SENDHAJI MATHURJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners in all these petitions are convicts under- going imprisonment for life awarded to them under sec. 302 Indian Penal Code. They have earned remissions under the Prisons Act 1894 and the Bombay Rules made thereunder. They contend that even though each one of them has served jail sentence of 14 years or more including the period of remission earned by him the State Government is not releasing them. It appears that sec. 433A of the Code of Criminal Procedure 1973 is coming in their way. Therefore they are challeging in this petition the bar created by sec. 433A. On behalf of the petitioners the following two contentions have been raised (1) Sec. 433A is ultra vires Art. 161 of the Constitution. (ii) If it is not ultra vires Art. 161 it is at least not retrospective in character and therefore it applies only to those prisoners who were convicted after sec. 433A came into force.

(2.) Sec. 433A was enacted by Parliament by the Code of Criminal Procedure (Amendment) Act 1978 and came into force on 18/12/1978 Let us now reproduce sec. 433A and see what it provides:

(3.) Let us now turn to sec. 432 in order to appreciate what mischief the first part of sec. 433A has created in the statute. Sub-sec. (1) of sec. 432 confers upon the appropriate Government substantive power to remit or suspend sentence awarded to a convict. It reads as follows: