1. Mr. Girdhari Lal Agarwala applied as amicus curiae that Pandit Jawahar Lal Nehru at present serving a sentence of imprisonment in Naini Central Jail be set at liberty forthwith.
2. The application is made under Section 491, Criminal P.C., and Mr. Agar-wala contends that Pandit Jawahar Lal is illegally or improperly detained in the said jail within the meaning of Sub-clause (b) of that section.
3. It is admitted that Pandit Jawahar Lal has been convicted by a competent Court and sentenced to undergo 2 years' simple imprisonment. It is difficult to see how any person undergoing a sentence of imprisonment imposed by a competent Court can be said to be illegally or improperly detained in jail.
4. Mr. Agarwala's contention is that because Pandit Jawahar Lal was released from custody for some days on or about 12th August 1934, to enable him to be at the bedside of Mrs. Jawahar Lal Nehru who unfortunately was seriously ill. The release amounted to a remission of the unexpired portion of his sentence, and his subsequent re-arrest and confinement in jail without a fresh trial and conviction for a subsequent offence was illegal.
5. It is impossible to accept this contention. Mr. Agarwala argues that there is no provision in law or the Jail Manual which permits the execution of a sentence of imprisonment by instalments. This may be so. But there is no suggestion that the days during which Pandit Jawahar Lal was allowed to remain in his home are not to be considered as part of his sentence. Therefore there is no question of the sentence being carried out by instalments.
6. Mr. Agarwala further argues that there is no provision either in law or in the Jail Manual whereby prisoners may be allowed to go to their home temporarily for any purpose. This is so. But neither is there any provision of law against it.
7. I do not think that this Court has any power to question the manner in which the Government exercises its prerogative of mercy. Even if this Court had such power, it would ill-become it to do anything that would interfere with the freedom of the Government to act in matters of this kind according to the dictates of humanity. The application is dismissed.