INDU BAI & ORS. versus STATE OF TELANGANA & ORS.

[2020] 1 S.C.R. 453

INDU BAI & ORS.

STATE OF TELANGANA & ORS.

(Civil Appeal No. 483 of 2020)

JANUARY 21, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Tenancy:

Allotment of land in question – To persons displaced afterpartition of India-Pakistan – Challenged by State Government –Also challenged by appellants claiming to be pre-partition tenants– High Court upheld the challenge by the State Appeal to SupremeCourt – Held: The challenge in the writ petition of the appellantsbefore High Court was not to seek establishment of any right of theappellant being pre-partition tenants – Therefore, the matter isremitted to High Court to decide the writ petitions in accordancewith law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 483 of2010.

From the Judgment and Order dated 12.02.2016 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh in Writ Petition No. 14066 of 2006.

With

Civil Appeal Nos. 477-478, 486-487, 492-493, 568, 569-570,571-572, 573, 479-480, 481 of 2020.

Guru Krishna Kumar, Pallav Sishodia, Ranjit Kumar, C.S.Vaidyanathan, V. Giri, Sr. Advs., Mullapudi Rambabu, N. Eswara Rao,Ms. Prity Kumari, Ms. Vijayshree Pattanaik, B.K. Prasad, M/S. M.Rambabu And Co., Saurabh Mishra, Abhishek Singh, Ms. Samridhi Pal,Ms. Aashna Bhatia, Srinivasa Rao Putluri, Varun Thakur, Tripurari Roy,Ms. Shraddha Saran, Varinder Kumar Sharma, Hitendra Nath Rath, Dr.E. Seshagiri Rao, G.V.R. Choudary, K. Shivraj Choudhuri, Harsh Singhal,Hitesh Kumar Sharma, A. Sudhakar Rao, Kakra Venkata Rao, TanmayaAgarwal, T. V. Ratnam, P. Venkat Reddy, Prashant Kr. Tyagi, P. Srinivas

AReddy, Raja Ram, M/s. Venkat Palwai Law Associates, Prashant Singh,A.K. Kaul, Raj Bahadur Yadav, Venkateshwar Rao Anumolu, Advs. forthe appearing parties.

The Judgment of the Court was delivered by

HEMANT GUPTA, J.B

1. The present appeals are directed against common order passedby the High Court of Judicature for the States of Telangana and AndhraPradesh at Hyderabad on 12[th] February, 2016 whereby the writ petitionsfiled by the State of Telangana were allowed.

C2. Civil Appeal No. 7477 of 2019 (Ramesh Parsram Malani &Ors. v. The State of Telangana & Ors.) arising out of the said orderstands dismissed by this Court on 22[nd] October, 2019 wherein it has beenheld that the Central Government has transferred land to the StateGovernment and that the State can allot land for settlement of displacedpersons.D

3. The appellants claim themselves to be pre-partition tenants onthe land situated in Village Poppalguda, District Ranga Reddy. Thegrievance of the appellants is that their right to continue in possessionhas been put in jeopardy when the State issued an auction notice on 25[th]April, 2016.

4. This Court in its judgment dated 22[nd] October, 2019 has notexamined the claim of the alleged pre-partition tenants. This Court inRamesh Parsram Malani’s case set aside the finding of the High Courtwherein it was held that transfer of land to the State Government takessuch transferred land out of compensation pool. The observations of thisFCourt in the following para are in the context of the finding recorded bythe High Court, which reads as under:

“31. However, we are unable to agree with the High Court thattransfer of land to the State Government takes such transferredland out of compensation pool. The land transferred to the StateGovernment continues to be part of compensation pool but it isrequired to be disposed of by the Officers of the State who havebeen conferred the powers of the Managing Officer or of theSettlement Commissioner for the settlement of the displacedpersons alone. It is only after the displaced persons are settled,the State Government may utilize the land for other purposes.”

5. In Civil Appeals arising out of Special Leave Petition (Civil)Nos. 23613-23614 of 2016, the order of the High Court in Writ PetitionNos. 29274 of 2014 and 29436 of 2014 is subject matter of challenge.Before the High Court, the appellants have challenged the allotment ofland to Ramesh Parsram Malani (the appellant in Civil Appeal No. 7477of 2019) and also claimed Patta being pre-partition tenants. Theappellants have claimed, inter alia, the following relief:

“…direct the respondents No. 1 to 5 to grant patta rights in respectof the subject lands admeasuring Ac.18.00 Gts in Sy. No. 301,303, 327, situated at Poppalguda Village, Rajendra Nagar Mandal,Ranga Reddy District, in favour of the petitioners herein.”

6. In Civil Appeals arising out of Special Leave Petitions (CCNos. 15550-15551 of 2016), the appellants have filed miscellaneousapplication for claiming interim directions not to interfere with thepossession and enjoyment of the appellants over the land comprising inSurvey No. 331 of Poppalguda Village, Rajendra Nagar Mandal, RangaReddy District. Therefore, the challenge in the writ petitions was not toseek establishment of any right of the appellants being pre-partitiontenants.

7.In other appeals, the appellants have not invoked the writjurisdiction or any other competent forum for redressal of their grievancesin relation to vesting of land in them.

8. In view of the above, the order dated 12[th] February, 2016 passedby the High Court in Writ Petition Nos. 29274 of 2014 and 29436 of2014 is set aside and the matter is remitted to the High Court to decidethe writ petitions in accordance with law. All other appellants are atliberty to invoke such other jurisdiction as may be available to them forredressal of their grievances in accordance with law.

9. All the appeals stand disposed of accordingly.

Kalpana K. Tripathy

Appeals disposed of.

[2020] 1 S.C.R.

THE HOME SECRETARY (PRISON) & ORS.

H. NILOFER NISHA

(Criminal Appeal No. 144 of 2020)

BJANUARY 23, 2020

[S. ABDUL NAZEER AND DEEPAK GUPTA, JJ]

Writs:

Writ of Habeas Corpus – Whether maintainable – ForCpremature release of person, in terms of scheme for prematurerelease by Government orders/ Rules, who is undergoing sentenceof imprisonment imposed by Court of competent jurisdiction –Held: Writ of Habeas Corpus is processual writ to secure liberty ofthe citizen from unlawful and unjustified detention by the State orby private person – Such writ will not lie where detention is inDaccordance with the decision of court of law or by an authority inaccordance with law – In the present case, the detenus having beenimprisoned for life, their detention cannot be said to be illegal –The court cannot exercise power to grant remission or parole whichis descretion exercised by the authorities concerned – Rules framedEby High court cannot confer jurisdiction which is not conferred bythe Constitution – Rules cannot override the Constitution – It wasnot correct for the High Court to direct release of the petitionersunder the Government order without first directing the competentauthority to take decision in the matter – In respect of 2 detenusState/ Competent Authority is directed to consider their representationF– Other detenus in the facts of their respective cases, are directedto be released forthwith, in exercise of power under Article 142 ofthe Constitution.

Disposing of the appeals, the Court

GHELD : 1.1 writ of habeas corpus is available as remedyin all cases where person is deprived of his/her personal liberty.It is processual writ to secure liberty of the citizen from unlawfulor unjustified detention whether person is detained by the Stateor is in private detention. writ of habeas corpus will not liewhere detention or imprisonment of the person whose release isH

sought is in accordance with the decision rendered by courtof law or by an authority in accordance with law. [Para 14][468-A-C]

1.2 writ of habeas corpus can only be issued when thedetention or confinement of person is without the authority oflaw. Though the literal meaning of the Latin phrase habeas corpusis ‘to produce the body’, over period of time production of thebody is more often than not insisted upon but legally it is to bedecided whether the body is under illegal detention or not.Habeas corpus is often used as remedy in cases of preventivedetention because in such cases the validity of the order detainingthe detenu is not subject to challenge in any other court and it isonly writ jurisdiction which is available to the aggrieved party.The scope of the petition of habeas corpus has over period oftime been expanded and this writ is commonly used when aspouse claims that his/her spouse has been illegally detained bythe parents. This writ is many times used even in cases of custodyof children. Even though, the scope may have expanded, thereare certain limitations to this writ and the most basic of suchlimitation is that the Court, before issuing any writ of habeas corpusmust come to the conclusion that the detenu is under detentionwithout any authority of law. [Para 17] [468-E-G; 469-A]

1.3 In the present cases, the detenus have been sentencedto imprisonment for life and as such their detention cannot besaid to be illegal. It is not for the writ court to decide whether aprisoner is entitled to parole or remission and these matters liesquarely in the domain of the Govenment. [Para 18] [469-B]

Maru Ram v. Union of India (1981) 1 SCC 107 : [1981]1 SCR 1196 – followed.

Col. Dr. B. Ramachandra Rao v. The State of Orissa &Ors. (1972) 3 SCC 256 ; Kanu Sanyal v. DistrictMagistrate, Darjeeling (1973) 2 SCC 674 : [1974] 1SCR 621 ; Manubhai Ratilal Patel v. State of Gujaratand Others (2013) 1 SCC 314 : [2012] 8 SCR 993 ;Saurabh Kumar v. Jailor, Koneila Jail (2014) 13 SCC436 : [2014] 8 SCR 909 ; State of Maharashtra

Aand Others v. Tasneem Rizwan Siddiquee (2018) 9 SCC745 : [2018] 11 SCR 374 ; Gopal Vinayak Godse v.The State of Maharashtra and Others [1961] 3 SCR440 – relied on.

Sunil Batra (II) v. Delhi Administration (1980) 3 SCCB488 : [1980] 2 SCR 557 ; Mohd. Ikram v. State of U.P.AIR 1964 SC 1625 : [1964] SCR 86 ; Ranjit Singh v.State of Pepsu AIR 1959 SC 843 : [1959] Suppl. SCR 727 ; Ummu Sabeena v. State of Kerala (2011) 10 SCC781 : [2011] 13 SCR 185 ; In the matter of-MadhuLimaye and Others (1969) 1 SCC 292 : [1969] 3CSCR 154 ; Talib Hussain v. State of Jammu & Kashmir(1971) 3 SCC 118 ; Sanjay Dutt v. State (II) (1994) 5SCC 410 : [1994] 3 Suppl. SCR 263 – referred to.

Introduction to the Study of the Law of the Constitutionby A.V. Dicey, Macmillan and Co., Limited, p. 215D(1915); Halsbury’s Laws of England, (4[th] Edn.) Vol. 11;V.G. Ramachandran’s Law of Writs, revised by Justice–C.K. Thakker & M.C. Thakker, 6[th] Edn. (2006) referred to.

2. The grant of remission or parole is not right vestedEwith the prisoner. It is privilege available to the prisoner onfulfilling certain conditions. This is discretionary power whichhas to be exercised by the authorities conferred with such powersunder the relevant rules/regulations. The court cannot exercisethese powers though once the powers are exercised, the CourtFmay hold that the exercise of powers is not in accordance withrules. [Para 27] [473-D-E]

3.1 The High Courts are empowered to frame rules in termsof Article 225 of the Constitution of India but this power is subjectto the provisions of the Constitution of India and to the provisionsGof any law of the appropriate legislature. What description has tobe given to writ is for the High Court to decide. But the Rulescannot confer jurisdiction which is not conferred by theConstitution. 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 beissued for release of the detenu. Merely because the Rulesprovide that in the petition details of the detention order, prisonetc., have to be given, does not mean that the writ of habeascorpus cannot be issued where the Rules are silent. The Rulescannot override the Constitution. [Paras 28 & 29] [475-B, F-H;476-A]

3.2 If the Rules are to be the masters and not theConstitution, then, probably in the Madras High Court no writ ofhabeas corpus would be entertained in the case of privatedetention. This would be against the spirit of the Constitution ofIndia. Therefore, reference to the Rules is of no aid whatsoever.[Para 30] [476-B]

4.1 The High Court cannot direct the release of petitionerunder G.O.(Ms.) No.64 dated 01.02.2018. In the present cases,the representations made by the detenus had not been decided.The proper course for the Court was to direct that therepresentations of the detenus be decided within short period.Keeping in view the fact that the Scheme envisages report ofthe Probation Officer, reference by the District Level Committeeand thereafter the matter has to be placed before the concernedRange Deputy Inspector General and before Regional ProbationOfficer and thereafter before the State Level Committee, it wouldbe reasonable to grant 2-3 months depending on the time whenthe representation was filed for the State to deal with them. Whenthe petition is filed just few days before filing the representationthen the Court may be justified in granting up to 3 months’ timeto consider the same. However, if the representation is filed acouple of months earlier and the report of the Probation Officeris already available then lesser time can be granted. No hard andfast timelines can be laid down but the Court must give reasonabletime to the State to decide the representation. The Court itselfcannot examine the eligibility of the detenu to be granted releaseunder the Scheme at this stage. [Para 31] [476-C-G]

4.2 There are various factors which have to be consideredby the committees. The report of the Probation Officer is onlyone of them. After that, the District Committee has to make

Arecommendation and finally it is the State Level Committee whichtakes final call on the matter. the High Court erred in directingthe release of the detenus forthwith without first directing thecompetent authority to take decision in the matter. Merelybecause practice has been followed in the Madras High Courtof issuing such type of writs for long time, cannot clothe theseBorders with legality if the orders are without jurisdiction.Past practice or the fact that the State has not challenged some ofthe orders is not sufficient to hold that these orders are legal.[Para 31] [476-G; 477-A-B]4.3 In case, petition is filed without any decision(s) of theCState Level Committee in terms of Para 5(I) of the G.O. in question,the Court should direct the concerned Committee/authority totake decision within reasonable period. Obviously, too muchtime cannot be given because the liberty of person is at stake.This order would be more in the nature of writ of mandamusDdirecting the State to perform its duty under the Scheme. Theauthorities must pass reasoned order in case they refuse togrant benefit under the Scheme. Once reasoned order is passedthen obviously the detenu has right to challenge that order butthat again would not be writ of habeas corpus but would be morein the nature of writ of certiorari. In such cases, where reasonedEorders have been passed, the High Court may call for the recordof the case, examine the same and after examining the same inthe context of the parameters of the Scheme decide whether theorder rejecting the prayer for premature release is justified ornot. If it comes to the conclusion that the order is not properForder then obviously it can direct the release of the prisoner bygiving him the benefit of the Scheme. There may be cases wherethe State may not pass any order on the representation of thepetitioner for releasing him in terms of the G.O.(Ms) No.64 dated01.02.2018 despite the orders of the Court. If no orders havebeen passed and there is no explanation for the delay then theGCourt would be justified in again calling for the record of the caseand examining the same in terms of the policy and then passingthe orders. [Para 32] [477-B-F]

5. So far as the present cases are concerned, the High Courtthough it had the report of the Probation Officer before it, hasH

only noted one line of the order of the Probation Officer and notthe entire report(s). [Para 33] [477-G]

6. The detenu has in Criminal Appeal No. 144 of 2020obtained various degrees and various other Vocational Diplomas.The learning which he has obtained in jail must be put to useoutside. The jail record shows that his behaviour in jail has beensatisfactory. The only ground against him is that he had murdereda person from another community and, therefore, it is said thatsome religious enmity may still prevail. It has come on recordthat on various occasions, he has gone back to his native placethough under police escort. In these circumstances this is fitcase where this respondent should not be sent to another roundof litigation. Therefore, in exercise of power under Article 142of the Constitution release of the respondent/ detenu is directed.[Para 35] [480-A-C]

7. The detenu in Criminal Appeal No. 145 of 2020 is about43 years of age now and that during the period of incarceration injail, he has completed the eleven educational courses. He hadgone on emergency leave 42 times (89 days) and by Court order,he has been granted leave 2 (37 days) times and during the saidoccasions, neither life threat to him nor was there any law andorder problem. In these circumstances this is fit case where heshould not be sent to another round of litigation. Therefore, inexercise of power under Article 142 of the Constitution his releaseis directed. [Paras 36 & 37] [480-E; 481-C-D]

8. The detenu in Criminal Appeal No. 146 of 2020 is about38 years of age now and during the period of incarceration in jail,has completed three educational courses. In these circumstancesthis is fit case where this respondent should not be sent toanother round of litigation. Therefore, in exercise of power underArticle 142 of the Constitution his release is directed. [Paras 38& 39] [481-D-G]

9. The detenu in Criminal Appeal No. 148 of 2020 is about39 years of age now and during the period of incarceration in jail,he has completed seven educational courses. In these

Acircumstances this is fit case where the Court should not sendthis respondent to another round of litigation. Therefore, inexercise of power under Article 142 of the Constitution his releaseis directed. [Paras 40 & 41] [481-G-H; 482-A-D]

10. The detenu in Criminal Appeal No. 147 of 2020 is aboutB46 years of age and during the period of incarceration in jail, hehas completed the seven educational courses. The detenu inthis case was convicted in another case under Section 120(B) ofthe Indian Penal Code, 1860 and sentenced to imprisonment for5 years and was convicted under Section 4(a) and 4(b) of theExplosives Substances Act, 1908 and was awarded 5 yearsCimprisonment and 4 years imprisonment under each of thesesections vide judgment dated 28.12.2018. This judgment ofconviction and sentence is after the date of the G.O.(Ms.) No. 64dated 01.02.2018 in question and this will also have to be takeninto consideration. Therefore, as far as this case is concerned,Dthe competent authority is directed to consider the representationof the detenu keeping in view the facts and circumstances of thecase and decide the same within 6 weeks. In case the State rejectsthe plea of the detenu then reasoned order has to be passedand, in that eventuality, the detenu shall be at liberty to challengethe order before the High Court. The State is directed to considerEand decide the representation of the detenu within 6 weeks fromthe date of this judgment. [Paras 42, 43 and 45] [482-E-H;483-A-C, F]

Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 144 of 2010.

From the Judgment and Order dated 04.01.2019 of the High Courtof Judicature at Madras in H.C.P. No. 2956 of 2018.

With

Criminal Appeal Nos. 145, 146, 147 and 148 of 2020.

Mukul Rohatgi, V. Giri, S.Nagamuthu, Ratnakar Dash, Sr. Advs.,DM. Yogesh Kanna, M. Thanga Thurai, S. Raja Rajeshwaran, KarthihkR., Ms. Uma Prasuna Bachu, Muthu Chharan, Ms. Suvetha Shankar,Rishabh Sancheti, Suyash Rawat, Anchit Bhandari, Vishnu Unnikrishnan,K. Paari Vendhan, P. A. Noor Muhamed, Mokamed Yusuff, S.A.SAlaudeen, Abdul Rahman, Shereef K.A., Sheik Moulali Basha, Mr. AnsarEUl Haq, Hardik Gautham, G. Sivabalamurugan, Selvaraj Mahendran,M. Vivek Bharathi, T. Harish Kumar, Advs. for the appearing parties.

The Judgment of the Court was delivered by

DEEPAK GUPTA, J. 1. Delay condoned.

2. Leave granted.

3. The main issue which arises for decision is as follows:

“Whether writ of habeas corpus would lie, for securing releaseof person who is undergoing sentence of imprisonment imposed bycourt of competent jurisdiction praying that he be released in terms ofsome Government orders / Rules providing for pre-mature release ofprisoners?”

4. At the outset, we may mention that on 17.10.2019 we hadframed two issues. We have reframed the first issue and on closer

Aexamination we are of the view that the second issue does not arise fordecision in this case.

5. The Governor of Tamil Nadu exercising powers under Article161 of the Constitution of India got issued G.O.(Ms.) No.64 dated01.02.2018 through the Home (Prison-IV) Department, Government ofBTamil Nadu wherein Scheme was framed for considering the cases ofpre-mature release of convicted prisoners on the occasion of the BirthCentenary of Shri M.G. Ramachandran, former Chief Minister of TamilNadu. The relevant portion of the Scheme reads as follows:-

“5.The Government after careful examination have decided toCframe the following guidelines for considering the cases of lifeconvict prisoners for releasing them prematurely under Article161 of the Constitution of India, in commemoration of theBirthday Centenary of ‘Bharat Ratna’, Puratchi Thalaivar Dr.M. G. Ramachandran, former Chief Minister of Tamil Nadu,based on the announcement of Hon’ble Chief Minister:-

(I) The following committees are constituted for examiningthe premature release of the life convict prisoners, case tocase basis, on the above lines.

(i) the State level committee headed by the Inspector GeneralEof Prisons and the Deputy Inspector General of Prisons (Hqrs),Legal officer, Administrative officer (Hqrs) shall be membersof the committee.

(ii) the Second level/District committee wherein the CentralPrisons/Special Prisons for Women located, headed by theFSuperintendent of Prisons of the concerned Central Prison andthe Additional Superintendent of Prison, Jailor, AdministrativeOfficer and Probation Officer shall be members of thecommittee.

(iii) the concerned Range Deputy Inspector General of Prisonsand Regional Probation officer of the concerned region shallGexamine the proposal of the second level committee and sendthe same to State Level committee along with recommendation.

xxxxxxxxx

6. Under the Scheme, State level committee and DistrictHcommittees were constituted. The District committees were to consider

the cases of the prisoners and send their recommendations to the RangeDeputy Inspector General of Prisons and Regional Probation Officerwho, after examination of the same, were to send the same to the Statelevel committee along with the recommendations. The Scheme furtherprovided as follows:-

(II) The life convicts who have completed 10 yearsof actualimprisonment as on 25.02.2018 and the life convicts who areaged 60 yearsand above and who have completed 5 yearsof actual imprisonment on 25.02.2018 including those whowere originally sentenced to death by the Trial Court andmodified to life sentence by the Appellate Court (other thanthose whose convictions have been commuted), may beconsidered for premature release subject to satisfaction ofthe following conditions:-

1) The prisoner’s behaviour should be satisfactory.

2) Prisoners convicted for the following offences areineligible for consideration for premature release irrespectiveof the nature and tenure of the sentence and irrespective ofthe fact as to whether or not they have undergone thesentence in respect of the said offence namely:”

Thereafter, the Scheme provides that prisoners convicted forcertain offences or for offences under certain Acts would not be eligiblefor benefit under the Scheme. The Scheme also lays down the followingamongst other conditions:-

4) That there is safety for the prisoner’s life, if released.

5) That the prisoner will be accepted by the members oftheir family.

6) That there is safety of life of the family which wasaffected by the prisoner, if released.

xxx

8) The life imprisonment prisoners cannot claim prematurerelease as matter of right.”

7. As far as the present cases are concerned, the detenus whoserelease were sought were convicted for various offences including theoffences under Section 302 of the Indian Penal Code, 1860. In all cases,

Athey have been sentenced for life and their conviction and sentenceshave been upheld till this Court. The petitions for habeas corpus werefiled on the ground that the State has not given benefit of the prematurerelease referred to above to the petitioners whereas many others havebeen given the benefit.

B8. In all the cases representations were made by the petitioners afew months before filing the petitions in the High Court praying that theybe released in terms of G.O.(Ms) No.64 dated 01.02.2018. Theserepresentations were pending but the High Court in almost identical termshas held in all the cases that “There is no dispute over the fact thatthe convict prisoner would be entitled to release under G.O.(Ms).CNo.64, Home [Prison-IV] Department dated 01.02.2018. However,he has been denied the benefit thereof, since the Probation Officer’sreport informs danger to the life of the Convicts Prisoner, if he belet at large.” Thereafter, the High Court was of the opinion that thedetenu could not be denied release on the ground that life of the detenuDwas in danger. However, it directed that the detenu be informed that hislife may be in danger while releasing him. In all the cases, referencehas been made to the report of the Probation Officer. These petitionshave been allowed by the High Court of Madras and allowing the writ ofhabeas corpus, the detenus have been ordered to be released forthwithin terms of G.O.(Ms) No. 64 dated 01.02.2018 unless their presence is

Erequired in any other case.

9. These orders are under challenge before us. We have heardShri Mukul Rohatgi and Shri V. Giri, learned senior counsel for theappellants, Shri Yogesh Kanna, learned counsel for the State of TamilNadu and Shri S. Nagamuthu and Shri Ratnakar Dash, learned seniorFcounsel for the private respondents.

10. It has been urged on behalf of the State that the High Courthas transgressed the jurisdiction conferred upon it under Article 226 ofthe Constitution of India while issuing the writ of habeas corpus. It iscontended that in all the cases the petitioners were convicted of theGoffences of murder which conviction was upheld till this Court and,therefore, by no stretch of imagination, can it be urged that the detentionof the detenus was illegal. It is further submitted that the High Courtcould have at best directed consideration of the cases of the detenus bythe authorities under the G.O.(Ms) No.64 dated 01.02.2018 but couldnot itself have directed release of the detenus. It is also submitted thatH

the High Court has only noted one portion of the report of the ProbationOfficer and ignored many other relevant considerations.

11. On the other hand, it is contended by learned senior counselappearing on behalf of the detenus that the High Court of Madras haspassed hundreds of orders of this nature but the State has selectivelychosen to challenge only few of them. As far as jurisdiction is concerned,it is submitted by learned senior counsel for the detenus that in terms ofthe Rules to Regulate the Proceedings under Article 226 of theConstitution of India framed by the High Court of Madras, the writs ofthis type are described as habeas corpus writs and writ of this naturewould not be entertained unless it is described as writ of habeascorpus under the Rules. It is further submitted that writ of habeascorpus would lie in such circumstances and it is also urged that in thepeculiar facts and circumstances of the case, this Court should notinterfere with the discretion exercised by the High Court. It was lastlyurged by learned senior counsel for the detenus that the prisoners havebeen behind the bars for very long period of time and even under thenormal rules of remission, they would be entitled to be released. It hasalso been urged that many other detenus who were similarly situatehave already been released. He has brought to our notice number oforders passed by this Court in this regard. We may note that in many ofthese orders this Court has not approved of the manner in which theMadras High Court has ordered the release of prisoners but has upheldthe order of release on account of the long incarceration of the detenu.

12. We feel that quietus has to be given to this matter and thelegal issue must be decided. As far as the objection of selective filing ofpetitions by the State against orders of release by the High Court isconcerned, that objection is meaningless. We are not aware of the otherorders and, in any event, there can be no claim of negative discriminationunder Article 14 of the Constitution of India.

13. Article 226 of the Constitution of India empowers the HighCourts to issue certain writs including writs in the nature of habeascorpus, mandamus, prohibition, quo warranto and certiorari for theenforcement of any right conferred under Part III of the Constitutiondealing with the fundamental rights. In this case, we are concernedwith the scope and ambit of the jurisdiction of the High Court whiledealing with the writ of habeas corpus.

A14. It is settled principle of law that writ of habeas corpus isavailable as remedy in all cases where person is deprived of his/herpersonal liberty. It is processual writ to secure liberty of the citizen fromunlawful or unjustified detention whether person is detained by theState or is in private detention. As Justice Hidayatullah (as he then was)held; “The writ of habeas corpus issues not only for release fromBdetention by the State but also for release from private detention”[1].At the same time, the law is well established that writ of habeascorpus will not lie and such prayer should be rejected by the Courtwhere detention or imprisonment of the person whose release is soughtis in accordance with the decision rendered by court of law or by anCauthority in accordance with law.

15. According to Dicey, -”if, in short, any man, woman, or child is,or is asserted on apparently good grounds to be, deprived of liberty, theCourt will always issue writ of habeas corpus to anyone who has theaggrieved person in his custody to have such person brought before theDCourt, and if he is suffering restraint without lawful cause, set him free.”[2]

16. In Halsburry’s Laws of England, writ of habeas corpus isdescribed as “a remedy available to the lowliest subject against the mostpowerful.”[3] It is writ of such sovereign and transcendent authoritythat no privilege of person or place can stand against it[4].

17. writ of habeas corpus can only be issued when the detentionor confinement of person is without the authority of law. Though theliteral meaning of the Latin phrase habeas corpus is ‘to produce thebody’, over period of time production of the body is more often thannot insisted upon but legally it is to be decided whether the body is underFillegal detention or not. Habeas corpus is often used as remedy incases of preventive detention because in such cases the validity of theorder detaining the detenu is not subject to challenge in any other courtand it is only writ jurisdiction which is available to the aggrieved party.The scope of the petition of habeas corpus has over period of timebeen expanded and this writ is commonly used when spouse claimsGthat his/her spouse has been illegally detained by the parents. This writ

1 Mohd. Ikram v. State of U.P., AIR 1964 SC 1625

2 A.V. Dicey, Introduction to the Study of the Law of the Constitution, Macmillan AndCo., Limited, p. 215 (1915)

3 Halsbury’s Laws of England, (4th Edn.) Vol. 11, para 1454 p. 769

4 V.G. Ramachandran’s Law of Writs, revised by Justice C.K. Thakker & M.C. Thakker,HEastern Book Company, , p.1036, 6[th] Edn. (2006)

is many times used even in cases of custody of children. Even though,the scope may have expanded, there are certain limitations to this writand the most basic of such limitation is that the Court, before issuing anywrit of habeas corpus must come to the conclusion that the detenu isunder detention without any authority of law.

18. In these cases, the detenus have been sentenced toimprisonment for life and as such their detention cannot be said to beillegal. It is not for the writ court to decide whether prisoner is entitledto parole or remission and these matters lie squarely in the domain of theGovernment.

19. Reliance has been placed by learned senior counsel for thedetenus on the judgment of this Court in the case of Sunil Batra (II) v.Delhi Administration[5], wherein Justice Krishna Iyer in his inimitablestyle has dealt with the expanding scope of habeas corpus jurisdiction.However, before referring to his views on the scope of habeas corpus,one has to refer to the factual situation which led to the filing of thecase. Sunil Batra came to know that some other prisoners were beingtortured by the Head Warder Jail Superintendent to extract money fromthe visiting relatives. He brought this to the notice of this Court and thisCourt entertained his petition under Article 32 of the Constitution holdingthat ‘‘these proceedings which, though not strictly traditional, areclearly in the nature of habeas corpus writs and, therefore, withinthe widest sweep of Article 32’’. The Court dealt with the very sensitiveissue of the manner in which prisoners in jail were deprived of theirbasic human rights and it is in this context that the Court held as follows:-

“5….Prison houses are part of Indian earth and the IndianConstitution cannot be held at bay by jail officials ‘dressed in alittle, brief authority’, when Part III is invoked by convict. Forwhen prisoner is traumatized, the Constitution suffers shock.And when the court takes cognizance of such violence and violation,it does, like the Hound of Heaven, ‘But with unhurrying chase,and unperturbed pace, Deliberate speed and Majestic instancy’follow the official offender and frown down the outlaw adventure.”

20. This Court referred to the development of law in the UnitedStates of America and held that the writ in the nature of habeas corpuscould be issued going beyond the conventional blinkers and the Court

Amust examine the manner in which the inmate is held and treated duringthe currency of sentence. One must remember that any person canbe deprived of his liberty only in accordance with the procedureestablished by law. Therefore, when person is sent to prison; whetherduring the investigation under an order of remand, issued under Section167 of the Code of Criminal Procedure,1973, or as an undertrial by denyingBhim the facility of bail, or after conviction; he is behind bars because ofthe orders of the Court. The Court which deprives person of hisliberty in accordance with law also has the responsibility to ensure thatsuch person though under incarceration is not denied the otherfundamental rights which he is entitled to. Therefore, there can be noCdispute with the proposition that anybody who is behind bars and is ill-treated or is deprived of his liberties, may approach the Court for writof habeas corpus. In the apposite words of Justice Krishna Iyer:-

“26. Where injustice, verging on inhumanity, emerges from hackinghuman rights guaranteed in Part III and the victim beseeches theDcourt to intervene and relieve, this Court will be functional futilityas constitutional instrumentality if its guns do not go into actionuntil the wrong is righted. The court is not distant abstractionomnipotent in the books but an activist institution which is thecynosure of public hope. We hold that the court can issue writs tomeet the new challenges. Lord Scarman’s similar admonition, inEhis ENGLISH LAW — THE NEW DIMENSIONS, is anencouraging omen. The objection, if any, is obsolete because in aprison situation, Constitution Bench of this Court [Sunil Batra v.Delhi Admn., (1978) 4 SCC 494 and Sobraj (1978) 4 SCC 494]did imprison the powers of prison officials, to put an under trialFunder iron fetters or confine in solitary cells convicts with deathsentences under appeal.

27. Once jurisdiction is granted — and we affirm in unmistakableterms that the court has, under Article 32 and so too under Article226, clear power and, therefore, public duty to give relief toGsentences in prison settings — the next question is thejurisprudential backing for the play of that jurisdiction. Here again,Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 has blazed trail,and it binds.

28. Are prisoners persons? Yes, of course. To answer in theHnegative is to convict the nation and the Constitution of

dehumanization and to repudiate the world legal order, which nowrecognises rights of prisoners in the International Covenant onPrisoners’ Rights to which our country has signed assent. In SunilBatra v. Delhi Admn., (1978) 4 SCC 494, this Court has rejectedthe hands-off doctrine and it has been ruled that fundamental rightsdo not flee the person as he enters the prison although they maysuffer shrinkage necessitated by incarceration. Our constitutionalculture has now crystallised in favour of prison justice and judicialjurisdiction : (SCC p. 504, para 4)

“The jurisdictional reach and range of this Court’s writ to holdprison caprice and cruelty in constitutional leash is incontestable,but teasing intrusion into administrative discretion is legalanathema, absent breaches of constitutional rights or prescribedprocedures.”

writ petition by prisoner is maintainable if his fundamentalrights are violated.

21. Having held that writ of habeas corpus is maintainable bya person who is under detention if his rights are violated, the questionthat remains to be answered is whether in the present case any right ofthe detenus was violated which could have led to the issuance of anorder directing his release from prison. We may make reference to thejudgment of this Court in the Col. Dr. B. Ramachandra Rao v. TheState of Orissa & Ors.[6], wherein it was urged before this Court that theorders of the Court directing the detention of the petitioner were illegal.In this case, the Court has held as follows:

“5….This Court does not, as general rule, go into suchcontroversies in proceedings for writ of habeas corpus. Such awrit is not granted where person is committed to jail custody bya competent court by an order which prima facie does not appearto be without jurisdiction or wholly illegal and we are not satisfiedthat the present is not such case.”

22. In Kanu Sanyal v. District Magistrate, Darjeeling[7]thisCourt while dealing with the writ of habeas corpus has held as follows:

“4. It will be seen from this brief history of the writ of habeascorpus that it is essentially procedural writ. It deals with the

6 (1972) 3 SCC 256

7 (1973) 2 SCC 674

Amachinery of justice, not the substantive law. The object of thewrit is to secure release of person who is illegally restrained ofhis liberty....”

23. In Manubhai Ratilal Patel v. State of Gujarat and Others[8],an order of remand was challenged before this Court. After referring toBa large number of judgments[9], which we are not referring in detail sincethey have all been considered in this judgment, this Court held as follows:

“31….It is well-accepted principle that writ of habeas corpus isnot to be entertained when person is committed to judicial custodyor police custody by the competent court by an order which primaCfacie does not appear to be without jurisdiction or passed in anabsolutely mechanical manner or wholly illegal….”

24. In Saurabh Kumar v. Jailor, Koneila Jail[10], this Court cameto the conclusion that the petitioner was in judicial custody by virtue ofan order passed by the judicial magistrate and, hence, could not be saidDto be in illegal detention. Justice T.S. Thakur, as he then was, in hisconcurring judgment held as follows:

“22. The only question with which we are concerned within theabove backdrop is whether the petitioner can be said to be in theunlawful custody. Our answer to that question is in the negative.EThe record which we have carefully perused shows that thepetitioner is an accused facing prosecution for the offences,cognizance whereof has already been taken by the competentcourt. He is presently in custody pursuant to the order of remandmade by the said Court. writ of habeas corpus is, in thecircumstances, totally misplaced…”F

25. The same view has been taken in the State of Maharashtraand Others v. Tasneem Rizwan Siddiquee[11] wherein it was observedthat no writ of habeas corpus could be issued when the detenu was indetention pursuant to an order passed by the Court. As far as the presentcases are concerned, it is not disputed that the detenus are behind bars

8 (2013) 1 SCC 314

9 Ranjit Singh v. State of Pepsu, AIR 1959 SC 843,Ummu Sabeena v. State of Kerala,(2011) 10 SCC 781, in the matter of-Madhu Limaye and Others, (1969) 1 SCC 292,Talib Hussain v. State of Jammu & Kashmir, (1971) 3 SCC 118, Sanjay Dutt v. State(II), (1994) 5 SCC 410

10 (2014) 13 SCC 436H11 (2018) 9 SCC 745

pursuant to conviction and sentence imposed upon them by court ofcompetent jurisdiction and confirmed by this Court, whereby they weresentenced to undergo imprisonment for life.

26. Dealing with the meaning of life imprisonment in GopalVinayak Godse v. The State of Maharashtra and Others[12]this Courtheld :-

“…Unless the said sentence is commuted or remitted byappropriate authority under the relevant provisions of the IndianPenal Code or the Code of Criminal Procedure, prisonersentenced to life imprisonment is bound in law to serve the lifeterm in prison”.

Thereafter, Constitution Bench in Maru Ram v. Union ofIndia[13] approved the view in Gopal Vinayak Godse’s case (supra) andheld that “imprisonment for life lasts until the last breath…”

27. We would also like to point out that the grant of remission orparole is not right vested with the prisoner. It is privilege available tothe prisoner on fulfilling certain conditions. This is discretionary powerwhich has to be exercised by the authorities conferred with such powersunder the relevant rules/regulations. The court cannot exercise thesepowers though once the powers are exercised, the Court may hold thatthe exercise of powers is not in accordance with rules. In support of hiscontention learned senior counsel for the detenus relied upon the Rulesof the High Court of Madras and referred to Rule 1 of the Rules whichreads as follows:-

“A petition for direction, Order or Writ, including Writ of HabeasCorpus, Mandamus, Certiorari, Quo Warranto. Prohibitionor Certiorarified Mandamus or any other Writ shall be in theform of Petition accompanied by an Affidavit containing facts,grounds and the Prayer…”

He has also referred to Rules 11, 12 and 13 of the Rules whichspecifically deal with habeas corpus petitions and read as under:

Rule 11:-

“In all Habeas Corpus Petitions, in the Cause Title of the petitionas well as in the accompanying Affidavit, the following clause

12 (1961) 3 SCR 44013 (1981) 1 SCC 107

should be incorporated just below the case number and above thename of the petitioner, at the right-hand side:

“(In the matter of detenue) (Full Name of the detenue as found inthe Order of Detention)”. Full Cause Title should be set out bothin the Habeas Corpus Petition and supporting Affidavit.”

Rule 12:-

“Every Habeas Corpus Petition should contain Schedule in thefollowing format:

(i) Name of the Detenue:(ii) Father’s/Husband’s Name:(iii) Age:(iv) Permanent Address:(v) Identification Marks/(As found in the order of Detention):(vi) Date of Detention Order:(vii) Reference Number of the Detention Order:(viii) Name of the Prison, where the Detenue is lodged:(ix) Prison Number:

Rule 13:-

“Following declaration by the Petitioner or Deponent of theAffidavit should be incorporated as penultimate paragraph of thesupporting Affidavit:

“The Petitioner declares that no other Habeas Corpus Petitionhad been filed or moved before this court or before any otherHigh Court or before the Supreme Court of India simultaneouslyseeking for the production of the body of the person or person ofthe very same detenue or challenging the Impugned Order of

Detention. The Petitioner further declares that the facts set outabove are true and correct to the best of his knowledge and nomaterial has been concealed or suppressed.”

28. The High Courts are empowered to frame rules in terms ofArticle 225 of the Constitution of India but this power is subject to theprovisions of the Constitution of India and to the provisions of any law ofthe appropriate legislature. Article 225 reads as follows:-

“225. Jurisdiction of existing High Courts.- Subject to theprovisions of this Constitution and to the provisions of any law ofthe appropriate Legislature made by virtue of powers conferredon that Legislature by this Constitution, the jurisdiction of, and thelaw administered in, any existing High Court, and the respectivepowers of the Judges thereof in relation to the administration ofjustice in the Court, including any power to make rules of Courtand to regulate the sittings of the Court and of members thereofsitting alone or in Division Courts, shall be the same as immediatelybefore the commencement of this Constitution:

Provided that any restriction to which the exercise of originaljurisdiction by any of the High Courts with respect to any matterconcerning the revenue or concerning any act ordered or done inthe collection thereof was subject immediately before thecommencement of this Constitution shall no longer apply to theexercise of such jurisdiction.”

29. Learned senior counsel for the detenus while referring to Rules11, 12 and 13 submitted that unless the petitioners in terms of Rule 12mentions the detention order, name of the prison where the detenu isdetained, prison number and does not challenge the order of detention,the writ would not be entertained. What description has to be given to awrit is for the High Court to decide. But the Rules cannot conferjurisdiction which is not conferred by the Constitution. We are evenotherwise unable to accept the argument of learned senior counsel forthe detenus because the Rules obviously deal with cases of detention/preventive detention where the detenu is under custody. If that custodyis legal then obviously no writ of habeas corpus can be issued forrelease of the detenu. We are also of the view that merely because theRules provide that in the petition details of the detention order, prison

Aetc., have to be given does not mean that the writ of habeas corpuscannot be issued where the Rules are silent. The Rules cannot overridethe Constitution.

30. As already mentioned above, it is well settled law that even ifthe detenu is in private detention then also writ of habeas corpusBwould lie. If the Rules are to be the masters and not the Constitution,then, probably in the Madras High Court no writ of habeas corpuswould be entertained in the case of private detention. This would beagainst the spirit of the Constitution of India. Therefore, we are clearlyof the view that reference to the Rules is of no aid whatsoever.

C31. The issue before us in the present case is whether the HighCourt can direct the release of petitioner under G.O.(Ms.) No.64 dated01.02.2018. We do not think so. In all these cases, the representationsmade by the detenus had not been decided. In our view, the propercourse for the Court was to direct that the representations of the detenusbe decided within short period. Keeping in view the fact that theDScheme envisages report of the Probation Officer, reference by theDistrict Level Committee and thereafter the matter has to be placedbefore the concerned Range Deputy Inspector General and beforeRegional Probation Officer and thereafter before the State LevelCommittee, we feel that it would be reasonable to grant 2-3 monthsEdepending on the time when the representation was filed for the State todeal with them. When the petition is filed just few days before filingthe representation then the Court may be justified in granting up to 3months’ time to consider the same. However, if the representation isfiled couple of months earlier and the report of the Probation Officer isalready available then lesser time can be granted. No hard and fastFtimelines can be laid down but the Court must give reasonable time tothe State to decide the representation. We are clearly of the view thatthe Court itself cannot examine the eligibility of the detenu to be grantedrelease under the Scheme at this stage. There are various factors,enumerated above, which have to be considered by the committees.GThe report of the Probation Officer is only one of them. After that, theDistrict Committee has to make recommendation and finally it is theState Level Committee which takes final call on the matter. We areclearly of the view that the High Court erred in directing the release of

the detenu forthwith without first directing the competent authority totake decision in the matter. Merely because practice has beenfollowed in the Madras High Court of issuing such type of writs for along time cannot clothe these orders with legality if the orders are withoutjurisdiction. Past practice or the fact that the State has not challengedsome of the orders is not sufficient to hold that these orders are legal.

32. In case, as pointed out above, petition is filed without anydecision(s) of the State Level Committee in terms of Para 5(I) of theG.O. in question, the Court should direct the concerned Committee/authority to take decision within reasonable period. Obviously, toomuch time cannot be given because the liberty of person is at stake.This order would be more in the nature of writ of mandamus directingthe State to perform its duty under the Scheme. The authorities mustpass reasoned order in case they refuse to grant benefit under theScheme. Once reasoned order is passed then obviously the detenuhas right to challenge that order but that again would not be writ ofhabeas corpus but would be more in the nature of writ of certiorari.In such cases, where reasoned orders have been passed the High Courtmay call for the record of the case, examine the same and after examiningthe same in the context of the parameters of the Scheme decide whetherthe order rejecting the prayer for premature release is justified or not. Ifit comes to the conclusion that the order is not proper order then obviouslyit can direct the release of the prisoner by giving him the benefit of theScheme. There may be cases where the State may not pass any orderon the representation of the petitioner for releasing him in terms of theG.O.(Ms) No.64 dated 01.02.2018 despite the orders of the Court. If noorders have been passed and there is no explanation for the delay thenthe Court would be justified in again calling for the record of the caseand examining the same in terms of the policy and then passing theorders.

33. As far as the present cases are concerned, we find that theHigh 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 theentire report(s). The report of the Probation Officer in all the cases isalmost identical. One of the reports reads as follows:-

A“Report of the Probation Officer regarding premature release of

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) andhas not dealt with the other observations made in the report of theProbation Officer. We are constrained to observe that this was not at allproper. In the other cases also, there are similar observations but theseare 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.

CRIMINAL APPEAL NO(S). 144 OF 2020(@ SPECIAL LEAVE PETITION (CRL) NO(S). 626 OF 2020)(@ SPECIAL LEAVE PETITION (CRL) D. NO. 18046 OF2019)

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 now.We are informed that during the period of incarceration in jail, he hascompleted the following educational courses:

AThis young man who may have committed heinous crime, hasobtained various degrees including Masters in Computer Application,Masters of Business Administration, Master Degree in Criminology &Criminal Justice Administration and M.A. in Journalism & MassCommunication and various other Vocational Diplomas. The learningwhich he has obtained in jail must be put to use outside. The jail recordBshows that his behaviour in jail has been satisfactory. The only groundagainst him is that he had murdered person from another communityand, therefore, it is said that some religious enmity may still prevail. Ithas come on record that on various occasions, he has gone back to hisnative place though under police escort. We are clearly of the view thatCin these circumstances this is fit case where we should not send thisrespondent to another round of litigation. Therefore, in exercise of ourpower under Article 142 of the Constitution we direct the release of therespondent.

CRIMINAL APPEAL NO(S). 145 OF 2020D(@ SPECIAL LEAVE PETITION (CRL) NO(S). 627 OF 2020)(@ SPECIAL LEAVE PETITION (CRL) D. NO. 18016 OF2019)

36. The detenu in this case is about 43 years of age now and weare informed that during the period of incarceration in jail, he hascompleted the following educational courses:E

(i)B.B.A., from Madras University, May, 2008;

(ii)Diploma in Hardware Servicing from Tamil Nadu OpenUniversity, January, 2014;

(iii)Hindu Course from Dakshina Hindi Prachar Saba;

(iv)Workshop and Bakery and Confectionary dated 1213.09.2008;

(v)Degree of Master of Arts and Political Science [First Class]from Tamil Nadu Open University, June 2014;G(vi)National Certificate in Modular Employable Skills fromMinistry 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 Mechanismdated 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 NaduOpen University, January, 2014.

We are also informed that the detenu in this case has gone onemergency leave 42 times (89 days) and by Court order, he has beengranted leave 2 (37 days) times and during the said occasions, neitherlife threat to him nor was there any law and order problem.

37. We are clearly of the view that in these circumstances this isa fit case where we should not send this respondent to another round oflitigation. Therefore, in exercise of our power under Article 142 of theConstitution we direct the release of the respondent.

Crl.Appeal No. 146 /2020 @ SLP(Crl)No.7697 of 2019

38. The detenu in this case is about 38 years of age now and weare informed that during the period of incarceration in jail, he hascompleted the following educational courses:

1.Diploma in Computer Hardware Servicing from Tamil NaduOpen University;

2.Bachelor of Business Administration from University ofMadras;

3.Master of Business Administration from University ofMadras.

39. We are clearly of the view that in these circumstances this isa fit case where we should not send this respondent to another round oflitigation. Therefore, in exercise of our power under Article 142 of theConstitution we direct the release of the respondent.

Crl.Appeal No. 148 of 2020 @ SLP(Crl) No.11494 of 2019

40. The detenu in this case is about 39 years of age now and weare informed that during the period of incarceration in jail, he hascompleted the following educational courses:-

A1.Higher Secondary Course from State Board of School, TamilNadu;

2.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 NaduOpen University;

5.Post Graduate Diploma in International Business;

6.Master of Business Administration (Human Resources) fromBharathiar University, Coimbatore;

7.M. A. Criminology and Criminal Justice Administration fromTamil Nadu Open University.

41. We are clearly of the view that in these circumstances this isa fit case where we should not send this respondent to another round ofDlitigation. Therefore, in exercise of our power under Article 142 of theConstitution we direct the release of the respondent.

Crl.Appeal No. 147 of 2020 @ SLP(Crl)No.6159 of 2019

42. The detenu in this case is about 46 years of age now and weare informed that during the period of incarceration in jail, he hasEcompleted 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 Mechanismdated 30.04.2013 done in Tamil Nadu Open University;

(vi)Done B. Literature dated May, 2017 & June, 2018 inBharathiar University, Coimbatore;

(vii)Done Vocational Diploma in DTP Operator dated June, 2017in Tamil Nadu Open University;

43. We find that the detenu in this case was convicted in anothercase under Section 120(B) of the Indian Penal Code, 1860 and sentencedto imprisonment for 5 years and was convicted under Section 4(a) and4(b) of the Explosives Substances Act, 1908 and was awarded 5 yearsimprisonment and 4 years imprisonment under each of these sectionsvide judgment dated 28.12.2018. This judgment of conviction andsentence is after the date of the G.O.(Ms.) No. 64 dated 01.02.2018 inquestion and this will also have to be taken into consideration. Therefore,as far as this case is concerned, we direct the competent authority toconsider the representation of the detenu keeping in view the facts andcircumstances of the case and decide the same within 6 weeks fromtoday. In case the State rejects the plea of the detenu then reasonedorder has to be passed and, in that eventuality, the detenu shall be atliberty to challenge the order before the High Court.

44. The detenu was also convicted in TADA case but thatconviction has been set aside by this Court and, therefore, that cannotbe taken into consideration.

45. In view of the above discussion, we set aside the judgment(s)of the High Court. As far as the Criminal Appeal No. 144 of 2020 @SLP(Crl.)No. 626 of 2020 @ SLP(Crl.) D.No.18046 of 2019, CriminalAppeal No. 145 of 2020 @ SLP(Crl.)No. 627 of 2020 @ SLP(Crl.)D.No.18016 of 2019, Criminal Appeal No. 146 of 2020 @SLP(Crl).No.7697 of 2019 and Criminal Appeal No. 148 of 2020 @SLP(Crl.)No.11494 of 2019, are concerned the detenus are ordered tobe released forthwith unless wanted in any other case. As far as detenuin Criminal Appeal No. 147 of 2020 @ SLP(Crl)No. 6159 of 2019 isconcerned the State is directed to consider and decide the representationof the detenu within 6 weeks from today.

46. The appeals are disposed of in the aforesaid terms. Pendingapplication(s), if any, stand(s) disposed of.

Kalpana K. Tripathy

Appeals disposed of.G