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1994 DIGILAW 11 (PAT)

Akshya Bat Dayal Singh v. State of Bihar

1994-01-11

R.N.PRASAD

body1994
Order Heard Sri Ram Kishore Prasad for the petitioners and Govt. Pleader no. 1 for the State. 2. There are two petitioners who are father and son. They were tried in Sessions Trial No. 72/74 under section 302/34 of the Indian Penal Code. By judgment pronounced on 30.11.77, the petitioners were convicted and sentenced to imprisonment for life. The petitioner havings served a considerable part of the sentence, moved the State Government for their premature release in view of various decisions of the Supreme Court. The State Govt. by Annexure-8 to the writ application, turned down the prayer of the petitioners on the ground that since the petitioners had not completed 14 years of sentence, as required under section 433-A, the State Government may not release the petitioners. The State Govt. probably overlooked the fact that the petitioners were convicted in 1977 and section 433A was brought on the Statute by Act 45 of 1978. 3. In Damji vs. State of Gujarat and others reported in 1987 PLJR 78 (SC) the Supreme Court has held that section 433A is not applicable to cases where convictions were recorded prior to 18.12.1978 i.e. the date on which the provision was introduced. The earlier decision of the Supreme Court was in Maru Ram etc. v. Union of India (1981) 1 SCR 1196 . It is regrettable that despite two decisions of the Supreme Court, the application of petitioner no. 1 for premature release was rejected. 4. I, therefore, direct the State Government to reconsider the case of petitioner no. 1. The case of petitioner no. 12 is also under consideration of the State Government. Let a writ of mandamus be issued to the State Government to pass appropriate orders on the application of the petitioners for premature release by 28th of February, 1994. 5. If for some reason the matter of premature release is not decided by the State Government within the time fixed, the petitioners shall be released on bail to the satisfaction of the Chief Judicial Magistrate, Hazaribagh, on furnishing proper securities. If however, the ultimate decision is adverse to the petitioners, it will be open to the petitioners to challenge that order in an appropriate proceeding and it will not be open to the authority concerned to apply for cancellation of bail. 6. Let a copy of the order be handed over to Govt. Pleader no. If however, the ultimate decision is adverse to the petitioners, it will be open to the petitioners to challenge that order in an appropriate proceeding and it will not be open to the authority concerned to apply for cancellation of bail. 6. Let a copy of the order be handed over to Govt. Pleader no. 1 for immediate communication to the authority concerned. 7. This application stands disposed of.