Madras High Court
M. Meenakshi Muniyappan vs The State Of Tamil Nadu on 24 February, 2020
Author: R. Subbiah
Bench: R. Subbiah
hcp 335 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.02.2020
CORAM
THE HONOURABLE MR. JUSTICE R. SUBBIAH
and
THE HONOURABLE MR. JUSTICE RMT. TEEKAA RAMAN
Habeas Corpus Petition No. 335 of 2020
---
M. Meenakshi Muniyappan .. Petitioner
Versus
1. The State of Tamil Nadu
rep. by the Secretary to Government
Home (Prison-IV) Department
Secretariat, Chennai - 600 009
2. The Inspector General of Prisons
Office of the Inspector General of Prisons
Chennai - 600 008
3. The Superintendent
Central Prison
Cuddalore - 607 401 ..Respondents
Habeas Corpus Petition filed under Article 226 of The Constitution of
India praying to issue a Writ of Habeas Corpus calling for the records of the
first respondent in connection with G.O. (D) No.1374 dated 14.11.2019 and
quash the same and produce the petitioner's son M. Ravi, Son of Muniyappan,
aged about 45 years, who is now detained in Central Prison, Cuddalore before
this Court and directing the respondent to consider him under G.O. (Ms)
No.64, Home (Prison-IV) Department dated 01.02.2018 for premature release
and set him at liberty.
For Petitioner : Mr. P. Saravanan
For Respondents : Mr. C. Emalias, Additionl Advocate General
http://www.judis.nic.in
assisted by
Mr. R. Prathap Kumar
Additional Public Prosecutor
hcp 335 of 2020
ORDER
(Order of the Court was made by R. Subbiah, J) This Habeas Corpus Petition is filed by the petitioner, who is the mother of the detenu. In this Habeas Corpus Petition, the petitioner challenges the order dated 14.11.2019 of the first respondent, by which, the first respondent refused to consider the claim of the petitioner for pre-mature release of her son/detenu by extending the benefit of G.O. (Ms) No.64, Home (Prison-IV) Department dated 01.02.2018.
2. The Governor of Tamil Nadu, in exercise of power conferred under Article 161 of the Constitution of India, issued various Government Orders, from time to time, to remit the unexpired portion of sentence imposed on the life convicts undergoing incarceration across various Prisons in the State for their pre-mature release. In this case, the petitioner would contend that the detenu is undergoing incarceration from 2004 and he is entitled to be considered for pre-mature release on the basis of the order passed by the Government in G.O. (Ms) No.64, Home (Prison-IV) Department dated 01.02.2018. However, the claim of the petitioner for such pre-mature release of her son has been rejected by the respondent on the ground that the offence committed by the petitioner does not fall within the guidelines and parameters issued by the Government to extend the benefits of G.O. Ms. No.64 dated http://www.judis.nic.in 01.12.2018. Challenging the same the present Habeas Corpus Petition inter hcp 335 of 2020 alia to release the son of the petitioner/detenu by extending the benefits of G.O. Ms. No.64 dated 01.12.2018.
3. The core question involved in this Habeas Corpus Petition for determination is whether the Habeas Corpus Petition is maintainable and a direction can be issued to the respondents for pre-mature release of the detenu by declaring the detention of the detenu as illegal, when he has been convicted by a competent Court, after due trial.
4. In this context, the learned Additional Public Prosecutor appearing for the respondents brought to the notice of this Court the latest decision rendered by the Honourable Supreme Court 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) wherein it was held that a Habeas Corpus Petition for pre-mature release of a life convict is not maintainable when his or her conviction is on the basis of the Judgment passed by a Competent Court of Jurisdiction after due trial. In Para Nos. 14, 29, 30 and 31, it was held by the Honourable Supreme Court as follows:-
"14. 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/her personal liberty. It is processual http://www.judis.nic.in writ to secure liberty of the citizen from unlawful or unjustified detention, whether a person is detained by the State or is in a private detention. As Justice Hidayatullah (as hcp 335 of 2020 he then was) held: "The writ of habeas corpus issues not only for release from detention by the State but also for release from private detention. At the same time, the law is well established that a writ of habeas corpus will not lie and such a prayer should be rejected by the Court where detention or imprisonment of the person whose release is sought for is in accordance with the decision rendered by a court of law or by an authority in accordance with law.
..........
29. Learned Senior counsel for the detenus while referring to Rules 11, 12 and 13 submitted that unless the petitioners in terms of Rule 12 mentions the detention order, name of the prison where the detenu is detained, prison number and does not challenge the order of detention, the writ would not be entertained. What description has to be given to a writ is for the High Court to decide. But the Rules cannot confer jurisdiction which is not conferred by the constitution. We are even otherwise unable to accept the argument of the learned Senior counsel for the detenus because the Rules obviously deal with cases of detention/preventive detention where the detenu is under custody. If that custody is legal then obviously no writ of habeas corpus can be issued for release of the detenu. We are also of the view that merely because the Rules provide that in the petition details of the detention order, prison etc., have to be given does not mean that the writ of habeas corpus cannot be issued where the Rules are silent. The Rules cannot override the Constitution.
30. As already mentioned above, it is well settled law that even if the detenu is in private detention then also a writ of habeas corpus petition would lie. If the Rules are to be the masters and not the constitution, then, probably in the Madras High Court no writ of habeas corpus would be entertained in the case of private detention. This would be against the spirit of the constitution of India. Therefore, we are clearly of the view that reference to the Rules is of no aid whatsoever.
31. The issue before us in the present case is whether the High Court can direct the release of a petitioner under G.O. (Ms) No.64 dated 01.02.2018. We do not think so. In all these cases, representations made by the detenus had not been http://www.judis.nic.in decided. In our view, the proper course for the Court was to direct that the representations of the detenus be decided within a short period. Keeping in view the fact that the hcp 335 of 2020 Scheme envisages a report of the Probation Officer, a reference by the District Level Committee and thereafter the matter has to be placed before the concerned Range Deputy Inspector General and before Regional Probation Officer and thereafter before the State Level Committee, we feel that it would be reasonable to grant 2 - 3 months depending on the time when the representation was filed for the State to deal with them. When the petition is filed just a few days before filing the representation then the Court may be justified in granting up to 3 months' time to consider the same. However, if the representation is filed a couple of months earlier and the report of the Probation Officer is already available then lesser time can be granted. No hard and fast timelines can be laid down but the Court must give reasonable time to the State to decide the representation. We are clearly of the view that the Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors, enumerated above, which have to be considered by the committees. The report of the Probation Officer is only one of them. After that, the District Committee has to make a recommendation and finally it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been followed in the Madras High Court of issuing such type of writs for a long time cannot clothe these orders with legality if the orders are without jurisdiction. Past practice or the fact that the State has not challenged some of the orders is not sufficient to hold that these orders are legal."
5. Thus, it is evident from the above decision of the Honourable Supreme Court that this Court cannot decide the eligibility of the detenu for his pre-mature release by issuing a Writ of Habeas Corpus. We are also of the opinion that it is a matter for the Government to take a final call for pre-mature http://www.judis.nic.in release of the detenu by considering various factors. In this case, the hcp 335 of 2020 Government has also rejected the claim of the petitioner by passing an order dated 14.11.2019, which is challenged in this Habeas Corpus Petition. Therefore, the prayer sought for in this Habeas Corpus Petition to produce the detenu before this Court and to set him at liberty by extending him the benefit of the order of the State Government for grant of pre-mature release cannot be countenanced. As observed by the Honourable Supreme Court, unless the fundamental right or personal liberty of a detenu is deprived, a Writ of Habeas Corpus cannot be issued especially when the detention of the detenu in this case is on the basis of a Judgment of conviction passed by the competent Court having jurisdiction.
6. In the result, the Habeas Corpus Petitions is dismissed. No costs.
(R.P.S.J.,) (T.K.R.J.,)
24-02-2020
rsh
Index : Yes / No
Internet : Yes / No
1. The State of Tamil Nadu
rep. by the Secretary to Government
Home (Prison-IV) Department
http://www.judis.nic.in
Secretariat, Chennai - 600 009
2. The Inspector General of Prisons
Office of the Inspector General of Prisons
hcp 335 of 2020
Chennai - 600 008
3. The Superintendent
Central Prison
Cuddalore - 607 401
http://www.judis.nic.in
hcp 335 of 2020
R. SUBBIAH, J
and
RMT. TEEKAA RAMAN, J
rsh
HCP No. 335 of 2020
24-02-2020
http://www.judis.nic.in