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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 ..... p 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. 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. The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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, headed by the Superintendent of Prisons of the concerned Central Prison and the Additional Superintendent of Prison, Jailor, Administrative Officer and Probation Officer shall be members of the committee. (iii) the concerned Range Deputy Inspector General of Prisons and Regional Probation officer of the concerned region shall examine the proposal of the second level committee and send the same to State Level committee along with recommendation. xxx xxx xxx 6. Under the Scheme, a State level committee and District committees were constituted. The District committees were to consider the cases of the prisoners and send their recommendations to the Range Deputy Inspector General of Prisons and Regional Probation Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 directed that the detenu be informed that his life may be in danger while releasing him. In all the cases, reference has been made to the report of the Probation Officer. These petitions have been allowed by the High Court of Madras and allowing the writ of habeas corpus, the detenus have been ordered to be released forthwith in terms of G.O.(Ms) No. 64 dated 01.02.2018 unless their presence is required in any other case. 9. These orders are under challenge before us. We have heard Shri Mukul Rohatgi and Shri V. Giri, learned senior counsel for the appellants, Shri Yogesh Kanna, learned counsel for the State of Tamil Nadu and Shri S. Nagamuthu and Shri Ratnakar Dash, learned senior counsel for the private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Courts to issue certain writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any right conferred under Part III of the Constitution dealing with the fundamental rights. In this case, we are concerned with the scope and ambit of the jurisdiction of the High Court while dealing with the writ of habeas corpus. 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 writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldren. 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 or remission and these matters lie squarely in the domain of the Government. 19. Reliance has been placed by learned senior counsel for the detenus on the judgment of this Court in the case of Sunil Batra (II) v. Delhi Administration(1980) 3 SCC 488, wherein Justice Krishna Iyer in his inimitable style has dealt with the expanding scope of habeas corpus jurisdiction. However, before referring to his views on the scope of habeas corpus, one has to refer to the factual situation which led to the filing of the case. Sunil Batra came to know that some other prisoners were being tortured by the Head Warder Jail Superintendent to extract money from the visiting relatives. He brought this to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitutional 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. Delhi Admn., (1978) 4 SCC 494 and Sobraj (1978) 4 SCC 494] did imprison the powers of prison officials, to put an under trial under iron fetters or confine in solitary cells convicts with death sentences under appeal. 27. Once jurisdiction is granted - and we affirm in unmistakable terms that the court has, under Article 32 and so too under Article 226, a clear power and, therefore, a public duty to give relief to sentences in prison settings - the next question is the jurisprudential backing for the play of that jurisdiction. Here again, Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 has blazed a trail, and it binds. 28. Are prisoners persons? Yes, of course. To answer in the negativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal . 24. In Saurabh Kumar v. Jailor, Koneila Jail(2014) 13 SCC 436, this Court came to the conclusion that the petitioner was in judicial custody Ummu Sabeena v. State of Kerala, (2011) 10 SCC 781, in the matter of-Madhu Limaye and Others, (1969) 1 SCC 292, Talib Hussain v. State of Jammu Kashmir, (1971) 3 SCC 118, Sanjay Dutt v. State (II), (1994) 5 SCC 10 by virtue of an order passed by the judicial magistrate and, hence, could not be said to be in illegal detention. Justice T.S. Thakur, as he then was, in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows:- 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 the petition as well as in the accompanying Affidavit, the following clause should be incorporated just below the case number and above the name of the petitioner, at the right-hand side: (In the matter of detenue) (Full Name of the detenue as found in the Order of Detention) . Full Cause Title should be set out both in the Habeas Corpus Petition and supporting Affidavit. Rule 12:- Every Habeas Corpus Petition should contain a Schedule in the following format: (i) Name of the Detenue: (ii) Father s/Husband s Name: (iii) Age: (iv) Permanent Address: (v) Identification Marks/(As found in the order of Detention): (vi) D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny decision(s) of the State Level Committee in terms of Para 5(I) of the G.O. in question, the Court should direct the concerned Committee/authority to take decision within a reasonable period. Obviously, too much time cannot be given because the liberty of a person is at stake. This order would be more in the nature of a writ of mandamus directing the State to perform its duty under the Scheme. The authorities must pass a reasoned order in case they refuse to grant benefit under the Scheme. Once a reasoned order is passed then obviously the detenu has a right to challenge that order but that again would not be a writ of habeas corpus but would be more in the nature of a writ of certiorari. In such cases, where reasoned orders have been passed the High Court may call for the record of the case, examine the same and after examining the same in the context of the parameters of the Scheme decide whether the order rejecting the prayer for premature release is justified or not. If it comes to the conclusion that the order is not a proper order then obviously it can direct the release of the prisoner by giving him the benefit of the Scheme. There may be cases where the State may not pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still exists 9 What was his behaviour during the period he was released on leave on the promise of good behaviour? He was released on leave with police escort 10 Is the premature release for the prisoner recommended not recommended 11Remarks of the Probation Officer on the premature release of the prisoner For the above said reasons, I am to inform that the prisoner is not recommended for the premature release Sd/- Probation Officer, Division I, Prison Department, Coimbatore 641037 Though the relevant columns are Column No. 1(b), 1(d), 2, 8, 9, 10 and 11, the High Court has only dealt with what is stated in 1(d) and has not dealt with the other observations made in the report of the Probation Officer. We are constrained to observe that this was not at all proper. In the other cases also, there are similar observations but these are not being repeated just to avoid repetition. 34. We have examined the record of each case and now we shall deal with each case separately. CRIMINAL APPEAL NO(S). 144 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 626 OF 2020) (@ SPECIAL LEAVE P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 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. CRIMINAL APPEAL NO(S). 145 OF 2020 (@ SPECIAL LEAVE PETITION (CRL) NO(S). 627 OF 2020) (@ SPECIAL LEAVE PETITION (CRL) D. NO. 18016 OF 2019) 36. The detenu in this case is about 43 years of age now and we are informed that during the period of incarceration in jail, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od 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 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. 147 of 2020 @ SLP(Crl)No.6159 of 2019 42. The detenu in this case is about 46 years of age now and we are informed that during the period of incarceration in jail, he has completed the following educational courses:- (i) Completed 8th Standard; (ii) Course of Preparatory Programme for Secondary ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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