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5. The first respondent on 19.01.2004 sought premature release under Section 432 of the Code of Criminal Procedure, 1973 (CrPC) on the ground that he would complete 14 years of actual sentence in jail. His prayer for premature release was considered by the competent authority of the State of Gujarat which vide order dated 26.10.2006 considering the over all aspects of the matter rejected the said application. The said order was assailed in Criminal Writ Petition No. 505 of 2007 before the High Court of Punjab and Haryana which vide order dated 25.08.2008 disposed of the Writ Petition with the direction to the State of Gujarat to reconsider the case of the first respondent for premature release considering the applicability of Section 433 CrPC, Section 3 of the Transfer of Prisoner Act and the decision in State of Haryana v. Mahender Singh[2].

7. Remaining indefatigable the first respondent preferred Writ Petition No. 677 of 2010 praying for a writ of habeas corpus on the ground that he had already suffered requisite period of sentence and hence, he was entitled to be released as per Sections 432, 433 and 433-A CrPC and para 431 of the New Punjab Jail Manual. A grievance was put forth that his representation had not been considered by the State Government. On 20.04.2010, the High Court disposed of the matter directing the State Government to pass a speaking order within a period of two months. Be it stated, when the High Court passed the said order, it had not issued notice to the State of Gujarat. However, regard being had to the direction issued by the High Court, the competent authority took up the matter for reconsideration and after obtaining the opinion from the appropriate quarters as required under the manual, the State Government declined to grant premature release to the first respondent vide order dated 30.12.2010. The said order was assailed before the High Court in Writ Petition No. 158 of 2011 and the High Court vide judgment and order dated 25.05.2011 directed the State to reconsider the premature release taking note of the actual sentence of 14 years and three months and more than 21 years including remission. The High Court had directed the first respondent to be released on parole subject to certain conditions. Pursuant to the order passed by the High Court, the State Government took up the case for reconsideration and keeping in view the statutory provisions of CrPC, Rule No. 1448 of the Bombay Jail Manual which governs the State of Gujarat, the opinion of the advisory board and keeping in view the number of cases the first respondent was really involved, the gravity and nature of the crime and its impact on the society, it rejected the proposal for release vide order dated 26.07.2011.

8. Being aggrieved by the aforesaid order, the first respondent invoked the jurisdiction of the High Court under Article 226 of the Constitution of India. It was contended on behalf of respondent No. 1 before the High Court that provisions of Punjab Jail Manual, 1996 are applicable to him since he had been transferred to the State of Punjab as per the Transfer of Prisoners Act, 1950 and as there had been a recommendation by the competent authority under the Punjab Jail Manual that he was entitled to the benefit of the premature release but the same has been declined by the State of Gujarat and hence, the whole action was arbitrary and illegal. It was also urged that as per the Bombay Jail Manual which is applicable in State of Gujarat, he was also entitled to premature release as he had already undergone more than 14 years of sentence. It was also argued that refusal to entertain the prayer for premature release was contrary to the concept of Article 21 of the Constitution and, therefore, the order passed by the State Government was non est in law.

10. The learned single Judge posed five questions for consideration. They read as under:-

“i) Which is the appropriate Government empowered to consider the case of premature release of the petitioner?
ii) Whether earlier dismissal of the petition for premature release by a High Court operates as bar and estoppels to the filing of subsequent petitions?
iii) Whether the High Court where prisoner is transferred has jurisdiction to entertain the criminal writ petition?
iv) Whether non-release of a convict is worse sanction than the death sentence, resultant encroachment upon the life and personal liberty by the executive?