Madras High Court
M.Thulasidevi vs The State Of Tamil Nadu on 30 August, 2017
Bench: A.Selvam, P.Kalaiyarasan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 30.08.2017
CORAM:
THE HONOURABLE MR.JUSTICE A.SELVAM
and
THE HONOURABLE MR.JUSTICE P.KALAIYARASAN
H.C.P.No.429 of 2017
M.Thulasidevi .... Petitioner
Vs.
1. The State of Tamil Nadu
Rep. by the Secretary to Government
Home, Prohibition and Excise Department,
Secretariat, Chennai - 600 009.
2. The Additional Director General of Police &
Inspector General of Prisons,
Gandhi Irwin Road,
Egmore, Chennai - 600 008.
3. The Superintendent of Prisons
Central Prison,
Trichy - 620 020. ....Respondents
Petition filed under Article 226 of the Constitution of India, praying to issue a WRIT OF HABEAS CORPUS, directing the respondents to produce the petitioner's husband namely T.Mohan, S/o. Thangaraj, aged 56 years, Life Convict, C.T.No.20173, now confined at Central Prison, Trichy - 620 020 before the Hon'ble Court and directing the respondents to consider the petitioner's husband under the year 1994 scheme of premature release and set him at liberty.
For Petitioner :Mr.P.Pugalendhi
For Respondents :Mr.V.M.R.Rajentran
Additional Public Prosecutor
ORDER
(Order the Court was made by P.KALAIYARASAN, J) This Petition has been filed under Article 226 of the Constitution of India, praying to release the life convict T.Mohan C.T.No.20173 now confined at Central prison, Tiruchirapalli prematurely.
2. It is averred in the petition that the petitioner's husband T.Mohan has been convicted and sentenced to life imprisonment for the offence under Section 302 r/w 34 IPC in S.C.No.232 of 1996 on the file of the I Additional Sessions Court, Chennai.
3. The Government framed a scheme of premature release of life convicts in its letter (FS).No.1358, Home, dated 10.11.1994 for the purpose of release of life convicts who had completed 20 years of actual imprisonment on humanitarian grounds under Article 161 of the Constitution of India. The State Government has also released a life convict vide G.O(Ms).No.428, dated 29.07.2011. The petitioner's husband is eligible to be considered for premature release under the said scheme.
4. The petitioner also made a representation, dated 26.12.2016 to the first respondent requesting to consider her husband for premature release. But the same has not been considered and the same is violative of Articles 14 and 21 of the Constitution. Therefore, the petitioner has come forward with this petition.
5. The third respondent in his counter contends that the I Additional Sessions Court, Chennai convicted and sentenced the petitioner's husband Mohan, S/o. Thangaraj to imprisonment for life under Section 302 IPC (6 counts) [Life Imprisonment for each count, 3 counts run concurrently and 3 counts run consecutively] and also sentenced Rigorous Imprisonment for 5 years under Section 201 IPC (4 counts) and sentenced to Rigorous Imprisonment for 2 years under Section 147 IPC. When he was under trial remand prisoner from 28.12.1998 to 19.08.1990, he escaped from the prison on 20.08.1990 and he was re-arrested on 03.08.1992 and a case was also registered against him at F-1 Chindathiripettai Police Station in Crime No.1382 of 1990 under Section 224 IPC. The said life convict has completed 11 years 3 months and 18 days of his sentence as on 20.03.2017. The Government Letter No.1358, Home, dated 10.11.1994 relates to the release of life convicts who had completed 20 years of actual imprisonment on humanitarian grounds under Article 161 of the Constitution of India. But the petitioner's husband did not complete 20 years of his actual imprisonment and he cannot claim premature release as per the aforesaid Government Letter. The representation of the petitioner, dated 26.12.2016 cannot be considered as the petitioner's husband has not completed 20 years of his actual imprisonment. There is no violation of Articles 14, 21 and 161 of the Constitution of India. Hence, this petition is to be dismissed.
6. There is no dispute that the petitioner's husband Mohan was convicted and sentenced to life imprisonment by the I Additional Sessions Court, Chennai in S.C.No.232 of 1996 by its Judgment, dated 25.11.2005 for the offence under Section 302 IPC (6 counts) and three life imprisonments were ordered to run consecutively. The petitioner seeks premature release of her husband under the scheme framed by the State Government in its Letter No.1358, Home, dated 10.11.1994. This Government Letter relates to premature release of the life convicts who had completed 20 years of actual imprisonment on humanitarian grounds under Article 161 of the Constitution of India. The life convict Mohan has only completed 11 years 3 months and 18 days of his sentence as on 20.03.2017. Therefore he has not completed 20 years of actual imprisonment to subject himself for consideration under the above mentioned Government Letter. However, appropriate Government is vested with power of remission, commutation under Article 161 of the Constitution of India.
7. The Constitutional Bench of the Hon'ble Supreme Court in Union of India v. V.Sriharan reported in (2016) 7 SCC 1 has held as follows :
"Life imprisonment in terms of Section 53 read with 45 IPC means the entirety of the life of the prisoner unless it is curtailed by remissions validly granted under Section 432 CrPC or Articles 72 or 161 of the Constitution. A life convict only has the right to claim remission, etc., as provided under Articles 72 and 161 of the Constitution to be exercisable by the President and the Governor of the State or under Section 432 CrPC.
...
...
...
The power or remission always vests with the State executive and the Supreme Court at best can only give a direction to consider any claim for remission and cannot grant any remission and provide for premature release. It has time and again been reiterated that the power of commutation exclusively rest with the appropriate Government.
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There is every scope and ambit for the appropriate Government to consider and grant remission under Sections 432 and 433 CrPC even if such consideration was earlier made and the power exercised under Article 72 by the President and under Article 161 by the Governor. As far as the implication of Article 32 of the Constitution is concerned, it is not for the Court to exercise the power under Sections 432 and 433 CrPC and it is always left to be decided by the appropriate Government, even if someone approaches the Supreme Court under Article 32 of the Constitution."
Therefore, as per the decision of the Constitutional Bench of the Hon'ble Supreme Court, the claim for remission and for premature release has to be considered only by the Government.
8. The petitioner is directed to give a fresh representation to the respondents and it is left open to the Government to consider the case of the petitioner on his representation as per Rules.
With the above observation, this Habeas Corpus Petition is disposed of.
(A.S., J.) (P.K., J.)
30.08.2017
Index : Yes / No
tsvn
To
1. The Secretary to Government
State of Tamil Nadu
Home, Prohibition and Excise Department,
Secretariat, Chennai - 600 009.
2. The Additional Director General of Police &
Inspector General of Prisons,
Gandhi Irwin Road,
Egmore, Chennai - 600 008.
3. The Superintendent of Prisons
Central Prison,
Trichy - 620 020.
4. The Public Prosecutor
High Court, Madras.
A.SELVAM, J.
AND
P.KALAIYARASAN, J.
tsvn
Pre-Delivery Order in
H.C.P.No.429 of 2017
30-08-2017