TaxTMI 
TaxTMI 
2020 (1) TMI 1208
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.....(Ms.) No.64 dated 01.02.2018 through the Home (Prison-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/D....
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....re 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 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, ....
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....d 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 by the High Court is concerned, that objection is meaningless. We are not aware of the other orders and, in any event, there can....
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....it 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. 18. In these cases,....
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....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 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 S....
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....ourt 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." 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....
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....nal 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(1981) 1 SCC 107 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 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 o....
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....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 Constit....
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....e time when the representation was filed for the State to deal with them. When the petition is filed just a few days before filing the representation then the Court may be justified in granting up to 3 months' time to consider the same. However, if the representation is filed a couple of months earlier and the report of the Probation Officer is already available then lesser time can be granted. No hard and fast timelines can be laid down but the Court must give reasonable time to the State to decide the representation. We are clearly of the view that the Court itself cannot examine the eligibility of the detenu to be granted release under the Scheme at this stage. There are various factors, enumerated above, which have to be considered by the committees. The report of the Probation Officer is only one of them. After that, the District Committee has to make a recommendation and finally it is the State Level Committee which takes a final call on the matter. We are clearly of the view that the High Court erred in directing the release of the detenu forthwith without first directing the competent authority to take a decision in the matter. Merely because a practice has been follo....
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.... Prisoner Number 4346, Abuthahir S/o Hussain, Central Prison, & Coimbatore Name 1 If the above mentioned prisoner if prematurely released (a) What will be the effect in that It was known during place the enquiry that some problems may arise (b) What will be mental feelings of Enmity still prevails the relatives of the deceased (c) Are the family Yes members/relatives likely to accept him into their fold and renew their old relationship (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 A....
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....s completed the following educational courses: Sl. No. Period Course 1) May 2007 Bachelor of Computer Applications 2) 06.03.2009 to 05.09.2009 Radio & T. V. Repairing 3) May 2010 Master of Computer Applications 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 2014 MA (Criminology & Criminal Justice Administration) 10) January 2014 Diploma 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 ha....
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.... 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. 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....