1. Heard learned Counsel for the Petitioners, learned AGA and perused the record.
2. The present writ petition has been filed with the following prayer:
(a) issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 25.1.2010 and 1.2.2010 so far it relates to the Petitioners accordingly.
(b) issue a writ, order or direction in the nature of mandamus commanding the Respondents to release the Petitioners forthwith in view of the judgment and order dated 24.7.2004 passed by the Apex Court in case of Bhagwan Das and others.
(c) issue any other writ, order or direction which this Hon''ble court may deem fit and proper in the circumstances of the case.
(d) award cost of the writ petition to the Petitioners.
3. Learned Counsel for the Petitioners submitted that Petitioners were convicted and sentenced to life imprisonment on 29.11.1975 in S.T. No. 271/73, under Sections 302/149 IPC. The appeal preferred by the Petitioners were dismissed by the High Court, which was affirmed by the Apex Court. The Petitioners have served more than 17 years sentence without remission and they have served about 27 years sentence with remissions. The Government Order dated 11.1.2000 was issued, which was subsequently, amended by a subsequent Government Order dated 25.1.2000 . In pursuance of that order those convicts, who were more than 60 years of age were released including the Petitioners. That order was challenged before the High Court in the writ petition and the aforesaid Government Orders were quashed by the Division Bench of this High Court. In case of Mirza Mohammad Husayn v. State of U.P. and Ors. reported in 2002 (1) JIC 342 (ALL) where there was a direction by the High Court that those convicts, who were released, were required to surrender to serve out the remaining sentence. The Petitioners instead of surrendering to serve out the sentence filed a writ petition No. 1933 of 2002 and Writ Petition No. 1692 of 2002, however, both the writ petitions were dismissed. Interim protection was given in Writ Petition No. 1692 of 2003 since the judgment in case of Mirza Mohammad Husyn (Supra) was challenged before the Apex Court wherein the interim protection was given to the convict, who have actually served more than 40 years of sentence. Thereafter, the SLP filed against the aforesaid judgment was finally decided on 24.7.2004 and the direction was issued that those prisoners, who had actually served more than 14 years sentence should be released forthwith. He further submitted that the Petitioners were taken into custody on 1.2.2010 and they are confined in Central Jail, Naini, Allahabad. The case of the Petitioners are fully covered by the judgment of the Apex Court in case of Bhagwan Das and others. He further stated that on 25.01.2010 a Govt. Order was issued to take those prisoners in custody, who were released in pursuance of the Govt. Orders dated 11.01.2000 and 25.01.2000. Thereafter Superintendent of Police, District Kaushambi directed Station Officer to arrest the Petitioners and subsequently they were arrested on 01.02.2010. Since then they are confined in jail.
4. He further submitted that in view of Section 433A Code of Criminal Procedure and in view of provisions of U.P. Prisoners Release on Probation Act and Rules framed therein the minimum sentence which required to be served by the life convict is 14 years, and both the Petitioners have served more than 14 years of actual imprisonment. Hence they are entitled for premature release.
5. The learned AGA opposed the aforesaid prayer on the ground that as far as the pre-mature is concerned, when the Petitioners have been convicted and sentenced for life imprisonment they have to serve out the sentence for remaining period of their life unless the order for premature release is passed by the appropriate Government.
6. It is a matter of premature release after conviction. The criminal appeal was also dismissed by the High Court and the same was affirmed by the Supreme Court dismissing the special leave petition. The Writ Petition before the High Court is not maintainable after the life imprisonment was confirmed by the High Court and by the Supreme Court. After dismissal of appeal the High Court will not review the judgment of another bench of the High Court. Only direction may be issued for consideration of pre mature release in accordance with law without discrimination. The only appropriate Government has power to commute grant premature release or remission. In case of
the sentence of transportation for life or imprisonment for life must prima facie be treated as transportation or imprisonment for the whole of the remaining period of the convicted person''s natural life.
7. There is no provision to automatically treat the period of life imprisonment for a definite period without any formal order of remission or to commute the sentence by the appropriate Government.
8. In another constitution Bench of the Apex Court in case of
imprisonment for life is nothing less and nothing else than a imprisonment which lasted till the last breath
9. This judgment has been followed subsequently in several Judgments.
10. Article 72 of the Constitution of India confers power to the President of India to grant pardon and Article 161 of the Constitution of India confers power upon the Governor to grant pardon. Under Article 432 Code of Criminal Procedure the appropriate Government has power to suspend or remit whole or any part of imprisonment. u/s 433 Code of Criminal Procedure the power has been conferred upon the appropriate Government to commute sentence of death to any other punishment and sentence of imprisonment for life to that for imprisonment for a term not exceeding 14 years. Subsequently, by amendment Section 433A Code of Criminal Procedure was added and by the amendment it was psrovided that notwithstanding anything contained u/s 432, the person sentenced the imprisonment for life shall not be released from prison unless he had served at least 14 years of imprisonment.
11. u/s 57 of the Code of Criminal Procedure the period for calculating the fraction of punishment and imprisonment for life has to be reckoned as equivalent to rigorous imprisonment for 20 years. The purpose was only that before completing 14 years of imprisonment the convict, who has been convicted for life imprisonment should not be released, after completing a maximum period provided in the code of criminal procedure. In view of the intention of the legislature and judgment of the Apex Court, it is clear that when convict has been sentenced to life imprisonment he should not be released unless he has served out 14 years of sentence.
12. As far as the judgment of the Supreme Court in case of Bhagwan Das and Ors. v. State of U.P. are concerned only there was a direction in that very case that those Petitioners, who have completed 14 years of sentence should be released forthwith if they were not required in any other case. In the aforesaid judgment neither the judgment of the High Court was set aside nor there was general direction for all the convicts to be released, who have completed 14 years of imprisonment without remission.
13. In view of aforesaid facts, the individual case of the Petitioners may be considered by the appropriate Government for pre mature release but in the present case they are not entitled for release under Article 226 of The Constitution Of India. When the High Court has decided the criminal appeal and confirmed the sentence for life imprisonment, it has been functus officio and cannot reviewed the judgment passed in appeal.
14. Therefore, We are not inclined to grant the relief''s prayed for under Article 226 of Constitution of India.
15. Accordingly, present writ petition is hereby dismissed.
