IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON        :   22.02.2022

   PRONOUNCED ON  :   31.03.2022 CORAM THE HONOURABLE Mr.JUSTICE P.N.PRAKASH AND THE HONOURABLE Mr.JUSTICE A.A.NAKKIRAN

W.P.No.1196 of 2021

P.Jaithoon                                                                             ..   Petitioner

Vs.

1.The State rep. by its

The Secretary to Government of Tamil Nadu

Department of Home

Fort St. George

Chennai 600 009

2.The Superintendent

Central Prison

Coimbatore 641 018                    ..   Respondents

Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorarified Mandamus, to call for the records pertaining to the impugned order G.O.(D).No.727 Home (Prison-IV) Department, dated 04.07.2019, passed by the 1^st respondent dated 04.07.2019 and to quash the same and consecutively direct the respondents to release the detenu viz., Yasudeen, S/o.Badhrudeen, aged about 42 years, convict No.3287, prematurely, confined at Central Prison, Coimbatore, as per the G.O.(Ms) No.1155 Home (Pri.IV) Department, dated 11.09.2008 and G.O.(Ms) No.64 Home (Prison-IV) Department, dated

01.02.2018.

For Petitioner  Mr.S.Manoharan

For Respondents Mr.R.Muniyapparaj

Additional Public Prosecutor

O R D E R P.N.PRAKASH, J.

Challenging the order in G.O.(D).No.727 Home (Prison-IV) Department, dated 04.07.2019 (for brevity “the impugned order”) passed by the 1^st respondent, refusing to grant premature release of Yasudeen (life convict No.3287) under G.O.(Ms) No.1155 Home (Pri.IV) Department, dated 11.09.2008 (for brevity “G.O.1155”) and G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018 (for brevity “G.O.64”) and for a direction to release the said Yasudeen prematurely, his mother Jaithoon has filed the instant writ petition.

2. The facts in brief are as under :
   • In connection with the murder of an R.S.S. activist, the petitioner’s son Yasudeen and two others faced a trial in S.C.No.201 of 1999 on the file of the II Additional Sessions Court, Coimbatore and Yasudeen was convicted and sentenced on 06.02.2001 as under :

Provision under which convicted	Sentence
Section 302 IPC	Imprisonment for life
Section 148 IPC	1 year rigorous imprisonment and fine of Rs.1,000/-, in default to undergo 1 month rigorous imprisonment

The aforesaid sentences were ordered to run concurrently.

• The appeal preferred by Yasudeen in Crl.A.No.963 of 2001 was dismissed by this Court on 15.10.2004 and the Supreme Court also dismissed his further appeal in Crl.A.No.3435 of 2005 on 04.04.2005.
• Apart from the above, it is stated in paragraph 4 of the counter affidavit of the State that Yasudeen, along with 10 other prisoners, threatened to kill the then Deputy Inspector General of Prisons, Coimbatore and abused him and his family members, when he (DIG Prisons) went on a combing operation of the High Security Block in the prison on 25.03.1999.

In connection with this, Yasudeen faced a prosecution in C.C.No.73 of 2001, in which, the Judicial Magistrate No.III, Salem, convicted him of the offences under Sections 353, 294(b) and 506(I) IPC and sentenced him to undergo various terms of imprisonment, the maximum being 2 years simple imprisonment.

• While that being so, to commemorate the Birth Centenary of

Peraringnar Anna, the State issued G.O.1155, ordering premature release of 1,405 convict prisoners by virtue of exercise of powers by the Governor under Article 161 of the Constitution of India.  Further, to commemorate the Birth Centenary of Dr.M.G.Ramachandran, the State issued a fresh remission Government Order, viz., G.O.64, ordering premature release of 1,650 convict prisoners as done in the case of G.O. 1155, as stated above.

• While so, Jaithoon gave a representation dated 20.10.2018 to the

prison authorities for the premature release of her son Yasudeen and thereafter, filed H.C.P.No.2886 of 2018, in which, a Division Bench of this Court, by order dated 03.01.2019, directed the Government to consider Jaithoon’s representation and pass orders within a period of two weeks thereof.  Accordingly, the State considered her representation and rejected the same vide impugned order, aggrieved by which, the instant writ petition has been filed.

3. Heard Mr.S.Manoharan, learned counsel for petitioner and

Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the State.

4. The State has filed a counter affidavit dated 30.11.2021, justifying the impugned order.
5. Manoharan submitted that while Yasudeen was undergoing the sentence, he had acquired several educational qualifications, including a B.A. degree and a certificate course viz., Certificate in Food Nutrition. He contended that Yasudeen was granted leave on so many occasions and during his leave period, he signed before the police station as required and nothing untoward had happened either to him or to anyone.  He further contended that in all cases of premature release, the Supreme Court has been very benevolent and what should be seen is, the general behaviour of the prisoner in the prison.  He placed reliance on the following judgments of the Supreme Court.
6. Satish @ Sabbe Vs. The State of Uttar Pradesh [2020 SCC OnLine SC 811];
7. Home Secretary (Prison) and Others Vs. H.Nilofer Nisha [(2020) 14 SCC 161];

• Zahid Hussein and Others Vs. State of West Bengal and Another [(2001)3 SCC 750];

1. State of Haryana and Others Vs. Rajkumar @ Bittu [(2021)9 SCC 292];
2. State of Haryana Vs. Jagdish [(2010)4 SCC 216]; and
3. Sharafat Ali Vs. State of Uttar Pradesh and Another [2022 SCC OnLine SC 193].
   6. Per contra, Mr.R.Muniyapparaj, learned Additional Public Prosecutor refuted the aforesaid contentions of Mr.Manoharan.
   7. We gave our anxious consideration to the rival submissions.
   8. Before adverting to the rival submissions, it may be necessary to extract the reasons assigned in the impugned order for rejecting the

Jaithoon’s request for premature release of Yasudeen.

“5. The Director General of Police/Inspector General of Prisons has also stated that the petitioner’s son/life convict prisoner No.3287, Yasudeen @ Kabali, son of Bathrudeen has completed 20 years and 29 days of actual sentence as on 25.02.2018.  His case was not considered for premature release as per G.O.(Ms) No.1155, Home (Pri-IV) Dept., dated 11.09.2008 as the Probation Officer reported that there is danger to his life if he is released prematurely.  There is a precondition in the said G.O. that the life of the prisoner should be safe, if he is released prematurely, and hence he is not eligible for premature release at the time of consideration in view of the report of the Probation Officer.  As per G.O. (Ms) No.64, Home (Pri-IV) Department, dated 01.02.2018, premature release of life convicts were considered on a case by case basis by the committees constituted.  Accordingly, while considering the case of life convict prisoner No.3287, Yasudeen @ Kabali, son of Bathrudeen, it is construed from the report of Probation Officer, Division I, Coimbatore, that the Commissioner of Police is objecting to his release on the ground that his release will create communal problem in the area and therefore, she has not recommended for his premature release.  The first Level Committee constituted as per the above G.O., has not recommended for his release.

6. The Director General of Police/Inspector General of Prisons has also stated that his case was not considered and not recommended to Government for the following reasons :

1. The life convict prisoner along with 2 others was involved in a brutal murder of one person belonging to R.S.S. organization with a communal motive.
2. He has also been convicted for threatening to kill the former Deputy Inspector General of Prisons, Coimbatore Range and abusing the prison officials u/s 353, 294(b) and 506(I) of IPC.
3. The Commissioner of Police, Coimbatore City has informed that his release will create communal problem in the area.
4. The Probation Officer has not recommended on the basis of the report of the Commissioner of Police, Coimbatore City.
5. The extremely violent murder has communal overtones in a communally sensitive area added to social tension, and the release of a person in communal violence would disturb peace and harmony prevailing in that area. There will be law and order problem if he is released.
6. The Director General of Police/Inspector General of Prisons has also not recommended for his premature release.
7. The Director General of Police/Inspector General of Prisons has therefore requested the Government to pass necessary orders.
8. The Government have examined the request of Tmt.Jaithoon, mother of the life convict prisoner No.3287, Yasudeen @ Kabali, son of Bathrudeen, confined in Central Prison, Coimbatore seeking premature release with relevant records. The Life convict prisoner along with 2 others was involved in a brutal murder of one person belonging to R.S.S. Organization with a communal motive. He has also been convicted for threatening to kill the former Deputy Inspector General of Prisons, Coimbatore Range and abusing the prison officials u/s 353, 294(b) and 506(I ) of IPC.  The Commissioner of Police, Coimbatore City has informed that his release will create communal problem in the area.  The Probation Officer has not recommended on the basis of the report of the Commissioner of Police, Coimbatore City.  The extremely violent murder has communal overtones in a communally sensitive area added to social tension, and the release of a person in communal violence would disturb peace and harmony prevailing in that area. There will be law and order problem if he is released.  The first level committee constituted as per G.O.(Ms) No.64, Home (Pri-IV) Department, dated 01.02.2018 has not recommended for the above life convict prisoner’s release.  The Government, therefore, reject the request of Tmt.B.Jaithoon, seeking premature release of her son/life convict prisoner No.3287, Yasudeen @ Kabali, son of Bathrudeen, confined in Central Prison, Coimbatore.

(BY ORDER OF THE GOVERNOR)

NIRANJAN MARDI

ADDITIONAL CHIEF SECRETARY TO GOVERNMENT”

9. Manoharan who argued a batch of premature release cases, submitted that in all the cases, his arguments would be common. Therefore, the answer given by us below, to his submissions, would hold good for the other petitions argued by him and hence, may appear repetitive.
10. In Satish (supra), the Supreme Court was dealing with Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938, which provided for the premature release of convict prisoners on certain grounds. Since the Uttar Pradesh Government had not properly applied the said provision, the Supreme Court had to intervene and direct release of the convict prisoners therein. In Tamil Nadu, we do not have any enactment akin to Uttar Pradesh Prisoners Release on Probation Act, 1938.  In Tamil Nadu, the State would normally announce schemes, from time to time, for the premature release of convict prisoners and only if a person becomes eligible for consideration under such a scheme, will the Government examine his case and decide, either to grant or not to grant premature release to him under Article 161,   The Governor would pass orders based on the advice of the Cabinet. Since the impugned order under challenge in this case has been passed under Article 161 of the Constitution of India, we have to examine its validity on the anvil of the law relating to judicial review of an order passed under Article 161, ibid.
11. As regards Nilofer Nisha (supra) which arose from this Court, this Court had ordered premature release to several convict prisoners under

G.O.64, which was challenged by the State before the Supreme Court.  The Supreme Court allowed the appeals filed by the State, however, by exercising its power under Article 142 ibid., on a case-to-case basis, ordered premature release of some convict prisoners in that case.  We cannot arrogate to ourselves the power of the Supreme Court under Article 142, ibid., and order premature release of Yasudeen.

12. As stated above, in Nilofer Nisha (supra), the Supreme Court had gone into all the aspects of G.O.64 which contemplates the constitution of two Committees, viz., State Level Committee and District Level Committee, for examining the cases of convict prisoners and send their recommendations to the Government. We are told that 1,650 convict prisoners were released by the State Government under G.O.64 and the cutoff date was fixed as 25.02.2018 and as on that date, undoubtedly, Yasudeen was eligible for being considered, as he had completed 20 years and 29 days of sentence as could be seen from paragraph 6 of the counter affidavit of the State Government. However, in paragraph 7 of the counter affidavit, reasons for not releasing Yasudeen under G.O.64 have been stated, which reads as under :

“7. Though the life convict prisoner in this case had completed the required 20 years of imprisonment on the crucial date for consideration on 25.02.2018, as per the guidelines issued in para 5(II)(4) & (6) of G.O.(Ms)No.64, Home (Prison-IV) Department, dated 01.02.2018, there should be safety for the prisoner’s life, as well as to the society if the prisoner is released.  In this case, the report of the Commissioner of Police, Coimbatore City and the Probation Officer, Coimbatore have shown that the release of the prisoner will create communal problem in the area.  Hence, he is considered ineligible for premature release as per the condition stipulated of the above Government Order.  The first level Committee constituted as per the Government Order has not recommended for his release.  Hence, his case was not recommended to Government for premature release for the following reasons :

1. He along with 2 others was involved in a brutal murder of one person belonging to R.S.S. organization with a communal motive. ii. He was also convicted for threatening to kill the former Deputy Inspector General of Prisons, Coimbatore Range and abusing the prison officials u/s 353, 294(b) and 506(I) of IPC.
   • The Commissioner of Police, Coimbatore City has informed that his release will create communal problem in the area.

1. The Probation Officer has not recommended on the basis of the report of the Commissioner of Police, Coimbatore city.
2. The extremely violent murder has communal overtones in a communally sensitive area added to social tension, and the release of a person in communal violence would disturb peace and harmony prevailing in that area. There will be law and order problem if he is released.”

We cannot say that the reasons assigned in the impugned order are totally perverse.

13. As regards Zahid Hussein (supra), the Supreme Court was dealing with the order passed by the Review Board under Rule 591 of the West Bengal Rules for Superintendence and Managements of Jails, wherein, certain guidelines were framed by the Government for the consideration of the case of convict prisoners for premature release. From paragraph 14 of the said judgment, it is seen that the prison authority had recommended the premature release of the petitioner therein, but, the Review Board rejected the request.  The Supreme Court went into the reasons given by them and found that the Review Board had not considered the guideline,

viz., “whether there is any fruitful purpose of confining of these convicts any more.”

14. Coming to the case of Jagdish (supra), the Haryana Government had put in place a remission policy dated 04.02.1993. The convict prisoner therein was convicted on 20.05.1999.  Subsequently, the said Government put in place a short sentencing policy on 13.08.2008.  When the convict prisoner therein claimed remission under the remission policy dated 04.02.1993, it was denied by holding that his case could be considered only under the remission policy dated 13.08.2008 and since he did not satisfy the conditions of the 13.08.2008 remission policy, he would not be entitled to premature release.  In that context, the Supreme Court, in paragraphs 53 and 54, held that the State should have considered the case of the convict prisoner, in terms of the remission policy dated 04.02.1993, as that was the policy that was in force at the time of the conviction of the prisoner and that, the subsequent policy dated 13.08.2008, should not have been applied at all.  Coming to the case in hand, in the State of Tamil Nadu, there is no general remission policy as such.  However, under Rule 341 of the Tamil Nadu Prison Rules, 1983, individual case of convict prisoners for release can be considered by an Advisory Board and not under G.O.1155 or G.O.64.
15. In Rajkumar (supra) also, the issue was similar to the one in Jagdish (supra), with regard to the applicability of the remission policy that was in vogue, at the time of the conviction of the prisoner therein. A reading of paragraph 4 of Rajkumar (supra) shows that the petitioner therein was convicted on 25.03.2010 and that his case would have to be considered under the policy dated 13.08.2008.
16. In Sharafat Ali (supra), the Supreme Court was dealing with a petition under Article 32 of the Constitution of India. In paragraph 6, the Supreme Court held that the application for premature release has to be considered, on the basis of the policy as it stood on the date when the petitioner was convicted of the offence.  After holding so, in paragraph 7, the Supreme Court held that the order of the State Government contains general observations to the effect that the release may result in resentment on the side of the victim.
17. It is trite that when a person is sentenced to imprisonment for life, he is required to undergo the imprisonment until the end of his natural life. Of course, the State has the sovereign power to remit the sentence. Under our Constitutional scheme, the Court cannot issue a mandamus to the Governor to act under Article 161, ibid., but, can only judicially review the order of the Governor within certain parameters.  In Epuru Sudhakar and Another Vs. Government of Andhra Pradesh and Others [(2006) 8 SCC 161], the Supreme Court has held in paragraph 65 that “the President and the Governor are the sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves”.  Further, in paragraph 66, it has been held as follows :

“… … Therefore, the power of executive clemency is not only for the benefit of the convict, but while exercising such a power the President or the Governor, as the case may be, has to keep in mind the effect of his decision on the family of the victims, the society as a whole and the precedent it sets for the future.”

18. Manokaran contended that the conduct of Yasudeen in the prison is a relevant consideration for premature release. One can have no quarrel with the above, but that cannot be the only consideration.  In Epuru Sudhakar (supra), the Supreme Court has held that the Governor should keep in mind the family of the victims, the society as a whole and the precedent it sets for future.  In the impugned order, all these have been factored cumulatively.  The fact that Yasudeen was involved in a case of threatening the DIG of Prisons, when the latter came for searching the Prisoners’ Block has also been adverted to.
19. As regards the power of this Court to judicially review the order of the President/Governor passed under Article 72/161, ibid., the Supreme

Court has opined in Epuru Sudhakar (supra) as under :

“34. The position, therefore, is undeniable that judicial review of

the order of the President or the Governor under Article 72 or Article 161, as the case may be, is available and their orders can be impugned on the following grounds:

• that the order has been passed without application of mind;
• that the order is mala fide;
• that the order has been passed on extraneous or wholly irrelevant considerations;
• that relevant materials have been kept out of consideration;
• that the order suffers from arbitrariness.”

Therefore, it cannot be stated that the order that has been passed without application of mind nor is there any material placed before us to show that the order is mala fide or had been passed on extraneous or wholly irrelevant considerations or the relevant materials have been keep out of consideration or that it suffers from arbitrariness.

In the result, we do not find any infirmity in the order of the Governor for quashing the same and accordingly, this writ petition stands dismissed.

No costs.

[P.N.P., J.]           [A.A.N., J.]

gya                              31.03.2022

P.N.PRAKASH, J.

AND

A.A.NAKKRIAN, J.

gya

To

1.The Secretary to Government of Tamil Nadu

Department of Home

Fort St. George

Chennai 600 009

2.The Superintendent Central Prison

Coimbatore 641 018

W.P.No.1196 of 2021

3.The Public Prosecutor

High Court, Madras

 

31.03.2022