Madras High Court
Annalakshmi vs State Of Tamil Nadu on 8 November, 2022
W.P(MD)No.16528 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.11.2022
CORAM
THE HON'BLE MR JUSTICE M.S.RAMESH
AND
THE HON'BLE MR JUSTICE N. ANAND VENKATESH
W.P(MD)No.16528 of 2019
and
W.M.P(MD)No.13179 of 2019
Annalakshmi .. Petitioner
Vs.
1.State of Tamil Nadu,
Rep by the Additional Chief Secretary to Government,
Home (Prison-IV) Department,
Secretariat, Fort St George,
Chennai-600 009.
2.The Additional Director General of Police/
Inspector General of Prison,
No.1, Gandhi Irwin Salai,
Egmore,
Chennai-600 008.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai-625 016. .. Respondents
Petition filed under Article 226 of the Constitution of India to issue a
writ of Certiorarified Mandamus, calling for the records pertaining to the
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W.P(MD)No.16528 of 2019
impugned order made in G.O.(D)No.285 Home (Prison-IV) Department,
dated 14.03.2019 passed by the 1st respondent and quash the same as illegal
and consequently, direct the respondents to treat the petitioner's husband
namely Sivakannan, S/o.Kundumalai (C.P.No.3832) as having become
eligible for the Premature release by G.O.(MD)No.1155 Home (Prison-IV)
Department, dated 11.09.2008 and G.O.(MD)No.64, Home (Prison-IV)
Department, dated 01.02.2018 and release him forthwith.
For Petitioner :Mr.C.Mayilvahana Rajendran
For Respondents :Mr.A.Thiruvadikumar,
Additional Public Prosecutor
ORDER
(Order of the Court was made by N. ANAND VENKATESH.J.,)
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
The subject matter of challenge in this writ petition pertains to
G.O.(D)No.285 Home (Prison-IV) Department, dated 14.03.2019 whereby
the request made by the petitioner for the premature release of her husband,
in the light of the G.O.(MD)No.64, Home (Prison-IV) Department, dated
01.02.2018 was rejected by the first respondent.
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W.P(MD)No.16528 of 2019
2.The husband of the petitioner faced trial along with 16 other
accused persons and through judgment dated 10.09.2001, the husband of the
petitioner and others were convicted for offence under Section 302 of IPC
and Section 25(1-B)(a) r/w. Section 4 of Indian Arms Act. Insofar as the
offence under Section 302 IPC is concerned, he was sentenced to undergo
life imprisonment and for the offence under the Arms Act, he was sentenced
to undergo six months rigorous imprisonment. The judgment of the trial
Court was also confirmed by this Court in Crl.A(MD)No.991 of 2001
through judgment dated 03.03.2006.
3.In view of the above, the husband of the petitioner had undergone
19 years of imprisonment. Therefore, a representation was made to the
respondent seeking for premature release by relying upon two Government
Orders viz., G.O.(MD)No.1155 Home (Prison-IV) Department, dated
11.09.2008 and G.O.(MD)No.64, Home (Prison-IV) Department, dated
01.02.2018. The representation made by the petitioner was rejected by the
first respondent through the impugned Government Order. Aggrieved by the
same, the present writ petition has been filed before this Court.
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W.P(MD)No.16528 of 2019
4.The respondents have filed a counter affidavit. The main stand that
has been taken by the respondents is that the detenu is not entitled to be
considered for premature release under G.O.Ms.No.1155, dated 01.09.2008,
since the detenu did not satisfy the eligibility criteria of completing 7 years
of imprisonment as on 15.09.2008. Insofar as G.O.Ms.No.64, dated
01.02.2018 is concerned, the objection raised by the respondents is that the
detenu has been convicted under the Arms Act and it is a Central Legislation
and hence, the State cannot order for the premature release of the detenu.
5.Heard Mr.C.Mailvahana Rajendran, learned counsel appearing for
the petitioner and Mr.A.Thiruvadi Kumar, learned Additional Public
Proseuctor appearing for the respondents.
6.We carefully considered the submissions made on either side and
perused the materials available on record.
7.We carefully went through the Government Order in G.O.Ms.No.
64, dated 01.02.2018. In the said Government Order, there are certain
categories of offence where the detenu will not be eligible for being
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W.P(MD)No.16528 of 2019
considered for premature release. One such category is where the detenu is
convicted and sentenced in a case which falls within the purview of Section
435 of the Code of Criminal Procedure. Section 435 of Cr.P.C., deals with
the cases where the State Government can act only after consultation with
Central Government. This clause is put against the detenu mainly on the
ground that apart from the detenu being convicted and sentenced for offence
under Section 302 of IPC, he has also been convicted for the offence under
the Arms Act. Therefore, the respondents have taken a stand that the
premature release of the detenu cannot be considered under G.O.Ms.No.64,
dated 01.02.2018, in view of the bar.
8.Insofar as the first ground, we have to consider as to whether there
is a total bar for the respondents to consider the premature release in a case
where the detenu has been convicted and sentenced for the offence which
has been specified in the relevant Government Order. While dealing with
this issue, the Co-ordinate Bench of this Court in Roja Venkatesh-vs-State
and Ors., reported in (2021)2 L.W(Cri.) 165, has held that even for the
offences, which are shown to be a bar under the relevant G.O., if the
prisoner/detenu has already completed the imprisonment for the relevant
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W.P(MD)No.16528 of 2019
offence, the same cannot be put against the detenu. The reason given by the
Co-ordinate Bench was that as on the date when the premature release is
considered, if the only offence for which the detenu is undergoing sentence
is life imprisonment, that alone should be taken into consideration where for
all the other offences, the detenu has already suffered the sentence. While
coming to the conclusion, the Co-ordinate Bench had placed reliance upon
the following judgments:
(a).Union of India-vs-V.Sriharan @ Murugan[(2016) 7 SCC 1]
(b).Sate of Tamil Nadu and Others-vs-P.Veera Bhaarathi[(2019) 18
SCC 71
(c).Sanaboina Sathyanarayana-vs-Government of Andhra Pradesh
and others[(2003) 10 SCC 78]
9.In view of the above issue, we are of the considered view that just
because the detenu was convicted for the offence under Section 25(1-B)(a)
r/w Section 4 of Indian Arms Act, that by itself cannot be a bar for
considering the premature release of the detenu, since the detenu was
sentenced to undergo 6 months imprisonment for the said offence and he
has already suffered the sentence. What remains is only the life
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W.P(MD)No.16528 of 2019
imprisonment which is now being undergone by the detenu for the offence
under Section 302 IPC.
10.The next issue that arises for consideration is as to whether
Section 435 of Cr.P.C., is a complete bar for the State to consider for
premature release. This issue is also no longer res integra and the
Co-ordinate Bench of this Court in the case of C.Amutha-vs-The Home
Secretary, Home Depratment and Ors., reported in 2018(3)MWN (crl.)
342, has held as follows:
“6.By way of reply, Mr.Mohamed Saifulla, learned
counsel appearing for the petitioner would submit that the
Honourable Supreme Court in Rajiv Gandhi's Assassination
case in Union of India Vs.V.Sriharan @ Murugan and others
in W.P.(Crl).No.48 of 2014 with Crl.M.P.Nos.6280-6281 of
2017 by order dated 06.09.2018 has held as follows:-
“From the documents filed on 01.09.2018 by the
learned counsel, it appears that an application
under Article 161 of the Constitution has been filed
before the Governor of Tamil Nadu by the respondent-
A.G.Perarivalan @ Arivu. Naturally, the authority
concerned will be at liberty to decide the said application
as deemed fit.”
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W.P(MD)No.16528 of 2019
Therefore, it is clear that the State Government is at liberty to
take a decision on this aspect, which can be forwarded to His
Excellency The Governor for taking a decision in this regard.
Therefore, it is clear that there is no prohibition for the State
Government to make recommendation if it deems fit. It is
clear from the records that as on date the petitioner's son has
been in jail for the past 14 years 8 months and 4 days. Hence,
G.O.Ms.No.64, dated 01.02.2018 is squarely applicable to the
facts of the case.
7.Even as per the Judgment of the Honourable
Supreme Court, the State Government has got power to
decide about the matters, where the offences under Central
Government's Act is involved. Therefore, the petitioner's
representation for release of her son dated 31.07.2018 has to
be considered. It is also seen from the records that the 3rd
respondent had already rejected the representation of the
petitioner, who is the mother of the convict dated 31.07.2018
as the petitioner's son was involved in the offence under Arms
Act.
8.In view of the Judgment of the Honourable Supreme
Court in Rajiv Gandhi's Assassination case, the rejection of
the petitioner's representation is not sustainable. Therefore,
the communication of the 3rd respondent in Letter No.
4787/jF.1/2018, dated 25.09.2018 is set aside and the 3rd
respondent is directed to reconsider the issue afresh, within a
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W.P(MD)No.16528 of 2019
period of six weeks from the date of receipt of a copy of this
order as there is no prohibition for the 3rd respondent for
making recommendation in view of the offence involved in
this case under the Arms Act. To put it in other words, the
convict is eligible to get the benefit under G.O.Ms.No.64 as
there is no prohibition for the convict to be considered for
premature release.
11.It is clear from the above judgment that even where the offence
involved pertains to a Central Legislation, the State Government has got the
power to decide on the issue of premature release. While coming to such
conclusion, the Co-ordinate Bench has placed reliance upon the judgment of
the Hon'ble Apex Court in Rajiv Gandhi's Assassination Case.
12.In the instant case, the impugned G.O was issued only by placing
reliance upon Section 435 of Cr.P.C., and the premature release sought for
by the petitioner was rejected. In view of the above reasoning, we are
inclined to interfere with the impugned G.O., issued by the first respondent
and accordingly, the same is hereby set aside.
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W.P(MD)No.16528 of 2019
13.The matter is remanded back to the file of the third respondent and
the third respondent is directed to make the recommendation/proposal to the
Screening Committee within a period of four weeks from the date of receipt
of a copy of this order. On such receipt of the recommendation/proposal, the
Screening Committee shall take a decision as per G.O.(MD)No.64, Home
(Prison-IV) Department, dated 01.02.2018 keeping in mind the observation
made by this Court in this order and place the recommendation before the
first respondent, within a period of six weeks thereafter and the first
respondent, on receipt of the same, shall pass final orders within a period of
eight weeks thereafter.
14.This Writ Petition is allowed with the above directions. No costs.
Consequently, connected miscellaneous petition is closed.
(M.S.R.,J.) (N.A.V.,J.)
08.11.2022
Index : Yes/No
Internet : Yes
Ns
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W.P(MD)No.16528 of 2019
To
1.The Additional Chief Secretary to Government,
State of Tamil Nadu
Home (Prison-IV) Department,
Secretariat, Fort St George,
Chennai-600 009.
2.The Additional Director General of Police/
Inspector General of Prison,
No.1, Gandhi Irwin Salai,
Egmore,
Chennai-600 008.
3.The Superintendent of Prison,
Madurai Central Prison,
Madurai-625 016.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
W.P(MD)No.16528 of 2019
M.S.RAMESH,J.
and
N. ANAND VENKATESH,J.
Ns
W.P(MD)No.16528 of 2019
and
W.M.P(MD)No.13179 of 2019
08.11.2022
https://www.mhc.tn.gov.in/judis
