Madras High Court

Bhuvaneshvari vs The State Represented By Its; on 7 August, 2024

Author: S.M.Subramaniam

Bench: S.M.Subramaniam, V.Sivagnanam

                                                                                      W.P.No.35049 of 2023



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 07.08.2024

                                                        CORAM :

                               THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
                                                            AND
                                  THE HONOURABLE MR. JUSTICE V.SIVAGNANAM

                                                 W.P.Nos.35049 of 2023

                Bhuvaneshvari                                                ... Petitioner

                                                            Vs.


                1. The State represented by its;
                   The Secretary to Government,
                   Home Department,
                   Fort St.George,
                   Chennai 600 009.

                2. The Superintendent,
                   Salem Central Prison,
                   Salem – 636 007                                          ... Respondents


                PRAYER: Petition filed under Article 226 of the Constitution of India to issue a

                Writ of           Certiorarified mandamus   to call for the records pertaining to the

                impugned order G.O.(D) No.739/2019, dated 05.07.2019 issued by the 1st

                Page 1 of 13



https://www.mhc.tn.gov.in/judis
                                                                                    W.P.No.35049 of 2023

                respondent and quash the same and consecutively release the detenue, Nagarajan,

                S/o. Mariappan, life convict prisoner, bearing Convict No.8161 detained at Central

                Prison, Salem, prematurely, as per the G.O.(Ms) No.64, dated 01.02.2018.


                                  For Petitioner         : Dr.S.Manoharan



                                  For Respondents        : Mr.E.Raj Thilak
                                                           Additional Public Prosecutor


                                                        ORDER

(Order of the Court was made by S.M.SUBRAMANIAM, J.)

The order of the Government issued in G.O.(D)No.739, Home(Prison-IV)

Department, dated 05.07.2019 rejecting the request of the petitioner seeking

premature release of her husband/life convict prisoner No.8161/, Nagarajan @

Kozhai Nagarajan S/o. Mariappan, confined in Central Prison, Salem, at present is

under challenge in the present writ proceedings.

https://www.mhc.tn.gov.in/judis

2. The petitioner is the wife of the life convict. An application was submitted

for premature release of the life convict. The application was considered by

following due process under the Scheme and the Government passed the impugned

order in G.O.(D).No.739 Home (Prison-IV) Department, dated 05.07.2019 stating

that the crime committed by the prisoner is heinous in nature. The Government,

while examining the request of the writ petitioner seeking premature release of her

husband/life convict, made a finding that the convict is concerned in Mettur Police

Station, Crime No.105/2011 and having a case pending against him in the Court of

Assistant Sessions Judge, Mettur in Sessions Case No.303 of 2015 under Sections

302, 148, 341, & 120(B) IPC. He was convicted and sentenced to one year

Rigorous Imprisonment under Section 3 of the Indian Explosive Act, 1908.

Pertinently, the Government found that the release of the prisoner would create law

and order problems in that area. He has been involved in 11 prison offences. His

conduct in prison is not satisfactory. Thus, as per the guidelines issued in

G.O.(Ms).No.64 Home(Prison IV) Department, dated 01.02.2018, the application

for premature release was rejected.

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3. The learned counsel for the petitioner would vehemently contend that the

relevant records were not considered by the Government. He relied on the

judgment of the Hon'ble Supreme Court of India in Crl.A.No.144 of 2020 in the

case of the Home Secretary (Prison) and others /vs/ Nilofer Nisha, wherein in

paragraph 32, the Hon'ble Supreme Court made an observation that the authorities

must pass a reasoned order in case they refused to grant benefit under the scheme

for premature release. Once a reasoned order is passed, then obviously, the detenu

has a right to challenge that order but that again would not be a Writ of Habeas

Corpus, but would be more in the nature of Writ of Certiorari. In such cases,

where reasoned orders have been passed the High Court may call for the record of

the case, examine the same and after examining the same in the context of the

parameters of the scheme decide whether the order rejecting the prayer for

premature release is justified or not. In the context of the said observation, the

learned counsel for the petitioner would urge this Court that the entire records

sought to be called for by this court.

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4. We found such an exercise may not be required in view of the clear

findings made in the impugned order and in view of the counter affidavit.

5. As per the respondents, the application for premature release of the

husband of the petitioner was rejected under Advisory Board Scheme, vide

G.O.(D) No.30, Home (Prison-IV) Department, dated 06.01.2022 for the

following reasons:

“ (i) The Advisory Board has not recommended for premature

release of the above life convict.

(ii) Both the Probation Officer and the Police Have objected to

his premature release.

(iii) His conduct in the prison is not good and he was punished

for more than once for prison offences committed by him and that

the prevailing situation in the area is not conducive for his

premature release. ”

The petitioner's husband has completed 22 years, 4 months

and 25 days of imprisonment as on 29.02.2024 as tabled below :

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Calculation table as on 29.02.2024

Description Date Month Year Date taken up for calculation 29 02 2024 Date of conviction 20 10 2004 09 04 19 Add set off 1187 days(+) 02 03 03 11 07 22 Leave period 76 days (-) 16 02 00 Actual incarceration period 25 04 22

6. Hence, the contention of the petitioner in paragraph 6 of the Affidavit, that

her husband had completed nearly 25 years of imprisonment as on 29.02.2024 is

not true. Based on the orders of the Honourable Supreme Court of India, dated

08.09.2016 in Criminal Appeal No.865 of 2016 and orders rendered in Epuru

Sudhakar & Another Vs. Government of A.P. & Others, dated 11.10.2006, Maru

Ram & Others Vs Union of India & Another, dated 11.11.1980 and Union of India

Vs Srihararan @ Murugan and others, the Government of Tamil Nadu in G.O.(Ms)

No.64, Home (Prison-IV) Department, dated 01.02.2018 as amended in G.O. (Ms)

No.302, Home (Prison-IV) Department, dated 03.05.2018 have framed certain

guidelines for the consideration of grant of remission to the life convict prisoners,

who have completed 10/20 years of actual imprisonment under Article 161 of the

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Constitution of India in commemoration of the birth centenary celebration of

former Chief Minister of Tamil Nadu Dr.M.G.Ramachandran and among others

stipulated various conditions for examining the cases of eligible life convicts for

premature release on a case to case basis.

7. The petitioner's husband has completed 16 years, 06 months and 16 days

as on 25.02.2018 as tabled below:-

Calculation table as on 25.02.2018 Description Date Month Year Date taken up for calculation 25 02 2018 Date of conviction 20 10 2004 05 04 13 Add set off 1187 days(+) 02 03 03 07 07 16 Leave period 76 days (-) 21 00 00 Actual incarceration period 16 06 16

8. The case of the petitioner's husband was not considered for premature

release as per the above Government order for the following reasons:-

(1) He was convicted and sentenced to one year of Rigorous Imprisonment under section 3 of the Explosive Substances Act, 1908. As per the conditions stipulated in para 5(II) (3) of the

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above Government Order, prisoners whose cases come under section 435 of Code of Criminal Procedure are not eligible for consideration of premature release irrespective of the nature and tenure of the sentence and irrespective of the fact as to whether or not they have undergone the sentence in respect of the said offence. Since, the prisoner was convicted under section 3 of the Explosive Substances Act, 1908, his case falls under section 435(2) of Cr.P.C which made him ineligible for consideration for premature release.

(2) During his incarceration in prison, he has been awarded prison punishment, ie forfeiture of the prison privilege of interview for 3 months twice as per rule no 302 of the Tamil Nadu Prison Rules, 1983 for illegal possession of cellphone, which is a known contraband inside prison. This shows that the character of life convict prisoner No.8161, Koola Nagarajan is not satisfactory.

(3) The above life convict along with 17 others involved in the brutal murder of 5 remand prisoners and caused injury to 4 police personnel in the incident as mentioned in para 4 supra and thus he had been convicted and sentenced to life imprisonment under section 302 of the Indian Penal Code (5 counts).

The Honourable Supreme Court of India in W.P. (Criminal) No. 321 of 2018,

https://www.mhc.tn.gov.in/judis

dated 25.04.2019 in the case of Rajan Vs The Home Secretary, Home Department of Tamil Nadu & Others held as follows:-

“ 17................ In the present case however, the petitioner has been convicted for offence under section 302(3 counts) and section 307(4 counts) and has been sentenced to life imprisonment on each count. The question as to whether the petitioner should be granted remission and premature release in respect of all the counts at one stroke, is a matter to be considered by the appropriate Government in exercise of power under sections 432 and 433 of Cr.P.c. We do not wish to dilate on that aspect”

9. The respondent would submit that because of the brutal nature of offence

committed by the prisoner and his unsatisfactory conduct in prison, he is found not

eligible for premature release as per the conditions stipulated in G.O.(Ms) No.64,

Home (Prison-IV) Department, dated 01.02.2018 as amended in

G.O.(Ms.)No.302 Home (Prison-IV) Department, dated 03.05.2018. The

Government Order issued in G.O.Ms.No. 64, stipulates that the prisoner's

behaviour should be satisfactory. In the present case, the learned counsel for the

petitioner would rely on the Conduct Certificate issued by the Superintendent of

Prison, Central Prison, Salem, dated 30.10.2023. Therefore, the current conduct of

https://www.mhc.tn.gov.in/judis

the prisoner has been assessed by the Superintendent of Prison, Central Prison,

Salem in the year 2023. However, the impugned order of rejection of application

was made by the Government on 05.07.2019, 4 years prior to the certificate issued

by the Jail Superintendent, Central Prison, Salem. Therefore, the said Conduct

Certificate is of no assistance to the petitioner for the purpose of seeking any relief

in the present writ petition.

10. The application seeking premature release was considered and rejected

by the Government in G.O.(D).No.739 dated 05.07.2019 and the writ petition was

filed after a lapse of 4 years, in the year 2023. Thus, the writ petition itself is hit

by the principles of latches.

11. The subjective satisfaction of the State Level Committee and the

Government arrived need not be interfered by the High Court by exercise of the

Powers of the Judicial Review under Article 226 in the absence of any materials on

record to rebut the said findings. Therefore, the Power of Judicial Review need not

be exercised in such cases, where the subjective satisfaction of the authorities are

unambiguous and in accordance with the procedures as contemplated under the

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Scheme and the Government Orders. In the present case, the petitioner could not

able to establish that the findings of the Government in the impugned order of the

year 2019 is perverse and that being the factum, we are not inclined to interfere

with the said order. However, the petitioners are at liberty to make a fresh

representation, if they are otherwise eligible, based on their subsequent conduct or

under any other Scheme, which is available to the petitioner.

12. With these liberty, this writ petition is dismissed.

                                                                   [S.M.S., J.]         [V.S.G., J.]
                                                                             07.08.2024
                Index                  :      Yes/No                              (½)
                Speaking Order         :      Yes/No
                Neutral Citation       :      Yes/No

                mrp

                1. The Secretary to Government,
                   Home Department,
                   Fort St.George,
                   Chennai 600 009.

                2. The Superintendent,
                   Salem Central Prison,
                   Salem – 636 007

3. The Additional Chief Secretary to Government,

https://www.mhc.tn.gov.in/judis

Home (Prison-IV) Department, Secretariat, Fort St. George, Chennai – 600 009.