Madras High Court
Roja Venkatesh @ Venkatesh vs State on 14 July, 2021
Bench: N.Kirubakaran, P.Velmurugan
W.P.No.3062 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.07.2021
CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.P.No.3062 of 2020
and
W.M.P.No.3581 of 2020
Roja Venkatesh @ Venkatesh,
M/A-48 years,
S/o. Periya Samy,
Convict No.4858,
Central Prison,
Puzhal, Chennai 600 066. ... Petitioner
-vs-
1.State, Represented by
The Additional Chief Secretary,
Government of Tamil Nadu,
Home (Prison-IV) Department,
Secretariat,
Chennai 600 009.
2.The Additional Director General of Police
and Inspector General of Prisons,
Chennai 600 008.
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W.P.No.3062 of 2020
3.The Superintendent of Prison,
Central Prison - I,
Puzhal, Chennai 600 066. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus to call for the records in
connection with the impugned order passed by the 1st respondent in
G.O.(D).No.1290 Home (Prison-IV) Department dated 01.11.2019 and
quash the same and further direct the respondents to extend the benefit of
G.O.(Ms).No.64 dated 01.02.2018 and release the petitioner prematurely.
For Petitioner : Mr.G.Ravikumar
For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor
ORDER
(Order of the Court was made by N.KIRUBAKARAN, J) The petitioner has challenged the rejection order passed by the 1st respondent dated 01.11.2019 by which the the petitioner's claim for premature release was negatived and further sought for the direction to the respondents to extend the benefit of G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018 and release the petitioner prematurely as he 2/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 had already undergone 10 years of imprisonment which is a prerequisite for availing the benefit under the said G.O.
2.The petitioner was convicted in S.C.No.82 of 2001 for the offences under Sections 302 & 307 r/w 34 IPC and sentenced to life imprisonment and seven years rigorous imprisonment, respectively on 22.07.2005 by the learned First Additional Sessions Judge, Erode. The Appeal against the said judgment in Crl.A.No.987 of 2006 preferred by the petitioner was dismissed on 03.10.2007 confirming the conviction and sentence of the trial Court and thus, the conviction attained finality.
3.When the petitioner has been undergoing imprisonment, on the occasion of Centenary birth anniversary of late Chief Minister of Tamil Nadu Dr.M.G.Ramachandran and towards reformation and rehabilitation of the prisoners, the Government of Tamil Nadu through G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018, granted premature release under Section 161 of Constitution of India to all the life convict prisoners who have completed atleast 10 years of actual imprisonment as on 25.02.2018. Since the respondent did not consider the petitioner's release as 3/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 per the aforesaid G.O., the petitioner filed Habeas Corpus Petition in HCP.No.1767 of 2018, praying for premature release as per G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018. This Court by order dated 08.11.2018 directed the respondents to consider the representation given by the wife of the Petitioner as the petitioner had already completed sentence in respect of the case in which he was convicted for the offence under Section 397 IPC. Even after the direction given in HCP.No.1767 of 2018, dated 08.11.2018, the 1st respondent failed to comply with the directions, even though the Jail authorities recommended for the release of the petitioner herein, compelling the petitioner to initiate contempt proceedings in Cont.P.No.1007 of 2019. When the Contempt is pending, the 1st respondent by an order dated 01.11.2019 rejected the petitioner's claim for premature release. As the said order was passed, this court was pleased to close the Contempt Petition, giving liberty to the petitioner to challenge the aforesaid rejection order. Thus, the said order of rejection is being challenged before this Court in the present Writ Petition.
4.A counter affidavit has been filed by the 1st respondent admitting 4/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 the facts mentioned in the Writ Petition, however, contended that the petitioner was convicted in four cases. Moreover, the petitioner's claim for premature release cannot acceded as the ineligible Section 397 IPC has been invoked. As per the G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018, the prisoners who have been convicted for any of the 13 offences including rape, forgery, robbery (397, 398 IPC), dacoity, terrorist crimes are ineligible for premature release. Since the petitioner was convicted under Section 397 IPC for robbery, he is ineligible for premature release under the said G.O. It is also contended by the respondent that petitioner was first convicted in S.C.No.7 of 2001 and 32 of 2001 to undergo rigorous imprisonment for ten years. While serving sentence in the abovesaid two cases, the petitioner was subsequently convicted in S.C.No.82 of 2001 and was sentenced to undergo imprisonment for life. The sentence imposed in S.C.No.7 of 2001 and 32 of 2001 has to be completed by the petitioner first, to commence the life sentence awarded in S.C.No.82 of 2001. The conviction in S.C.No.7 of 2001 and 32 of 2001 ended on 31.10.2009 and the life sentence imposed in S.C.No.82 of 2001 commenced on 01.11.2009 which is now being undergone by the Petitioner. 5/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020
5.In S.C.No.7 of 2001, the Petitioner was convicted for ten years under Section 395 & 397 IPC which is an ineligible Section as per the Government Order. Even though the petitioner had already undergone conviction under Section 397 IPC, still the petitioner is not entitled to premature release.
6.The petitioner would be completing 14 years of imprisonment only on 28.11.2021 and the contention that he has already completed 14 years on 26.10.2014 is factually incorrect. In view of the ineligible Section 397 IPC under which also the petitioner was convicted, he is not entitled to premature release and therefore, the 1st respondent rightly rejected the claim of the petitioner for premature release by the impugned order dated 01.11.2019 which was passed pursuant to the direction issued by this Court in H.C.P.No.1767 of 2018 dated 08.11.2018. Therefore, the impugned order cannot be interfered with as it is based on G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018.
7.Mr.G.Ravikumar, learned counsel appearing on behalf of the 6/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 petitioner would contend that the petitioner had already undergone conviction under Section 397 IPC, imposed in S.C.No.7 of 2001 vide order dated 10.12.2001 and the said conviction ended on 31.10.2009 and thereafter only, the conviction of life sentence imposed in S.C.No.82 of 2001 commenced on 01.11.2009. When the sentence imposed for the offences under the ineligible section was already completed, the same cannot be employed against the petitioner's claim for premature release. By order dated 23.08.2012 in Crl.OP.No.4114 of 2012, this Court directed that the sentences awarded against the petitioner in S.C.No.7 of 2001 and S.C.No.32 of 2001 to run concurrently. As per the above directions, the petitioner underwent all the sentences in S.C.No.7 of 2001, S.C.No.5 of 2001 and S.C.No.32 of 2001, concurrently upto 27.10.2009.
8.Mr.G.Ravikumar, learned counsel appearing on behalf of the petitioner would rely upon the judgment delivered in the case of State of Tamil Nadu and others Vs. Veera Bhaarathi reported in 2016 SCC OnLine Mad 33615 (Para 19 to 25), in which it was held that sentences under ineligible Section 376 IPC was already undergone by the accused 7/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 therein along with life sentence imposed under Section 302 IPC, concurrently and therefore, he would be eligible for being considered for premature release. Therefore, the impugned order is in violation of the judgment made in Veera Bhaarathi's case.
9.The learned counsel pointed out that the Government of Tamil Nadu took a stand before the Hon'ble Supreme Court by way of reply affidavit (Paragraphs 13 & 14) dated 04.03.2014 in Mr.Rajiv Gandhi's assassination case that the convicts who had undergone sentences under ineligible Section are eligible for remission and the premature release of the convicts concerned is only with regard to Section 302 IPC for which the executive power vest only with the State of Tamil Nadu
10.In the decision made in the case of Union of India Vs. V.Sriharan @ Murugan, reported in (2016) 7 SCC 1 (para 215), it is reported that the 1st respondent took a definite stand that the ineligible sections and sentences are lesser terms compared with the life imprisonment awarded under Section 302 IPC, whereas the petitioner is undergoing sentence in 8/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 S.C.No.82 of 2001 alone in which the petitioner was convicted and sentenced to life imprisonment under Section 302 & 307 r/w 34 IPC and there is no ineligible section involved in that case. Therefore, the impugned order has to be set aside.
11.The conduct and behaviour of the petitioner inside the prison has been good and the petitioner also completed various courses, while undergoing imprisonment. The Hon'ble Supreme Court in the case of Home Secretary (Prison) and others Vs. H.Nilofer Nisha reported in 2020 SCC online SC 73 in paragraphs 42 to 48 held that learning of good behaviour of prisoner for several years can be considered as an additional ground for granting premature release. Therefore, the learned counsel appearing for the petitioner seeks to quash the impugned order and grant premature release to the petitioner.
12.Mr.R.Prathapkumar, learned Additional Public Prosecutor would contest the claim of the petitioner. He would contend that the petitioner is not entitled to premature release as he was convicted under Section 397 IPC 9/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 which is ineligible Section as per the beneficial G.O.
13. The learned Additional Public Prosecutor also relied upon another judgment of the Hon'ble Supreme Court reported in (2003) 10 SCC 78 in the case of Sanaboina Sathyanarayana Vs. Government of Andhra Pradesh ad others. By relying on the said judgment the learned Additional Public Prosecutor would contend that it is the policy of the Government to decide regrading the clause of persons or category of offenders to whom the remission have to be granted.
14.Relying upon the conditions specified in sub clause (iii) & (iv) of clause 2(A) of paragraph 5(II) of G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018 and the aforesaid judgments, Mr.R.Prathapkumar, learned Additional Public Prosecutor would strenuously contend that the petitioner is not entitled to premature release.
15.Heard the parties and perused the records very carefully.
16.There is no dispute with regard to the facts that the petitioner was 10/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 convicted in the following four cases:
S.No Section and Law Sentence Convicting Court 1 395 r/w 397 IPC 10 years of R.I & S.C No:7/2001 fine of Rs.2500 i/d 6 dt.10.12.2001 of 1st months R.I. Additional District Judge, FTC-1, Erode 2 427 IPC 307 r/w R.I. for 2 years S.C.No.32/2001, 34 IPC RI for 10 years & dt.10.12.2001 of 1st fine of Rs.2500/- i/d Additional District Judge RI for 6 months. FTC-1, Erode.
On appeal, sentence Appeal deatils:
was modified to R.I Order dt.29.07.2003 in for 7 years. C.A.No.1213 of 2001 of 364 IPC R.I. for 10 years & Hon'ble High Court of fine of Rs.2500/- in Madras.
default R.I for 6 months. Further the sentences in On appeal, sentence S.C.No.7/2001 and 32/2001 was set aside. were ordered to run concurrently as per the 324 IPC R.I. for 3 years. orders of Hon'ble High Court of Madras dt.21.08.2012 in Crl.O.P.No.4114/12.
3 302 IPC Life imprisonment. S.C.No.82/2001 307 IPC 7 years R.I dt.22.07.2002 of I Addl.
District Judge-cum-CJM, Erode.
4 307 IPC 4 years (2 counts) S.C.No.:5/2001
(2 counts) dt.22.02.2008 of 1st
332 IPC 3 years Additional District Judge,
FTC-1, Erode.
The sentences in
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W.P.No.3062 of 2020
S.No Section and Law Sentence Convicting Court
S.C.No:5/2001 was ordered
to run concurrently along
the sentences in
S.C.No.:7/2001
The sentence in S.C.No.5 of 2001 was to run concurrently along with sentence in S.C.No.7 of 2001. Therefore, it is very clear that the petitioner completed the sentence imposed in S.C.Nos.7 of 2001, 32 of 2001 and 5 of 2001 on 31.10.2009 and thereafter, the life sentence in S.C.No.82 of 2001 commenced on 01.11.2009 and the petitioner has been undergoing life imprisonment since then. The above details would also prove that the petitioner completed 10 years of imprisonment as on 27.10.2009, according to the petitioner and 31.10.2009 according to the prosecution. The difference in the date of completion does not make any difference as it is only four days. As on date, the petitioner has been under incarceration for the past 19 years. It is also a fact that the life conviction in S.C.No.82 of 2001, commenced on 01.11.2009 and he completed 08 years, 09 months and 28 days as on 28.02.2018 which is the cut off date prescribed in G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018 for granting premature release. However, as rightly pointed by 12/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Mr.G.Ravikumar, learned counsel for the petitioner, the petitioner completed 11 years and 05 months as he was under judicial custody for 09 months and 29 days during the period of investigation from 17.10.1998 to 16.08.1999 and 01 year 09 months and 04 days from 18.10.2000 to 22.07.2002 during the stage of trial. The above details would make it very clear that as on 25.02.2018 the petitioner completed 11 years and 05 months of incarceration. The completion of 11 years and 05 months of sentence would make the petitioner to be eligible for the benefit of premature release under G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018.
17.It is pertinent to note that the respondent is not questioning the period of imprisonment being undergone by the petitioner. Irrelevantly the respondent contends that the life imprisonment of 14 years would be completed only on 28.11.2021. The issue is not about the completion of life imprisonment but the issue is only whether the petitioner is entitled to the benefit of premature release under G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018.
18.As already found, the petitioner had already completed 11 years 13/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 and 05 months as on the cut off date viz., 25.02.2018 and he is eligible for premature release as per the time limit fixed under the said beneficial G.O.
19.The vociferous contention made by Mr.R.Prathapkumar, learned Additional Public Prosecutor is that the petitioner is not entitled to premature release as he was convicted under Section 397 IPC for the offence of robbery and was convicted for 10 years rigorous imprisonment in S.C.No.7 of 2001 vide order dated 10.12.2001. The commission of offence under Section 397 IPC by the petitioner, no doubt would make the petitioner ineligible for the premature release. The relevant portion of G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018 is usefully extracted hereunder:
"(I) The following committees were constituted for examining the premature release of the life convict prisoners, case to case basis, on the above lines.
(i) the State level committee headed by the Inspector General of Prisons and the Deputy Inspector General of Prisons (Hqrs.), Legal Officer, Administrative Officer (Hqrs) shall be members of the committee.
(ii) the Second level/District Committee where in the Central 14/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Prisons/Special Prisons for Women located, headed by the Superintendent of Prisons of the concerned Central Prison and the Additional Superintendent of Prison, Jailor, Administrative Officer and Probation Officer shall be members of the Committee.
(iii) the concerned Range Deputy Inspector General of Prisons and Regional Probation Officer of the concerned region shall examine the proposal of the second level committee and send the same to State level Committee along with recommendation.
(II) The life convicts who have completed 10 years of actual imprisonment as on 25.02.2018 including those who were originally sentenced to death by the Trial Court and modified to life sentence by the Appellate Court (other than those whose convictions have been commuted), may be considered for premature release subject to satisfaction of the following conditions:-
1) The prisoner's behaviour should be satisfactory.
2) Prisoners convicted for the following offences are ineligible for consideration for premature release irrespective of the nature and tenure of the sentence and irrespective of the fact as to whether or not they have undergone the sentence in respect of the said of fence namely:-
(A) Prisoners convicted for the following offences, namely:-
(i) Rape (Section 376 of IPC)
(ii) Forgery (Section 467, 471 of IPC)
(iii) Robbery (Section 397, 398 of IPC) 15/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020
(iv) Dacoity (Section 396, 397, 398, 399, 400, 402 of IPC
(v) terrorist crimes
(vi) offences against the State
(vii) offences under Sections 153-A, 153-AA and 153-B of IPC
(viii) Escape or attempting to escape from lawful custody (except overstayal of parole leave only)
(ix) Forgery/Counterfeit of currency notes or bank notes/Making of possessing instruments or materials for forging or counterfeiting currency notes or bank notes (Section 472, 474, 489-A, 489-B and 489-D of IPC)
(x) Cruelty against women or dowry death (Section 498-A and 304-A of IPC)
(xi) Economic offences, black-marketing, smuggling or misuse of power and authority.
(xii) Selling illicit arrack mixed with poisonous substances.
(xiii) Habitual Forest offenders who are responsible for disturbing the ecological balance."
However, the petitioner already completed imprisonment for conviction under Section 395 r/w 397 IPC in S.C.No.7 of 2001 vide order dated 10.12.2001 on 30.10.2009. Therefore, the sentence already undergone by the petitioner under ineligible Section 397 cannot be put against the petitioner as at present the petitioner is undergoing life imprisonment from 16/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 01.11.2009 onwards and completed 11 years 05 months as on 25.02.2018 which is the cut off date.
20.This Court in the case of State of Tamil Nadu and others Vs. Veera Bhaarathi reported in 2016 SCC OnLine Mad 33615 in paragraph 19 to 25 categorically held that the sentence under ineligible Section viz., Section 397 IPC was already undergone by the accused along with the life sentence under Section 302 IPC concurrently and therefore, he would be eligible for being considered for premature release in respect of the life sentence for the offence under Section 302 IPC. The relevant paragraphs of the said judgment are extracted hereunder:
"19. The petitioner assails the impugned order from a different angle also. According to him, assuming that sub-Rule 3 of the Rules, including the proviso is applicable, even then, he is entitled for being considered for premature release. According to him, while he has already served out the entire sentence imposed on him for the offence under Section 376 of the Penal Code, 1860, he does not pray for any remission in respect of the sentence for the said offences. In the proviso to Sub-Rule 3 of Rule 341 of the Rules, Section 302 of the Penal Code, 1860 has not been included. In the instant case, 17/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 according to the petitioner, since he prays for remission of sentence imposed on him only for the offence under Section 302 of the Penal Code, 1860 and not for the offence under Section 376 of the Penal Code, 1860, the said proviso shall not be a bar for his case being considered for premature release. As we have already held that the petitioner is eligible for being considered under Sub-Rule 2 of Rule 341 of the Rules for premature release, any further discussion in respect of the proviso to Sub-Rule 3 of Rule 341 of the Rules, shall only be a mere academic exercise. Since it has been argued by the petitioner as well as the learned Public Prosecutor, we wish to go into the said academic debate also.
20. The learned Public Prosecutor would submit that if a person has been convicted for any offence, besides the offences enumerated in the proviso to Sub-Rule 3 of Rule 341 of the Rules, then, even in respect of the punishment for other offence, he is not eligible for premature release. The learned Public Prosecutor has, however, been very fair in bringing to our notice a clarification issued by the Director General of Prisons in No. 14189/89, dated 04.11.1989, wherein he clarified that in a case, where a convict is undergoing imprisonment for life for the offence under Section 302 of the Penal Code, 1860 and has also been convicted and sentenced for the offences under Sections 376 and 396 of the Penal Code, 1860, if the sentences 18/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 were ordered to run concurrently, after he had served out the sentence for the offence under Sections 376 and 396 of the Penal Code, 1860, he would be eligible for being considered for premature release in respect of the life sentence for the offence under Section 302 of the Penal Code, 1860.
21. Though the Director General of Prisons himself has clarified the proviso to Sub-Rule 3 of Rule 341 of the Rules, the said clarification has missed the eyes of various Jail Authorities in the State, as it has happened in the instant case. We fully concur with the clarification issued by the Director General of Prisons, as enumerated above. As per the said clarification also, in the instant case, since the petitioner has already served out the sentence for the offence under Section 376 of the Penal Code, 1860, he is eligible for premature release in respect of the life sentence, which he has been undergoing for the offence under Section 302 of the Penal Code, 1860. Thus, looking from any angle, the petitioner is entitled for being considered for premature release.
22. The petitioner, in his concluding argument, submitted that instead of directing the Government to consider his case for premature release, afresh, in the light of the verification reports of the Probation Officer and the District Collector, this Court may set him at liberty by remitting the sentence. 19/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020
23. In our considered view, the said request cannot be considered, for the simple reason, when statutorily there is a forum constituted for considering the individual case for premature release by taking into account the various facts and circumstances, as enumerated in the Tamil Nadu Prison Rules, 1983, this Court cannot usurp the power of the said forum and exercise the powers of the Advisory Board. Therefore, this request is rejected.
24. In view of the foregoing discussion, it is patently clear that the impugned order is not sustainable and the same is liable to be set aside. Accordingly, we set aside the impugned Government Order in G.O.(D). No.646/Home [Prison IV] Department/2015, dated 28.08.2015, passed by the first respondent and direct the first respondent to pass fresh orders, within a period of eight weeks from the date of receipt of a copy of this order, based on the verification reports and the other reports already available with the first respondent and it need be, by getting supplementary reports. If the first respondent calls for any supplementary report from any authority, the same shall be submitted by the authority concerned, without any further delay and at any rate, the first respondent shall pass final orders in this matter within a period of eight weeks from the date of receipt of a copy of this order.
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25. During the course of hearing, it was also brought to our notice that by misinterpreting Sub-Rule 3 of Rule 341 of the Rules, viz-a-viz sub-Rule 2 of Rule 341 of the Rules and ignoring the clarification issued by the Director General of Prisons, as referred to above, the claims of several life convicts in the State for premature release have been rejected by the first respondent. Many of the prisoners, due to ignorance of law or out of lack of wherewithal and help, without approaching this Court for relief, are languishing in various prisons in the State. Though they have not approached this Court, on that score alone, we cannot deny justice to them, as poverty and ignorance cannot stand in the way of a person securing his right, such as, liberty, which is a fundamental right guaranteed under the Constitution. Therefore, we direct the first respondent to review all the cases of the life convicts, who have completed 14 years of imprisonment lodged in various prisons in the State, where their claims for premature release have been rejected placing reliance erroneously on the proviso to Sub-Rule 3 of Rule 341 of the Rules, thereby ignoring the clarification issued by the Director General of Prisons, by his proceedings No. 14189/89, dated 04.11.1989. In short, the first respondent shall act on the said clarification and review the cases of such eligible convicts, who are lodged in various jails in the State. Such exercise shall be completed 21/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 within a period of six months from the date of receipt of a copy of this order. The Habeas Corpus Petition is allowed, as indicated above. "
From the above, it is clear that as per G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018, the offence under Section 376/rape is ineligible. The convict in the aforesaid case though was convicted under Section 376 IPC was directed to be considered for premature release, as he had already undergone conviction under Section 376 IPC. The aforesaid judgment would support the case of the petitioner that he is entitled to premature release, as he had already completed sentence under Section 397 IPC, which is an ineligible Section.
21.Quite interestingly, the Government of Tamil Nadu which is opposing the petitioner's premature release has gone on record before the Hon'ble Supreme Court by way of reply affidavit dated 04.03.2014 in Mr.Rajiv Gandhi assassination case that the life convicts of that case have already undergone sentence under ineligible Sections and the remission of the premature release of the accused concerned is only with regard to Section 302 IPC for which the executive power vest only with the State of 22/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Tamil Nadu. Paragraph 13 and 14 of the reply affidavit are usefully extracted hereunder:
"13.The 1st accused, namely Nalini was acquitted for the offence under TADA Act and she was found guilty only of offences under the Indian Penal Code. She was found not guilty of offences under the Arms Act, Passport Act, Foreigners Act and Wireless & Telegraph Act. So far as Suthendraraja @ Santhan, the 2nd accused is concerned, he was acquitted of the alleged offence under TADA and was sentenced to death for offence under Section 120-B read with Section 302 of IPC. He was found guilty of offence under the Foreigners Act and sentenced for a period of 2 years. He has already undergone the sentence of 2 years. So far as Sriharan @ Murugan, accused no.3, is concerned he was sentenced to death for offences under the IPC. He was acquitted under the TADA. So far as Foreigners Act and Wireless & Telegraph Act offences are concerned, he has already undergone the sentence of 2 years rigorous imprisonment. So far as Arivu alias Perarivalan, accused no 18, is concerned he was acquitted under TADA and he has already undergone sentence under the Wireless & Telegraph Act and Passport Act. The remission is confined only to the sentence under the Indian Penal Code. So far as Robert Payas, accused no.9, is concerned he was 23/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 acquitted under TADA and found guilty under the IPC. So far as Jayakumar, accused no.10, is concerned he was acquitted under TADA and has already undergone the 2 years rigorous imprisonment for offence under the Arms Act. The remission therefore is confined only to the punishment under the Indian Penal Code. Ravichandran, accused no.16, was also acquitted under TADA and he has already undergone the rigorous imprisonment under the Explosive Substances Act and Arms Act. Therefore, even his remission is confined only to the punishment under the Indian Penal Code. It is therefore submitted that for all the 7 persons the remission granted under Section 432 was confined to offences under the Indian Penal Code with respect to which the executive power vests only in the State.
14.This Hon'ble Court by the Judgment in Transfer case (Criminal) Nos.1, 2 & 3 of 2012 has commuted the death sentence to Life Imprisonment for the offence under Section 302 IPC. Since the 7 life convicts of the Rajiv Gandhi Assassination case have already undergone their imprisonment under the other Acts they are undergoing the sentence of imprisonment for life awarded to them under Section 302 of the IPC. Significantly, the subject matter to which this offence relates to is "public order" which falls within entry 1 of list 2 of the seventh schedule of the constitution. It is submitted that since 24/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 the Petitioners have already undergone the sentence passed against them for various offences under the legislations which are in list one of the seventh schedule of the Constitution of India, there is no question of suspension of remission of sentences for those offences. It is submitted that in this case, 432 (7)(b) of the CrPC would apply and the State Government is the appropriate Government. It is respectfully submitted that the contention of the Union of India that the appropriate Government in the present case to grant remission is Union of India is unsustainable."
22.Moreover, the very same G.O., has been interpreted by the Hon'ble Supreme Court in State of Tamil Nadu and Others v. P.Veera Bhaarathi reported in (2019) 18 SCC 71 while affirming the order of this Court reported in 2016 SCC OnLine Mad 33615 that if the sentence under ineligible Section has already been undergone by the prisoner, he is entitled to premature release. Therefore, even on case to case basis, as per the dictum of the Hon'ble Supreme Court, the petitioner is entitled to premature release.
23.In view of the categorical declaration made by the Hon'ble 25/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Supreme Court in Veera Bhaarathi's case as well as the stand taken by the Government of Tamil Nadu in Mr.Rajiv Gandhi Assassination case which is in consonance with the petitioner's claim, the petitioner is definitely entitled to premature release, as he had already completed sentence under Section 397 IPC, which is an ineligible Section as per the aforesaid G.O. The State Government is bound by the stand taken in Mr.Rajiv Gandhi Assassination case and the State cannot have different yardstick and parameter in respect of similarly placed persons.
24.While considering the premature release, the Courts will also take into consideration the conduct and good behaviour of the convicts. In the instant case, it is admitted in paragraph 10 of the counter affidavit that the petitioner has availed 272 days leave as detailed below:
"Emergency Leave with Police Escort : 2 days
Emergency Leave without Escort : 180 days
Ordinary Leave : 90 days"
From the above, it is evident that the petitioner went on leave without any escort and returned to jail without causing any disturbance. This would also 26/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 prove that if the petitioner is released prematurely, there will not be any disturbance or nuisance to the public by the petitioner. Moreover, the offence have been committed by the petitioner about 20 years ago. In paragraph 12 of the counter affidavit, it is admitted by the respondent indirectly about the petitioner's good behaviour in prison. Paragraph 12 of the counter affidavit is usefully extracted hereunder:
"12. With regard to the averments made in paragraph (8) of the affidavit, it is submitted that the petitioner has narrated his good behavior during the period of leave. Hence, there is no remarks to offer."
If there was any misbehaviour, the same would have been stated in the counter affidavit filed by the respondents.
25.Further it is admitted in paragraph 11 of the counter affidavit that the convict/petitioner have successfully completed M.A., (Political Science), B.A.Lit., in Tamil and various other vocational courses. Paragraph 11 of the counter affidavit is usefully extracted as follows:
"11.With regard to the averments made in paragraph (7) of the affidavit, it is submitted that it is true that the said life convict prisoner has studied M.A. Political Science, B.A. 27/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Literature in Tamil and various vocational courses viz., Diploma in Animation, Certificate course in Refrigeration and Air-Conditioner Repair, Vocational Diploma in General Duty Assistant. The petitioner also has various certificates i.e. Certificate in Molding and Casting in Sculpture, Certificate of participation in Theatre Workshop, four day training in Bakery Products, Certificate in Printing and Screen Board Writing, Two Wheeler Mechanism (Repairing & Maintenance), Certificate in Electrical Wiring, Certificate in Type Writing, Certificate in Food and Nutrition, Certificate in Tailoring."
26.The Hon'ble Supreme Court took into consideration the good behaviour and also the qualification obtained by the petitioner in the case of Home Secretary (Prison) and others Vs. H.Nilofer Nisha reported in 2020 SCC online SC 73 and released the prisoner therein. Paragraph 36 of the aforesaid judgment is extracted as follows:
"36. The detenu was aged about 21 years when he was detained. More than 17 years have elapsed and he is about 38 years of age now. We are informed that during the period of incarceration in jail, he has completed the following educational courses:
S. No. Period Course 28/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 (1) May 2007 Bachelor of Computer Applications (2) 6-3-2009 to 5-9-2009 Radio & TV Repairing (3) May 2010 Master of Computer Applications (4) January 2013 Desk Top publishing (5) May 2013 Master of Business Administration in Human Resources (6) July 2013 PG Diploma (7) 7-10-2013 Information and Communication Technology (8) 4-9-2013 to 3-12-2013 Electrical Wiring (9) January 2014 MA (Criminology & Criminal Justice Administration) (10) January 2014 Diploma in Computer Hardware Servicing (11) May 2014 MA (Journalism & Mass Communication) (12) June 2014 Diploma in Media Art (13) 10-3-2014 to 9-9-2014 Tailoring & Embroidery (14) 19-2-2015 to 25-2-2015 Mushroom Cultivation (15) May 2015 PG Diploma in International Business (16) July 2016 Program: MTM (17) July 2016 Certificate in Guidance (18) July 2016 Program: PGDDM (19) July 2016 Program: ACISE (20) May 2016 Fire & Safety Management (21) June 2016 Degree of Master of Arts in Sociology
This young man who may have committed a heinous crime, has obtained various degrees including Masters in Computer Application, Masters of Business Administration, Master's Degree in Criminology & Criminal Justice Administration and MA in 29/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 Journalism & Mass Communication and various other vocational diplomas. The learning which he has obtained in jail must be put to use outside. The jail record shows that his behaviour in jail has been satisfactory. The only ground against him is that he had murdered a person from another community and, therefore, it is said that some religious enmity may still prevail. It has come on record that on various occasions, he has gone back to his native place though under police escort."
The conduct of the petitioner and the qualification acquired by the petitioner in the present case is similar to that of the convict in Crl.A.No.145 of 2020 before the Hon'ble Supreme Court which is stated in the aforesaid extract.
27.The impugned order passed by the 1st respondent is not sustainable for the following reasons:
(i)The petitioner has already completed 11 years and 05 months of incarceration as on 25.02.2018 viz., cut off date, fixed vide G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018.
(ii)The petitioner has already undergone sentence under Section 397 IPC which is an ineligible Section as on the date of issuance of 30/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018.
(iii)The impugned order rejecting the petitioner's claim for premature release is in violation of the order passed by the Hon'ble Supreme Court in State of Tamil Nadu and Others v. P.Veera Bhaarathi reported in (2019) 18 SCC 71.
(iv)The reasoning given in the impugned order is diagonally opposite to the stand taken by the Government of Tamil Nadu before the Hon'ble Apex Court by way of reply affidavit in Mr.Rajiv Gandhi Assassination case.
(v)The good behaviour and conduct of the petitioner as admitted by the respondents is one of the factors which should have been considered for the premature release by the Respondents.
28.For the aforesaid reasons the impugned order is quashed and the Writ Petition stands allowed. The 1st respondent is directed to recommend the case of the petitioner for premature release, extending the benefit under G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018 within a 31/33 https://www.mhc.tn.gov.in/judis/ W.P.No.3062 of 2020 period of four weeks from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.
29.For reporting compliance, call the matter on 06.08.2021.
(N.K.K,J) (P.V,J)
14.07.2021
pgp
To
1.The Additional Chief Secretary,
Government of Tamil Nadu,
Home (Prison-IV) Department,
Secretariat, Chennai 600 009.
2.The Additional Director General of Police
and Inspector General of Prisons,
Chennai 600 008.
3.The Superintendent of Prison,
Central Prison - I,
Puzhal, Chennai 600 066.
32/33
https://www.mhc.tn.gov.in/judis/
W.P.No.3062 of 2020
N.KIRUBAKARAN, J
and
P.VELMURUGAN, J
pgp
W.P.No.3062 of 2020
Dated : 14.07.2021
33/33
https://www.mhc.tn.gov.in/judis/