M.P. Thakkar, C.J.
1. Concern for the liberty of citizens has been voice at prestigious seminars and in course of erudite articles and yet it has seldom been realised that in the absence of a vigilent supervision exercised by the Judiciary in regard to the matters pertaining to prisoner undergoing sentences of imprisonment in the various prisons, focus will remain on the liberty of only those who are facing preventive detention for anti-social activities. This distressing aspect has come to the surface by reason of the fact that this High Court has been entertaining applications made by prisoners from jail as Special Criminal Applications with liberty - dimensions and scrutinising the matters closely and in depth.
2. In view of the atmosphere created on account of this supervision, a vigilent wife of a prisoner who was undergoing jail sentence, addressed a letter to the Chief Justice complaining that her husband was being kept in prison though the term of his sentence had expired and he had become entitled to be released upon completion of his jail sentence. The letter was treated as a Special Criminal Application and it now transpires that the complaint was more than justified. The prisoner who was entitled to be released about one year back had to remain in prison for about an year longer on account of failure on the part of the competent authority to pass appropriate orders as per relevant rules and on account of failure of the jail machinery. It appears that as soon as the jail authorities learnt about the institution of the Special Criminal Application the prisoner has been released. It is, therefore, not necessary to pass any orders directing the State Government to release him.
3. However, we do not think that we can rest content merely because the prisoner has now been released. We must emphasize that what has happened in this case does not happen in future. In fact, we had an occasion to deal with a similar question on February 23, 1982. In that case also, there was a failure of the machinery and the prisoner was not released though he had completed seventeen years inclusive of the remission earned by him in due course. The State Government placed reliance on a Resolution dated February 28, 1975 which deserves to be quoted. We quote:
In view of this Resolution a prisoner is entitled to be released on completion of seventeen years of imprisonment inclusive of remissions earned by him, subject to one rider, namely, the rider contained in clause 4 of the said Resolution. It will be convenient to place in focus the said clause 4 for the purposes of discussion :
It will be seen that on a true interpretation of this Resolution in the light of the provisions contained in Clause 4, releasing a prisoner on completion of seventeen years is the rule and continuing a prisoner in detention thereafter is an exception. The criteria provided by the Resolution for continuing a prisoner in detention beyond seventeen years is that during the period of his detention or when the prisoner is on parole or furlough, his conduct must be such as could be described as extremely bad or there are some special reasons for continuing him in detention. The resolution further provides that the concerned authority must take into consideration this criteria and pass an appropriate order in conformity with this policy. In that case, the prisoner was not released. The competent authority, instead of releasing him, had passed an order in the following terms:
It will be seen that the competent authority had misread the Resolution and misled himself with regard to the interpretation of the criteria prescribed by the Resolution of February 28, 1975. There was a total lack of application of mind to the relevant criteria. No finding had been recorded that he was guilty of any conduct which could be described as extremely bad or that there was any special reason for continuing him in detention. The order passed by the State Government to continue him in detention was, therefore, quashed and set aside.
4. Under the circumstances we direct that the State Government shall issue directions to Superintendents of Jails to properly implement the aforesaid resolution. We also consider it necessary to issue another direction to the State Government so that what happened in the present case does not happen in future, that is to say, no prisoner who is entitled to be released on completion of seventeen years taking into account remissions earned by him, remains in jail for a day longer. We, therefore, issue the following directions to the State Government:
The State Government must appoint a Special Officer to call for returns in respect of all prisoners who have completed 16 years in jail, every six months and pass an appropriate order in advance so that no prisoner has to remain in jail after he completes 17 years including remissions. The State Government will issue a directive to all Superintendents to ensure that these directions are carried out and will direct all Superintendents of Jails to certify every month that no prisoner who has completed 17 years has remained in jail. Unless this is done the State would be keeping citizens in imprisonment without authority of law sand will be rendering itself liable to claims for damages.
5. The State Government is, therefore, directed to issue necessary instructions and the Home Secretary is directed to place on record on or before May 15, 1983 a statement satisfying the Court that appropriate directions have been issued and to assure the Court that this will not happen in future.
Subject to these directions the petition will stand disposed of having regard to the fact that the prisoner has already been released on April 1, 1982, in. view of the application made by the wife of the prisoner on March 22, 1982.