No Acts & Articles mentioned in this case
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(S). 144 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO(S). 626 OF 2020)
(@ SPECIAL LEAVE PETITION (CRL) D. NO. 18046 OF 2019)
THE HOME SECRETARY (PRISON) & ORS. ...APPELLANT(S)
VERSUS
H. NILOFER NISHA ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 145 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO. 627 OF 2020)
(@ SPECIAL LEAVE PETITION (CRL) D. NO. 18016 OF 2019)
CRIMINAL APPEAL NO. 146 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO. 7697 OF 2019)
CRIMINAL APPEAL NO. 147 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO. 6159 OF 2019)
CRIMINAL APPEAL NO. 148 OF 2020
(@ SPECIAL LEAVE PETITION (CRL) NO. 11494 OF 2019)
J U D G M E N T
Deepak Gupta, J.
Delay condoned.
1
2. Leave granted.
3. The main issue which arises for decision is as follows:
“Whether a writ of habeas corpus would lie, for securing release
of a person who is undergoing a sentence of imprisonment
imposed by court of competent jurisdiction praying that he be
released in terms of some Government orders / Rules providing
for premature release of prisoners?”
4. At the outset, we may mention that on 17.10.2019 we had
framed two issues. We have reframed the first issue and on
closer examination we are of the view that the second issue does
not arise for decision in this case.
5. The Governor of Tamil Nadu exercising powers under
Article 161 of the Constitution of India got issued G.O.(Ms.)
No.64 dated 01.02.2018 through the Home (PrisonIV)
Department, Government of Tamil Nadu wherein a Scheme was
framed for considering the cases of premature 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:
2
“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,
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
3
recommendations to the Range Deputy Inspector General of
Prisons and Regional Probation Officer who, after examination of
the same, were to send the same to the State level committee
along with the recommendations. The Scheme further provided
as follows:
(II)The life convicts who have completed 10 years of actual
imprisonment as on 25.02.2018 and the life convicts who
are aged 60 years and above and who have completed 5
years of actual imprisonment on 25.02.2018 including
those who were originally sentenced to death by the Trial
Court and modified to life sentence by the Appellate
Court (other than those whose convictions have been
commuted), may be considered for premature release
subject to satisfaction of the following conditions:
1) The prisoner’s behaviour should be satisfactory.
2) Prisoners convicted for the following offences are
ineligible for consideration for premature release
irrespective of the nature and tenure of the sentence
and irrespective of the fact as to whether or not they
have undergone the sentence in respect of the said
offence namely:”
Thereafter, the Scheme provides that prisoners convicted for
certain offences or for offences under certain Acts would not be
eligible for benefit under the Scheme. The Scheme also lays
down the following amongst other conditions:
4) That there is safety for the prisoner’s life, if released.
5) That the prisoner will be accepted by the members of
their family.
6) That there is safety of life of the family which was
affected by the prisoner, if released.
4
xxx xxx xxx
8) The life imprisonment prisoners cannot claim premature
release as a matter of right.”
7. As far as the present cases are concerned, the detenus
whose release were sought were convicted for various 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
5
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
respondents.
10. It has been urged on behalf of the State that the High
Court has transgressed the jurisdiction conferred upon it under
6
Article 226 of the Constitution of India while issuing the writ of
habeas corpus. It is contended that in all the cases the
petitioners were convicted of the offences of murder which
conviction was upheld till this Court and, therefore, by no stretch
of imagination, can it be urged that the detention of the detenus
was illegal. It is further submitted that the High Court could
have at best directed consideration of the cases of the detenus by
the authorities under the G.O.(Ms) No.64 dated 01.02.2018 but
could not itself have directed release of the detenus. It is also
submitted that the High Court has only noted one portion of the
report of the Probation Officer and ignored many other relevant
considerations.
11. On the other hand, it is contended by learned senior
counsel appearing on behalf of the detenus that the High Court
of Madras has passed hundreds of orders of this nature but the
State has selectively chosen to challenge only a few of them. As
far as jurisdiction is concerned, it is submitted by learned senior
counsel for the detenus that in terms of the Rules to Regulate the
Proceedings under Article 226 of the Constitution of India framed
by the High Court of Madras, the writs of this type are described
7
as habeas corpus writs and a writ of this nature would not be
entertained unless it is described as a writ of habeas corpus
under the Rules. It is further submitted that a writ of habeas
corpus would lie in such circumstances and it is also urged that
in the peculiar facts and circumstances of the case, this Court
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
8
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
Justice Hidayatullah (as he then was) held; “The writ of habeas
corpus issues not only for release from detention by the State but
9
also for release from private detention”
1
. 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
is in accordance with the decision rendered by a court of law or
by an authority in accordance with law.
15. According to Dicey, “if, in short, any man, woman, or
child is, or is asserted on apparently good grounds to be,
deprived of liberty, the Court will always issue a writ of habeas
corpus to anyone who has the aggrieved person in his custody to
have such person brought before the Court, and if he is suffering
restraint without lawful cause, set him free.”
2
16. In Halsburry’s Laws of England, a writ of habeas corpus is
described as “a remedy available to the lowliest subject against
the most powerful.”
3
It is a writ of such a sovereign and
transcendent authority that no privilege of person or place can
stand against it
4
.
1 Mohd. Ikram v. State of U.P., AIR 1964 SC 1625
2 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan And Co.,
Limited, p. 215 (1915)
3 Halsbury’s Laws of England, (4
th
Edn.) Vol. 11, para 1454 p. 769
4 V.G. Ramachandran’s Law of Writs, revised by Justice C.K. Thakker & M.C. Thakker,
Eastern Book Company, , p.1036, 6
th
Edn. (2006)
10
17. A writ of habeas corpus can only be issued when the
detention or confinement of a person is without the authority of
law. Though the literal meaning of the Latin phrase habeas
corpus is ‘to produce 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.
11
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
5
, 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 the notice of this Court and this
Court entertained his petition under Article 32 of the
Constitution holding that ‘‘these proceedings which, though not
strictly traditional, are clearly in the nature of habeas corpus writs
and, therefore, within the widest sweep of Article 32’’. The Court
dealt with the very sensitive issue of the manner in which
5 (1980) 3 SCC 488
12
prisoners in jail were deprived of their basic human rights and it
is in this context that the Court held as follows:
“5….Prison houses are part of Indian earth and the Indian
Constitution cannot be held at bay by jail officials ‘dressed in a
little, brief authority’, when Part III is invoked by a convict.
For when a prisoner is traumatized, the Constitution suffers a
shock. And when the court takes cognizance of such violence
and violation, it does, like the Hound of Heaven, ‘But with
unhurrying chase, and unperturbed pace, Deliberate speed
and Majestic instancy’ follow the official offender and frown
down the outlaw adventure.”
20. This Court referred to the development of law in the
United States of America and held that the writ in the nature of
habeas corpus could be issued going beyond the conventional
blinkers and the Court must examine the manner in which the
inmate is held and treated during the currency of a sentence.
One must remember that any person can be deprived of his
liberty only in accordance with the procedure established by law.
Therefore, when a person is sent to prison; whether during the
investigation under an order of remand, issued under Section
167 of the Code of Criminal Procedure,1973, or as an undertrial
by denying him the facility of bail, or after conviction; he is
behind bars because of the orders 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
13
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 illtreated 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. 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
negative is to convict the nation and the Constitution of
dehumanization and to repudiate the world legal order, which
now recognises rights of prisoners in the International
Covenant on Prisoners’ Rights to which our country has signed
assent. In Sunil Batra v. Delhi Admn., (1978) 4 SCC 494, this
Court has rejected the handsoff doctrine and it has been
ruled that fundamental rights do not flee the person as he
enters the prison although they may suffer shrinkage
necessitated by incarceration. Our constitutional culture has
now crystallised in favour of prison justice and judicial
jurisdiction : (SCC p. 504, para 4)
14
“The jurisdictional reach and range of this Court’s writ to
hold prison caprice and cruelty in constitutional leash is
incontestable, but teasing intrusion into administrative
discretion is legal anathema, absent breaches of
constitutional rights or prescribed procedures.”
A writ petition by a prisoner is maintainable if his fundamental
rights are violated.
21. Having held that a writ of habeas corpus is maintainable
by a person who is under detention if his rights are violated, the
question that remains to be answered is whether in the present
case any right of the detenus was violated which could have led
to the issuance of an order directing his release from prison. We
may make reference to the judgment of this Court in the Col. Dr.
B. Ramachandra Rao v. The State of Orissa & Ors.
6
, wherein
it was urged before this Court that the orders of the Court
directing the detention of the petitioner were illegal. In this case,
the Court has held as follows:
“5….This Court does not, as a general rule, go into such
controversies in proceedings 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.”
6 (1972) 3 SCC 256
15
22. In Kanu Sanyal v. District Magistrate, Darjeeling
7
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
8
, an order of remand was challenged before this Court.
After referring to a large number of judgments
9
, which we are not
referring in detail since they have all been considered in this
judgment, this Court held as follows:
“31….It is wellaccepted 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
10
, this Court
came to the conclusion that the petitioner was in judicial custody
7 (1973) 2 SCC 674
8 (2013) 1 SCC 314
9 Ranjit Singh v. State of Pepsu, AIR 1959 SC 843,Ummu Sabeena v. State of Kerala, (2011)
10 SCC 781, in the matter ofMadhu 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
410
10 (2014) 13 SCC 436
16
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 concurring judgment held as
follows:
“22. The only question with which we are concerned within the
above backdrop is whether the petitioner can be said to be in
the unlawful custody. Our answer to that question is in the
negative. The record which we have carefully perused shows
that the petitioner is an accused facing prosecution for the
offences, cognizance whereof has already been taken by the
competent court. He is presently in custody pursuant to the
order of remand made by the said Court. A writ of habeas
corpus is, in the circumstances, totally misplaced…”
25. The same view has been taken in the State of
Maharashtra and Others v. Tasneem Rizwan Siddiquee
11
wherein it was observed that no writ of habeas corpus could be
issued when the detenu was in detention pursuant to an order
passed by the Court. As far as the present cases are concerned,
it is not disputed that the detenus are behind bars pursuant to
conviction and sentence imposed upon them by a court of
competent jurisdiction and confirmed by this Court, whereby
they were sentenced to undergo imprisonment for life.
11 (2018) 9 SCC 745
17
26. Dealing with the meaning of life imprisonment in Gopal
Vinayak Godse v. The State of Maharashtra and Others
12
this Court held :
“…Unless the said sentence is commuted or remitted by
appropriate authority under the relevant provisions of the
Indian Penal Code or the Code of Criminal Procedure, a
prisoner sentenced to life imprisonment is bound in law to
serve the life term in prison”.
Thereafter, a Constitution Bench in Maru Ram v. Union of
India
13
approved the view in Gopal Vinayak Godse’s case
(supra) and held that “imprisonment 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
12 (1961) 3 SCR 440
13 (1981) 1 SCC 107
18
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 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 righthand 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) Date of Detention Order :
(vii) Reference Number of the
Detention Order :
(viii) Name of the Prison, where the
Detenue is lodged :
(ix) Prison Number :
….”
19
Rule 13:
“Following declaration by the Petitioner or Deponent of the
Affidavit should be incorporated as penultimate paragraph of
the supporting Affidavit:
“The Petitioner declares that no other Habeas Corpus Petition
had been filed or moved before this court or before any other
High Court or before the Supreme Court of India
simultaneously seeking for the production of the body of the
person or person of the very same detenue or challenging the
Impugned Order of Detention. The Petitioner further declares
that the facts set out above are true and correct to the best of
his knowledge and no material has been concealed or
suppressed.”
28. The High Courts are empowered to frame rules in terms of
Article 225 of the Constitution of India but this power is subject
to the provisions of the Constitution of India and to the
provisions of any law of the appropriate legislature. Article 225
reads as follows:
“225. Jurisdiction of existing High Courts. Subject to the
provisions of this Constitution and to the provisions of any law
of the appropriate Legislature 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.”
20
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 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
21
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 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,
the representations made by the detenus had not been 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 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 23 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
22
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
23
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. 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
24
the release of the prisoner by giving him the benefit of the
Scheme. There may be cases where the State may not pass any
order on the representation of the petitioner for releasing him in
terms of the G.O.(Ms) No.64 dated 01.02.2018 despite the orders
of the Court. If no orders have been passed and there is no
explanation for the delay then the Court would be justified in
again calling for the record of the case and examining the same
in terms of the policy and then passing the orders.
33.As far as the present cases are concerned, we find that the
High Court though it had the report of the Probation Officer
before it, has only noted one line of the order of the Probation
Officer and not the entire report(s). The report of the Probation
Officer in all the cases is almost identical. One of the reports
reads as follows:
“Report of the Probation Officer regarding premature release of
a prisoner
ME
No
39/2018Date07.02.2018
Prisoner Number
&
Name
4346, Abuthahir S/o Hussain, Central Prison,
Coimbatore
1 If the above mentioned prisoner if
prematurely released
(a)What will be the effect in that
place
It was known during
the enquiry that some
problems may arise
(b)What will be mental feelings of Enmity still prevails
25
the relatives of the deceased
(c)Are the family
members/relatives likely to
accept him into their fold and
renew their old relationship
Yes
(d)Will the life of the prisoner be
safe
There is a danger to the
life
2 Report of the local Sub Inspector
of Police with regard to loss of
peace If the prisoner is
prematurely released, on
account of previous enmity
The Commissioner of
Police, Coimbatore City
has opined that the
premature release of
the prisoner will create
tension on religious
grounds
3 Previous conduct of the prisoner
and gist of the history of the
prisoner
Satisfactory
4 Has the prisoner been awarded
any punishment previously
No
5 Does the prisoner have any
property and permanent
residence in his name? If so,
please furnish their details and
its value.
Permanent address is
available and not
owning any property
6 Are any relatives standing surety
for the prisoner? If yes, complete
address and status may be
furnished
Yes
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
religious problems and
the enmity 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
11 Remarks 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
26
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 PETITION (CRL) D. NO. 18046 OF 2019)
35. The detenu was aged about 21 years when he was
detained. More than 17 years have elapsed and he is about 38
years of age now. We are informed that during the period of
incarceration in jail, he has completed the following educational
courses:
Sl.
No.
Period Course
1)May 2007 Bachelor of Computer
Applications
2)06.03.2009 toRadio & T. V. Repairing
27
05.09.2009
3)May 2010 Master of Computer
Applications
4)January 2013Desk Top publishing
5)May 2013 Master of Business
Administration in Human
Resources
6)July 2013 PG Diploma
7)07.10.2013 Information and
Communication Technology
8)04.09.2013 to
03.12.2013
Electrical Wiring
9)January 2014MA (Criminology & Criminal
Justice Administration)
10)January 2014Diploma in Computer
Hardware Servicing
11)May 2014 MA (Journalism & 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
28
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, he
has completed the following educational courses:
(i)B.B.A., from Madras University, May, 2008;
(ii)Diploma in Hardware Servicing from Tamil
Nadu Open University, January, 2014;
29
(iii)Hindu Course from Dakshina Hindi Prachar
Saba;
(iv)Workshop and Bakery and Confectionary
dated 12/13.09.2008;
(v)Degree of Master of Arts and Political Science
[First Class] from Tamil Nadu Open
University, June 2014;
(vi)National Certificate in Modular Employable
Skills from Ministry of Labour and
Employment, 18.11.2003;
(vii)Certificate in Electrical Wiring from Govt.
Polytechnic, 03.12.2013;
(viii)Undergone training for two wheeler repairing,
18.03.2010;
(ix)Certificate course in Diploma in Four
Wheeler Mechanism dated 30.04.2013 done
in Tamil Nadu Open University;
(x)Done Vocational Diploma in DTP Operator
dated January, 2013 in Tamil Nadu Open
University;
(xi)Diploma in Computer Hardware servicing in
Tamil Nadu Open University, January, 2014.
We are also informed that the detenu in this case has gone on
emergency leave 42 times (89 days) and by Court order, he has
been granted leave 2 (37 days) times and during the said
occasions, neither life threat to him nor was there any law and
order problem.
30
37.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. 146 /2020 @ SLP(Crl)No.7697 of 2019
38.The detenu in this case is about 38 years of age now and we
are informed that during the period of incarceration in jail, he
has completed the following educational courses:
1.Diploma in Computer Hardware Servicing
from Tamil Nadu Open University;
2.Bachelor of Business Administration from
University of Madras;
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
31
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 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.
32
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 8
th
Standard;
(ii)Course of Preparatory Programme for
Secondary (PPS) dated 23.11.2012 in Tamil
Nadu Open University;
(iii)Completed 10
th
Standard;
(iv)Completed 12
th
Standard;
(v)Certificate course in Diploma in Four Wheeler
Mechanism dated 30.04.2013 done in Tamil
Nadu Open University;
(vi)Done B. Literature dated May, 2017 & June,
2018 in Bharathiar University, Coimbatore;
(vii)Done Vocational Diploma in DTP
Operator dated June, 2017 in Tamil Nadu
Open University;
43.We find that the detenu in this case was convicted in
another case under Section 120(B) of the Indian Penal Code,
1860 and sentenced to imprisonment for 5 years and was
convicted under Section 4(a) and 4(b) of the Explosives
Substances Act, 1908 and was awarded 5 years imprisonment
and 4 years imprisonment under each of these sections vide
33
judgment dated 28.12.2018. This judgment of conviction and
sentence is after the date of the G.O.(Ms.) No. 64 dated
01.02.2018 in question and this will also have to be taken into
consideration. Therefore, as far as this case is concerned, we
direct the competent authority to consider the representation of
the detenu keeping in view the facts and circumstances of the
case and decide the same within 6 weeks from today. In case the
State rejects the plea of the detenu then a reasoned order has to
be passed and, in that eventuality, the detenu shall be at liberty
to challenge the order before the High Court.
44.The detenu was also convicted in TADA case but that
conviction has been set aside by this Court and, therefore, that
cannot be taken into consideration.
45.In view of the above discussion, we set aside the
judgment(s) of the High Court. As far as the Criminal Appeal No.
144 of 2020 @ SLP(Crl.)No. 626 of 2020 @ SLP(Crl.) D.No.18046
of 2019, Criminal Appeal No. 145 of 2020 @ SLP(Crl.)No. 627 of
2020 @ SLP(Crl.) D.No.18016 of 2019, Criminal Appeal No. 146
of 2020 @ SLP(Crl).No.7697 of 2019 and Criminal Appeal No. 148
of 2020 @ SLP(Crl.)No.11494 of 2019, are concerned the detenus
34
are ordered to be released forthwith unless wanted in any other
case. As far as detenu in Criminal Appeal No. 147 of 2020 @
SLP(Crl)No. 6159 of 2019 is concerned the State is directed to
consider and decide the representation of the detenu within 6
weeks from today.
46.The appeals are disposed of in the aforesaid terms. Pending
application(s), if any, stand(s) disposed of.
.......................................J.
(S. Abdul Nazeer)
.......................................J.
(Deepak Gupta)
New Delhi,
January 23, 2020
35
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