Madras High Court
Mrs.A.Narkis Banu vs The State Represented By Its on 9 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3354
W.P.No.13241 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.13241 of 2024
Mrs.A.Narkis Banu .. Petitioner
v.
1. The State represented by its
The Principal Secretary to Government
Home Department, Secretariat
Chennai 600 009
2. The Director General of Prison
Gandhi Irwin Road
Egmore, Chennai 600 008
3. The Superintendent of Prison
Central Prison at Salem
Hasthampatty .. 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.213 dated 27.02.2024 passed by
the 1st respondent and quash the same and directing the respondents to
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W.P.No.13241 of 2024
release the petitioner/convict namely Mr.Ahamed Basha @ Neethinathan,
S/o Thiyagarajan.
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.213, Home (Prison-IV) Department dated
27.02.2024, 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 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
recommendations of the State Committee and arrived at a conclusion that it
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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
premature release was rejected on the ground that the nature of offence
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committed by the convict prisoner is brutal. Whether such reasoning is
warranted or not with reference to other similarly placed cases where
premature release were considered, is 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 brutal,
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.
7. It is relevant to rely on the judgment of the Hon'ble Supreme Court
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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,
but not reaching the level of 'rarest of rare' (warranting the
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death penalty), the state government cannot – especially by way
of executive instruction, take on such a role, for crimes as it
deems fit.”
8. In view of the fact that the case of the convict prisoner in the
present case has been recommended by the State Committee and the reasons
assigned in the impugned order would be insufficient to satisfy the exercise
of the powers of discretion conferred in the Government Order, more
specifically in para 2(G) of G.O.(Ms)No.488, 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.213, Home
(Prison-IV) Department dated 27.02.2024 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 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
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allowed. Consequenty, W.M.P.No.14380 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 Department, Secretariat
Chennai 600 009
2. The Director General of Prison
Gandhi Irwin Road
Egmore, Chennai 600 008
3. The Superintendent of Prison
Central Prison at Salem
Hasthampatty
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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