CoramThe Honourable Mr v. State of Tamil Nadu

In the High Court of Judicature at MadrasDated: 04.07.2007CoramThe Honourable Mr.JUSTICE P.K.MISRAandThe Honourable Mrs.JUSTICE R.BANUMATHIHabeas Corpus Petition No.1245 Of 2006Pusparaj .... PetitionerVs.1.State of Tamil Nadu rep. by its Secretary Department of Home Fort St. George Chennai 9.2.The Superintendent of Central Prison Central Prison Vellore 2. .... RespondentsPETITION under Article 226 of The Constitution of Indiapraying for the issuance of a Writ of Habeas Corpus, directingthe Respondents to produce the detenu, viz., Pusparaj,S/o.Periyathambi, before this Court and set him at liberty. For Petitioner : Mr.R.Sankarasubbu For Respondents: Mr.M.Babu Muthu Meeran, Addl. Public Prosecutor ---------O R D E R(Order of the Court was made by R.BANUMATHI,J)This is a Petition for issuance of a Writ of HabeasCorpus, questioning the legality of the continued imprisonmentof the Petitioner.2. The Petitioner, is a life convict, who was convictedu/s. 120-B, 365, 386 r/w. 34 & 302 r/w.34 I.P.C. and sentencedto death (u/s.302 r/w.34 I.P.C.), R.I. for 10 years (u/s.386r/w. 34 I.P.C.) and R.I. for 7 years (u/s.365 I.P.C.) by theSessions Court, Chennai, in S.C.No.227/94 on 27.11.1996. InC.A.No. 58/97, the High Court has confirmed the conviction andsentence awarded to the Petitioner. The sentence of deathawarded to the Petitioner was subsequently commuted toimprisonment for life by the Supreme Court of India in https://hcservices.ecourts.gov.in/hcservices/ C.A.Nos. 1234 to 1237/97.3.The Petitioner has completed 13 1/2 years of actualsentence as on 01.03.2007. According to the Petitioner as hehas served more than 10 years, he is eligible for release asper G.O.(Ms).No.873 Home (Prison IV) Department, dated14.09.2006. The contention of the Petitioner is thatexcluding the Petitioner from the list of lifers eligible forremission under the said G.O. is arbitrary and unreasonable.4.On the occasion of 98th Birth Day of Peraringnar Anna,in exercise of the powers conferred under Art.161 ofConstitution of India, the Governor of Tamil Nadu, hasremitted the unexpired portion of sentence of imprisonment forlife passed on the 472 convicts, it would be appropriate toset out the G.O.Ms.No.873 dated 14.09.2006."In the interest and welfare of the prisoners and onthe occasion of the 98th Birth day of PeraringnarAnna, the Government have decided to release alllife convicts, who had completed 10 years of actualimprisonment on 15.09.2006 subject to the followingconditions:-i.That the prisoners, who are convicted for theoffences specified in G.O.Ms.No.1762, Home, dated20.07.1987 will not be eligible for thisconcession;ii.That their general behaviour in the prison shouldhave been satisfactory;iii.That the life of the convict would be safe ifreleased;iv.That they would be accepted by the members oftheir families or any other social organisationwhich can give guarantee for the safety of theirlives;v.That their cases do not come under Section 435Cr.P.C.; andvi.That they will execute bonds, according to theusual terms and conditions." On accepting the recommendation of Additional Director Generalof Prisons (hereinafter referred to as "ADGP"), the Governorhas remitted the unexpired portion of sentence of imprisonmentfor life passed on the 472 convicts, as annexed in the saidG.O. 5.The grievance of the Petitioner is that G.O.Ms.No.873is an instance of general exercise of power of remission underArt.161 and while so, excluding the Petitioner from remissionis unreasonable warranting interference. In the counteraffidavit, it is averred that the ADGP has sent letterNo.24974/PS1/2006 dated 08.09.2006 stating that thePetitioner and co-accused, who is another life convict,viz., https://hcservices.ecourts.gov.in/hcservices/ Muthu @ Muthuraman, were involved in sensational murder caseof a 13 year old innocent boy and recommended not to considertheir cases for premature release on en-masse release. Since,the Petitioner is involved in heinous offence, the non-inclusion of his name is in accordance with the principles andguidelines laid down by the Supreme Court. 6. The main contention of the Petitioner is that theG.O.Ms.No.873 is an instance of general exercise of power andpower to remit the sentence has to be exercised by theGovernor/ appropriate Authority in a fair and impartial manneradopting uniform parameters. As per G.O.Ms.No.873, "theprisoners, who are convicted for the offences specified inG.O.Ms.No.1762, Home, dated 20.07.1987 will not be eligiblefor the concession." The learned counsel for the Petitionerhas vehemently contended that the Petitioner is not a prisonerconvicted for the offences categorised in the saidG.O.Ms.No.1762, so as to dis-entitle him. While so, excludingthe Petitioner from granting remission as per G.O.Ms.No.873,is arbitrary.7.For proper appreciation of contention of thePetitioner, we may usefully refer to G.O.Ms.No.1762 dated20.07.1987, which reads as follows:-"In Para 17.2 of Chapter XX of its report, the AllIndia Committee has recommended that the followingcategories of prisoners should not be eligible forconsideration of premature release:-i.Prisoners convicted of rape, forgery, dacoity,terrorist crimes, offences against the State andprisoners sentenced under Sections 224, 376, 396to 400, 402, 467, 471, 472, 474, 489A, 489B and489 D of the Indian Penal Code;ii.Prisoners convicted of economic offences, blackmarketing, smuggling and misuse of power andauthority; andiii.Prisoners sentenced under Prevention ofCorruption Act, Suppression of Immoral Traffic inWomen and Girls Act, Drugs Act and Prevention ofFood Adulteration Act."8.Concededly, the Petitioner was convicted u/s.120-B,365, 386 r/w. 34 & 302 r/w.34 I.P.C. It was urged that thePetitioner not falling under any one of the excludedcategories, ought to have been given the benefit of remissionin G.O.Ms.No.873. It was further urged, the Government beingthe Sole Authority in advising the Governor, in exercise ofthe powers under Art.161 is bound to act in conformity withthe provisions of Constitution and the principles underlyingthe policy of remitting the sentence of prisoners and orderingpremature release. https://hcservices.ecourts.gov.in/hcservices/

9.The learned counsel for the Petitioner has furtherargued that the manner, in which, the Government exercised itspower of remission either under Sec. 432 Cr.P.C. or Art.161 ofthe Constitution, is open to challenge in a Court of law onthe ground that the power has not been exercised inaccordance with law or the principles of natural justice. 10.The learned counsel relied upon Maru Ram case (AIR1980 S.C. 2147) and contended that every convict who hascompleted the prescribed period of sentence in prison isentitled in law to seek premature release and it is not opento government to say that the premature release of prisonersis an act of benevolence and no one is entitled to seekpremature release as of right. Alternatively, the Counselargued that even if the granting of remissions of sentences isa gesture of goodwill of the Government towards prisoners, whohad reformed in jail, the Government must act in a fair,reasonable and uniform manner in exercising its powers ofprerogative and the power should not be exercised in anarbitrary and capricious manner. It was also urged that anyguidelines issued by the Human Rights Commission cannot governor cripple the powers of the Government in exercising thepower of remission either under Art.161 or Sec. 432 Cr.P.C. 11.Placing reliance upon (2006) 3 S.C.C. (Cri) 438(Epuru Sudhakar Vs. Government of Andhra Pradesh) and 1989S.C.C. (Cri) 86 (Kehar Singh Vs. Union of India), the learnedAdditional Public Prosecutor has contended that the power togrant pardon and remission of sentence is essentially anExecutive Function to be exercised by the Head of the State,after taking into consideration various matters. The learnedAdditional Public Prosecutor has further submitted that thenature of the offence and the Petitioner/life convict, being aSrilankan National, were all the factors taken note of by theexecutive for not enlisting the name of the Petitioner in theen-masse release. The learned Additional Public Prosecutorfurther urged that the order of granting remission essentiallypertains to the proprietary of the order of the Executive inthe matter of exercising power under Art.161, after theconviction/sentence passed by the Court and as such, it cannotbe interfered with.12. G.O.Ms.No. 873 was the order passed in exercise ofthe powers conferred under Art.161. We shall first deal withthe constitutional provisions regarding the grant of pardonand scope of judicial review in such matters. Under theConstitution the power to grant pardon etc. is vested in thePresident and the Governor of States. Art.72 deals with theformer and Art.161 with the latter. Art. 72 provides that thePresident shall have the power to grant pardons, reprieves,respites or remissions of punishment or to suspend, remit orcommute the sentence of any person convicted of any offenceindicated in Art.72. Under Art.161 the Governor of State has https://hcservices.ecourts.gov.in/hcservices/ the power to grant pardons, reprieves, respites or remissionof punishment or to suspend, remit or commute the sentence ofany person convicted of any offence against any law relatingto a matter to which the executive power of the State extendsthat is in respect of matters with respect to which theLegislature of the State has power to make law. Both Articles72 and 161 give the widest powers to the President or theGovernor of a State as the case may be and there are no wordsof limitation indicated in either of the two Articles. 13. In Kehar Singh's Case (1989 S.C.C. (Cri) 86), thescope of exercise of power of President under Art.72 wasconsidered by the Supreme Court and the Supreme Court has heldas under:-"......10. We are of the view that it is open to thePresident in the exercise of the power vested in himby Art.72 of the Constitution to scrutinise theevidence on the record of the criminal case and cometo a different conclusion from that recorded by theCourt in regard to the guilt of, and sentenceimposed on, the accused. In doing so, the Presidentdoes not amend or modify or supersede the judicialrecord. The judicial record remains intact, andundisturbed. The President acts in a whollydifferent plane from that in which the Court acted.He acts under a constitutional power, the nature ofwhich is entirely different from the judicial powerand cannot be regarded as an extension of it......It is apparent that the power under Article 72entitles the President to examine the record ofevidence of the criminal case and to determine forhimself whether the case is one deserving the grantof the relief falling within that power. We are ofopinion that the President is entitled to go intothe merits of the case notwithstanding that it hasbeen judicially concluded by the consideration givento it by this Court. "14.Regarding the consideration to be applied to aPetition for grant of pardon/remission in Kehar Singh case,the Supreme Court has further held thus:-"...The manner of consideration of the Petition lieswithin the discretion of the President, and it isfor him to decide how best he can acquaint himselfwith all the information that is necessary for itsproper and effective disposal. The President mayconsider sufficient the information furnished beforehim in the first instance or he may send for furthermaterial relevant to the issues which he considers https://hcservices.ecourts.gov.in/hcservices/ pertinent, and he may, if he considers it willassist him in treating with the Petition, give anoral hearing to the parties. The matter liesentirely within his discretion. As regards theconsiderations to be applied by the President to thePetition, we need say nothing more as the law inthis behalf has already been laid down by this Courtin Maru Ram"It is, therefore, manifest that while exercising the power ofpardon under Art. 72 and 161, it must be exercised, keepingin view the intention of the Legislature and based upon theinformation furnished before the President/Executive.15. It is fairly well settled that the exercise or non-exercise of pardon power by the President or Governor as thecase may be is not immune from judicial review. Limitedjudicial review is available as has been consistently held bythe Supreme Court. In Maru Ram's case ((1981) 1 S.C.C. 107),the Supreme Court came to the conclusion that the power underArticles 72 and 161 can be exercised by the Central and StateGovernments and not by the President or Governor on their own.The advice of the appropriate Government binds the head of theState. The Court also came to the conclusion thatconsiderations for exercise of power under Articles 72 or 161may be myriad and their occasions protean, and are left to theappropriate Government, but no consideration nor occasion canbe wholly irrelevant, irrational, discriminatory or malafide.Only in those rare cases will the Court examine the exercise.In Para 62 of the judgment in Maru Ram case the Court hadobserved:-"An issue of deeper import demands our considerationat this stage of the discussion. Wide as the powerof pardon, commutation and release (Articles 72 and161) is, it cannot run riot; for no legal power canrun unruly like John Gilpin on the horse but mustkeep sensibly to a steady course. Here, we comeupon the second constitutional fundamental whichunderlies the submissions of counsel. It is thatall public power, including constitutional power,shall never be exercisable arbitrarily or mala fideand, ordinarily, guidelines for fair and equalexecution are guarantors of the valid play of power.We proceed on the basis that these axioms are validin our constitutional order."It was further held that the power to pardon, grant remissionand commutation, being of the greatest moment for the libertyof the citizen, cannot be a law unto itself but must beinformed by the finer canons of constitutionalism. https://hcservices.ecourts.gov.in/hcservices/

16.In (1998) 4 S.C.C. 75 (Swaran Singh Vs. State of UttarPradesh), one Doodh Nath was found guilty of murdering oneJoginder Singh and was sentenced to imprisonment for life.His Appeals to the High Court and Special Leave Petition toSupreme Court were dismissed. However, within a period ofless than 2 years the Governor of Uttar Pradesh grantedremission of the remaining long period of his life sentence.The Supreme Court quashed the said order of the Governor onthe ground that when the Governor was not posted with materialfacts, the Governor was apparently deprived of the opportunityto exercise the powers in a fair and just manner. Observingthat the order of the Governor fringes on arbitrariness. TheSupreme Court has held that, "...if the pardon power wasexercised arbitrarily, malafide or in absolute disregard ofthe finer canons of the constitutionalism, the by-productorder cannot get the approval of law and in such cases, thejudicial hand must be stretched to it..." . The Supreme Courtfurther observed that when the order of the Governor isimpugned, it is subject to judicial review within the strictparameters laid down in Maru Ram case and reiterated in KeharSingh case. 17. In (2000) 5 S.C.C. 170 (Satpal Vs. State of Haryana)the Supreme Court has held that the power of granting pardonunder Art. 161 is very wide and does not contain anylimitation as to the time at which and the occasion on whichand the circumstances in which the said powers could beexercised and held as under:-"....But the said power being a constitutional powerconferred upon the Governor by the Constitution isamenable to judicial review on certain limitedgrounds. The Court, therefore, would be justifiedin interfering with an order passed by the Governorin exercise of power under Article 161 of theConstitution if the Governor is found to haveexercised the power himself without being advised bythe Government or if the Governor transgresses thejurisdiction in exercising the same or it isestablished that the Governor has passed the orderwithout application of mind or the order in questionis a mala fide one or the Governor has passed theorder on some extraneous consideration...."18. Reiterating permissibility of the judicial review ofthe order of the President or the Governor under Art. 72 or161, as the case may be, and referring to various case laws inEpuru Sudhakar case ((2006) 3 S.C.C. (Cri) 438), JusticeArijit Pasayat, has laid down the following grounds forjudicial review:-"(a) that the order has been passed without application of mind; https://hcservices.ecourts.gov.in/hcservices/ (b) that the order is malafide;(c)that the order has been passed on extraneous orwholly irrelevant considerations ;(d)that relevant materials have been kept out of consideration ;(e)that the order suffers from arbitrariness."19. So far as desirability to indicate guidelines isconcerned, in Epuru Sudhakar Case, referring to Ashok Kumarcase ((1991) 3 SCC 498), it was held as follows:"17.In Kehar Singh case on the question of layingdown guidelines for the exercise of power underArticle 72 of the Constitution this Court observed inPara 16 as under:"It seems to us that there is sufficient indicationin the terms of Article 72 and in the history of thepower enshrined in that provision as well asexisting case-law, and specific guidelines need notbe spelled out. Indeed, it may not be possible tolay down any precise, clearly defined andsufficiently channelised guidelines, for we mustremember that the power under Article 72 is of thewidest amplitude, can contemplate a myriad kinds andcategories of cases with facts and situationsvarying from case to case, in which the merits andreasons of State may be profoundly assisted byprevailing occasion and passing time. And it is ofgreat significance that the function itself enjoyshigh status in the constitutional scheme."These observations do indicate that the ConstitutionBench which decided Kehar Singh case was of the view thatthe language of Article 72 itself provided sufficientguidelines for the exercise of power and having regard toits wide amplitude and the status of the function to bedischarged thereunder, it was perhaps unnecessary tospell out specific guidelines since such guidelines maynot be able to conceive of all myriad kinds andcategories of cases which may come up for the exercise ofsuch power. No doubt in Maru Ram case the ConstitutionBench did recommend the framing of guidelines for theexercise of power under Articles 72/161 of theConstitution. But that was a mere recommendation and nota ratio decidendi having a binding effect on theConstitution Bench which decided Kehar Singh case.Therefore, the observation made by the Constitution Benchin Kehar Singh case does not upturn any ratio laid downin Maru Ram case. Nor has the Bench in Kehar Singh casesaid anything with regard to using the provisions ofextant Remission Rules as guidelines for the exercise ofthe clemency powers. https://hcservices.ecourts.gov.in/hcservices/

37. In Kehar Singh case this Court held that:"There is also no question involved in this case ofasking for the reasons for the President's order."20. Bearing in mind the parameters of judicial review inrelation to grant of pardon by the Governor, when we examinethe present case, the order of exclusion of Petitioner fromthe benefits cannot be said to be non-application of mind ormalafide. It is noticed that the ADGP had sent letter No.24974/PS1/2006 dated 08.09.2006 stating that the Petitionerand co-accused were involved in sensational murder case of a13 years old innocent boy in a brutal manner and recommendednot to consider their cases for premature release on en-masserelease.The Government seems to have taken note of the offenceand the back ground of the Petitioner and co-accused in notconsidering their case for premature release on en-masserelease and therefore, it cannot be said to suffer fromarbitrariness. It cannot be said that the irrelevant andextraneous materials entered into the decision making processin excluding the Petitioner from getting remission as perG.O.Ms. 873. The contention that the Petitioner wasdiscriminated is unacceptable.21. On the recommendations of the concerned Authorities,it is for the Governor to grant respites or remissions ofpunishment or commute the sentence . In a Habeas CorpusPetition, the High Court cannot issue any direction directingthe State Government to release the Petitioner. In AIR 2000SC 2762 (Laxman Naskar Vs. State of West Bengal), the SupremeCourt has held that "the appropriate Government has theundoubted discretion to remit or refuse to remit the sentenceand where it refuses to remit the sentence no writ can beissued directing the State Government to release theprisoner." 22. Relying upon the decision in 1983 L.W. (Cri) 321(R.Ragupathy-Petitioner), the learned counsel for thePetitioner contended that before exercise or non-exercise ofpowers by the Executive, the Petitioner must be afforded anopportunity to make his representation before passing thefinal order. In the said case, the Division Bench of thisCourt considered the manner regarding which the power ofremission is to be exercised under Sec. 432, 433 Cr.P.C.subject to the limitation under Sec. 433 A and the Court haslaid down certain guidelines. The Division Bench has furtherheld that in such of those cases, where the Government is notinclined to grant premature release, the Government, shouldnot only set out its reason, but also must give an opportunityto the affected persons to make their representation beforepassing final orders. https://hcservices.ecourts.gov.in/hcservices/

23. In the present case, the impugned Government orderwas passed in exercise of clemency power under Art. 161.Insofar as the exercise of power under Art. 72 or Art. 161,there is no right for the prisoner to insist on an oralhearing before the President/Governor. The proceeding beforethe President/Governor is of an executive character. When theconvict files his Petition, it is for him to submit with itall requisite information necessary for disposal of thePetition. He has no right to insist on presenting an oralargument. The manner of consideration of the Petition lieswithin the discretion of the President/Governor. In exerciseof powers under Art. 72 and Art.161 the Petitioner has noright of personal hearing. Hence, the Petitioner cannotcomplain of violation of guidelines issued in the decisioncited supra.24.Though, the case of the Petitioner and co-accused forpremature release under general amnesty ordered inG.O.Ms.No.873 dated 14.09.2006 were excluded. In Para 6 of thecounter affidavit, the Government has stated that the case ofthe Petitioner would be considered for release under AdvisoryBoard Scheme, as per Rule 341(2) of Tamil Nadu Prison Rules1983 after following the usual procedure and necessary actionwould be taken up by the Second Respondent in due course.Having regard to such statement made in the counter affidavit,we deem it fit to direct the Petitioner to file a freshrepresentation for consideration for remission under Sections432 and 433 Cr.P.C. 25. The Petitioner is directed to file a freshrepresentation to the Government for remission under Sections432 and 433 Cr.P.C. On receiving such representation, theRespondents are directed to consider the same in accordancewith Rules and dispose of the same within a period of fourweeks from the date of receipt of a copy of this order. It ismade clear that such representation shall be consideredwithout being influenced by any of the views expressed in thisorder or by the earlier rejection order. 26. This Habeas Corpus Petition is disposed ofaccordingly. Sd/Asst.Registrar/true copy/Sub Asst.Registrarpaa https://hcservices.ecourts.gov.in/hcservices/ To 1.The SecretaryState of Tamil Nadu Department of Home Fort St. George Chennai 9.2.The Superintendent of Central Prison Central Prison Vellore 2. +1cc to Mr.R.Sankarasubbu, Advocate SR 40172NSM (CO)km/18.7.H.C.P.No. 1245 of 2006