Madras High Court
Mrs.Sundari vs The State Represented By Its on 9 September, 2024
Author: S.M.Subramaniam
Bench: S.M.Subramaniam, V.Sivagnanam
2024:MHC:3350
W.P.No.14117 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.14117 of 2024
Mrs.Sundari
W/o Subbaiah .. 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 Palayamkottai
Palayamkottai 627 002 .. 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.291 dated 07.03.2024 passed by
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W.P.No.14117 of 2024
the 1st respondent and quash the same and directing the respondents to
release the brother of petitioner/convict namely Mr.Thambiran @
Marthandan, S/o Kolappa Velar (CT No.6841) 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.291, Home (Prison-IV) Department dated
07.03.2024, 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 fourteen years, submitted an
application under the Government policy for premature release issued in
G.O.(Ms)No.430, Home (Prison-IV) Department dated 11.08.2023.
2. The case of the petitioner is that the application seeking premature
release in pursuance of the G.O.(Ms)No.430, Home (Prison-IV) Department
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dated 11.08.2023, was processed by following the due procedures. The
Government rejected the application on the ground that the remission would
be premature and prejudicial to justice.
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, after going
through the records, arrived at a conclusion that it is not desirable to release
the convict prisoner in the present case. Thus, the writ petition is to be
rejected.
5. The power of judicial review of the High Court under Article 226 of
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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 states that the application
for premature release was rejected on the ground that the remission of the
prisoner would be premature. 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
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offence and its seriousness or heinousness and thereafter take a decision.
Mere rejection on the ground that the remission would be premature, 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 for premature release, has to assign proper
reasons in each and every case, since the Scheme provides for premature
release of convict prisoners on completion of fourteen years of
imprisonment.
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
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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
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.430 dated 11.08.2023 stipulates
fourteen 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
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more than fourteen 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.291, Home (Prison-IV) Department dated 07.03.2024 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 allowed. Consequently, W.M.P.No.15304 of
2024 is closed. No costs.
Index : yes (S.M.S.,J.) (V.S.G.,J.)
Neutral citation : yes 09.09.2024
ss
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To
1. 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 Palayamkottai
Palayamkottai 627 002
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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