Madras High Court
S. Nalini vs The State Of Tamil Nadu on 11 March, 2020
Author: R. Subbiah
Bench: R.Subbiah, R. Pongiappan
hcp 2881 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 20.02.2020
Pronounced on : 11-03-2020
CORAM
THE HONOURABLE MR.JUSTICE R.SUBBIAH
and
THE HONOURABLE MR.JUSTICE R. PONGIAPPAN
Habeas Corpus Petition No. 2881 of 2019
---
S. Nalini
W/o Sriharan @ Murugan
Convict No.810
Special Prison for Women
Vellore .. Petitioner
Versus
1. The State of Tamil Nadu
Rep. by the Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-600 009.
2. The Superintendent of Prison
Special Prison for Women
Vellore
3. Union of India
rep. by the Secretary to Government
Ministry of Home Affairs
Major Dhyan Chand Stadium
India Gate, New Delhi - 110 002 .. Respondents
(R3 impleaded as per order dated 07.01.2020
passed in HCP No. 2881 of 2019)
http://www.judis.nic.in
1/22
hcp 2881 of 2019
Petition filed under Article 226 of the Constitution of India, praying for
issuance of a Writ of Habeas Corpus directing the respondents to produce the
body and person of the petitioner viz., S. Nalini, Wife of Sriharan @ Murugan,
aged 52, Convict No.810, confined in the Special Prison for Women, Vellore
before this Court and set her at liberty forthwith.
For petitioner : Mr. M. Radhakrishnan
For respondents : Mr. A. Natarajan, State Public Prosecutor
assisted by Mr. M.M. Mohammed Muzammil
Government Advocate (Crl.side) for RR1 & 2
Mr. G. Rajagopalan, Assistant Solicitor General
assisted by Mr. Venkatasamy Babu
Senior Panel Counsel, Government of India
ORDER
R. Subbiah, J The petitioner, a life convict, has filed the above Habeas Corpus Petition seeking to issue a Writ of Habeas Corpus directing the respondents to produce her before this Court and to set her at liberty forthwith.
2. The petitioner was one of the accused in the case pertaining to assassination of former Prime Minister of India Shri. Rajiv Gandhi. After trial, by judgment dated 28.01.1998 passed by the Presiding Judge, Designated Court No.1, Poonamallee (Additional City Civil and Sessions Court, Chennai - 600 104), the petitioner along with other co-accused were convicted and http://www.judis.nic.in 2/22 hcp 2881 of 2019 awarded sentence of death. Such conviction and sentence imposed on the petitioner and others was confirmed by the Honourable Supreme Court of India on 11.05.1999 in Death Reference Case No.1 of 1998 along with Criminal Appeal Nos. 321 to 325 of 1998. The Mercy Petition submitted by the petitioner and others to the Governor of Tamil Nadu was also rejected on 17.10.1999. Aggrieved by the same, the petitioner, along with others, filed Writ Petition Nos. 17655 to 17658 of 1999 before this Court. This Court, by order dated 25.11.1999, directed the respondents to consider the mercy petition filed by the petitioner and others afresh. Pursuant to such direction, the Governor of Tamil Nadu commuted the death sentence imposed on the petitioner and others into that of imprisonment for life and it was communicated to the petitioner in Letter No.406, Home Department dated 24.04.2000.
3. According to the petitioner, she had so far undergone twenty eight years of imprisonment as a Life Convict. After the death sentence imposed on the petitioner was converted into that of a life convict, several life convicts were pre-maturely released by the Governor of Tamil Nadu by exercising his power under Article 161 of The Constitution of India, but she was not given the benefit of premature release purportedly on the ground that the offence http://www.judis.nic.in 3/22 hcp 2881 of 2019 committed by her was investigated by the Central Bureau of Investigation. It is the further case of the petitioner that at last on 09.09.2018, the Council of Ministers of the State of Tamil Nadu have advised the Governor of Tamil Nadu to release the petitioner and other convicts, convicted in the assassination of the former Prime Minister of India Shri. Rajiv Gandhi. According to the petitioner, such an advice tendered by the Council of Ministers of the State will bind the Governor, however, the advice given by the Council of Ministers have not been acted upon by the Governor of the State. The Petitioner therefore filed a Writ Petition in WP SR No. 67881 of 2019 in which the Governor of the State was impleaded as a first respondent. By order dated 18.07.2019, this Court rejected WP SR No. 67881 of 2019 on the ground that the Governor of the State is insulated by Article 361 of The Constitution of India and therefore, he cannot be made answerable to the Courts with respect to discharge of his constitutional functions and duties. Thereafter, the petitioner has filed WP No. 14261 of 2019 before this Court for issuing a Writ of Mandamus directing the State of Tamil Nadu to implement the decision of the Council of Ministers dated 09.09.2018 to release the petitioner and others. This writ petition was also dismissed by this Court on 20.08.2019 refusing to issue a Mandamus to the State on the ground that the advice made by the Council of Ministers representing the Government of http://www.judis.nic.in 4/22 hcp 2881 of 2019 Tamil Nadu to prematurely release the petitioner and others is pending consideration of the Governor of the State, while so, it cannot be said that the Government have failed to exercise the powers conferred under Article 161 of The Constitution of India.
4. As far as the present Habeas Corpus Petition is concerned, the petitioner would contend that the Council of Ministers of the State have tendered advice to the Governor on 09.09.2018 to prematurely release her and other convicts and therefore, the detention of the petitioner has become illegal and unreasonable from that date. Therefore, the present Habeas Corpus Petition has been filed to declare the detention of the petitioner as illegal and unreasonable from 09.09.2018 and to set her at liberty forthwith.
5. Mr. Radhakrishnan, learned counsel for the petitioner would vehemently contend that it is a settled principle of law that a Writ of Habeas Corpus is available as a remedy in all cases where a person is deprived of his or her personal liberty. When the detention of a petitioner is unlawful or unjustified, whether it is a detention by the State or a private detention, then a Writ of Habeas Corpus can be issued. In this context, the learned counsel for the petitioner relied on the decision of the Honourable Supreme Court http://www.judis.nic.in 5/22 hcp 2881 of 2019 delivered on 23.01.2020 in Criminal Appeal No. 144 of 2020 in the case of (The Home Secretary (Prison) and others vs. H. Nilofer Nisha to drive home the point that the detention of the petitioner, from 09.09.2018, the date on which advice has been made by the council of Minister of the State to the Governor, is illegal and a unlawful detention and therefore, the present Habeas Corpus Petition is maintainable.
6. The learned counsel for the petitioner placed heavy reliance on the decision of the Honourable Supreme Court in Maru Ram vs. Union of India reported in AIR 1980 SC 2147 wherein in Para No.61 and 72, it was held as follows:-
"Are we back to Square one? Has Parliament indulged in legislative futility with a formal victory but a real defeat? The answer is 'yes' and 'no' Why Yes? because the President is symbolic, the Central Government is the reality even as the Governor is the formal head and sole repository of the executive power but is incapable of acting except on, and according to, the advice of his council of ministers. The upshot is that the State Government, whether the Governor likes it or not, can advise and act under Article 161 the Governor being bound by that advice. The action of communication and release can thus be pursuant to a governmental decision and the order may issue even without the Governor's approval although, under the Rules of Business and as a matter of constitutional courtesy, it is obligatory that the signature of the Governor should authorise the pardon, commutation or release. The position is substantially the same regarding the President, it is not open http://www.judis.nic.in either to the President or the Governor to take independent 6/22 hcp 2881 of 2019 decision or direct release or refuse release of any one of their own choice. It is fundamental to the Westminister system that the Cabinet rules and the Queen reigns. Being too deeply rooted as foundational to our system no serious encounter was met from the learned Solicitor General whose sure grasp of fundamentals did not permit him to controvert the proposition, that the President and the Governor, be they ever so high in textual terminology, are but functional euphemisms promptly acting on and only on the advice of the Council of Ministers have in a narrow area of power. The subject is now beyond controversy, this Court have authoritatively laid down the law in Shamsher Singh's case (1974) II LLJ 465 SC. So, we agree, even without reference to Article 307 (1) and Section 3 (8) (b) and 3 (60) (b) of the General Clauses Act, 1897 that in the matter of exercise of the powers under Article 72 and 161, the two highest dignitaries in our constitutional scheme act and must act not on their own judgment, but in accordance with the aid and advice of the ministers, Article 74, after the 42nd Amendment silences speculation and obligates compliance. The Governor vis-a-vis his Cabinet is no higher than the President save in a narrow area which does not include Article 161. The Constitutional consultation is that the Governor is but a shorthand expression for the State Government and the President is an abbreviation for the Central Government.
......
72. We conclude by formulating our findings. (1) We repulse all the thrusts on the vires of Section 433A. May be, penologically the prolonged term prescribed by the Section is superrerogative. If we had our druthers we would have negatived the need for a fourteen-year gestation for reformation. But ours is to construe, not construct, to decode, not to make a code.
(2) We affirm the current supremacy of Section 433A over the "Remission Rules and short-sentencingt statutes made by the various States.
(3) We uphold all remissions and short-sentencing passed under Article 72 and 161 of the Constitution but re- (sic) will follow in the sentence ours only on Government http://www.judis.nic.in making an order an masse or individually, in that behalf.7/22
hcp 2881 of 2019 (4) We hold that Section 432 and Section 433 are not a manifestation of Articles 72 and 161 of the Constitution but a separate, though similar, power, and Section 433A, by nullifying wholly or partially these prior provisions does not violate or detract from the full operation of the constitutional power to pardon, commute and the like.
(5) We negate the plea that Section 433A contravenes Article 20 (1) of the Constitution.
(6) We follow Godsee's case 1961 Crl LJ 763a (supra) to hold that imprisonment for life lasts until the last breath, and whatever the length of remissions earned, the prisoner can claim release only if the remaining sentence is remitted by Government.
(7) We declare that Section 433A, in both its limbs (i.e., both types of life imprisonment specified in it), is prospective in effect. To put the position beyond doubt, we direct that the mandatory minimum of 14 years' actual imprisonment will not operate against those whose cases were decided by the trial court before the 18th December 1978 when Section 433A came into force. All lifers' whose conviction by the court of first instance was entered prior to that date are entitled to consideration by Government for release on the strength of earned remissions although a release can take place only if Government makes an order to that effect. To this extent the battle of the tenses is won by the prisoners. It follows, by the same logic, that short-sentencing legislations, if any, will entitle a prisoner to claim release thereunder if his conviction by the court of first instance was before Section 433A was brought into effect.
(8) The power under Article 72 and 161 of the Constitution can be exercised by the Central and State Government, not by the President or Governor on their own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual is necessary but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group.
......."
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7. By pointing out the above decision, the learned counsel for the petitioner would vehemently contend that when once the State Government, through the Council of Ministers, have tendered advice to the Governor, a separate order is not necessary to be passed by the Governor for the purpose of releasing the petitioner on 10.09.2018, the next day on which such advice has been made. In other words, it is contended that from the date on which the Council of Ministers have tendered advice to the Governor for premature release of the petitioner, the petitioner is ipso facto entitled to be released and her detention beyond 09.09.2018 is to be declared as unreasonable and unlawful.
8. In order to buttress his submission further, the learned counsel for the petitioner also relied on the decision of the Constitution Bench of the Supreme Court in State of Rajasthan vs. Union of India reported in (1977) 3 Supreme Court Cases 592 wherein it was held that It is for this Court to uphold the Constitutional values and to enforce the Constitutional limitations. That is the essence of the rule of law. By pointing out the above decision, the learned counsel for the petitioner prayed this Court to declare the detention of the petitioner as illegal beyond 09.09.2018 and to direct the respondents to set her at liberty forthwith.
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9. Opposing the Habeas Corpus Petition, the learned Public Prosecutor appearing for the State would vehemently contend that the petitioner was convicted and sentenced by a Court of competent jurisdiction, after due trial. While so, the question of infringement of personal liberty or fundamental right of the petitioner will not arise. In such event, a Writ of Habeas Corpus cannot be issued by this Court. In this context, the learned Public Prosecutor relied on the decision of the Honourable Supreme Court in Nilofer case referred to supra, wherein it was held that when a person was under incarceration pursuant to a Judgment of conviction passed by a Court of competent jurisdiction, then a Writ of Habeas Corpus cannot be issued by the High Court in exercise of power under Article 226 of The Constitution of India. It was also held that only when personal liberty or fundamental right of a detenue is infringed, the High Court can issue a Writ of Habeas Corpus.
10. The learned Public Prosecutor also would contend that the decision of the Honourable Supreme Court in Maru Ram case relied on by the counsel for the petitioner cannot be made applicable to this case. In this case, the Council of Ministers have tendered their advice to the Governor of the State for release of the Petitioner and others and a decision is to be taken by the Governor of the State. In the case before the Honourable Supreme Court http://www.judis.nic.in 10/22 hcp 2881 of 2019 in Maru Ram the Honourable Supreme Court had an occasion to consider as to whether the remaining period in the prison by a life convict, after amendment to Section 433A of the Code of Criminal Procedure, amount to illegal detention or not.
11. The learned Public Prosecutor would also submit that the contention of the petitioner that several life convicts were given the benefit of premature release, but the same was not extended to her, cannot be countenanced. The claim of the petitioner for premature release does not fall within the purview of Section 435 of the Code of Criminal Procedure, and therefore, she was not considered for premature release. In fact, the petitioner has earlier filed WP No. 4120 of 2006 before this Court and it was dismissed on 24.09.2008. The writ appeal filed thereagainst in W.A. No. 1207 of 2008 was also dismissed by the Division Bench of this Court on 06.04.2010 by holding that the Government issued various orders for premature release of life convicts by introducing specific classification thereof and those who do not fall under Section 435 of the Code cannot contend that the action of the State is arbitrary, discriminatory, unfair and unreasonable. In fact, the Government of Tamil Nadu has considered the claim of the petitioner for grant of remission in exercise of the power under Article 161 of The Constitution of India and the http://www.judis.nic.in 11/22 hcp 2881 of 2019 advice made thereof by the Council of Ministers is pending consideration by the Governor of Tamil Nadu. However, the petitioner cannot claim that from the date on which the advice was tendered, her detention has automatically become illegal. In fact, a similar claim made by the petitioner in WP No. 14261 of 2019 was rejected by this Court by refusing to issue a Mandamus to the State Government, especially when the Government, through the Council of Ministers, have tendered advice to the Governor even as early as on 09.09.2018. While so, the contention of the petitioner that she is in illegal detention after 09.09.2018 cannot be countenanced. Unless the advice tendered by the Council of Ministers is approved by the Governor of the State, the petitioner cannot be released from her incarceration prematurely. The learned Public Prosecutor therefore prayed for dismissal of the Habeas Corpus Petition.
12. Mr. G. Rajagopalan, learned Additional Solicitor General of India appearing for the third respondent would contend that the death sentence imposed on the petitioner was commuted to life sentence. According to the learned Additional Solicitor General of India, life sentence means the petitioner has to be incarcerated till her natural life unless otherwise it is remitted by the Governor of State. In the present case, even though the http://www.judis.nic.in 12/22 hcp 2881 of 2019 Council of Ministers have tendered advice to the Governor for premature release of the petitioner and others, unless such advice is acted upon by the Governor by passing a formal order, the petitioner cannot be released. In such circumstances, the advice given by the Council of Minister on 09.09.2018 will not ipso facto entitle the petitioner to get released from her incarceration by declaring her detention as illegal. The advice of the Council of Ministers have to be acted upon by the Governor of the State by passing a formal order without which the advice of the Council of Ministers will not come to the aid of the petitioner. In fact, one Kannadasan has filed a Writ Petition before this Court against the Governor of Tamil Nadu in W.P. No. 34813 of 2019 with a prayer to the Union of India to take action against the Governor for not acting on the recommendation of the Council of Minister. The said writ petition was dismissed by this Court on 03.01.2020 as not maintainable by referring to the decision rendered by this Court in the case of S. Nalini vs. The Governor of Tamil Nadu reported in (2019) 6 MLJ 129. The petitioner having failed to get any order or direction before this Court, cannot claim that her detention beyond 09.09.2018 is illegal and she has to be released from the prison. In this context, the learned Additional Solicitor General of India placed heavy reliance on the decision of the Honourable Supreme Court in the case of Registrar, High Court, Madras vs. K. Rajiah reported in (1988) 3 Supreme http://www.judis.nic.in 13/22 hcp 2881 of 2019 Court Cases 211 wherein it was held that the order to be passed by the Governor is not a mere formality and it is a mandatory compliance. The above decision was rendered by the Honourable Supreme Court pertaining to a dispute in Service Law where a Judicial Officer was imposed with a punishment of compulsory retirement and it was to be approved by the Governor of the State in accordance with Rule 56 (d) of the Fundamental Rules. The Governor has not approved the order of compulsory retirement passed by the High Court and therefore, it was held to be ineffective and the order of compulsory retirement has not been given effect to. By relying upon the above decision, the learned Additional Solicitor General would contend that the mere advice given by the Council of Minister without the sanction of the Governor will not make the incarceration of the petitioner illegal to get released prematurely.
13. The learned Additional Solicitor General also would submit that the State Government, without any consultation with the Central Government, has tendered the advice to the Governor of the State and therefore, such advice has no value at all. When the death sentence of the petitioner was already commuted into that of life sentence by the President of India in exercise of powers under Article 72 of The Constitution of India, the State Government http://www.judis.nic.in 14/22 hcp 2881 of 2019 could not have independently decided to release the writ petitioner by tendering advice to the Governor of the State. In this context, the learned Additional Solicitor General also relied on the Judgment dated 27.04.2018 passed by the Division Bench of this Court in W.A. No. 1619 of 2016 wherein this Court has observed in Para No.32 as follows:-
"31. The Supreme court has already held that the word consultation used in Section 435 (1) is nothing but concurrence. Similarly, it was held that in the event of a specific power conferred on the Central Government under a law made by Parliament or under the Constitution itself, then in the event of the conviction and sentence covered by the Central law, the appropriate Government will be the Central Government, even if the State legislature is also empowered to make laws on the same subject, in view of Article 73 (1) (a) of the Constitution."
14. By pointing out the above Judgment of the Division Bench of this Court, the learned Additional Solicitor General of India would submit that the State Government ought not to have independently decided to release the Petitioner and other convicts without consulting the Central Government. In any event, the relief sought for by the petitioner to declare her detention as illegal on the basis of the advice given by the Council of Ministers on 09.09.2018 will not arise in view of the fact that she was convicted by the designated Court at Poonamallee which was also confirmed by the Honourable Supreme Court and therefore, she is not entitled to maintain this Habeas Corpus Petition.
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15. We have heard the counsel on either side and given our anxious consideration. The petitioner and others were convicted and sentenced to death, which was subsequently commuted into life imprisonment. According to the petitioner, she had undergone 28 years of incarceration from the date of her arrest, however, she was not given the benefit of premature release, as has been conferred to other similarly placed life convicts. It is also her contention that the Council of Ministers have tendered advice to the Governor of the State for her premature release, however, a formal approval or an order is yet to be passed thereon by the Governor of the State. It is therefore contended that the moment the advice has been given by the Council of Minister to the Governor on 09.09.2018, she is automatically entitled for premature release and any further detention has to be declared as illegal.
16. The core question involved in this Habeas Corpus Petition is whether the detention of the petitioner is to be declared as illegal from 10.09.2018, in the light of the advice tendered by the Council of Ministers of the State on 09.09.2018 to the Governor for her premature release. It is to be stated that the petitioner was incarcerated after due trial by the designated Court at Poonamallee, which was also confirmed by the Honourable Supreme Court. The fundamental right or personal liberty of the petitioner guaranteed http://www.judis.nic.in 16/22 hcp 2881 of 2019 under Article 14 or 21 of The Constitution of India has not been infringed and therefore, we are of the view that the Habeas Corpus Petition itself is not maintainable as has been held by the Honourable Supreme Court in the recent decision rendered in (The Home Secretary (Prison) and others vs. H. Nilofer Nisha mentioned supra. The matter relating to premature release of a life convict has to be left to the Government for taking a decision. Such a decision has to be taken by the Government by considering various factors relating to the period of detention, good conduct exhibited by the prisoner, offence for which he or she has been commuted etc., Therefore, we are of the firm view that the present Habeas Corpus Petition filed by the petitioner to declare her detention as illegal is not maintainable when the incarceration of the petitioner is pursuant to due trial conducted by the designated Court at Poonamallee, which was also confirmed by the Honourable Supreme Court.
17. The learned counsel for the petitioner vehemently relied on the decision of the Honourable Supreme Court in Maru Ram Case mentioned supra. In Maru Ram case relied on by the learned counsel for the petitioner, the Honourable Supreme Court had an occasion to consider the scope and ambit of the amendments brought to Section 433-A of the Code of Criminal Procedure, whereby a condition was imposed that the person who was imposed http://www.judis.nic.in 17/22 hcp 2881 of 2019 with life sentence or who was imposed with death sentence but subsequently such sentence was commuted to life imprisonment, shall not be released from prison unless he had served at least fourteen years of imprisonment. The Honourable Supreme Court also considered the position that existed prior to the amendments being brought into Section 433-A of the Code and whether those who were sentenced to life or death prior to amendment can still have to wait till they serve actual 14 years of sentence for their premature release in view of the amendments made. It is in that context, the Honourable Supreme Court has held that under Article 161 of The Constitution of India, the Governor is bound by the advice of the Council of Ministers, but yet, it is obligatory that the signature of the Governor is mandatory to authorise the pardon, commutation or release. Therefore, the contention urged on behalf of the petitioner that the Governor's approval or consent is not necessary and the petitioner can be released on the basis of the advice given by the Council of Minister on 09.09.2018 cannot be countenanced. In this context, we are fortified by the decision relied on by the learned Additional Solicitor General of India in the case of Registrar, High Court of Madras vs. R.Rajiah mentioned supra. This decision was rendered by the Honourable Supreme Court interpreting Service Law jurisprudence. In that case, the respondent therein, a Judicial Officer, was imposed with a punishment of compulsory http://www.judis.nic.in 18/22 hcp 2881 of 2019 retirement by the High Court. Such an order passed by the High Court has not been approved by the Governor and therefore, it was held by the Honourable Supreme Court that however formal it may be, unless the order of compulsory retirement passed against the respondent herein is approved by the Governor, it will not take effect. In this context, useful reference can be made to the observations in para-20 of the Judgment, which reads as follows:-
"20. But however formal it is, the compulsory retirement of the member concerned will take effect after the order is passed by the Governor. The High Court, in the present cases, sought to derive its power to compulsorily retire the respondents from Rule 56 (d) of the Fundamental Rules and in exercise of its power of control it decided to compulsorily retire the respondents, but ignored the power of the Governor under Rule 56 (d) of the Fundamental Rules to make the order of compulsory retirement in accordance with the recommendation of the High Court. It may be that the power of the Governor under Rule 56 (d) of the Fundamental Rules is very formal in nature, for the Governor merely acts on the recommendation of the High Court by signing an order in that regard. But however formal it may be, yet the procedure has to be complied with. So long as there is no formal order by the Governor, the compulsory retirement, as directed by the High Court, could not take effect. We are unable to accept the contention of the learned Additional Solicitor General that to send the recommendation to the Governor for the purpose of making a formal order of compulsory retirement would be in derogation of the power of control of the High Court as vested in it under Article 235 of the Constitution. As has been discussed above, the power of control is a power to make the decision as to whether any action would be taken against a member of the subordinate judicial service and if so, what would be the nature of the action. In the case of compulsory retirement, when the High http://www.judis.nic.in Court comes to a decision that the member should be 19/22 hcp 2881 of 2019 compulsorily retired from service, its decision or recommendation has to be communicated to the Governor so that he may pass a formal order of compulsory retirement. In the instant cases, as there is no formal order by the Governor under Rule 56 (d) of the Fundamental Rules, the impugned orders of the High Court are ineffective. The view expressed by one of the learned Judges of the Division Bench that it was not the High Court but the Governor who had to pass formal orders of compulsory retirement, is correct. The contention made on behalf of the High Court that as Rule 56 (d) of the Fundamental Rules impinges upon the power of control of the High Court, as vested in it under Article 235 of the Constitution, it should be declared ultra vires insofar as it confers power on the Governor to compulsorily retire government servants, who, in the instant cases, are members of the subordinate judicial service, is without any substance whatsoever and is rejected."
18. Thus, it is evident from the above decision that the order to be passed by the Governor of the State, though formal, assumes significance that without the consent of the Governor or his signature on the proposal sent to him, such proposal or consent shall not take effect. Similarly, in this case, the Council of Ministers have tendered their advice to the Governor of the State on 09.09.2018 for premature release of the petitioner and others. Such advice has not been acted upon and it is pending consideration of the Governor. No order has been passed thereof as on date. While so, merely based on the advice of the Council of Minister on 09.09.2018 for premature release of the petitioner, her detention cannot be declared by this Court as illegal or unreasonable.
http://www.judis.nic.in The mere advice tendered by the Council of Minister on 20/22 hcp 2881 of 2019 09.09.2018 will not entitle the petitioner to get released prematurely unless it was accepted or signed by the Governor. In order to get the benefit of premature release, the signing of the order by the Governor of the State, on the advice tendered by the Council of Ministers, is mandatory and in the absence of the signature of the Governor of the State, the petitioner cannot get the benefit of premature release in her favour.
19. For all the above reasons, the Habeas Corpus Petition fails and it is dismissed.
(R.P.S.J) (R.P.A.J)
11.03.2020
Index : Yes / No
Speaking Order: Yes / No
rsh
To
1. The State of Tamil Nadu
Rep. by the Secretary to Government
Home, Prohibition and Excise Department
Secretariat, Chennai-600 009.
2. The Superintendent of Prison
Special Prison for Women
Vellore
3. Union of India
rep. by the Secretary to Government
Ministry of Home Affairs
Major Dhyan Chand Stadium
India Gate, New Delhi - 110 002
http://www.judis.nic.in
21/22
hcp 2881 of 2019
R. SUBBIAH, J
and
R. PONGIAPPAN, J
rsh
Pre-delivery order in
HCP No. 2881 of 2019
11-03-2020
http://www.judis.nic.in
22/22