IN THE HIGH COURT OF JUDICATURE AT PATNA CR. WJC No.68 of 2010 Devanand Das, son of Sri Ajit Kumar Das --- Petitioner Versus 1. The State of Bihar, through the Home Secretary, Department of Home, Govt. of Bihar, Patna 2. The Inspector General of Prisons, Bihar, Patna 3. The Superintendent of Jail, Special Central Jail, Bhagalpur ---- Respondents ----------- 11 03.11.2010 On the last occasion, by the order dated 27.07.2010, the counsel for the State was directed to seek instructions and file counter affidavit, as to whether petitioner’s case for allowing premature release has been recommended to State Remission Board, for reconsideration; and if so recommended, what has been the order passed by the State Remission Board. In response to it, counter affidavit has been filed on behalf of respondent no. 2, the Inspector General of Prison, Bihar, Patna, stating that the case of premature release of the petitioner was reconsidered by the State Remission Board in its meeting held on 06.10.2010 and the Board has recommended for the release of petitioner from jail. Despite there being recommendation for his release, petitioner has not been released as yet, since approval of the State Government is required, on the recommendation of State Remission Board. The counsel appearing for the State submits that on account of the ongoing election and the existing Model Code of Conduct, the approval of the Appropriate Government, as required under Section 433 Cr. P.C., for premature release, cannot be obtained. The Counsel for the 2 State submits, that unless election is over and new Govt. is elected, at present there is no “Appropriate Government”. In support of his submission, he has referred to the provisions under section 433 Cr. P.C. which relates to power to commute sentence and provides that :- “the appropriate government may, without the consent of the person sentenced commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code (45 of 1860); (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine; We find no force in this submission, since it is not in connection with the provision under section 433 Cr. P.C. or the rule relating to the commutation of sentence, giving benefit of remission to a convict, who has been awarded life imprisonment or whose death sentence has been commuted in the life sentence. Even if, the Assembly Elections are going on, the State Government is still there, until the new 3 government will be formed and the existing Cabinet is dissolved. The word “Appropriate Government” mentioned under Section 433 Cr. P.C. does not mean that during the election period there is no “Appropriate Government” existing in the State. The constitutional provision also does not indicate that once the election is notified /declared, the existing Government will be deemed to be non-existent. The reason for not passing any release order in favour of the petitioner, despite the fact that the State Remission Board has already recommended for his release, is against the provision under the rule as well under the Cr. P.C. In view of the recommendation of the State Remission Board, holding that the petitioner is entitled for benefit of the remission and premature release, his further detention, is nothing but illegal detention. Accordingly, we direct that the petitioner, in whose favour the State Remission Board has recommended for his release, must be released without any delay, on production/communication of a copy of this order. The application stands allowed. Copy of the order shall be handed over to the counsel for the petitioner and the counsel appearing for the State. Ashwini/- ( Mridula Mishra, J.) (Dharnidhar Jha, J.)