JUDGMENT 1. As per the facts mentioned in the memo of writ petition the petitioner is a resident of Village Barwai, P.S. Ambah Distt. Murena (MP). He was convicted by learned Additional Sessions Judge, Dholpur, vide judgment dated 5.6.1972 u/s 302 IPC read with Sec. 149 and 365 and 147 IPC and was sentenced to life imprisonment, five years imprisonment and one year's imprisonment respectively. All the sentences were ordered to run concurrently. The petitioner did not file any appeal. 2. On 1.6.1990, the petitioner filed Writ Pet. No. 2539/1990 before this Court which was disposed of on 17.8.1990. It was ordered that the State Govt. should constitute Advisory Board and place the matter regarding premature release of the petitioner before the Board within one month and inform the petitioner about the same. It was in pursuance of this order passed in the earlier writ petition filed by the petitioner that the Advisory Board was constituted. The Advisory Board in its meeting held on 14.12.90 considered the case of the petitioner and recommended the matter for his premature release on his furnishing bail and personal bond for Rs. 20,000/-. The matter was considered by the State Govt, and vide its order dated 9.4.1991, the State Government did not accept the recommendations of the Advisory Board and did not order for premature release of the petitioner. It is against this order dated 9.4.1991 that the present writ petition was filed by the petitioner in this Court on 8.5.1991. Notices were issued on 14.5.91 to show cause as to why the writ petition should not be admitted. After service, the writ petition was admitted on 28th May, 1991 and notices were again issued to the respondents. The matter came up for orders on 12-11-1991 when the learned counsel for the State sought time and the matter was placed for orders on 22.11.1991. After service, the writ petition was admitted on 28th May, 1991 and notices were again issued to the respondents. The matter came up for orders on 12-11-1991 when the learned counsel for the State sought time and the matter was placed for orders on 22.11.1991. On 22-11-1991, it was observed that since the Government did not comply with the earlier order dated 17th August 1990 and the petitioner had not been intimated about the result of the Advisory Board and since the State Government has not filed reply even of this writ petition so far and the learned Government Advocate still sought time to file the reply and also to find out as to whether the case of the petitioner had been considered or not by the Advisory Board, it was thought just and proper that the petitioner be released on parole for a period for a period of three weeks on his furnishing a personal bond in the sum of Rs. 10,000/- with two sureties in the sum of Rs. 5000/- each, to the satisfaction of the Sessions Judge, Dholpur, with the stipulation that after the expiry of this period, he shall surrender before the Superintendent District Jail, Dholpur in the absence of any further order of this Court. In pursuance of this order, the petitioner was released on parole on furnishing personal bond and two sureties. 3. A reply of the writ petition was filed on 9th December, 1991. When the matter came up for orders on 17.12.1991, it was considered necessary to look into the original record which has been taken into consideration by the State Government. Arguments were partly heard on 7.1.1992 and the learned Additional Advocate General was directed to produce the complete record for perusal of the court. Later on, he was further ordered to produce certain more documents. An additional affidavit has been filed on behalf of the Government along with the documents. Arguments have been heard. 4. Learned counsel for the petitioner has submitted that the petitioner has already undergone sentence for 19 years 2 months 29 days including judicial custody for one year 12 days, State remission 1 year six months, Jail remission 7 years 5 months and actual sentence after conviction - 9 years 3 months 17 days. Arguments have been heard. 4. Learned counsel for the petitioner has submitted that the petitioner has already undergone sentence for 19 years 2 months 29 days including judicial custody for one year 12 days, State remission 1 year six months, Jail remission 7 years 5 months and actual sentence after conviction - 9 years 3 months 17 days. The petitioner was released by this Court on bail on 20.8.1980 and he remained on bail for continuous period of 9 years and then he was directed to surrender himself which he did on 14.11.1989 and during all this period, no complainant was lodged against the petitioner and no incident involving the petitioner took place. He has further submitted that the Advisory Board after considering the material available on record had recommended the petitioner for premature release & the copy of the said order of the Advisory Board was not furnished to him. The State Government has not accepted the recommendations of the Advisory Board on flimsy grounds. He has further submitted that the petitioner is an agriculturist and has got 50 Bighas of agricultural land with a motor pump and a pucca house and has maintained peace for nearly nine years when he was on bail between the period from 20th August, 1980 to 14.11.1989. He has placed reliance on Bhagirath v. Delhi Administration ( AIR 1985 SC 1050 ) wherein a constitution bench over ruled the case of Kartar Singh v. State ( AIR 1982 SC 1439 ) and held that the convict is entitled to set off period of detention undergone as under trial prisoner subject to provisions of Section 433 A Cr P.C and provided the competent authority passes order u/s. 432 or 443 Cr.P.C.4-A. He has also placed reliance on Harbhajan Singh v. Lt. Government of Delhi and others, (1988 (2) Crimes 268) , wherein the Delhi High Court, relying on an earlier decision in Dr. N.S Jain v. Delhi Administration and anr., (1985 (2) Crimes 521) has held that the sentence revising Board considering premature release of a convict is no doubt an administrative authority but is subject to judicial review and the State Government must show that its action was based upon cogent material otherwise the decision has to be struck down. 5. N.S Jain v. Delhi Administration and anr., (1985 (2) Crimes 521) has held that the sentence revising Board considering premature release of a convict is no doubt an administrative authority but is subject to judicial review and the State Government must show that its action was based upon cogent material otherwise the decision has to be struck down. 5. He has further submitted that since the petitioner was found guilty and convicted by the learned trial court vide order dated 5-6-1972, Sec 433A Cr. P.C is not applicable as the same was inserted in 1978 and therefore, the petitioner is not to undergo actual 14 years rigorous imprisonment. 6. In reply to the writ petition, the State of Rajasthan has submitted that the petitioner had remained in jail only for 8 years 2 months 17 days between 5-6-1972 and 21-8-1980 when he was released on bail. The petitioner again surrendered on 15-11-89 and till 26-11-1991 he underwent sentence for another 2 years and 12 days, in all 10 years 2 months 29 days substantive sentence. In their reply, it has further been asserted that so far the under-trial period is concerned, this benefit is not available to the prisoners awarded life imprisonment before induction of Section 433 A Cr.P.C. under the Rajasthan Prisons (Shortening of Sentences) Rules, 1958 (hereinafter referred to as the `Rules of 1958', as per sub-rule (iii) (a) of Rule 8 which runs as under:- "A prisoner sentenced to transportation for life or to more than 14 years of imprisonment, except one specified in sub-rule (b) below, who has served ⅔rd of his sentence or 13 years 8 months of imprisonment, including remission. whichever is less, a sentence for transportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid. The remission actually earned by a prisoner shall be taken into account by the Advisory Board and not a special remission granted in celebration of public function for example, Independence Day, Republic Day etc." 7. They have further quoted Rule 19 of the Rajasthan Jail Manual part-III, Remission System, which runs as under:- "Maximum remission rewardable. The remission actually earned by a prisoner shall be taken into account by the Advisory Board and not a special remission granted in celebration of public function for example, Independence Day, Republic Day etc." 7. They have further quoted Rule 19 of the Rajasthan Jail Manual part-III, Remission System, which runs as under:- "Maximum remission rewardable. - The total remission awarded to a prisoner under all these rules shall not, without the special sanction of the Government exceed one-third part of his sentence." Therefore, in view of the above two provisions, the total sentence including remission, served by the petitioner is as under:- Substantive sentence 10 years 2 months 9 days Jail remission as per rule 19 (⅓rd) 3 years five months Total 13 years 7 months 29 days 8. It has further been submitted that since the Advisory Board only considered the report of the Supdt. of Police, Dholpu (since the report of the District Magistrate was not available on record) and did not consider the report of the District Magistrate and the Supdt. of police. Murena, where the petitioner ordinarily resides, the order of the Advisory Board was vitiated. The petitioner has got no right of premature release which is only a concession and the discretionary power of the State Government cannot be questioned by way of a writ petition. In compliance of the order of this Court, the non petitioners have filed a copy of the recommendations of the Distt. Magistrate, Murena, dated 9-4-90 wherein in has been stated that he is in agreement with the opinion of Supdt. of Police, Murena and has stated that peace is likely to be disturbed on the release of the petitioner and therefore, the recommendations for his premature release could not be made. They have also filed the recommendation of the Supdt. of Police, Murena, dated 21-3-1990 wherein also it has been asserted that after considering the points mentioned in Rule 7 with the recommendation, premature release of the petitioner cannot be made. They have also enclosed a copy of the judgment of the learned Additional Sessions Judge, Dholpur, dated 5-6-1972 and have submitted that the facts of the case as mentioned in the decision of the Advisory Board are not correct and they did not apply their mind before passing the resolution dated 14-12-1990. They have also furnished a history ticket of the petitioner of Distt. They have also furnished a history ticket of the petitioner of Distt. Jail, Dholpur and a copy of the admission of the petitioner in Central Jail, Gwalior. But the Government was unable to produce the order releasing the petitioner on bail on 20-8-1980 and therefore, this court is not in a position to assess as to under what circumstances, the petitioner was ordered to be released on bail on 20-8-1980. An affidavit has been filed on behalf of the petitioner stating therein that the petitioner has not been convicted in any other case nor he is a member of any party or any gang or group nor he is involved in any quarrel or criminal acts nor has he any enemity with anyone.Learned Additional Advocate General has placed reliance on Ashok Kumar v. Union of India ( 1991 (3) SCC 498 ) 9. We have given our thoughtful consideration to the whole matter and have also gone through the record of the case as well as the authorities relied by the learned counsel for the parties. 10. In Rajasthan, we have the Rajasthan Prisons (Shortening of Sentence) Rules, 1958, which were promulgated by virtue of the powers under Clause (5) of Section 59 of the Prisons Act, 1894, which are still in force and which provide for the Constitution of Advisory Boards and the manner which the Advisory Board is expected to function and scrutinise the case regarding shortening of sentence or premature release of prisoners. Rule 7 of the Rules of 1958 reads as under:- "7. Scrutiny by the Advisory Board - The Advisory Board before recommending shortening of sentences or premature release of prisoners shall examine the following matters in full and accurate details:- (a) Circumstances in which offence was committed and the punishment awarded by the Court; (b) Details of the prisoner's previous history and character in the district where the prisoner was resident; (c) Prisoner's conduct in the prison and the result of imprisonment already, undergone by him. (d) Opinion of the District Magistrate and the Supdt. of Police of the Districts in which the prisoner was convicted and was resident with special reference to the following points:- (i) the reaction in the locality, if the prisoner is released prematurely. (d) Opinion of the District Magistrate and the Supdt. of Police of the Districts in which the prisoner was convicted and was resident with special reference to the following points:- (i) the reaction in the locality, if the prisoner is released prematurely. (ii) the feelings of the relations of the victim or victims of the offence who sufferened at the hands of the accused in case of premature release; (iii) whether the life of the accused itself will be safe, if he is to be released prematurely; (iv) any other information material to the case of the prisoner; and (v) whether the prisoner can be released with safety to the community". 11. The aforesaid Rules were amended by notification No. F. 4(2) Home 12/87 dated 15.10.1990 in view of the judgment pronounced by the Supreme Court in Ashok Kumar's case (supra) and Rule 8 (iii) of the Rules of 1958 was substituted as under:- "(iii) (a) A Prisoner sentenced to transportation for life or to more than 14 years of imprisonment, except one specified in sub-rule (b) below, who has served 2nd of his sentence or 13 years 8 months of imprisonment, including remission, whichever is less. A sentence for transportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid. The remission actually earned by a prisoner shall be taken into account by the Advisory Board and not a special remission granted in celebration of public function for example Independence Day, Republic Day etc. (iii)(b). A prisoner who has been sentenced to imprisonment for life after 18.12.78 for an offence for which death penalty is one of the punishment provided by law or who has been sentenced to death but this sentence has been commuted under Sec. 433 of Cr.P.C into one of life imprisonment after 18.12.78, if he has served 14 years of imprisonment excluding remission but including the period of detention passed during enquiry, investigation or trial". 12. 12. It may be mentioned here at the outset that the amendment of Rule 8(iii) of the Rules of 1958 will not govern the present matter as it has not been made retrospective and therefore, the old Rule 8(iii) will govern the present case which runs as under:- "A prisoner sentenced to more than 14 years imprisonment or transportation for life or transportation and imprisonment for terms exceeding in the aggregate 14 years and has served two-thirds of his sentence including remission. A sentence for transportation for life will be construed to be one of imprisonment for 20 years for this purpose. The period of imprisonment shall include sentence in default of payment of fine, if the same has not been paid." 13. Rule 10 of the Rules of 1958 provides the procedure which enjoins upon the Secretary of the Advisory Board to collect full particulars regarding each prisoner before the date appointed for the meeting of the Board and shall place full and accurate details regarding the prisoner's previous history and character, judgment of the convicting court depicting the circumstances in which the offence or offences were committed and sentence had been awarded, his prison record together with report of the District Magistrate and the Distt. Supdt. of police and thereafter, the Advisory Board is expected to carefully scrutinise and consider the judgment of the court, reports of the Supdt. of police and the District Magistrate, prisoner's conduct and behaviour in the prison and then make recommendation to the government. The Secretary of the Board is further obliged to submit a report about the physical and mental condition of the prisoner after verifying from the medical incharge of the prisoner concerned and thereafter, the Advisory Board is expected to submit its recommendation to the Government and the Government on receipt of proceedings of the Advisory Board and other relevant papers has to consider whether the prisoner should be released prematurely without any danger to the Society. Reference may also be made to Rule 19 of the Rajasthan prison Rules, 1951 which have also been enacted in exercise of powers conferred by Sec. 59 of the Prisons Act, 1894 which runs as under:- "The total remission awarded to a prisoner under all these rules shall not, without the special sanction of the Government, exceed one-third part of his sentence." The Rules of 1951 also provide about the remissions which are permissible as also the special remissions which can be granted and it further provides that all the remissions are to be entered on the history ticket. 14. Here we may also refer to an earlier judgment of the Supreme Court in Gopal Vinayak v. State of Maharashtra ( AIR 1961 SC 600 wherein their lordships of the Supreme Court have observed that there is no provision of law where under a sentence for life imprisonment without any formal remission by appropriate Government can be automatically treated as one for a definite period. Sec. 57 does not say that transportation for life shall be deemed to be transportation for 20 years for all purposes. The sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person's natural life. The Government alone can remit the sentence. This judgment was again considered by a constitution bench in detail order, in the case of Maruram v. Union of India ( AIR 1980 SC 2147 ) . Both these judgments were again considered in Bhagirath's case (supra). Maruram's case (supra) was again considered at great length by a constitution bench in Kehar Singh v. Union of India ( 1989 (1) SCC 204 ) . All these cases were dealt with at length by the Supreme Court again in Ashak Kumar's case (supra). 15. In the present case, it is not necessary for us to go into all these questions because of the special features of this case. It is too late to consider the argument that the decision of the State Government or the Advisory Board is not open to judicial review. 15. In the present case, it is not necessary for us to go into all these questions because of the special features of this case. It is too late to consider the argument that the decision of the State Government or the Advisory Board is not open to judicial review. It is true that the order of the State Government is an administrative order in such natters but because it affects the liberty of a citizen, High Court is empowered to examine such orders and such orders are open to judicial review as has been held in Dr. N.S. Jain and Harbhajan Singhs cases (supra). 16. How we examine the order of the State Government. There is no doubt that it is a detailed order and has given reasons for not accepting the recommendations of the Advisory Board for premature release of the petitioner and ordinarily we would not have interfered with that order but it is very surprising that neither the Advisory Board nor the State Government has taken into consideration the impact and the effect of very special circumstance in the case that the petitioner was released on bail by this Court on 20.8.1980 and he remained on bail for continuous period of nine years and he surrendered himself on 14-11-1989. During all this period when the petitioner remained on bail, there in no complainant of his involvement in any criminal case or any untoward incident in public. We will also like to observe that Rule 7 of the Rules of 1958 provides sufficient guidelines to the Advisory Board while scrutinising the case for premature release. The Secretary of the Advisory Board has been enjoined by Rule 10 to collect the material well in time and to place it before the Advisory Board. Number of case have come before this Court with regard to premature release and this Court had been observing that the report submitted by the District Magistrate & the Superintendent of police should not be stereo-type but should give some facts or date on which such authorities base their opinion and the Advisory Board should consider the opinion of the District Magistrate and the Superintendent of police of the District of which the prisoner who was convicted, is a resident. In the present case, the petitioner was a resident of Murena and the Advisory Board did not think it proper to get the recommendations of the District Magistrate and Superintendent of Police of Murena and proceeded to decide the matter only on the basis of the recommendations and opinion of the District Magistrate and Supdt. of Police, Dholpur (the district in which the petitioner was convicted) and this condition has been rightly imposed by the enactment because it is only the Supdt. of Police and the District Magistrate of the District in which the convict/prisoner resides who can give better information. In the present case, even the history ticket of the prisoner was not available. The petitioner was convicted by the Sessions Judge, Dholpur but he was in jail at Gwalior, therefore, the Advisory Board as well as the State Government should have obtained the history ticket of the petitioner both from Dholpur Jail, if he had stayed for some time there as also the history ticket of the convict from Gwalior Jail. In the instant case, the State Government should have called for a special report from the Supdt. of Police of the District Magistrate, Murena about the conduct of the petitioner during the period when he was on bail, between 20.8.1980 to 14.11.1989, and without the report for this period, it was meaningless to consider the case of premature release. 17. In this view of the matter, we are inclined to accept this writ petition in part and direct the State Government to refer the matter back to the Advisory Board to consider the case of the petitioner regarding his premature release in the light of the observations made by us and then, it will be open for the State Govt, to consider the recommendations of the Advisory Board and pass necessary orders in this regard. Since the petitioner has already been enlarged on parole by this Court vide order dated 22.11.1991, we do not think it proper to send his to Jail again unless this matter of premature release is decided afresh by the Advisory Board and the State Government. We hereby direct the petitioner to submit fresh personal bond in the sum of Rs. 20,000/- (Rs. twenty thousand only) with two sureties in the sum of Rs. 10,000/- (Rs. We hereby direct the petitioner to submit fresh personal bond in the sum of Rs. 20,000/- (Rs. twenty thousand only) with two sureties in the sum of Rs. 10,000/- (Rs. ten thousand only) each, to the satisfaction of the Sessions Judge, Dholpur, with the stipulation that he will surrender himself before the Supdt. Jail, Dholpur, in case the matter regarding his premature release is decided against him by the State Government. 18. Before parting with the case, we shall like to emphasis that the State Government should issue necessary instructions in detail in this regard, to all the Distt. Magistrates, Supdt. of Police as also Supdt. of Jail so that such matters are not brought to the Court very often and the matter is dealt with by the Advisory Board and the State Government in accordance with the Rules and the observations of the High Court and Supreme Court in this connection. 19. A copy of this order should be sent to the Commissioner and Secretary to Government, Home Deptt. Government of Rajasthan, Jaipur. *******