The Home Secretary (Prison) vs H. Nilofer Nisha on 23 January, 2020


Supreme Court of India

The Home Secretary (Prison) vs H. Nilofer Nisha on 23 January, 2020

Author: L. Nageswara Rao

Bench: L. Nageswara Rao, Deepak Gupta

                                          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)

                        JUDGMENT

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 it4.

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, (4th 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, 6th 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 Administration5, 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, Darjeeling7

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

Others8, an order of remand was challenged before this Court.

After referring to a large number of judgments9, 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 Jail10, 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 Siddiquee11

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 Others12

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

India13 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 39/2018 Date 07.02.2018
No
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

25
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          Are any relatives standing surety      Yes
           for the prisoner? If yes, complete
           address and status may be
           furnished
7          Will the prisoner be able to earn      Yes
           a livelihood if prematurely
           released
8          Was the murder committed due           The incident of murder
           to any social or religious             occurred     due        to
           animosity or self satisfaction         religious problems and
           and does the enmity still exist or     the enmity still exists
           not?
9          What was his behaviour during          He was released on
           the period he was released on          leave with police escort
           leave on the promise of good
           behaviour?
10         Is the premature release for the       not recommended
           prisoner recommended
11         Remarks of the Probation Officer       For the above said
           on the premature release of the        reasons, I am to inform
           prisoner                               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. Period             Course
       No.
       1) May 2007            Bachelor of Computer
                              Applications
       2)     06.03.2009 to   Radio & T. V. Repairing

                                 27
             05.09.2009
      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)     07.10.2013         Information and
                                Communication Technology
      8)     04.09.2013 to      Electrical Wiring
             03.12.2013
      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         Tailoring & Embroidery
          09.09.2014
      14) 19.02.2015 to         Mushroom Cultivation
          25.02.2015
      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 8th Standard;

(ii) Course of Preparatory Programme for
Secondary (PPS) dated 23.11.2012 in Tamil
Nadu Open University;

(iii)Completed 10th Standard;

(iv) Completed 12th 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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