Madras High Court
Archunan vs The Additional Chief Secretary To ... on 17 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
W.P.No.17332 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 17.10.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
W.P.No.17332 of 2024
Archunan ... Petitioner
Vs
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai 600 009.
2. The Director General of Police &
Director General of Prisons and Correctional Service,
Whannels Road,
Egmore, Chennai – 600 008.
3. The Superintendent of Prisons,
Central Prison-I,
Puzhal, Chennai 600 066. .... Respondents
PRAYER: This Writ Miscellaneous Petition filed under Article 226 of
Constitution of India to issue a Writ of Certiorarified Mandamus to call for
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W.P.No.17332 of 2024
the records relating to the impugned order in G.O.(D).No.586,
Home(Prison-IV) Department, dated 16.05.2024 passed by the 1st
respondent and quash the same and directing the respondents to release the
petitioner, namely Archunan, Son of Madasamy, aged 46 years Ct.No.4004,
now confined in the Central Prison-1, Puzhal, Chennai-66 under the scheme
of G.O.(Ms).No.488 for premature release of life convicts.
For Petitioner : Mrs. S.Nadhiya
For Respondents : Mr. E.Raj Thilak,
Additional Public Prosecutor
ORDER
(Order of the Court is made by S.M.SUBRAMANIAM, J.)
The writ on hand has been instituted to assail the rejection order
seeking premature release of convict prisoner in G.O.(D) No.586,
Home(Prison-IV) Department, dated 16.05.2024.
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2. It is not in dispute that the petitioner/convict prisoner is actually
undergoing imprisonment for the past 14 years 8 months 17 days. The
application was submitted seeking premature release under the scheme
issued in G.O.(Ms).No.488 Home (Prison-IV) Deparment dated 15.11.2021.
On the date of application, seeking Premature release, the petitioner was
found eligible to avail the benefit of the scheme. The Government
considered the application. The State Committee recommended the case of
the petitioner for premature release under G.O.(Ms)No.488 Home (Prison-
IV) Department dated 15.11.2021. The file was circulated and the Chief
Secretary, Secretary, Legal Affairs approved the recommendations of the
State Committee and thereafter, the Hon'ble Minister for Law and the
Hon'ble Chief Minister approved the recommendations of the State
Committee for premature release of the convict prisoner. Finally, the file
was circulated to the Hon'ble Governor for approval. The Hon'ble Governor
opined that the case of the petitioner need not be considered since the
premature release of the convict prisoner would be prejudicial to justice.
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2. The reason stated is that the petitioner has involved in the offence
of house breaking, robbery and murder. Citing the nature of the offence
committed, i.e. house breaking, robbery and murder, the Hon'ble Governor
disapproved the decision of the State Committee as approved by the State
Cabinet. Consequently, the Government issued the impugned G.O.
rejecting the claim of the petitioner for premature release. Thus, the present
petition came to be instituted.
3. The learned counsel for the petitioner would submit that the
coaccused in the same case, namely, Suresh , S/o. Seetharaman, life convict
Prisoner No.4003 was prematurely released on the occasion of the 113 th
birthday of Dr.Peraringnar Anna on 15.09.2021 vide G.O.(Ms).No.510
Home(Prison-IV) Department dated 06.09.2024. Relying on the said
Government Order, the learned counsel for the petitioner would submit that
the case of the petitioner has been discriminated without any valid reason
and thus, the impugned order is to be set aside.
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4. Mr. Raj Thilak, learned Additional Public Prosecutor appearing for
the respondents would submit that the recommendations of the State
Committee was duly approved by the competent authority and finally by the
State Cabinet. In view of the descending note made by the Hon'ble
Governor, the impugned order of rejection has been issued.
5. We have carefully gone through the original files. The eligibility
for premature release of the petitioner is not in dispute with reference to the
conditions stipulated in G.O.(Ms.)No.488. The State Committee
recommended the case of the petitioner for premature release. The file was
circulated. The Deputy Secretary, the Principal Secretary, Home
Department, the Secretary, Law Department, the Chief Secretary have
approved the recommendations of the State Committee for premature
release of the petitioner. The file was circulated to the Hon'ble Minister of
Law and thereafter to the Hon'ble Chief Minister. Pertinently, the Hon'ble
Law Minister and Hon'ble Chief Minister approved the recommendations of
the State Committee for premature release of the petitioner. Finally, it was
circulated to the Hon'ble Governor for consideration. The Hon'ble
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Governor opined that the case of the petitioner deserves no merit for
consideration since the convict prisoner has involved in the case of house
breaking, robbery and murder. Taking in exception to the nature of
offence, the Hon'ble Governor had taken a descending view and
disapproved the recommendations of the State Committee for premature
release of the petitioner under the Scheme for remission.
6. The learned Additional Public Prosecutor would further submit
that since the Hon'ble Governor has taken a descending view, the
Government has issued the impugned G.O. and in all other aspects, the
Government formed an opinion that the petitioner is eligible for premature
release under the Scheme and the State Committee recommended the case of
the petitioner, which was approved by the State Cabinet. Consequently, the
Hon'ble Minister for Law and the Hon'ble Chief Minister approved the file.
7. In this backdrop, we would like to consider the implications of the
descending opinion of the Hon'ble Governor counter to the decision taken
by State Committee as approved by the State Cabinet. The Law regarding
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the powers of the Hon'ble Governor with reference to the decision taken by
the State Cabinet in the matter of premature release/remission has been
settled by the Three Judges Bench of the Hon'ble Supreme Court in the case
of A.G.Perarivalan /vs/ State through Superintendent of Police,
CBI/SIT/MMDA, Chennai reported in (2023) 8 SCC 257. The relevant
paragraphs are extracted hereunder.
“ 18. The power to grant pardons, reprieves, respites or
remissions of punishment or to suspend, remit or commute the
sentence of any person convicted of an offence against any law
related to which the executive power of the State extends is
vested in the Governor under Article 161 of the Constitution.
Article 162 makes it clear that the executive power of the State
shall extend to matters with respect to which the legislature of
the State has power to make laws. Article 163 of the
Constitution provides that there shall be a Council of Ministers
with the chief Minister at the head to aid and advise the
Governor in the exercise of his functions, except in so far as he
is by or under this Constitution required to exercise his
functions or any of them in his discretion.
19. The limits within which the executive Government
can function under the Indian Constitution can be ascertained
without much difficulty by reference to the form of the
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executive which our Constitution has set up. Our Constitution,
though federal in its structure, is modelled on the British
parliamentary system where the executive is deemed to have
the primary responsibility for the formulation of governmental
policy and its transmission into law though the condition
precedent to the exercise of this responsibility is its retaining
the confidence of the legislative branch of the State. The
Governor occupies the position of the head of the executive in
the State but it is virtually the Council of Ministers in each
State that carries on the executive Government. In the Indian
Constitution, therefore, we have the same systemof
parliamentary executive as in England and the Council of
Ministers consisting, as it does, of the members of the
legislature is , like the British Cabinet, “a hyphen which joins,
a buckle which fastens the legislative part of the State to the
executive part”.
20. Under the cabinet system of Government as
embodied in our constitution the Governor is the
Constitutional or formal head of the State and he exercises all
his powers and functions conferred on him by or under the
Constitution on the aid and advice of his Council of Ministers,
save in spheres where the Governor is required by or under
the Constitution to exercise his functions in his discretion.
Wherever the Constitution requires the satisfaction of the
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President or the Governor for the exercise of any power or
function by the President or the Governor, as the case may be,
as for example in Articles 123, 213, 311(2) proviso ©, 317,
352(1), 356 and 360, the satisfaction required by the
Constitution is not the personal satisfaction of the President or
of the governor but is the satisfaction of the President or of the
Governor in the constitutional sense under the cabinet system
of Government. It is the satisfaction of the Council of
Ministers on whose aid and advice the President or the
Governor generally exercises all his powers and functions.
.............24 . The law laid down by this Court, as detailed
above, is clear and explicit. The advice of the State Cabinet is
binding on the Governor in matters relating to
commutation/remission of sentences under Article 161. No
provision under the Constitution has been pointed out to us
nor any satisfactory response tendered as to the source of the
Governor's power to refer a recommendation made by the
State Cabinet to the President of India. In the instant case,
the Governor ought not to have sent the recommendation made
by the State Cabinet to the President of India. Such action is
contrary to the constitutional scheme elaborated above. It is
relevant to point out that the recommendation made by the
State Cabinet was on 09.09.2018,which remained pending
before the Governor for almost two-and-a-half years without a
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decision being taken. It was only when this Court started
enquiring about the reason for the decision being delayed, the
Governor forwarded the recommendation made by the State
Government for remission of the appellant's sentence to the
President of India.........
.......38. 1. The law laid down by a catena of judgments
of this Court is well settled that the advice of the State Cabinet
is binding on the Governor in the exercise of his powers under
Article 161 of the Constitution.
38.2. Non-exercise of the power under Article 161 or
inexplicable delay in exercise of such power not attributable to
the prisoner is subject to judicial review by this Court,
especially when the State Cabinet has taken a decision to
release the prisoner and made recommendations to the
Governor to this effect.
38.3. The reference of the recommendation of the Tamil
Nadu Cabinet by the Governor to the President of India two-
and-a-half years after such recommendation had been made is
without any constitutional backing and is inimical to the
scheme of our Constitution, whereby “ the Governor is but a
shorthand expression for the State Government” as observed
by this Court.
38.4. The judgment of this Court in M.P.Special Police
Establishment has no applicability to the facts of this case and
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neither has any attempt been made to make out a case of
apparent bias of the State Cabinet or the State Cabinet having
based its decision on irrelevant considerations, which formed
the fulcrum of the said judgment.
38.5. The understanding sought to be attributed to the
judgment of this Court in Sriharan with respect to the Union
Government having the power to remit/commute sentences
imposed under Section 302 IPC is incorrect, as no express
executive power has been conferred on the Centre either under
the Constitution or law made by Parliament in relation to
Section 302. In the absence of such specific conferment, it is
the executive power of the State that extends with respect to
Section 302 IPC, assuming that the subject matter of Section
302 IPC is covered by List III Entry 1.
38.6. Taking into account the appellant's prolonged
period of incarceration, his satisfactory conduct in jail as well
as during parole,chronic ailments from his medical records,
his educational qualifications acquired during incarceration
and the pendency of his petition under Article 161 for two-and-
a-half years after the recommendation of the State Cabinet, we
do not consider it fit to remand the matter for the Governor's
consideration. In exercise of our power under Article 142 of
the Constitution, we direct that the appellant is deemed to have
served the sentence in connection with Crime No.329 of 1991.
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The appellant, who is already on bail, is set at liberty
forthwith. His bail bonds are called. “
8. Pertinently in the case of the State of Haryana and others /vs/ Raj
Kumar @ Bittu reported in 2021 (9) SCC 292, the Apex Court reiterated
that the power under Article 161 of the Constitution can be exercised by the
State Governments, not by the Governor on his own. The advice of the
appropriate Government binds the Head of the State, which reads as under:
“ 12. Thus, the power under Article 161 of the
Constitution can be exercised by the State Governments, not by
the Governor on his own. The advice of the appropriate
Government binds the Head of the State. No separate order
for each individual case is necessary but any general order
made must be clear enough to identify the group of cases and
indicate the application of mind to the whole group.
Therefore, the policies of the State Government are composite
policies encompassing both situations under Article 161 of the
Constitution and Sections 432, 433 and 433-A of the Code.
The remission under Article 161 of the Constitution will
override Sectiion 433-A of the Code, if the State Government
decides to be governed of its constitutional power.
.........19. Section 433-A of the Code starts with a non-
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obstante clause restricting the right of the appropriate
Government, to suspend the sentence of imprisonment for life
imposed on conviction of a person for an offence for which
death is one of the punishments provided by law, that such
person shall not be released from prison unless he has served
at least 14 years of imprisonment. Therefore, the power of the
appropriate Government to release a prisoner after serving 14
years of actual imprisonment is vested with the State
Government. On the other hand, the power conferred on the
governor, though exercised on the aid and advice of the State,
is without any restriction of the actual period of imprisonment
undergone by the prisoner. Thus, if a prisoner has undergone
more than 14 years of actual imprisonment, the State
Government, as an appropriate government, is competent to
pass an order of premature release, but if the prisoner has not
undergone 14 years or more of actual imprisonment, the
Governor has a power to grant pardons, reprieves, respites
and remissions of punishment or to suspend, remit or commute
the sentence of any person dehors the restrictions imposed
under Section 433-A of the Constitution. Such power is in
exercise of the power of the sovereign, though the Governor is
bound to act on the aid and advice of the State Government.
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9. The question arises whether High Court in exercise of powers of
judicial review can interfere with the decision taken by the Hon'ble
Governor under Article 161 of the Constitution of India. The answer is
found in the case of Epuru Sudhakar and another /vs/ Government of
Andhrapradesh and others reported in 2006(8) SCC 161, wherein the
Court held as follows:
“ 34. The position, therefore, is undeniable that judicial
review of the order of the President or the Governor under
Article 72 or Article 161, as the case may be, is available and
their orders can be impugned on the following grounds:
a. that the order has been passed without
application of mind;
b. that the order is malafide;
c. that the order has been passed on extraneous or
wholly irrelevant considerations;
d. that relevant materials have been kept out of
consideration ;
e. that the order suffers from arbitrariness. “”
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10. Holistic reading and consideration of the principles settled by the
Apex Court of India, the question to be considered by this Court is whether
Hon'ble Governor is bound by State's recommendations in the matter
relating to premature release or not ?.
11. The Law laid down by a catena of Judgments of this Court is well
settled that the advice of the State Cabinet is binding on the Governor in the
exercise of his power under Article 161 of the Constitution of India. It is
held that non exercise of the Power under Article 161 or inexplicable delay
in exercise of such power not attributable to the prisoner is subject to the
judicial to the review by the Court, especially when the State Cabinet has
taken a decision to release the prisoner and made recommendations to the
Hon'ble Governor to this effect.
12. The power under Article 161 of the Constitution can be exercised
by the State Governments, not by the Governor on his own. The advice of
the appropriate Government binds the Head of the State. No separate order
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for each individual case is necessary, but any general order made must be
clear enough to identify the group of cases and indicate the application of
mind to the whole group. Therefore, the policies of the State Government
are composite policies encompassing both situations under Article 161 of
the Constitution and Section 432, 433 and 433(A) of the Code. The
remission under Article 161 of the Constitution will override Section
433(A) of the Code, if the State Government decides to be governed of its
constitutional Power.
13. The Judicial scrutiny on the Constitutional power to grant
remission by the Governor under Article 161 is also settled by the Courts. In
the case of Epuru Sudhakar cited supra,the principles are laid down that if
the order has been passed on extraneous or wholly irrelevant considerations
or relevant materials have been kept out of consideration, the Courts are
empowered to exercise the powers of Judicial Review for interference.
14. The power of an appropriate Government to issue General or
Special orders allowing remissions is traceable under Section 432 Cr.P.C.
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and the policies in question were framed in exercise of the powers conferred
on appropriate Government under Section 432 Cr.P.C. and hence, are
statutory in nature. In the context of the above policy, the power under
Article 161 can be exercised by the State Government, not by the Governor
on his own. The advice of appropriate Government binds the Head of the
State.
15. The co-convict in the present case, namely, Mr.Suresh S/o.
Seetharaman, has already been prematurely released by the Government in
G.O.(Ms).No.510 Home (Prison-IV) Department, dated 06.09.2024 on the
occasion of the 113th birthday of Dr.Peraringnar Anna on 15.09.2021. The
said fact was not considered by the Hon'ble Governor while deciding the
issues. It would be insufficient to merely reject an application for premature
release on the ground that the offence committed is heinous in nature. For
the offence committed, the prisoner actually underwent imprisonment and
the scheme itself provides eligibility criteria for grant of remission. When
the scheme is approved by the Government and is of statutory in nature,
thereafter, raising any doubt regarding the offence proved would have no
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implication and thus, the extraordinary and exceptional circumstances must
stand beyond the scrutiny of the scheme and in normal circumstances, such
a stand would not only dilute the scheme of remission, but will defeat the
scheme by itself. Therefore, we are not convinced with the decision taken
by the Hon'ble Governor disapproving the recommendation of the State
Committee and the approval granted by the State Cabinet signed by the
Hon'ble Minister for Law and the Hon'ble Chief Minister and the Chief
Secretary to Government of Tamil Nadu.
16. We are aware that the premature release is not an absolute right.
The Government order issued in G.O.(Ms).No.488, Home (Prison-IV)
Department, dated 15.11.2021, itself stipulates that the guidelines frighting
into the eligibility of life convict for consideration of the Government and
mere fulfilment of conditions prescribed in the guidelines does not confer
any right for premature release of life convicts. Therefore, it is not an
absolute right to be claimed by a convict prisoner. Since it is a scheme
formulated by the State Government, which is statutory in nature, and when
the High Court in exercise of the powers of Judicial Review finds that the
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decision taken and the reasons stated for passing the impugned order are
neither candid nor convincing, the Court is left with no option but to
remand the matter back to the Government for recirculation and for fresh
consideration.
17. Accordingly, this Writ Petition is allowed and the order impugned
passed by the first respondent in G.O.(D).No.586, Home (Prison-IV)
Department, dated 16.05.2024 is quashed and the first respondent/
Government is directed to recirculate the files and thereafter, take a decision
afresh and issue orders on merits and in accordance with law as
expeditiously as possible.
[S.M.S., J.] [V.S.G., J.]
17.10.2024
1. The Additional Chief Secretary to Government,
Home, Prohibition and Excise Department,
Secretariat, Chennai 600 009.
2. The Director General of Police &
Director General of Prisons and Correctional Service,
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Whannels Road,
Egmore, Chennai – 600 008.
3. The Superintendent of Prisons,
Central Prison-I,
Puzhal, Chennai 600 066.
4. The Public Prosecutor,
High Court, Madras.
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S.M.SUBRAMANIAM, J.
AND
V.SIVAGNANAM, J.
mrp
17.10.2024
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