Madras High Court
Mr.Shanmuga Ganesan @ Ganesan vs The State Represented By Its on 9 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3355
W.P.No.13236 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.09.2024
CORAM :
THE HON'BLE MR. JUSTICE S.M.SUBRAMANIAM
AND
THE HON'BLE MR.JUSTICE V.SIVAGNANAM
W.P.No.13236 of 2024
Mr.Shanmuga Ganesan @ Ganesan
S/o Chinnasamy .. Petitioner
v.
1. The State represented by its
The Principal Secretary to Government
Home (Prison-IVA) Department, Secretariat
Fort St.George, Chennai 600 009
2. The Director General of Prisons
Gandhi Irwin Road, CMDA Building
2nd Tower, Egmore, Chennai 600 008
3. The Superintendent of Prison
Central Prison at Coimbatore
Gandhipuram, Coimbatore-12 .. Respondents
Writ Petition filed under Article 226 of the Constitution of India,
praying for issuance of a Writ of Certiorarified Mandamus, to call for the
records in impugned order in G.O.(D)No.1191 dated 16.10.2023 passed by
the 1st respondent and quash the same and directing the respondents to
release the petitioner/convict namely Mr.Shanmuga Ganesan @ Ganesan,
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W.P.No.13236 of 2024
S/o Chinnasamy (CT 13898) who is confining at 3rd respondent herein.
For Petitioner :: Mr.M.Mohamed Saifulla
For Respondents :: Mr.E.Raj Thilak
Additional Public Prosecutor
ORDER
(Order of the Court was made by S.M.SUBRAMANIAM,J.)
The rejection of an application seeking premature release of convict
prisoner issued in G.O.(D)No.1191, Home (Prison-IVA) Department dated
16.10.2023, is sought to be assailed in the present proceedings. The
conviction imposed on the prisoner was confirmed in appeal by this Court.
Since the convict prisoner completed ten years, submitted an application
under the Government policy for premature release issued in
G.O.(Ms)No.488, Home (Prison-IV) Department dated 15.11.2021 as
amended in G.O.(Ms)No.508, Home (Prison-IV) Department dated
18.11.2021.
2. The case of the petitioner is that the application seeking premature
release in pursuance of the G.O.(Ms)No.488, Home (Prison-IV) Department
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dated 15.11.2021, was processed by following the due procedures. The
State Committee recommended the case of the prisoner on the ground that
the prisoner comply with the requirements as contemplated under the said
G.O.(Ms)No.488. Recommendation was placed before the Government for
taking an appropriate decision. The Government rejected the application
mainly on the ground that the nature of offence committed by the life convict
prisoner was brutal and he has not yet served 14 years in prison and hence
his remission would be premature.
3. The learned counsel for petitioner Mr.M.Mohamed Saifulla would
contend that the said blanket reason would not satisfy the directives issued
by the Hon'ble Supreme Court of India. The reason assigned in the
impugned Government Order would be insufficient to sustain the order and
thus this Court has to interfere.
4. The learned Additional Public Prosecutor Mr.Raj Thilak would
oppose by stating that the Government is empowered to exercise its
discretion to release a prisoner prematurely. The Government considered the
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recommendations of the State Committee and arrived at a conclusion that it
is not desirable to release the convict prisoner in the present case, since the
nature of offence committed by the life convict prisoner was brutal. Such
reason satisfies the condition prescribed in para 2(G) of G.O.Ms.No.488
dated 15.11.2021. Thus, the writ petition is to be rejected.
5. The power of judicial review of the High Court under Article 226 of
the Constitution of India is to ensure the processes through which the
decision has been taken by the competent authorities in consonance with the
statutes and rules in force, but not the decision itself. We are not in the
process of testing the nature of policy of the Government for premature
release of convict prisoners. However, in exercise of the powers of judicial
review, the High Court has to scrutinize whether the power of discretion has
been exercised diligently in compliance with the rules of natural justice or
otherwise.
6. No doubt the impugned rejection order, despite the
recommendations of the State Committee, states that the application for
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premature release was rejected on the ground that the nature of offence
committed by the convict prisoner is brutal and he has not served 14 years in
prison. Whether such reasonings are warranted or not with reference to
other similarly placed cases where premature release were considered, are to
be looked into by the Government. While considering similar cases, the
Government is expected to exercise its discretion uniformly, consistently and
without causing any discrimination amongst the life convict prisoners.
Therefore, while assigning reasons, if any similar cases are noticed, then the
Government has to look into the nature of those offence and its seriousness
or heinousness and thereafter take a decision. Mere rejection on the ground
that the offence is heinous, would be insufficient for rejection of the
application. While exercising the powers of discretion, the reasonings are to
be given. The reasons are lifeline for the decision taken administratively and
therefore the Government, while considering the applications along with the
recommendations of the State Committee, has to assign proper reasons in
each and every case, since the Scheme provides for premature release of
convict prisoners on completion of ten years of imprisonment.
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7. It is relevant to rely on the judgment of the Hon'ble Supreme Court
of India in the case of Joseph v. State of Kerala reported in
MANU/SC/1049/2023 dated 21.09.2023, wherein the following observations
are made:-
“28. To issue a policy directive, or guidelines, over and above
the Act and Rules framed (where the latter forms part and
parcel of the former) and undermine what they encapsulate,
cannot be countenanced. Blanket exclusion of certain offences,
from the scope of grant of remission, especially by way of an
executive policy, is not only arbitrary, but turns the ideals of
reformation that run through our criminal justice system, on its
head. Numerous judgments of this Court, have elaborated on
the penological goal of reformation and rehabilitation, being the
cornerstone of our criminal justice system, rathen than
retribution. The impact of applying such an executive
instruction/guideline to guide the executive's discretion would
be that routinely, any progress made by a long-term convict
would be rendered naught, leaving them feeling hopeless, and
condemned to an indefinite period of incarceration. While the
sentencing courts may, in light of this Court's majority
judgment in Sriharan (supra), now impose term sentences (in
excess of 14 or 20 years) for crimes that are specially heinous,
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but not reaching the level of 'rarest of rare' (warranting the
death penalty), the state government cannot – especially by way
of executive instruction, take on such a role, for crimes as it
deems fit.”
8. When the Scheme in G.O.(Ms)No.488 dated 15.11.2021 stipulates
ten years of imprisonment as the benchmark for considering the application
seeking premature release and the fact remains that the life convict prisoner
in the present case has already undergone imprisonment for more than ten
years, the reasoning for rejecting the application seems to be running counter
to the terms and conditions under the Scheme. Hence, we are inclined to
remand the matter back to the Government for recirculation and to take a
decision by assigning reasons which must be consistent and uniform in the
matter of deciding the application seeking premature release by the life
convict prisoners. Accordingly, the impugned order in G.O.(D)No.1191,
Home (Prison-IVA) Department dated 16.10.2023 is quashed and the case
is remanded back to the first respondent for the purpose of reconsideration
and recirculation and pass appropriate orders on merits and as per the
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Scheme, as expeditiously as possible and preferably within a period of eight
weeks from the date of receipt of a copy of this order. The writ petition
stands allowed. Consequently, W.M.P.No.14379 of 2024 is closed. No
costs.
Index : yes (S.M.S.,J.) (V.S.G.,J.)
Neutral citation : yes 09.09.2024
ss
To
1. The Principal Secretary to Government
Home (Prison-IVA) Department
Fort St.George, Chennai 600 009
2. The Director General of Prisons
Gandhi Irwin Road, CMDA Building
2nd Tower, Egmore, Chennai 600 008
3. The Superintendent of Prison
Central Prison at Coimbatore
Gandhipuram, Coimbatore-12
4. The Public Prosecutor
High Court, Madras
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S.M.SUBRAMANIAM,J.
AND
V.SIVAGNANAM,J.
ss
09.09.2024
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