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Kumaresan @ Chetty v/s The Home Secretary (Prison), Secretariat, Chennai & Others


Company & Directors' Information:- AT HOME INDIA PRIVATE LIMITED [Active] CIN = U17211DL2001PTC112255

Company & Directors' Information:- V HOME PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109331

Company & Directors' Information:- G. P. HOME PRIVATE LIMITED [Under Process of Striking Off] CIN = U70102MH2011PTC213056

    H.C.P.No. 719 of 2020

    Decided On, 21 September 2020

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE N. KIRUBAKARAN & THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Petitioner: M. Mohamed Saifulla, Advocate. For the Respondents: R. Prathapkumar, Addl. Public Prosecutor.



Judgment Text

(Prayer: Petition under Article 226 of the Constitution of India praying for issue of a Writ of Habeas Corpus to direct the respondents to constitute the advisory board under Rule 341 of Tamil Nadu Prison Rules, 1983 as per decision of Hon’ble Apex Court in State of Tamil Nadu V. Veera Bhaarathi (2019) 2 Scale 225 to the detenu namely Kumaresan @ Chetty S/o. Annamalai, Life Convict Prisoner (CT No. 6992) confined at Salem Central Prison.)N. Kirubakaran, J.The present Habeas Corpus Petition has been filed by the detenu, who is a life convict, for a direction to the respondents to constitute the advisory board under Rule 341 of Tamil Nadu Prison Rules, 1983 as per the decision of Hon’ble Apex Court in State of Tamil Nadu V. Veera Bhaarathi (2019) 2 Scale 225.2. The petitioner was convicted by the Court of Additional Sessions, Dharmapuri, by judgment dated 08.03.2006 in S.C. No. 21 of 2005 for the offences under Sections 376 and 302 IPC and sentenced to 10 years RI for the offence under Section 376 IPC and life imprisonment for the offence under Section 302 IPC and the sentences were directed to run concurrently. The appeal filed against the said judgment in Crl.A. No. 352 of 2008 was also dismissed on 16.12.2008 by this court. Thereafter, further appeal had not been filed before the Hon’ble Supreme Court and the judgment of this Court had attained finality.3. The petitioner has been undergoing imprisonment for the past 16 years. Therefore, the petitioner has given a representation to constitute an Advisory Board as per Rule 341 of Tamil Nadu Prison Rules, 1983 (hereinafter referred to as “Rules”) and the judgment of the Honourable Supreme Court in State of Tamil Nadu V. P. Veera Bhaarathi reported in 2019 2 Scale 225. Since the said representation has not been considered and no orders have been passed and no Advisory Board has been constituted under Rule 341 of the Rules, the petitioner has come before this Court.4. Heard Mr.M. Mohamed Saifulla, learned counsel for the petitioner and Mr.R. Prathap Kumar, learned Additional Public Prosecutor for the respondents, who would submit that the prayer is only for constituting an Advisory Board and a communication in this regard has been sent to the District Collector, Dharmapuri by the Superintendent of Prisons, Central Prison, Salem on 19.08.2020 to ascertain with regard to constitution of Advisory Board.5. There is no dispute with regard to Rule 341 of the Rules according to which an Advisory Board has to be constituted to decide about premature release of a life convict. Though in this case, the ineligible section, i.e, Section 376 has been invoked and the petitioner has been convicted, the Honourable Supreme Court in State of Tamil Nadu V. P. Veera Bhaarathi reported in 2019 2 Scale 225 has categorically held that even an ineligible section of IPC will not prohibit the premature release of the convict, in respect of the life sentence imposed under Section 302 IPC and the said convict would be entitled for consideration of premature release under the prison rules in force. The relevant“7.In other words, the argument on behalf of the appellants is that if a person is to be convicted and sentenced under an ineligible Sectionineligible offence he would not be entitled to the benefit of early/premature release under the Prison Rules.8. The operation of the Rules in the manner as suggested on behalf of the appellants would result in a highly incongrous situation which the rule making authority could not have been understood to have contemplated or envisaged. Higher offences involving sentence of imprisonment for life or even death sentence commuted to life imprisonment, if not coupled with convictions under the ineligible section(s), would entitle a convict to consideration of his case for early release. But, if a lifer is to be convicted for a much lesser offence, say, offences under Section 224, 498A IPC, etc. and sentenced to small periods of imprisonment, nothwithstanding the fact that he had completed more than 10 years of custody, he would still not be eligible for early release. Such a situation, in our considered view, cannot be allowed to prevail by understanding the operation of the rules in the manner suggested on behalf of the appellatns.9. The letter/Memo No.14189/W.1/1989 dated 4th November, 1989 of hte Inspector General of Prisons, contents of which have been stated above, is a pointer in the above direction and indicates the manner in which the prison authority had understood the provisions of the Rules.10. Shri Giri’s response in the matter is that the view of the Inspector General of Prisons does not reflect the view of the State and the said view was acted upon in few isolated cases, details of which have been given. The said facts do not detract from the position that the view expressed int he letter/memo issued by the Inspector General of Prisons coupled wih the view adopted by the High Court presents a more reasonable understanding of hte provisions of the Rules which contemplate grant of early/premature release if the contingencies contemplated by the Rules do occur.”6. The petitioner had already completed 14 years as on 25.07.2018 and therefore, he had given a representation as early as on 20.01.2020 to the respondents. It is stated in last paragraph of page No.5 of counter affidavit filed by the 3rd respondent that action is being taken to place the petitioner’s case before the Advisory Board for consideration of premature release as per Rule 341 of the Rules. In this regard, a letter has been written by the Superintendent, Central Prison, Salem, on 19.08.2020 to the District Collector, Dharmapuri, to constitute an Advisory

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Board for appropriate action and the said letter is extracted as follows:“LANGUAGE”7. Since a letter has already been addressed by the Superintendent, Central Prison, Salem, the District Collector, Dharmapuri is directed to constitute the Advisory Board and take a decision and forward to the Government within a period of six weeks from the date of receipt of a copy of this order. On the decision being taken by the Advisory Board, the same shall be forwarded to the 1st respondent, who shall pass appropriate orders within four weeks thereafter.8. The HCP is disposed of accordingly. Post the matter for compliance on 30.11.2020.
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