FULCHAND MAHTO Vs. STATE OF BIHAR AND OTHERS

JUDGEMENT

(1.) This writ petition has been filed for the premature release of the petitioner on the ground, inter alia, that the petitioner has completed more than 17 years in jail custody. It is not disputed that the petitioner has been convicted by the judgment dated 29-9-1978 passed by the 3rd Additional Sessions Judge, Dhanbad and has been sentenced to undergo imprisonment for life in connection with Harla P. S. Case No. 44 (5)76 giving rise to Sessions Trial No. 159 of 1977 under Section 302 of the Indian Penal Code.

(2.) Pursuant to the order of this Court dated 17-7-1995, a counter affidavit has been filed by one Sri S.B. Ambastha (respondent No. 3) in this proceeding. From the said affidavit, it appears that the case of the petitioner for premature release was considered and the same was rejected by the appropriate authority. While rejecting the said application, the appropriate authority proceeded on the basis that the petitioner can be released only after completion of 14 years of actual imprisonment in jail excluding the period of remission which is admissible under the provisions of the Jail Manual. The entire consideration has been made on the basis of the newly added Section 433-A of the Gode of Criminal Procedure and the same has been applied in the case of the pe titioner.

(3.) Unfortunately while passing the said order the authorities have not taken into consideration the effect of the judgment of the Supreme Court in the case of Maru Ram, Bhiwana Earn etc. V/s. Union of India, 1980 AIR(SC) 2147on the applicability of Section 433-A, Cr.P.C. to the case of the petitioner. In paragraph 56 of the said judgment, it has been authoritatively decided that "every person who has been convicted by the sentencing court before December 18, 1978, shall be entitled to the benefits according to him from the Remission Scheme or short-sentencing projects as if Section 433-A did not stand in his way" in the instant case, the petitioner was convicted on 29-9-1978 which is before 18th December, 1978 but in the impugned order the benefit of Remission Scheme of Short sentencing projects was not made available to the petitioner on the erroneous basis that the provisions of Section 433-A, Cr.P.C. stand in the way.