JUDGMENT 1. The petitioner was convicted for the offence under Section 302 IPC by a decision of the Sessions Judge, Jhunjhunu dated 6th Dec., 1977. He was sentenced to imprisonment for life and a fine of Rs. 200/- and in default of payment of fine to further undergo two months' rigorous imprisonment. The petitioner remained in jail during the trial from 21st March, 1977 to 6th December, 1977. Besides this, he suffered imprisonment from 6th December, 1977 to 18th September, 1978 and again from 8th May, 1986 to 15th May, 1995. He has suffered actual imprisonment for ten years six months and five days. The remission given by the jail authorities during this period is one year nine months and 13 days. 2. The petitioner is suffering from tuberculosis and also C.B.A. (L) Hemi Paresis. For this disease he was examined and treated at S.M.S. Hospital and at the Hospital for disease of Chest and tuberculosis. 3. The petitioner filed a habeas corpus petition before this Court which was registered as D.B. Habeas Corpus petition No. 7049/1993 and this was disposed with the direction that the case of the petitioner should be considered for per-mature release by the Advisory Board. 4. The petitioner's case was considered by the Advisory Board on 3rd September, 1994. However, this recommendation of the Advisory Board has been turned down by the Government on the ground that he has not completed 14 years of imprisonment in the jail. In another words, he has been said to be ineligible for the pre-mature reease. Therefore the first question which arises is whether the petitioner can be said to be eligible for consideration by the Advisory Board for pre mature release. 5. The criterion for eligibility of prisoners for consideration by the Advisory Board for pre-mature elease has been laid down in Rule 8 of the Rajasthan Prisoners (Shortening of Sentences) Rules, 1958 (hereinafter referred to as the `Shortening of Sentences Rules'). Rule 8 reads as under:- "8. 5. The criterion for eligibility of prisoners for consideration by the Advisory Board for pre-mature elease has been laid down in Rule 8 of the Rajasthan Prisoners (Shortening of Sentences) Rules, 1958 (hereinafter referred to as the `Shortening of Sentences Rules'). Rule 8 reads as under:- "8. Prisoners eligibility for consideration by the Advisory Board : The Advisory Board shall be entitled to consider cases of the following types of prisoners only (i) A prisoner other than habitual criminal undergoing a substantive sentence of three years or over who has completed two years imprisonment or half of his sentence which-ever is greater, including remission; (ii) A prisoner being a habitual criminal who has served 21/2 years of his substantive sentence including the period of remission or has served two thirds of his sentence including the period of remission, which ever is greater. (iii) (a) A Prisoner sentenced to transportation for life or to more than 14 years of imprisonment, except one specified in sub-rule (h) below, who has served ⅔rd of his sentence or 13 years 8 months of imprisonment including remission, which ever 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 functions for example, Independence Day, Republic Day etc. (iii)(b). A Prisoner who has been sentenced to imprisonment for life after 18.12.76 for an offence for which death penalty is one of the punishments provided by law or who has been sentenced to death but this sentence has been commuted under Section 433 of Cr.PC 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.'' (iv) Prisoners awarded long term........ (v) Prisoners suffering from infectious disease, such as Leprosy, tuberculosis, provided their disease is likely to be dangerous to other prisoners and conditions prescribed in Rule 7 are fulfilled. (v) Prisoners suffering from infectious disease, such as Leprosy, tuberculosis, provided their disease is likely to be dangerous to other prisoners and conditions prescribed in Rule 7 are fulfilled. (vi) Prisoners who have attained the age over 65 years in case of male prisoners and over 55 years in case of women prisoners in whose case no public interest is likely to be served by keeping them in prison; provided they are serving in prison; provided they are serving sentences for their first and only conviction and are not covered under clause (iii)(a) and (iii) (b) above." 9. It may be mentioned that for original sub-rule (iii) of Rule 8, sub-rules (iii) (a) and (iii)(b) have been substituted vide Notification dated 15th October, 1990 and sub-rule (vi) was also amended vide Notification dated 4th March, 1993. As far as sub-rule (v) is concerned it can be said that the petitioner is eligible for being considered by the Advisory Board for premature release as he is suffering from an infectious disease i.e. tuberculosis. The question arises whether a prisoner who is eligible under rule 8(v) and (vi) can be said to be governed by the provisions of sub-rule (iii) of Rule 8 of the Shortening of Sentence Rules and he cannot be said to be eligible for consideration for premature release unless he qualifies under sub-rule (iii) also. A bare reading of the various sub-rules would go to show that each clause is independent. Sub-rule (iv) deals with the prisoners awarded long term sentence by Court Martial. Sub-rule (v) relates to prisoners suffering from infectious diseases. Sub-rule (vi) refers the prisoners who are of advanced age. Similarly, sub-rule (i) is applicable to prisoner undergoing substantive sentence of three years or more but is not an habitual criminal, while sub-rule (ii) refers a prisoner who is habitual criminal and has served 21/2 years of his substantive sentence including remission or two thirds of his sentence including remission whichever is greater. It is obvious that different situations are contemplated by each sub-rule and all of them cannot exist in the case of a single prisoner. When once a prisoner in eligible for consideration for premature release by the Advisory Board then the only restriction which can come in his way will have to be in statute itself which gives the State Government a right to frame Rules for pre-mature release. When once a prisoner in eligible for consideration for premature release by the Advisory Board then the only restriction which can come in his way will have to be in statute itself which gives the State Government a right to frame Rules for pre-mature release. Section 433A Cr.PC is one of the provisions and it appears that the State Government had this in mind while rejecting the recommendations of the Advisory Board. Section 433A provides that notwithstanding anything contained in Section 432, where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under Section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment. This amended section 433A was inserted by Act as of 1978 and came into force from 18th December, 1978. This amendment has been upheld to be prospective in operation by the Supreme Court in Maru Ram v. U.O.I. and others [ (1981) 1 SCC 107 ] , The conviction of the petitioner is dated 6th December, 1977, which is prior to the date on which the amendment came into operation. As such, Section 433A Cr.PC will not be applicable in this case. In his case, therefore, it is not necessary that he should undergo actual imprisonment for 14 years, before being eligible for consideration for pre-mature release by the Advisory Board.10. The only contention of the learned Government Advocate is that there is no proof that the disease from which the petitioner is suffering is likely to be dangerous to other prisoners. In our opinion this mattes has to be considered by the Advisory Board while scrutinising the case to the prisoner before making recommendation, alongwith the conditions which have been enumerated to rule of the Shortening of Sentences Rules.11. The Court will not enter into such details. When once the Advisory Board has recommended for the pre-mature release of the petitioner than the Government under Rule 12 of the Rules, shall order release of the petitioner in case for which having regard to the circumstances of the case it considers that the prisoner be released without any danger to the society. When once the Advisory Board has recommended for the pre-mature release of the petitioner than the Government under Rule 12 of the Rules, shall order release of the petitioner in case for which having regard to the circumstances of the case it considers that the prisoner be released without any danger to the society. It has been held by this Court in D.B. Habeas Corpus Petition No. 3443/1990, Masoom Bai v. State of Rajasthan and others decided on 14th January, 1991 , and in other cases the only ground on which the Government can refuse the recommendations of the advisory Board is that the release of the prisoner could not be without danger to the society. This is not the situation in the present case. The Government has refused to accept the recommendations on the ground that the petitioner was ineligible for consideration for pre-mature release by the advisory Board. This petition has been examined by us and it has been held already that the petitioner was eligible for being considered for pre-mature release and as the Advisory Board has recommended that pre-mature release then the Government could not refuse to accept it on the ground or ineligibility. Therefore, the order of the Government is to be set aside.12. The petition is allowed. The petitioner will be released pre-maturely immediately and the authorities if they want to impose any condition as provided under the Rules may do so and the petitioner shall comply with the same. *******