The petitioner is a life convict. He was the sole accused in S.C.No.309 of 1983 on the file of the learned Additional District Judge, Tirunelveli. By judgment dated 17.09.1984, according to him, he was convicted under Section 302 IPC and sentenced to undergo imprisonment for life. An appeal preferred against the same in Crl.A.No.705 of 1984 was also dismissed by this Court by order dated 17.04.1989, and thus, the sentence of imprisonment for life, has been confirmed.
2.According to the petitioner, he has completed 14 years of actual imprisonment in connection with the said case. According to him, as per Rule 341(2) of the Tamil Nadu Prison Rules, his case should have been placed before the Advisory Board under the Rule, for the purpose of considering as to whether he would be entitled for remission, but the case was not placed before the Advisory Board by the third respondent. As a result, according to him, he has not been given remission, though similarly placed persons have been granted remission by the Government. Under these circumstances, the petitioner has come up with the present Habeas Corpus Petition seeking to set him at liberty forthwith.
3.Though the prayer in the Habeas Corpus Petition is to set him at liberty, the learned counsel for the petitioner would submit that the petitioner would be satisfied if a direction is issued to the third respondent to place his case before the Advisory Board for the purpose of remission.
4.In the counter filed by the Deputy Secretary to Government, inter alia, it is stated that the petitioner was released prematurely on general amnesty by the Government on 15.09.2006 on the occasion of Perarignar Anna vide G.O.Ms.No.873, Home Department, dated 14.09.2006. It is further stated that while he was pre-maturely released, he was required to execute a bond as per Form-130 of the Tamil Nadu Prison Rules, 1983. Accordingly, he executed the bond to the following effect:
“(1)That I shall accept and fulfil all the conditions specified below till the date of expiry of my normal period of imprisonment. (2)That I shall present myself within fourteen days from the date of my release before the Probation Officer of the District to which I belong or if there is more than one Probation Officer in the District before the Probation Officer who was jurisdiction over my place of residence or before any other Officer appointed in the place of the Probation Officer of the District or the Probation Officer having jurisdiction as aforesaid and shall produce copies of the order of my release and the copy of this bond executed by me. (3)That I shall submit myself to the supervision of the said Probation Officer or other Officer till the date of expiry of my normal period of imprisonment or for a period of three years from the date of release whichever is earlier.
(4)That I shall keep the said Probation Officer or other Officer advised of my place of residence and means of livelihood till the date of expiry of my normal period of imprisonment or for a period of three years from the date of release whichever is earlier.
(5)That during the period of supervision by the said Probation Officer or other officer
(a)I shall not quit the said District without the written permission of the said Probation or other Officer.
(b)I shall not associate with persons of bad character or lead a dissolute life.
(c)I shall live honestly and peacefully and shall and endeavour to earn honest livelihood.
(d)I shall not commit any offence punishable by any law in force in this Indian Union.
(e)I shall obtain form taking intoxicants and
(f)I shall carry out such lawful directions as may from time to time be given by the said Probation Officer or other Officer for the due observance of the conditions mentioned above.
(g)In case of breach of any of the above condition on my part I hereby bind myself and my properties mentioned below to be forfeited to the Government of Tamil Nadu, the sum of Rs.500/- (Rupees five hundred only). I also agree the Government may collect the said amount from me either by proceedings against my under mentioned properties of my other properties as if the said amount were an arrear of Land Revenue or by the otherwise proceedings by legally and to render myself liable to be rearrested to undergo the unexpired portion of sentence of imprisonment on the date of release.
Particulars of Properties 5000/-”
5.It is the further case of the respondents that while on such release, he violated the undertaking given by him and committed a number of other crimes. In these circumstances, the Government had passed an order in No.9854/R.1/2006 dated 10.05.2008, cancelling the remission. Thus, according to the respondents, the petitioner is not entitled for remission on account of his conduct subsequent to the premature release and therefore, the question of placing the same case for consideration by the Advisory Board does not arise at all.
6.We have heard the learned counsel for the petitioner and the learned Additional Advocate General for the respondents and perused the records carefully.
7.A perusal of Rule 341(2) of the Tamil Nadu Prison Rules, would make it definitely clear that ordinarily, a case of a life convict who has undergone actual imprisonment of 14 years, shall be placed before the Advisory Board for consideration for remission. Thereafter, having considered the antecedents of the convict and his subsequent conduct and of the other attendant circumstances, the Board may either recommend for remission or decline to recommend for remission. As has been stated by the Additional Advocate General, even if there is a positive recommendation from the Advisory Board for remission, ultimately the Government will decide the case independently based on all the materials including the proceedings of the Board and then decide whether to grant remission or not.
8.In our considered opinion, the fact that the petitioner was granted premature release in a general amnesty scheme and its subsequent withdrawal, shall not be a ground at all for denying to place his case before the Advisory Board for consideration. As has been held by the Hon'ble Supreme Court in Maru Ram v. Union of India [(1981) 1 SCC 107] and in State of Haryana v. Mahender Singh [(2007) 13 SCC 606], the accused has got a right to demand for consideration for remission. While placing the case for consideration by the Advisory Board and while considering the recommendations by the Government, surely, equality has to be maintained under Article 14 of the Constitution of India. It is not at all a case of the respondents that the case of similarly placed persons who have got other cases, have not been placed at all for consideration by the Advisory Board. When that be so, the reason that petitioner's premature release and its subsequent withdrawal by the Government, cannot be a ground at all to refuse to place the case of the petitioner, before the Advisory Board for consideration. In this regard, we may extract paragraphs 27 and 41 of the judgment of Mahender Singh's case (cited supra) as under:
“27.It is true that no convict has a fundamental right of remission or shortening of sentences. It is also true that the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors. The power of the State to issue general instructions, so that no discrimination is made, is also permissible in law. . . . . . . . . .
41. Furthermore, if the Punjab Rules are applicable in the State of Haryana in view of the State Reorganisation Act, no executive instruction would prevail over the statutory rules. The Rules having defined “convicts” in terms whereof a “life convict” was entitled to have his case considered within the parameters laid down therein, the same cannot be taken away by reason of an executive instruction by redefining the term “life convict”. It is one thing to say that the “life convict” has no right to obtain remission but it is another thing to say that they do not have any right to be considered at all. Right to be considered emanates from the State's own executive instructions as also the statutory rules.”
9.In view of the above legal position, we are of the view that there is no justification on the part of the respondents to refuse to place the case of the petitioner before the Advisory Board for consideration. In our considered opinion, the petitioner is entitled for being considered. At the same time, we wish to add that the direction which we are inclined to give in this Habeas Corpus Petition, shall not be misconstrued as though it is a direction for premature release of the petitioner. This direction is very limited to the extent that the case of the petitioner should be placed before the Advisory Board for consideration. Thereafter, the Board will independently consider whether to recommend for remission or not. Based on the report of the Advisory Board, thereafter, the Government will independently decide whether to grant remission to the petitioner or not.
10.In view of the above, the Habeas Corpus Petition is disposed of with a direction to the third respondent to place the case of the petitioner before the Advisory Board under Rule 341(2) of the Tamil Nadu Prison Rules, for consideration, within a period of six months from the date of receipt of a copy of this order. It is made clear that this direction is limited only to the extent of placing the case before the Advisory Board and it shall not be misconstrued as though it is a direction for remission. As we have observed above, the Advisory Board and the Government will independently take decisions taking into account the relevant factors.