J. Paul Joseph vs State of Tamil Nadu and another

Bakthavatsalam, J.—The prayer in the writ petition is as follows:

...to issue a writ, order or direction in the nature of a writ of certiorarified mandamus more particularly a writ of certiorarified Mandamus by calling for the entire records connected with G.O. Rt. No. 4800 Home (Pr.IV) Department dated 27.12.1988 on the file of the first Respondent and to quash the same and to direct the first Respondent to release the Petitioner by accepting the claim of the Petitioner for remission of the balance period of sentence as per the recommendations of the Supreme Court...

It is alleged in the affidavit filed in support of the writ petition that the Petitioner is the eldest son of a farmer''s family. He along with his father was involved in a criminal offence u/s 302 read with Section 34,I.P.C. and both of them were convicted and sentenced to undergo imprisonment for life by the learned First Additional Sessions Judge, Tirunelveli on 25.9.1981 and the said sentence was confirmed by this Court in C.A. No. 612 of 1981 on 21.12.1983. While undergoing imprisonment, the Petitioner passed M. Sc.,(Maths) in first class as a private candidate of Madurai Kamaraj University during 1982-84. It seems that the Petitioner was selected for 3 years B.L. Degree Course (Regular) at Government Law College, Tiruchirapalli and he was transferred to Central Prison, Tiruchirapalli from the Central Prison, Palayamkottai and permitted to attend the Law College daily from the prison without any escort and this was done in 1985. The Petitioner passed the law examination in the first rank of Bharathidasan University during 1984-87. It seems that the Petitioner, apart from his academic and legal interest, was an active member of the National Service Scheme with the spirit of service mind and he was selected as the N.S.S. Best Volunteer, 1987 and was honoured with a shield to that effect and the Principal of the Law College certified him of an exemplary character. On successful completion of the law course, the Petitioner for his re-transfer of Central Prison, Palayamkottai. The Supreme Court recommended to the State of Tamil Nadu for the release of the Petitioner in SLP (Crl.) No. 891/86 on 13.3.1988 observed as follows:

... Special case seems to have been made so far as Paulraj, Petitioner No. 2 is concerned and the Supreme Court Legal Aid Committee has highlighted this aspect by filing this petition. While in custody undergoing sentence, the Petitioner No. 2 was permitted to take the L.L.B., as also M. Sc., (Maths) examination. He appears to have come out successful in both the examinations and has secured first rank in the law examination and in M. Sc, he has passed in the first class. Proper certificates have been placed on records. His conduct in the jail during the period he has been undergoing the sentence appears to have been exemplary. Taking these into consideration and the fact that the Petitioner has undergone seven years of the sentence, we would recommend to the State of Tamil Nadu to consider the Petitioner''s claim for remission of the balance sentence. We hope and trust that the claim of the Petitioner would receive favourable consideration of the State...

Subsequently, the Government of Tamil Nadu rejected the Petitioner''s case in G.O. Rt. No. 4800 Home (Pr.IV) Department dated 27.12.1988 on the ground that the Petitioner has to undergo 14 years of the sentence as per Section 433A Code of Criminal Procedure and that there are no sufficient grounds for his release under Article 161 of the Constitution of India.

The Petitioner alleges in his affidavit that in view of Section 433A of the Code of Criminal Procedure the recommendation of the Apex Court could be implemented by the Government of Tamil Nadu only under Article 161 of the Constitution of India. The Petitioner narrates three factors to get the remission for invoking Article 161 of the Constitution i.e., (1) while undergoing sentence, the Petitioner passed M. Sc(Maths) in first class and the law examinations in the first rank (ii) the conduct of the Petitioner is exemplary and (iii) the Petitioner has undergone seven years of the sentence. The Petitioner further alleges that His Excellency the Governor of Tamil Nadu has not exercised the discretionary powers under Article 161 of the Constitution properly but exercised the powers arbitrarily and unreasonably based on mala fide and extraneous considerations. The Petitioner points out that he filed W.P. No. 2521 of 1988 for redressal against the Superintendent of Police, Tiruchirapalli and the Vice-Chancellor of Bharathidasan University when he was illegally prevented to be present to obtain the Law Degree in person. It is alleged that the release matter of the Petitioner was want only kept pending to exert pressure on the Petitioner to withdraw the writ petition and attempts were made by the Respondents to bring Section 433A,Cr.P.C. to prevent the release of the Petitioner and the Governor of Tamil Nadu in his capacity as Chancellor of the University with prejudicial mind rejected the release of the Petitioner with mala fide intention. It is stated that discretion has not been properly exercised in this case on the principles laid down by the Supreme Court in S. Pratap Singh Vs. The State of Punjab, and Union of India (UOI) and Others Vs. Indo-Afghan Agencies Ltd., ). It is also stated in the affidavit filed in support of the writ petition that the Petitioner''s mother submitted a review petition on 29.1.1989 to the then Chief Minister of Tamil Nadu to release the Petitioner. It is further stated that since the Supreme Court has treated the Petitioner as a special case and recommended that the Petitioner is a fit person to be released under Article 161 of the Constitution of India it will be just and fair on the part of the Government to do so.

It is also alleged that the Petitioner is neither a bad element nor anti-social and the Petitioner is suffering in prison for 9 years and had completed 12 years including special remission and good conduct remission which he has earned so far and he will be more useful to his family and the society if he is released; otherwise his future will become useless. The Petitioner alleges that the Apex Court has felt that 7 years imprisonment is sufficient for the Petitioner of extraordinary merit and exemplary character, and the decision of the Government of Tamil Nadu to put him behind the bars for 14 years under the guise of Section 433A, Code of Criminal Procedure amounts to inhuman and barbarous punishment nullifying the very object of reformative theory. With these allegations, the writ Petitioner has filed the above writ for the relief stated supra.

Notice of motion was ordered by me on 12.10.1990. Mr. P. Gunaraj, Additional Government Pleader (Writs) appears for the Respondents. A counter affidavit has been filed by the State wherein it is stated that the first Respondent considered the recommendation of the Supreme Court of India with reference to the provisions under Article 161 of the Constitution of India and it was considered that there are no sufficient grounds to release the Petitioner who has been found guilty of a grave offence of murder and the Petitioner was convicted and sentenced to imprisonment for life only on 25.9.1981 and therefore he is eligible for consideration for premature release under Advisory Board Scheme only on completion of 14 years of actual sentence as per Section 433A, Code of Criminal Procedure and R. 341 of the Tamil Nadu Prison Manual, Volume II. It is also stated that as per Section 433A, Code of Criminal Procedure prisoners sentenced to imprisonment for life on or after 18.12.1978 should not be released before completion of 14 years of imprisonment and this was enunciated by the Supreme Court in the decision Maru Ram and Others Vs. Union of India (UOI) and Others, and that the Petitioner had undergone eight years, ten months and nine days of actual sentence as on 30.11.1990. It is stated that it is not correct to state that the conduct of the prisoner in the prison is exemplary as contended by him and he has committed two prison offences. In paragraph 6 of the counter affidavit, the allegations made in paragraph 7 of the affidavit filed in support of the writ petition are denied. It is stated that the Supreme Court of India in SLP (Criminal) 891/86 dated 14.3.1988 made a recommendation to the State of Tamil Nadu to consider the Petitioner''s claim for remission of the balance of sentence and the recommendation was considered in right earnest by the State and it was found that there was no sufficient ground for remitting the unexpired portion of the sentence of the Petitioner. It is also stated that the allegation that the discretionary power under Article 161 of the Constitution of India was arbitrarily and unreasonably exercised is not correct. It is further stated in the counter affidavit that the Petitioner''s father had expired on 20.3.1989 due to Myocardial infection. It is also submitted in the counter affidavit that the Supreme Court has held that Section 433A will not affect the constitutional power of Article 161 of the Constitution and in the opinion of the Governor of Tamil Nadu there were no special grounds to consider the Petitioner''s case under the said Article, and the power to remit the unexpired portion of sentence of a prisoner under Article 161 of the Constitution is a prerogative power of the President of India/Governor. It is also submitted that "all are equal before law" irrespective of the status of the individual and merely because the Petitioner had passed M. Sc., and B.L., while undergoing sentence, it does not confer any special right and special privilege in the eye of law to get him released automatically by remitting the unexpired portion of his sentence, and if the Petitioner is prematurely released automatically under remission of sentence without considering the demerits of his case, it will lead to similar claims by all the prisoners who have passed M.A. or other Post Graduate Course etc., and also who acquired academic excellence. It is stated that the Petitioner has undergone 8 years, 10 months and 9 days of actual sentence and 11 year 4 months and 3 days including remission as on 30.11.1990.

4 a. The learned Additional Government Pleader (Writs) has produced before me, the orders passed by the Government of Tamil Nadu on 14.6.1991. In paragraph 3 of the said G.O (2D) No. 88, Home (Prison C) Department dated 14.6.1991 reads as follows:

While considering the premature release of the convict, Paulraj, under Article 161 of the Constitution of India, the then Governor Dr. P.C. Alexander had stated as follows:

The views expressed by the Supreme Court of India are purely recommender and not mandatory. It is for me now to consider the petition on merits.

The only argument in favour of the premature release is the fact that the convict has done creditably in University Exams; while undergoing his jail service. I cannot accept this as a sufficient ground to release the convict who has been found guilty of a grave offence of murder. This only prove he is a man of intelligence, but the intelligent should not get away with the consequences of their crime. The request for remission is rejected.

It is stated clearly that as Paulraj was convicted with life sentence for an offence for which death sentence is also one of the penalties after 18.12.1978, he has to undergo 14 years of actual imprisonment as per Section 433A of Code of Criminal Procedure to consider his premature release. Section 433A, Code of Criminal Procedure reads thus:

433-A.- Restriction on powers of remission or commutation in certain cases.

Notwithstanding anything contained in Section 432 , where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted u/s 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment.

Learned Counsel for the Petitioner points out the order of the Supreme Court and contends that the Apex Court of the land has actually taken into consideration the fact that the Petitioner has undergone 7 years of sentence and recommended the Petitioner''s claim for remission of the balance of the sentence and quotes the following passage in the order of the Supreme Court in Special Leave to Appeal (Criminal) No. 891 of 1986 dated 21.12.1983:

...Taking these into consideration, and the fact that the Petitioner has undergone seven years of the sentence, we would recommend to the State of Tamil Nadu to consider the Petitioner''s claim for remission of the balance of sentence. We hope and trust that the claim of the Petitioner would receive favourable consideration of the State.

Based on this the learned Counsel for the Petitioner points out that the power under Article 161 of the Constitution of India has not been exercised properly and states that it has been exercised arbitrarily and unreasonably and the impugned order has been passed with mala fide intention. Article 161 of the Constitution of India reads thus:

The Government of a State shall have the power to grant pardons, reprieves, resites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

The power of the Court to interfere in such matters has been succinctly considered by the Apex Court in Gopal Vinayak Godse Vs. The State of Maharashtra and Others, ) followed by another decision in Krishar Gound v. State of A.P. (1975) U.J.S.C. 951, wherein it has been held clearly that the power to grant pardon on remission of sentence is in essence an executive function to be exercised by the Head of the State after taking into consideration various matters which may not be germane for consideration before a Court of law inquiring into the offence. It is well settled that the Court is precluded from examining the wisdom or expediency of exercise of the power in a particular case and the Court cannot interfere on the ground that the power to grant pardon or remission of sentence has been improperly refused. It has also been held that the Government is not bound by the opinion given by the Court (Vide Jaswant v. State of Punjab AIR 1967 Punjab 155). As such, the law is well settled with regard to the exercise of the powers under Article 161 of the Constitution of India and here Section 433A , Code of Criminal Procedure cannot fetter the power under Article 161 of Constitution of India (See State of Punjab and others Vs. Joginder Singh and others, Looking at any angle, I do not see that the impugned order is bad in law.

Apart from the impugned order, the order passed by the Government of Tamil Nadu in G.O.(2D) No. 88 Home (Prison C) Department, dated 14.6.1991 on the petition submitted by the mother of the Petitioner pleading for the grant of pardon and release of the Petitioner, her son, has been produced before me. I do not see any arbitrariness or non-application of mind in that order. Considering all the facts and circumstances of the case, I do not find any merit in the writ petition and it is hereby dismissed. No costs.