21.12.2017 with the direction to the appellant to reconsider the claim of respondent in the light of policy which prevailed at the time when he was convicted in 1994.

3. The State of Madhya Pradesh and its functionaries are in appeal against the impugned order. The contentions, in nutshell, are that Article 72 & Article 161 of the Constitution empowers the President and the Governor, respectively, to grant pardons, etc., and to suspend, remit, or commute sentence in certain cases. And that Article 73 and Article 162 provide for the extent of executive powers of the Union and State shall extend to matters upon which the Parliament and the State Legislature is competent to legislate. The decision in Jagdish (supra), it is urged, mainly turned on the principle that the policy framed under Article 162 of the Constitution shall have overriding effect over the policy framed by the State in exercise of its powers under section 432 and 433 of the Code of Criminal Procedure, 1973. It is urged that the conclusion arrived at in paragraph 42 of the judgment in Jagdish (supra), that the power exercised under Article 161 of Constitution is a mandate of the Constitution and therefore policy under section 432 and 433 of Cr.P.C. cannot override the policy under Article 161 of the Constitution has been impliedly overruled by the Constitutional Bench in “Union of India V. v. Sriharan alias Murugan and others [(2016)7 SCC 1]”. It is urged that since it is held that a life convict has no right to remission but only a right to claim remission, it is the policy in vogue on the date when such a right is exercised would be applicable and not the policy which was in vogue at the time of conviction.

4. In the context of the issue involved in the matter as to whether it is the policy in vogue on the date when an incumbent is eligible for consideration or the date of conviction, the contention made by the learned Additional Advocate General that since there is no vested right in the convict for premature release or right to remission, but only has a right to claim remission; therefore, the policy in vogue when such right is claimed would be applicable, has substantial force.

5. Before Larger Bench of the Supreme Court in V. Sriharan (supra), one of the issues was “whether the power under section 432 and 433 of the Criminal Procedure Code by the appropriate government would be available even after the constitutional power under Articl