Madras High Court
Zaheera Banu vs The State Rep. By on 25 March, 2022
Author: P.N.Prakash
Bench: P.N.Prakash, A.A.Nakkiran
W.P.No.5073 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 11.03.2022
PRONOUNCED ON : 25.03.2022
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
AND
THE HONOURABLE Mr.JUSTICE A.A.NAKKIRAN
W.P.No.5073 of 2021
Zaheera Banu .. Petitioner
Vs.
1.The State rep. by
The Secretary to Government of Tamil Nadu
Department of Home, Fort St. George
Chennai 600 009
2.The Additional Director General of Prison
CMDA Towers, Egmore
Chennai 600 008
3.The Superintendent
Central Prison
Puzhal-I, Chennai .. 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 pertaining to the impugned order G.O.(D).No.1085 Home
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W.P.No.5073 of 2021
(Prison-IV) Department, dated 18.09.2019, passed by the 1st respondent and
to quash the same and consecutively direct the respondents to release the
detenu viz., Umar Bharukh @ Muhaideen Abdhul Kadhar, S/o.Luthbullah,
life convict No.6045 prematurely confined at Central Prison, Puzhal-I,
Chennai, as per the G.O.(Ms) No.1155 Home (Pri.IV) Department, dated
11.09.2008 and also G.O.(Ms) No.64 Home (Prison-IV) Department, dated
01.02.2018.
For Petitioner Mr.S.Manoharan
For Respondents Mr.R.Muniyapparaj
Additional Public Prosecutor
ORDER
P.N.PRAKASH, J.
Challenging G.O.(D).No.1085 Home (Prison-IV) Department, dated 18.09.2019, (in short “the impugned order”) passed by the 1 st respondent, refusing to grant premature release of Umar Bharukh @ Muhaideen Abdhul Kadhar (life convict No.6045) and for a direction to release him prematurely, his wife Zaheera Banu has filed the instant writ petition.
2. The facts run thus :
2.1. One Dr.Sridhar, BJP Town Secretary was murdered in Trichy in the year 1999, in connection with which, a case in Woraiyur P.S. Crime 2/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 No.59 of 1999 was registered and Umar Bharukh and 5 others were tried in S.C.No.140 of 2000 by the Additional District Judge (FTC), Tiruchirapalli, in which, Umar Bharukh was convicted and sentenced on 07.10.2003 as under :
Provision under Sentence which convicted Section 302 and Imprisonment for life and fine of 120-B IPC read with Rs.1,000/-, in default to undergo 1 year Section 302 IPC rigorous imprisonment Section 148 IPC 2 years rigorous imprisonment and fine of Rs.500/-, in default to undergo 6 months rigorous imprisonment 2.2. Appeals preferred by the convicted accused, including Umar Bharukh, were dismissed by this Court on 22.02.2008 in Crl.A.Nos.1736 and 1807 of 2003 and their further appeals to the Supreme Court also suffered the same fate on 13.04.2016 in Crl.A.Nos.2118 and 2119 of 2009.
2.3. Apart from the above, Umar Bharukh has been convicted and sentenced by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Chennai on 07.09.2006 in S.C.No.8 of 2003, for the offences under the Explosive Substances Act, 1908 and under Section 307 IPC and has been 3/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 sentenced to various terms of imprisonment, the maximum being 7 years rigorous imprisonment, against which, he has not chosen to file any appeal.
2.4. While so, in order to commemorate the Birth Centenary of Peraringnar Anna, the State issued G.O.(Ms) No.1155 Home (Pri.IV) Department, dated 11.09.2008 (in short “G.O.1155”) under Article 121 of the Constitution of India, granting premature release of 1,405 convict prisoners, by fixing the cut-off date as 15.09.2008.
2.5. Since the case of Umar Bharukh was not considered under the said G.O.1155, Zaheera Banu gave a representation dated 06.02.2017 seeking premature release of Umar Bharukh under G.O.1155 and thereafter, followed it up, by filing H.C.P.No.634 of 2017 before this Court. During the course of hearing of the said H.C.P.No.634 of 2017, it was submitted by the State that the Probation Officer had submitted a report dated 14.11.2017, stating that there would be breach of peace, in the event of Umar Bharukh being released. When this was brought to the notice of this Court, the following order was passed in H.C.P.No.634 of 2017 on 22.01.2019 :4/20
https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 “5. Expressing the view that mere apprehension of breach of peace, suggestive of wrong doing, not by the convict prisoner but by others, would not be reason enough to deny relief to him and further situations such as breach of peace and law and order problems are concerns of the State, which are to be provided against, not by the individual/convict prisoner, but by the State and difficulties in performing duties imposed upon the State cannot be put in the way on the relief of the prisoners, this petition is allowed.” 2.6. Aggrieved by the aforesaid order, the State took the matter on appeal in S.L.P.(Criminal) D.No.18048 of 2019, in which, the Supreme Court, issued the following directions on 26.07.2019 :
“Accordingly, the Special Leave Petition stands disposed of by setting aside the impugned judgment and with the direction to the authority concerned to decide the representation dated 06.02.2017 as early as possible but not later than six weeks from today.
It is open to the respondent and/or convict to take such steps as are available in law, in case, decision goes against the convict. However, if the decision is not taken within six weeks it is open for the respondent and/or convict to move this Court directly.” Pursuant to the above, the State has passed the impugned order, rejecting the request of Zaheera Banu for the premature release of Umar Bharukh, challenging which, Zaheera Banu has filed this writ petition with the above prayer.
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3. It is pertinent to state here that in H.C.P.No.634 of 2017, Zaheera Banu was seeking premature release of Umar Bharukh under G.O.1155. However, the prayer in the instant writ petition is not only for the premature release of Umar Bharukh under G.O.1155, but, also for premature release under the subsequent Government Order viz., G.O.(Ms) No.64 Home (Prison-IV) Department, dated 01.02.2018 (in short “G.O.64”).
4. Heard Mr.S.Manoharan, learned counsel for Zaheera Banu and Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the respondent/State.
5. The State has filed a counter affidavit dated 17.09.2021, justifying the impugned order.
6. Mr.Manoharan submitted that while in prison, Umar Bharukh has acquired M.B.A. degree in System Management and Information Security and has completed M.C.A. and M.Com. from Tamil Nadu Open University 6/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 and Indira Gandhi National Open University, respectively. He contended that Umar Bharukh has turned over a new leaf and so, there is no allegation or black mark against him, during the period of his incarceration. He further contended that whenever Umar Bharukh was released on leave, he promptly returned to the prison.
7. Mr.Manoharan placed strong reliance on the judgment of the Supreme Court in Home Secretary (Prison) and Others Vs. H.Nilofer Nisha [(2020) 14 SCC 161] and submitted that the Supreme Court has considered the track record of some convict prisoners and has directed their premature release and therefore, this Court should also look into the track record of Umar Bharukh and release him. He further assailed the Probation Officer's report and submitted that in all cases, the Probation Officers submitted their stereotyped reports and therefore, this Court should not place any reliance thereon.
8. Mr.Manoharan placed reliance on the judgment of the Supreme Court in State of Tamil Nadu and Others Vs. P.Veera Bhaarathi [(2019)18 7/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 SCC 71] and submitted that Umar Bharukh has undergone the sentence in S.C.No.8 of 2003 and therefore, what remains to be remitted is, the life sentence that has been imposed upon him in S.C.No.140 of 2000.
9. Per contra, Mr.R.Muniyapparaj, learned Additional Public Prosecutor refuted the contentions put forth by Mr.Manoharan.
10. We gave our anxious consideration to the rival submissions.
11. As regards the submission of Mr.Manoharan that this Court should ignore the Probation Officer's report, we find that earlier, a Division Bench of this Court in H.C.P.No.634 of 2017, gave a go-by to the Probation Officer's report and by order dated 22.01.2019, directed the premature release of Umar Bharukh. However, the order passed by this Court was reversed by the Supreme Court as stated above.
12. Now, let us examine the reasons given by the State in the impugned order, which completely discuss the entire facts relating to the 8/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 case of Umar Bharukh and also about the orders passed by this Court in H.C.P.No.634 of 2017 and by the Supreme Court in S.L.P.(Criminal) D.No.18048 of 2019 and ultimately, in paragraph 9 of the impugned order, the following reasons find a place :
“9. The Government have examined the representation of the petitioner Tmt.Zaheera Banu, second read above seeking premature release of her husband/life convict prisoner No.6045 Umar Bharukh @ Muhaideen Abdhul Kadhar, son of Luthfullah along with connected records in consultation with the Additional Director General of Police/Inspector General of Prison, Chennai-8 and in terms of the G.O. First read above and decided to reject the same for the following reasons and order accordingly. i. He along with 5 others were involved in a brutal murder of Dr.Sridhar, B.J.P. Town Secretary, Trichy on a communal motive. ii. He is also involved in criminal conspiracy, attempting to cause explosion and making or keeping explosive with intent to endanger life or property in various places in Tamil Nadu and Kerala and convicted by the Sessions Court for Exclusive Trial of Bomb Blast Cases, Poonamallee in S.C.No.8 of 2003, dated 07.09.2006. iii. Since the offence committed is on religious prejudices, he is ineligible as per para-1(b) of the G.O.(Ms) No.1155, Home (Prison- IV) Department, dated 11.09.2008.
iv. These extremely violent murders have communal overtones in a communally sensitive area added to social tension and the release of such a person would disturb peace and harmony prevailing in that area. Hence, there will be law and order problem, if he is released. v. The Probation Officer, Nagapattinam has not recommend for his premature release since the life convict is still having close relationship with Al-Umma, a terrorist outfit indulged in activities of outlaw and is banned in this State.
vi. The Inspector of Police, Nagoor Police Station has not 9/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 recommended as his release may create law and order problem in the society and still he has nexus with anti-social elements.” A reading of the above shows that the State has not relied merely on the Probation Officer's report, but has also taken into consideration other factors, for not granting premature release to Umar Bharukh.
13. Though the impugned order in this case relates to G.O.1155 and the main prayer is for quashing that, yet, in the prayer portion, Zaheera Banu has sought the release of Umar Bharukh under G.O.64 also. As stated above, in Nilofer Nisha (supra), the Supreme Court had gone into all the aspects of G.O.64 which contemplates the constitution of two Committees, viz., State Level Committee and District Level Committee, for examining the cases of convict prisoners and send their recommendations to the Government. We are told that 1,650 convict prisoners were released by the State Government under G.O.64 and the cut-off date was fixed as 25.02.2018 and as on that date, undoubtedly, Umar Bharukh was eligible for being considered, as he had completed 18 years and 10 days of sentence as on 25.02.2018, as could be seen from paragraph 8 of the counter affidavit of the State Government. However, in paragraph 19 of the counter affidavit, 10/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 reasons for not releasing Umar Bharukh under G.O.64 have been stated, which are as under :
“ ... ... It is submitted that the Inspector of Police, Nagoor Police Station and the Probation Officer, Nagapattinam have not recommended for his premature release and hence, he is not eligible for consideration as per para 5(II)2(A)(v)(vi)(4) and (6) of G.O.(Ms) No.64, Home (Prison-IV) Department, dated 01.02.2018. Hence, there is no intention to interfere with the business of the police and Probation Officers for the premature release of the life convicts by the respondents. ... ... “ We cannot say that the aforesaid reasons are totally perverse.
14. In Nilofer Nisha (supra), this Court ordered the premature release of convict prisoners, aggrieved by which, the State took the matter on appeal to the Supreme Court and the Supreme Court set aside the orders of this Court, but, exercised its powers under Article 142 of the Constitution of India and went into the case of each convict prisoner and directed their premature release. The power under Article 142, ibid., is available only to the Supreme Court and not to this Court. Under Article 226, ibid., this Court can only see if there is any illegality in the impugned order that has been passed by the Governor under Article 161, ibid.11/20
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15. Besides the present writ petition, Mr.Manoharan argued a batch of premature release writ petitions and submitted that his legal arguments advanced in this case would be not only for this case, but, common for all such cases too. Therefore, the answer given by us below, to his legal submissions, would hold good for the other petitions argued by him and hence, may appear repetitive.
16. In support of his further contentions, Mr.Manoharan placed reliance on the following judgments :
i. Zahid Hussein and Others Vs. State of West Bengal and Another [(2001)3 SCC 750] ii. State of Haryana and Others Vs. Rajkumar @ Bittu [(2021)9 SCC 292] iii. State of Haryana Vs. Jagdish [(2010)4 SCC 216] iv. Sharafat Ali Vs. State of Uttar Pradesh and Another [2022 SCC OnLine SC 193]
17. As regards Zahid Hussein (supra), the Supreme Court was dealing with the order passed by the Review Board under Rule 591 of the West Bengal Rules for Superintendence and Managements of Jails, wherein, certain guidelines were framed by the Government for the consideration of 12/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 the case of convict prisoners for premature release. From paragraph 14 of the said judgment, it is seen that the prison authority had recommended the premature release of the petitioner therein, but, the Review Board rejected the request. The Supreme Court went into the reasons given by them and found that the Review Board had not considered the guideline, viz., “whether there is any fruitful purpose of confining of these convicts any more.”
18. Coming to the case of Jagdish (supra), the Haryana Government had put in place a remission policy dated 04.02.1993. The convict prisoner therein was convicted on 20.05.1999. Subsequently, the said Government put in place a short sentencing policy on 13.08.2008. When the convict prisoner therein claimed remission under the remission policy dated 04.02.1993, it was denied by holding that his case could be considered only under the remission policy dated 13.08.2008 and since he did not satisfy the conditions of the 13.08.2008 remission policy, he would not be entitled to premature release. In that context, the Supreme Court, in paragraphs 53 and 54, held that the State should have considered the case of the convict 13/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 prisoner, in terms of the remission policy dated 04.02.1993, as that was the policy that was in force at the time of the conviction of the prisoner and that, the subsequent policy dated 13.08.2008, should not have been applied at all. Coming to the case in hand, in the State of Tamil Nadu, there is no general remission policy as such. However, under Rule 341 of the Tamil Nadu Prison Rules, 1983, individual case of convict prisoners for release can be considered by an Advisory Board and not under G.O.1155 or G.O.64.
19. In Rajkumar (supra) also, the issue was similar to the one in Jagdish (supra), with regard to the applicability of the remission policy that was in vogue, at the time of the conviction of the prisoner therein. A reading of paragraph 4 of Rajkumar (supra) shows that the petitioner therein was convicted on 25.03.2010 and that his case would have to be considered under the policy dated 13.08.2008.
20. In Sharafat Ali (supra), the Supreme Court was dealing with a petition under Article 32 of the Constitution of India. In paragraph 6, the Supreme Court held that the application for premature release has to be 14/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 considered, on the basis of the policy as it stood on the date when the petitioner was convicted of the offence. After holding so, in paragraph 7, the Supreme Court held that the order of the State Government contains general observations to the effect that the release may result in resentment on the side of the victim.
21. In all the above cases, the Supreme Court was dealing with the power of the State Government to release a prisoner prematurely, based on the extant rules and policies. As alluded to above, in the State of Tamil Nadu, there is no fixed policy for the release of convict prisoners. In the instant case, premature release of Umar Bharukh is sought under G.O.1155, which is an one time scheme announced by the State Government to commemorate the Birth Centenary of Peraringnar Anna and the cut-off date was fixed as 15.09.2008. The case of convict prisoners who qualified the threshold conditions as on 15.09.2008, were considered by the State Cabinet and on the aid and advice of the State Cabinet, the Governor ordered premature release under Article 161, ibid., in respect of 1,405 convict prisoners. On the directions of the Supreme Court in S.L.P.(Criminal) 15/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 D.No.18048 of 2019 dated 26.07.2019, the case of Umar Bharukh was considered by the State Cabinet and the State Cabinet did not recommend for his premature release and accordingly, the Governor, by the impugned order, has not exercised his powers under Article 161, ibid., for the reasons given in the impugned order.
22. Under our Constitutional Scheme, the judiciary is vested with the power to decide the culpability or otherwise of an accused objectively based on the evidence on record. After the judiciary convicts and sentences an accused, the convicted accused is handed over to the executive for implementing the sentence imposed by the Court. The executive cannot sit in judgment over the correctness of the findings of the judiciary. Life imprisonment means imprisonment until the end of the natural life of the convicted accused. The Governor has the sovereign power under Article 161, ibid., to remit the sentence. The Governor acts under the aid and advice of the Council of Ministers (Cabinet). The Chief Minister and his Council of Ministers should enjoy the confidence of the majority of the elected members in the assembly. The task of governance of the State is on 16/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 the Chief Minister and his Council of Ministers. Therefore, when they advise the Governor not to grant premature release to a prisoner, the Court should be slow in interfering with that order. In Epuru Sudhakar and Another Vs. Government of Andhra Pradesh and Others [(2006) 8 SCC 161], the grounds on which judicial review of the order of the Governor passed under Article 161, ibid., can be done have been enumerated. The Court cannot also issue a mandamus to the Governor directing him to exercise his power under Article 161, ibid.
23. Further, in Epuru Sudhakar (supra), the Supreme Court has held in paragraph 66 as under :
“66. ... ... Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.” Similarly, in paragraph 65, the Supreme Court has held that the President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves. As regards the power of the Court to judicially review the order of the President/Governor under 17/20 https://www.mhc.tn.gov.in/judis W.P.No.5073 of 2021 Article 72/161, ibid., the Supreme Court has held as follows :
“34. The position, therefore, is undeniable that judicial review of the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:
(a) that the order has been passed without application of mind;
(b) that the order is mala fide;
(c) that the order has been passed on extraneous or wholly irrelevant considerations;
(d) that relevant materials have been kept out of consideration;
(e) that the order suffers from arbitrariness.”
24. In view of the foregoing discussion, we find that the impugned order in this case is not in violation of the parameters set out in Epuru Sudhakar (supra) and is accordingly upheld.
In the result, this writ petition is dismissed as being devoid of merits. No costs.
[P.N.P., J.] [A.A.N., J.]
gya .03.2022
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W.P.No.5073 of 2021
To
1.The Secretary to Government of Tamil Nadu
Department of Home, Fort St. George
Chennai 600 009
2.The Additional Director General of Prison
CMDA Towers, Egmore
Chennai 600 008
3.The Superintendent
Central Prison
Puzhal-I, Chennai
4.The Public Prosecutor
High Court, Madras
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W.P.No.5073 of 2021
P.N.PRAKASH, J.
AND
A.A.NAKKRIAN, J.
gya
W.P.No.5073 of 2021
25.03.2022
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