Madras High Court
Veera Bharathi vs The State Of Tamilnadu on 17 October, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
W.P.No.14908 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.14908 of 2024
Veera Bharathi ... Petitioner
Vs
1. The State of Tamilnadu,
rep. By The Principal Secretary to Government,
Home (Prison) Department,
TN Govt. Chief Secretariat,
St. George Fort,
Chennai 600 009.
2. The AdDGP/DGP of Prisons and Correctional Services,
TN Prison Head Quarters,
Whannels Road,
Egmore, Chennai – 600 008
3. The DIG of prisons (Chennai Range)
TN Prison Head Quarters,
Whannels Road,
Egmore, Chennai – 600 008.
4. The Superintendent,
Central Prison-I,
Puzhal, Chennai 600 066. .... Respondents
Page 1 of 21
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W.P.No.14908 of 2024
PRAYER: This Writ Miscellaneous Petition filed under Article 226 of
Constitution of India to issue a Writ of Certiorarified Mandamus to call for
the entire records relating to the impugned order in G.O.(D).No.398,
Home(Prison-IV) Department, dated 20.03.2024 passed by the 1st respondent
which arbitrarily rejected the petitioner's premature release from life
imprisonment, and quashing the same as illegal and consequently directing
the respondents to prematurely release the petitioner (Veera Bharathi, S/o.
Ponniah, aged about 53/2024 years, LCP No.7209, Central Prison-I, Puzhal,
Chennai) from life imprisonment by giving the benefit of the policy
G.O.(MS) No.430, Home (Prison-IV) Department, dated 11.08.2023 and as
well as under the provisions of Articles 14, 20(1) and 21 of the Constitution
of India.
For Petitioner : Mr. Mr.R.Sankara Subbu
for
Mr.D.Mario Johnson
For Respondents : Mr.Hasan Mohamed Jinna,
State Public Prosecutor,
Assisted by
Mr. E.Raj Thilak,
Additional Public Prosecutor
Page 2 of 21
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W.P.No.14908 of 2024
ORDER
(Order of the Court is made by S.M.SUBRAMANIAM, J.)
Under assail is the order of the Government issued in G.O.(D)
No.398, Home(Prison-IV) Department, dated 20.03.2024.
2. The facts in brief would reveal that the petitioner is a life convict
prisoner, admittedly completed more than 20 years of actual imprisonment.
The Trial Court imposed sentence of Death Penalty, which was modified by
the High Court as Life Sentence. The judgment of the High Court was
affirmed by the Hon'ble Supreme Court of India.
3. Mr. Sankara Subbu, the learned counsel appearing for the petitioner
would mainly contend that co-accused in the Criminal case Mr.Ilango @
Murugan S/o. Paulchamy naicker, was prematurely released by the
Government in G.O.Ms.No.184/Home (Prison-IV) Department, dated
06.03.2024. Scheme introduced by the Government in G. O. (Ms) No.430,
Home (Prison-IV) Department, dated 11.08.2023 contemplates eligibility for
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premature release. When the benefit of premature release was granted in
favour of co-accused, namely, Ilango @ Murugan S/o. Paulsamy Naicker,
the said benefit is to be extended to the petitioner before this Court. He
cannot be discriminated since the petitioner also had undergone the actual
imprisonment for more than 20 years. The eligibility for premature release
as contemplated in the said G.O.(Ms)No.430 is completion of 14 years of
imprisonment. For all these reasons, the order impugned is to be set aside.
4. Mr. Hasan Mohamed Jinna, learned State Public Prosecutor
appearing for the respondents produced the original files relating to the
impugned G.O.(D).No.398, Home (Prison -IV) Department, dated
20.03.2024.
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.430. The State Committee
recommended the case of the petitioner for premature release. The file was
circulated. The Deputy Secretary, the Principal Secretary, Home
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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 Governor
opined that the case of the petitioner deserves no merit for consideration
since the convict prisoner is a pedophile and he raped and killed a minor girl.
Taking in exception to the nature of offence, the Hon'ble Governor had
taken a dissenting view and disapproved the recommendations of the State
Committee for premature release of the petitioner under the Scheme for
remission.
6. The learned State Public Prosecutor would further submit that
since the Hon'ble Governor has taken a dissenting 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
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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
dissenting opinion of the Hon'ble Governor counter to the decision taken by
State Committee as approved by the State Cabinet. The Law regarding 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
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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 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,
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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 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
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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
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
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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
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
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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.
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
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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-
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
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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.
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
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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. “”
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
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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
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 irrelavant considerations
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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.
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. In the present case, we have considered the reasons assigned for
rejection of sentence by High Court against the sentence of Death Penalty
imposed by the Trial Court. The High Court made an observations that
“who has actually murdered the Girl is therefore remained a mystery. Again
it cannot be said as to which accused has played what part”. The said
finding by the High Court resulted in reduction of sentence from Death
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Penalty to Life Sentence. When such a finding is the reason for reduction of
sentence, we are of the considered opinion that the opinion formed by the
Hon'ble Governor may not be wholly relevant with reference to the
commission of offence by the petitioner in the present case. That apart, the
co-convict in the present case, namely, Mr. Ilango @ Murugan S/o.
Paulchamy Naicker, has already been prematurely released by the
Government in G.O.(Ms).No.184 Home (Prison-IV) Department, dated
06.03.2024. 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 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
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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.430, Home (Prison-IV)
Department, dated 11.08.2023, 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
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.
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17. Accordingly, this Writ Petition is allowed and the order impugned
passed by the first respondent in G.O.(D).No.398, Home (Prison-IV)
Department, dated 20.03.2024 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 Principal Secretary to Government,
Home (Prison) Department,
TN Govt. Chief Secretariat,
St. George Fort, Chennai 600 009.
2. The AdDGP/DGP of Prisons and Correctional Services,
TN Prison Head Quarters,
Whannels Road,
Egmore, Chennai – 600 008
3. The DIG of prisons (Chennai Range)
TN Prison Head Quarters,
Whannels Road,
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Egmore, Chennai – 600 008.
4. The Superintendent,
Central Prison-I,
Puzhal, Chennai 600 066.
5. 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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