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Roja Venkatesh @ Venkatesh vs State on 14 July, 2021

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W.P.No.3062 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.07.2021

CORAM :

THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN
and
THE HONOURABLE MR.JUSTICE P.VELMURUGAN

W.P.No.3062 of 2020
and
W.M.P.No.3581 of 2020

Roja Venkatesh @ Venkatesh,
M/A-48 years,
S/o. Periya Samy,
Convict No.4858,
Central Prison,
Puzhal, Chennai 600 066. … Petitioner
-vs-

1.State, Represented by
The Additional Chief Secretary,
Government of Tamil Nadu,
Home (Prison-IV) Department,
Secretariat,
Chennai 600 009.

2.The Additional Director General of Police
and Inspector General of Prisons,
Chennai 600 008.

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W.P.No.3062 of 2020

3.The Superintendent of Prison,
Central Prison – I,
Puzhal, Chennai 600 066. … Respondents

PRAYER: Writ Petition filed under Article 226 of the Constitution of
India to issue a Writ of Certiorarified Mandamus to call for the records in
connection with the impugned order passed by the 1st respondent in
G.O.(D).No.1290 Home (Prison-IV) Department dated 01.11.2019 and
quash the same and further direct the respondents to extend the benefit of
G.O.(Ms).No.64 dated 01.02.2018 and release the petitioner prematurely.

For Petitioner : Mr.G.Ravikumar

For Respondents : Mr.R.Prathap Kumar
Additional Public Prosecutor

ORDER

(Order of the Court was made by N.KIRUBAKARAN, J)

The petitioner has challenged the rejection order passed by the 1st

respondent dated 01.11.2019 by which the the petitioner’s claim for

premature release was negatived and further sought for the direction to the

respondents to extend the benefit of G.O.(Ms).No.64, Home (Prison IV)

Department, dated 01.02.2018 and release the petitioner prematurely as he

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had already undergone 10 years of imprisonment which is a prerequisite for

availing the benefit under the said G.O.

2.The petitioner was convicted in S.C.No.82 of 2001 for the offences

under Sections 302 307 r/w 34 IPC and sentenced to life imprisonment

and seven years rigorous imprisonment, respectively on 22.07.2005 by the

learned First Additional Sessions Judge, Erode. The Appeal against the said

judgment in Crl.A.No.987 of 2006 preferred by the petitioner was dismissed

on 03.10.2007 confirming the conviction and sentence of the trial Court and

thus, the conviction attained finality.

3.When the petitioner has been undergoing imprisonment, on the

occasion of Centenary birth anniversary of late Chief Minister of Tamil

Nadu Dr.M.G.Ramachandran and towards reformation and rehabilitation of

the prisoners, the Government of Tamil Nadu through G.O.(Ms).No.64,

Home (Prison IV) Department, dated 01.02.2018, granted premature release

under Section 161 of Constitution of India to all the life convict prisoners

who have completed atleast 10 years of actual imprisonment as on

25.02.2018. Since the respondent did not consider the petitioner’s release as

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per the aforesaid G.O., the petitioner filed Habeas Corpus Petition in

HCP.No.1767 of 2018, praying for premature release as per

G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018. This

Court by order dated 08.11.2018 directed the respondents to consider the

representation given by the wife of the Petitioner as the petitioner had

already completed sentence in respect of the case in which he was convicted

for the offence under Section 397 IPC. Even after the direction given in

HCP.No.1767 of 2018, dated 08.11.2018, the 1st respondent failed to

comply with the directions, even though the Jail authorities recommended

for the release of the petitioner herein, compelling the petitioner to initiate

contempt proceedings in Cont.P.No.1007 of 2019. When the Contempt is

pending, the 1st respondent by an order dated 01.11.2019 rejected the

petitioner’s claim for premature release. As the said order was passed, this

court was pleased to close the Contempt Petition, giving liberty to the

petitioner to challenge the aforesaid rejection order. Thus, the said order of

rejection is being challenged before this Court in the present Writ Petition.

4.A counter affidavit has been filed by the 1st respondent admitting

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the facts mentioned in the Writ Petition, however, contended that the

petitioner was convicted in four cases. Moreover, the petitioner’s claim for

premature release cannot acceded as the ineligible Section 397 IPC has been

invoked. As per the G.O.(Ms).No.64, Home (Prison IV) Department, dated

01.02.2018, the prisoners who have been convicted for any of the 13

offences including rape, forgery, robbery (397, 398 IPC), dacoity, terrorist

crimes are ineligible for premature release. Since the petitioner was

convicted under Section 397 IPC for robbery, he is ineligible for premature

release under the said G.O. It is also contended by the respondent that

petitioner was first convicted in S.C.No.7 of 2001 and 32 of 2001 to

undergo rigorous imprisonment for ten years. While serving sentence in the

abovesaid two cases, the petitioner was subsequently convicted in

S.C.No.82 of 2001 and was sentenced to undergo imprisonment for life.

The sentence imposed in S.C.No.7 of 2001 and 32 of 2001 has to be

completed by the petitioner first, to commence the life sentence awarded in

S.C.No.82 of 2001. The conviction in S.C.No.7 of 2001 and 32 of 2001

ended on 31.10.2009 and the life sentence imposed in S.C.No.82 of 2001

commenced on 01.11.2009 which is now being undergone by the Petitioner.

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5.In S.C.No.7 of 2001, the Petitioner was convicted for ten years

under Section 395 397 IPC which is an ineligible Section as per the

Government Order. Even though the petitioner had already undergone

conviction under Section 397 IPC, still the petitioner is not entitled to

premature release.

6.The petitioner would be completing 14 years of imprisonment only

on 28.11.2021 and the contention that he has already completed 14 years on

26.10.2014 is factually incorrect. In view of the ineligible Section 397 IPC

under which also the petitioner was convicted, he is not entitled to

premature release and therefore, the 1st respondent rightly rejected the claim

of the petitioner for premature release by the impugned order dated

01.11.2019 which was passed pursuant to the direction issued by this Court

in H.C.P.No.1767 of 2018 dated 08.11.2018. Therefore, the impugned

order cannot be interfered with as it is based on G.O.(Ms).No.64, Home

(Prison IV) Department, dated 01.02.2018.

7.Mr.G.Ravikumar, learned counsel appearing on behalf of the

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petitioner would contend that the petitioner had already undergone

conviction under Section 397 IPC, imposed in S.C.No.7 of 2001 vide order

dated 10.12.2001 and the said conviction ended on 31.10.2009 and

thereafter only, the conviction of life sentence imposed in S.C.No.82 of

2001 commenced on 01.11.2009. When the sentence imposed for the

offences under the ineligible section was already completed, the same

cannot be employed against the petitioner’s claim for premature release. By

order dated 23.08.2012 in Crl.OP.No.4114 of 2012, this Court directed that

the sentences awarded against the petitioner in S.C.No.7 of 2001 and

S.C.No.32 of 2001 to run concurrently. As per the above directions, the

petitioner underwent all the sentences in S.C.No.7 of 2001, S.C.No.5 of

2001 and S.C.No.32 of 2001, concurrently upto 27.10.2009.

8.Mr.G.Ravikumar, learned counsel appearing on behalf of the

petitioner would rely upon the judgment delivered in the case of State of

Tamil Nadu and others Vs. Veera Bhaarathi reported in 2016 SCC

OnLine Mad 33615 (Para 19 to 25), in which it was held that sentences

under ineligible Section 376 IPC was already undergone by the accused

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W.P.No.3062 of 2020

therein along with life sentence imposed under Section 302 IPC,

concurrently and therefore, he would be eligible for being considered for

premature release. Therefore, the impugned order is in violation of the

judgment made in Veera Bhaarathi’s case.

9.The learned counsel pointed out that the Government of Tamil

Nadu took a stand before the Hon’ble Supreme Court by way of reply

affidavit (Paragraphs 13 14) dated 04.03.2014 in Mr.Rajiv Gandhi’s

assassination case that the convicts who had undergone sentences under

ineligible Section are eligible for remission and the premature release of the

convicts concerned is only with regard to Section 302 IPC for which the

executive power vest only with the State of Tamil Nadu

10.In the decision made in the case of Union of India Vs. V.Sriharan

@ Murugan, reported in (2016) 7 SCC 1 (para 215), it is reported that the

1st respondent took a definite stand that the ineligible sections and

sentences are lesser terms compared with the life imprisonment awarded

under Section 302 IPC, whereas the petitioner is undergoing sentence in

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S.C.No.82 of 2001 alone in which the petitioner was convicted and

sentenced to life imprisonment under Section 302 307 r/w 34 IPC and

there is no ineligible section involved in that case. Therefore, the impugned

order has to be set aside.

11.The conduct and behaviour of the petitioner inside the prison has

been good and the petitioner also completed various courses, while

undergoing imprisonment. The Hon’ble Supreme Court in the case of

Home Secretary (Prison) and others Vs. H.Nilofer Nisha reported in 2020

SCC online SC 73 in paragraphs 42 to 48 held that learning of good

behaviour of prisoner for several years can be considered as an additional

ground for granting premature release. Therefore, the learned counsel

appearing for the petitioner seeks to quash the impugned order and grant

premature release to the petitioner.

12.Mr.R.Prathapkumar, learned Additional Public Prosecutor would

contest the claim of the petitioner. He would contend that the petitioner is

not entitled to premature release as he was convicted under Section 397 IPC

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which is ineligible Section as per the beneficial G.O.

13. The learned Additional Public Prosecutor also relied upon another

judgment of the Hon’ble Supreme Court reported in (2003) 10 SCC 78 in

the case of Sanaboina Sathyanarayana Vs. Government of Andhra

Pradesh ad others. By relying on the said judgment the learned Additional

Public Prosecutor would contend that it is the policy of the Government to

decide regrading the clause of persons or category of offenders to whom the

remission have to be granted.

14.Relying upon the conditions specified in sub clause (iii) (iv) of

clause 2(A) of paragraph 5(II) of G.O.(Ms).No.64, Home (Prison IV)

Department, dated 01.02.2018 and the aforesaid judgments,

Mr.R.Prathapkumar, learned Additional Public Prosecutor would

strenuously contend that the petitioner is not entitled to premature release.

15.Heard the parties and perused the records very carefully.

16.There is no dispute with regard to the facts that the petitioner was

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W.P.No.3062 of 2020

convicted in the following four cases:

S.No Section and Law Sentence Convicting Court
1 395 r/w 397
IPC 10 years of R.I S.C No:7/2001
fine of Rs.2500 i/d 6 dt.10.12.2001 of 1st
months R.I. Additional District Judge,
FTC-1, Erode
2 427
IPC 307 r/w R.I. for 2 years S.C.No.32/2001,
34
IPC RI for 10 years dt.10.12.2001 of 1st
fine of Rs.2500/- i/d Additional District Judge
RI for 6 months. FTC-1, Erode.

On appeal, sentence Appeal deatils:

was modified to R.I Order dt.29.07.2003 in
for 7 years. C.A.No.1213 of 2001 of
364
IPC R.I. for 10 years Hon’ble High Court of
fine of Rs.2500/- in Madras.
default R.I for 6
months. Further the sentences in

On appeal, sentence S.C.No.7/2001 and 32/2001
was set aside. were ordered to run
concurrently as per the
324
IPC R.I. for 3 years. orders of Hon’ble High
Court of Madras
dt.21.08.2012 in
Crl.O.P.No.4114/12.

3 302 IPC Life imprisonment. S.C.No.82/2001
307
IPC 7 years R.I dt.22.07.2002 of I Addl.
District Judge-cum-CJM,
Erode.
4 307
IPC 4 years (2 counts) S.C.No.:5/2001
(2 counts) dt.22.02.2008 of 1st
332
IPC 3 years Additional District Judge,
FTC-1, Erode.

The sentences in

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W.P.No.3062 of 2020

S.No Section and Law Sentence Convicting Court
S.C.No:5/2001 was ordered
to run concurrently along
the sentences in
S.C.No.:7/2001

The sentence in S.C.No.5 of 2001 was to run concurrently along with

sentence in S.C.No.7 of 2001. Therefore, it is very clear that the petitioner

completed the sentence imposed in S.C.Nos.7 of 2001, 32 of 2001 and 5 of

2001 on 31.10.2009 and thereafter, the life sentence in S.C.No.82 of 2001

commenced on 01.11.2009 and the petitioner has been undergoing life

imprisonment since then. The above details would also prove that the

petitioner completed 10 years of imprisonment as on 27.10.2009, according

to the petitioner and 31.10.2009 according to the prosecution. The

difference in the date of completion does not make any difference as it is

only four days. As on date, the petitioner has been under incarceration for

the past 19 years. It is also a fact that the life conviction in S.C.No.82 of

2001, commenced on 01.11.2009 and he completed 08 years, 09 months and

28 days as on 28.02.2018 which is the cut off date prescribed in

G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018 for

granting premature release. However, as rightly pointed by

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Mr.G.Ravikumar, learned counsel for the petitioner, the petitioner

completed 11 years and 05 months as he was under judicial custody for 09

months and 29 days during the period of investigation from 17.10.1998 to

16.08.1999 and 01 year 09 months and 04 days from 18.10.2000 to

22.07.2002 during the stage of trial. The above details would make it very

clear that as on 25.02.2018 the petitioner completed 11 years and 05 months

of incarceration. The completion of 11 years and 05 months of sentence

would make the petitioner to be eligible for the benefit of premature release

under G.O.(Ms).No.64, Home (Prison IV) Department, dated 01.02.2018.

17.It is pertinent to note that the respondent is not questioning the

period of imprisonment being undergone by the petitioner. Irrelevantly the

respondent contends that the life imprisonment of 14 years would be

completed only on 28.11.2021. The issue is not about the completion of life

imprisonment but the issue is only whether the petitioner is entitled to the

benefit of premature release under G.O.(Ms).No.64, Home (Prison IV)

Department, dated 01.02.2018.

18.As already found, the petitioner had already completed 11 years

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and 05 months as on the cut off date viz., 25.02.2018 and he is eligible for

premature release as per the time limit fixed under the said beneficial G.O.

19.The vociferous contention made by Mr.R.Prathapkumar, learned

Additional Public Prosecutor is that the petitioner is not entitled to

premature release as he was convicted under Section 397 IPC for the

offence of robbery and was convicted for 10 years rigorous imprisonment in

S.C.No.7 of 2001 vide order dated 10.12.2001. The commission of offence

under Section 397 IPC by the petitioner, no doubt would make the petitioner

ineligible for the premature release. The relevant portion of G.O.Ms.No.64

Home (Prison-IV) Department, dated 01.02.2018 is usefully extracted

hereunder:

“(I) The following committees were 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 where in the Central

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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.

(II) The life convicts who have completed 10 years of actual
imprisonment as 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 of fence namely:-

(A) Prisoners convicted for the following offences, namely:-

(i) Rape (Section 376 of IPC)

(ii) Forgery (Section 467, 471 of IPC)

(iii) Robbery (Section 397, 398 of IPC)

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(iv) Dacoity (Section 396, 397, 398, 399, 400, 402 of IPC

(v) terrorist crimes

(vi) offences against the State

(vii) offences under Sections 153-A, 153-AA and 153-B of
IPC

(viii) Escape or attempting to escape from lawful custody
(except overstayal of parole leave only)

(ix) Forgery/Counterfeit of currency notes or bank
notes/Making of possessing instruments or materials for
forging or counterfeiting currency notes or bank notes
(
Section 472, 474, 489-A, 489-B and 489-D of IPC)

(x) Cruelty against women or dowry death (Section 498-A
and
304-A of IPC)

(xi) Economic offences, black-marketing, smuggling or
misuse of power and authority.

(xii) Selling illicit arrack mixed with poisonous substances.

(xiii) Habitual Forest offenders who are responsible for
disturbing the ecological balance.”

However, the petitioner already completed imprisonment for conviction

under Section 395 r/w 397 IPC in S.C.No.7 of 2001 vide order dated

10.12.2001 on 30.10.2009. Therefore, the sentence already undergone by

the petitioner under ineligible Section 397 cannot be put against the

petitioner as at present the petitioner is undergoing life imprisonment from

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01.11.2009 onwards and completed 11 years 05 months as on 25.02.2018

which is the cut off date.

20.This Court in the case of State of Tamil Nadu and others Vs.

Veera Bhaarathi reported in 2016 SCC OnLine Mad 33615 in paragraph

19 to 25 categorically held that the sentence under ineligible Section viz.,

Section 397 IPC was already undergone by the accused along with the life

sentence under Section 302 IPC concurrently and therefore, he would be

eligible for being considered for premature release in respect of the life

sentence for the offence under Section 302 IPC. The relevant paragraphs of

the said judgment are extracted hereunder:

“19. The petitioner assails the impugned order from a
different angle also. According to him, assuming that sub-Rule
3 of the Rules, including the proviso is applicable, even then,
he is entitled for being considered for premature release.

According to him, while he has already served out the entire
sentence imposed on him for the offence under
Section 376 of
the Penal Code, 1860, he does not pray for any remission in
respect of the sentence for the said offences. In the proviso to
Sub-Rule 3 of Rule 341 of the Rules,
Section 302 of the Penal
Code, 1860 has not been included. In the instant case,

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according to the petitioner, since he prays for remission of
sentence imposed on him only for the offence under
Section
302 of the Penal Code, 1860 and not for the offence under
Section 376 of the Penal Code, 1860, the said proviso shall not
be a bar for his case being considered for premature release.
As we have already held that the petitioner is eligible for being
considered under Sub-Rule 2 of Rule 341 of the Rules for
premature release, any further discussion in respect of the
proviso to Sub-Rule 3 of Rule 341 of the Rules, shall only be a
mere academic exercise. Since it has been argued by the
petitioner as well as the learned Public Prosecutor, we wish to
go into the said academic debate also.

20. The learned Public Prosecutor would submit that if a
person has been convicted for any offence, besides the offences
enumerated in the proviso to Sub-Rule 3 of Rule 341 of the
Rules, then, even in respect of the punishment for other offence,
he is not eligible for premature release. The learned Public
Prosecutor has, however, been very fair in bringing to our
notice a clarification issued by the Director General of Prisons
in No. 14189/89, dated 04.11.1989, wherein he clarified that in
a case, where a convict is undergoing imprisonment for life for
the offence under
Section 302 of the Penal Code, 1860 and has
also been convicted and sentenced for the offences under
Sections 376 and 396 of the Penal Code, 1860, if the sentences

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were ordered to run concurrently, after he had served out the
sentence for the offence under
Sections 376 and 396 of the
Penal Code, 1860, he would be eligible for being considered
for premature release in respect of the life sentence for the
offence under
Section 302 of the Penal Code, 1860.

21. Though the Director General of Prisons himself has
clarified the proviso to Sub-Rule 3 of Rule 341 of the Rules, the
said clarification has missed the eyes of various Jail
Authorities in the State, as it has happened in the instant case.
We fully concur with the clarification issued by the Director
General of Prisons, as enumerated above. As per the said
clarification also, in the instant case, since the petitioner has
already served out the sentence for the offence under
Section
376 of the Penal Code, 1860, he is eligible for premature
release in respect of the life sentence, which he has been
undergoing for the offence under
Section 302 of the Penal
Code, 1860. Thus, looking from any angle, the petitioner is
entitled for being considered for premature release.

22. The petitioner, in his concluding argument, submitted
that instead of directing the Government to consider his case
for premature release, afresh, in the light of the verification
reports of the Probation Officer and the District Collector, this
Court may set him at liberty by remitting the sentence.

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23. In our considered view, the said request cannot be
considered, for the simple reason, when statutorily there is a
forum constituted for considering the individual case for
premature release by taking into account the various facts and
circumstances, as enumerated in the Tamil Nadu Prison Rules,
1983, this Court cannot usurp the power of the said forum and
exercise the powers of the Advisory Board. Therefore, this
request is rejected.

24. In view of the foregoing discussion, it is patently
clear that the impugned order is not sustainable and the same
is liable to be set aside. Accordingly, we set aside the impugned
Government Order in G.O.(D). No.646/Home [Prison IV]
Department/2015, dated 28.08.2015, passed by the first
respondent and direct the first respondent to pass fresh orders,
within a period of eight weeks from the date of receipt of a
copy of this order, based on the verification reports and the
other reports already available with the first respondent and it
need be, by getting supplementary reports. If the first
respondent calls for any supplementary report from any
authority, the same shall be submitted by the authority
concerned, without any further delay and at any rate, the first
respondent shall pass final orders in this matter within a
period of eight weeks from the date of receipt of a copy of this
order.

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25. During the course of hearing, it was also brought to
our notice that by misinterpreting Sub-Rule 3 of Rule 341 of the
Rules, viz-a-viz sub-Rule 2 of Rule 341 of the Rules and
ignoring the clarification issued by the Director General of
Prisons, as referred to above, the claims of several life convicts
in the State for premature release have been rejected by the
first respondent. Many of the prisoners, due to ignorance of
law or out of lack of wherewithal and help, without
approaching this Court for relief, are languishing in various
prisons in the State. Though they have not approached this
Court, on that score alone, we cannot deny justice to them, as
poverty and ignorance cannot stand in the way of a person
securing his right, such as, liberty, which is a fundamental
right guaranteed under the Constitution. Therefore, we direct
the first respondent to review all the cases of the life convicts,
who have completed 14 years of imprisonment lodged in
various prisons in the State, where their claims for premature
release have been rejected placing reliance erroneously on the
proviso to Sub-Rule 3 of Rule 341 of the Rules, thereby
ignoring the clarification issued by the Director General of
Prisons, by his proceedings No. 14189/89, dated 04.11.1989.
In short, the first respondent shall act on the said clarification
and review the cases of such eligible convicts, who are lodged
in various jails in the State. Such exercise shall be completed

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within a period of six months from the date of receipt of a copy
of this order. The Habeas Corpus Petition is allowed, as
indicated above. ”

From the above, it is clear that as per G.O.(Ms).No.64, Home (Prison IV)

Department, dated 01.02.2018, the offence under Section 376/rape is

ineligible. The convict in the aforesaid case though was convicted under

Section 376 IPC was directed to be considered for premature release, as he

had already undergone conviction under Section 376 IPC. The aforesaid

judgment would support the case of the petitioner that he is entitled to

premature release, as he had already completed sentence under Section 397

IPC, which is an ineligible Section.

21.Quite interestingly, the Government of Tamil Nadu which is

opposing the petitioner’s premature release has gone on record before the

Hon’ble Supreme Court by way of reply affidavit dated 04.03.2014 in

Mr.Rajiv Gandhi assassination case that the life convicts of that case have

already undergone sentence under ineligible Sections and the remission of

the premature release of the accused concerned is only with regard to

Section 302 IPC for which the executive power vest only with the State of

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Tamil Nadu. Paragraph 13 and 14 of the reply affidavit are usefully

extracted hereunder:

“13.The 1st accused, namely Nalini was acquitted for the
offence under TADA Act and she was found guilty only of
offences under
the Indian Penal Code. She was found not guilty
of offences under the
Arms Act, Passport Act, Foreigners Act
and Wireless
Telegraph Act. So far as Suthendraraja @
Santhan, the 2nd accused is concerned, he was acquitted of the
alleged offence under TADA and was sentenced to death for
offence under
Section 120-B read with Section 302 of IPC. He
was found guilty of offence under the
Foreigners Act and
sentenced for a period of 2 years. He has already undergone
the sentence of 2 years. So far as Sriharan @ Murugan,
accused no.3, is concerned he was sentenced to death for
offences under the
IPC. He was acquitted under the TADA. So
far as
Foreigners Act and Wireless Telegraph Act offences
are concerned, he has already undergone the sentence of 2
years rigorous imprisonment. So far as Arivu alias
Perarivalan, accused no 18, is concerned he was acquitted
under TADA and he has already undergone sentence under the
Wireless
Telegraph Act and Passport Act. The remission is
confined only to the sentence under
the Indian Penal Code. So
far as Robert Payas, accused no.9, is concerned he was

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W.P.No.3062 of 2020

acquitted under TADA and found guilty under the IPC. So far
as Jayakumar, accused no.10, is concerned he was acquitted
under TADA and has already undergone the 2 years rigorous
imprisonment for offence under the
Arms Act. The remission
therefore is confined only to the punishment under
the Indian
Penal Code. Ravichandran, accused no.16, was also acquitted
under TADA and he has already undergone the rigorous
imprisonment under the
Explosive Substances Act and Arms
Act. Therefore, even his remission is confined only to the
punishment under
the Indian Penal Code. It is therefore
submitted that for all the 7 persons the remission granted under
Section 432 was confined to offences under the Indian Penal
Code with respect to which the executive power vests only in the
State.

14.This Hon’ble Court by the Judgment in Transfer case
(Criminal) Nos.1, 2 3 of 2012 has commuted the death
sentence to Life Imprisonment for the offence under
Section 302
IPC. Since the 7 life convicts of the Rajiv Gandhi Assassination
case have already undergone their imprisonment under the
other Acts they are undergoing the sentence of imprisonment
for life awarded to them under
Section 302 of the IPC.

Significantly, the subject matter to which this offence relates to
is “public order” which falls within entry 1 of list 2 of the
seventh schedule of the constitution. It is submitted that since

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W.P.No.3062 of 2020

the Petitioners have already undergone the sentence passed
against them for various offences under the legislations which
are in list one of the seventh schedule of the Constitution of
India, there is no question of suspension of remission of
sentences for those offences. It is submitted that in this case,
432 (7)(b) of the
CrPC would apply and the State Government
is the appropriate Government. It is respectfully submitted that
the contention of the Union of India that the appropriate
Government in the present case to grant remission is Union of
India is unsustainable.”

22.Moreover, the very same G.O., has been interpreted by the Hon’ble

Supreme Court in State of Tamil Nadu and Others v. P.Veera Bhaarathi

reported in (2019) 18 SCC 71 while affirming the order of this Court

reported in 2016 SCC OnLine Mad 33615 that if the sentence under

ineligible Section has already been undergone by the prisoner, he is entitled

to premature release. Therefore, even on case to case basis, as per the

dictum of the Hon’ble Supreme Court, the petitioner is entitled to premature

release.

23.In view of the categorical declaration made by the Hon’ble

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W.P.No.3062 of 2020

Supreme Court in Veera Bhaarathi’s case as well as the stand taken by the

Government of Tamil Nadu in Mr.Rajiv Gandhi Assassination case which is

in consonance with the petitioner’s claim, the petitioner is definitely entitled

to premature release, as he had already completed sentence under Section

397 IPC, which is an ineligible Section as per the aforesaid G.O. The State

Government is bound by the stand taken in Mr.Rajiv Gandhi Assassination

case and the State cannot have different yardstick and parameter in respect

of similarly placed persons.

24.While considering the premature release, the Courts will also take

into consideration the conduct and good behaviour of the convicts. In the

instant case, it is admitted in paragraph 10 of the counter affidavit that the

petitioner has availed 272 days leave as detailed below:

“Emergency Leave with Police Escort : 2 days
Emergency Leave without Escort : 180 days
Ordinary Leave : 90 days”

From the above, it is evident that the petitioner went on leave without any

escort and returned to jail without causing any disturbance. This would also

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W.P.No.3062 of 2020

prove that if the petitioner is released prematurely, there will not be any

disturbance or nuisance to the public by the petitioner. Moreover, the

offence have been committed by the petitioner about 20 years ago. In

paragraph 12 of the counter affidavit, it is admitted by the respondent

indirectly about the petitioner’s good behaviour in prison. Paragraph 12 of

the counter affidavit is usefully extracted hereunder:

“12. With regard to the averments made in paragraph (8) of
the affidavit, it is submitted that the petitioner has narrated his
good behavior during the period of leave. Hence, there is no
remarks to offer.”

If there was any misbehaviour, the same would have been stated in the

counter affidavit filed by the respondents.

25.Further it is admitted in paragraph 11 of the counter affidavit that

the convict/petitioner have successfully completed M.A., (Political

Science), B.A.Lit., in Tamil and various other vocational courses.

Paragraph 11 of the counter affidavit is usefully extracted as follows:

“11.With regard to the averments made in paragraph (7)
of the affidavit, it is submitted that it is true that the said life
convict prisoner has studied M.A. Political Science, B.A.

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W.P.No.3062 of 2020

Literature in Tamil and various vocational courses viz.,
Diploma in Animation, Certificate course in Refrigeration and
Air-Conditioner Repair, Vocational Diploma in General Duty
Assistant. The petitioner also has various certificates i.e.
Certificate in Molding and Casting in Sculpture, Certificate of
participation in Theatre Workshop, four day training in Bakery
Products, Certificate in Printing and Screen Board Writing,
Two Wheeler Mechanism (Repairing Maintenance),
Certificate in Electrical Wiring, Certificate in Type Writing,
Certificate in Food and Nutrition, Certificate in Tailoring.”

26.The Hon’ble Supreme Court took into consideration the good

behaviour and also the qualification obtained by the petitioner in the case of

Home Secretary (Prison) and others Vs. H.Nilofer Nisha reported in 2020

SCC online SC 73 and released the prisoner therein. Paragraph 36 of the

aforesaid judgment is extracted as follows:

“36. 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:

                           S. No.                Period                          Course

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W.P.No.3062 of 2020

(1) May 2007 Bachelor of Computer
Applications
(2) 6-3-2009 to 5-9-2009 Radio TV Repairing
(3) May 2010 Master of Computer
Applications
(4) January 2013 Desk Top publishing
(5) May 2013 Master of Business
Administration in Human
Resources
(6) July 2013 PG Diploma
(7) 7-10-2013 Information and
Communication Technology
(8) 4-9-2013 to 3-12-2013 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) 10-3-2014 to 9-9-2014 Tailoring Embroidery
(14) 19-2-2015 to 25-2-2015 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's Degree in
Criminology Criminal Justice Administration and MA in

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W.P.No.3062 of 2020

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."

The conduct of the petitioner and the qualification acquired by the petitioner

in the present case is similar to that of the convict in Crl.A.No.145 of 2020

before the Hon'ble Supreme Court which is stated in the aforesaid extract.

27.The impugned order passed by the 1st respondent is not

sustainable for the following reasons:

(i)The petitioner has already completed 11 years and 05 months of

incarceration as on 25.02.2018 viz., cut off date, fixed vide G.O.Ms.No.64

Home (Prison-IV) Department, dated 01.02.2018.

(ii)The petitioner has already undergone sentence under Section 397

IPC which is an ineligible Section as on the date of issuance of

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W.P.No.3062 of 2020

G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018.

(iii)The impugned order rejecting the petitioner's claim for premature

release is in violation of the order passed by the Hon'ble Supreme Court in

State of Tamil Nadu and Others v. P.Veera Bhaarathi reported in (2019)

18 SCC 71.

(iv)The reasoning given in the impugned order is diagonally opposite

to the stand taken by the Government of Tamil Nadu before the Hon'ble

Apex Court by way of reply affidavit in Mr.Rajiv Gandhi Assassination

case.

(v)The good behaviour and conduct of the petitioner as admitted by

the respondents is one of the factors which should have been considered for

the premature release by the Respondents.

28.For the aforesaid reasons the impugned order is quashed and the

Writ Petition stands allowed. The 1st respondent is directed to recommend

the case of the petitioner for premature release, extending the benefit under

G.O.Ms.No.64 Home (Prison-IV) Department, dated 01.02.2018 within a

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W.P.No.3062 of 2020

period of four weeks from the date of receipt of a copy of this order.

Consequently, connected Miscellaneous Petition is closed. No costs.

29.For reporting compliance, call the matter on 06.08.2021.

                                                                          (N.K.K,J)          (P.V,J)
14.07.2021
pgp

To
1.The Additional Chief Secretary,
Government of Tamil Nadu,
Home (Prison-IV) Department,
Secretariat, Chennai 600 009.

2.The Additional Director General of Police
and Inspector General of Prisons,
Chennai 600 008.

3.The Superintendent of Prison,
Central Prison - I,
Puzhal, Chennai 600 066.

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N.KIRUBAKARAN, J
and
P.VELMURUGAN, J

pgp

W.P.No.3062 of 2020

Dated : 14.07.2021

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