Non-Exercise Of Power Under Article 161 Is Subject To Judicial Review By Court When State Cabinet Decided To Release Prisoner: Madras HC
The Madras High Court held that the non-exercise of power under Article 161 of the Constitution is subject to the judicial review by the Court, especially when the State Cabinet has decided to release the prisoner.
The Court held thus in a writ petition filed by a life convict prisoner against the order of the Government, by which his premature release was rejected.
A Division Bench comprising Justice S.M. Subramaniam and Justice V. Sivagnanam observed, “The Law laid down by a catena of Judgments of this Court is well settled that the advice of the State Cabinet is binding on the Governor in the exercise of his power under Article 161 of the Constitution of India. It is held that non exercise of the Power under Article 161 or inexplicable delay in exercise of such power not attributable to the prisoner is subject to the judicial to the review by the Court, especially when the State Cabinet has taken a decision to release the prisoner and made recommendations to the Hon'ble Governor to this effect.”
Advocate Sankara Subbu appeared for the petitioner while State Public Prosecutor (SPP) Hasan Mohamed Jinna appeared for the respondents.
In this case, the petitioner was a life convict prisoner who completed more than 20 years of actual imprisonment. The Trial Court imposed sentence of Death Penalty, which was modified by the High Court as Life Sentence. The judgment of the High Court was affirmed by the Supreme Court. The writ petition was filed, seeking issuance of a writ to call for the entire records relating to the Government order, by which the petitioner’s premature release from life imprisonment was rejected. The counsel for the petitioner contended that the co-accused was prematurely released by the Government.
The High Court after hearing the arguments from both sides, said, “The power under Article 161 of the Constitution can be exercised by the State Governments, not by the Governor on his own. The advice of the appropriate Government binds the Head of the State. No separate order for each individual case is necessary, but any general order made must be clear enough to identify the group of cases and indicate the application of mind to the whole group. Therefore, the policies of the State Government are composite policies encompassing both situations under Article 161 of the Constitution and Section 432, 433 and 433(A) of the Code.”
The Court added that the remission under Article 161 of the Constitution will override Section 433(A) of the Criminal Procedure Code (CrPC), if the State Government decides to be governed of its constitutional Power.
“The power of an appropriate Government to issue General or Special orders allowing remissions is traceable under Section 432 Cr.P.C. and the policies in question were framed in exercise of the powers conferred on appropriate Government under Section 432 Cr.P.C. and hence, are statutory in nature”, it enunciated.
The Court further noted that the power under Article 161 can be exercised by the State Government, not by the Governor on his own and that the advice of appropriate Government binds the Head of the State.
“It would be insufficient to merely reject an application for premature release on the ground that the offence committed is heinous in nature. For the offence committed, the prisoner actually underwent imprisonment and the scheme itself provides eligibility criteria for grant of remission”, it remarked.
The Court also observed that, when the scheme is approved by the Government and is of statutory in nature, thereafter, raising any doubt regarding the offence proved would have no implication and thus, the extraordinary and exceptional circumstances must stand beyond the scrutiny of the scheme and in normal circumstances, such a stand would not only dilute the scheme of remission, but will defeat the scheme by itself.
“We are aware that the premature release is not an absolute right. … Since it is a scheme formulated by the State Government, which is statutory in nature, and when the High Court in exercise of the powers of Judicial Review finds that the decision taken and the reasons stated for passing the impugned order are neither candid nor convincing, the Court is left with no option but to remand the matter back to the Government for recirculation and for fresh consideration”, it concluded.
Accordingly, the High Court allowed the writ petition and quashed the impugned Government Order.
Cause Title- Veera Bharathi v. The State of Tamil Nadu & Ors.
Appearance:
Petitioner: Advocates R. Sankara Subbu and D. Mario Johnson.
Respondents: SPP Hasan Mohamed Jinna and APP E. Raj Thilak.
