JUDGMENT Biplab Kumar Sharma, J. 1. Both the matters were taken up on the basis of the representations dated 5.6.2007 and 6.11.2008 received to the following affect. WP(C) No. 3229/2007 (taken up) 2. A convict, by name, Pawan Garh, who was found guilty of offence under Section 302/34, IPC by the learned Additional Sessions Judge, Dibrugarh and serving sentence in Central Jail, Dibrugarh, was enlarged on parole on 17.8.2005. In terms of the release order, he was required to report back to the prison on 17.9.2005. However, he did not return after availing the period of parole. Be it stated here that the said convict is still not traceable. In the representation dated 5.6.2007 received from one Shri Saibal Ganguly, Director, Harishpur Tea Company (P.) Ltd., Dibrugarh, it has been stated that the said convict has been threatening the family members of the victim in the case in question, namely. Sessions Case No. 49/1995. It was stated in the representation that the matter was brought to the notice of the Inspector General of Prison, Assam, vide communication dated 12.5.2006, but to no effect. It was further stated in the representation that the matter was brought to the notice of the learned Addl. Sessions Judge, Dibrugarh, vide petition dated 27.11.2006, who in turn called for a report from the Superintendent of Central Jail, Dibrugarh. The report furnished by the Superintendent confirmed that the convict, who was released on 17.8.2005 for one month, did not return to the Prison. Unfortunately, the Superintendent instead of taking concrete and firm action in the matter imposed the burden on the representationist to approach the Officer-in-Charge, Namrup Police Station for the arrest of the convict. WP(C) 4761/2008 (taken up) 3. Three street roughs, namely, Babia, Bidhan and Sumon were found guilty of killing one TUTUN on the night of 14.11.1988. They were convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life by the learned Sessions Judge, Silchar in Sessions case No. 67/92. The judgment of conviction of sentence was delivered on 20.3.1996 and the same was affirmed by this Court vide judgment dated 19.8.1999 passed in criminal appeal No. 62/1996. According to the representation, the three criminals have been made the judiciary and Jail administration, a mockery, with their money power. The judgment of conviction of sentence was delivered on 20.3.1996 and the same was affirmed by this Court vide judgment dated 19.8.1999 passed in criminal appeal No. 62/1996. According to the representation, the three criminals have been made the judiciary and Jail administration, a mockery, with their money power. It is alleged that since 20.3.1996 and till the date of filling the representation (13 years), they were enjoying the well-furnished hospital beds and all amenities of luxury like TV, Video etc. and above all English drinks two times a day. It was further alleged that not for a single hour since 20.3.1996, the said convicts were put in jail barrack, where they should have been leaving aside the stipulation of rigorous imprisonment. According to the representation, the convicts come out at 8'O clock in the morning and move around freely threatening others who do not show respect to them and return to jail at 5'O clock in the evening. The representationist questioned as to why such privileges are not extended to other convicts. As per the allegation made in the representation, each one of the convict pays Rs. 5,000 per week to the Jail authorities for extending such benefits to them. Accordingly, a request was made in the representation to make an enquiry into the matter. Orders so far passed in the two writ petitions registered on the basis of the aforesaid two representations: WP (C) 3229/2007 (taken up) 4. The representation was entertained by order dated 27.6.2007 by way of issuance of notice asking the respondents to file affidavit. In the order passed thereafter on 10.9.2007 the fact stated in the representation was taken note of Referring to the affidavit dated 27.8.2007 filed by the Deputy Inspector General of Prisons. Shri Ramani Kanta Nath, it was observed that the most unfortunate part of the story is that as per the report furnished by the Superintendent of Central Jail Dibrugarh the convict was residing at Doomdoma with one Smt. Mamni soren thereafter the office of the Superintendent Central Jail. Dibrugarh sent a message to Doomdoma Police Station to apprehend the convict but the police took no initiative to re-arrest the convict. It was observed that if the allegations were established, the only inference that the court could draw is that there is complete breakdown in discharge of the constitutional obligations by the State. 5. Dibrugarh sent a message to Doomdoma Police Station to apprehend the convict but the police took no initiative to re-arrest the convict. It was observed that if the allegations were established, the only inference that the court could draw is that there is complete breakdown in discharge of the constitutional obligations by the State. 5. As recorded in the order dated 26.9.2007, an affidavit was filed by the Deputy Secretary to the Government of Assam, Home (B) Department, stating that the Home Department had taken up with utmost seriousness and earnestness the matter of re-capturing of the absconding convict Shri Pawan Garh of Dibrugarh Central Jail. It was also recorded that as per the affidavit, Shri P. Buragohain, the then Officer-in-Charge of Doomdoma Police Station, serving as SI in the State SB(Hq) Assam, Guwahati and Shri M.S. Sinha, ASI, the then ASI, Doomdoma PS, serving as ASI at Lekhapani Police Station under Tinsukia District were kept under suspension. By the said order, the Superintendent of Police, Tinsukia was directed to be present in the court on 4.10.2007. 6. On 4.10.2007, the said Superintendent of Police was present in the court and submitted status report relating to the case. As per the report, the message received from the Prison authority by the Officer in-Charge, Doomdoma PS dated 19.10.2005 was not brought to the notice of any superior officer and, therefore, no concrete action could be taken for apprehending the convict who violated the conditions of the order relating to parole. 7. In the order passed on 18.3.2008, direction was issued to complete the departmental proceeding against the erring officials as expeditiously as possible, preferably within a period of 8(eight) weeks from the date of the order. Direction was also issued to take all necessary steps for apprehending the convict. 8. In the order passed on 2.6.2008, the punishment imposed on the erring officials was noted. It was also noted that the convict who jumped the parole was not yet apprehended. On 20.3.2009, recording the issue involved as one of substantial public importance, a direction was issued to the Inspector General of Prisons and the Superintendent of Police, Tinsukia to report personally as to whether the release on parole of the life convict had the approval/sanction of the Sanctioning Authority i.e. the Inspector General of Prisons. On 25.3.2009, the I.G. of Prisons and the SP, Tinsukia were personally present in the court. On 25.3.2009, the I.G. of Prisons and the SP, Tinsukia were personally present in the court. The S.P. through his affidavit appraised the court that the application submitted by the life convict for release on parole/leave and the orders of the Inspector General of Prisons on the said application under the provisions of Assam Prisons (Leave and Emergency Release) Rules, 1968. Such release was for a period of 30(thirty) days up to 16.9.2005. Accordingly, it was noted that the release of the convict on parole was in accordance with the perceptions of the concerned authority, with regard to the purport of the rules in question. It was also noted in the said order that as per the affidavit filed, Smt. Mamoni Soren, with whom the life convict was allegedly living, is the wife of one Md. Imam Hussain and that there was no relationship between the life convict and said Smt. Soren. On contact, said Smt. Soren also could not give any clue with regard to the whereabouts of the escaped life convict. The order further recorded the information furnished by the S.P. that with regard to the whereabouts of the life convict, a case, i.e., Namrup PS Case No. 71/2007 under Section 384/506, IPC had been registered and the same was still under investigation. 9. However, in the order dated 8.4.2009, on perusal of the affidavit dated 1.4.2009 filed by the Superintendent of Police, Dibrugarh, the court expressed its shock and surprise to note that though the life convict Pawan Garh had jumped the parole as far back in 2005, no case in respect of the said event had been registered by the jurisdictional Police Station, though the fact in question was informed to all concerned. It was only recently that a police case, i.e., Namrup PS case No. 20/2009 under Section 224 IPC had been registered against the absconding convict. Directions were issued to make all out effort to apprehend the convict. The matter was taken up on 8.5.2009 and on perusal of the further affidavit filed by the SP, Dibrugarh, it was recorded that the steps taken to apprehend the absconding convict had been undertaken in the right earnest. The SP, Dibrugarh was directed to supervise the investigation. WP(C) 4761/2008 (taken up) 10. The matter was taken up on 8.5.2009 and on perusal of the further affidavit filed by the SP, Dibrugarh, it was recorded that the steps taken to apprehend the absconding convict had been undertaken in the right earnest. The SP, Dibrugarh was directed to supervise the investigation. WP(C) 4761/2008 (taken up) 10. The representation was admitted on 17.11.2008 with the direction to the learned District and Sessions Judge, Silchar to furnish a report relating to the incident. The report was submitted on 7.1.2009. Thereafter, the matter was taken up on 21.1.2009. It was recorded that the case is a classic demonstration of the pathetic state of affairs in enforcement of criminal law. Recording the substance of the facts narrated in the representation, the report furnished by the learned District and Sessions Judge, Silchar was also referred to. From the report, it was revealed that most of the times, the three convicts had been either in the jail hospital or in the Silchar Medical College and Hospital ('SMCH') They were also liberally granted leave from the prisons on various occasions. Referring to the case of Partha Pratim Nath, it was recorded that he was granted leave on 8 (eight) occasions in a period of 8(eight) years, commencing from 14.4.2001; on 7(seven) occasions leave of 30 (thirty) days each and on one occasion 60(sixty) days leave. The relevant portion of the report as quoted to the order is reproduced below: He was allowed emergency leave for a period of 60 days with effect from 14.4.2001 to 14.6.2001 as per the order of the Inspector General of Prisons vide order No. PRI 3/2001/24 dated 12.4.2001. He was again granted leave for 30 days with effect from 1.2.2002 to 14.3.2002 by order of the Inspector General of Prisons, Assam vide No. PRI 10/2002/8 dated 30.1.2002. He was granted emergency leave for 30 days with effect from 11.10.2002 to 10.11.2002 vide order No. PRI 10/2002/111 dated 13.6.2002 of the Inspector General of Prisons, Assam. He was granted leave again for 30 days with effect from 11.6.2003 to 12.7.2003 by the Inspector General of Prisons, Assam vide order No. PRI 10/2002/pt/359 dated 7.6.2003. He was again granted emergency leave with effect from 19.1.2004 for 30 days vide order of the Inspector General of Prisons, Assam vide No. PRI 10/2002/pt/280 dated 11.12.2003. He was granted leave again for 30 days with effect from 11.6.2003 to 12.7.2003 by the Inspector General of Prisons, Assam vide order No. PRI 10/2002/pt/359 dated 7.6.2003. He was again granted emergency leave with effect from 19.1.2004 for 30 days vide order of the Inspector General of Prisons, Assam vide No. PRI 10/2002/pt/280 dated 11.12.2003. He was granted emergency leave with effect from 20.1.2004 to 20.11.2004 for 30 days by the Inspector General of Prisons, Assam vide order No. PRI 4/2003/100 dated 8.9.2004. He was again granted leave for 30 days by the Inspector General of Prisons, Assam with effect from 23.1.2006 to 24.2.2006 vide order No. PRI4/2004/pt/469 dated 5.1.2006. He was lastly granted leave with effect from 1.7.2007 to 31.7.2007 for 30 days by the Inspector General of Prisons, Assam vide order No. PRI 20/2006/pt/98 dated 22.3.2007. He was released from Central Jail, Silchar on 28.2.2008. 11. It was found that same was the state of affairs in respect of other two convicts. It was also found that by a judicial order passed by the then Sessions Judge, Silchar in Misc. Case No. 119/2001 filed by the convicts, directed that the three convicts be treated as "B" Division Prisoners. The relevant portion of the order quoted in the order of this Court dated 21.1.2009 is reproduced below: I have gone through the relevant provisions and Rule of Jail Manual. Considering their social status, education, habits of life and the report of Superintendent of District Jail and the documentary evidence, regarding their educational career and Government Service, etc., on a perusal thereof, I think they may be classified into "B" Division prisoners. Accordingly, Superintendent of District Jail is directed to categorise the petitioners as "B" Division prisoners, subject to confirmation, if any by the Government concern. 12. In the order, it was recorded that the classification of the convicts as prisoners belonging to "B" Division was apparently made as per the provisions of the Assam Jail Manual, which recognises a convict to be classified as such on the basis of his social status, education or habits of life, etc. It was found that two of the three convicts had been released ostensibly in exorcise of the power under Section 2 of the Good Conduct Prisoners' Probational Release Act, 1938 of the State of Assam. Another convict, although was not yet released but was still continuing in the jail hospital. It was found that two of the three convicts had been released ostensibly in exorcise of the power under Section 2 of the Good Conduct Prisoners' Probational Release Act, 1938 of the State of Assam. Another convict, although was not yet released but was still continuing in the jail hospital. Regarding the preferential treatment received by each one of the three convicts at all levels, it was observed that the matter required a further probe. Prima facie, it was found that the release of the first two of the three convicts on LICENSE invoking the power under Section 2 of the Act of 1938 was unsustainable. The registry was directed to put the three convicts on notice on the pendency of the present proceeding, more particularly, "(1) calling for an explanation as to why the "LICENSE" referred to above in the case of the first two of the three convicts should not be quashed, (2) as to why the classification of "B" Division prisoners granted in their favour earlier should not be recalled and (3) whether their continuous stay in the hospital as indicated in the report of the learned Sessions Judge, Silchar is justified, if not what further action under the law is required to be taken against them and whether the period of their stay in the hospital be treated as period of imprisonment undergone". 13. By the said order, direction was also issued to put the Medical Officers attached to the Central Jail, Silchar who had certified that the three convicts be permitted to stay in the hospital from time to time, to show cause as to why appropriate action against them should not be initiated. Direction was also issued to forthwith apprehend the two convicts and lodge them in the Central Jail, Silchar. 14. The matter was taken up on 29.1.2009 and it was informed that the two convicts who had been released on License had again been arrested and lodged in Central Jail, Silchar. The further information furnished by the Superintendent, Central Jail, Silchar was to the effect that one Dr. Amaresh Das, Medical & Health Officer-1 attached to the Jail had been working there from 1983 uninterruptedly. The further information furnished by the Superintendent, Central Jail, Silchar was to the effect that one Dr. Amaresh Das, Medical & Health Officer-1 attached to the Jail had been working there from 1983 uninterruptedly. It was found that it was the said Doctor on whose opinion, the convicts had always been lodged in the jail hospital, notwithstanding the fact that they were convicted for the offence under Section 302, IPC and were directed to undergo Rigorous Imprisonment for life. Accordingly, direction was issued that the said Doctor (Dr. Amaresh Das) be made party respondent to the writ petition and he was put on notice of the pendency of the present proceeding. 15. By orders dated 27.2.2009 and 25.3.2009, time was granted to the convicts to file their affidavits. While hearing the matter on 8.4.2009, it was felt necessary to have the records showing the decision making process leading to the release of the life convicts Shri Partha Pratim Nath @ Babla, Parijat Kusum Nath @ Bidhan and Shri Sumon Nath, on paroles as per the provisions of Assam Prisons (Leave and Emergency Release) Rules, 196. Accordingly, direction was issued. Direction was also issued to the Health Department to appraise the Court as to under what circumstances, the respondent No. 8 Dr. Amaresh Das had been allowed to work in the hospital attached to the Silchar Central Jail continuously and uninterruptedly from the year 1983. 16. On 9.4.2009, the records produced by the learned State Counsel with regard to the grant of leave to the convicts had been perused. The records were allowed to be inspected by the learned Counsel for the convicts. The said records revealed that the convicts were brought to the jail to serve the life sentence imposed on them and on numerous occasions, they had been lodged either in the jail hospital or had been referred to the SMCH. The records also revealed that the two life convicts, namely, Partha and Parijat had spent long periods as indoor patients either in the jail hospital of the Central Jail, Silchar or in the SMCH. 17. On perusal of the records produced by the learned Standing Counsel, Health, the court noticed that there was no cogent explanation whatsoever for the continuous retention of the respondent No. 8 in the jail hospital for a period of 26 years. 17. On perusal of the records produced by the learned Standing Counsel, Health, the court noticed that there was no cogent explanation whatsoever for the continuous retention of the respondent No. 8 in the jail hospital for a period of 26 years. Accordingly, direction was issued for immediate transfer of the respondent No. 8 out of the jail hospital. 18. By order dated 3.6.2009, having regard to the importance of the matter, Mr. N. Dutta, learned senior counsel, was requested to act as amicus curiae and he readily agreed to render assistance to the court. Mr. Dutta was requested to address the court with regard to the provisions of the Assam Prisons (Leave and Emergency Release) Rules, 1968 (as amended in 1986) and to Good Conduct Prisoners' Probational Release Act, 1938 as well as the procedure adopted in the present two cases for release of prisoners under the provisions of 1968 Rules and for grant of License under the provisions of 1938 Act. 19. After the aforesaid orders passed in the proceeding, both the matters were heard at length on 30.10.2009 and the learned State Counsel as well as learned Standing Counsel, Health were directed to furnish the following informations: 20. State Counsel (i) Particulars of convicts covered by offences mentioned in Section 433ACr.PC, who have been released on LICENSE granted under the Provisions of the 1938 Act for the period commencing from 1.1.2001. (ii) The number of persons released under the 1968 Rules was have not reported to Jail after completion of the period of leave granted. The figures to be provided was for the period commencing from 1.1.2001. (iii) The reasons showing the decision making process leading to grant of leave to the convicts under 1968 rules (as amended in 1986) and the file showing the decision making process leading to grant of License for release of convict Partha Pratim Nath. 21. Standing Counsel. Health (i) The file showing the reasons why the transfer of Dr. Amaresh Das from the jail hospital, District Central Jail, Silchar to North Cachar Hills, had been modified. Be it stated here that although Dr. Das was initially transferred to North Cachar Hills pursuant to the order passed by this Court but latter on, the same was modified. (ii) The circumstances in which Dr. Das was permitted to work in the jail hospital, District Jail, Silchar uninterruptedly from the year 1983. Be it stated here that although Dr. Das was initially transferred to North Cachar Hills pursuant to the order passed by this Court but latter on, the same was modified. (ii) The circumstances in which Dr. Das was permitted to work in the jail hospital, District Jail, Silchar uninterruptedly from the year 1983. The file relating to proposal for transfer of Dr. Das, if any, made during the period from 1983 to 2008 was also directed to be produced. (iii) The circumstances in which the third person involved in the proceeding, i.e., Shri Sumon Nath has been allowed to work as Attender in the Jail hospital, District Jail, Silchar continuously from 1989 and the reasons for not posting qualified Attender in the jail Hospital. 22. Be it stated here that while two of the three convicts had been allowed to go on License/Leave, etc., and also were allowed to remain in jail hospital and SMCH, the 3rd convict was engaged as Attender in the jail hospital and, thus, he could remain out of the jail without undergoing the Rigorous imprisonment for life in its true sense. 23. The respondents State by its applications dated 7.11.2009 (MC 2872/2009 and MC 2873/2009) prayed for some more time (two weeks) to produce/furnish records in terms of the aforesaid order passed on 30.10.2009. It was only thereafter the State produced the records on 20.11.2009. 24. We have heard Mr. N. Dutta, learned senior counsel appearing as amicus curiae as well as Mr. A.K. Phukan, learned Advocate General, Assam. We have also heard Mr. A.K. Bhattacherjee, learned senior counsel assisted by Mr. D. Mazumdar, representing the convicts. The respondent No. 8 was represented by Mr. R.P. Kakoti, learned Advocate. 25. Mr. Dutta, learned amicus curiae, submitted that the provisions contained in Rule 3 of the Assam Prisoners' (Leave and Emergency Release) Rules, 1968 to the effect that "Notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (now Section 432 of the Code of Criminal Procedure, 1973), the prisoner may be granted leave or emergency release by the sanctioning authority" is opposed to Article 254(2) of the Constitution read with the Proviso thereto. He further submitted that the provisions of Good Conduct Prisoners' Probational Release Act, 1938 and the Rules framed thereunder contain separate provisions for release of Prisoners sentenced to imprisonment and the benefits there under are somewhat larger than the benefits conferred by the 1968 rules. According to him, there are no guidelines as to how identification of the cases to be dealt with under the two separate enactments is to be made. According to Mr. Dutta, this may have the affect of rendering both the enactments constitutionally invalid being hit by Article 14 of the Constitution. 26. Mr. A.K. Phukan, learned Advocate General, Assam, submitted that the release of prisoners is guided by certain factors, namely, antecedents, good conduct in prison and likelihood of not repeating the offending acts and also the nature of the offence etc. According to the learned Advocate General, it cannot be said that the power to release is unguided. He further submitted that the discretion of the Government cannot be hold to be unlimited, inasmuch as, no release can be made under License arbitrarily. According to him, the 1938 Act and 1968 Rules operate in two distinct and separate spheres and as such, there cannot be any challenge on the ground that the said enactments are violative of the equality clause. He also submitted that the release under the rules framed under 1938 Act or under the 1968 Rules does not interfere with the sentence and the said rules are not contrary to Section 401, Cr.PC, 1898 or Section 432 of Cr.PC, 1973. Mr. Phukan, learned Advocate General also argued on the theory of reformation in the context of prison reform. 27. Mr. A.K. Bhattacharyya, learned senior counsel appearing for the life convicts generally adopting the arguments advanced by the learned Advocate General submitted that irrespective of the results of the instant proceeding, the benefit already granted in favour of the convicts may not be withdrawn. He further submitted that the convicts may not be transferred from the Central Jail, Silchar as their children are at Silchar. 28. We have given our anxious consideration to the submissions made by the learned Counsel for the parties and the entire materials on records. 29. He further submitted that the convicts may not be transferred from the Central Jail, Silchar as their children are at Silchar. 28. We have given our anxious consideration to the submissions made by the learned Counsel for the parties and the entire materials on records. 29. Under Section 2 of the Good Conduct Prisoners' Probational Release Act, 1938, the State Government may grant leave by License to a person under a sentence of imprisonment for such period as may be specified in the License and for such purposes as may be prescribed by rules made under the Act, on being satisfied, after taking into consideration his antecedents, conduct in prison, nature of the offence and the manner in which he committed it, that he is, if released from prison, not likely to commit a crime within the period of leave. Section 3 prescribes that a License granted under Section 2 shall be in force until the date on which the person released would, in the execution of the order or warrant authorising his imprisonment, have been discharged from prison had be not been released on License or until the License is revoked whichever is sooner. 30. Section 4 of the Act provides that the period during which a person is absent from prison under the provisions of the Act on a License which is in force shall be reckoned as a part of the period of imprisonment to which he was sentenced, for the purpose of computing the period of his sentence. As per the Explanation to Section 4 any period of remission earned under the existing rules while undergoing imprisonment shall be added to the period actually served in jail when computing the total period of prisoner's sentence. Section 6 gives the State Government power to revoke the License. 31. As per the provisions of Section 7, rules have been framed which was published in the Assam Gazette part-II dated 31.3.1943. Rule 2 of the Rules reads as follows: 2. Section 6 gives the State Government power to revoke the License. 31. As per the provisions of Section 7, rules have been framed which was published in the Assam Gazette part-II dated 31.3.1943. Rule 2 of the Rules reads as follows: 2. No order shall be passed to grant a license for the release of any prisoner unless either - (a) he is placed under the supervision or authority of a servant of the Government, or (b) he is placed under the supervision or authority of a secular Institution or Society which has already been notified by Government as being approved as a suitable body to act as a guarantor for released prisoners, or (c) the guarantor is a Society or Institution about which a report in Form A annexed to these Rules has been received from the Deputy Commissioner of the District where the Institution or Society proposes that the prisoner on release should reside while under their supervision or authority and the State Government is satisfied that the Society or Institution is suitable one to become a guarantor, or (d) the guarantor is a person about whom a report in Form B annexed to these Rules has been received from the Deputy Commissioner of the District where the guarantor ordinarily resides and the State Government is satisfied that he is a suitable person to become a guarantor. 32. Rule 3(a) makes provisions for an application for Probational Release of Prisoner under the Act and the same is to contain the particulars, such as: (i) The number and year of the case in which the prisoner was convicted. (ii) The date of conviction. (iii) The name of the court by which convicted, and (iv) The jail in which he is at the time of the application confined. 33. Rule 3(b) requires the satisfaction of the State Government that the conditions of Rule 2 have been fulfilled and it is only upon such satisfaction that a report shall be called for from the Deputy Commissioner of the District in which the prisoner was convicted in Form-C annexed to the rules. The proviso to Rule 3(b) provides that no action shall be taken on such application if the prisoner has been convicted of having committed dacoity. The proviso to Rule 3(b) provides that no action shall be taken on such application if the prisoner has been convicted of having committed dacoity. The rule further provides that unless the circumstances of the case are exceptional, no action will be taken on the application unless the prisoner was less than 21 years of age at the time of his conviction, or being 21 years or more at the time of his conviction, has served 1/3rd of the term of his sentence of imprisonment, exclusively of any remission earned. Under Rule 4 it is only after considering the report in Form "C", that the State Government may pass orders releasing the prisoner by License as in Form "D" annexed to the rule with or without a bond from the Guarantor; provided that the prisoner gives an undertaking to conform to the terms of his License. 34. Rule 7(2) provides that the period during which a person is absent from prison within the meaning of Section 4 of the Act shall be the period from the date of the original release of the prisoner until the date of which the order of revocation is served. 35. The Assam Prisons (Leave and Emergency Release) Rules, 1968, has been framed under Clause "5 and 28" of Section 59 of the Prisons Act, 1894. Rule 3 mentions the Sanctioning Authority and provides that subject to the provisions of the Rules and notwithstanding anything contained in Section 401 of the Code of Criminal Procedure, 1898 (Now 432 under Code of Criminal Procedure, 1973), a prisoner may be granted leave or emergency release by the Sanctioning Authority. Under definition 2(c), Sanctioning Authority means the Inspector General of Prisons or a Joint inspector General of Prisons (Hqrs.) when the former is out of Headquarters. Section 2(a) defines emergency release as temporary release of a prisoner that may be granted on grounds of emergency like death or serious illness of father/mother/father-in-law/mother-in-law, Uncle, Aunt/Brother/Sister/Spouse/Children or marriage of son, daughter and brother/sister, etc. The term leave has been defined under Section 2(c) of the Rules, which means a concession of temporary release that may be granted to a prisoner. 36. The term leave has been defined under Section 2(c) of the Rules, which means a concession of temporary release that may be granted to a prisoner. 36. Rule 4 prohibits grant of leave/release in respect of the categories of prisoners' mentioned therein, which are as follows: (i) Offenders classified as habituals; (ii) Prisoners sentenced under Sections 392 to 402 of the Indian Penal Code; (iii) Prisoners whose release is considered dangerous or prejudicial to public peace and tranquillity by the district Magistrate/superintendent of Police; (iv) Prisoners who are considered dangerous, or who are involved in serious prison violations like assault, outbreak, riot, mutiny, escape, instigation to serious violations, strike, etc.; Note - In case of prisoners mentioned in (iv) the Inspector-General of Prisoners will pass orders debarring them from concessions of leave. (v) Prisoners transferred to special prisons on disciplinary grounds, for the period of their incarceration in such prisons; (vi) Prisoners committed to prisons in default of furnishing security to keep the peace or be of good behaviour; (vii) Prisoners suffering from unsoundness of mind or contagious diseases, Note - In case of prisoners mentioned at (vii) the eligibility may be decided in accordance with the opinion of the Civil Surgeon. (viii) Prisons convicted of offence under Assam Opium Prohibition Act; (ix) Prisoners or class of prisoners whose leave or Emergency release is not permitted under special or general orders of the Government. 37. Laying down the procedure for application, Rule 7 provides that the Jail Superintendent shall examine the cases of each prisoner who is eligible for leave and find out whether the prisoner is fit for being released on leave. The cases are to be considered on the following points. (b) Conduct, (c) Work, (d) Progress achieved in various spheres, (e) Efforts for introspection and self improvement, (f) Attitude towards family and community, (g) The manner in which previous period of leave or emergency release was utilised; such examination shall be completed at-least before 60 days of the date on which a prisoner becomes eligible for leave. 38. (b) Conduct, (c) Work, (d) Progress achieved in various spheres, (e) Efforts for introspection and self improvement, (f) Attitude towards family and community, (g) The manner in which previous period of leave or emergency release was utilised; such examination shall be completed at-least before 60 days of the date on which a prisoner becomes eligible for leave. 38. Under Rule 7(iv), a copy of the application shall be retained in the office of the Superintendent of Jails and other two copies together with the descriptive role of the prisoners shall be forwarded respectively to the Inspector General of Prisons and Superintendent of Police, indicating the due date of release as well as the date on which the final recommendation of the District Magistrate should be received so as to enable the Superintendent of Jail to obtain orders of the Sanctioning Authority before the due date for release. The Superintendent of Police in his turn shall forward the application to the District Magistrate alongwith the requisite information and his recommendations. If the Superintendent of Police does not recommend release on leave, detail reasons thereof shall be given by him. The District Magistrate is to forward the requisite information alongwith his recommendations to the Inspector General of Prisons. If the recommendations are not received by the Inspector General of Prisons within the specified date, it shall be presumed that the application is recommended and that that relative or friend of the prisoner is willing to accept him during the leave. 39. Under Rule 8 of the Rules, if on receipt of the recommendations of the District Magistrate, the Inspector General of Prison is satisfied that there is no objection to grant the leave applied for, he shall make an order for release of the Prisoner on leave for 14 days and suspension of the execution of sentence on such conditions as may be specified in the order. The following conditions are required to be specifically laid down in addition to such other conditions, if any, and as may be deemed necessary. (a) That the prisoner shall give cash security for the amount ordered by the Inspector-General of Prisons or execute a personal recognizance bond or execute a bond with sureties, according to the directions of the Inspector-General of Prisons (in the prescribed forms as in Appendix 'D' and 'E'). (a) That the prisoner shall give cash security for the amount ordered by the Inspector-General of Prisons or execute a personal recognizance bond or execute a bond with sureties, according to the directions of the Inspector-General of Prisons (in the prescribed forms as in Appendix 'D' and 'E'). (b) That the said prisoner shall reside at the place designated by the Inspector-General of Prisons and shall not go beyond the limits of that place. (c) That the said prisoner shall be of good behaviour and shall not commit any offence. (d) That the prisoner shall contact the Probation Officer or the Aftercare Officer, if any of the area where he will be staying. (e) That the prisoner shall not associate with bad characters or lead a dissolute life. (f) That the prisoner shall be liable to be recalled immediately to prison in case he violates any of the conditions. (g) That the prisoner shall surrender himself to the Superintendent of the Jail on expiry of the leave period or on recall. 40. Rule 14 provides for emergency release which the Sanctioning Authority may subject to Rule 15 grant to a prisoner on the following grounds: 14. Emergency release. - The sanctioning authority may subject to the provisions of Rule 15 grant emergency release to a prisoner on the following grounds: (i) to facilitate the inmate's presence in his family during a period of grave emergency like death or serious illness of father/mother/brother/sister/spouse/children; (ii) to facilitate the inmate in specialized treatment for diseases like tuberculosis, cancer, etc., in accordance with the opinions of the prison Medical Officer to be approved by the Civil Surgeon. (iii) To facilitate attending the marriage ceremony of his daughters, sons, brothers and sisters. 41. Rule 15 reads as follows: 15. Prisoners who are eligible for release on leave shall ordinarily be considered as eligible for emergency release. Under very special circumstances Government may consider emergency release on such conditions as may be deemed necessary according to the requirements of each individual case of other category of prisoners who are not eligible for release on leave. 42. While Rule 16 lays down the procedure for obtaining release, Rule 17 imposes the conditions of emergency release. For a ready reference, they are quoted below: 16. 42. While Rule 16 lays down the procedure for obtaining release, Rule 17 imposes the conditions of emergency release. For a ready reference, they are quoted below: 16. Procedure for obtaining A release.- A prisoner who desires to be released for emergency purposes shall submit his application in the prescribed form as in Appendix 'C' to the Superintendent of the Jail who shall endorse his remarks thereon and forward the same direct to Inspector-General of Prisons along with the descriptive roll. In case of prisoner required to be released for medical reasons, a certificate from the prison Medical Officer to be countersigned by the Civil Surgeon shall be attached to the application. A copy of this application shall be sent to the Inspector-General of Prisons. Prisoner who applies for emergency release on false grounds or who abuses the concession or commits breaches of any of the conditions of emergency release shall be liable to be punished. 17. Conditions of emergency release. The sanctioning authority shall grant such release to a prisoner subject to his executing a personal bond in the prescribed form as in Appendix 'E' or furnishing case security in the proscribed form as in Appendix 'H' appended to these rules and also subject to a surety executing a bond, in Form 'G' appended to these rules if so required. The release may further be subject to any of the following conditions: (i) that the prisoner shall reside at the place to be designated by the Inspector-General of Prisons or the government, as the case may be, during the period of emergency release and shall not go beyond the limits of the said place without the permission of the District Magistrate/Sub-divisional Magistrate. (ii) that the prisoner shall be of good behaviour and shall not commit any offence punishable by or under any law in force in India. (iii) That the prisoner shall not associate with bad character or lead a dissolute life. (iv) That the prisoner shall surrender himself to the Superintendent of Jail on expiry of the period of emergency release. (v) That the prisoner shall be immediately recalled to prison in case of violation of conditions. (vi) That the prisoner shaft stay in a T.B. Sanitorium of hospital or any other specified place, as the case may be, in the interest of his health, if so required. 43. (v) That the prisoner shall be immediately recalled to prison in case of violation of conditions. (vi) That the prisoner shaft stay in a T.B. Sanitorium of hospital or any other specified place, as the case may be, in the interest of his health, if so required. 43. Certain changes have been brought about in the rules of 1968 by the first amendment Rule 1986 issued vide notification dated 1.9.1986. The main changes which were circulated by letter dated 29.10.1986 issued by the Inspector General of Prisons, Assam to all Superintendent of Jails, Lock-ups in Assam are as follows: (i) Police Report is not necessary for leave or emergency release (except in the cases of those convicts whose ordinary place of residence is outside the State of Assam); (b) Convicts enlarged on leave or emergency release are entitled to passage warrant/fare and diet money for journey from the prison and also passage warrant/fare for return journey to the prison; (c) The quantum of leave is enhanced from 14 days to 20 days in case of first release and 30 days in case of subsequent release; (d) The second and subsequent leaves become due only 1 year after the last return from leave; (e) Only Personal Bond is necessary for leave as well as emergency release (except when emergency release is granted before availing of the first leave, in which case Surety Bond will be necessary in addition to Personal Bond). 44. As per the said amendment, Rule 4(iii) stands deleted. Under Rule 6, the period of 14 days has been substituted by 20 days in case of first release and 30 days in case of subsequent release. 45. As a consequence of the aforesaid amendment, Rule 8 also stands amended as follow: If on receipt of the application with the recommendation of the Superintendent of Jail concerned and, in case of prisoner whose ordinary place of residence is outside the State of Assam, also the recommendation of the Superintendent of Police, the Inspector General of prisons is satisfied that there is no objection to grant the leave applied for, he shall make an order for release of the prisoner on leave for twenty days (in case of first release) or thirty days (in case of subsequent release) and suspension of the execution of sentence on such conditions as may be specified in the order. The following conditions shall invariably be laid down in addition to such other conditions, if any, as may be deemed necessary. (a) That the prisoner shall execute personal recognisance in the prescribed form as in Appendix 'E' to these Rules. (b) That the said prisoner shall reside at the place designated by the Inspector General of Prisons and shall not go beyond the limits of that place. (c) That the said prisoner shall be of good behaviour and shall not commit any offence. (d) (deleted) (e) That the prisoner shall not associate with bad characters or lead a dissolute life. (f) That the prisoner shall be liable to be recalled immediately to prison in case he violets any or the conditions. (g) That the prisoner shall surrender himself to the Superintendent of the Jail on expiry of the leave period or on recall. 46. Rules 13, 14 and 15 have been amended as follows: 13. A leave (and emergency release) register with prescribed form as in (Appendix 'B') showing details of applications for leave, dates of orders, dates of release and surrender, etc., shall be maintained. 14. Emergency release: The sanctioning authority may subject to the provisions of Rule 15 grant emergency release (not exceeding thirty days including any extensions) to a prisoner on the following grounds: (i) to facilitate the inmate's presence in his family during a period of grave emergency like death or serious illness of father/mother/brother/sister/spouse/children. (ii) to facilitate the inmate in specialised treatment for diseases like tuberculosis, cancer, etc., in accordance with the opinions of the prison Medical Officer to be approved by the Civil Surgeon; (iii) to facilitate attending the marriage ceremony of this daughters, sons, brothers and sisters. 15. Prisoners who are eligible for release on leave shall ordinarily be considered as eligible for emergency release. The sanctioning authority may, if he considers it necessary, grant emergency release to a prisoner of this category even fore his availing of the first leave, subject to the execution of a bond by a surety in addition to the execution of a personal bond by the prisoner. Under very special circumstances, Government may consider emergency release on such conditions as may be deemed necessary according to the requirements of each individual case of other category of prisoners who are not eligible for release on leave. 47. Under very special circumstances, Government may consider emergency release on such conditions as may be deemed necessary according to the requirements of each individual case of other category of prisoners who are not eligible for release on leave. 47. So far as Rule 17 is concerned, under amended Rules, the sentencing authority may grant emergency release to a prisoner subject to executing a personal recognisance bond in the prescribed format as in Appendix "E" and in case of emergency release granted to a prisoner before his availing of the first leave also subject to a security executing bond in the prescribed format as in Appendix "D" to the Rules. 48. By the amendment, Rule 21 has been added as follows: 21. Journey: A prisoner, at the time of release on leave or emergency release shall be given passage warrant/fare and diet money as on release on expiry of sentence for his journey from the prison and also passage warrant/fare for his return journey to the prison on expiry of leave or emergency release. 35. Appendix "A" Rule 6(i) with the amendment stands as follows: APPENDIX A [Rule 6(1)] 18 19 20 Sentence including sentence in default of payment of fine When for first release on leave When due for and subsequent release Exceeding one year but not exceeding five year On completion of one year of actual imprisonment to be counted from the date of admission to prison After completion of one year of actual imprisonment to be counted from date of his last return from leave Exceeding five years but nut exceeding fourteen years One completion of two years of actual imprisonment to be counted from the date of admission to prison After completion of one year of actual imprisonment to be counted from date of his last return from leave Prisoners sentenced to life imprisonment and to periods of imprisonment exceeding fourteen years One completion of three years of actual imprisonment to be counted from the date of admission to prison After completion of one year of actual imprisonment to be counted from date of his last return from leave 49. Having noted the relevant provisions of the aforesaid Act of 1938 and the Rules framed thereunder as well as the provisions of the Assam Prisons (Leave and Emergency Release) Rules, 1968, as amended, as amended in 1986, we may now proceed to appreciate the submissions advanced by Shri N. Dutta, the learned Amicus Curiae. Shri Dutta has submitted that by Rule 3 of the 1968 Rules (as amended), the provisions thereof are to have effect notwithstanding anything contained in Section 432 of the Code of Criminal Procedure, 1973. Such a situation, according to Shri Dutta, is contrary to the provisions of Article 254 of the Constitution inasmuch as the provisions of the Code of Criminal Procedure is a Central enactment whereas the 1968 Rules, as amended in 1986, is an exercise by the State authority under the provisions of the Prisons Act, 1894. Shri Dutta has further submitted that leave or emergency release of a prisoner cannot be made by overriding the provisions contained in Section 432 and other relevant provisions of the Code of Criminal Procedure. Shri Dutta has further submitted that the deletion of the specific provisions contained in the 1968 Rules by the amendment of the Rules made in the year 1986, has the effect of overriding certain inbuilt restrictions in grant of leave or emergency release of prisoners and further that by virtue of such amendment the power to grant leave or emergency release is capable of being exercised in a arbitrary manner. Referring to the facts and circumstances surrounding the grant of leave or emergency release or even on licence granted under the Act of 1938 in the cases appearing from the materials laid before the court including the cases of the convicts involved in the present case, Shri Dutta has submitted that such release of convicts including those involved in the present case have been made mechanically and the actions in question do not reflect acceptable Government decisions in the matter. Shri Dutta further submitted that the Act of 1938 cannot have any application to release of life convicts unless the sentence of life imprisonment is commuted to a specific period which under Section 433A of the Code of Criminal Procedure cannot be less than 14 years. Shri Dutta further submitted that the Act of 1938 cannot have any application to release of life convicts unless the sentence of life imprisonment is commuted to a specific period which under Section 433A of the Code of Criminal Procedure cannot be less than 14 years. In this regard Shri Dutta has submitted that the general perception that life sentence is for a duration of 14 years or 20 years, as may be, is not correct. In this regard Mr. Dutta has placed reliance on the judgments reported in Gopal Vinayak Godse v. State of Maharashtra AIR 1961 SC 600 ; Md. Munna v. Union of India AIR 2005 SC 3440 and Saibanna v. State of Karnataka (2005) 4 SCC 165 . 50. In Gopal Godse (supra) dealing with the question whether there is any provision of law whereunder a sentence for life imprisonment without any formal remission by appropriate Government can be automatically treated as one of a definite period, it was held that no such provision is found in the IPC, Cr.PC or Prisons Act. In paragraph 5 of the judgment the Apex Court quoted the observation of the Judicial Committee of the Privy Council in Kishori Lal v. Emperor AIR 1945 PC 64 which is reproduced as follows: Assuming that the sentence is to be regarded as one of twenty years, and subject to remission for good conduct, he had not earned remission sufficient to entitle him to discharge at the time of his application and it was, therefore, rightly dismissed, but in saying this, their Lordships are not to be taken as meaning that life sentence must in all cases be treated as one of not more than twenty years, or that the convict is necessarily entitled to remission. 51. Referring to the earlier provision relating to transportation for life, it was observed that same could be undergone by a prisoner by way of rigorous imprisonment for life in a designated prison in India. Such convict was to be dealt with in the same manner as one sentenced to rigorous imprisonment for the same term. It was observed that unless the said sentence is commuted or remitted by an appropriate authority under the relevant provisions of IPC or Cr.PC, the prisoner sentenced to life imprisonment is bound in law to serve life term in prison. It was observed that unless the said sentence is commuted or remitted by an appropriate authority under the relevant provisions of IPC or Cr.PC, the prisoner sentenced to life imprisonment is bound in law to serve life term in prison. As regards the position relating to earning of remission-Ordinary, Special and the State under the Rules framed under the Prisons Act, it was held that the said remission would be credited towards the convict's term of imprisonment. As regards the purpose of working out the remissions, it was observed that the sentence of transportation for life is ordinarily equated with a definite period, but it is only for that purpose and not for any other purpose. It was further observed that as transportation for life or its prison equivalent, the life imprisonment, is one of the indefinite duration, the remission so earned do not in practice help such convict and it is not possible to predicate the time of his death. Having observed thus, it was further observed as follows: ...That is why the rules provide for a procedure to enable the appropriate Government to remit a sentence under Section 401 of the Cr.PC on a consideration of relevant factors including the period of remission earned. The question of remission is exclusive within the province of the appropriate Government and in this case it is admitted that, though appropriate Government made certain remission under Section 401 of the Cr.PC, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release. (emphasis added) 52. In the aforesaid case it was argued by the petitioner that if the amount of remission earned was added to the term of imprisonment the petitioner had actually served, the aggregate would exceed 20 years, and even if the State remission was added to it, it would exceed 15 years. Thus, the claim of the petitioner was that he should be set at liberty forthwith. The State while conceding that the petitioner had earned remission amounting to 2963 days, it was contended that remission earned did not entitle the petitioner to be released. 53. In Md. Munna (supra), the Apex Court held that "imprisonment for life" is to be treated as "rigorous imprisonment for life". The State while conceding that the petitioner had earned remission amounting to 2963 days, it was contended that remission earned did not entitle the petitioner to be released. 53. In Md. Munna (supra), the Apex Court held that "imprisonment for life" is to be treated as "rigorous imprisonment for life". It has further been held that life imprisonment is not equivalent to the imprisonment for 14 years or for 20 years as was contended by the petitioner. As in the case of Gopal Godse (supra), in this case also the petitioner had contended that he was liable to be released from jail on completion of 20 years. In paragraph 17 of the judgment the Apex Court further observed, thus: 17. The Prisons Rules are made under the prisons Act and the Prisons Act by itself does not confer any authority or power to commute or remit sentence. It only provides for the regulation of the prisons and for the terms of the prisoners confined therein. Therefore, the West Bengal Correctional Service Act or the West Bengal Jail Code do not confer any special right on the petitioner herein. 54. In Saibanna (supra) dealing with the term "life imprisonment" it has been held that a prisoner sentenced to life imprisonment is bound to serve the remainder of his life in prison unless the sentence is commuted or remitted and that such sentence cannot be equated with any fixed term. Having regard to the said settled position of law regarding life imprisonment it was observed that there could be no imposition of second life term on the appellant as it would be a meaningless exercise. 55. Section 432, Cr.PC gives the power to suspend or a remit sentence under which when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any condition which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. Laying down the procedure to that end Section 432(2) provides that whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the court before or by which the conviction was, had or confirmed, to sate his opinion as to whether the application should be granted or refused, together with his reasons for such opinion and also to forward with the statement of such opinion a certified copy of the record of the trial or of such record thereof as exists. 56. Section 433, Cr.PC gives power to commute sentence under which appropriate Government may, without the consent of the person sentenced, commute - (a) a sentence of death, for any other punishment provided by the IPC; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine, etc. Section 433A puts restriction on power of remission or commutation in certain cases. 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. 57. It will be appropriate, at this stage, to refer to the remission system under the Rules made by the State Government under Section 59(5) of the Prisons Act 1894. Under Rule 326 appropriate Government means the Government of the State within which the sentence is awarded on conviction. Rule 326(f) defines "life sentence" as a sentence of imprisonment for life; "life convict" means a prisoner sentenced to imprisonment for life and "imprisonment for life" to be an imprisonment for the entire life of the prisoner, unless remitted earlier by the appropriate Government. In the instant case, no such remittance has been granted in favor of the convicts. Rule 326(f) defines "life sentence" as a sentence of imprisonment for life; "life convict" means a prisoner sentenced to imprisonment for life and "imprisonment for life" to be an imprisonment for the entire life of the prisoner, unless remitted earlier by the appropriate Government. In the instant case, no such remittance has been granted in favor of the convicts. However, the jail authorities of their own have worked out such remissions so much so that the dates of release of the 2 convicts have been indicated in advance as 30.3.2015 and 8.1.2012 indicating the further period of sentence as 7 years 10 months 26 days and 3 years 11 months 14 days respectively. 58. Let us now examine the stand of the respondents as reflected in their counter affidavits. In the affidavit filed by the Inspector General of Police, Assam it has been stated that after 1.1.2006, altogether 13 convicts have been enlarged on premature conditional release by license under Good Conduct and Prisoners' Probational Release Act, 1938. Necessary particulars of the convicts have also been indicated vide Annexures I to XV. The 13 convicts include 2 of the 3 convicts involved in WP(C) (taken up) 4761/08. They are Partha Pratim Nath @ Babla Nath and Parijat Kusum Nath @ Bidhan Nath. As per the report of the District Judge, Cachar, Silchar as was called for by this Court, the third convict, namely Suman Nath has been kept in the Jail Hospital w.e.f. 1.10.2002 as an attendant as per the order dated 1.10.2002 passed by the Superintendent of Central Jail, Silchar. 59. As regards the release of the other two convicts, it is the stand in the affidavit that the Superintendent of Central Jail, Silchar submitted a proposal for premature conditional release of both the convicts. Such reports were furnished on 5.5.2007 and 24.4.2008 respectively. As per the report so furnished supported by certificate furnished by the Health and Medical Officer, of the Jail, i.e., respondent No. 8, both the convicts were suffering from certain ailments having serious potential at any time. It was also stated by the Superintendent of Central Jail, Silchar that the conduct of the convicts was good during their confinement and that if they were to be released it would not be harmful for the society. It was also stated by the Superintendent of Central Jail, Silchar that the conduct of the convicts was good during their confinement and that if they were to be released it would not be harmful for the society. On the basis of such reports, the Inspector General of Prisons vide her letters dated 20.7.2007 and 11.6.2008 respectively moved the Government for necessary orders for premature release of the convicts granting necessary license under 1938 Act. Reacting to the said proposal, the Government by its orders dated 27.2.2008 and 1.10.2008 allowed the premature release of the convicts under license. However, they have been taken into custody and readmitted to jail on 22.1.2009 and 23.1.2009 respectively pursuant to order passed by this Court on 21.1.2009 for their readmission in jail. The documents annexed to the affidavits would go to show that the Superintendent of Central Jail, Silchar has already worked out the purported remission earned by both the convicts and their dates of release. As per the calculation made by the Superintendent of Central Jail, Silchar the remission earned by Partha Pratim Nath is 1344 days and by Parijat Kusum Nath is 1830 days. On the basis of the said calculation, the dates of release of the said two convicts and the purported unexpired period of sentence had already been worked out by the prison authorities, as already noted. 60. As per the affidavit filed by Shri H.K. Saloi, ACS who was the Deputy Secretary to the Government of Assam, Home (B) Department at the relevant time under whose signature the premature conditional release of Partha Pratim Nath was issued, on receipt of the proposal from the Inspector of Prisons from the Inspector General of Prisons vide letter dated 20.7.2007 the matter was referred to Judicial Department for its views. The Judicial Department approved the same and thereafter the matter was placed before the Principal Secretary, Home Department for endorsing the file to the Minister of Jail, Government of Assam who in turn approved the release. 61. Another affidavit filed is by Shri M.N. Buragohain holding the post of Officer on Special Duty to the Government of Assam, Home (B) Department. In the said affidavit it has been stated that the case of life convict of Shri Parijat Kusum Nath @ Bidhan Nath was processed by Shri S.K. Saloi, the then Deputy Secretary and finalised as aforesaid. Another affidavit filed is by Shri M.N. Buragohain holding the post of Officer on Special Duty to the Government of Assam, Home (B) Department. In the said affidavit it has been stated that the case of life convict of Shri Parijat Kusum Nath @ Bidhan Nath was processed by Shri S.K. Saloi, the then Deputy Secretary and finalised as aforesaid. According to him he had no role in the decision making process and that he had only singed the notification on the basis of the approval accorded by the competent authority. 62. In the affidavit filed by the respondent No. 8, i.e., Dr. Amresh Das who had the luxury of being attached to the Central Jail Hospital, Silchar for about 26 years it has been stated that because of chronic nature of illness being suffered by the two convicts and their repeated complaints with regard to their illness, he had the occasion to know them as patients and he was acquainted with them otherwise. As regards the facilities enjoyed by the convicts as "B" division prisoners, it has been stated that such prisoners enjoy special diet, clothing, bedding materials, interviews, newspapers etc. as per the rules in the Jail Manual. According to his affidavit both the convicts enjoyed regular medical observation and treatment. In the affidavit it has been admitted that the two convicts had been admitted, from time to time, either in the jail hospital or in the SMCH, which according to him was on account of medical necessity. As regards the 3rd convict, namely Suman Nath, the respondent No. 8 has stated in his affidavit that he has been working as an attendant in the Jail Hospital for taking care of the patients since 1.10.2002. Such arrangement was made by the then Superintendent of Central Jail, Silchar, Shri Arun Kumar. 63. In terms of the orders passed by this Court, the State Government in the Home Department as well as the Health Department has produced the relevant records. The records produced by the State Government in the Home Department relate to grant of leave, emergency leave and finally the license to the two convicts; the opinion of the Judicial Department on the basis of the proposals made by the Superintendent of Prison and the Inspector General of Prisons and the final approval granted by the Departmental Minister for release of the convicts under license. 64. 64. As regards the file produced by the Health Department, on perusal of the same it appears that the respondent No. 8 although had been attached to the Central Jail Hospital at Silchar from 1983, he had surrendered two promotions just to stay in the same jail hospital. It appears that after the order passed by this Court for immediate transfer of the respondent No. 8 he was transferred and posted as Medical and Health Officer (I) at ICDS Mahur under NC Hills District vide notification dated 9.4.2009. However, on the basis of the representation submitted by his wife with a prayer to keep her husband in any post at Silchar so that he can avail treatment for his disease, i.e., schizophrenia (a kind of mental disease) at Silchar Medical College and Hospital and to avoid mental fear and psychosis on the verge of his retirement w.e.f. 31.12.2009, the earlier transfer order was modified and he was posted at Fulbari MRHC in Cachar District vide notification dated 20.6.2009. While producing the records the Under Secretary to the Government of Assam, Health and Family Welfare (A) Department vide his letter dated 5.11.2009 intimated about the aforesaid developments. The letter further reveals that the relevant files and records in respect of posting of Dr. Das, respondent No. 8 in Jail Hospital, District Jail, Silchar since 1983 and subsequent modifications, if any, to continue in the same Jail Hospital could not be located in the Department even after thorough search. Thus, according to the said letter no proper reply could be furnished. 65. The above letter has further revealed that during the term of respondent No. 8 in the particular Jail Hospital he was twice promoted to the next higher rank, once in 1988 and thereafter in 1994, but he had forgone the same on medical ground. According to the letter, the respondent No. 8 has been suffering from schizophrenia (a kind of mental disease) for which he was under treatment at Silchar Medical College and Hospital. According to the letter, Dr. Das might have been allowed to work at Silchar in consideration of his illness, but for want of the relevant files no definite information could be furnished. According to the letter, Dr. Das might have been allowed to work at Silchar in consideration of his illness, but for want of the relevant files no definite information could be furnished. Dealing with the query made by this Court regarding convict Shri Suman Nath who has been allowed to work as an attendant in the Jail Hospital and the reasons for not posting a qualified attender, it has been stated in the letter that no regular staff in the establishment of the Jail Hospital, District Jail Silchar had been appointed by the Joint Director of Health Services, Cachar, Silchar other than Medical Officers whose services are placed under the Home Department. However, there is no answer to the query made as to the reasons for allowing the convict to work as an attender in the Jail Hospital and also the reasons for not posting a qualified attender. 66. Reacting to the queries made to the Government by the order of the court dated 30.10.2009, an affidavit has been filed on behalf of the Inspector General of Prisons, Assam. As per the said affidavit, the number of convicts released under the Rules of 1968, as amended in 1986, who had not reported back after completion of the period of leave/emergency release after 1.2.2001 till date is 64 out of which 44 convicts were granted annual leave and 20 were granted emergency release. Citing the reasons for granting leave/emergency release, it has been stated that out of 44 convicts who were granted annual leave, 38 convicts were granted such leave for repairing of dwelling house, one for meeting his family members, 3 for treatment of mother, 1 for performing ritual rites of deceased father. 67. Out of 20 convicts who were granted emergency release, 8 convicts went for medical treatment of their wives, 3 for treatment of mother, 2 for treatment of self, 4 for marriage ceremony of daughters, 2 for performance of ritual rites of deceased mother/father, 1 for performing religious rites of deceased son. 68. From the facts stated hereinabove and as reflected in the report of the learned Sessions Judge, it appears that most of the times the 3 convicts had been either in the Jail Hospital or in the Silchar Medical College Hospital. Apart from that all the 3 convicts were liberally granted leave from the prison on various occasions. 68. From the facts stated hereinabove and as reflected in the report of the learned Sessions Judge, it appears that most of the times the 3 convicts had been either in the Jail Hospital or in the Silchar Medical College Hospital. Apart from that all the 3 convicts were liberally granted leave from the prison on various occasions. As recorded in the order dated 21.1.2009, the most distressing part of the case is that by a judicial order passed by the then Sessions Judge, Silchar in Misc. Case No. 191 of 2001 filed by the convicts it was directed that the 3 convicts be treated as "B Division Prisoners". As recorded in the said order, such classification of the convicts as prisoners belonging to "B Division Prisoners" was made under the Assam Jail Manual, which makes provisions for such recommendation on the basis of "social status, education or habits of life have been accustomed to a superior mode of living". 69. As recorded in the aforesaid order dated 21.1.2009, the most disturbing part of the entire episode is that the 2 convicts have been released on license under Section 2(2) of the Act of 1938. As noted above, the 3rd convict has been engaged as an attender in the jail hospital, which naturally means that the said convict is living a virtually free life. The question which arises for consideration is, as to whether, such release on license is permissible. We have seen the provisions of Section 433 and 433A of the Code of Criminal Procedure. Under Section 432, where a sentence of imprisonment for life is imposed following the conviction of a person for an offence for which death is one of the punishment 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 lease 14 years of imprisonment. 70. The decisions on which Mr. 70. The decisions on which Mr. A.K. Phukan learned Advocate General, Assam has placed reliance in support of his argument towards defending the aforesaid Rules are Sarat Chandra Rava v. Khagendranath Nath AIR 1961 SC 334 ; Parayankandiyal v. K. Devi (1996) 4 SCC 76 ; Maru Ram v. Union of India (1981) 3 SCC 107; Laxman Naskar v. Union of India (2000) 2 SCC 595 and Ramswarup v. Munsi AIR 1963 SC 553 . In Sarat Ch. Rava (supra) the Apex Court held that the order of remission passed in the case though had the effect that the appellant would be released from Jail before he had served the full sentence of 3 year's imprisonment, and had actually served only about 16 month's imprisonment but the same did not in any way affect the order of conviction and sentence passed by the court which remained as it was. This view of the Apex Court will have to be understood in the context of the conviction and sentence awarded to the appellant, which was 3 year's rigorous imprisonment. Thus, this case is of no help to the State when we are concerned with pre-mature release of the 3 convicts undergoing life imprisonment. 71. In K. Devi (supra), the Apex Court observed that non-obstante Clause is sometime appended to a section in the beginning, with a view to give the enacting part of the section, in case of conflict, an overriding effect over the provision or Act mentioned in that clause. It was further observed that it is equivalent to saying that in spite of the provision or Act mentioned in the non-obstante clause, the enactment following it will have its full operation or that the provision indicated in the non-obstante clause will not be an impediment for the operation of the enactment. This observation of the Apex Court will have to be understood in the context of the conflict between the provisions of Rules with which we are concerned and the provisions of the Cr.PC about which discussions have been made above. The Apex court in the case of Maru Ram (supra) has in categorical terms held that notwithstanding the non-obstante clause in Section 433A, the Remission Rules in life imprisonment and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. 72. The Apex court in the case of Maru Ram (supra) has in categorical terms held that notwithstanding the non-obstante clause in Section 433A, the Remission Rules in life imprisonment and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. 72. In Ramswarup (supra), the Apex Court was concerned with the effect of repeal of a particular Act. It was observed that where a statute is incorporated, by reference, into a second statute, the repeal of the first statute by a third does not affect the second. In the circumstances involved in the case, this case does not render any assistance to the argument advanced by the learned Advocate General. 73. The next decision on which Mr. Phukan, learned Advocate General, Assam, has referred to is that of Maru Ram (supra) which has already been discussed. Referring to the observation made in the paras 71 and 72 of the judgment, Mr. Phukan, learned Advocate General argued that the government may resort to the statutory scheme, not qua law, but as guideline and the expression "prison" and "imprisonment" must receive a wider connotation and include any place notified as such for detention purposes. He argued that "stone walls and iron bars do not a prison make"; nor are "stone walls and iron bars" a sine-qua-non to make a jail. According to him, open jails are the instances. Any life under the control of the State, whether within the high-walled world or not, may be a prison if the law regards it as such, he argued. The aforesaid observation of the Apex Court in Maru Ram (supra) in reference to which the learned Advocate General made the submission will have to be understood in the context of the term "life imprisonment" regarding which the Apex Court recorded its findings in paragraph 72 of the judgment. In sub-paragraphs 5 and 6 of paragraph 72 the findings recorded by the Apex court are as follows: 5. We negate the plea that Section 43A contravenes Article 20(1) of the Constitution. 6. We follow Godse case to hold that imprisonment for life lasts until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by government. 74. We negate the plea that Section 43A contravenes Article 20(1) of the Constitution. 6. We follow Godse case to hold that imprisonment for life lasts until the last breath and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by government. 74. In Laxman Laskar (supra), the Apex Court reentering that it is a settled position of law that life sentence is nothing less than lifelong imprisonment and by earning remissions a life convict does not acquire a right to be released prematurely, observed that if, the Government has framed any rule or made a scheme for early release of such convicts then those rules or schemes will have to be treated as guidelines for exercising its power under Article 161 of the Constitution. At the same time, it has also been observed that when an authority is called upon to exercise its powers under Article 161 of the Constitution that will have to be done consistently with the legal position and the Government policy/instructions prevalent at that time. 75. Article 72 of the Constitution empowers the President to grant pardons etc and to suspend, remit or commute sentences in certain cases. Under Article 161 of the Constitution such power can be exercised by the Governor of a State. The observation of the Apex Court is in the context of Article 161 of the Constitution about which the Apex Court has discussed in Maru Ram's case (supra), in paragraph 72 of the said judgment while concluding by formulating the findings the Apex Court recorded, inter alia, the following: (3) We uphold all remissions and short-sentencing passed under Articles 72and 161 of the Constitution but release will follow, in life sentence cases, only on government making in order en masse 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 provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. 76. Mr. (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 provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like. 76. Mr. A.K. Bhattacharyya, learned senior counsel representing the 3 convicts submitted that in the event of release of 2 convicts under license as per the provisions of the 1968 Rules as amended in 1986 is held as illegal, the benefit already earned by the said prisoners may not be withdrawn and they may be allowed to remain in the same jail which will enable them to meet their children. 77. In Maru Ram v. Union of India (1981) 1 SCC 107 , the Apex Court had held that Section 433A of the Code of Criminal Procedure overrides all other laws which reduce or remit the term of life sentence which has been discussed above. It has been held in the said case that to read down Section 433A to give overriding effect to the Remission Rules of the State would render the purposeful exercise a ludicrous futility. It has been held that notwithstanding the non-obstante clause in Section 433A, the Remission Rules and like provisions stand excluded so far as "lifers" punished for capital offences are concerned. 78. Referring to the Godse case (supra), the Apex Court observed, thus: In Godse case, Subba Rao, J., also drew the conceptual lines of 'remission', 'sentence' and 'life sentence'. 'Remission' limited in time, helps computation but does not ipso jure operate as release of the prisoner. But when the sentence awarded by the judge is for a fixed term the effect of remissions may be to scale down the term to be endured and reduce it to nil, while leaving the factum and quantum of the sentence intact. That is the ratio of Rabha. Here, again, if the sentence is to run until life lasts, remissions, quantified in time, cannot reach a point of zero. This is the ratio of Godse. The inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. That is the ratio of Rabha. Here, again, if the sentence is to run until life lasts, remissions, quantified in time, cannot reach a point of zero. This is the ratio of Godse. The inevitable conclusion is that since in Section 433A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release. In this view, the remission rules do not militate against Section 433A and the forensic fate of Godse (who was later released by the State) who had stockpiled huge remissions without acquiring a right to release, must overtake all the petitioners until 14 years of actual jail life is suffered and further an order of release is made either under Section 432 or Articles72/161 of the Constitution. 79. Section 2(2) of the 1938 Act reads as follows: (2) The State Government may grant leave by a license to a person who has been confined in prison under a sentence of imprisonment for such period as may be specified in the License and for such purposes as may be prescribed by rules made under this Act, on being satisfied, after taking into consideration his antecedents, conduct in prison, nature of the offence and the manner in which he committed it, that he is, if released from prison, not likely to commit a crime within the period of the leave. 80. On perusal of the aforesaid provision in Section 2(2) of the Act, we are of the opinion that the power envisaged is to be exercised only in case of convict who has been confined in prison under a sentence of imprisonment for such period as may be specified in the licence. In Gopal Godse case (supra) the Apex Court recognized the distinction between "imprisonment" and "life imprisonment". Under Section 53 of IPC, there are 5 categories of punishments, which are (1) death, (2) imprisonment for life, (3) imprisonment (4) forfeiture of property and (5) fine. Taking the clue from prescription of such punishments and the distinction made between "imprisonment" and "life imprisonment" as spelt out in Gopal Godse case (supra), the said two punishments are two different categories of punishments. The expression "under a sentence of imprisonment" as indicated in Section 2(2) of the Act of 1938 cannot be understood to mean "life imprisonment". Taking the clue from prescription of such punishments and the distinction made between "imprisonment" and "life imprisonment" as spelt out in Gopal Godse case (supra), the said two punishments are two different categories of punishments. The expression "under a sentence of imprisonment" as indicated in Section 2(2) of the Act of 1938 cannot be understood to mean "life imprisonment". Therefore, releasing the two convicts in the purported exercises of power under Section 2(2) of the 1938 Act itself is beyond the power and jurisdiction of the authorities being not within the scope of the enactment. 81. The issue with regard to the validity of Rule 3 of the 1968 Rules (as amended) may be briefly dealt with. Section 432 of the Code of Criminal Procedure vests power in the appropriate Government to suspend or remit a sentence imposed on a convict by following the procedure prescribed therein. Leave or Emergency, release of a prisoner, as may be, under the 1968 Rules does not result in any suspension of the sentence. Rule 3 which gives effect to the provisions of the 1968 Rules, notwithstanding the provisions of Section 432 of the Code of Criminal Procedure, therefore, does not touch upon any of the fields covered by the Central enactment, i.e., Code of Criminal Procedure. Both the provisions in 1968 Rules and Section 432 of the Code of Criminal Procedure being intended to operate in different fields, Rule 3 cannot be said to be contrary to Article 254 of the Constitution. 82. Coming to the specific provisions of the 1968 Rules, as amended in 1986, we have noticed that Rule 4(iii) of the 1968 Rules amended in 1986 by virtue of which Rule 4(iii) has been deleted, though no reason for the same is forthcoming. In tune with such deletion of Clause (iii) under Rule 4, Rule 7(iv) has also been amended in 1986. While under original Rule 7(iv) the requirement was to get the recommendation of the District Magistrate enabling the Superintendent of Jail to obtain orders of the sanctioning authority before the due date for release, but under the amended Rules such a procedure has been done away with. Likewise under original Rule 8(d), the prisoner was required to contact the Probation Officer or the Aftercare Officer of the area of the State, but under the amended Rules such a provision has altogether been deleted. Likewise under original Rule 8(d), the prisoner was required to contact the Probation Officer or the Aftercare Officer of the area of the State, but under the amended Rules such a provision has altogether been deleted. Under the amended Rules there is no requirement of getting the verification report from the District Magistrate. 83. As per the requirement of Rule 7, both under the original 1968 Rules and the amended Rules of 1986, the Jail Superintendent shall examine the cases of each prisoner who is eligible for leave to find out whether the prisoner is fit for being released on leave. The cases are required to be considered on the grounds specified in the Rule itself. In terms of our order passed on 30.10.2009, the Inspector General of Prison, Assam placing on record the particulars, has filed an affidavit. In the order dated 30.10.2009 we had directed the State to produce, inter alia, the records pertaining to the decision making process leading to grant of leave to the convicts under the aforesaid Rules of 1968 as amended in 1986. In the affidavit filed on behalf of the Inspector General of Prisons the shocking disclosure made is that 64 convicts who have been released on Leave/Emergency Release, have not reported back after expiry of the period of Leave/Emergency Release. Out of the said convicts, 38 convicts had been granted such Leave/Emergency Release for the purpose of repairing their dwelling houses. Another convict was allowed such leave to meet his family members. The documents annexed to the said affidavit filed on 20.11.2009 also clearly depict the same. 84. The orders of release annexed to the affidavit mentioned the exercise of power under Rule 8 read with Rule 7(iv) as well as Rule 14 read with Articles 16 and 17 of the 1968 Rules. In some cases, the power has been exercised under Rule 8 read with Rule 7(iv) of the Rules and in some cases, such power has been shown to have been exercised under Rule 14 read with Rule 16 and 17 of the Rules. Rule 8 provides for grant of release on leave, while Rule 7(iv) speaks of the procedure relating to retention and circulation of the application for leave. Rule 14 deals with emergency release, while Rules 15 and 16 deals with eligibility and conditions of release. 85. Rule 8 provides for grant of release on leave, while Rule 7(iv) speaks of the procedure relating to retention and circulation of the application for leave. Rule 14 deals with emergency release, while Rules 15 and 16 deals with eligibility and conditions of release. 85. The procedure for release on leave as prescribed in Rule 7 requires the Jail Superintendent to examine the cases of each prisoner eligible for leave to find out whether the prisoner is fit for being released on leave. As per the requirement laid down in the said rule he is to consider the following: (a) Conduct, (b) work, (c) progress achieved in various spheres, (d) effect for introspection and self-improvement, (e) attitude towards family and community, and; (f) the manner in which previous period of leave or emergency release was utilized, etc. Rule 7(ii) provides that prisoners whose conduct has been found to be unsatisfactory or prisoners who are punished for prison offences shall be considered unfit for release on leave. 86. Emergency release can be granted only on the following grounds; (i) to facilitate the inmate's presence in his family during a period of grave emergency like death or serious illness of father/mother/brother/sister/spouse/children; (ii) to facilitate the inmate in specialized treatment for diseases like tuberculosis, cancer, etc., in accordance with the opinions of the prison Medical Officer to be approved by the Civil Surgeon; (iii) To facilitate attending the marriage ceremony of his daughters, sons, brothers and sisters. 87. We have verified the records produced by the learned State Counsel. Nothing is discernible regarding release of the prisoners on Leave/Emergency Release upon scrutiny of the aforesaid conditions and their fulfilment. Surprisingly, such leave was granted even for the purpose of repairing of dwelling house. Interestingly, even such leave, as per the provisions of Rule 11 shall count towards sentence. Thus, a prisoner/convict even by going out of jail on leave for the purpose of repairing his dwelling house shall be deemed to have been undergoing the sentence although in fact he was not. Such device has been adopted to release prisoners/convicts including the life convicts on leave and emergency release virtually without following any procedure as envisaged under the Rules. Ironically, as noticed above, such leave granted to the prisoners/convicts would count towards serving the sentence. 88. Such device has been adopted to release prisoners/convicts including the life convicts on leave and emergency release virtually without following any procedure as envisaged under the Rules. Ironically, as noticed above, such leave granted to the prisoners/convicts would count towards serving the sentence. 88. From the above revelations, it is clear that the prisoners/convicts serving various sentences including the sentence of life imprisonment can merrily earn leave/emergency release even in the pretext of repairing their dwelling houses making a mockery of the entire criminal system. In the process the 3 convicts involved hardly remained in jail undergoing the term of rigorous imprisonment for life but all along remained either in the jail hospital or in the Silchar Medical College hospital with the intervening period of leave/emergency release. The 3rd convicts could remain a free man with the entrustment of duty of Attender in jail hospital at the behest of the Superintendent of Jail. We will, therefore, have no hesitation in holding that the different actions of the authorities leading to grant of leave or emergency release of convicts including life convicts has been for reasons not acceptable to us or in public interest. Such releases have been made on flimsy grounds not contemplated oven on a most liberal interpretation of the 1968 Rules. The result is obvious. Many of such convicts have not returned after expiry of the period of leave or emergency release and all such convicts are still at large. 89. By our order dated 30.10.2009 we had required the State authorities to apprise the court as to how such arrangement could be made and as to why no qualified Attender could be provided in the jail hospital. However, in the records produced by the Health Department through the letter dated 5.11.2009 addressed to the learned Standing Counsel by the Under Secretary to the Government of Assam, Health and Family Welfare Department, Cachar, there is no information regarding such an arrangement except stating that no staff in the establishment of the Superintendent of Jail Hospital, District Jail, Silchar is appointed by the Joint Director of Health Services, Cachar, Silchar. Thus, no reason has been assigned for accommodating the 3rd convicts as an Attender in the Jail hospital making him a free man and not appointing a qualified Attender in the hospital. Thus, no reason has been assigned for accommodating the 3rd convicts as an Attender in the Jail hospital making him a free man and not appointing a qualified Attender in the hospital. However, tracing back the history of the entire episode which reflects special treatment meted out to the three convicts speaks volumes of abuse of the process of power and jurisdiction vested in the Jail authorities through the execution of which the 3 life convicts could make a mockery of the entire system of punishment awarded to such life convicts towards utilization of the theories of punishment like deterrent, preventive, etc. 90. The license granted in favour of the 2 convicts does not specify the period for which the same will operate. The stipulation is that the license would remain in force from the date of enlargement from jail till the date of expiry of the sentence reckoning the period of release on license as imprisonment served. Further stipulation made is that on the expiry of the period of the license (except when it is revoked) the prisoner shall be released from the observance of all the conditions set forth in the order. Although, no period has been specified in the order but it is clear from the stipulation that the grant of license is the virtual release of the prisoners, without undergoing the sentence of life imprisonment and even the period of sentence calculated by the Jail authorities. Thus, here is a case in which the prisoners of life convicts without serving the term of life imprisonment will remain out of Jail till such time the calculated term expires and thereafter, the conditions must be in the license will also cease to exist. 91. Considering the matter in its entirety and on the basis of our findings recorded above, the conclusions reached by us are recorded herein below; (1) We hold that the release of the 2 convicts under license is wholly illegal. (2) We reiterate that the life imprisonment cannot be stipulated in any term and that a convict undergoing life imprisonment irrespective of the length of the remissions earned can claim release only if, the remaining sentence is remitted by Government. (3) Section 2(2) of the 1938 Act does not empower the State Government to grant leave by a license to a person who has been confined in prison under a sentence of life imprisonment. (3) Section 2(2) of the 1938 Act does not empower the State Government to grant leave by a license to a person who has been confined in prison under a sentence of life imprisonment. (4) Leave or emergency release as envisaged under the provisions of 1968 Rules as amended in 1986 must be on fulfilment of all the conditions imposed and as it originally stood under pre-amended Rules. (5) The 3 convicts have been shown special favour by allowing them to remain either in the Jail Hospital or in the Silchar Medical College Hospital for most of the time solely on the basis of the certificate without any supporting document furnished by the respondent No. 8. (6) The three convicts had also been granted leave/emergency release by the Jail authorities merely on asking for it without first insisting on fulfilment the conditions precedence thereof. (7) The retention of respondent No. 8 for long 26 years in the Jail Hospital, Silchar was wholly unwarranted and speaks volumes of manipulating powers of a section of the employees to turn the tide in their way. The respondent No. 8 even after' the order passed by this Court for his immediate transfer from the Jail Hospital could get his order of transfer modified so as to stay at Silchar itself. Earlier he was transferred to N.C. Hills in terms of our orders. However, even on that occasion he could manage to get the order modified so as to remain at Silchar, may be, not Silchar Jail Hospital itself (8) In the letter forwarding the records of the Health Department an excuse has to be sought to be made by stating that the relevant records are not traceable. This is sheer callousness on the part of the departmental authorities. (9) As per the letter so furnished the respondent No. 8 has been suffering from seizophrenia (a kind of mental disorder), which paved the way for his retention at Silchar modifying the earlier order of transfer to NC Hills. Here is a case in which a doctor suffering from seizophrenia could merrily certify the 3 convicts to be ill so as to be hospitalised either in jail Hospital or in Silchar Medical college Hospital at will. Here is a case in which a doctor suffering from seizophrenia could merrily certify the 3 convicts to be ill so as to be hospitalised either in jail Hospital or in Silchar Medical college Hospital at will. This phenomenon continued all throughout from the date of upholding the conviction of the 3 prisoners by the High Court on Appeal till the case was detected on the basis of the representation in question. Thus, the 3 convicts could remain out of Jail on the basis of numerous certificates issued by the respondent No. 8, who himself is allegedly suffering from seizophrenia described as a kind of mental disorder, which was also made the ground for his retention at Silchar. (10) We hold that the 3 convicts cannot get any benefit for their release on Leave/Emergency Release. We further hold that it is up to the Jail Authority to keep themselves in Silchar Jail or in any other Jail as the situation may demand. WP(C) 3229/2007 92. In this case, in terms of the release order the convict was obliged to report prison by 17.9.2005. However, his whereabouts are not known till this date. On the other hand, as per the representation in question he had been threatening the family members of the victim in Sessions Case No. 49 of 1995 in which he was convicted. The various loopholes in the entire episode leading to the disappearance of the convict and the failure on the part of the police and of the jail authorities to apprehend him have been noted in the various orders passed in the proceeding about which mention has been made above. It is really unfortunate that no immediate and concrete steps had been taken when the convict did not return within the stipulated time. Rather, an utterly indifferent approach was adopted. It is only because of the monitoring of the case by this Court that the police administration was forced to take some concrete steps, which has been recorded in the order dated 8.5.2009. The latest stage of investigation of the case is not known to us. It must be recorded that it is a total failure on the part of the Home Department and Police administration in not being able to apprehend a life convict after he was enlarged on parole. The latest stage of investigation of the case is not known to us. It must be recorded that it is a total failure on the part of the Home Department and Police administration in not being able to apprehend a life convict after he was enlarged on parole. Here is a case in which the convict after release on parole not only could do the act of vanishing but could even threaten the victim's family for telling the truth. It can well be conceived of as to how safe the citizens are because of failure on the part of the Police administration and the Home Department, which surely calls for immediate remedial measures with utmost seriousness. 93. For what has been recorded above while parting with the case-records, we direct the authorities to take appropriate action for initiating departmental proceedings against the erring officers who are involved in the entire episode relating to both the cases. Direction is also issued to apprehend the convict by making all out efforts so that public confidence in criminal justice system and the Police administration is maintained. 94. Both the writ petitions are answered in the above manner. We place on record our appreciation for the valued assistance rendered by Mr. N. Datta, learned senior counsel in the entire deliberation in the proceeding.