Case: THE HOME SECRETARY (PRISON) Vs. H. NILOFER NISHA

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 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 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 No 39/2018 Date 07.02.2018 Prisoner Number & Name 4346, Abuthahir S/o Hussain, Central Prison, Coimbatore 1 If the above mentioned prisoner if prematurely released (a) What will be the effect in that place It was known during the enquiry that some problems may arise (b) What will be mental feelings of Enmity still prevails the relatives of the deceased (c) Are the family members/relatives likely to accept him into their fold and renew their old relationship Yes (d) Will the life of the prisoner be safe There is a danger to the life 2 Report of the local Sub Inspector of Police with regard to loss of peace If the prisoner is prematurely released, on account of previous enmity The Commissioner of Police, Coimbatore City has opined that the premature release of the prisoner will create tension on religious grounds 3 Previous conduct of the prisoner and gist of the history of the prisoner Satisfactory 4 Has the prisoner been awarded any punishment previously No 5 Does the prisoner have any property and permanent residence in his name? If so, please furnish their details and its value. Permanent address is available and not owning any property 6 Are any relatives standing surety for the prisoner? If yes, complete address and status may be furnished Yes 7 Will the prisoner be able to earn a livelihood if prematurely released Yes 8 Was the murder committed due to any social or religious animosity or self satisfaction and does the enmity still exist or not? The incident of murder occurred due to religious problems and the enmity still exists 9 What was his behaviour during the period he was released on leave on the promise of good behaviour? He was released on leave with police escort 10 Is the premature release for the prisoner recommended not recommended 11 Remarks of the Probation Officer on the premature release of the prisoner For the above said reasons, I am to inform that the prisoner is not recommended for the premature release Sd/- Probation Officer, Division I, Prison Department, Coimbatore 641037 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 caseWe 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 detenu12. 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 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 India13. 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 corpus27. 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 rulesWhat 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 Constitution30. As already mentioned above, it is well settled law that even if the detenu is in private detention then also a writ of 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 whatsoeverWe 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 2-3 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 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 State has not challenged some of the orders is not sufficient to hold that these orders are legal33. 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 identicalCRIMINAL 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 nowThis 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 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 litigationCRIMINAL 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;(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, 2014We 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 problemCrl.Appeal No. 146 /2020 @ SLP(Crl)No.7697 of 201938. 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 Madras39. 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 litigationCrl.Appeal No. 148 of 2020 @ SLP(Crl) No.11494 of 201940. 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. 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 University41. 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 litigationCrl.Appeal No. 147 of 2020 @ SLP(Crl)No.6159 of 201942. 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 8 th Standard;(ii) Course of Preparatory Programme for Secondary (PPS) dated 23.11.2012 in Tamil Nadu Open University;(iii) Completed 10 th Standard;(iv) Completed 12 th 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 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.