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TMI Blog2020 (1) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... on-IV) Department, Government of Tamil Nadu wherein a Scheme was framed for considering the cases of pre-mature release of convicted prisoners on the occasion of the Birth Centenary of Shri M.G. Ramachandran, former Chief Minister of Tamil Nadu. The relevant portion of the Scheme reads as follows:- "5. The Government after careful examination have decided to frame the following guidelines for considering the cases of life convict prisoners for releasing them prematurely under Article 161 of the Constitution of India, in commemoration of the Birthday Centenary of 'Bharat Ratna', Puratchi Thalaivar Dr. M. G. Ramachandran, former Chief Minister of Tamil Nadu, based on the announcement of Hon'ble Chief Minister:- (I) The following committees are constituted for examining the premature release of the life convict prisoners, case to case basis, on the above lines. (i) the State level committee headed by the Inspector General of Prisons and the Deputy Inspector General of Prisons (Hqrs), Legal officer, Administrative officer (Hqrs) shall be members of the committee. (ii) the Second level/District committee wherein the Central Prisons/Special Prisons for Women located, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous offences including the offences under Section 302 of the Indian Penal Code, 1860. In all cases, they have been sentenced for life and their conviction and sentences have been upheld till this Court. The petitions for habeas corpus were filed on the ground that the State has not given benefit of the premature release referred to above to the petitioners whereas many others have been given the benefit. 8. In all the cases representations were made by the petitioners a few months before filing the petitions in the High Court praying that they be released in terms of G.O.(Ms) No.64 dated 01.02.2018. These representations were pending but the High Court in almost identical terms has held in all the cases that "There is no dispute over the fact that the convict prisoner would be entitled to release under G.O.(Ms). No.64, Home [Prison- IV] Department dated 01.02.2018. However, he has been denied the benefit thereof, since the Probation Officer's report informs danger to the life of the Convicts Prisoner, if he be let at large." Thereafter, the High Court was of the opinion that the detenu could not be denied release on the ground that life of the detenu was in danger. However, it dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not interfere with the discretion exercised by the High Court. It was lastly urged by learned senior counsel for the detenus that the prisoners have been behind the bars for a very long period of time and even under the normal rules of remission, they would be entitled to be released. It has also been urged that many other detenus who were similarly situate have already been released. He has brought to our notice a number of orders passed by this Court in this regard. We may note that in many of these orders this Court has not approved of the manner in which the Madras High Court has ordered the release of prisoners but has upheld the order of release on account of the long incarceration of the detenu. 12. We feel that a quietus has to be given to this matter and the legal issue must be decided. As far as the objection of selective filing of petitions by the State against orders of release by the High Court is concerned, that objection is meaningless. We are not aware of the other orders and, in any event, there can be no claim of negative discrimination under Article 14 of the Constitution of India. 13. Article 226 of the Constitution of India empowers the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the body', over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law. 18. In these cases, the detenus have been sentenced to imprisonment for life and as such their detention cannot be said to be illegal. It is not for the writ court to decide whether a prisoner is entitled to parole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Court. The Court which deprives a person of his liberty in accordance with law also has the responsibility to ensure that such a person though under incarceration is not denied the other fundamental rights which he is entitled to. Therefore, there can be no dispute with the proposition that anybody who is behind bars and is ill-treated or is deprived of his liberties, may approach the Court for a writ of habeas corpus. In the apposite words of Justice Krishna Iyer:- "26. Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the court to intervene and relieve, this Court will be a functional futility as a constitutional instrumentality if its guns do not go into action until the wrong is righted. The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. We hold that the court can issue writs to meet the new challenges. Lord Scarman's similar admonition, in his ENGLISH LAW - THE NEW DIMENSIONS, is an encouraging omen. The objection, if any, is obsolete because in a prison situation, a Constitution Bench of this Court [Sunil Batra v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case." 22. In Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674 this Court while dealing with the writ of habeas corpus has held as follows: "4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty...." 23. In Manubhai Ratilal Patel v. State of Gujarat and Others(2013) 1 SCC 314, an order of remand was challenged before this Court. After referring to a large number of judgments Ranjit Singh v. State of Pepsu, AIR 1959 SC 843, which we are not referring in detail since they have all been considered in this judgment, this Court held as follows: "31....It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risonment for life lasts until the last breath..." 27. We would also like to point out that the grant of remission or parole is not a right vested with the prisoner. It is a privilege available to the prisoner on fulfilling certain conditions. This is a discretionary power which has to be exercised by the authorities conferred with such powers under the relevant rules/regulations. The court cannot exercise these powers though once the powers are exercised, the Court may hold that the exercise of powers is not in accordance with rules. In support of his contention learned senior counsel for the detenus relied upon the Rules of the High Court of Madras and referred to Rule 1 of the Rules which reads as follows:- "A petition for direction, Order or Writ, including a Writ of Habeas Corpus, Mandamus, Certiorari, Quo Warranto. Prohibition or Certiorarified Mandamus or any other Writ shall be in the form of a Petition accompanied by an Affidavit containing facts, grounds and the Prayer..." He has also referred to Rules 11, 12 and 13 of the Rules which specifically deal with habeas corpus petitions and read as under: Rule 11:- "In all Habeas Corpus Petitions, in the Cause Title of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution: Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction." 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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. 32. In case, as pointed out above, a petition is filed without any decision(s) of the State Level Committee in terms of Para 5(I) of the G.O. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tionship (d) Will the life of the prisoner be There is a danger to the safe life 2 Report of the local Sub Inspector The Commissioner of of Police with regard to loss of Police, Coimbatore City peace If the prisoner is has opined that the prematurely released, on premature release of account of previous enmity the prisoner will create tension on religious grounds 3 Previous conduct of the prisoner Satisfactory and gist of the history of the prisoner 4 Has the prisoner been awarded No any punishment previously 5 Does the prisoner have any Permanent address is property and permanent available and not residence in his name? If so, owning any property please furnish their details and its value. 6 Are any relatives standing surety for the prisoner? Yes If yes, complete address and status may be furnished 7 Will the prisoner be able to earn a livelihood if prematurely released Yes 8 Was the murder committed due to any social or religious animosity or self satisfaction and does the enmity still exist or not? The incident of murder occurred due to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sm & Mass Communication) 12) June 2014 Diploma in Media Art 13) 10.03.2014 to 09.09.2014 Tailoring & Embroidery 14) 19.02.2015 to 25.02.2015 Mushroom Cultivation 15) May 2015 PG Diploma in International Business 16) July 2016 Program : MTM 17) July 2016 Certificate in Guidance 18) July 2016 Program : PGDDM 19) July 2016 Program : ACISE 20) May 2016 Fire & Safety Management 21) June 2016 Degree of Master of Arts in Sociology This young man who may have committed a heinous crime, has obtained various degrees including Masters in Computer Application, Masters of Business Administration, Master Degree in Criminology & Criminal Justice Administration and M.A. in Journalism & Mass Communication and various other Vocational Diplomas. The learning which he has obtained in jail must be put to use outside. The jail record shows that his behaviour in jail has been satisfactory. The only ground against him is that he had murdered a person from another community and, therefore, it is said that some religious enmity may still prevail. It has come on record that on various occasions, he has gone back to his native place though under police escort. We are clearly of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. Master of Business Administration from University of Madras. 39. We are clearly of the view that in these circumstances this is a fit case where we should not send this respondent to another round of litigation. Therefore, in exercise of our power under Article 142 of the Constitution we direct the release of the respondent. Crl.Appeal No. 148 of 2020 @ SLP(Crl) No.11494 of 2019 40. The detenu in this case is about 39 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:- 1. Higher Secondary Course from State Board of School, Tamil Nadu; 2. Bachelor of Arts in History from University of Madras; 3. Master of Arts in Political Science from University of Madras; 4. Post Graduate Diploma in Human Rights from Tamil Nadu Open University; 5. Post Graduate Diploma in International Business; 6. Master of Business Administration (Human Resources) from Bharathiar University, Coimbatore; 7. M. A. Criminology and Criminal Justice Administration from Tamil Nadu Open University. 41. We are clearly of the view that in these circumstances this is a fit case where we should not send this respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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