IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 6.4.2010 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMARAO AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN Writ Appeal No.1207 of 2008 S.Nalini Srikaran ... Appellant Vs. 1.State of Tamil Nadu, represented by the Secretary to Government Home (Prison-IV) Department, Secretariat, Chennai-600009. 2.The Additional Director General of Prisons, Chennai. 3.The Superintendent, Special Prison for Women, Vellore. ... Respondents * * * Writ Appeal preferred under Clause 15 of the Letters Patent as against the order of the learned single Judge dated 24.9.2008 made in W.P.No.41020 of 2006. WP No.41020/2006: Petition presented under Article 226 of the constitution of India to issue a writ of Certiorarified Mandamus,calling for the records in G.O.(Ms)No.873 dated 14.09.2006 issued by the Respondent No.1 and quashing clause (v) of paragraph 1 of the said G.O.and directing the respondents to consider the petitioner for her premature released from prison. * * * For appellant : Mr.M.Radhakrishnan For respondents : Mr.P.S.Raman, Advocate General, assisted by Mr.L.S.M.Hasan Fizal, Govt. Advocate https://hcservices.ecourts.gov.in/hcservices/ * * * JUDGMENT ELIPE DHARMARAO, J. By this writ appeal, the appellant challenges the verdict of a learned single Judge of this Court in turning down her prayer to quash Clause (v) of G.O.(Ms)No.873, dated 14.9.2006 and consequently to direct the respondents to consider her premature release from prison. 2. The appellant herein is a convict prisoner in the case of assassination of former Prime Minister of India, Sri Rajiv Gandhi. This appellant was arrested on 14.6.1991 by the Deputy Superintendent of Police, Central Bureau of Investigation, SIT, Chennai in connection with the Rajiv Gandhi assassination case for the offences under Sections 302, 307, 326 IPC, Sections 3 to 5 of the Indian Explosives Act and Sections 3 to 5 of the TADA and after investigation, the charge sheet was filed in C.C.No.3 of 1992 on the file of the Designated Court No.I, Chennai at Poonamalle against 41 accused for the offences under Sections 120-B r/w.302, 326, 324, 201, 212 and 216 IPC; Sections 3, 4 and 5 of the Explosive Substances Act; Section 25 of the Arms Act; Section 12 of the Passport Act; Section 14 of the Foreigners Act; Section 6(1A) of the Wireless Telegraphy Act and Sections 3, 4 and 5 of the TADA. The array of accused include 12 deceased accused and 3 absconding accused. The remaining 26 persons including this appellant faced trial before the Designated Court No.I, Chennai at Poonamallee and the said Court by its judgment dated 28.1.1998, convicted all the 26 persons and awarded death penalty. On appeal to the Supreme Court in Death Reference Case No.1 of 1998 with Criminal Appeal Nos.321 to 325 of 1998, the Supreme Court, by the judgment dated 11.5.1999, has acquitted 19 persons and confirmed the death sentence against four accused, including the present appellant and life sentence was awarded to three accused. Thereafter, two review petitions were filed by the CBI/SIT seeking to review the acquittal of the accused and the accused persons against whom death sentence was confirmed, but both the review petitions were dismissed by the Supreme Court. 3. Thereafter, the present applicant filed an application before the Governor of Tamil Nadu for clemency and on its rejection, she filed W.P.No.17655 of 1999 before this Court and this Court, by the order dated 25.11.1999, remitted the matter back for fresh consideration and ultimately, based on the recommendation of the Government, the Governor of Tamil Nadu commuted the death sentence imposed against this appellant to one of life imprisonment by G.O.Ms.No.406, Home Department, dated 24.4.2000 and from 25.4.2000, she was converted as a life convict. https://hcservices.ecourts.gov.in/hcservices/ 4. According to the appellant, since the death sentence was commuted to life imprisonment, she should complete 14 years of imprisonment for any premature release as provided under Section 433(A) of Criminal Procedure Code and thus she is eligible to be considered for premature release from 18.6.2005 and though she has completed 14 years of imprisonment on 17.6.2005, her name was not considered for the premature release either in the year 2005 or in 2006 or even in 2007. According to the appellant, on 14.9.2006, the Government has issued an order in G.O.Ms.No.873, granting premature release of 472 life convicts who have completed 10 years and more actual imprisonment, but her name was not considered on the ground that the cases which fall under Section 435 Cr.P.C. are not entitled for the premature release. Aggrieved by the same, the appellant herein has filed W.P.No.41020 of 2006, praying to issue a Writ of Certiorarified Mandamus to call for the records relating to G.O.(Ms)No.873, dated 14.9.2006, issued by the first respondent, quash the clause (v) of Paragraph 1 of the said G.O. and consequently direct the respondents to consider her for premature release from prison. Since the learned single Judge of this Court has dismissed the said writ petition, by the order dated 24.9.2008, the present writ appeal has been filed by the writ petitioner. 5. The learned counsel appearing for the appellant would vehemently argue that clause (v) of the G.O.(Ms) No.873, dated 14.9.2006 is illegal, in it denying consideration of the cases falling under Section 435 of the Criminal Procedure Code and denying the premature release of the appellant as on 15.9.2006 only on the ground that her offence was investigated by the CBI and the nature of investigating agency could not have determined the eligibility of a life convict for consideration of premature release from prison. The learned counsel would further argue that by the said clause (v) in the G.O., so far as it relates to Section 435(1)(a) of Cr.P.C., perpetrates discrimination and deprivation of personal liberty and therefore, violative of Articles 14 and 21 of the Constitution of India and that the life convicts for the purpose of premature release under Article 161 of the Constitution, could not have been classified into two categories viz. those covered by Section 435 of Cr.P.C. and those who do not fall within the purview of Section 435 Cr.P.C. and that the respondent-State could not have ordained those covered by Section 435 Cr.P.C. to be in prison forever. It has further been argued by the learned counsel for the appellant that introduction of clause (v) in the G.O. issued under Article 161 of the Constitution would amount to self denial of powers under Article 161 of the Constitution available to the respondent-State, which cannot be fettered by any means whatsoever. The learned counsel for the appellant would further argue that the learned single Judge has erred in not directing the respondent-State to produce all the records in respect of G.O.(Ms) No.873, dated 14.9.2006 and in not effecting https://hcservices.ecourts.gov.in/hcservices/ judicial review to find out whether the Governor, in introducing clause (v) aforesaid, is found to have exercised the power himself without being advised by the Government or if the Governor has transgressed the jurisdiction in exercising the same or if the Governor has not applied his mind to the said clause or if he has introduced the said clause on some extraneous consideration. It has also been argued by the learned counsel for the appellant that the learned Judge has erred in not appreciating the judgment of the Honourable Supreme Court in Satpal vs. State of Haryana (2000) 5 SCC 170 in this regard. 6. The learned counsel for the petitioner would further argue that Section 435 Cr.P.C. does not prohibit premature release of life convicts whose offences were investigated by the CBI and what Section 435 Cr.P.C. contemplates is that the State Government should exercise its power of remission under Sections 432 and 433 only in consultation with the Central Government and the learned single Judge ought to have appreciated that clause (v) of the G.O. cannot be said to be a reasonable guideline at all even in the light of Section 435 Cr.P.C., since the said clause makes the life convicts languish in jail forever. The learned counsel for the appellant would further argue that the power vested on the Governor under Article 161 of the Constitution is amenable to judicial review and therefore, this Court could very well interfere with the decision of the Governor under Article 161 of the Constitution. On such arguments, the learned counsel for the appellant would pray to allow this writ appeal, setting aside the order of the learned single Judge. 7. In support of his arguments, the learned counsel for the appellant would rely on the following judgments: 1.MARU RAM vs. UNION OF INDIA AND OTHERS [1980 SC 2147 = 1981 SCC (Cri) 112 = (1981) 1 SCC 107] 2.KEHAR SINGH AND ANOTHER vs. UNION OF INDIA AND ANOTHER [(1989) 1 SCC 204] 3.STATE OF PUNJAB AND OTHERS vs. JOGINDER SINGH AND OTHERS [(1990) 2 SCC 661] 4.SATPAL SINGH AND ANOTHER vs. STATE OF HARYANA AND OTHERS [(2000) 5 SCC 170] and 5.STATE OF HARYANA vs. MAHENDER SINGH & OTHERS [2007 (4) CRIMES 289 (SC). 8. In the first judgment cited above in AIR 1980 SC 2147, a Constitutional Bench of the Honourable Apex Court has held: "Undoubtedly, Section 433-A does not and cannot affect the pardon power under Articles 72 or 161 and therefore, notwithstanding Section 433-A the President and the https://hcservices.ecourts.gov.in/hcservices/ Governor continue to exercise the power of commutation and release under the aforesaid articles. In exercising this power the Governor or the President act and must act not on their own judgment but in accordance with the aid and advice of their council of ministers. But all public power, including constitutional power, shall never be exercisable arbitrarily or mala fide and, ordinarily, guidelines for fair and equal execution are guarantors of the valid play of power. The power being of the greatest moment cannot be a law unto itself but must be informed by the finer canons of constitutionalism spelt out in R.D.Shetty [R.D.SHETTY v. INTERNATIONAL AIRPORT AUTHORITY (1979) 3 SCC 489] and Punan Thomas [V.PUNNAN THOMAS vs. STATE OF KERALA [AIR 1979 KERALA 81] cases. All power, whatever its source, must in its exercise anathematise arbitrariness and obey standards and guidelines intelligible and intelligent and integrated with the manifest purpose of the power. Hence the power to pardon, commute or remit is subject to the wholesome creed that guidelines should govern the exercise even of Presidential power. The court, if it finds frequent misuse of this power may have to investigate the discrimination. Therefore, the proper thing to do is to make rules for its own guidance in the exercise of the pardon power keeping, or course, a large residuary power to meet special situations or sudden developments. This will exclude the vice of discrimination. Such rules of remission may be effective guidelines of a recommendatory nature, helpful to government to release the prisoner by remitting the remaining term." 9. In the second judgment reported in (1989) 1 SCC 204, another Constitutional Bench of the Honourable Apex Court has held: "The power to pardon rests on the advice tendered by the Executive to the President who, subject to the provisions of Article 74(1), must act in accordance with such advice." "the question as to the scope of the President's power under Article 72 falls squarely within the judicial domain and can be examined by the court by way of judicial review. The function of determining whether the act of a constitutional or statutory functionary falls within the constitutional or legislative conferment of power, or is vitiated by self-denial on an erroneous appreciation of the full amplitude of the power, is a matter for the court." 10. In the third judgment reported in (1990) 2 SCC 661, the https://hcservices.ecourts.gov.in/hcservices/ Honourable Apex Court has held: "Remission schemes are introduced to ensure prison discipline and good behaviour and not to upset sentences; if the sentence is of imprisonment for life, ordinarily the convict has to pass the remainder of his life in prison, but remissions and commutations are granted in exercise of power under Sections 432 and 433, Cr.PC carving out an exception in the category of those convicts who have already enjoyed the generosity of executive power on the commutation of death sentence to one of life imprisonment. Even in such cases Section 433-A of the Code or the executive instruction of 1976 does not insist that the convict pass the remainder of his life in prison but merely insists that he shall have served time for at least 14 years. In the case of other 'lifers' the insistence under the 1971 amendment is that he should have a period of at least 8 ½ years of incarceration before release. The 1976 amendment was possibly introduced to make the remission scheme consistent with Section 433-A of the Code. Since Section 433-A is prospective, so also would be the 1971 and 1976 amendments." 11. In the fourth judgment reported in (2000) 5 SCC 170, the Honourable Apex Court has held: "The power of granting pardon under Article 161 is very wide and does not contain any limitation as to the time on which and the occasion on which and the circumstances in which the said powers could be exercised. But the said power being a constitutional power conferred upon the Governor by the Constitution is amenable to judicial review on certain limited grounds. The Court, therefore, would be justified in interfering with an order passed by the Governor in exercise of power under Article 161 of the Constitution if the Governor is found to have exercised the power himself without being advised by the Government or if the Governor transgresses the jurisdiction in exercising the same or it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration." 12. In the last judgment cited on the part of the learned counsel for the appellant reported in 2007 (4) Crimes 289 (SC), the Honourable Apex Court has held: "State is entitled to take a prison policy as contra- https://hcservices.ecourts.gov.in/hcservices/ distinguished from a sentencing policy. Power of the State to issue general instructions, so that no discrimination is made, is also permissible in law. The State by successive executive instructions finally classifying the life convicts having regard to the number of deaths which might have taken place at their hands. Any existing executive instructions could be substituted by issuing fresh executive instructions for processing the cases of lifers for premature release but once issued these must be uniformly and invariably applied to all cases of lifers so as to avoid the charge of discrimination under Article 14." 13. On the contrary, the learned Advocate General appearing for the respondent State would argue that it is the policy of the Government not to consider the premature release of the life convicts who did not satisfy the conditions specified in the G.O. and their cases were taken up for consideration for premature release as per Rule 341 of the Tamil Nadu Prison Rules, 1983 and the guidelines of the Government in force; that it is the policy of the Government not to consider the premature release of such life convicts on enmasse release, whose cases fall under the purview of Section 435 of the Code of Criminal Procedure and in accordance with such policy, no life convict who were coming under the purview of Section 435 of the Code of Criminal Procedure were released from prison during the enmasse release ordered on the occasion of the birth anniversary of Peraringnar Anna on 15.9.2001 and 15.9.2006; that the Government by virtue of the powers delegated to them under Section 59(5) of the Prisons Act, 1894, have powers to frame Rules/policies consistent with this Act and decide as to which case shall be taken up for consideration for premature release on enmasse release or under Advisory Board Scheme, as the case may be; that the appellant has no locus standi to interfere with the policy of the Government and demand the Government to frame rules which is favourable to her. 14. The learned Advocate General would further argue that as per Section 435 of the Code of Criminal Procedure, the State Government shall not exercise powers under Sections 432 and 433 of the Code of Criminal Procedure to remit or commute a sentence in a case where the sentence is for an offence, which was investigated by the Delhi Special Police Establishment, constituted under Delhi Special Police Establishment Act, 1946, except after consultation with the Central Government and therefore, the Government, after making due examination on all relevant aspects, as a matter of policy, taken a studied decision not to consider the life convicts whose cases fall under the purview of Section 435 of the Code of Criminal Procedure and premature release of such life convicts are being considered individually, taking note of the social history of https://hcservices.ecourts.gov.in/hcservices/ the prisoner, the circumstances of his/her criminal behaviour, conduct in prison, response to training and treatment, notable changes in his/her attitude and treatment, degree of criminality, health and mental condition by considering such cases in the Advisory Board Scheme in normal course. 15. Meting out the argument of discrimination raised on the part of the appellant, the learned Advocate General would argue that none of the 472 cases of life convicts released on 15.9.2006, as per G.O.Ms.No.873, Home (Pri.IV) Department, dated 14.9.2006, fell under the purview of Section 435 of the Code of Criminal Procedure and all of them satisfied the conditions stipulated by the Government and therefore, no discrimination was shown in considering the premature release of life convicts. 16. The learned Advocate General would further argue that the appellant was first sentenced to death and thereafter it was commuted to life imprisonment on mercy grounds and that being so, she constitute a distinct class and cannot claim equality with those sentenced to life imprisonment and that life imprisonment means imprisonment for whole of remaining period of convict's life and that no vested right is created on the convict to seek for premature release. In support of his arguments, the learned Advocate General would rely on the following judgments: 1.GOPAL VINAYAK GODSE vs. THE STATE OF MAHARASHTRA AND OTHERS [1961 (1) Cri.L.J. 736] 2. STATE OF MADHYA PRADESH vs. RATAN SINGH AND OTHERS [1976 SCC (Cri) 428]; 3. MARU RAM vs. UNION OF INDIA AND OTHERS [1980 SC 2147 = 1981 SCC (Cri) 112 = (1981) 1 SCC 107]; 4. SADHU SINGH AND OTHERS vs. STATE OF PUNJAB [1984 SCC (Cri) 241 = (1984) 2 SCC 310]; 5. VINEET NARAIN AND OTHERS vs. UNION OF INDIA AND ANOTHER [(1998) 1 SCC 226; 6.LIFE CONVICT LAXMAN NASKAR vs. STATE OF WEST BENGAL AND ANOTHER [AIR 2000 SC 2762]' 7.ZAHID HUSSEIN AND OTHERS vs. STATE OF W.B. AND ANOTHER [2001 SCC (Cri) 631]; 8. SUBASH CHANDER vs. KRISHAN LAL [2001 SCC (Cri) 735]; 9. STATE OF HARYANA AND ANOTHER vs. JAI SINGH [2003 SCC (Cri) 1761]; 10. SAIBANNA vs. STATE OF KARNATAKA [2005 SCC (Cri) 1094] and 11. C.A.PIOUS VS. STATE OF KERALAW AND ANOTHER [(2007) 3 SCC (Cri) 544. 17. In the first judgment cited above, reported in 1961 (1) Cri.L.J. 736, a Constitutional Bench of the Honourable Apex Court https://hcservices.ecourts.gov.in/hcservices/ has held: "Sentence of imprisonment for life is for indefinite period. Government alone can remit sentence and remissions earned by convict are of little help." 18. In the second judgment cited above, reported in 1976 SCC (Cri) 428, also, the Honourable Apex Court has held that 'imprisonment for life means a sentence for entire life and remissions under Jail Manual or Prisons Act do not give any right to the prisoner for a lesser term of sentence and appropriate Government may in its discretion remit either the whole or a part of the sentence.' 19. In the third judgment reported in 1980 SC 2147 = 1981 SCC (Cri) 112 = (1981) 1 SCC 107, a Constitutional Bench of the Honourable Apex Court has held: "Parliament has competency to pass Section 433-A Cr.PC since it falls under Entry 2 of List III as a cognate provision integral to remission and commutation, as it sets limits to the power conferred by the preceding two sections. Even if the State passed laws for remission and short-sentencing, in case of repugnancy Section 433-A would prevail." "Section 302 IPC or other like offence fixes the sentence to be life imprisonment and 14 years' imprisonment under Section 433-A is never heavier than life term. Remission vests no right to release when sentence is life imprisonment. No greater punishment is inflicted by Section 433-A than the law annexed originally to the crime. Nor is any vested right to remission cancelled by compulsory 14 year jail life, since a life sentence is a sentence for life." "Section 433-A Cr.P.C., does not violate Article 14 and the classification therein is based on gravity of crime and need for deterrent punishment." 20. In the fourth judgment cited above, reported in 1984 SCC (Cri) 241, a three Judge Bench of the Honourable Apex Court has held that 'prisoners whose death sentence commuted to life imprisonment on mercy ground constitute a distinct class and cannot claim equality with those sentenced to life imprisonment.' 21. In the fifth judgment cited above, reported in (1998) 1 SCC 226, a Three Judge Bench of the Honourable Apex Court has held that 'while ultimate responsibility for functioning of the investigating agency viz. CBI to Parliament lies in the Minister concerned,he cannot interfere with the course of investigation in https://hcservices.ecourts.gov.in/hcservices/ individual cases.' 22. In the sixth, seventh, eighth and tenth judgments cited above, respectively reported in AIR 2000 SC 2762, 2001 SCC (Cri) 631; 2001 SCC (Cri) 735 and 2005 SCC (Cri) 1094 also, the Honourable Apex Court has held that 'life imprisonment means imprisonment for whole of remaining period of convict's life'. 23. In the ninth judgment cited above, reported in 2003 SCC (Cri) 1761, held that 'Government's power under Section 432 Cr.P.C. to exclude a class of prisoners from benefit of remission is not affected by Section 433-A.' 24. In the eleventh judgment cited above, reported in 2007 (3) SCC (Cri) 544, the Honourable Apex Court has held that 'study leave, cannot be reckoned under Kerala Prison Rules, while computing period of sentence undergone.' 25. On a thorough perusal of the above judgments of the Honourable Apex Court, it is clear that the power exercised by the Governor under Article 161, on the advice of the council of Ministers, is amenable to judicial review and the decision of the Governor under Article 161 of the Constitution could be interfered with by the Courts if it is established that the Governor has passed the order without application of mind or the order in question is a mala fide one or the Governor has passed the order on some extraneous consideration; that the life imprisonment means imprisonment for whole of remaining period of convict's life;that Section 433-A of the Cr.P.C. was upheld as not violative of Article 14; that the Governments power under Section 432 to exclude a class of prisoners from benefit of remission is not affected by Section 433-A. Keeping in mind the above principles enunciated by the Honourable Apex Court, we shall now see whether there are any grounds to interfere with the decision of the Governor. 26. Under Section 432 of the Code of Criminal Procedure, the power to suspend or remit sentences vests with the appropriate Government and Section 433 grants power to commute sentence on the appropriate Government, while Section 433-A imposes restriction on powers of remission or commutation in certain cases and Section 435 creates an obligation on the State Government to act after consultation with Central Government in certain cases, while remitting or commuting a sentence. 27. Since the issue on hand, revolves around the commutation of sentence, for better appreciation, we shall now extract hereunder Sections 433, 433-A and 435 of the Code of Criminal Procedure. https://hcservices.ecourts.gov.in/hcservices/ "Section 433. Power to Commute sentence – The appropriate Government may, without the consent of the person